Environment Protection Authority v Riverina (Australia) Pty Ltd
[2014] NSWLEC 190
•05 December 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190 Hearing dates: 1, 3 December 2014 Decision date: 05 December 2014 Jurisdiction: Class 5 Before: Pepper J Decision: Summons bad for duplicity. Prosecutor to elect to avoid the duplicity or summons to be struck out.
Catchwords: ENVIRONMENTAL PROSECUTION: whether summons bad for duplicity with respect to manner of contravention and scope of pollutant as particularised by the prosecution - applicable legal principles - whether, if duplicitous, appropriate remedy strike out or prosecutor to make election - summons duplicitous - prosecutor to elect to avoid the duplicity or summons to be struck out. Legislation Cited: Protection of the Environment Operations Act 1997, ss 120, 257
Protection of the Environment Operations (General) Regulation 2009, Sch 5Cases Cited: Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
Chapman v R [2013] NSWCCA 91; (2013) 232 A Crim R 500
Coco v R [1994] HCA 15; (1994) 179 CLR 427
CSR Ltd (t/as CSR Woodpanels) 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 Brazel [2002] NSWLEC 7; (2002) 119 LGERA 72
Environment Protection Authority v Brazel (No 2) [2002] NSWLEC 26
Environment Protection Authority v Snowy Mountains Engineering Corp Pty Ltd (1994) 83 LGERA 51
Environment Protection Authority v Truegain Pty Ltd [2012] NSWLEC 41; (2012) 186 LGERA 412
Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125
Hamzy v R (1994) 74 A Crim R 341
Hedberg v Wodhal [1913] HCA 2; (1913) 15 CLR 531
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367; (2000) 50 NSWLR 127
Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) [2005] NSWLEC 241; (2005) 141 LGERA 133
Pace Egg Farm Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
S v R [1989] HCA 66; (1989) 168 CLR 266
Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77Category: Interlocutory applications Parties: Environment Protection Authority (Prosecutor)
Riverina (Australia) Pty Limited (Defendant)Representation: Ms M England (Prosecutor)
Mr C Ireland (Defendant)
Office of Environment and Heritage (Prosecutor)
McCullough Robertson Lawyers (Defendant)
File Number(s):
Ex Tempore Judgment
Riverina Contends That the Summons Bad for Duplicity
The defendant in this environmental prosecution, Riverina (Australia) Pty Ltd ("Riverina"), by oral application made on the first day of a two week hearing, seeks to set aside the summons filed 17 April 2014, on the grounds that it is duplicitous or uncertain in relation to two separate aspects: first, in its definition of the "pollutant"; and second, in its specification of the manner of the pollution of waters.
Although Riverina argued that the summons was bad because it was both duplicitous and uncertain, in my view, nothing turns on the distinction for present purposes and it is more apt to conceive of Riverina's complaint as one of both patent duplicity and/or latent ambiguity.
The application is opposed by the prosecutor, the Environment Protection Authority ("the EPA").
In my opinion, the summons is duplicitous insofar as the particulars to the "manner of contravention" contemplate a second and separate offence within the one charge, especially when those particulars are read together with the expansive description of "the pollutant" contained in the summons. The prosecution must therefore either elect to amend in order to remove the embarrassment, or the summons must be struck out.
The Application Should Have Been Brought Earlier
It is a matter of considerable consternation that the application has come before the Court in the manner it has, that is to say, on the first day of a two week trial. No mention whatsoever of the application was made in the pre-trial conference before me as trial judge, attended by both parties, on 19 November 2014. Had it been foreshadowed on that occasion, the Court would have immediately taken steps to have the application heard and determine separately, prior to the commencement of the two week hearing (see, for example, Environment Protection Authority v Truegain Pty Ltd [2012] NSWLEC 41; (2012) 186 LGERA 412 at [4]).
This is because applications of this nature are typically complex, requiring detailed submissions by the parties and considered deliberation by the Court. The present application is no exception, having occupied two days of argument. As a consequence, most of the first week of the two week trial has been occupied by resolution of the duplicity issue, and in the result, the hearing is unlikely to conclude within the time allocated, thereby requiring adjournment until 2015.
