Environment Protection Authority v Emerald Peat Pty Ltd

[1999] NSWLEC 28

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority -V- Emerald Peat Pty Ltd [1999] NSWLEC 28
PARTIES	Prosecutor: Environment Protection Authority
Defendant: Emerald Peat Pty Ltd
NUMBER:	50125 of 1998
CORAM:	Talbot J
KEY ISSUES:	:- amendment of charge - duplicity - consent to institute proceedings - continuous offence
LEGISLATION CITED:	amendment of charge - duplicity - consent to institute proceedings - continuous offence
DATES OF HEARING:	02/22/1999
DATE OF JUDGMENT DELIVERY:	02/26/1999
LEGAL REPRESENTATIVES:	Prosecutor: Mr D A Buchanan SC Solicitor: Stephen Garrett Environment Protection Authority Defendant: Mr C W McEwen (Barrister) Solicitor: Minter Ellison

JUDGMENT:

IN THE LAND AND MATTER No. 50125 of 1998
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 26 February 1999

ENVIRONMENT PROTECTION AUTHORITY
Prosecutor


v

EMERALD PEAT PTY LTD
Defendant

REASONS FOR JUDGMENT


1. The defendant has been ordered, pursuant to s 41 of the Land and Environment Court Act, to appear before a Judge of the Court to answer the charge that it has committed an offence against the Environmental Offences and Penalties Act 1989 (the EOP Act) in that on or about 25 August 1997 and continuing on each day thereafter until about 12 September 1997 at Burrawang it polluted waters contrary to s 16(1) and 16(7) of the Clean Waters Act 1970 (the CW Act).

2. On 24 August 1998 the Director-General of the EPA on behalf of the EPA consented to the institution of the proceedings for an offence in the above terms pursuant to s 13(1) of the EOP Act.

3. By Notice of Motion returnable 22 February 1999 the prosecutor moved the Court for orders that the dates 25 August 1997 and 12 September 1997 be substituted by 4 August 1997 and 17 September 1997 respectively.

4. The only evidence relied upon in support of the Notice of Motion is in an affidavit sworn by Thomas Howard, a solicitor employed by the EPA. At the time of filing the summons Mr Howard was of the view that “the offence was comprised in the activity of the Defendant in excavating a portion of the bed of the dredge pool in Wingecarribee Swamp known as the boat launching area or boat ramp and the resulting pollution of the (particularised) waters of the Swamp and Wingecarribee Reservoir”. Although Mr Howard was aware that before 25 August 1997 there had been activity of digging back of a dredge from the western bank of the dredge pool, he was not aware of evidence that there was a pollution of the particularised waters caused by that activity.

5. In December 1998 he became aware of evidence that polluted water was seen leaving the dredge pool prior to 25 August 1997 and that there was evidence available to the effect that a sample of water taken in the swamp downstream of the dredge pool on 18 September 1997 showed elevated levels of turbidity and other evidence.

6. According to Mr Buchanan SC who appears for the prosecutor, the EPA relies, at all times, on activity within the dredge pool which gave rise to disturbance and turbidity of the water discharged into the swamp through an aperture in the western wall of the dredge pool. Accordingly the prosecutor seeks only to amend the particulars of the activity which caused the pollution giving rise to the alleged continuing offence. The prosecutor’s application therefore is to extend the period over which it is alleged that the offence was committed both forward in time and back in time.

7. Mr Buchanan acknowledges that proceedings could not now be instituted for a separate offence of pollute waters committed in the period which the prosecutor seeks to have substituted in the summons as the dates over which the offence is alleged to have been committed. However, he says an amendment of the date on or over which the offence is alleged to have been committed is permissible notwithstanding that it might be effected after the expiration of a relevant limitation period. This is because the application is to change a particular of the charge, not an essential element. It does not charge a different offence.

The power to amend

8. Pursuant to s 68(1) of the Land and Environment Court Act, the Court has power to order any amendment to be made which, in the opinion of the Court, is necessary in the interests of justice.

