Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale

Background

1. The background facts relevant to each of the proceedings were summarised in Kiangatha CCA at [6] and [7] as follows: "[6] The respondent [prosecutor] alleges that between 1 May and 10 October 2017 Kiangatha constructed an unsealed road over numerous parcels of the land at the direction and under the control of the Mr Natale. The length of the road is given, variously, as 8 km or 10 km. This work was not discovered until an inspection was conducted by an officer of Oberon Council on 4 October 2017. It was reported by the Council to the respondent [prosecutor] the next day. It is alleged that in performing this work the applicants [defendants] failed to implement sufficient measures for sediment and erosion control to contain the flow of sediment from the disturbed ground, resulting in sedimentary pollutants either being deposited into ephemeral drainage lines or being placed in a position from which it was likely the sediment would descend or be washed into the drainage lines. [7] Ephemeral drainage lines are depressions in the natural surface of the land that become watercourses when sufficient run-off occurs during significant rainfall. They may also be referred to as gullies. The gullies that are the subject of the respondent's [prosecutor's] allegations follow the slope of the land from south to north and lead to Murdering Creek and Gibraltar Creek. From photographs that are in evidence it appears the gullies are dry most of the time. In some locations road construction was carried out directly across gullies with the result that soil and sediment was placed directly into those features. In other places disturbed soil on cuttings, batters, embankments and the like was left in such a position that plumes of sediment could fall or be washed or blown into gullies."
2. In the original summonses in proceedings 2018/00295909 and 2018/00295911 it was alleged that Kiangatha, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery which created significant areas of disturbed soil and involved the placing of soil and sediment on "Land" (being specified by lot and deposited plan number), and that Kiangatha failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks, thereby placing the "Pollutant" (being soil and sediment from the earthworks and sediment laden waters that flowed from the earthworks) in a position where the Pollutant was likely to fall, descend or be washed into the "Waters" (being ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox's River; and/or a dam on specified land) or the dry beds of the Waters (referred to for convenience in each of the earlier judgments collectively as the 'likely pollution charges').
3. The original summonses regarding the likely pollution charges were effectively the same, save that proceedings 2018/00295911 related to different "Land" and alleged that Kiangatha committed an offence that attracts special executive liability and that Mr Natale was a director or person concerned in the management of Kiangatha and accordingly (pursuant to s 169 of the POEO Act) is taken to have committed the same offence.
4. In the original summonses in proceedings 2018/00295910 and 2018/00295912, it was alleged that Kiangatha, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery on the "Land" (being specified by lot and deposited plan number), and that Kiangatha failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks, which involved the placing of the "Pollutant" (being soil and sediment from the earthworks and sediment laden waters that flowed from the earthworks) into ephemeral drainage lines; and/or created significant areas of disturbed soil thereby placing the Pollutant in a position where the Pollutant had fallen, descended or had been washed into ephemeral drainage lines and a dam, thereby introducing the Pollutant into the "Waters" (being ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox's River and/or a dam on specified land) (referred to for convenience in each of the earlier judgments collectively as the 'actual pollution charges').
5. The original summonses regarding the actual pollution charges were effectively the same, save that proceedings 2018/00295912 related to different "Land" and alleged that Kiangatha committed an offence that attracts special executive liability and that Mr Natale was a director or person concerned in the management of Kiangatha and accordingly (pursuant to s 169 of the POEO Act) is taken to have committed the same offence.
6. On 16 November 2018, the defendants made a request for further and better particulars of the alleged offences and by letter of 4 December 2018, the prosecutor provided a response. Annexed to that response was a map that depicted, relevantly, a constructed road and 35 red dot locations "at which the prosecutor alleges water pollution has occurred" ('Red Dot Map'). These locations were further particularised in a table which detailed the geographic coordinates in degrees for each red dot location ('Red Dot Locations') and provided references to specific material (including photographs for a number of the Red Dot Locations and the works undertaken) contained in the affidavit of Ivan Draper affirmed 21 September 2018 which had been previously served on the defendants. The prosecutor's response to the request for further and better particulars of the alleged offences indicated that the prosecutor alleged that the likely pollution charges occurred along the entirety of the constructed road or track (which was depicted by a pink dotted line on the Red Dot Map), and that the actual pollution charges occurred at the Red Dot Locations.

First notices of motion

1. On 19 December 2018, the defendants filed notices of motion seeking orders that the original summonses be quashed and set aside or otherwise permanently stayed on the grounds that they were patently or latently duplicitous and uncertain.
2. In the course of the hearing of the motions before me, the prosecutor indicated an intention to apply for leave to amend the original summonses and provided amended summonses, in order to first, cure what it accepted was patent duplicity in respect of the particularisation of the Waters; second, to insert a date range for all alleged offences of between 1 May 2017 and 10 October 2017; third, to amend the definition of Pollutant; fourth, to reduce the area of Land at which it alleges the actual pollution charges occurred; and fifth, to make other minor administrative amendments. The hearing of the defendants' notices of motion before me proceeded on the basis that these amended summonses would constitute the operative pleadings in the proceedings.
3. On 6 December 2019, I delivered judgment in Kiangatha No 1 in relation to the defendants' notices of motion. Following delivery of the substantive judgment, and the prosecutor seeking leave to amend the original summonses generally as described at [14] above (and with no objection from the defendants), I made the following orders on 20 December 2019 in respect of each matter: "(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."
4. On 3 January 2020, the defendants filed an application for leave to appeal from the orders in Kiangatha No 1 to the Court of Criminal Appeal, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) and following a hearing of the appeal on 15 June 2020, on 19 October 2020, the Court of Criminal Appeal delivered judgment in Kiangatha CCA allowing the appeal and making the following orders in respect of each proceeding: "(1) Leave granted to the applicants [defendants] pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) to appeal against the orders of the Land and Environment Court made 20 December 2019 in proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912. (2) Appeal upheld. (3) Order numbered (1) in each of proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912 made by the Land and Environment Court on 20 December 2019 is set aside. (4) In lieu thereof it is ordered that further proceedings on each summons are stayed until the respondent [prosecutor] elects and particularises in relation to each summons a single offence contrary to s 120 of the Protection of the Environment Operations Act 1997 upon which the respondent [prosecutor] will proceed."

