[2006] SASC 179
Einfeld v The Queen (2010) 266 ALR 598
Source
Original judgment source is linked above.
Catchwords
(2005) 139 LGERA 449
Boujaoude v R (2008) 72 NSWLR 85Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117(2000) 110 LGERA 334
Dendy v Brinkworth & Brinkworth (2006) 97 SASR 407[2006] SASC 179
Einfeld v The Queen (2010) 266 ALR 598[2013] NSWCCA 204
Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376(2006) 149 LGERA 415
Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373(2006) 165 A Crim R 151
Hodgetts v Chiltern District Council (1983) 2 AC 120
Johnson v Miller (1937) 59 CLR 467[1937] HCA 77
Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532(2006) 150 LGERA 231
Kirk v Industrial Relations Commission (NSW)Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531[2010] HCA 1
McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127[2000] NSWCCA 367
McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39[2002] NSWCCA 24
Newcastle City Council v Pace Farm Egg Products Pty Ltd [2005] NSWLEC 139
R v Bsub nom B v R (FLR) (2008) 76 NSWLR 533
[2008] NSWCCA 85
R v Janceski (2005) 64 NSWLR 10
[2005] NSWCCA 281
S v The Queen (1989) 168 CLR 266
[1989] HCA 66
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202
The prosecutor alleges that:
1. the defendants constructed a road ('Road') which extended some eight kilometres over numerous parcels of land. The prosecutor says that each parcel of land was owned and occupied by Kiangatha during the period of the allegations and that Mr Natale was the director of Kiangatha at the relevant time;
2. the Road was constructed between May and October 2017, and it was not discovered until an inspection was conducted by Oberon Council ('Council') on 4 October 2017. Council then reported the works to the prosecutor on 5 October 2017;
3. the Road was constructed without sediment and erosion controls and in some locations, the Road was built directly across gullies and drainage lines, and therefore soil and sediment was placed directly into those drainage lines and gullies; and
4. at other locations along the Road, site inspections show that plumes of sediment travelled from the Road construction towards gullies and drainage lines, and soil and sediment was placed into a position where it was likely to fall, descend or be washed into gullies and drainage lines.
The defendants submit that the summonses are bad at law as they give rise to both duplicity that is patent as the counts on their face disclose allegations of multiple separate offences in each count, and latent as the evidence also discloses that multiple offences are alleged in the one count.
In essence, the defendants say that the problem with each summons is that multiple offences are disclosed in relation to the 35 different "Red Dot" locations (identified on a map annexed to the prosecutor's letter of particulars dated 4 December 2018 ('Map') and also by longitude and latitude coordinates in the table ('Table') forming part of the prosecutor's letter of particulars) as regards the actual pollution charges, and in relation to different drainage lines or parts of the drainage line network in relation to the likely pollution charges. The defendants contend that the extended charge period also gives rise to the potential for multiple offences at the same location, but at different times.
The prosecutor attaches amended summonses to its submissions and notes that it may be given the opportunity to cure any duplicity as it accepts that all four summonses are patently duplicitous in respect of the particularisation of the Waters. Although there is no application before the Court to amend the summonses, the prosecutor proposes to amend each summons to insert a date range for the alleged offences; remove the "dam located on Lot 8 DP 821872" from the definition of "Waters"; and remove "sediment laden waters that flowed from the earthworks" from the definition of "Pollutant". The prosecutor also proposes to amend the actual pollution summonses in relation to the particularisation of the "Land" (by deleting 10 lots so that only 3 lots are particularised) and the "Manner of breach" (as detailed below), and disputes the extent of any latent duplicity (in either the actual or likely pollution charges) given the early stage of the proceedings.
The essential question is whether the summonses charge more than one act of actual or likely pollution in each count so as to infringe the rule against duplicity.
I will first summarise the evidence, then consider the applicable principles and the essential elements of the offence provision, being s 120 of the POEO Act. I will then consider the parties' respective positions in relation to the alleged patent duplicity in both the actual and likely pollution summonses. Finally, I will consider latent duplicity in relation to both sets of summonses.
[2]
Evidence
In support of the notices of motion, the defendants relied upon the following affidavits:
1. David Stanley O'Donnell, instructing solicitor for the defendants, sworn 19 December 2018;
2. Ian Draper, Compliance Officer, Water NSW, affirmed 21 September 2018;
3. Paul Crossan, Catchment Compliance Manager, Water NSW, affirmed 21 September 2018; and
4. Amelia Stein, Compliance Officer, Water NSW, sworn 22 September 2018.
The affidavits of Mr Draper, Mr Crossan and Ms Stein were each prepared for the prosecutor.
In her affidavit, Ms Stein details her inspections of five areas which she describes as "Priority Areas" within the 13 lots identified in the summonses. She deposes that, as a result of a Class 1 appeal lodged by Kiangatha in response to a Prevention Notice issued by Water NSW on 7 December 2017 pursuant to s 96 of the POEO Act, the Court required Kiangatha to submit a plan of "Priority Areas" which were areas that required the "most immediate remediation work by 22 December 2017". Consequent upon the Court's order, on 21 December 2017, Kiangatha provided a plan of five "Priority Areas" and a schedule of proposed remediation works in relation to those areas.
In his affidavit, Mr Draper details his inspections of the land which he describes as comprising 13 lots. He deposes that he uses "shorthand names" for some of the areas which he has marked on a map, and that these areas correspond with the "Priority Areas" referred to in Ms Stein's affidavit.
In response to a request for further and better particulars dated 16 November 2018, on 4 December 2018, the prosecutor provided:
1. a Map of the land marked with 35 numbered "red points" (described in the legend to the Map as "Point of Potential Pollution" and referred to in the evidence as "Red Dot" locations), being places where the prosecutor alleges water pollution has occurred. These points are depicted along a pink dotted line described as the "Constructed Road" and along various blue lines described as "Creeks" and "Drainage";
2. a Table identifying the precise location of each of the 35 Red Dot locations by reference to lot and DP number, longitude and latitude coordinates, and corresponding references to paragraphs and photographs in the affidavit of Mr Draper affirmed 21 September 2018;
3. responses to specific requests in relation to the likely pollution charges as follows:
1. the offence was committed along the entirety of the Road or track depicted by the pink dotted line on the Map, and the prosecutor does not allege that the offence was committed on Lot 20 DP 757035;
2. in relation to Waters, the location of the ephemeral (and non-ephemeral) drainage lines the subject of the offence are depicted as blue lines on the Map;
3. in relation to Pollutant, the location of the alleged earthworks are "coterminous with the Road"; and
4. in relation to "Manner of breach":
1. it is alleged that all of the earthworks involved the use heavy plant and machinery;
2. "significant areas of disturbed soil" are alleged to have been created "along the entirety of the Road" between 1 May 2017 and 10 October 2017;
3. the "placing of soil and sediment" is alleged to have occurred on that part of the Land (identified in the summonses) "on which the Road has been constructed" between 1 May 2017 and 10 October 2017;
4. it is alleged that the Pollutant was "placed…in a position where the Pollutant was likely to fall or descend or be washed into Waters or dry beds of the Waters" on the "lower side of the Road, as the Road was created by 'cut and fill' earthworks" between 1 May 2017 and 10 October 2017; and
5. the Pollutant is alleged to have been likely to fall or descend or be washed into "Waters or dry beds of the Waters", being "the drainage lines marked on the Map as blue lines, which are adjacent to, downslope of, or transected by the Road, and any downstream portion of those drainage lines".
