Environment Protection Authority v Riverina Australia Pty Ltd

[2015] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165

Hearing dates:

22 April 2015

Decision date:

25 June 2015

Before:

Hoeben CJ at CL at [1]
Hall J at [2]
Garling J at [132]

Decision:

The questions that have been submitted for determination by this Court pursuant to s 5AE of the Criminal Appeal Act 1912, are answered as follows:

 

Question 1: Whether the Court erred in finding that the summons filed on 17 April 2014 was bad for duplicity because more than one offence had been charged in the one count of contravention of s 120(1) of the Protection of the Environment Operations Act 1997.

 

Answer: “No”.

 

Question 2: Whether, upon its proper construction, s 257 of the Protection of the Environment Operations Act 1997 obviates the need for the Prosecutor to provide the defendant with the essential details of the particular act, matter or thing alleged as the foundation of the manner of contravention of s 120(1) of the Protection of the Environment Operations Act 1997 contained in paragraph 1(c)(i) of the Summons.

 

Answer: “No”.

 In relation to any ancillary or consequential matters, including costs, the parties are directed to file and serve written submission within 28 days from the date of judgment, in accordance with an agreed timetable.

Catchwords:

CRIMINAL LAW – Appeal - Questions of law referred to Court of Criminal Appeal from Land and Environment Court of New South Wales – LEC proceedings stayed pending outcome - Appellant commenced prosecution of respondent in LEC for water pollution under Protection of the Environment Operations Act 1997 – Summons identified ‘manner of contravention’ as either specified instance of pollution or arising from s 257(1) of the Act – Whether summons bad for duplicity – Whether s 257(1) negated need to provide particulars of pollution by occupier of premises – CRIMINAL PLEADING – Held that summons was bad for duplicity – Unclear whether prosecutor relied upon contravention specified or some other contravention in relation to s 257(1) – s 257(1) relates to proving liability for contravention – s 257(1) is evidentiary – the section only obviates need to prove identity of offender and facilitates proof of causation – the occupier of premises at and from which pollution occurs is taken to have caused the pollution unless matters specified in s 257(1)(a), (b) and (c) are proved – particulars as to act of pollution alleged to have occurred still required - Prosecutor relying on s 257(1) must prove that pollution occurred and how – Appeal dismissed

Legislation Cited:

Clean Waters Act 1970
Criminal Appeal Act 1912
Protection of the Environment Operations (General) Regulation 2009
Protection of the Environment Operations Act 1997

Cases Cited:

Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150
Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
Chugg v Pacific Dunlop Ltd [1988] VR 411
CSR Limited v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334
Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190
Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125
EPA v Brazel (No 2) [2002] NSWLEC 26
Johnson v Miller (1937) 59 CLR 467
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127
Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) [2005] NSWLEC 241; 141 LGERA 133
Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260
R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373
Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323
S v The Queen (1989) 168 CLR 266
Taylor v Environment Protection Authority (2000) 50 NSWLR 48
Walsh v Tattersall (1996) 188 CLR 77

Texts Cited:

Archibold: Criminal Pleading, Evidence and Practice (2013) London, Sweet-Maxwell

Category:

Principal judgment

Parties:

Environment Protection Authority (Appellant)
Riverina (Australia) Pty Ltd (Respondent)

Representation:

Counsel:
JL Glissan QC; M England (Appellant)
C Ireland (Respondent)

  Solicitors:
Office of Environment and Heritage (Appellant)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2014/372934

 Decision under appeal 

Court or tribunal:

Land and Environment Court of NSW

Jurisdiction:

Class 5

Citation:

Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190

Date of Decision:

5 December 2014

Before:

Pepper J

File Number(s):

2014/ 50230

Judgment

1. HOEBEN CJ at CL: I agree with Hall J.

2. HALL J:

Background

3. The Environment Protection Authority (the Prosecutor/Appellant – “EPA”) commenced proceedings in the Land and Environment Court of NSW (“LEC”) (Class 5) by way of Summons filed on 17 April 2014 wherein the defendant, Riverina (Australia) Pty Ltd (“Riverina”) was charged that, on or about 22 April 2013, at or near Casino in the State of New South Wales, it committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (the “PoEO Act”) in that it polluted waters. The charge concerns an allegation that, on or about the last mentioned date, Riverina disposed of waste material (consisting inter alia of tallow, fats and oils) by sending it down stormwater drains from which point it washed down a number of drainage lines and into waters.

4. At the hearing, which commenced on 1 December 2014, Riverina argued, as a preliminary point, that the Summons was duplicitous. The LEC (Pepper J) held on 5 December 2014 that the Summons was bad for duplicity: Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190. Her Honour required the prosecution to elect to, “… remove the embarrassment” as otherwise the Summons would be struck out: Judgment of the LEC at [4].

5. At the request of the EPA the primary judge stated two questions to be referred for this Court’s determination. The proceedings in the LEC have been stayed pending a determination by this Court.

6. The two questions of law that have been submitted for this Court’s determination pursuant to s 5AE of the Criminal Appeal Act 1912 are:

Question 1:   Whether the Court erred in finding that the summons filed on 17 April 2014 was bad for duplicity because more than one offence had been charged in the one count of contravention of s 120(1) of the PoEO Act.

Question 2:   Whether, upon its proper construction, s 257 of the PoEO Act obviates the need for the Prosecutor to provide the defendant with the essential details of the particular act, matter or thing alleged as the foundation of the manner of contravention of s 120(1) of the PoEO Act contained in paragraph 1(c)(i) of the Summons.

Statutory Provisions

7. Chapter 5 of the PoEO Act is entitled “Environment Protection Offences” and consists of ss 114‑170. That Chapter creates a number of offences for the protection of the environment. Section 120 prohibits the pollution of waters. It is expressed in quite general terms. Whilst the pollution of waters may arise from a number of circumstances in different ways, the Act creates one general offence of “Water Pollution” in Part 5.3 of Chapter 5.

8. Section 120 of the PoEO Act, which creates an offence of strict liability in respect of the pollution of waters, is in the following terms:

“120 Prohibition of pollution of waters

(1)   A person who pollutes any waters is guilty of an offence.

…

(2)   In this section:

‘pollute’ waters includes cause or permit any waters to be polluted.”

9. Section 257, which is in Part 8.5 of the Act, entitled “Evidentiary Provisions,” provides:

“257 Occupier of premises responsible for pollution from premises

(1)   In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that:

(a)   the pollution was caused by another person, and

(b)   the other person was not associated with the occupier at the time the pollution occurred, and

(c)   the occupier took all reasonable steps to prevent the pollution.

A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.

(2)   Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution.”

10. Before proceeding to examine the judgment of the court below and the questions of law referred for determination pursuant to s 5AE of the Criminal Appeal Act it is necessary to set out the particulars of the charge in the Summons and in the Letter of Particulars dated 2 June 2014.

Particulars in the Summons

11. The application made by Riverina in the LEC focused upon the “Particulars” set out in paragraph 1(a), (b) and (c) of the Summons, details of which are set out in paragraph [12] below. The EPA also relied upon particulars that were provided by them to the respondent in a letter dated 2 June 2014, the terms of which are also set out below.