Proposed amended charges and second notices of motion

1. On 7 May 2021, in response to Order (4) in Kiangatha CCA, the prosecutor filed the two notices of motion presently before me, effectively seeking leave to rely on amended summonses in each of the four proceedings. For the avoidance of doubt, the prosecutor provided the amended summonses in a form that highlighted the cumulative amendments sought to be made to the original summonses (being the amendments sought on 20 December 2019 for which I had granted leave in Kiangatha No 1 as well as additional amendments that were first particularised in the notices of motion presently before me) on the basis that the amendments sought on 20 December 2019 had been "disallowed" by the Court of Criminal Appeal in Kiangatha CCA. This approach was endorsed by the defendants. While I have some reservations about whether the Court of Criminal Appeal in Kiangatha CCA disallowed the amendments sought on 20 December 2019 (where Order (1) in Kiangatha No 1 was set aside but no mention of Order (2) was made, and noting that the Court of Criminal Appeal's analysis was undertaken on the basis of the amended summonses), this has little practical relevance in circumstances where the evidence and submissions in the motions before me covered the differences between the original summonses and the proposed amended summonses but focused on the additional amendments that were first particularised in the notices of motion presently before me.
2. In this respect, the prosecutor now seeks to amend each of the summonses to particularise that each of the four offences against s 120(1) of the POEO Act occurred in a particular location, where these locations are respectively identified in the summonses as Sites A, B, C and D (collectively, 'Sites') by reference to maps and photographs attached to the proposed amended summonses provided with the notices of motion. How this is effected requires some explanation.
3. Each of the proposed amended summonses for each defendant attaches the following: 1. An aerial map labelled "Kiangatha Holdings" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the "Approximate location where pollutant has entered waters", the "Approximate location of constructed road", as well as "Drainage line" and "Cadastre". 2. A composite aerial map labelled "Kiangatha Holdings - Site A" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the "Approximate location where pollutant has entered waters" and provides coordinates for this location, "Photo location & direction", "Cadstre" and "Ephemeral drainage line". 3. A composite aerial map labelled "Kiangatha Holdings - Site B" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the "Approximate location where pollutant has entered waters" and provides coordinates for this location, "Photo location & direction", "Cadstre" and "Ephemeral drainage line". 4. A composite aerial map labelled "Kiangatha Holdings - Site C" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the "Approximate location where pollutant has entered waters" and provides coordinates for this location, "Photo location & direction", "Cadstre", "Ephemeral drainage line", "Approximate location of constructed road", "Approximate location of soil & sediment from earthworks" and provides coordinates for three locations. 5. A composite aerial map labelled "Kiangatha Holdings - Site D" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the "Approximate location where pollutant has entered waters" and provides coordinates for this location, "Photo location & direction", "Cadstre", "Ephemeral drainage line", "Approximate location of constructed road", "Approximate location of soil & sediment from earthworks" and provides coordinates for two locations. 6. A series of five tabular sheets labelled "Kiangatha Holdings Site: A Photo: 1" through to "Kiangatha Holdings Site: A Photo: 5" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which each depict a ground-based photograph and associated identification details (officer, date, time, direction, filename and notes) and a composite aerial map and associated legend identifying "Approximate location where pollutant has entered waters", "Photo location & direction", "Other photo locations & directions", "Cadastre" and "Ephemeral drainage line". 7. A series of five tabular sheets labelled "Kiangatha Holdings Site: B Photo: 1" through to "Kiangatha Holdings Site: B Photo: 5" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which each depict a ground-based photograph and associated identification details (officer, date, time, direction, filename and notes) and a composite aerial map and associated legend identifying "Approximate location where pollutant has entered waters", "Photo location & direction", "Other photo locations & directions", "Cadastre" and "Ephemeral drainage line". 8. A series of five tabular sheets labelled "Kiangatha Holdings Site: C Photo: 1" through to "Kiangatha Holdings Site: C Photo: 5" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which each depict a ground-based photograph and associated identification details (officer, date, time, direction, filename and notes) and a composite aerial map and associated legend identifying "Approximate location where pollutant has entered waters", "Photo location & direction", "Other photo locations & directions", "Cadastre", "Ephemeral drainage line", "Approximate location of constructed road" and "Approximate location of soil & sediment from earthworks". 9. A series of five tabular sheets labelled "Kiangatha Holdings Site: D Photo: 1" through to "Kiangatha Holdings Site: D Photo: 5" and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which each depict a ground-based photograph and associated identification details (officer, date, time, direction, filename and notes) and a composite aerial map and associated legend identifying "Approximate location where pollutant has entered waters", "Photo location & direction", "Other photo locations & directions", "Cadastre", "Ephemeral drainage line", "Approximate location of constructed road" and "Approximate location of soil & sediment from earthworks".

Issues and legal principles

1. The primary issue before me is whether leave should be granted to amend the summonses in accordance with the proposed amended summonses. This gives rise to a number of overlapping sub-issues raised by the parties in submissions, including: 1. Whether the proposed amended summonses are so different to the original summonses that they constitute "fresh" charges. This requires consideration of the scope and content of the proposed amendments. 2. Whether the statutory requirements and common law requirements for the amendment of summonses have been fulfilled. This requires consideration of the interests of justice, any injustice caused, notice of the charges, and other issues of procedural fairness. 3. Whether the manner in which the proposed amended summonses were prepared (that is, attendances by authorised officers of Water NSW and the use of a drone to take aerial photography) constitutes trespass onto Kiangatha's property, which is unfair or disentitling conduct by the prosecutor.
2. Sections 20 and 21 of the Criminal Procedure Act 1986 (NSW) ('CP Act') grant the Court power to amend summonses as follows: 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. …. 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.
3. Part 2 of Ch 2 of the CP Act, which includes ss 20 and 21, has a broad application to "all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with", where "court" is defined to mean the Land and Environment Court: ss 3(1) and 15(1) of the CP Act. A reference to an "indictment" in Pt 2 of Ch 2 of the CP Act includes "any other process or document by which criminal proceedings are commenced": s 15(2) of the CP Act. Given this, ss 20 and 21 of the CP Act apply to summary proceedings in the Land and Environment Court: Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76 at [87]; Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [19].