1. responses to specific requests in relation to the actual pollution charges which were, with the exception of some minor changes, generally reflective of those provided in response to the request in relation to the likely pollution charges. The prosecutor further noted that:
1. the alleged offence took place at the locations marked with red dots on the Map and further described in the Table;
2. the sediment laden waters that flowed from the earthworks were on those parts of the land that "are downslope from the Road and/or downstream of a red dot on the Map";
3. in relation to Waters, the ephemeral drainage lines in question are "marked on the Map as blue lines, which are adjacent to, downslope of, or transected by the Road, and any downstream portion of those drainage lines";
4. in relation to "Manner of breach":
1. the reference to "pollutant" in item 1 is a reference to "Pollutant" as that term is defined in the summonses;
2. the reference to "Pollutants" in item 2 is a reference to "Pollutant" as that term is defined in the summonses;
3. the "placing of pollutant into ephemeral drainage lines" is alleged to have occurred "at the locations that identify drainage lines marked with red dots on the Map and further described in the Table" between 1 May 2017 and 10 October 2017; and
4. "significant areas of disturbed soil" are alleged to have been created "along the entirety of the Road constructed by or for the defendants as identified in the Map".
1. that the alleged offences first came to the knowledge of an Authorised Officer of the prosecutor on 5 October 2017, and the alleged offences first came to the attention of an Authorised Officer of Council on 4 October 2017.
[3]
Applicable principles
Duplicity, also described as ambiguity or uncertainty, arises where a defendant is charged in one count with the commission of two or more separate offences: Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 ('Walsh') and Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 ('Truegain'). Duplicity can be either patent or latent. Patent duplicity is found where the terms of the summons itself discloses more than one offence and latent duplicity arises where "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": R v B; sub nom B v R (FLR) (2008) 76 NSWLR 533; [2008] NSWCCA 85 at [53].
In Truegain at [52], Leeming JA, having considered the historical background and purpose of the doctrine of duplicity, cited principles identified by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 ('Hannes') at [9] and endorsed in Einfeld v The Queen (2010) 266 ALR 598; [2010] NSWCCA 87 at [131], which I respectfully adopt:
There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities (emphasis added).
While the "qualities" are not expanded upon in Truegain at [52], they are considered in Hannes at [9] where Basten JA gives the example of a case which involved the issue of a company prospectus containing a number of untrue or misleading statements. Each such statement would have been sufficient to give rise to the offence, the prohibited act being the issue of the prospectus. As such, there was only one offence committed by issuing the prospectus, whether there were two or more untrue or misleading statements contained in it.
In light of Leeming JA's comments in Truegain at [52], it is first necessary to construe the statutory provision that creates the offence for the purpose of identifying the elements of the offence and determining what particular conduct (acts or omissions) is sufficient to constitute the offence. These are matters of substance not form. Then, the act or conduct set out in the pleading should be examined.
[4]
The offence provision
Section 120(1) of the POEO Act, as in force at the relevant time, provided:
120 Prohibition of pollution of waters
(1) A person who pollutes any waters is guilty of an offence.
…
(2) In this section:
pollute waters includes cause or permit any waters to be polluted.
While the Dictionary to the POEO Act does not define "pollute waters", it provides a definition of "water pollution" and "pollution of waters" as follows:
water pollution or pollution of waters means:
(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or
(b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or
(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,
and, without affecting the generality of the foregoing, includes:
(d) placing any matter (whether solid, liquid or gaseous) in a position where:
(i) it falls, descends, is washed, is blown or percolates, or
(ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or
(e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted,
if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.
[5]
Patent duplicity
As the act or conduct prohibited by s 120 of the POEO Act has been identified, it is then necessary to identify the act or conduct set out in the pleadings as constituting the offence to determine whether the charges as pleaded are duplicitous. Given the significant factual similarities between the actual and likely pollution charges, I will first deal with the matters that are common to both sets of summonses, and then I will separately consider the likely pollution and actual pollution summonses.
I accept that not only does determination of duplicity involve construction of the statute, it is always a question of fact and degree. Although there is no authority directly on point in relation to the type of conduct under consideration, it is relevant to record that the prosecutor accepts, and I find, that all four summonses are patently duplicitous as they particularise more than one body of receiving waters where pollution of either would be sufficient to establish the offences. As such, although no application to amend is presently before the Court, as noted above, the prosecutor proposes to delete the reference to the "dam located on Lot 8 DP 821872" in each summons so "Waters" is just defined as "the ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox's River". As Murdering Creek joins and becomes Gibraltar Creek, which then joins the Cox's River, the prosecutor submits that this is the alleged pathway of the pollutants, and that each named waterway is not a separate body of water.
Further, as noted above, "Pollutant" is presently defined in each summons as "soil and sediment from the earthworks and sediment laden waters that flowed from the earthworks" (emphasis added). To the extent that there was some uncertainty due to the inclusion of the conjunctive "and", I consider that the prosecutor's proposed amendment to delete "and sediment laden waters that flowed from the earthworks" may go some way to clarifying this uncertainty. However, the availability of any such amendment is a matter for consideration at the time of amendment.
The defendants submit that all charges (that is, the actual and likely pollution charges) are bad for patent duplicity and that this is not an evidential problem that can be remedied by further evidence.
In relation to the likely pollution charges, Mr Ireland submitted that each time the relevant sediment or earthworks material was placed in a position where it was likely to move into the dry beds of the waters or into the ephemeral drainage lines, a s 120 offence would be committed. The defendants submit that a s 120 offence is one that requires the charging of discrete acts of pollution on each entry into waters in a separate offence. The defendants submit that the act of pollution involves the placement of the pollutant into the position where it is likely to fall, descend, be washed, blown or percolate into the waters. The defendants also note that the same line of argument applies for the actual pollution offences (that is, the criminal act involves the placement of the pollutant into the waters). Accordingly, the defendants submit that the prosecutor does not correctly draw the line between the criminal act of water pollution and the consequences of that act.
[6]
Likely pollution charges
In addition to the submissions above which relate to both sets of summonses, in relation to the likely pollution charges, the defendants made the following further submissions (which are considered in light of my findings above).