12. In support of the offence charged under s 120(1) of the PoEO Act charging Riverina with having “polluted waters” the following particulars were set out in the Summons:

“1.   …

Particulars

a.   Waters:

A drain running along the western side of Reynolds Road, Casino, which flows into a drainage channel running through the property known as “San Marla” immediately to the east of Reynolds Road, Casino then to wetlands and downstream thereof.

b.   Pollutant:

Matter comprising or containing:

(i)   animal and vegetable fats and oils, and/or

(ii)   aluminium, barium, calcium, chromium, cobalt, copper, iron, magnesium, manganese, molybdenum, nickel, vanadium and zinc, and/or

(iii)   matter that causes biochemical or chemical oxygen demand, and/or

(iv)   liquid that contains suspended or dissolved solids, and/or

(v)   matter that has a pH value of less than 6.5

c.    Manner of Contravention:

(i)    The defendant was the occupier of the premises at Lot 101 Reynolds Road, Casino, known as “Riverina Stock Feeds” (the Premises), at or from which which (sic) pollution occurred; and/or

(ii)    The defendant placed the Pollutant in a drain used or designed to receive or pass rainwater, by placing the Pollutant into the stormwater drains leading from the Premises; and/or

(iii)   The defendant placed the Pollutant in a position where it was likely to fall, descend or be washed into the Waters.

…”

Letter of Particulars

13. The letter of 2 June 2014 was in response to a request for particulars on behalf of Riverina dated 15 May 2014. The Principal Legal Officer of the Office of Environment & Heritage wrote to Riverina’s solicitors stating, in part:

“I refer to your letter dated 15 May 2014.

In respect of the particulars in the Summons under the heading ‘Manner of contravention’, the Prosecutor relies on paragraphs (ii) and (iii) only in the alternative to particular (i). In respect of paragraph (i), the Prosecutor relies on s 257 of the Protection of the Environment Operations Act 1997 (the Act) to establish that the pollution was caused by the Defendant, by virtue of the Defendant being the occupier of the Premises.

In answer to the specific questions in your letter:

1.   Into which drain/s on the Premises does the prosecutor allege the defendant placed the Pollutant in paragraph 1(c)(ii)? There are numerous stormwater drains on the premises.

The Defendant placed the Pollutant into the drain leading from the Liquid Raw Material Bund and the drain or drains into which that drain flowed.

2.   How and in what manner does the prosecutor allege that the defendant placed the Pollutant into those drain/s?

This is a matter for evidence, noting the particulars supplied.

3.   Where and in what position/s on the Premises does the prosecutor allege the defendant placed the Pollutant so that it was likely to fall, descend or be washed into the Waters?

The Pollutant was placed in the Liquid Raw Material Bund.

4.   …

5.   …

6.   …”

The Judgment of the Land and Environment Court

14. Pepper J in her judgment delivered on 5 December 2014, set out the relevant provisions of s 120 and s 257 of the PoEO Act and noted that the term “water pollution” was broadly defined in the dictionary to the Act to mean:

“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.”

15. Her Honour identified the elements of an offence against s 120 as:

“(a)   the act of polluting, by the action of placing or introducing;

(b)   a prescribed matter, as defined in the Act and the Regulations;

(c)   into waters; and

(d)   by a person."

16. Pepper J noted that s 120 was a “result offence”, the consequence of the pollution of waters being a necessary element of the offence.

17. The issues that arose on Riverina’s application to the primary judge are dealt with under two subheadings in her Honour’s judgment, namely, “Is the Manner of Contravention Duplicitous? (at [42]-[46]) and “Is there Additional Latent Duplicity in the Particularisation of the ‘Pollutant’?”

18. Her Honour observed that it was the EPA’s contention that there was no duplicity, patent or latent, arising in respect of the Summons with respect either to the particularisation of the term “pollutant”, or the “manner of contravention” of s 120 of the PoEO Act: Judgment of the LEC at [50].

19. As to the first issue, her Honour noted the EPA’s submission that particular 1(c)(i) of the Summons merely prescribed another basis of legal liability grounding Riverina’s breach of s 120 pursuant to s 257 of the Act and that this was not duplicitous. The EPA argued that this was because s 257 obviated a need for the Authority to prove “how and who caused [the pollutant] to escape” and therefore the need to particularise factual elements. On this line of argument, her Honour noted, if the EPA could not prove to the criminal standard the more particular unlawful act specified in 1(c)(ii) and (iii), it proceeded upon this basis that it could rely on what was referred to as the “deeming provision” in s 257 to merely prove, without more, that a polluting act occurred at or from Riverina’s premises.

20. Her Honour, in rejecting the EPA’s submission stated that reliance by it on s 257 was “misconceived”: Judgment of the LEC at [55]. That provision did not by its language abrogate a prosecutor’s obligation to disclose the “particular act, matter or thing alleged as the foundation of the charge.”

21. Her Honour observed that, given the fundamental nature of the common law right of a defendant to know not only the legal nature of the offence with which he or she is being charged, but also the basal factual elements of the offence, it must be presumed that had Parliament intended by the enactment of s 257 to circumscribe this right in the manner submitted by the EPA, Parliament would have done so by express statutory language or necessary intendment: Judgment of the LEC at [56].

22. Her Honour held that s 257 of the Act was no more than a device attributing the criminal liability of third parties to occupiers of premises: Judgment of the LEC at [57].

23. In the prosecution by the EPA of Riverina, no details had been given for the purposes of Particular 1(c)(i) of either when (other than sometime on or about 22 April 2013), from where or how the pollutant escaped Riverina’s premises. In such circumstances her Honour held s 257 “… will provide cold comfort to the EPA; it cannot cure the defects in the summons in relation to this separately alleged manner of contravention of s 120 of the Act …”: Judgment of the LEC at [64].

24. Her Honour further stated that the construction contended for by the EPA of s 257 would make it extremely difficult, if not impossible, for a defendant to avail himself or herself of the defences contained in s 257(1)(a)-(c) (or any common law defences), such as honest and reasonable mistake of fact: Judgment of the LEC at [65].

25. Next, her Honour stated that it was no answer to say, as the EPA did, that because s 120 was a “result based offence”, it was sufficient merely to particularise that pollution occurred at the specified waters (“the result”) at or from Riverina’s premises where Riverina was the occupier of those premises. Her Honour observed at [66]:

“… to do so ignores the conduct upon which the consequence is founded – the conduct being an element of the offence that the EPA must prove beyond reasonable doubt – and about which sufficient particulars are necessary.”

26. Her Honour held that Riverina was entitled to be apprised, as a matter of fairness, of the location and the method by which the pollutant is said to have entered the specified waters with respect to the manner of contravention alleged in paragraph 1(c)(i): Judgment of the LEC at [68].