Evidence

1. The prosecutor read two affidavits of Liam Neale Mulligan affirmed 7 May 2021 and 12 July 2021; the affidavit of James William Caddey affirmed 12 July 2021; and also placed before the Court three affidavits which had been provided (with the original summonses) to the defendants in October 2018, being the affidavits of Paul Crossan affirmed 21 September 2018 (and Exhibit PC-1 to that affidavit); the affidavit of Amelia Stein sworn 22 September 2018 (and Exhibit AS-1 to that affidavit); and the affidavit of Ivan Draper affirmed 21 September 2018 (and Exhibit ID-1 to that affidavit).
2. The defendants read the affidavit of Stephanie Suzanne Vatala sworn 15 June 2021 and two affidavits of Geoffrey Bruce Meyer affirmed 15 June 2021 and 27 July 2021. The defendants placed before the Court a USB (containing video footage which was viewed in Court) being Annexure E to Mr Meyer's affidavit affirmed 15 June 2021.
3. The Court also received a Statement of Agreed Facts filed 5 August 2021 which recorded the background facts (which informed the background summary at [7]-[22] above) and annexed the defendants' request for further and better particulars of the alleged offences dated 16 November 2018, and the prosecutor's response to the request for further and better particulars of the alleged offences dated 4 December 2018, details of which are recorded at [12] above and further considered later in this judgment.
4. In his affidavit affirmed 7 May 2021, Mr Mulligan, a solicitor in the employ of the solicitor for the prosecutor, provided details of the procedural history of the proceedings including the first notices of motion filed by the defendants; my judgment in Kiangatha No 1; the judgment of the Court of Criminal Appeal in Kiangatha CCA; and the filing of the second notices of motion attaching the proposed amended summonses.
5. In his affidavit affirmed 12 July 2021, Mr Mulligan traversed similar (and in some cases the same) ground as in his affidavit affirmed 7 May 2021, but in greater detail. He deposed to the service of the original summonses on each defendant on 2 October 2018 (along with copies of the affidavits of Mr Crossan, Mr Draper, and Ms Stein, and their exhibits). He noted that in the defendants' appeal to the Court of Criminal Appeal, "each party proceeded on the basis of the Amended Summonses for which leave was granted by Robson J". Following this, he understood that in Kiangatha CCA, the Court of Criminal Appeal had determined that "the Summonses, in the form for which leave had been granted by Robson J, were affected by duplicity". Mr Mulligan noted his understanding that the prosecutor was entitled to make an election, and undertake further particularisation of a single offence for each of the summons, on which the prosecutor would proceed. He referred to Kiangatha CCA at [68], and in particular, the comment that "the respondent could readily identify by map coordinates the separate locations at which soil was placed in proximity to a gully that was likely to be polluted by erosion of the soil into it. The specific part of the gully that was placed at risk of such transfer of soil could also be identified by map coordinates."

Summary

1. All parties engage with the powers to amend summonses in s 21 of the CP Act (which empowers the Court to amend summonses where such amendment can be undertaken "without injustice") and s 68 of the LEC Act (which empowers the Court to make amendments which in the opinion of the Court are necessary in the "interests of justice").
2. In summary, the prosecutor submits that while the original summonses were defective due to duplicity, they were not a nullity and thus amendment or further particularisation of the summonses is permitted. The prosecutor contends that the proposed amendments are permitted pursuant to s 21 of the CP Act and s 68 of the LEC Act because, by comparing the original summonses, the evidence in support of the original summonses, and the proposed amended summonses, the underlying factual matrix and the essential nature of each charge remains the same (such that the proposed amended summonses do not constitute fresh charges).
3. Instead, the effect of the proposed amended summonses is to restrict the facts for each summons to a single allegation of water pollution, where the prosecutor notes that factual matters are capable of further particularisation at any stage of the proceedings. The prosecutor submits that these amendments were "no doubt" contemplated by the Court of Criminal Appeal in Kiangatha CCA. Finally, the prosecutor contends that while procedural fairness is a relevant consideration in circumstances where the prosecutor seeks to make the amendment after the expiry of the statutory time limit for the offences, no procedural unfairness would be caused to the defendants.
4. In contrast, the defendants submit that the proposed amended summonses are impermissible as they seek to change an essential element of the s 120 offences (by changing the location or substituting new locations of the offences, and alleging actual pollution with respect to the likely pollution charges). They contend that the changes in the proposed amended summonses do more than simply clarify the original summonses and instead the proposed amended summonses constitute fresh charges.
5. In the alternative, the defendants submit that the original summonses should not be amended because this would cause injustice and unfairness. The defendants raise the failure of the prosecutor to give notice of the proposed amended summonses within the statutory limitation period and a number of other factors such as the effluxion of time, and the different locations (and their different characteristics).

Same essential nature and underlying factual matrix

1. The prosecutor contends the "essential nature of each charge" in the summonses, being water pollution by soil and sediment, and the "underlying factual matrix" of road construction in the absence of appropriate sediment controls, remain unchanged between the original summonses and the proposed amended summonses. In support of this submission, the prosecutor compares the scope of the original summonses (that water pollution was caused by soil and sediment from 8kms of road construction polluting waters at various locations in a network of drainage lines across a number of parcels of land), and the evidence filed in support of the original summonses, with the scope of the proposed amended summonses (that soil and sediment from a defined area of earthworks from road construction polluted a single ephemeral drainage line (or dry gully) leading to Murdering Creek).
2. The prosecutor contends that the nature of its case can be ascertained from the original summonses, which claimed orders that the defendants answer charges that they had committed offences against s 120(1) of the POEO Act (being a "sufficient description of the offence" by reference to ss 11 and 12 of the CP Act). Each of the elements of the offence of water pollution were particularised (being the act of polluting, the pollutant, the waters, and the person and the place of the offence by reference to various land parcels, noting the original summonses do not plead the timing of the offence).
3. The prosecutor submits that the nature of its case can be further ascertained from the three affidavits provided to the defendants with the original summonses in October 2018 (referred to above at [43] and [59]), as they contain further evidence of the prosecutor's allegation of water pollution. More specifically the prosecutor submits that: 1. Mr Crossan's affidavit refers to and exhibits a "Notice requiring information and/or records to be provided" issued to the defendants on 17 July 2018 pursuant to s 192 of the POEO Act, which refers to water pollution caused by soil and sediment from road construction in the recitals. It also exhibits two expert reports, in which each expert describes the placement of soil and sediment in and near watercourses, the mobilisation of the sediment, and pollution of waters, arising from road construction. The expert reports reproduce photographs with examples of the expert's observations. 2. Ms Stein's affidavit describes her inspections of the property and her observations regarding the fresh disturbance of soil due to construction, the absence of adequate sediment and erosion controls including failing batters and lack of compaction of soil. She describes new roads being cut and sediment being placed into natural watercourse crossings, sediment deposits being placed in dry watercourses, and sediment dispersing downslope into gullies and dry watercourses. It exhibits a map showing the locations of her observations, and reproduces a "Notice of preventative action" issued to the defendants on 7 December 2017 pursuant to s 96 of the POEO Act, which indicated that Water NSW reasonably suspected that Kiangatha's construction of a road network was "causing sediment to be in a position where it has washed or is likely to be washed into tributaries of the Coxs River…". 3. Mr Draper's affidavit describes the identification of Kiangatha's property, his inspections of the road construction, and the taking of GPS measurements at certain points. It also includes his observations of the steep terrain and the presence of dry gullies, his observations of the absence of adequate sediment and erosion controls and, later, the failure of the batters and further erosion, and sediment travelling towards tributaries of Murdering Creek.