Although the EPA complained both orally and in its written submissions that it was not given adequate warning of the application, as early as August 2014 the EPA was put on notice of Riverina's concerns with respect to the summons and told that the matter would be agitated at the hearing. Insofar as the EPA submitted that it did not know with certainty whether or not an application would be made, it could proffer no reason to the Court as to why it failed to seek clarification from Riverina on this issue. To complain of surprise in these circumstances cannot be justified.
Having said this, in my view, Riverina, as the moving party, should have, in order to facilitate the proper and efficient utilisation of Court resources, formally brought the application before the Court earlier than it did. There was nothing whatsoever preventing it from doing so.
Although it was suggested by counsel for Riverina, Mr Clifford Ireland, that the application could be made during closing submissions and dealt with by the Court in its final judgment, such an approach is unsuitable for several reasons. First, it is the summons that grounds the Court's jurisdiction to hear and determine prosecutions for environmental offences in Class 5 of its jurisdiction. If the summons is bad for duplicity it is amenable to be set aside, in which case the Court has no jurisdiction to hear the matter. Second, this would result in a gross misallocation of the parties', and the Court's, resources to proceed to hear a two week criminal matter, with its attendant lay and expert witnesses and concomitant legal costs, only for the summons to be struck out, and with it the prosecution. Third, even if the ultimate relief granted is not to dismiss the charge but to put the prosecutor to an election to remedy the duplicity, because the scope of the summons has a direct correlation to the conduct of the trial, in particular, in respect of the evidence to be adduced, arguments concerning duplicity should be determined in advance of the hearing.
Riverina is Charged with the Offence of Water Pollution
Riverina is charged with an offence under s 120(1) of the Protection of the Environment Operations Act 1997 ("the POEOA"), in that it polluted waters "on or about 22 April 2013".
Section 120 of the POEOA creates an offence of strict liability of pollution of waters:
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.
Section 257 of the POEOA, contained in Pt 8.5 which concerns "Evidentiary provisions", deems an occupier premises to have caused pollution emanating from those premises in the following way:
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.
The term "water pollution" is broadly defined in 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.
The "matter[s]" prescribed for the purpose of paragraph (c) immediately above are set out in paragraphs (a) through to (x) of Sch 5 to the Protection of theEnvironment Operations (General) Regulation 2009 ("the Regulations"). It is not necessary to repeat that prescription here, save to note that it is expansive.
For present purposes, the elements of an offence against s 120 of the POEOA may be identified as (McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367; (2000) 50 NSWLR 127 at [46]-[55]):
(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.
Section 120 has been described as a "result offence" whereby the consequence of the pollution of waters is a necessary element of the offence (Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83 per Gleeson CJ and Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 81-83 per Hunt ChJ at CL). The significance of this description in the context of this application is discussed below.
The Charge as Particularised
The offence was particularised with respect to the "waters" specified to be polluted, the "pollutant" introduced or placed into those waters, and by the "manner of contravention" of s 120 of the POEOA, in paragraph 1 of the summons.
The "waters" were stated in the summons to be:
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.
The "pollutant" was described in the summons as (emphasis added):
b. Pollutant
Matter comprising or containing:
(i)Animal and vegetable fats and oils, and/or
(ii)Aluminium, barium, calcium, chromium, cobalt, cooper, 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.
These particulars were largely drawn from the prescribed matters listed in Sch 5 of the Regulations referred to above (see, for example, the matters at (k), (l) and (o) and part of (v) of that Schedule).
From these particulars it is readily apparent that any one of the matters listed in the summons, or a combination or permutation of those matters, constituted the pollutant the subject of the charge.
Critically in relation to this application, the "manner of contravention" was particularised in the summons to be (emphasis added):
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 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.
By reason of the use of the disjunctive and conjunctive "and/or", the particulars appeared to posit multiple methods of contravention of s 120 of the POEOA.
This was confirmed on 2 June 2014 (in answer to a letter dated 15 May 2014 requesting further particulars of the charge), by the Office of Environment & Heritage ("the OEH") who, on behalf of the EPA, wrote to McCullough Robertson Lawyers, the legal representatives of Riverina, in the following terms:
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 that 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.How and in what manner does the prosecutor allege that the defendant placed the Pollutant in those position/s?