The defendants submit, in a similar manner to the actual pollution summonses, that the likely pollution summonses are infected with patent duplicity as they roll up numerous separate offences that could be committed in a variety of different ways through a variety of factual circumstances. The defendants contend that the offences as charged necessarily involve different locations, topography, bodies of sediment and degrees of risk of movement into different ephemeral drainage lines or the Dam. By way of example, the earthworks carried out along the Road on the western part of the Map on Lot 26 DP 757035, could only conceivably have posed a risk (if any) of sediment moving into the ephemeral drainage lines on that lot or possibly adjoining lots, and as the Map shows that the ephemeral drainage lines in this western location are separated by the topography from the eastern ephemeral drainage lines, earthworks at particular points along the Road on Lot 26 DP 757035 could only possibly give rise to likely pollution offences (if any) in relation to or by reason of the alleged likelihood of falling, descending or being washed into those Murdering Creek drainage lines, not the drainage lines distant from this location (to the east on the Map).
By contrast, the defendants submit that the earthworks that were carried out for the purposes of the construction of the Road on Lot 30 DP 757035 (a location on the east of the Map) could only have posed a risk (if any) of sediment moving into the drainage lines in that area. The defendants contend that these drainage lines are distinct and many kilometres away from the drainage lines in and around Lot 26 DP 757035, the subject of the westerly earthworks.
The defendants say that these two separate locations (and numerous others arising from earthworks along the entire length of the Road between these two locations and affecting different or multiple ephemeral drainage lines shown on the Map) are alleged in the likely pollution summonses.
The defendants submit that there is significant unfairness as there may be different available defences associated with different locations as the different locations may have varying slopes, topographies, amounts and composition of deposited material.
[7]
Actual pollution charges
As stated above, the defendants submit that in relation to the actual pollution charges, it is alleged that the offence was committed when sediment flowed into any one of the 35 Red Dot locations, or into the Dam. That is, each time the pollutant was placed in the relevant waterway or part of the waters, the drainage channel, the dry bed, or other parts of the ephemeral streams, a s 120 offence would have been committed.
The defendants contend that the elements of the offence in relation to each of these dots (or the Dam) will be necessarily quite different, yet the particulars allege that the offence took place at each of these locations. The defendants say that it is impossible that the one offence took place at each of these locations, and what is necessarily involved in these charges as particularised are at least 36 separate offences. The defendants use the term "at least" because there is an extended time period over which the offences are said to have been committed (May to October 2017) and the prosecutor has not limited itself to one act of pollution in relation to each Red Dot location or the Dam.
Similar to their submission regarding the likely pollution charges, the defendants submit that the acts involved in placing sediment or putting it into a position where it fell, descended or was washed into, for example, Red Dot 34 on the eastern side of the Road, would be different factually to those involved in the offence that is alleged in relation to Red Dot 5 on the western side of Lot 26 DP 757035. That is, the earthworks in the eastern location could not have polluted Red Dot 5, and vice versa as regards to Red Dot 34 in relation to the earthworks on the western part of the Road.
As with the likely pollution offences, the defendants submit that there may be different defences of honest and reasonable mistake of fact as to whether or not sediment from the earthworks actually moved, washed or descended into these individual points.
Further, the defendants submit that the distinction between the allegation in the charges that the Red Dot locations were impacted, and the allegation that the Dam was impacted, is enough in itself to infect the charges with duplicity as the manner of breach involving the Dam cannot be the same as the manner of breach involving points other than the Dam.
[8]
Latent duplicity
The defendants submit that the patent duplicity is not corrected or eliminated by the evidence in the "prosecution brief" as that evidence further discloses the material differences between the alleged pollution events at different locations that are rolled up into the one charge in each summons.
For example, the defendants note that Red Dot locations 9, 18 and 35 are identified in the Map and Table, and referred to in the affidavit of Mr Draper and the photographs annexed thereto, and submit that such identification results in confusion as to where the points are, what pollution is alleged, and what earthworks are alleged to have caused the pollution. The defendants again submit that the topography at each of the Red Dot locations may be different, and that different defences may arise in relation to each Red Dot location.
The defendants note that each of the 35 Red Dot locations shown on the Map and described in the affidavit evidence noted in the Table reveal the same uncertainty in the actual pollution charges as they are at different locations with different topography, proximate to different vegetation and barriers to soil and sediment movement, and affected by different earthworks carried out at different times during the charge period.
The prosecutor submits that to the extent that there is alleged to be latent duplicity based on the evidence, such an argument is premature and in any event, is not made out in the manner alleged by the defendants. The prosecutor says that no orders for service of the brief of evidence have been made, and the way in which the prosecutor's case is to be conducted has not yet been finalised. Therefore, the prosecutor contends that a submission that the way the prosecutor's case is to be conducted is uncertain does not yet arise.
In considering the parties' submissions in relation to the issues considered above, I have considered the parts of the affidavits of Mr Draper, Mr Crossan and Ms Stein (relied upon by the defendants in these motions) to which I have been referred, and in particular the parts thereof referred to in the Table attached to the prosecutor's letter of particulars of 4 December 2018. I have also considered the material in a document (in the form of an aide memoire) provided by Mr Ireland during the hearing which directed the Court to specific evidence regarding Red Dot locations 2, 9, 18, 33 and the Dam at Red Dot location 35, and the commentary and photographs relating to each of those areas.
[9]
Conclusion
In relation to the foreshadowed amendments, to the extent that the alleged defects are curable, it is sufficient to note that the Court has power to make amendments in its criminal jurisdiction pursuant to s 21(1) of the Criminal Procedure Act 1986 (NSW) ('CPA'): Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [9]-[10] and Boujaoude v R (2008) 72 NSWLR 85; [2008] NSWCCA 35 at [48].
Section 16(2) of the CPA relevantly provides:
16 Certain defects do not affect indictment
...
(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:
(a) any alleged defect in it in substance or in form, or
...
Further, ss 20 and 21 of the CPA relevantly provide:
20 Amendment of indictment
(1) An indictment may not be amended after it is presented, except by the prosecutor:
(a) with the leave of the court, or
(b) with the consent of the accused.
(2) This section does not affect the powers of the court under section 21.
(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
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.
…
(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.
The application of the above provisions was considered in Manchee at [60]-[71]. I also accept that there are circumstances in which a defect in an indictment cannot be cured at all by amendment: R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281.
As noted above, s 20 of the CPA states that no amendment may be made except with the leave of the Court (or with the consent of the other party). As there are no applications to amend presently before the Court, I make no finding as to the suggested or intended amendments except to note that the proposed amendments, including the deletion of the reference to the Dam so that the "Waters" are defined as "The ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox's River" would mean that each of the nominated areas would not be a separate body of water.
[10]
Addendum 20 December 2019
Subsequent to judgment given in the above matter, the proceedings were listed before me for mention on 20 December 2019. Mr M Wright of senior counsel appeared for the prosecutor and Mr C R Ireland of counsel appeared for the defendants. Mr Wright indicated that the prosecutor now sought leave to amend the summonses generally in accordance with the amendments considered at the hearing of the notices of motion. As there was no objection from the defendants, at the mention, I granted leave to the prosecutor to amend the summons in each proceedings in the form of Exhibit 1. In the circumstances, the parties agreed that it was appropriate to otherwise dismiss the motions.