Reduction of scope and election of a single allegation

1. The prosecutor submits that the amendments made in the proposed amended summonses effectively "restrict" the facts of each summons to a single allegation of water pollution. Notwithstanding the retention of the essential nature of the charge and the underlying factual matrix, the prosecutor contends that it could not elect a single allegation from the broader particulars of the road network and drainage lines of the original summonses without revisiting the essential factual particulars of the summonses.
2. In this respect, the prosecutor submits that the earlier particulars provided in relation to the original summonses are no longer relied on by the prosecutor, and new particulars have been provided. The prosecutor rejects the defendants' complaints regarding the differences between the particulars, characterising the particulars as "having changed by a matter of metres", and denying that this means the nature of the offences the defendants are being charged with has changed.
3. The prosecutor submits that the defendants cannot be prejudiced by the reduction in the scope of the factual matrix relied on in relation to the proposed amended summonses. This is because the prosecutor previously relied on the whole of the constructed road in the original summonses (in contrast to the specific parts of the constructed road now relied on) and the drainage network has remained the same.
4. The prosecutor refers the Court to a number of previous cases where the amendment of summonses following an earlier finding of duplicity has been permitted. In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182 Moore J considered the permissibility of amending summonses following a finding of duplicity to replace a reference to engaging in a course of conduct with a reference to a specific day. His Honour commented at [93]: "…amendment to allow for single-charge offences is permissible and should be made in the current circumstances. This is because the nature of the offence - being, carrying out development in contravention of a condition of development consent, in each instance - was known to the Company. …"
5. On appeal, the Court of Criminal Appeal commented in Snowy Monaro CCA (No 2) at [44]: "Faced with the decision of this Court [being the judgment of the Court of Criminal Appeal in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 upholding Moore J's earlier finding of duplicity], Snowy Monaro has in my opinion permissibly sought to do no more than clarify the charges, by either nominating a single day upon which a breach of each condition is alleged to have been committed or by particularising every day upon which a breach of each condition is alleged to have been committed. I do not consider this to be an attempt to formulate a new or different charge: the offences alleged, being breaches of the relevant conditions of consent, stay the same."

Amendment does not constitute a "fresh" charge

1. As explicated further at [106]-[114] below, the defendants contend first, the change in the locations of the alleged offences; and second, the inclusion of actual pollution in the likely pollution charges, means that the proposed amended summonses constitute fresh charges. The prosecutor rejects both these assertions, and submits that the proposed amended summonses do not constitute fresh charges.
2. The prosecutor's submissions in relation to the change in the location of the alleged offences have been summarised above at [81]-[82]. In short, the prosecutor relies on the scope of the evidence that was provided to the defendants with the original summonses, and the limited practical difference between the location of the alleged offences in the particulars provided for the original summonses and in the proposed amended summonses, to support its position that the change in the location of the alleged offences does not make the proposed amended summonses fresh charges. This submission also engages with the reference in Kypri at [24] to amendments being permissible where they clarify what is already apparent from the face of the charge (to the extent the prosecutor accepts that Kypri reflects the position in NSW).
3. In relation to the inclusion of actual pollution in the likely pollution charges, the prosecutor contends that this does not result in a new charge, because the placement of a pollutant that results in "actual" pollution of waters and the placement of a pollutant in the position where it might cause "actual" pollution are the same offence. The prosecutor cites Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 ('Brownlie') at 82, where Gleeson CJ commented: "There must be many cases in which a person places matter in a position such that it is likely to be washed into waters and then, subsequently, the matter is actually washed into those waters. That does not necessarily mean that the person will have committed two contraventions of s 16(1) [of the Clean Waters Act 1970 (NSW)]. Rather, it may mean simply that the prosecution will be able to rely on additional evidence. As a practical matter, proof that something is washed into waters will often assist a conclusion that it was originally placed in a position where it was likely to wash into those waters."
4. The prosecutor also refers to the analysis of Pearlman J in Environment Protection Authority v CSR Ltd (t/as CSR Woodpanels) [1999] NSWLEC 99; (1999) 103 LGERA 161 at [35], where her Honour considered the reference to harm and likely harm in s 6(1) of the Environmental Offences and Penalties Act 1979 (NSW) (repealed) and concluded that the section penalises a single act that may have a number of "forbidden characteristics", stating "[i]t is an act which is unlawful in specified circumstances, that is, where it harms the environment or is likely to harm the environment". By analogy, the prosecutor submits that it is the placement of a pollutant which constitutes the offence, whether it causes or is likely to cause "actual" pollution.