27. In relation to the particularisation of the “pollutant”, her Honour considered that evidence in the proceedings of EPA officers (Mr Cramb and Mr Greenback) provided some support for the fact that it was conceivable, if not likely, that pollution had arisen from more than one source and not merely that as alleged at the “Bund”. In that respect, her Honour stated the evidence rendered it conceivable, if not likely, that the manner of contravention envisaged by the EPA in paragraph 1(c)(i) of the Summons was a consequence of a separate act of pollution to that alleged to have occurred at the Bund, occurring at another location on the premises, and at a different time on or about 22 April 2013. Evidence of Mr Cramb and Mr Greenback is discussed at [88]‑[89] below.

28. The EPA, her Honour noted, did not rely on any criminal enterprise allegation against Riverina. Additionally, the evidence demonstrated that some of the matters said to have comprised the “pollutant” were stored and used at different locations on Riverina’s premises: Judgment of the LEC at [70].

26. Her Honour concluded that the Summons, as framed, did more than permissibly state alternative or cumulative allegations in respect of the result: EPA v Brazel (No 2) [2002] NSWLEC 26 at [7]; CSR Limited v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334 at [34]. Her Honour noted, to the contrary, that having regard to the particulars as confirmed in the letter of 2 June 2014, “… the summons alleges wholly separate and discrete acts in respect of the pollution of the specified waters”: Judgment of the LEC at [71].

27. Her Honour noted that in Brazel (No 2), a single act of placing pesticide into holes drilled into a cement floor (which then fell into the street gutter and ultimately made its way to the creek) was alleged to have given rise to actual or likely pollution within the one count. In that case, there was one act of contravention of s 120 of the PoEO Act which had the occurrence of two consequences. That was not duplicitous. However, her Honour distinguished that from the present case, noting at [72]:

“… but in the present case, there are two acts of contravention particularised, with the occurrence of two certain consequences.”

31. Her Honour observed that it was the “Manner of Contravention” issue which the debate on duplicity centred upon rather than the respondent’s allegation of duplicity in the particularisation of the “pollutant”: Judgment of the LEC at [42]. The manner in which the appellant had particularised the “pollutant”, in her Honour’s opinion, would not of itself give rise to duplicity in the summons, but was problematic in the context of the summons as a whole: Judgment of the LEC at [53].

32. Her Honour accordingly concluded that the Summons was bad for duplicity, observing that it was either patently duplicitous insofar as it alleged two separate contraventions of s 120, or was latently ambiguous insofar as it failed to provide the essential matters of fact giving rise to the criminal liability with which Riverina had been charged, or it is both: Judgment of the LEC at [74].

Submissions

(a) Submissions of the Appellant/Prosecutor (EPA)

33. It was submitted for the EPA that the construction of s 257 was integral to both questions 1 and 2 referred to this Court. However, a preliminary question in the proceedings concerned the nature of an offence pursuant to s 120: Appellant’s Written Submissions at [25].

34. Riverina, it was submitted, had been charged by the Summons with one offence. As noted above, it was contended that the particulars set out “a number of alternatives”. These alternatives, it was contended, went to the matter of proof and not to the occurrence of the offence: Appellant’s Written Submissions at [27]. It was argued in this respect that the offence occurred on or about the date charged and was to be seen as one act or set of acts by which the water was polluted. The particulars did not constitute particulars of different charges: Appellant’s Written Submissions at [27].

35. The particulars, it was further submitted, did not concern “separate and distinct failures”: Appellant’s Written Submissions at [28].

36. The EPA observed that s 120 is a “result offence”: Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 and Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79. This, it was submitted, is a necessary element of the offence and is the focal point of the legislature’s concern with the conduct in question: Appellant’s Written Submissions at [37].

37. The “result” of the offence alleged in this case was said to be the fact of pollution of waters, as extensively defined, including those matters prescribed by Schedule 5 of the Protection of the Environment Operations (General) Regulation 2009. That Regulation, for the purposes of paragraph (c) of the definition of water pollution in the Dictionary to the Act, defines “matter” in terms of paragraphs (a) to (w) therein set out. The fact that the definitions are extensive, it was argued, does not result in a separate offence. It was contended that as soon as one or other of the various defined terms is established, the offence is complete: Appellant’s Written Submissions at [38].

38. It was submitted that there is no duplicity where the results that are proven all arise as a consequence of the same criminal activity, namely, water pollution within the meaning of the expanded definition: Appellant’s Written Submissions at [39].

39. It was submitted that, as in Walsh v Tattersall (1996) 188 CLR 77, although a charge is evidenced by multiple acts, nonetheless these acts may be said to represent a single crime, in which case a single count is therefore permissible: Appellant’s Written Submissions at [32] and [36].

40. It was argued that the EPA merely relied upon two different ways of proving one offence. The first included calling evidence as to Riverina placing the pollutant in a rainwater drain, and/or placing the pollutant in a position where it was likely to fall, descend or be washed into the waters (particulars 1(c)(ii) and/or (iii)). The second was reliance by the EPA on s 257, which required it to prove that pollution occurred at or from premises. Once that was established the statutory presumption applies: Appellant’s Written Submissions at [42].

41. In the present proceedings then, the EPA, it was submitted, simply relied on s 257 as one of two ways of proving the s 120 offence: Appellant’s Written Submissions at [46].

42. In relation to the allegation that the particularisation of the “pollutant” gave rise to duplicity of itself, the appellant had submitted below that:

“The offence crystallised upon the waters being polluted by the prescribed matter, however constituted. Riverina was not being charged with multiple acts of pollution by a myriad of different substances, and in any event, alternative or cumulative allegations in respect of the result do not, in the Court’s opinion, render the charge bad for uncertainty or duplicity (Environment Protection Authority v Brazel (No 2) [2002] NSWLEC 26 at [9] and Environment Protection Authority v Brazel [2002] NSWLEC 7 at [43])”: Judgment of Pepper J at [51].

43. In this Court it was submitted that the fact that the definitions of “pollutant” are extensive does not result in a separate offence, with reliance placed upon dicta in EPA v Brazel (No 2), and, again, that there was no duplicity where the results proven all arise from the same criminal activity.

44. As to Question 2, the proper construction of s 257, in its Written Submissions, the EPA challenged the primary judge’s construction of s 257 contending that her Honour’s construction was based on the following three conclusions:

1. That s 257 was no more than a device attributing the liability of third parties to occupiers of premises, it being a provision directed at the identity of the offender and concerns vicarious liability: Judgment of the LEC at [57].

2. Without details as to the purpose of Particular 1(c)(i) (that is, for the purpose of s 257) of when, from where, or how, the pollutant escaped Riverina’s premises, s 257 will “provide cold comfort to the EPA” and cannot cure the defects in the Summons. Her Honour noted that were it otherwise the word “from” in s 257, “… would be rendered otiose”: Judgment of the LEC at [64].

3. If s 257 was construed as the EPA contended, it would be extremely difficult, if not impossible, for the defendant to avail itself of any statutory or common law defences: Judgment of the LEC at [65]. This was because the Summons alleges wholly separate and discrete acts of pollution of the specified waters: Judgment of the LEC at [71].