9. Part 75 Div 2 of the Supreme Court Rules applies pursuant to Pt 6 r 2(1) of the Land and Environment Court Rules. Part 75 r 6 provides that Pt 20 of the Supreme Court Rules apply. Part 20 r 1(1) authorises the Court, at any stage of the proceedings to order that any document in the proceedings be amended or that a party have leave to amend any document in the proceedings in such manner as the Court thinks fit. Subrule (2) dictates that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings or correcting any defect or error in any proceedings or of avoiding multiplicity of proceedings.

10. Part 10 r 2(1) of the Land and Environment Court Rules contains an explicit power to amend an application if the relevant period of limitation expires after the filing of the application, unless it would be contrary to any law to do so.

The argument in support of the Prosecutor’s application to amend

11. Section 43 of the Land and Environment Court Act prohibits any objection being taken as to any defect in the order made under s 41 in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings. This section operates to overcome any allegation in a charge which is wrong or irrelevant ( Ex parte Kirkpatrick (1916) 16 SR (NSW) 541; Parmeter v Proctor 66 WN (NSW) 48 and Ex parte Australian Consolidated Press Ltd: re Harris (1961) NSWR 236 at 241).

12. An omission of the date when an offence is alleged to have been committed has been held not to be an essential part of the charge and that accordingly, an accurate statement of the date of the offence is not essential ( Ex parte Bignell (1915) 32 WN (NSW) 91).

13. In R v Wakeley [1920] 1 KB 688 the Court of Criminal Appeal allowed an amendment of an information to alter the time when the alleged offence was committed notwithstanding that the application was made outside the period of limitation.

14. It is an important consideration that the substance of the charge remains unchanged and is based upon the same set of facts.

15. The prosecutor frames its case on the basis that the offence with which the defendant is charged after amendment will be the same offence, namely the pollution of the waters in the swamp by carrying out activity which disturbed the waters in the dredge pond, thereby causing the discharge from that pond to be turbid and otherwise polluted. It is no more, according to the prosecutor, than an expansion of the substance of the charge.

The response by the defendant

16. Subject to a further issue relating to the applicability of the consent given for the commencement of the prosecution proceedings pursuant to s 13(1) of the EOP Act, the defendant’s principal submission is that the expansion of the dates to incorporate a separate and distinct activity by the defendant will give rise to a charge that is bad for duplicity.

17. No serious contention was raised by the defendant to the effect that, if the Court was satisfied the amendment would lead only to an extension of time over which a continuing offence occurred, there could be an objection except to the extent that the defendant might be prejudiced by the late indication of an intention to rely on activity which occurred prior to 25 August 1997.

18. Apart from the necessity to investigate the activity which took place prior to 25 August 1997, which prima facie would be within the knowledge of the defendant or its employees, contractors or agents, no further prejudice is suggested by the defendant.

19. The Court is not satisfied that the level of prejudice in that respect is alone sufficient to justify the Court refusing to make the amendment.

20. The offence of pollute waters contrary to s 16(1) of the CW Act can be a continuing offence ( EPA v Bathurst Council (1995) 89 LGERA 79 at 87).

Duplicity

21. In order to determine whether the amendment permits the charging of a duplicate offence it is necessary to have regard to the rule against duplicity as it can be understood from a number of authorities which are applicable in New South Wales.

22. Broadly, the prosecutor claims the conduct alleged to have initiated the offence as currently charged is mobilising clay in water by excavating at the boat launching area in the dredge pool at a time when water from the pool is escaping to the swamp reservoir.

23. The conduct alleged to have initiated the offence as committed before 25 August 1997 is mobilising clay in water by digging the dredge back from the western edge of the dredge pool to the boat launching area, at a time when water from the pool is escaping in the same way to the swamp and reservoir.

24. It is also alleged that between the relevant dates the defendant failed to prevent the escape of polluted water into the particular waters.

25. It is not necessary for the act which causes the pollution to be temporally proximate to the resulting pollution of water. The offence is complete when the result occurs and not when the act of the person charged is done.