Further issues of procedural fairness

1. Where the proposed amended summonses do not constitute fresh charges, but are nonetheless sought after the expiry of the statutory time limit for the alleged offences, the prosecutor contends that the focus becomes procedural fairness. This is because, provided no procedural unfairness would be suffered by the defendants, and the defendants are charged with offences known to law, amendments to summonses to cure defects such as duplicity are permissible: Built NSW at [47]; GPI (General) at [80]. It is uncontentious between the parties that the defendants have been charged with offences known to law, being water pollution pursuant to s 120(1) of the POEO Act: Tcpt, 11 August 2021, p 33(1-2).
2. Turning to the issue of notice to the defendants, the prosecutor refers to New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33 at [125], and submits that the evidence in the three affidavits provided with the original summonses (which is also relied on in relation to the proposed amended summonses) makes it clear that the defendants cannot claim that they were denied procedural fairness in relation to preparing a defence to the proposed amended summonses.
3. The defendants raise changes to the landscape (as a result of further grading, installation of aggregate on the road surface, earthworks, or new or different sediment controls) in the time since the defendants were charged with the alleged offences as a procedural fairness issue. The prosecutor accepts that the landscape upon which the road was constructed may have changed by natural means or human intervention since the alleged offences were committed. However, the prosecutor notes that in circumstances where Kiangatha owns the relevant land and undertook the works subsequent to the alleged offences, the defendants would be able to understand the alleged offences and differentiate this from what occurred after the alleged offences.
4. Further, many of these issues would be present even if the summonses were not amended, in circumstances where the prosecutor previously referred to the whole of the constructed road (rather than certain parts of the constructed road) in the original summonses. The defendants have also not been prevented from conducting their own investigations of the construction of the road and its effects, with the prosecutor submitting that the fact that Mr Meyer was able to undertake detailed survey work in relation to the alleged offences on the defendants' instruction illustrates that the defendants were able to investigate the alleged offences.

Attendances and use of a drone to gather evidence

1. The prosecutor submits that attendances by authorised officers of Water NSW at Kiangatha's property and the use of a drone to take aerial photography to gather evidence during the proceedings are permissible in the exercise of Water NSW's statutory powers. The prosecutor rejects the defendants' contentions that the exercise of the statutory powers is affected by these proceedings or that gathering evidence constitutes an interference with the procedures of the courts.
2. The prosecutor refers the Court to Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 ('Caltex') at 558-559, where McHugh J commented: "Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts. The evidence gathering procedures of a party are not limited to the use of court procedures. No interference with the processes of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation. To constitute a contempt, the party must exercise the power in such a way that it interferes with the course of justice. Thus, there might be a contempt if the exercise of a statutory power "would give such a party advantages which the rules of procedure would otherwise deny him". But something more is required than that the party exercised the power for the purpose of obtaining evidence for use in pending litigation." [citations omitted]
3. The prosecutor also refers to Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10; (2015) 208 LGERA 1 ('Zhang') in support of its contention that the prosecutor's statutory powers should not be read down and limited following the commencement of court proceedings. As such, while accepting that the imposition of the stay by the Court of Criminal Appeal affects the actions that can be taken in these proceedings, it does not affect the exercise of the prosecutor's statutory powers.
4. As such, the prosecutor submits that the aerial photographs and survey information could be obtained by authorised officers of Water NSW pursuant to s 196 of the POEO Act, and no notice was required to be given to Kiangatha. The prosecutor draws a distinction between the circumstances in these proceedings, which do not adversely affect a right of the defendants, and the exercise of statutory powers to issue notices requiring defendants to attend interviews or provide information, which are contrary to the defendant's right to silence.

Differences between the original summonses and the proposed amended summonses

Change in location of the offences

1. The defendants submit that the amendments sought in the proposed amended summonses "impermissibly" seek to materially change an essential element of the offences by changing the locations of the alleged action of pollution or likely pollution (where the new locations were not disclosed to the defendants before the expiry of the statutory limitation period, a procedural fairness issue discussed further below). The defendants point to Mr Meyer's survey work in relation to the geographic coordinates in the proposed amended summonses and his evidence in relation to the distances and topographic separation (as summarised at [65]-[66] above) in support of their contentions.
2. More specifically, the defendants contend that neither Site A nor Site B, being the alleged locations of acts of actual pollution which are identified graphically on composite aerial photographs and by geographic coordinates, were the subject of the original summonses as they are "physically removed" from the Red Dot Locations that were used to identify the location of the actual water pollution for the original summonses. Similarly, the defendants contend that Site C and Site D are "totally new" and are not coincident with the geographic coordinates provided for the closest Red Dot Locations in the original summonses. Finally, the yellow-shaded areas of the constructed road identified as the "approximate location of soil & sediment from earthworks" were not particularised in the original summonses.
3. The defendants reject the prosecutor's reliance on the "generic and wide-ranging evidence" of alleged water pollution in the three affidavits provided with the original summonses because this does not "disclose the essential nature of the water pollution alleged". Instead, they contend that: 1. In relation to the actual pollution charges, the prosecutor particularised the location of the actual pollution charges with "a high degree of particularity and precision" in its response to the request for further and better particulars, and the defendants were entitled to proceed on the basis that these were locations of the actual pollution events (and not any other locations). 2. In relation to the likely pollution charges, the "broad brush, inchoate and general terms" of the likely pollution charges did not inform a reasonable defendant of the true nature of the now very precise proposed amended charges that are sought to be laid. 3. Responding to the submission that notwithstanding a degree of inaccuracy in the surveying the physical location of features remain the same, while this may be a philosophically correct position it ignores the need for a defendant to be informed of the location of water pollution, or the placement of sediment and associated likely water pollution, by a prosecutor so it can meet criminal charges.

Reference to actual pollution in likely pollution charges

1. The defendants identify a further difference between the likely pollution charges in the original summonses and the likely pollution charges in the proposed amended summonses, being the inclusion of locations where it is alleged that actual pollution occurred. In this respect, the prosecutor's allegations in the original summonses involved the placement of material along the downslope edge of the constructed road which was likely to move into the waters (such that no allegation of actual movement of material into the waters was made). In contrast, the prosecutor's allegations in the proposed amended summonses are described by reference to newly identified yellow-shaded areas of the constructed road, and Site C and Site D are identified as the location of actual pollution occurring (where in the particularisation of the original summonses the closest Red Dot Locations 5 and 18 were locations of alleged actual pollution for the actual pollution charges, not the likely pollution charges).
2. The defendants submit that as a result of both the difference in locations and the inclusion of the actual pollution allegation the likely pollution charges in the proposed amended summonses are materially different to the likely pollution charges in the original summonses. They also contend that the inclusion of an allegation of actual pollution in the likely pollution charges is a "novel approach".