45. In relation to the first point above, it was submitted by the appellant that there was nothing in the Act, in particular in the provisions of s 120 or s 257 which justified such a restrictive reading of s 257. The effect of s 257, it was argued, was that once pollution occurs either at or from premises, the occupier of the premises is taken to have caused the pollution. The occupier then has a legal onus. The section was not merely directed to the identity of the offender, but also was directed to criminal responsibility and the onus of proof.

46. In respect of the second point, it was contended that her Honour’s reasoning was “infected by a misunderstanding of s 257”: Appellant’s Written Submissions at [62]. It was submitted that in order for the presumption to be enlivened, pollution must have occurred “at or from” premises. Pollution can occur either at or from premises and there was no basis on which the word “from” could be said to be otiose. It was submitted that there was no basis to complain that the Summons insufficiently particularised the timing of the offence, that is, “on or about 22 April 2013”.

47. As to how the pollution escaped the premises, it was submitted that there was no defect in the Summons insofar as s 257 was relied upon. The provision simply requires that there be “an occurrence of pollution from the premises”. Once that is established the section is enlivened. Nothing in the words of s 257 that requires any detailing of how the pollution escaped the premises to be particularised. The section did not require the location of the pollution’s escape to be particularised: Appellant’s Written Submissions at [63].

48. The EPA submitted that her Honour erred in concluding that the decision in Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) [2005] NSWLEC 241; 141 LGERA 133 did not assist the EPA. Reference in that respect was made to parts of the decision in that case of Pain J at [151]-[152].

49. Finally, in respect of the primary judge’s third reason (abovementioned) in relation to her construction of s 257, namely that it would be difficult if not impossible for the defendant to avail itself of available defences, that statement was said to be based upon a contention that the Summons alleged wholly separate and discrete acts of pollution in the specified waters. It was said that the reasoning in this respect was circular: Appellant’s Written Submissions at [67]. And in any event it was submitted the foundation for the reasoning was flawed. The difficulty or otherwise of proving the defence it was submitted, was not a valid basis on which to interpret the provisions of s 257.

50. In relation to the proper construction of s 257, it was noted that the expression “is taken to have” creates a presumption that the occupier of premises caused the pollution, rebuttable if the statutory defence set out in s 257(1)(a)-(c) is established: Appellant’s Written Submissions at [49].

51. It was further submitted that s 257 permitted the EPA to prove that Riverina, as the occupier of the premises, caused pollution provided that the EPA could separately prove that pollution occurred from those premises: Appellant’s Written Submissions at [51].

52. It was observed that s 257 creates no new offence. It simply creates a new way in which s 120 can be made out. The section was concerned with how an offence charged is to be proved: Appellant’s Written Submissions at [30]-[41]. It was submitted that the primary judge erred in her conclusion that the EPA’s reliance on s 257 amounted to a separate manner of contravention of s 120: Appellant’s Written Submissions at [51].

53. The purpose and effect of s 257 was its operation as an evidentiary provision which is only enlivened by attachment to a substantive offence provision. Once enlivened, it was said to impose a legal burden of proof on the accused rather than just an evidentiary burden. A purpose of s 257 was directed at overcoming difficulties of proof. In the present case the difficulty overcome by the provision was that of proving who had caused pollution where the pollution occurs at or from premises: Appellant’s Written Submissions at [53].

(b) Submissions for the Respondent (Riverina)

54. Mr Ireland in his submissions, supporting the judgment of the primary judge, contended:

1. That the judgment correctly applied the law on duplicity in particular, in accordance with relevant principles as enunciated in Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 and was unaffected by error;

2. That the judgment applied the law requiring a defendant to be provided with the essential factual particulars of the act, matter or thing said to constitute the offence the subject of the charge: Respondent’s Written Submissions at [3].

55. A primary matter argued in the Court below was said to be that the Summons, when read with the particulars provided in the letter of 2 June 2014, did not merely charge one offence and penalise one act which possessed one or more forbidden characteristics, but instead it (impermissibly) contained a number of different charges arising from different factual circumstances rolled up in the one count in the Summons: Respondent’s Written Submissions at [4].

56. It was argued for Riverina that the duplicity of the Summons arises chiefly from the particulars given of the “manner of contravention” in the charge and is compounded by the particularisation of the “Pollutant” (although it was submitted to the primary judge and in this Court that the duplicity exists regardless of the latter additional factor): Respondent’s Written Submissions at [6].

57. It was observed that the Letter of Particulars of 2 June 2014 provided further particulars in relation to paragraphs 1(c)(ii) and (iii) of the Summons, but no particulars were provided by the letter in relation to paragraph 1(c)(i) of the Summons. All that was said in relation to the latter was that that manner of contravention was relied on in the alternative to 1(c)(ii) and (iii), and that “in respect of paragraph (i), the Prosecutor relies on s 257 of the PoEO Act 1997 to establish that the pollution was caused by the Defendant, by virtue of the Defendant being the occupier of the Premises”.

58. It was submitted that the inadequacy and duplicity of the charge was accordingly readily apparent. By the particulars in relation to 1c(ii) and (iii) the prosecutor was alleging that the defendant placed “the pollutant” into a specific drain, namely, “into the drain leading from the Liquid Raw Material Bund (LRMB) and the drain or drains into which that drain flowed”. It was observed that subparagraphs 1c(ii) and (iii) articulated a properly particularised alleged “manner of contravention” which alleged, when read with the definition of “Pollutant” and “Waters”, a particular “act of pollution” said to constitute the offence charged: Respondent’s Written Submissions at [9].

59. The problem with the Summons, however, was said to arise from the prosecution’s stipulation that it relies on the alleged manner of contravention in 1(c)(i) in the alternative, with the prosecutor declining in its letter of particulars of 2 June 2014 and at the hearing in the LEC, to confine subparagraph 1(c)(i) to the same manner of contravention as particularised in 1(c)(ii) and (iii): at [10].

60. The problem with paragraph 1(c)(i) was said to be that the paragraph in itself suggests various “manners of contravention” distinct from that particularised in 1(c)(ii) and (iii). In addition when 1(c)(i) is read with 1(c)(ii) and (iii), or alone, subparagraph 1(c)(i) must leave the defendant in “unresolved doubt” as to the alleged “manner of contravention” and as to the very act of pollution the subject of the charge: Respondent’s Written Submissions at [11].

61. It was observed in the Respondent’s Written Submissions that if the prosecutor had been content to limit the act of pollution in relation to particular 1(c)(i) to that particularised in respect of 1(c)(ii) and (iii), namely placement in the LRMB then no issue would arise:

“…

But by refusing to do this in its letter of 2 June 2014, the Prosecutor is including in the charge a universe or class or other ‘acts of pollution’ occurring through various unspecified and unparticularised ‘manners of contravention’.: at [12].

62. It was further submitted that the prosecutor had failed to particularise the act of pollution relied upon through the words “at and from which the pollution occurred” in 1(c)(i), and missed the point in its letter of particulars and argument below and to this Court by then invoking s 257: Respondent’s Written Submissions at [13].