This is a matter for evidence, noting the particulars supplied.
5.Does the prosecutor allege as part of the charged offence/s that the Pollutant in fact washed into the Waters as a result of the defendant placing the Pollutant in those drain/s or in those position/s?
The Pollutant was washed into the drain running along the western side of Reynolds Road, Casino and the drainage channel running through the property known as "San Marla" immediately to the east of Reynolds Road, Casino. It is not alleged that the Pollutant was in fact washed into the wetlands or downstream thereof.
6.What 'Matter' identified on the Premises on or around 22 April 2013 does the prosecutor allege comprised or contained the substances identified as the 'Pollutant' in the Summons? Paragraph 1(b) as presently worded provides the defendant with no proper indication as to what substance is the subject of the alleged offence/s.
The Summons is adequately particularised and the Prosecutor is not required to provide any further information in this regard.
The 2 June 2014 particulars clarified the manner of the alleged contravention by stating that there were two possible methods by which s 120 of the Act was transgressed: either because Riverina was the occupier of premises where the pollution occurred, and therefore, it caused the pollution in its capacity as occupier; and/or, because pollutant was placed in the liquid raw material bund ("the bund") and the drain or drains into which that drain (that is to say, presumably the drain in the bund) flowed.
It is because two methods of contravention giving rise to the single offence as charged have been nominated in the particulars, especially when read with the broad description of the "pollutant" in the summons, that Riverina contends that it is bad for duplicity.
Riverina Produces Stock Feed
At this juncture, however, it is convenient to provide some factual background to the charge. In this regard, a statement of agreed facts was tendered for the purpose of the application.
Relevantly, Riverina operates a stock feed manufacturing mill at its premises near Casino. It 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 grazing cattle, owned and used by Northern Co-operative Meat Company ("NCMC"). NCMC also holds an environmental protection licence allowing it to irrigate effluent onto its land.
Reynolds Road runs in a north/south direction. Riverina's premises are located to the west of that road. A dish drain runs alongside the western side the road. At the time, the dish drain was vegetated. At a point north of Riverina's 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 into the NCMC property.
Liquid raw material used in the manufacture of stock feed comprises poultry oil, molasses, vegetable oil and a commercial product called "Alimet". Poultry oil is fat obtained by chicken rendering and processing. Molasses is obtained from the juice of sugar cane. Alimet is a feed supplement.
The liquid raw material is stored in four tanks. The four tanks sit within the bund. If liquid raw material leaks or spills from the tanks, or escapes during the loading or unloading of the tanks, it is contained within that bund.
The stock feed manufacturing process is as follows. The liquid and solid raw materials are blended and turned into small pellets which are the finished product. The pellets are stored in a silo before being loaded onto trucks and transported from the premises. A boiler is used for heating and to power some of the operations of the mill. Potable water is fed into the boiler and water softener and scale inhibitor is added to it.
The mill has no connection the sewerage system. Liquid waste must therefore be collected and disposed of by liquid waste transporters. Riverina has a storm water 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 Riverina's premises.
As a result of reports received by the Richmond Valley Council ("the council") on 22 April 2013, council officers and officers from the EPA drove to Riverina's premises, inspected the site, and took a number of photographs.
Another inspection by the EPA occurred on 26 April 2013, whereupon council inspectors took a number of samples including downstream of the culvert and from the dish drain. Samples were also taken from a number of stormwater discharge pipes around Riverina's premises
Further inspections by the EPA were conducted on 21 May, 13 August and 9 September 2013, and on 17 April 2014 Riverina was charged with the offence of water pollution under s 120(1) of the POEOA.