26. The following explanation by Lord Diplock in DPP v Merriman [1973] AC 584 (HL) at 607 has been adopted by the New South Wales Court of Criminal Appeal ( R v Hamzy (1994) 74 A Crim R 356):-

The rule against duplicity … has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.

27. The applicant in Hamzy was charged with supplying not less than a large commercial quantity of heroin. After referring to Merriman Hunt CJ at CL, while dealing with the entitlement of the Crown to plead in the one count a charge of supplying where it intends to prove a number of individual acts of supply by the accused to different people and at different times, observed at 349:-

I see no reason why the concept of the one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified. In the present case, it would have presented a totally unreal picture of the activities alleged against the appellant if anything less than the total picture had been presented to the jury. According to the evidence, the appellant was constantly involved in the one criminal enterprise of dealing in heroin. Even if the individual acts of supply had been divided up into different counts, each count relating to the acts of supply to a different Crown witness, there would have been no real justification for separate trials relating to each count.

28. In Walsh v Tattersall (1996) 188 CLR 77 Gaudron and Gummow JJ in a joint judgment expressly acknowledged, at p 91, that an offence defined in terms of a course of conduct or state of affairs might depend upon proof of a series of material facts, although no particular fact suffices. Although agreeing with Gaudron and Gummow JJ that the conviction should be quashed, Kirby J also recognised at 107 that there are offences which, of their definition, are constituted by continuous activities. He referred specifically to conduct which need not, but in some circumstances might, be constituted by activity over time and quite properly be charged in a single count. Kirby J also recognised the permissibility of multiple acts being seen as part of the one transaction or criminal enterprise.

29. Although the majority in Walsh decided that each single act relied upon in that case resulted in the completion of a discreet offence, the Court of Criminal Appeal has maintained, on at least three occasions since, that the decision of the High Court did not overrule the decision in Hanzy ( F (1996) 90 A Crim R 356; Lisa Deng (1996) 91 A Crim R 80 and Carcosa Pty Ltd v Czerwaniw (Dept of Health) (1997) 93 A Crim R 287).

30. Citing Merriman the then Chief Justice of New South Wales noted in EPA v Sydney Water Corp Ltd (1997) 98 A Crim R 481 at 483 that charging a single offence in respect of an allegation of five acts of omission is consistent with authority and practice in criminal cases.

31. The Court is satisfied that if the prosecutor is permitted to amend the summons so that the charge is particularised to allege pollution of the relevant waters over an extended but nevertheless continuous period, the rule against duplicity will not apply.

32. Ultimately the prosecutor must prove that the acts which took place in the dredging pond can be fairly regarded as components of the one activity or enterprise. This is not the time to make a final decision in that regard.

33. It is alleged that the pollution of the waters is a continuing event. The separate activities which are said to have caused the pollution did so, according to the prosecutor, by creating disturbance to the material in the pond within sufficient temporal context to produce the resulting discharge over the whole period between 4 August 1997 and 17 September 1997.

The consent

34. On 24 August 1998 the Director-General of the EPA, on behalf of the EPA, consented in writing to the institution of the proceedings for an offence against the EOP Act as follows:-

Proceedings for the offence that, on about 25 August 1997 and continuing on each day thereafter until about 12 September 1997, at Burrawang, in the State of New South Wales, Emerald Peat Pty Ltd did pollute waters, contrary to sections 16(1) and 16(7) of the Clean Waters Act 1970.

35. Mr McEwen submits on behalf of the defendant that if the charge is amended the purpose of s 13 of the EOP Act will be frustrated. Although there clearly can be an amendment that does not result in a fresh charge, in this case the change in particulars changes the nature of the consent required because of the specificity of the terms of the consent given.

36. The purpose of the requirement that proceedings for an offence may be instituted only with the consent referred to in s 13(1) is to protect an accused person by ensuring that a prosecution will only be instituted if the EPA considers that it should. In Traveland Pty Ltd v Doherty (1982) 63 FLR 41 at 46 Bowen CJ, Dean and Toohey JJ in a joint judgment recognised that the objective will not be satisfied unless the authority has in truth consented to the proceedings in question. What is necessary is that the authority should give its consent in terms which enable it to be said that the proceedings which are instituted have been instituted with its consent.