Amendments constitute "fresh" charges

1. The defendants submit that, taking into consideration the differences between the original summonses and the proposed amended summonses, the proposed amended summonses constitute an impermissible attempt to charge the defendants with fresh charges after the expiry of the statutory time limit for the alleged offences. This is because the proposed amended summonses materially change essential elements of the offences with respect to the locations of the pollution and also the inclusion of allegations of actual pollution in the likely pollution charges.
2. The defendants reject the prosecutor's reliance on the "factual matrix" when arguing that the proposed amended summonses are not fresh charges. They contend that it is the isolation of a particular location at which pollution occurred which is the "essential ingredient" of the alleged offence, and this could not be ascertained from the factual matrix. For example, Site C and Site D were "nowhere identified" in the original summonses and accompanying evidence, and photographs of the general area do not constitute "specification or identification" of the individual Sites.
3. The defendants also point to the prosecutor's express departure from the particulars of the alleged offences provided in December 2018 as an indication that the prosecutor is not electing amongst the multiple duplicitous offences already alleged, but rather creating a new charge. The defendants contend that nothing in the orders of the Court of Criminal Appeal in Kiangatha CCA would permit the prosecutor to allege a fresh charge, as this would be inconsistent with the underlying principle that fresh charges cannot be laid after the expiry of the statutory time limit. In this respect, the defendants criticise the prosecutor for adopting the comments of Fagan J in Kiangatha CCA at [68] as a "roadmap" for the process of electing a single offence and amending the summonses. Instead, they characterise Fagan J at [68] as discussing something that could have hypothetically occurred but did not occur, and now cannot occur: Tcpt, 11 August 2021, 35(49-50); 36(1-23).

Failure to give notice of the charges

1. The defendants raise the failure of the prosecutor to give the defendants notice of the charges (as amended). This is relevant both to the argument that the proposed amended summonses constitute fresh charges, (because they offend the principle that a defendant must be made to understand the "true nature" of the amended offence before the expiry of the statutory limitation period in Kypri), and in the alternative, the argument that even if the proposed amended summonses do not constitute fresh charges, it would be unfair and cause injustice for the proposed amendments to be granted.
2. The defendants contend that they were not given "proper notice" of Site A and Site B within the one year statutory limitation period for the offences, in circumstances where the defendants were first made aware that Site A and Site B (as opposed to Red Dot Locations 2 and 6) were the subject of the actual pollution charges when the notices of motion were filed on 7 May 2021: s 216 of the POEO Act. Similarly, the defendants contend that they were not told that Site C and Site D constitute an essential component of the likely pollution charges before the expiry of the statutory limitation period. The defendants contend that allowing the amendments in the proposed amended summonses would "render the s 216 [of the POEO Act] limitation period nugatory" simply due to the failure of the prosecutor to draft the original summonses with sufficient attention to detail.
3. The defendants reject any argument from the prosecutor that the Sites were notified by the prosecutor because photographs in the three affidavits provided with the original summonses incidentally included parts of the Sites, in circumstances where the Sites were not identified and it was not made clear that the Sites would specifically be the subject of these charges. The defendants note that the importance of the identification of the Sites has been illustrated by the inclusion of ground-based photography in the proposed amended summonses. The defendants also identify certain photographs in the proposed amended summonses which they submit do not appear in the three affidavits provided with the original summonses.

Amendments cannot be undertaken without injustice and are not necessary in the interests of justice

1. In the alternative to the contention regarding fresh charges, the defendants submit that neither of the statutory requirements in s 21 of the CP Act and s 68 of the LEC Act (amended "without injustice" or "necessary in the interests of justice") are satisfied, such that the application for amendment should not be granted. This is because the changes between the original summonses and the proposed amended summonses are material and have significant implications for the conduct of the defence. The defendants raise the following issues: 1. The amendments to the summonses are being sought two and half years after the expiry of the statutory time limit for the alleged offences. 2. The prosecutor's explicit departure from the particulars provided through its response to the request for further and better particulars of the alleged offences in December 2018 represents a departure from the "understanding of each original charge", as the original charges are being reformulated in a new and different way that was not earlier disclosed to the defendants. 3. Where Site A and Site B and the corresponding Red Dot Locations are "quite different locations", whether a defence on the basis of honest and reasonable mistake of fact arose (and the basis for such a defence), would differ. In this respect, characteristics of the location of the alleged actual or likely pollution offence such as slope, vegetation cover, rock outcrops, proximity to drainage lines, and the proximity to the constructed road are relevant. 4. Changes in "physical features" of Site A and Site B since the alleged actual pollution offences have impacted the ability of the defendants to consider and investigate these individual Sites as they were when the alleged offences were undertaken, such that the defendants can either not investigate or their ability to investigate is at least "materially compromised". 5. The Sites have specific characteristics that were not present in photographs of the corresponding Red Dot Locations, for example, there is no newly constructed aggregate in photographs of Red Dot Location 2, whereas photographs of Site A show newly constructed aggregate. 6. The defendants were not told that Site C and Site D constitute an essential component of the likely pollution charges before the expiry of the statutory limitation period. In fact, the defendants were previously told that other locations had been affected by actual pollution near the locations now identified in relation to the likely pollution charges. 7. The specific sections of the constructed road said to be the source of the likely pollution were not isolated before the expiry of the statutory limitation period.