63. In relation to s 257, a primary submission made on behalf of Riverina was that the section does not permit a Prosecutor to refrain from giving adequate particulars or providing the essential factual particulars of the act, matter or thing said to constitute the offence. In relation to an offence against s 120 of the PoEO Act, an act of pollution must be relied on and established to make out that offence: Respondent’s Written Submissions at [14].

64. The obligation upon the Prosecutor to provide particulars it was submitted exists and is not displaced or removed by s 257: Respondent’s Written Submissions at [15].

65. The substance of the charge against s 120 was said to be an “act of pollution”. Particularisation of “waters” and “pollutant” accordingly was said to be insufficient to describe the act of pollution: Respondent’s Written Submissions at [18].

66. Without further particulars the defendant it was submitted, was in the position of not knowing whether the charged act involves placing a prescribed matter in waters or placing any matter in a position where it is likely to fall or descend or be washed or blown or percolated into any waters: Respondent’s Written Submissions at [16].

67. More specifically, in relation to Question 1, it was noted that the expression “water pollution” is defined in the Dictionary to the Act in terms of:

“(a)   placing in or on, otherwise introducing into or onto, waters (whether through act or omission) any matter …” (emphasis added)

68. It was not merely the presence of pollutant in waters “but conduct being the act of placing it there (or introducing it into or onto or placing it in a position from where it was likely to get into the waters …”. Respondent’s Written Submissions at [22].

69. The duplicity in the Summons as particularised, it was submitted, arises from the fact of charging multiple unlawful acts of pollution, each an alleged offence against s 120: Respondent’s Written Submissions at [24], referring to Walsh v Tattersall, supra.

70. To merely allege an act of pollution “at and from” the Premises as stated in para 1(c)(i) was manifestly inadequate, there being many drains, plant where ingredients are used, a large hardstand area and multiple sheds on the premises: Respondent’s Written Submissions at [28].

71. Additionally, “Pollution of waters” must involve movement of water from the Premises into “waters”. It was submitted that the prosecutor was simply relying upon pollution “at and from the Premises”: Respondent’s Written Submissions at [31].

72. As in Johnson v Miller (1937) 59 CLR 467, s 120, it was argued, creates a separate offence for each particularised act of pollution. The Summons is defective for duplicity in setting out two offences (at least) based on alternative factual bases of liability, which could not be said to be merely alternative formulations based on substantially the same facts: Respondent’s Written Submissions at [40].

73. As to Question 2, it was submitted by the respondent that s 257 obviates the need to prove the particular defendant caused or was the actor in the “act of pollution” at the Premises but does not purport to obviate the need to particularise and prove the act of pollution at the Premises: Respondent’s Written Submissions at [48].

74. The principle as to the provision of particulars of a charge stand notwithstanding s 257. The section facilitates proof of causation but does not exonerate a prosecutor from proving anything more than “pollutant” in “the waters”. Further, s 257 does not alter the legal elements of the s 120 offence: Respondent’s Written Submissions at [54].

75. In the respondent’s submission, there is an evident purpose behind s 257. It addresses the mischief of a defendant escaping liability where their personal involvement cannot be proved: Respondent’s Written Submissions at [50].

68. In order for s 257 to have operation, a particular act of pollution of waters at and from the Premises must be charged, alleged and proved: Respondent’s Written Submissions at [59].

69. It was submitted that whatever the act or acts of pollution polluting the waters may have been intended as the subject of particular 1(c)(i), that paragraph provides no particulars of any movement of the pollutant from the premises. In maintaining paragraph 1(c)(i) as a strict alternative to paragraph 1(c)(ii) and 1(c)(iii), the Summons in effect alleges another manner of contravention as contemplated by the prosecutor other than that the subject of the last two-mentioned subparagraphs: Respondent’s Written Submissions at [63].

70. Reliance was placed upon the decision of Pain J at [87] in Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) [2005] NSWLEC 241; (2005) 141 LGERA 133 for the proposition that s 257 does not overcome the necessity for the prosecutor to prove its case that the pollutant fell or descended into the relevant waters to the required standard of proof: Respondent’s Written Submissions at [64].

71. It was submitted that the defence provisions in s 257 themselves suggest that a defendant must be informed of the act of pollution to be relied upon by the prosecutor: Respondent’s Written Submissions at [72].

72. It was further submitted that paragraph 1(c)(i), when considered in the context of paragraph 1 of the Summons, asserts a potentially limitless class of separate acts (not identified) causing water pollution: Respondent’s Written Submissions at [78].

73. In relation to what the respondent perceived as an implicit submission in the Appellant’s Written Submissions that the conduct alleged in subparagraphs 1(c)(i) and (ii)/(iii) may be viewed as part of the same transaction or criminal enterprise, it was submitted by the respondent that this was quite contrary to concessions recorded as made by counsel for the prosecutor in the court below, including the way in which the case was presented below and the absence of any such allegation in the Summons. It was submitted that the prosecutor ought not be permitted to depart from such concessions and change the case in its fundamentals on the appeal. Reference was made to the transcript (T 25.25-50, T 26.26-38, T 80.36-37 and T 88.29-36): Respondent’s Written Submissions at [79].

74. It was submitted that, contrary to the prosecutor’s submissions, the decision of the High Court in Johnson v Miller was “on all fours with the present case”: Respondent’s Written Submissions at [81].

75. In relation to the prosecutor’s reliance upon the decision in Brazel (No 1) and Brazel (No 2), it was noted that the water pollution arose in those cases from one factual situation or act or placement of an anti-termite chemical in holes drilled in a concrete slab as well as both actual and deemed pollution. The Court in that case found that the actual pollution was not proved by deemed pollution, though it arose from one act. The prosecutor’s difficulty, it was contended, in the present case was that reliance was placed on more than one act of pollution unlike in Brazel: Respondent’s Written Submissions at [83].

76. It was further noted that in the decision of Brazel (No 2) the Court had rejected the defendant’s submission that a separate charge or summons was required for each factual consequence of the one act of placing the pollutant: Respondent’s Written Submissions at [84].

Factual Matters

85. The question as to a requirement on the appellant/prosecutor to provide particulars is to be considered against the background of relevant factual matters concerning Riverina’s premises, being a stock feed manufacturing mill. As discussed below, the primary judge in her judgment, and the respondent in its submissions in this Court, pointed to the possibility, if not the likelihood, of pollution occurring in more than one location having regard to the nature of operations and processes carried on at the Riverina premises.

86. In a Statement of Agreed Facts dated 28 November 2014 filed in the LEC, the following facts are stated:

“1.   Riverina (Australia) Pty Ltd (Riverina) operates a stock feed manufacturing mill (the Riverina Premises), sometimes referred to as ‘Riverina Stock Feeds’, near Casino. Riverina holds an environment protection licence in respect of the mill. The licence is for the scheduled activity of ‘agricultural processing’ and does not permit any pollution of waters. The mill is situated to the western side of Reynolds Road. On the eastern side of Reynolds Road, opposite the mill, are paddocks used for cattle grazing. This land is owned and used by the Northern Co-operative Meat Company (the NCMC Land) who is the holder of Environment Protection Licence 1461 allowing NCMC to irrigate effluent onto the NCMC Land.