[11]
In proceedings 2018/00295909:
1. The notice of motion filed 19 December 2018 is dismissed.
2. The prosecutor is granted leave to amend the summons filed 27 September 2018 in the form of Exhibit 1.
3. The matter is stood over for directions before the List Judge on Friday 14 February 2020.
[12]
In proceedings 2018/00295910:
1. The notice of motion filed 19 December 2018 is dismissed.
2. The prosecutor is granted leave to amend the summons filed 27 September 2018 in the form of Exhibit 1.
3. The matter is stood over for directions before the List Judge on Friday 14 February 2020.
[13]
In proceedings 2018/00295911:
1. The notice of motion filed 19 December 2018 is dismissed.
2. The prosecutor is granted leave to amend the summons filed 27 September 2018 in the form of Exhibit 1.
3. The matter is stood over for directions before the List Judge on Friday 14 February 2020.
[14]
In proceedings 2018/00295912:
1. The notice of motion filed 19 December 2018 is dismissed.
2. The prosecutor is granted leave to amend the summons filed 27 September 2018 in the form of Exhibit 1.
3. The matter is stood over for directions before the List Judge on Friday 14 February 2020.
[15]
Amendments
30 December 2019 - Addendum added at par [127].
Final orders made at par [128].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 December 2019
In Environment Protection Authority v Riverina Australia Pty Ltd (2015) 90 NSWLR 57; [2015] NSWCCA 165 ('Riverina') at [93]-[94], [96], [98], [109], Hall J also considered the principles relating to duplicity, stating:
[93] In Johnson v Miller at 489-490, Dixon J observed:
"…the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence."
[94] As soon as it appears that a count in an indictment (and equally in a summons charging an offence) is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged: S v The Queen, supra, at p 282 per Toohey J. See also Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323, Maxwell P, Weinberg and Kyrou AJA at [46].
…
[96] The general rule is that unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity, they should be separately charged; Environment Protection Authority v Truegain Pty Ltd, supra, at [50] per Leeming JA; Walsh v Tattersall, supra, per Kirby J at 107.
…
[98] Acts or omissions, disparate in nature and content, involving different items of plant or different work systems, operations and procedures or different locations on particular premises in cases involving prosecutions for breach of statutory obligations to provide and maintain a safe working environment have been held to be duplicitous: Chugg v Pacific Dunlop Ltd [1988] VR 411; Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 at 179. The conduct particularised in a summons in such cases provides the basis for determining the discrete or separate offence charged.
…
[109] Insofar as paragraph 1(c)(i) applies to two or more acts of pollution - not involving the LRMB ['liquid raw material bund'] - any liability sought to be established at the hearing of the Summons would be based on a different factual foundation. The single count pleaded in the Summons accordingly alleges two or more offences under s 120. As such the Summons contravenes the rule against duplicity…
Relevant to the issues presently before the Court, where acts form part of the same transaction or criminal enterprise, they can be charged in a single count: Truegain at [48]. Conduct that is capable of constituting a single criminal enterprise was described in Walsh at 107-108 as follows (citations omitted):
… If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise, this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible…
…
Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion…
As noted by Leeming JA in Truegain at [47], the application of the doctrine of duplicity is relatively straightforward when the elements of the offence are discrete, however, of particular relevance to the present matters is the observation of Dixon J in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 ('Johnson') at 483 that questions can arise as to whether the facts said to constitute the offence are "repetitions, not continuations" of the offence.
It is trite that a defendant prosecuted under s 120 of the POEO Act is entitled to be provided with the particulars of the alleged conduct - that is, the time, manner and location of the contravention: Johnson at 489, Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 at [25]-[29] and Riverina at [102]. Therefore, when it appears that a count in a summons charging an offence is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the charge: Riverina at [94], referring to S v The Queen (1989) 168 CLR 266; [1989] HCA 66 at 282. Relevant to the present matters, unless the allegation constitutes a continuing offence (or offences which are closely related so as to amount to one activity), they should be separately charged: Truegain at [50], Walsh at 107 and Riverina at [96].
If duplicity is found and a summons can be cured, then the prosecutor should seek leave to elect which offence to proceed with: Walsh at 110. Whether a summons can be cured by election will depend on whether the defect is one that goes to an essential legal ingredient of the offence (the elements of the offence), or whether the defect lies in an essential factual ingredient. A charge that omits a legal element of the offence is incurable, whereas a charge that lacks an essential factual ingredient may still be maintained: McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39; [2002] NSWCCA 24 ('McConnell Dowell (No 2)') at [12].
If amendment is sought in relation to a legal element of the offence, the amendment may be statute barred if made out of time: Newcastle City Council v Pace Farm Egg Products Pty Ltd [2005] NSWLEC 139 at [8].
As noted at [26] above, the "first step" in identifying duplicity or uncertainty involves considering the legal elements of a particular offence (which differ from the factual elements) to identify the act or conduct prohibited. The elements of a water pollution offence under s 120 of the POEO Act are (Riverina at [15]):
1. the act of polluting, by the action of placing or introducing;
2. a pollutant;
3. into waters;
4. by a person.
The defendants submit that s 120 as it applies to both actual and likely pollution, as a matter of statutory construction, requires the identification of a particular act of pollution (which includes the result, being the pollution entering the waters) and is complete once that act occurs. Mr Ireland submitted that the result in the case of the actual pollution charges would occur when the pollution enters the relevant waterway or drain, and the result in the likely pollution charges would occur when material is placed in a position where it is likely to descend into the relevant waterway or dry bed.
As recorded at [14] above, the defendants submit that, adopting the particulars referred to in the prosecutor's letter of particulars of 4 December 2018, the actual pollution charges relate to all or any of the particular acts of pollution impacting the streamlines at the Red Dot locations, and, as regards the likely pollution charges, at different unspecified locations along the various ephemeral drainage lines shown on the Map due to the placement of the earthworks along the Road progressively throughout the charge period.
The defendants submit that if the particular pollution offences had been charged separately, they would have had an opportunity to decide whether to plead guilty or not to particular acts of alleged pollution, to defend others, and to utilise the different defences that may be available in relation to each distinct factual circumstance (such as honest and reasonable mistake of fact).
The defendants note that in Riverina, Hall J (with whom Hoeben CJ at CL and Garling J agreed) held that in relation to a charge against s 120 of the POEO Act, if a summons fails to identify an act or manner of pollution and is capable of encompassing any or all of a number of possible acts of pollution, it is uncertain and duplicitous.
The defendants submit that the duplicity in this case is of a more serious order than in Riverina as not only two ways of committing the s 120 offence are encompassed by the charges, but at least 36 in relation to the actual pollution charges and a comparable number as regards the likely pollution charges as each Red Dot location appears to generally coincide with a location along the drainage lines at which the prosecutor alleges likely pollution as a result of earthworks in the vicinity.