Attendances and use of a drone to gather evidence

1. The defendants characterise the proposed amended summonses as "unusual" because they incorporate an aerial map showing the location of the Sites, map coordinates for the Sites, and photographs that are described as "for" each of the individual Sites. The defendants also note the inclusion of composite aerial maps which are made up of a "patchwork of separate aerial photographs spliced together", as indicated by the discontinuity in colours and the failure to match up the vegetation in each photograph.
2. As an initial comment, the defendants submit that the composite aerial maps constitute new material that was not communicated to the defendants within the statutory limitation period, further infringing the Kypri principle and adding to the injustice and unfairness of allowing the proposed amendments. Further, the defendants also criticise the composite aerial maps in the proposed amended summonses on the basis that the alleged line of constructed road (marked in yellow) does "not self-evidently coincide" with the location of the constructed road (with a particular emphasis on Site C and Site D).
3. The defendants submit that, in addition to the above matters, a drone was used by the prosecutor to take aerial photography which was then used to prepare the composite aerial maps while the present proceedings were pending in this Court, and while they were stayed pursuant to the order of the Court of Criminal Appeal, and without Kiangatha's permission to access Kiangatha's property.
4. The defendants reject the prosecutor's reliance on its statutory powers under the POEO Act to justify the use of a drone. The defendants submit that the prosecutor's statutory powers may not be relied upon to enter the land of a defendant "in ongoing criminal proceedings for the purposes of those proceedings" because this gives the prosecutor an advantage that is not afforded by the applicable procedural rules, and accordingly is regarded as an interference with the administration of justice. This conduct is contrary to the principle considered in Caltex at 558, and further explained in Zhang at [96], which provides that it is impermissible to use statutory powers to gather evidence if it "would give such a party advantages which the rules of evidence would otherwise deny him".
5. The defendants submit that first, there is no rule in the LEC Rules (and no adopted rule from the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR')) conferring jurisdiction on the Court to order access to a defendant's land for a prosecutor; and second, in May 2021, when the "further evidence gathering" took place on Kiangatha's property, these proceedings were stayed until the prosecutor elected and particularised a single criminal offence, and where such a stay was in place, there was no ability under the procedural rules for the prosecutor to have sought access to Kiangatha's property by Court order.

Consideration

1. Before considering the issues raised in the parties' submissions, it is convenient to note two matters which are not in issue. First, it is clear that the defendants do not seek to argue that the original summonses were a nullity and thus incapable of amendment: Tcpt, 11 August 2021 p 31(1-2). In this respect, Order (4) in Kiangatha CCA is premised on the original summonses being capable of amendment to cure the duplicity identified by the Court of Criminal Appeal, by electing and particularising a single offence in relation to each summons.
2. Secondly, the defendants do not dispute that the original summonses charge the defendants with offences that are known to law: Tcpt, 11 August 2021, p 33(1-2). The defendants were each charged with two offences of water pollution, and the prosecutor addressed the elements of the offences, albeit in a duplicitous manner, in the original summonses and the later particulars.
3. As such, the issues for the Court to resolve are whether the proposed amended summonses constitute an amendment or represent fresh charges, and if they are an amendment whether leave should be granted to amend the summonses in accordance with the proposed amended summonses (considering the statutory and common law requirements for amendment). I consider that the sub-issues set out at [23] above provide a useful initial framework from which to consider the submissions of the parties, noting certain submissions are relevant to a number of the sub-issues.

Fresh charges

1. I find that the proposed amended summonses are not so different to the original summonses that they constitute "fresh" charges. My reasons for this conclusion follow.
2. I consider that a comparison between the different versions of the summonses, as submitted by the prosecutor, is required to determine whether the proposed amended summonses constitute "fresh" charges or simply the permissible amendment of the original summonses. The defendants raised two key differences between the different versions of the summonses, being first, the change in locations of the offences, and second, the reference to actual pollution occurring in the likely pollution charges.

Change in locations of the offences

1. The prosecutor did not lead evidence that there was in fact no difference between the locations of the geographic coordinates of the Sites and the closest Red Dot Locations. Rather, it sought to minimise any difference in the locations of the Sites and the closest Red Dot Locations by contending that the summonses had the same essential nature and were drawn from the same factual matrix.
2. In the absence of evidence to the contrary, I accept the evidence of Mr Meyer and find that there is a difference in the locations of the geographic coordinates of Red Dot Locations 2, 6, 5 and 18 and the geographic coordinates of the Sites, and that the distance between the Sites and their respective closest Red Dot Locations varies between 34.1m and 85.7m.
3. Mr Meyer deposed that in addition to distance, there are also "topographical differences" between the locations of the respective geographic coordinates of the Sites and the closest Red Dot Locations. Having reviewed Mr Meyer's evidence, including the videos of the landscape between the locations of the respective geographic coordinates of the Sites and the closest Red Dot Locations, I accept that there are minor differences in slope, vegetation coverage and proximity to ephemeral watercourses and parts of the constructed road. However, I do not consider these differences to be material, in circumstances where the locations of the respective geographic coordinates of the Sites and the closest Red Dot Locations are generally located within the same dry gully, are proximate to the same ephemeral watercourses and the same parts of the constructed road, and have similar vegetation coverage.
4. My view about the immateriality of the differences in locations is confirmed by my consideration of the survey plan prepared by Mr Meyer (which identifies the relative locations of the Sites and Red Dot Locations 2A, 6B, 5C and 18D) and my comparison of the survey plan with the composite aerial maps and ground-based photographs attached to the proposed amended summonses (which identify the Sites and provide further insight into the physical characteristics of the landscape surrounding the Sites).
5. In summary, I find that while the different geographic coordinates of the Sites and the closest Red Dot Locations suggest there has been a change in the locations of the offences between the original summonses and the proposed amended summonses, this change is not material. Given this, I do not accept the defendants' contentions that the Sites are "physically removed" from the closest Red Dot Locations or "totally new". Rather, I find that the differences in the locations of the geographic coordinates of the closest Red Dot Locations and the Sites represent the permissible particularisation of the location of the offences.

Reference to actual pollution in likely pollution charges

1. As noted above, the defendants also raised the reference to locations where it is alleged actual pollution occurred in the likely pollution charges as a second difference between the original summonses and the proposed amended summonses, which they characterise as material. In response, the prosecutor submits that likely pollution and actual pollution is the same offence, so the inclusion of alleged actual pollution in the likely pollution charges does not constitute a new charge. Instead, by reference to Brownlie at 82, where actual pollution occurs, this simply allows the prosecutor to rely on additional evidence in support of the contention that the pollutant was in fact placed in a position where it was likely to cause actual pollution.
2. I prefer the position of the prosecutor. I find that the inclusion of Site C and Site D as locations where actual pollution is alleged to have occurred in the likely pollution charges effectively allows the prosecutor to rely on "additional evidence" (per Brownlie at 82) in support of its contention that the placement of soil and sediment in the yellow-shaded areas of the constructed road was likely to cause actual pollution. Considered this way, the references to Site C and Site D as locations where it is alleged actual pollution occurred in the likely pollution charges do not constitute material changes between the original summonses and the proposed amended summonses.
3. Further, as contended by the prosecutor, in circumstances where Site C and Site D are not materially different to Red Dot Locations 5 and 18 and Red Dot Locations 5 and 18 were identified during the particularisation of the original summonses as locations of alleged actual pollution in the actual pollution charges, I do not consider the reference to Site C and Site D in relation to the likely pollution charges to be new evidence that was not previously provided to the defendants.
4. In conclusion, I do not accept the submissions of the defendants regarding the key differences between the original summonses and the proposed amended summonses, and instead find that reliance on the proposed amended summonses would not constitute the laying of fresh charges against the defendants. As such, no issue with the expiry of the limitation period to lay a fresh charge arises.