Applicable Legal Principles Concerning Duplicity
The applicable legal principles in determining whether or not a summons is bad for duplicity are, as the EPA correctly observed, beguilingly simplistic in their articulation but often belie difficult application. The principles were recently summarised by the Court of Criminal Appeal in Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 per Leeming JA (at [31]-[52]) and are as follows:
(a) the rule against duplicity prohibits a single count in an indictment (in this Court, a summons) charging a person with the commission of more than one offence (Truegain at [31], [34]; Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 104 and Chapman v R [2013] NSWCCA 91; (2013) 232 A Crim R 500 at [19] per Adamson J);
(b) the rule is one of fairness to a defendant (S v R [1989] HCA 66; (1989) 168 CLR 266 at 285). The object or purpose of the rule against duplicity is that there should be no uncertainty as to the offence charged (Chapman at [19] and Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 487 per Dixon J). The rule has been described as "an essential part of the concept of justice in criminal cases" and as one of the "fundamental rights" of an accused (Miller at 497-498 per Evatt J quoted in Truegain at [44]-[45] per Leeming JA);
(c) an indictment (or summons) is patently bad for duplicity where it is apparent on its face that more than one offence has been charged in the one count (Miller at 487 per Dixon J and Hamzy v R (1994) 74 A Crim R 341 at 343-344);
(d) alternatively, there may be latent duplicity (or latent ambiguity or uncertainty) where the duplicity is not apparent on the face of the charge but arises from the manner in which the prosecution presents its case (Miller at 486 per Dixon J and S v R at 274);
(e) where the acts form part of the same transaction or criminal enterprise, these may be charged in a single count (Truegain at [48] and Tattersall at 107 per Kirby J). In this regard the Court examines whether the criminal acts occurred in close temporal and physical proximity in order to be susceptible to treatment as a single count (Tattersall at 107);
(f) the question of whether a statute attaches criminality to an ongoing criminal enterprise, as opposed to a particular act, is one of construction (Truegain at [51]-[52]);
(g) if a Court concludes that a charge is duplicitous, in the first instance the Court should require the prosecutor to amend the charge to cure the defect where the defect is one of patent duplicity, or if it can be cured (Hedberg v Wodhal [1913] HCA 2; (1913) 15 CLR 531 at 536; Tattersall at 110 per Kirby J and Truegain at [13] per Lloyd AJ); and
(h) a strict approach to resolving questions of duplicity has generally been adopted by the Courts (Tattersall at 110 and Truegain at [14] per Lloyd AJ). But matters of fact and degree are apt to arise in the application of the principles (Truegain at [72] per Leeming JA).
In the present case it is not contended by the EPA that a course of criminal activity was engaged in by Riverina or that its acts constituted a criminal enterprise.
A fundamental adjunct to the principles summarised above, is the right of a defendant to be told of the essential factual elements of the act, matter or thing said to constitute the offence, including the time, manner and location of the asserted contravention of the law (Miller at 489 per Dixon J and 501 per McTiernan J, John L Pty Ltd v Attorney-General(NSW) [1987] HCA 42; (1987) 163 CLR 508 at 520-521 per Mason CJ, Deane and Dawson JJ and Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [26]).
In other words, it is not enough to restate the words of the statute creating the offence, the essential factual ingredients upon which the prosecutor relies to establish its criminal responsibility must be disclosed to the defendant. In Kirk the High Court emphatically stated that (at [26]):
26 The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged".
Is the Manner of Contravention Duplicitous?
It is convenient to deal with the second manner in which Riverina submits that the summons is bad for duplicity, first. It was with this aspect of the summons upon which the debate primarily centred, and to the extent that there is any impermissible latent ambiguity in the manner in which the "pollutant" is particularised, it is, in my opinion, squarely informed by the alleged duplicity in the manner of contravention described in the summons. This latter point is elaborated upon below.
Having regard to the charge as particularised in the summons and the further particulars furnished on 2 June 2014, it is tolerably clear that the EPA alleges that the offence occurred in one or both of two ways:
(a) first, as Riverina was the occupier of the premises at or from which pollution (not particularised other than "the pollutant") occurred, it caused the pollution; and/or
(b) second, Riverina placed a pollutant (particularised) into the drain leading from the bund and the drain or drains into which that drain flowed.
Riverina therefore submits that the summons is duplicitous in that it alleges both a particular manner of contravention by a particular act and set of factual circumstances as set out in OEH's letter dated 2 June 2014, and at the same time, and in the alternative, by the EPA seeking to rely on s 257 of the POEOA as a covering class of undefined events resulting in the pollution of waters by the introduction of the "pollutant" (as expansively particularised) into the specified "waters".
Put another way, 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).