The defendants submit that the rolled up nature of the charges also creates difficulties in relation to the admissibility of evidence at trial, an aspect of the rationale for the rule against duplicity. By way of example, the defendants contend that this creates issues in relation to whether evidence concerning the earthworks and acts of alleged pollution in the eastern area of the Map should be admitted given that they must be irrelevant to the earthworks and acts of pollution alleged in relation to the western area of the Map and points in between.
The defendants submit that the prosecutor cannot reserve the right to seek to patch up identified duplicity by evidence as the charges must be non-duplicitous and certain for the Court at trial to be able to determine what evidence is admissible in relation to which particular charge. The defendants contend that it is unfair for the prosecutor to say that the uncertainty and duplicity will be clarified by evidence and dealt with later.
The defendants further submit that if the prosecutor wishes to rely on further evidence to cure the duplicity or uncertainty, this should have been served by now, and the Court must act on the basis of the evidence as it is now.
The prosecutor submits that it is apparent from the definition that "water pollution" and "pollution of waters" has very broad scope and is designed to capture a wide range of conduct.
The prosecutor further submits that the time, place and manner of polluting waters are factual ingredients, not essential elements of the offence so they are capable of particularisation or amendment. Insofar as the prosecutor may seek to amend in the present matters, it submits that it proposes to do so only in relation to factual ingredients of the offence, and not in relation to essential legal ingredients.
In considering the "first step" in the process of identifying duplicity or uncertainty, I find that the act of pollution involves the elements detailed at [35] above. The critical element of the offence is the act of polluting.
I accept, as I must, that a summons must specify the essential ingredients of an alleged offence (including the legal elements of the offence), and s 120 of the POEO Act can be described, in effect, as a "result offence" in the sense that the consequence, that is, the pollution or likely pollution, is an essential ingredient of the offence: Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83 and McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127, [2000] NSWCCA 367 ('McConnell Dowell') at [48]. However, the term "result offence" has been considered to be but a "convenient description of a category of offence" and it does not give rise to "specific rules" of its own: McConnell Dowell (No 2) at [26]. I do not consider that this descriptor is determinative in the matters presently before the Court.
Further, I accept the prosecutor's submission that the definition of pollution of waters has very broad scope and is designed to capture a wide range of conduct. In the present circumstances, I consider, subject to the matters considered below, that the time, place and manner of polluting are essential factual ingredients and are not essential legal elements of the offence, and, to this extent, they are capable of amendment.
As found in Environment Protection Authority v Brazel (No 2) [2002] NSWLEC 26 ('Brazel (No 2)') at [7]-[8] and CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334 ('CSR') at [35], a single act of polluting (if the conduct can be so considered) can have multiple prescribed consequences, including actual pollution and likely pollution. Further, one act (here, building the Road) may be fairly regarded as part of the same (criminal) activity, namely water pollution within the expanded definition in the Dictionary to the POEO Act.
The defendants submit that the prosecutor's reliance on a single criminal transaction does not assist as the charges allege incidents so separate in time and place as to render the doctrine inapplicable, and the nature of the offences on a proper construction is not amenable to the exception applying.
The prosecutor submits that the construction of the Road is properly characterised as a single criminal enterprise and that it is clear from the particularisation of the dates (between 1 May 2017 and 10 October 2017) that the defendants' construction of a single road through numerous parcels of land was a continuing course of conduct. Mr Wright further submitted that the Road was constructed in that period continuously, despite the fact that there may have been a break in time the construction thereof.
While the prosecutor only submitted that there was a continuous course of conduct with respect to the likely pollution charges in its written submissions, at the hearing, Mr Wright clarified that this submission was equally applicable to the actual pollution charges (Tcpt, 2 July 2019, p 82(14-35)).
Put simply, the prosecutor says that the relevant act of polluting is the construction of the Road, which comprises the cumulation of a number of positive acts (constructing the Road) and omissions (without appropriate sediment and erosion controls).
The prosecutor distinguishes Riverina and Truegain from this case, noting that those cases involved the operation of plant and complex industrial processes that were discrete from one another in function and purpose. The prosecutor submits that the act of polluting is the construction of the Road, a continuous process where each discrete act (if discrete acts can coherently be identified) is closely related to the next - that is, it was part of one overall transaction with one underlying factual matrix. As such, the prosecutor says that the circumstances in this case are more similar to Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376; (2006) 149 LGERA 415 ('Hakim') and Dendy v Brinkworth & Brinkworth (2006) 97 SASR 407; [2006] SASC 179 ('Dendy').
The prosecutor submits that the defendants' analysis is artificial as it breaks up the construction of the Road into individual acts. If that were done, the prosecutor says that each metre or even millimetre of the excavation could be the subject of a separate offence. Mr Wright further submitted that on the defendants' construction, every time the bulldozer stopped for whatever reason (including taking a break) or at the end of each day, there would be a new offence (Tcpt, 2 July 2019, p 68(1-8)). The prosecutor contends that the preferable position is that the construction of the Road is a single criminal enterprise.
The prosecutor contends that there is nothing in the scope of s 120 of the POEO Act or in the context of the legislation to require the specification in a separate charge of each distinct act capable of constituting an act of pollution in a series of acts, nor is there anything to suggest that characterisation of the conduct as a course of conduct is unavailable. In response to the defendants' emphasis on the nature of the offence, being a "result offence", Mr Wright submitted that if there is a course of conduct and it continues, the results continue.
The prosecutor says that to charge a separate offence for distinct acts each day or for each location of likely or actual pollution would be oppressive as it would result in the defendants being faced with multiple separate charges in relation to a single course of conduct. In summary, the prosecutor submits that characterising the conduct as a single enterprise avoids artificially breaking up the acts, gives effect to the broad scope of the legislation and avoids an oppressive number of charges being brought.
As noted above, while determinations of duplicity involve matters of fact and degree, the cases cited by the parties offer some guidance. Nevertheless, I am conscious of Pepper J's comments in Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190 at [38] that the applicable legal principles in relation to duplicity are "beguilingly simplistic in their articulation but often belie difficult application". Accordingly, considering whether there may be a single course of conduct (or a single overall enterprise) and looking at the various authorities where courts have analysed such matters as the differing activities undertaken, the relationship between the location(s) of such activities, the machinery and method employed, and the varying statutory provisions, make the determination of the present matter not without some difficulty.