2.   Reynolds Road runs in a roughly north/south direction. The Riverina Premises is located to the west of that road. A ‘dish drain’ runs beside the western side of Reynolds Road. At the relevant time, the dish drain was a vegetated, fairly shallow drainage line about 1 metre wide. At a point north of the Premises, there is a culvert under Reynolds Road. The dish drain leads into the culvert. On the eastern side of Reynolds Road, the culvert leads into a drainage line which runs through the NCMC Land.

3.   Liquid raw material used in the manufacture of the stock feed, being poultry oil, molasses, vegetable oil and a commercial product called ‘Alimet’, is stored in four tanks. Poultry oil is a fat obtained from chicken rendering and processing. Molasses is obtained from the juice of sugar cane. Alimet is a feed supplement. The tanks sit within a concrete bund, referred to as the liquid raw material bund. If liquid raw material leaks or spills from the tanks or is spilt during loading or unloading of the tanks, it is contained within that bund.

4.   The liquid and solid raw materials are blended and turned into small pellets, which are the finished stock feed product. The pellets are stored in a silo before being loaded into trucks and transported from the site.

5.   A boiler is used for heating and to power some of the operations at the mill. Potable water is fed into the boiler and water softener and scale inhibitor is added to it.

6.   The Riverina mill has no connection to the sewerage system. Liquid waste therefore must be collected and disposed of by liquid waste transporters. Riverina has a stormwater drainage system, which collects water and runoff only from the mill premises. The system drains to a number of outlets, including three along the eastern boundary of the Riverina Premises.”

87. The primary judge observed at [45] that:

“… unless particular (1)(c)(i) of the summons is understood as alleging as the ‘manner of contravention’ of s 120 of the POEOA the placing of a pollutant into the drain leading from the bund, the charge is defective because, read on its own, it is capable of referring to a class of unparticularised and entirely different disparate acts that may have occurred at different places on Riverina's premises, involving unrelated equipment and practices. That is to say, the implicit reference to s 257 in particular 1(c)(i) (confirmed in the letter dated 2 June 2014) impermissibly leaves at large what act of pollution of waters is alleged. Thus, for example, it is unknown whether the charge relates to the actions of Riverina at the bund, at the main concrete hardstand area where pellets are sometimes spilled and cleaned up, or on the western side of Riverina's premises (the bund and the drains leading from it are located on the eastern side of its premises).”

88. As discussed above, Pepper J referred to the affidavit evidence of Environmental Protection Officers, in particular, of Mr Cramb, affirmed 14 April 2014, at [40]-[41], [56], [66] and [72]-[81] and of Mr Greenbank sworn 25 June 2014. Mr Greenbank referred to overland flow and flow through drainage pipe 2 to the east, in addition to flow to the west at [35] and [36]. Her Honour then observed at [46]:

“… Hence, as presently framed, the summons contemplates an act of pollution arising at the bund, and some other unspecified act of pollution occurring from one or other parts of the Riverina premises. It is consequently duplicitous giving rise, as it does, to two distinct unlawful acts, and therefore, two separate offences charged within the one count.”

89. In Mr Cramb’s affidavit, it was noted that Riverina’s premises was located to the west of Reynolds Road which ran in a roughly north/south direction. A “dish drain” runs along the western side of Reynolds Road, roughly parallel to it. Specific areas noted included:

1. A concreted hard stand “outloading area” beneath the “50’s silos”. Five stormwater pits were seen in this area. Mr Cramb referred to information provided on inspection by employees of Riverina that washing down of the concreted hardstand “outloading area” had ceased since council notification on 23 April 2013: Affidavit of Geff Cramb at [56], [66].

2. Drains and stormwater discharge pipes inside the premises western security fence including four stormwater discharge pipes and associated drainage which led from the Riverina concreted areas and discharged beneath the western security fence: Affidavit of Geff Cramb at [72]. The most northern of them, stormwater drain (1), was the largest and appeared to Mr Cramb to be contaminated: Affidavit of Geff Cramb at [73].

90. In the submissions for the respondent at [29] questions were raised in relation to paragraph 1(c)(i), in particular, as to whether the act of pollution alleged involved one or other of the following:

• Spillage down the slope elevated from and fronting the “Waters’ adjoining Reynolds Road.

• Placement of pollutant in another stormwater drain unconnected to the LRMB and if so, at what point, there being many such drains.

• Washdown of spilled feed pellets and other ingredients into “Waters” from the extensive hardstand area underneath the loading hoppers at the Premises.

• Bags of feed stock ingredients or feedstock being directly introduced or accidently deposited in or near the “Waters” or some other aspect.

CONSIDERATION

QUESTION 1: Whether the Court erred in finding that the summons filed on 17 April 2014 was bad for duplicity because more than one offence had been charged in the one count of contravention of s 120(1) of the PoEO Act.

Principles

91. The general principle in respect of what is known as the rule against duplicity is that an indictment (or Summons) should not, in one count, charge the defendant with having committed two or more separate offences: Archibold: Criminal Pleading, Evidence and Practice (2013) London, Sweet-Maxwell at [1-216].

92. The objection in cases involving duplicity is that the accused does not know with any certainty the charge he/she has to meet: S v The Queen (1989) 168 CLR 266, 281 per Toohey J.

93. In Johnson v Miller at 489-490, Dixon J observed:

“…the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.”

94. As soon as it appears that a count in an indictment (and equally in a summons charging an offence) is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged: S v The Queen, supra, at p 282 per Toohey J. See also Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323, Maxwell P, Weinberg and Kyrou AJA at [46].

95. The application of the doctrine of duplicity is relatively straightforward when the elements of the offence are discrete (as in Johnson v Miller – which concerned persons coming out of licensed premises on a Sunday morning). In other cases a number of acts that form part of a course of conduct or transaction, or a criminal enterprise may be charged in a single count, as, for example, an offence of defrauding the Commonwealth: R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373. See also discussion in Environmental Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125 at [48] per Leeming JA.

96. The general rule is that unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity, they should be separately charged; Environment Protection Authority v Truegain Pty Ltd, supra, at [50] per Leeming JA; Walsh v Tattersall, supra, per Kirby J at 107.

97. In the application of the rule a proper construction of the statutory provisions that create the relevant offence is essential for the purpose of identifying the elements of the offence and in determining the particular conduct (both acts or omissions) sufficient to constitute an offence. These are matters of substance, not form: Environment Protection Authority v Truegain, supra, per Leeming JA at [65].

98. Acts or omissions, disparate in nature and content, involving different items of plant or different work systems, operations and procedures or different locations on particular premises in cases involving prosecutions for breach of statutory obligations to provide and maintain a safe working environment have been held to be duplicitous: Chugg v Pacific Dunlop Ltd [1988] VR 411; Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 at 179. The conduct particularised in a summons in such cases provides the basis for determining the discrete or separate offence charged.