The EPA's evidence (read by Riverina for the purpose of the application) purports to deal with all of the factual contingencies referred to above (see, for example, the affidavit of Mr Geff Cramb, affirmed 14 April 2014, at paragraphs 40-41, 56, 66 and 72-81. And similarly, the affidavit of Mr Ian Greenbank, sworn 25 June 2014, which refers to both the overland flow and flow through drainage pipe 2 to the east, in addition to flow to the west: at paragraphs 35 and 36). 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.
Is There Additional Latent Duplicity in the Particularisation of the "Pollutant"?
Riverina also asserted that there was an inherent vice in the definition of "pollutant" in the summons in the use of the disjunctive "or" linking every one of the particularised substances. It contended that this drafting device deprived the definition of "pollutant" of all real meaning and made the charge operate unfairly upon it. This is because the pollutant could be 25 or 26 separate items or materials, comprising both mineral and vegetable substances, or it could be thousands of items, if each polluting matter was present in combination with another. Given that Riverina operates an industrial facility, uses a large number of different ingredients for its pelletised stock feed products (which have different compositions depending on their intended market, for example, for cattle, poultry, pigs or sheep), and that there are other industrial operations operating in close proximity, including immediately across Reynolds Road (for example, NCMC), each of which use a variety of similar substances in their commercial activities, Riverina was entitled to know with precision what the actual pollutant the subject of the charge was.
Riverina relied on an exhibit to the affidavit of Mr Cramb (referred to above) to demonstrate that the various pellets manufactured at different locations on its premises contained, from time to time, vegetable oil, mineral premix (containing various minerals and elements), molasses, poultry oil and tallow. In addition, the substances utilised by Riverina in its manufacturing processes were stored in different locations and were deployed in different ways across its premises. For example, some of the substances particularised in the description of "pollutant" in the summons were used as additives in pellet manufacture only in the main shed and were not employed or stored anywhere near the bund. Whereas other ingredients, such as molasses, vegetable and poultry oil, were stored in the bund area.
In short, in order to properly defend the charge, Riverina submitted that it was entitled to know what the specific pollutant was that was alleged to have escaped from its premises into the relevant "waters". Absent this information, the summons suffered from latent duplicity.
The Summons is Bad for Duplicity
According to the EPA, no duplicity, patent or latent, arises in the summons with respect either to the particularisation of the term "pollutant", or the "manner of contravention" of s 120 of the POEOA.
In respect of the stated "pollutant", the EPA submitted that the summons was not bad because s 120 was a result based offence and the result was the fact of the pollution of waters, as that term was extensively defined both in the POEOA and Sch 5 of the Regulations. It was therefore not verboten to particularise the "pollutant" in the summons in similarly broad terms as that contained in the legislation, because to do so did not result in a separate offence. Riverina was only charged with a single unlawful act in the summons, namely, of the pollution of water with a pollutant that comprised any or all of the matters stated therein. 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; (2002) 119 LGERA 72 at [43]).
Were it not for the difficulties manifest in the "manner of contravention" particularised in the summons discussed above, this submission would be, in my opinion, correct. Although Riverina is entitled to know the "particular act, matter or thing alleged as the foundation of the charge" (Miller at 489 per Dixon J), the "pollutant", albeit broadly particularised, is known to it: it is one or more of the matters specified in the summons that was placed in a drain leading from the bund.
The problem emerges, however, when the broad description ascribed to the "pollutant" is read in the context of, and in conjunction with, the summons as a whole, and in particular, the two-fold manner of contravention of s 120 referred to above. It is to this matter which I now turn.
In respect of the allegation of patent duplicity concerning the manner of contravention stated in the summons, the EPA submitted that particular 1(c)(i) merely proscribed another basis of legal liability grounding Riverina's breach of s 120 of the POEOA pursuant to s 257 of that Act, which was not duplicitous. This is because s 257 obviates the need for the EPA to prove "how and who caused it [the "pollutant"] to escape" (Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) [2005] NSWLEC 241; (2005) 141 LGERA 133 at [89] per Pain J), and therefore the need to particularise these factual elements. Hence if the EPA could not prove to the criminal standard the more particular unlawful act specified in 1(c)(ii) and (iii), it could rely on the deeming provision in s 257 to merely prove, without more, that a polluting act occurred at or from Riverina's premises.