37. It was recognised in Traveland that consent to a prosecution may be given in general terms. Otherwise if the precise form of the charge were necessary to be stated then provisions permitting amendments would be inoperative.

38. In Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36 Brennan J, after noting that the consent could be expressed in quite general terms observed at p 38 that where the authority limits its consent, the limitation is one which the prosecutor is bound to observe when commencing the proceedings. In that case the Minister, as the relevant authority, gave consent to the institution of a prosecution specifying the offences to be prosecuted in the instrument of consent which he signed. The information was laid three days later in terms different from the terms to be found in the Minister’s instrument of consent. The difference between the consent and the information related to the element “in connexion with the supply of goods” in s 53 (of the Trade Practices Act 1974). That element was the element selected by the Minister in the consent which he gave. The information chose another element “in connexion with the promotion by any means of the supply or use of goods”. His Honour held that conduct of a kind specified in one of the lettered paragraphs of s 53, when combined with the several alternatives in the introductory part of that section, constituted differing offences. It followed therefore that the Minister consented to one offence but another offence was found in the information. The disparity between the offences meant that the offences laid in the information were not offences consented to by the Minister (p 39).

39. The circumstances in the present case are quite different to those which prevailed in Gilmour .

40. In Water Board v EPA (1994) 83 LGERA 174 Blanch J, with whom Grove and Abadee JJ agreed, referred to the underlying question of policy as whether the Minister considered the breaches of the relevant acts by the appellant and gave his consent to the prosecution of the appellant in respect of those breaches.

41. In Brownlie v State Pollution Control Commission (1992) 76 LGRA 419 the Chief Justice observed, at p 429, that if the proceedings in their amended form are, in nature and in substance, proceedings to the institution of which the requisite consent has been given then the amendments are permissible. The Chief Justice cited Traveland as an authority for that proposition.

42. In the present case the amendments will do nothing to alter the substance of the charge, namely that between stated dates (including coincidentally the dates specified in the consent) the defendant continuously polluted water contrary to s 16 of the CW Act.

43. It is a relevant matter to take into account that the authority vested with the power to give written consent pursuant to s 13(1) is the prosecutor. In terms of policy it is difficult to comprehend how it can be said that the amendment will be made without the consent or authority of the EPA.

44. The prosecutor does not seek to add a further count but merely to amend the particulars of the dates when the alleged offence, expressly referred to in the consent given, occurred. In that sense no change is made to the substance of the offence. Strictly speaking it is only the particulars that are being changed.

45. Section 13(1) is directed only to the institution of the proceedings “for an offence” against the Act. The consent given in writing on 24 August 1998 authorised the institution of the proceedings for the offence specifically referred to in the summons. Following amendment the proceedings will relate to the same offence. If an amendment changes the nature or substance of the offence then arguably a further consent may be required if proceedings for the offence as amended are instituted for the first time when the amendment is made. That is not the case here. The amendment will not result in a fresh charge.

46. The Court is not persuaded that it should dismiss the application for amendment as being inconsistent with the requirement for consent required pursuant to s 13(1) of the EOP Act.

Conclusion

47. It follows therefore that the Court has the power to make the amendments proposed and that the charge, as amended, will not, on its face, be duplicitous. The prosecutor is entitled to an order making the amendment.

48. For the reasons given above, no further written consent is required from the EPA.

Orders

1. The summons is amended by deleting the words in the charge -

“On or about 25 August 1997 and continuing on each day thereafter until about 12 September 1997,”

and substituting the words -

“On or about 4 August 1997 and continuing on each day thereafter until about 17 September 1997,”

2. Costs of the Notice of Motion are reserved.

3. The Prosecutor is directed to file an amended summons within seven days.

I hereby certify that this and the preceding 11 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

Associate