99. In Truegain, the respondent was charged with an offence against s 64(1) of the Protection of the Environment Operations Act 1997. Truegain was the holder of an Environment Protection Licence which authorised the carrying out of “Scheduled activities” at specified premises. The relevant scheduled activity was “waste processing non-thermal treatment”.

100. The summons in that case alleged Truegain contravened a condition of the licence, being an alleged failure to carry out its licensed activities in a competent manner. The relevant particulars alleged a breach of the condition in respect of “treatment and/or storage”. Leeming JA, with whom RA Hulme and Button JJ agreed, observed:

[72]   Matters of fact and degree are apt to arise where duplicity is alleged. However, storage is different from treatment, and the storage alleged to have been performed incompetently took place on different days, and with different equipment, from the treatment which is alleged to have been performed incompetently. In the present case, the charge extends to failure to store and failure to treat. Let it be assumed, favourably to the EPA, that all of the machinery and facilities on Truegain’s premises formed a single ‘entity’. Nevertheless, it is plain on the face of the particulars that the conduct and omissions giving rise to the alleged incompetent storage is different (in time, in location, and in content) from the conduct and omissions giving rise to the alleged incompetent treatment.” (emphasis added)

101. Section 120 of the PoEO Act by its use of the verb “pollute” (which is defined in s 120(2) as including “cause or permit any waters to be polluted”) identifies the essence or the elements of an offence charged under that section. The expressions “water pollution” and “pollution of waters” are defined in the Dictionary to the PoEO Act in terms that identify the type of conduct or action that constitutes an offence.

102. A person prosecuted under s 120 is entitled to be provided with particulars of the alleged conduct – when, how and where – that is the time, manner and location of an alleged contravention: Johnson v Miller, supra, at 489; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [25]-[29]. As discussed below, the provisions of s 257 do not alter that position with respect to an occupier of premises. It is the act of pollution that gives rise to liability under s 120.

103. The pleading of the charge in the Summons in paragraphs 1(c)(ii) and (iii) together with the Letter of Particulars in relation thereto, provides the respondent with notice of the factual substratum as to the manner of the alleged contravention. They in particular state the particular acts of pollution charged. Subparagraph 1(c)(i) on the other hand, as discussed below, pleads a general allegation of the respondent as “occupier” of the specified premises “at and from which pollution occurred”, words which reflect the statutory language appearing in s 257.

104. Paragraph 1(c)(i) of the Summons does not specify how or where on the respondent’s premises the offence or offences charged occurred. The paragraph as pleaded is without limitation as to acts or conduct alleged to have caused the pollution of waters. Paragraph 1(c)(i) is not restricted or confined to or by the particulars relied upon in relation to 1(c)(ii) and/or (iii). It is relied upon as an independent and alternative basis or foundation upon which the appellant prosecutor seeks to establish liability in the respondent.

105. The failure by the appellant to identify the act or manner of pollution referred to in paragraph 1(c)(i) means that the Summons is capable of encompassing any or all possible acts of pollution at or from the premises. As such it attracts the principles concerned with uncertainty in criminal pleading and duplicity.

106. The EPA’s submission that the Summons charges only one offence, and that the particulars set out a number of alternatives to go “to the matter of proof, not to the occurrence of the offence” (Appellant’s Written Submissions at [27]) is a submission in the nature of an assertion. As observed above, the issue of duplicity involves questions of substance, not form. In relation to paragraph 1(c)(i), the letter of particulars dated 2 June 2014 states that the EPA relies upon s 257 of the PoEO Act “to establish that the pollution was caused by the Defendant, by virtue of the Defendant being the occupier of the Premises”.

107. As the appellant relied upon Particular 1(c)(i) as an independent basis of liability, alternative to paragraphs 1(c)(ii) and (iii), the Summons is not one that relies upon a number of facts as constituting components of one activity. Paragraph 1(c)(i) in that sense stands or falls as a single count alleging a single contravention.

108. The EPA’s submission that the offence is a “result offence” is not a submission that addresses the failure to identify the factual substratum upon which it seeks to have criminal liability imposed upon the respondent by paragraph 1(c)(i). The submission in [39] of the Appellant’s Written Submissions that “... the results that are proven all arise as a consequence of the same criminal activity, namely water pollution …” with respect begs the question as to what is the “activity” relied upon by the EPA in terms of a particular act, omission, operation, place, equipment or processes (ie, the manner of contravention).

109. Insofar as paragraph 1(c)(i) applies to two or more acts of pollution – not involving the LRMB – any liability sought to be established at the hearing of the Summons would be based on a different factual foundation. The single count pleaded in the Summons accordingly alleges two or more offences under s 120. As such the Summons contravenes the rule against duplicity. The question as to whether the provisions of s 257 of the PoEO Act relied upon by the appellant/prosecutor in relation to paragraph 1(c)(i) operate to obviate the need for the EPA to comply with the principle enunciated by Dixon J in Johnson v Miller, supra, is a matter discussed below in relation to Question 2.

Question 2: Whether, upon its proper construction, s 257 of PoEO Act obviates the need for the prosecutor to provide the defendant (respondent in these proceedings) with the essential details of the particular acts, matter or thing alleged as the foundation of the manner of contravention of s 120(a) of the PoEO Act contained in the summons.

110. Question 2 requires consideration of:

1. The proper construction of s 257;

2. The function and purpose of s 257; and

3. The scope of its operation in a prosecution for an offence under s 120.

111. In the discussion above concerning Question 1 I have expressed the conclusion that s 257 does not obviate the need for the prosecutor to provide the defendant with the essential details of the particular act, matter of thing alleged as the foundation of the manner of contravention of s 120(1) contained in paragraph 1(c)(i) of the Summons. The discussion that follows seeks to develop the reasons for the conclusion I have expressed.

112. The commencement point is the fundamental requirement for a summons charging an offence to disclose essential elements of the offence. In this respect the principle is well-established.

113. In Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [16]; 113 LGERA 116 at 125-6, Sperling J said:

“The word ‘information’ is most commonly used to mean the document by which criminal proceedings are instituted before a magistrate. The function of such an information is to provide sufficient information for the issue of a summons directing the defendant to appear to answer the charge.”

114. In McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 at 134 (which approved the above dicta in Taylor) Spigelman CJ having considered the terms of the summons charging pollution of waters contrary to s 16(1) of the Clean Waters Act 1970, said at [47]-[48]:

“In my opinion, some reference to the conduct … said to constitute the act of polluting was required in the summons and in the s 41 order. Section 16 has been called a ‘result offence’, in the sense that the consequence, that is, the pollution, is an essential ingredient of the offence … However as Hunt CJ at CL said in EPA v Bathurst CC (1995) 89 LGERA 79 at 82 … ‘the prosecution is required to prove both the conduct of the defendant in placing the material in the waters and the pollution of the waters as a consequence of the defendant having done so’.”