In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 ('Tropic Asphalts'), by way of three separate summonses, the defendant was charged with carrying out development otherwise than in accordance with a development consent which was in force. The charges related to a "temporary mobile asphalt batching plant". The first charge alleged that the defendant engaged in a course of conduct by operating the plant "to a maximum daily production capacity of more than 150 tonnes", contrary to condition 1 (development must be carried out in accordance with the Statement of Environmental Effects). The second charge related to the defendant engaging in a course of conduct, being production at the plant of more than 150 tonnes per day in breach of condition 4 (production must not exceed 150 tonnes per day), and the third charge alleged that the defendant engaged in a course of conduct by operating the plant so that more than 12 trucks per day were accessing the site during the charge period in breach of condition 6 (trucks not to exceed 12 per day). At first instance and on appeal, the first charge was struck out as it did not allege an offence known to law, and each of the second and third charges was found to be duplicitous. A separate contravention of conditions 4 and 6 was found to occur on each day the plant produced more than 150 tonnes or more than 12 trucks entered or exited the site.
In Hakim, there were two distinct areas of construction, excavated at different periods and occurring in different areas of the same property. Relevantly, the case advanced was that there was a single overall enterprise, being one construction project which encompassed all acts of excavation necessary to be carried out for its fulfilment, and the Court of Appeal found that there was nothing unreasonable in a charge "of this character". The Court considered the conduct as a single excavation which did not cause unfairness, nor make the charge unclear, and although the Court considered that it would have been open to the prosecutor to formulate separate charges, there was no unfairness in proceeding on the basis of a single overall arraignment. The Court accepted that duplicity serves a number of purposes of which the principle of a fair trial is but one, and at [86], the Court found that a single construction project could involve numerous acts. At [87], Spigelman CJ (with whom Grove and Bell JJ agreed) stated:
Nothing in the scope and purpose of the legislative scheme suggests that the word "excavation" requires a process of specification of each distinct act capable of constituting, in some technical or other sense, a different excavation. It is appropriate that the prohibited conduct should be understood as extending to a course of conduct over a period of time pursuant to an overall scheme.
In Truegain, the defendant was charged with an offence against s 64(1) of the POEO Act. The summons alleged that Truegain contravened a condition of an environmental protection licence it held in failing to carry out certain licenced activities in a competent manner. The particulars of the summons alleged breach of the condition in respect of "treatment and/or storage" of waste, and the Court of Appeal observed, at [72], that storage was different to treatment, and the storage alleged to have been performed incompetently took place on different days and with different equipment from the treatment which was alleged to have been performed incompetently. The summons was found to be bad for duplicity because it charged failures in relation to both the storage and treatment waste where proof of either would establish the offence. The Court rejected the "single criminal enterprise" characterisation in circumstances where the defendant was charged, in a single indictment, with failures in relation to the storage of waste and failures in relation to the processing of waste.
In Riverina, the summons was found to be duplicitous in relation to water pollution alleged to originate from the defendant's stock feed manufacturing plant. The Court of Appeal accepted that duplicity arose from the particulars in relation to the manner of contravention, and was compounded by the particularisation of the pollutant (being of five different kinds, separated by the disjunctive and conjunctive "and/or"). The Court held that the summons impermissibly included a number of different charges arising from different factual circumstances, which involved a class of unparticularised acts that may have occurred at different places on the premises, involving unrelated equipment and practices. It is relevant that the prosecutor, having not raised it before the primary judge, attempted (unsuccessfully) to raise single overall enterprise (or course of conduct) before the Court of Appeal.
In Bentley v Gordon [2005] NSWCCA 157; (2005) 139 LGERA 449 ('Bentley'), the Court was considering a decision by the primary judge to allow amendments to summonses for breaches of s 118D(1) of the National Parks and Wildlife Act 1974 (NSW). Smart AJ, having considered the nature of the charges, the summonses, and the amendments sought, stated at [55]-[56]:
[55] Environmental offences are notoriously difficult of proof. While the damage caused to a particular area is often all too evident, the prosecuting authority by its officers, is not present when the actual damage is caused and does not know the precise mechanism by which the damage was caused. The prosecuting authority may be able to ascertain the machinery which the landholder has or used. The landholder may do the work himself or have staff do it or engage contractors. From inspections of the property after the damage has been caused it may be evident that the damage has been caused by an act or acts in that the result produced could not have happened without an act (or, in some circumstances, an omission). However, it may not be possible to identify the particular act or acts causing the damage. Not infrequently the damage will have been committed by a series of acts, for example, driving a mower or a dozer or grader over an area for an hour or so, or even over some days or weeks. It may be some weeks later before an inspection takes place as a result of intelligence received or gathered by the Service.
[56] I would adhere to the statements of principle that for continuing offences and facts so related that they amount to one activity and that where an offence is defined in the terms of a course of conduct or state of affairs, the prosecution can rely on a series of closely related acts (or omissions) and is not confined to relying on one act. Nor would I question that the acts or omissions relied upon by the prosecution may take place continuously or intermittently over a period of time. These principles are of appreciable importance in relation to environmental offences. Damage of consequence may be caused by several acts in combination, whereas damage caused by one act may be inconsequential. I regard the present case as a borderline one.
In Dendy, the respondents were charged with three offences in relation to the clearing of native vegetation from land and the prosecutor identified 27 separate sites which were allegedly cleared. The respondents submitted that the counts in two of the charges were duplicitous as the counts stated, by way of particulars, that native vegetation had been cleared from a number of separate areas on the land in question. Duggan J held that it was open to the appellant to charge the respondents in a single count on the basis that the act of clearing was a continuous offence in relation to the same parcel of land over a period of time, and the particularisation of separate areas on the land did not have the effect of identifying a finite incident constituting the commission of an offence. It was open to the prosecutor to argue that, by reason of the nature of the act of clearing and the proximity of the areas, it was a continuous offence.
In a factual sense, neither Riverina nor Truegain are of significant assistance, primarily because I consider that those matters involved the operation of plant and industrial processes that were separate from one another. While I consider the present circumstances to be closer to Hakim and Dendy than Riverina or Truegain, I consider that drawing factual comparisons with other cases is usually of little assistance. Despite this, I accept, as submitted by the prosecutor, that there are "important points of difference" between this case and authorities referred to by the defendants, including Johnson, Truegain, McConnell Dowell and Tropic Asphalts, as those cases first address the general offence provision under s 125 of the Environmental Planning and Assessment Act 1979 (NSW), which in turn lead to a consideration of the instrument which is offended, for example, a consent or a condition of an environmental protection licence.
I find that the suggested acts of pollution in relation to the actual pollution charges may, based upon the present particulars, cause confusion in relation to the impact on the streamlines at the presently specified Red Dot locations, and in relation to the likely pollution charges, at various locations along the ephemeral drainage lines shown on the Map.
Subject to certain defects which are accepted by the prosecutor, I do not accept the defendants' submission that the summonses disclose "numerous separate offences [committed] in a variety of different ways under or through a number of different factual circumstances". While I accept, as I must, that pollution offences are referred to as "result offences", subject to my comments above, I do not accept the defendants' contention that, as a matter of construction, s 120 of the POEO Act is incapable of being characterised as a continuing offence. Having regard to the subject matter and language of s 120, I consider that offences under that provision may be continuing offences, and that the provision applies to a wide variety of circumstances.