The submission must be rejected for a number of reasons. First, the EPA's reliance on s 257 of the POEOA in this way is, in my opinion, misconceived. That provision does not, by its language, abrogate a prosecutor's obligation to disclose the "particular act, matter or thing alleged as the foundation of the charge". Without further particularisation, however, this is the logical corollary of the EPA's argument.
Such a result cannot be justified having regard to either the text or the context of s 257. 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 has been charged, but also the basal factual elements of the offence, it may be presumed that had Parliament intended by the enactment of s 257 of the POEOA to circumscribe this right in the manner in which the EPA contends, it would have done so by express statutory language or necessary intendment, neither of which are present (Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304, Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [30]).
Section 257 of the POEOA is no more than a device attributing the criminal liability of third parties to occupiers of premises. Its purpose is to ensure that defendants do not escape liability under the Act for the pollution caused by, for example, contractors, sub-contractors, agents or licensees. It is a provision directed at the identity of the offender (or 'the person' for the purposes of the elements of s 120 of the Act) and deems, in certain circumstances, that person to be vicariously liable for the unlawful acts of others by reason of the occupation of the premises at or from which pollution occurs. A prosecutor must nevertheless prove, and therefore particularise, the act of pollution, the polluting matter, and the pollution being received or likely to be received into specified waters.
Second, to the extent that it was submitted that Pain J in Pace Farm suggested anything to the contrary (at [89]), this is a misreading of her Honour's remarks, which in any event, do not comprehend any part of the ratio decidendi of that decision.
In that case, her Honour made the observation in the following context (at [3], [4], [80] and [87]-[90], emphasis added):
3 The place of the offence is particularised as the property owned and occupied by the defendant at 23 Warabrook Boulevard, Warabrook ("the site"). The summons alleges that the pollutant consists of "poultry egg waste, caustic and chlorinated cleaning solution and rinse water and in particular, sterols, cholesterol, carboxylic acids, filtered sodium, chloride, oil and grease and coliforms" ("egg waste"). The waters are identified as Warabrook Lagoon (Upper Pond) within the Warabrook Wetland Reserve (Warabrook Lagoon).
4 The manner of the breach is particularised as the placement of the pollutant:
in a position where it was likely to and did fall, descend and be washed into the waters, into a drain designed to receive or pass rainwater, floodwater or other non-polluted waters. The pollutant was introduced into the said waters by passing though the pipes and pits within the Defendant's land and through the public stormwater drainage pipe and pit system to discharge into the Warabrook Lagoon (Upper Pond) at the Warabrook Wetland Reserve.
...
80 I consider the Prosecutor has not established beyond reasonable doubt that the pollutant in Warabrook Lagoon did come from the defendant's premises as a result of the leak from the black tank before 10 am. The intermediate facts necessary to prove the Prosecutor's case have not been made out. The facts as proven in (i) (there was a leak), (iii) (direct link between the premises and Warabrook Lagoon), (iv) (high correlation between the pollutant and egg waste), (v) (water quality was affected) and (vi) (odour detected) at [66] above do not preclude hypotheses inconsistent with guilt.
...
87 To make out its case the Prosecutor does have the benefit of the statutory presumption in relation to evidence, that the occupier is taken to have caused the pollution as provided in s 257 of the POEO Act. Section 257 essentially provides a defence available to a defendant which can be relied on to overcome the presumption. I do not consider that it is necessary for the Prosecutor to particularise s 257 given that it is in the POEO Act and a matter about which the Defendant can be assumed to be aware. Section 257 does not overcome the necessity for the Prosecutor to prove its case that pollutant did fall or descend into Warabrook Lagoon beyond reasonable doubt, however.
88 It is useful to consider the facts of Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51. In that case, it was alleged that the defendant was the occupier of premises when a large quantity of heating oil escaped into the stormwater system polluting waters in contravention of s 16 of the Clean Waters Act 1970, the equivalent provision of s 120 in the POEO Act. Talbot J was satisfied beyond reasonable doubt that a large quantity of heating oil had escaped from a point on the defendant's premises through the stormwater drain into the waters. On the evidence, however, Talbot J considered that it was not possible to determine the actual cause of the spill and whether it was the actions of the defendant or the defendant's independent contractor which were responsible for the spill. His Honour held accordingly that he was unable to establish beyond reasonable doubt whose actions caused the pollution. As he could not draw any inference as to the cause of the pollution, the offence had not been proved beyond reasonable doubt. Snowy Mountains Engineering Corporation was decided when the Clean Waters Act 1970 had no equivalent provision to s 257 of the POEO Act so that there was no statutory presumption that the occupier was liable for pollution escaping from its premises unless the statutory defence could be relied on.
