Environment Protection Authority v Brazel (No 2)

[2002] NSWLEC 26

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Brazel (No 2) [2002] NSWLEC 26
PARTIES:	PROSECUTOR: Environment Protection Authority DEFENDANT: Donald William Brazel
FILE NUMBER(S):	50018 of 2001
CORAM:	Talbot J
KEY ISSUES:	Prosecution :- duplicity - whether different consequences of one act constitutes more than one offence.
LEGISLATION CITED:	Clean Waters Act 1970 s 16 Protection of the Environment Operations Act 1997
CASES CITED:	Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78; Director of Public Prosecutions v Merriman [1973] AC 584; Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79; Khaled Hamzy (1994) 74 A Crim R 341
DATES OF HEARING:	04/03/2002
DATE OF JUDGMENT:	03/07/2002
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr D J Jordan (Barrister) SOLICITORS: Environment Protection Authority DEFENDANT: Mr P G Maiden (Barrister) SOLICITORS: Robson & Oliver

JUDGMENT:

IN THE LAND AND Matter No. 50018 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 7 March 2002

Environment Protection Authority
Applicant

v
Donald William Brazel

Respondent

REASONS FOR JUDGMENT


1. The parties have made further written submissions following publication of written findings in this matter on 5 February 2002.

2. On the basis of these findings, the prosecutor now submits that the offence as particularised in the summons is established pursuant to the extended definition of “water pollution” found in the Dictionary to the Protection of the Environment Operations Act 1997 (“the PEO Act”) 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.


3. The definition of “water pollution or pollution of waters” in par (a) contemplates the doing of an act or omission that causes the occurrence of a certain consequence. Paragraph (b) contemplates the doing of an act or omission that causes the occurrence or likely occurrence of a certain consequence. Paragraph (d) contemplates the placing of matter in any of the prescribed positions or locations where there is a specified outcome or likely outcome. Paragraph (c) contemplates the doing of an act or omission. Paragraph (e) merely contemplates the doing of an act. In Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at p 83 the then Chief Justice described the offences contained in s 16 of the Clean Waters Act 1970 as “result offences” . The same observation was made by Hunt CJ at Common Law (with whom Grove and Allen JJ agreed) in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at p 81 – 2. His Honour explained the effect of the definition, as it then was, at p 82 – 3 as follows:-

The definition provides various alternatives to the further ingredient which must be established. There may be shown that, as a result of such placement or introduction, there has been either (a) a physical, chemical or biological change in the condition of the waters, or (b) a change in the condition of either the waters or the matter which either (i) makes, or is likely to make, the waters unclean (or harmful in other specified ways) or (ii) is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters. The last alternative of the further ingredient which must be established is where the matter placed or introduced into the waters is of a prescribed nature or does not comply with any prescribed standard. As soon as one or other of those various alternatives is also established, the offence is complete and only then. An analogy is available from the civil law. The tort of negligence is not complete until damage is suffered.



4. The prosecutor has proved that liquid matter of a prescribed description, namely pesticide, was placed in a position where it fell, descended or percolated into the street gutter and the culvert under the road thereby satisfying the expanded definition of “water pollution” in par (d)(i).

5. The defendant maintains that the summons is duplicitous in that there should have been separate summonses issued for each of the factual situations as follows:-


(a) the liquid reaching the gutter;

(b) the liquid reaching the sump;
(c) the liquid reaching the “dam” on the creek side of the road; or
(d) the liquid reaching the creek.


6. Accordingly, Mr Maiden says that in the absence of an election by the prosecutor before judgment, the question is whether the offence can be proved by relying on points (a) through to (c) as set out above. The Court has rejected point (d).

7. The results that have been proved all arise as a consequence of the one act of placing the chemical in the holes in the concrete. These can be fairly regarded and properly identified as part of the same criminal activity, namely water pollution within the meaning of the expanded definition in par (d)(i) found in the Dictionary to the PEO Act. The results, although arguably different, nevertheless arise as a consequence of the one act of unlawful activity.

8. The Court is expected to apply common sense and decide what is fair in the circumstances ( Khaled Hamzy (1994) 74 A Crim R 341; Director of Public Prosecutions v Merriman [1973] AC 584). It would be unrealistic and artificial to hold that each different result, in the circumstances of this case at least, leads to the commission of a separate offence.

9. This is a case where the particular act is made unlawful by any one of the consequences in the definition of “water pollution” occurring. Alternative or cumulative allegations in respect of the result do not, in the Court’s opinion, render the charge bad for uncertainty or duplicity.

10. The Court finds the offence of pollute waters, being the placing of prescribed material in a position, namely in the holes of the cement floor, where it fell into the street gutter, culvert and drain beyond, proved.

11. Before proceeding to conviction, the parties will be given the opportunity to address the Court in respect of sentence.

12. The parties are directed to approach the Registrar this morning for the purpose of obtaining a further hearing date.