In making my finding, I am conscious of the fact that the final determination of whether an offence as particularised is a continuing one must await the trial and completion of the evidence: CSR at [53] and Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; (2015) 209 LGERA 280 ('Manchee') at [53].
Also conscious of the comments of Hunt CJ at CL in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 85 that "No-one has suggested a satisfactory definition of a continuing offence", I consider that a course of conduct may be framed as the cumulation of a number of acts or omissions (Bentley at [19]), and I find that the relevant act of polluting is, properly considered, the construction of the Road, which I consider may be characterised as a continuous process, and, as contended by the prosecutor, comprised a number of positive acts (construction thereof) and omissions (without appropriate sediment or erosion controls).
Although Mr Ireland submitted that the present charges "do not come close" to satisfying the indicia in Walsh (see [28] above), noting that the works were carried out over a 10km stretch of road, over many months, with potentially different kinds of machinery, at different times by the defendants, in areas of different physical topography, I do not consider this to be determinative. While Mr Ireland further submitted that there was "too great a separation" in terms of location, time, manner of contravention and result, and different parts of the Waters, different drainage lines and different ephemeral streams are alleged to have been polluted by "quite different" acts, I also do not consider this to be persuasive.
As stated above, I consider that the offences here involve the construction of a road, which is able to be (and may well be found at trial to be) a continuous process whereby each step is not only closely related to the next, but is relatively indistinguishable in terms of process.
Although I am conscious of the manner in which courts have considered various forms of activities that may or may not constitute a single course of conduct; that the Road was constructed over a period of months and was some 8km in length; and that there appears to be no authority dealing with a construction such as this, I consider it to be a matter of common sense that the construction of the Road is able to be regarded as one activity which involved various acts which were closely related to the next and were part of one overall transaction with one underlying factual matrix.
I take some guidance from the position in Commonwealth Director of Public Prosecutions v Sims E-Recycling Pty Ltd [2018] NSWSC 1907 where the defendant was charged with three offences which related to three sea voyages, but two of the three charges alleged more than one distinct breach of the particulars of an export permit. In dismissing the defendant's appeal that the prosecutor impermissibly rolled up a number of charges in the one summons, Wilson J stated at [53]-[55]:
[53] The Crown's case is that the voyages constituting each export were a continuing course of criminal conduct, and it was entitled to rely upon more than one breach of a particular of the permit to establish the offences charged by sequences 2 and 3.
[54] I do not regard such an approach as other than a permissible way for the plaintiff to frame and conduct the prosecution.
[55] Section 40(3) of the Act by its language encompasses conduct before the export, conduct at the time of the export, and conduct after the export. The scope of the provision is wide, in keeping with the intention of the legislature to ensure that the export of hazardous waste is undertaken in a safe manner. The offence provision could readily encompass more than one act in breach of the permit which, if done negligently, would contravene the section and constitute an offence. It would be contrary to the scope and purpose of the provision to restrict its operation to a single breach for each export. It would also contradict the scope and purpose of the provision if "the export" was confined to one moment in time, such as departure from Australian waters. The voyage, and the export, continued.
I note that Mr Ireland took the Court to extracts from the Record of Interview with Mr Lund, a machine operator with the earthmoving contractor, to emphasise that there were gaps in the construction of the Road, and referred to Tropic Asphalts for the proposition that for the purpose of identifying a continuous offence, gaps in timing matter. Mr Ireland also referred to CSR at [45]-[49] to submit that while water pollution offences can constitute continuing offences, what is required is continuing activity, noting that "absolute continuity" is important.
While there is some force in the defendants' submission that gaps in relation to both the timing of the work and the operation of various plant and equipment prevent conduct from being continuous, I do not find the gaps in the present matter to be determinative so as to preclude the alleged conduct from being continuous. In making this finding, I am conscious of Lord Roskill's (with whom the other members of the House agreed) comments in Hodgetts v Chiltern District Council (1983) 2 AC 120 at 128, cited in CSR at [44], that for a prohibited act or omission, it is not essential that the offence takes place on a single day, and that it may take place "whether continuously or intermittently over a period of time".
The defendants submit that an offence against s 120 of the POEO Act is a "result offence". While this nomenclature has been used in a number of cases, in light of my comments at [47] above, and although not without some doubt, once it is found, as I have, that the construction of the Road is able to be considered as a continuous course of conduct, I accept that there may well be "results" which occur as it is being constructed.
While regard may be had to the fact that it may be oppressive for the defendants to be charged with many separate offences along the course of the road making, as submitted by the prosecutor, and accepting that the defendants do not raise this concern, sensibly considered, I consider that it would be oppressive for defendants to face multiple separate charges in relation to a potential single course of conduct. In this regard, I also accept the prosecutor's submission that characterising the conduct as a single enterprise avoids what is an artificial breaking up of the individual acts involved in the construction of the Road and gives effect to the broad scope and purpose of the legislation.
As well as different offences at different locations being "rolled up" in each summons, the defendants submit that the existing counts are broad enough to embrace multiple likely pollution offences allegedly committed at the same location along the Road, but at different times during the construction of the Road between May and October 2017.
The defendants submit that there is more than one s 120 likely pollution offence alleged in each summons as the allegation embraces the positioning and likely movement of sediment from the entire length of the Road into the ephemeral drainage lines shown on the Map. The defendants say that this same allegation may refer to an offence concerning Murdering Creek in the west of the Map, distinct drainage lines in the east of the Map, or drainage lines in between.
I find, having considered the evidence to which I have been specifically referred, that there is some substance in the submissions of the defendants, and although the prosecutor suggests that those matters would be addressed in the proposed amendments to the summonses (and will further be addressed by evidence, as considered further below in relation to the alleged latent duplicity in the charges) by the deletion of the "dam located on Lot 8 DP 821872" from the definition of "Waters" and by confining the definition of "Pollutant", apart from the prosecutor foreshadowing in its letter of particulars that it no longer alleges that the offence was committed on Lot 20 DP 757035, there is no present proposal to amend the particularisation of the Land in those charges (despite the proposal to significantly reduce the number of lots identified in the actual pollution summonses). In light of my finding that the building of the Road may be characterised as a single course of conduct, noting that this is ultimately a matter for the ultimate trier of fact, the identification of several lots on which that conduct allegedly caused likely pollution, is not duplicitous. In any event, I consider the description of the land to be a factual ingredient, rather than a legal element of the offence so it is amenable to amendment.
In light of my findings above that the construction of the Road may be considered a single course of conduct, I do not accept the defendants' submission that the charges as pleaded embrace multiple offences committed at different times during the charge period.
Finally, I note Mr Ireland's submission that the particulars in relation to the likely pollution charges refer to ephemeral and non-ephemeral drainage lines, but the charge only relates to ephemeral drainage lines (Tcpt, 1 July 2019, p 27(14-16), 2 July 2019, p 86(23-33)). There appears to have been no response by the prosecutor to this submission, and I have a concern that this may not be permissible in light of my finding that "Waters" is an essential element of the offence. The letter of particulars seems to expand what appear to be "blue lines" on the Map which are described as "Creeks" and "Drainage" in the legend.