89. In Snowy Mountains Engineering Corporation it was proved that the pollutant had escaped from the premises. What was unclear was how and who caused it to escape. I consider s 257 of the POEO Act would overcome the need to prove these matters in circumstances where the Prosecutor has proven beyond reasonable doubt that the pollutant had escaped from the premises into the specified "waters".
90. In this case, I have already found that the Prosecutor has failed to satisfy the onus of proving beyond reasonable doubt that egg waste from the black tank fell, descended or washed into Warabrook Lagoon. I also consider that it has not been proved that egg waste fell, descended or washed into Warabrook Lagoon from the actions of Mr Fitzpatrick. In these circumstances s 257 of the POEO Act does not assist the Prosecutor's case.
As is evident from the quote above, in Pace Farm the 'when', the 'where' and the 'how' of the alleged breach was particularised the prosecutor. The prosecutor failed to secure a conviction because it could not prove beyond reasonable doubt that the pollutant (the egg waste) found in Warabrook Lagoon came from the defendant's premises in the manner alleged (ie from a leak in the black tank) - or in other words, the 'how'. It was for this reason that s 257 could not assist the prosecutor.
I do not understand her Honour's remarks (at [89]) to mean that s 257 obviates the obligation of a prosecutor from disclosing details about how the pollution occurred. It could not (see Pace Egg Farm Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260 at [34]-[38] per Handley JA). Rather, Pain J appeared to be stating no more than that in the circumstances of the decision in Environment Protection Authority v Snowy Mountains Engineering Corp Pty Ltd (1994) 83 LGERA 51, s 257 would have been available to attribute the actions of the defendant's contractor to the defendant absent any need to demonstrate "whose actions caused the pollution" (at [88]). In Snowy, Talbot J had already found, where, if not how, the heating oil had escaped, namely, "from a point on the defendant's premises through the stormwater drain into the waters" (at [88]).
Moreover, to construe Pain J's observations in this way would be inconsistent with earlier remarks made by her Honour in the judgment that s 257 "does not overcome the necessity for the Prosecutor to prove its case" (at [87]). And it would also be inconsistent with the latter half of the sentence upon which the EPA relies, viz (at [89], emphasis added):
I consider s 257 of the POEO Act would overcome the need to prove these matters in circumstances where the Prosecutor has proven beyond reasonable doubt that the pollutant had escaped the premises into the specified "waters".
Put another way, where the prosecutor has not proven to the requisite standard that the pollutant has in fact escaped from the premises, s 257 of the POEOA will be of no assistance.
In the present case, no details are given for the purpose of particular 1(c)(i) of either when (other than sometime on 22 April 2013), from where, or how the pollutant escaped Riverina's premises. In such circumstances, 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. Were it otherwise, the word "from" in s 257 would be rendered otiose.
Third, 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. Again, it is unlikely that this was the objective intention of the legislature in drafting the provision.
It was no answer to say, as the EPA did, that because this is 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 as the occupier of those premises. 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.
An analogy may be drawn from the facts and the result in Miller. Relevantly in that case, the legislation provided that "any licensee out of whose premises any person is seen coming during any Sunday except during certain specified hours shall be guilty of an offence" unless certain specified exemptions could be proven to exist (at 472). On one view, this is no less a result based offence than that created by s 120 of the POEOA. The appellant was charged with an offence under the legislation. The following particulars were given by the complainant, namely, that "a certain person" whose name was unknown to the police was seen coming out of the premises in question at a time between 9am and 10.45am on 29 November 1936. However, 30 men were seen to have emerged from the premises during this period. Accordingly, at the trial, the appellant requested particulars to identify which of the 30 men was the actual subject of the complaint. The complainant refused to provide them and the complaint was dismissed on the grounds that it was defective in substance. The dismissal was upheld on appeal.