Statutory and common law requirements for amendment

1. Having concluded that the proposed amended summonses do not constitute fresh charges, I turn to whether the statutory requirements and common law requirements for the amendment of summonses have been fulfilled (noting there is some overlap with my previous consideration). For the reasons that follow, I find that the summonses can be amended to reflect the proposed amended summonses without injustice, and that it is necessary in the interests of justice for the summonses to be so amended. I also find that there are no common law requirements which would stand in the way of the exercise of the power to amend the summonses.
2. The parties were ad idem about the relevant statutory powers for the amendment of the summonses, but came to different conclusions regarding the exercise of these powers. The defendants raise the failure to give notice of the charges, the material nature of the amendments to the summonses, and the implications for the conduct of the defence. The prosecutor addresses issues of procedural fairness, and notice of the charges.
3. Given that the issue of the nature of the amendments to the summonses has already been raised and dealt with in the context of resolving whether the proposed amended summonses constitute fresh charges, this issue can be dispensed with shortly. I have considered the key differences between the original summonses and the proposed amended summonses raised by the defendants above, and come to the conclusion that there are no material changes to the summonses.
4. I have also considered the implications of the amendment of the summonses to reflect the proposed amended summonses for the conduct of the defence raised by the defendants, and make the following comments in the context of the amendment of the summonses. First, while as noted above I accept that the different locations of the geographic coordinates for the Sites and closest Red Dot Locations mean there are differences in slope, vegetation coverage and proximity to ephemeral watercourses and parts of the constructed road, I do not consider these differences to be material. I therefore do not consider the implications of the amendments on the conduct of the defence, including defences that could be raised, to be persuasive reasons not to amend the summonses. Rather, given the proceedings are still technically in their early stages, the defendants can address any change in the locations of the offences in their future conduct of the proceedings.

Attendances and use of a drone to gather evidence

1. Turning to the final issue before the Court, I have considered the competing submissions from the parties regarding the manner in which material used in the preparation of the proposed amended summonses was obtained. While the prosecutor relies on its statutory powers under ss 196 and 198 of the POEO Act to justify attendances by authorised officers at Kiangatha's property and the use of a drone to take aerial photography, the defendants submit that these statutory powers cannot not be relied on given the ongoing criminal proceedings, such that the prosecutor's conduct constitutes trespass.
2. For context, ss 196 and 198 of the POEO Act relevantly provide as follows: 196 Powers of authorised officers to enter premises (1) An authorised officer may enter - (a) any premises at which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out - at any time during which those activities are being carried out there, and (b) any premises at or from which the authorised officer reasonably suspects pollution has been, is being or is likely to be caused - at any time, and (c) any other premises - at any reasonable time. (2) A power to enter premises conferred by this Act authorises entry by foot or by means of a motor vehicle or other vehicle, or by an aircraft or vessel, or in any other manner. (2A) If entry is effected by means of an unmanned vehicle, vessel or aircraft, the vehicle, vessel or aircraft must be operated by or under the authority of an authorised officer. (3) Entry may be effected under this Act by an authorised officer with the aid of such authorised officers or police officers as the authorised officer considers necessary and with the use of reasonable force. (4) Entry may be effected to any premises with the authority of a search warrant under section 199. 198 Powers of authorised officers to do things at premises (1) An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Chapter, including (but not limited to) the things specified in subsection (2). (2) An authorised officer may do any or all of the following - (a) examine and inspect any works, plant, vehicle, aircraft or other article, (b) take and remove samples, (c) make such examinations, inquiries and tests as the authorised officer considers necessary, (d) take such photographs, films, audio, video and other recordings as the authorised officer considers necessary, (e) require records to be produced for inspection, (f) examine and inspect any records, (g) copy any records, (h) seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations, (h1) for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier, (i) do any other thing the authorised officer is empowered to do under this Chapter. (3) The power to seize anything connected with an offence includes a power to seize - (a) a thing with respect to which the offence has been committed, and (b) a thing that will afford evidence of the commission of the offence, and (c) a thing that was used for the purpose of committing the offence. A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.

Conclusion

1. In summary, I find that the proposed amended summonses are not so different to the original summonses that they constitute "fresh" charges. Further, the statutory requirements and common law requirements for the amendment of summonses have been fulfilled. Finally, I consider that ss 196 and 198 of the POEO Act empower authorised officers of Water NSW to obtain material used in the preparation of the proposed amended summonses, such that this does not constitute unfair or disentitling conduct by the prosecutor.
2. On the basis of my findings, the prosecutor should be granted leave to amend the summonses to reflect the proposed amended summonses.

In proceedings 00295909 and 00295910 of 2018

1. The Court orders: 1. Water NSW is granted leave to rely on the amended summonses attached to the notice of motion filed 7 May 2021 and marked C in proceedings 00295909 of 2018. 2. Water NSW is granted leave to rely on the amended summonses attached to the notice of motion filed 7 May 2021 and marked A in proceedings 00295910 of 2018. 3. The proceedings are stood over for directions before the List Judge on Friday 25 February 2022.

In proceedings 00295911 and 00295912 of 2018

1. The Court orders: 1. Water NSW is granted leave to rely on the amended summonses attached to the notice of motion filed 7 May 2021 and marked D in proceedings 00295911 of 2018. 2. Water NSW is granted leave to rely on the amended summonses attached to the notice of motion filed 7 May 2021 and marked B in proceedings 00295912 of 2018. 3. The proceedings are stood over for directions before the List Judge on Friday 25 February 2022.

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