115. As stated in the discussion on Question 1, I am of the opinion that in the present case the EPA was required to prove:

1. The relevant act (or omissions) causing the alleged water pollution; and

2. That the pollution of the waters was a consequence of that act (or omission).

116. In the Letter of Particulars of 2 June 2014, the EPA alleged that the defendant placed the pollutant into the drain leading from the LRMB and the drain or drains into which that drain flowed. No factual ingredient of the offence as particularised in paragraph 1(c)(i) was specified or stated.

117. Accordingly, no facts as to or constituting the act of pollution were identified. In that circumstance the respondent was not informed as to whether the act of pollution related to a particular operation conducted by the respondent on its premises or to a particular part of the premises. No particulars were provided in respect of “the time, place and manner of [the respondent’s] acts or omissions”, save for the statement “on or about 22 April 2013” in paragraph 1 of the Summons.

118. In Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260, the defendant appealed its conviction by the LEC of an offence contrary to s 120(1) of the Protection of the Environment Operations Act 1997 that it polluted specified waters on a specified date. It was noted that the definition of “water pollution” covered both direct and indirect pollution. The case involved allegations of indirect pollution which involved placing matter in a position where it falls, descends or is washed or likely to fall etc into waters or into a drain or channel designed to receive or pass rainwater, if the matter would, if placed in water, pollute or be likely to pollute the waters.

119. There were two circumstances that arose that could have caused pollution. One was a leak in a tank adjacent to the defendant’s factory building. Another or additional circumstance was pollution resulting from the escape of diluted egg waste (referred to as the “Fitzpatrick incident”).

120. On appeal, Handley JA (with whom Kirby J agreed, RS Hulme J dissenting) held that the summons was not duplicitous on its face – the only “defect was the failure to identify the act of the appellant which placed the pollutant in a position where it was likely to and did fall etc.”

121. Whilst no specific reliance was placed upon the provisions of s 257, Handley JA referred to the fact that those provisions could have applied, in particular, in relation to the subcontractor in respect of the “Fitzpatrick incident”. Section 257, of course, was also available in the prosecution of the appellant in respect of the pollution resulting from its actions in placing egg waste in the tank. Handley JA, however, proceeded upon the basis that particulars as required by Johnson v Miller applied:

“[32]   In the present case the summons and order were not duplicitous on their face and the only defect was the failure to identify the act of the appellant which placed the pollutant in a position where it was likely to and did fall etc.

[33]   Section 16(2) of the Procedure Act or its equivalent preserves a summons under s 246(1) of that Act from the consequences that would otherwise flow from a failure to specify essential particulars of the offence: Stanton v Abernathy (above) at 667; Taylor v EPA (above) at 57; McConnell (No 2) (above) at 41–2.

[34]   Since the summons did not particularise ‘the particular act, matter or thing alleged as the foundation of the charge’: Johnson v Miller (1937) 59 CLR at 489, the appellant was entitled to further and better particulars: para [31]. However it neither challenged the validity of the summons nor sought such particulars.

[35] There was a potential latent duplicity in the charge. Although evidence for the Council focussed on the appellant’s acts in placing egg waste in the tank it also led evidence without objection about the Fitzpatrick incident: paras [6] and [8]. An occupier of premises at or from which any pollution occurs is responsible for that pollution including any caused by a subcontractor: Act s 257.

[36]   However as the Judge said: para [8] ‘it was not part of the Prosecutor’s case that there was an escape of egg waste into SW6 due to Mr Fitzpatrick’s actions’.

[37]   If the appellant had objected to the form of the summons the Council would have been required to give particulars of the act or acts of the appellant relied on to establish its criminal responsibility. Its particulars would have indicated that it did not rely on the Fitzpatrick incident, and that there was no duplicity.”

122. Whilst the judgment of Handley JA in Pace Farms was not one that considered whether the obligation on a prosecutor to identify the act of the appellant, an occupier of premises, as an element of the offence charged under s 120 was limited or affected by s 257 it was nonetheless a judgment that proceeded upon the basis that the obligation existed and that there had been a “failure to identify the act of the appellant which placed the pollutant in a position where it was likely to and did fall etc”: Pace Farms at [32].”

123. Section 257, as the appellant’s submissions state, is not an offence‑creating provision. It does not make any express reference to s 120. It is in the nature of a deeming provision to proceedings in which a person is charged with a pollution offence under the Act. It is not limited to water pollution. Section 257 is a provision that facilitates proof of one matter, namely that the particular defendant (occupier) caused the alleged pollution.

124. Section 120 by its terms facilitates proof of an offence, inter alia, of a contravention of s 120 by attributing pollution to the occupier of premises at and from which the pollution occurs.

125. Section 257 however only operates upon proof of a particularised act of pollution which is an element of an offence charged under s 120. The terms of s 257 do not, in my opinion, exempt a prosecutor from an obligation to identify the factual substratum, namely, the specific act of pollution.

126. Section 257 does not eliminate the need for admissible evidence to prove the element of the offence created by s 120, the act of pollution. Section 257 operates only after evidence adduced in a prosecution establishes the relevant act of pollution (or other conduct causing the pollution). Section 257 removes a requirement to prove that the occupier was the person who committed the act of pollution. Section 257 does not otherwise alter the legal elements of a s 120 offence.

127. Whether s 257 applies in a given case or not does not, in my opinion, mean that a defendant must be left in a position of embarrassment or disadvantage in not being informed before trial as to the particular act alleged as the foundation of the charge. The lack of particularity necessarily in the present case gives rise to the potential for a miscarriage of justice.

128. As Dixon J in Johnson v Miller observed:

“… a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge …” (at 489)

129. Section 257 does not, either by its terms or by necessary intendment, in my opinion, obviate the need for the prosecutor to provide the respondent with particulars of the facts alleged as the foundation of the charge made in particular 1(c)(i). That said, the position remains, namely, that the provisions of s 257 cannot, in my opinion, save or permit a duplicitous information or summons. The provisions of s 257 do not displace the basic rule of common law applicable to criminal pleading, namely, that no count in an indictment (or summons) should charge a defendant as having committed two or more separate offences – as in my opinion has occurred in this case by particulars 1(c)(i), (ii) and (iii).

Conclusion

130. In relation to the questions that have been submitted for determination by this Court pursuant to s 5AE of the Criminal Appeal Act 1912, I have determined, for reasons discussed, that the questions should be answered as follows:

Question 1: Whether the Court erred in finding that the summons filed on 17 April 2014 was bad for duplicity because more than one offence had been charged in the one count of contravention of s 120(1) of the PoEO Act.

Answer:    “No”.

Question 2:Whether, upon its proper construction, s 257 of the PoEO Act obviates the need for the Prosecutor to provide the defendant with the essential details of the particular act, matter or thing alleged as the foundation of the manner of contravention of s 120(1) of the PoEO Act contained in paragraph 1(c)(i) of the Summons.

Answer:   “No”.

131. In relation to any ancillary or consequential matters, including costs, the parties are directed to file and serve written submissions within a period of 28 days from the date of this judgment in accordance with an agreed timetable.

132. GARLING J: I agree with Hall J.

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Decision last updated: 25 June 2015