The defendants also submit that the prosecutor's submissions misunderstand what constitutes the offence, noting that a s 120 offence consists of both conduct producing the polluting substance and the result, being the act of pollution. The defendants say that in this case there is no single prohibited act or consequence that is alleged, and even if there was a single prohibited act, there are manifestly separate acts of pollution alleged.
In summary, the defendants submit that they do not know what case they have to meet - that is, whether it is an act of polluting at one or many locations.
As noted above, the prosecutor proposes to amend the actual pollution summonses in relation to the particularisation of the "Land" and the "Manner of breach". The prosecutor contends that the proposed amendments make clear that the prosecution case is restricted to the places where soil and sediment have been placed directly into ephemeral drainage lines during the construction of the Road.
While accepting that a summons that pleads a single count but applies to more than one act of pollution is bad for duplicity, the prosecutor again submits, and I accept, that it is well established that a single prohibited act can have a number of prohibited consequences.
The prosecutor submits, and I accept (as noted above), that the offence created by s 120 of the POEO Act prohibits the act of polluting. I consider this to be the conduct that is prohibited by the section, and it is the act of polluting that gives rise to liability.
In relation to the "Land" identified in the summonses, I accept the prosecutor's submission that the evidence served thus far demonstrates the locations where it is alleged that soil and sediment have been placed directly in drainage lines, and I consider that there is sufficient evidence for the defendants to understand the case against them. I also accept the prosecutor's submission that at this relatively early stage of the proceedings, the evidence is not closed. The Court has been informed that the evidence will be further supplemented (noting that orders have not yet been made for the filing and service of evidence in the usual course). Further, I accept the prosecutor's submission that the "Land" will be restricted to Priority Areas 1, 2 and 6 in Lot 26 DP 757035, Lot 9 DP 821872 and Lot 9 DP 1213121, and the reference to the other 10 lots identified in the summonses will be deleted. As noted above, "Priority Areas" are three of the areas defined in Ms Stein's evidence as the specific areas which required the most immediate remediation work for which Kiangatha was to submit a plan pursuant to a direction made by the Court on 21 December 2017.
As noted above, the prosecutor proposes to amend the definition "Pollutant" in each summons by deleting "and sediment laden waters that flowed from the earthworks" to make clear that the alleged pollutant is the soil and sediment from the earthworks only. The prosecutor notes that the flow of sediment laden waters is described under "Manner of breach", being a consequence of the placement of soil and sediment from the earthworks. The prosecutor says that it does not allege that the defendants placed or discharged sediment laden waters from any place.
I also note that in relation to "Manner of breach", the prosecutor submits that it proposes to delete the words ", and/or 2. created significant areas of disturbed soil thereby placing Pollutants in a position where the Pollutant has fallen descended or been washed into ephemeral drainage lines and a Dam," and submits that: first, there is no duplicity in asserting cumulative allegations to establish the contravention, citing Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197 at 218 as followed by the Court of Criminal Appeal in CSR at [34]; and, second, the proposed amendments remove the reference to placing matter in a position where it is likely to enter waters, making it clear that the prosecution case is restricted to the places where matter has been placed directly into ephemeral drainage lines.
While I accept the defendants' submission at [97] above, I note the prosecutor's acceptance that absent the deletion of the reference to the Dam, the summonses would be duplicitous.
I find, and the prosecutor accepts, that there is patent duplicity in relation to the particularisation of "Waters" in each summons and uncertainty in relation to "Manner of breach" in the actual pollution summonses.
In response to the defendants' submissions in relation to the defence of honest and reasonable mistake of fact, the prosecutor submitted that: first, whether the defence of honest and reasonable mistake of fact can be made out with respect to some locations and not to others does not prevent the defendants from entering a plea; and, second, the prosecutor does not need to prove each and every fact in its case and facts can be admitted in relation to some locations and disputed in relation to others.
I accept the prosecutor's submissions in relation to the availability of the defence of honest and reasonable mistake of fact. Given my finding in relation to course of conduct, whether the defence of honest and reasonable mistake of fact may still be made out in relation to some discrete locations or otherwise is a matter for the ultimate trier of fact. Put simply, accepting that there may be a continuous offence over a period of time (and that it can be charged as such), the defendants are not precluded from addressing, for example, in relation to parts of the activities, the defence of honest and reasonable mistake of fact. This finding would also apply to the likely pollution charges.
In relation to the concerns of the defendants regarding the particularisation of "Land", aside from the proposed amendments in relation to the actual pollution summonses, I accept the prosecutor's submission that the evidence is not closed and "will be further supplemented".
Apart from my finding regarding the availability of a single course of conduct, while it is not a complete response by the prosecutor that the criticisms made by the defendants will be addressed by further evidence, the proposed narrowing of the areas affected the by the deletion of 10 lots in the actual pollution summonses would, in my view, address the present concerns of the defendants in relation to those discrete matters. Further, the proposed amendment to the definition of "Pollutant" would make it clear that the pollutant is the soil and sediment from the earthworks only, and the proposed amendment to delete item 2 from "Manner of breach" in the actual pollution summonses as summarised at [105] above will make it clear that the prosecution case is restricted to discrete places where pollutant has been placed directly into ephemeral drainage lines. I also take into consideration that there have been no orders for the provision of the prosecutor's evidence.
I note that the defendants do not accept that any amendment would cure the duplicity about which they complain and, whilst accepting that the Court may have power to allow the amendment, the defendants reserve their position if leave to amend was sought. I express no opinion as to whether an appropriate amendment could be made without injustice to the defendants and/or whether leave should be granted to the prosecutor to amend the charges until the Court has received and considered any application for leave to amend the summonses.
I also note that the defendants submit that if the prosecutor elects to confine the charges to one particular location in each case of actual or likely pollution, then the Court would need to consider that amendment, and separate issues may arise as to the time limitation period.
The time, place and manner of polluting waters are essential factual ingredients, not essential legal elements of an offence under s 120 of the POEO Act. Thus, they are capable of particularisation or amendment insofar as the prosecutor may seek to amend. As it appears that the prosecutor proposes to amend the summonses only in relation to essential factual ingredients and not in relation to essential legal ingredients, the prosecutor should be given the opportunity to seek leave to amend.
In the circumstances, I allow the prosecutor the opportunity to seek leave to amend the summonses.
As I have found that the manner in which the summonses are particularised attract the principles concerned with duplicity and uncertainty in criminal proceedings, and given the submission of the defendants that the notices of motion should not be finally determined until the prosecutor determines whether it will amend, and moreover whether any amendment will be granted, I stand the matter over for mention at 9.30am on 20 December 2019 (or such other time that is convenient to the Court and the parties).