Just as the appellant in Miller was entitled to know the identity of the man claimed to be seen leaving the hotel that upon his departure resulted in the commission of the offence, likewise here Riverina is entitled to be apprised of, as a matter of fairness, the location and method by which the pollutant is said to have entered the specified waters with respect to the manner of contravention alleged in particular 1(c)(i).
It was also no answer to say, as the EPA did, that the particulars of the "waters", when read in combination with the particulars provided for "pollutant" and particular 1(c)(i) of "the manner of contravention", are sufficient to avoid any duplicity. While it is true that the "waters" refers only to the drains located to the west and to the east of the property, this is still not adequate; it does not afford Riverina with the requisite details of where the polluting act took place, when it took place (other than on 22 April 2013, however, more than one act of pollution could have occurred on that day), or how it took place.
When regard is had to the extensive description of the "pollutant" in the summons, and the evidence of Mr Cramb and Mr Greenback, it is conceivable, if not likely, that the manner of contravention envisaged by the EPA in 1(c)(i) is as a consequence of a separate act of pollution to that alleged at the bund, occurring at another location on the premises, and at a different time on 22 April 2013. It must be recalled in this regard that the EPA has disavowed any reliance on any criminal enterprise by Riverina, and moreover, that the evidence demonstrates that some of the matters said to comprise the "pollutant" were stored and used at different locations on Riverina's premises.
As framed, the summons does more than permissibly state alternative or cumulative allegations in respect of the result (Brazel (No 2) at [7] and CSR Ltd (t/as CSR Woodpanels) v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334 at [34]). To the contrary, having regard to the particulars as confirmed in the letter dated 2 June 2014, the summons alleges wholly separate and discrete acts in respect of the pollution of the specified waters.
The summons in the present proceedings may be contrasted with that in Brazel (No 2) where a single act of placing pesticide into holes drilled into a cement floor (where it fell into the street gutter and ultimately made its way to the creek) was alleged to give rise to actual or likely pollution within the one count. An argument that the summons was duplicitous was, with great respect, properly rejected by Talbot J. In Brazel (No 2) there was one act of contravention of s 120 of the POEOA, but with the occurrence of two consequences: one certain and one likely. This was not duplicitous. But in the present case, there are two acts of contravention particularised, with the occurrence of two certain consequences.
Similarly in CSR, it was held that there was one offence that penalised one unlawful act (negligently causing a substance to leak which caused actual or likely harm to the environment) which possessed one or both of the two unlawful characteristics (at [33]-[35] per Smart AJ). Again, this may be contrasted with the present summons, where there are two potential unlawful acts possessing the same but separate unlawful characteristics on separate occasions.
For all these reasons, in my opinion, the summons is bad for duplicity. It is either patently duplicitous insofar as it plainly alleges two separate contraventions of s 120, or it is latently ambiguous insofar as it fails to provide the essential matters of fact giving rise to the criminal liability with which Riverina has been charged, or it is both.
Appropriate Remedy
I have found that the summons as amplified by the particulars, specifically particular 1(c)(i) and especially when read together with the description of the "pollutant", is bad for duplicity. However, as has been noted in other authorities (Tattersall at 110 per Kirby J and Truegain at [13] per Lloyd AJ), this finding does not oblige the Court to dismiss the summons in its entirety. In my view, the charge is not incurable.
The proper course, therefore, is to put the EPA to election to remove the duplicity. This may be effected in at least three ways:
(a) first, it can amend the summons to delete particular 1(c)(i) of the "manner of contravention";
(b) second, it can retain and provide proper particulars of particular 1(c)(i) in conformity with the reasons provided above; or
(c) third, it can remove the disjunctive "or" between particulars 1(c)(i) and 1(c) (ii) and (iii).
Provided this is done, it will not be necessary, consistent with the discussion above, to refine the particulars to the "pollutant". As I have earlier determined, these particulars are not of themselves embarrassing, it is only when they are read in conjunction with particular 1(c)(i) of the "manner of contravention" that they become troublesome.
Conclusion
The EPA is therefore directed to elect which of the matters alleged in the particulars of the "manner of contravention" in the summons it proposes to pursue.
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Decision last updated: 08 December 2014
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