Environment Protection Authority v Shell Co. of Australia Ltd (No 1)

[1999] NSWLEC 286

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority V Shell Co. of Australia Ltd (No 1) [1999] NSWLEC 286

PARTIES

PROSECUTOR
Environment Protection Authority

DEFENDANT
Shell Co. of Australia Ltd

NUMBER:

50071 of 1997

CORAM:

Bignold J

KEY ISSUES:

Environmental Offences :- Environmental Offences - Negligently cause substance to leak in a manner that harms environment. - whether a "continuing offence", whether bad for "duplicity"

LEGISLATION CITED:

Environmental Offences and Penalties Act 1989 s 6(1)

DATES OF HEARING:

11/01/1999; 11/02/1999; 11/03/1999; 11/04/1999

DATE OF JUDGMENT DELIVERY:

11/04/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D Buchanan SC with Mr D Jordan, Barrister

SOLICITORS
Environment Protection Authority

DEFENDANT
Mr N Hemmings QC with Mr I Hemmings, Barrister

SOLICITORS
Coudert Bros

JUDGMENT:

IN THE LAND AND Matter No . 50071 of 1997

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 4 November 1999

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

v

SHELL CO. OF AUSTRALIA LTD (No 1)

Defendant

JUDGMENT

Bignold J:

1. By its Notice of Motion filed on 27 October 1999, the Defendant, which is charged with an offence against the Environmental Offences and Penalties Act 1989 s 6(1), seeks an order that the summons be dismissed, because the charge of a continuing offence is not within the ambit of s 6(1) of the Act. In the alternative, the Defendant seeks a declaration that the charge is duplicitous, inasmuch as the charge, as particularised discloses a number of separate offences against s 6(1) of the Act. In the event of such a declaration being made, the Defendant seeks an order that the Prosecutor elect which single offence upon which it wishes to proceed and an order for particulars of that single offence.

2. In the alternative, the Defendant seeks an order that the Prosecutor separate the offences and particularise each of them.

3. The charge has been extensively particularised. Those particulars appear in the document prepared by the Defendant and tendered as Exhibit A. I have had regard to those particulars. I have also had regard to the reasons for judgment of Cowdroy AJ delivered on 25 September 1998 in which his Honour dismissed the Defendant’s Notice of Motion seeking further and better particulars. At par 16, his Honour stated:

The Prosecutor, in its particulars, has made it plain that the alleged negligence arises from Shell’s failure to do the things referred to above. With the particulars already provided Shell ought to have no difficulty in comprehending the offence with which it is charged, and how it should plead to such offence, and in obtaining evidence detailing any measures taken in answer to the claim of negligence as particularised.

4. I respectfully agree.

5. According to the amended summons, the Defendant is charged with the offence that

that -

between 1 January 1991 and 15 July 1994 at Cooma in the State of New South Wales it committed an offence against the Environmental Offences and Penalties Act 1989 in that it did, without lawful authority, negligently cause a substance to leak in a manner which was likely to harm the environment.

6. The Prosecutor wholly resists the Defendant’s Notice of Motion. It submits that the Motion should be wholly dismissed.

7. I have been considerably assisted by the comprehensive competing arguments advanced by Senior Counsel for the Defendant and Senior Counsel for the Prosecutor. In deference to those detailed arguments, I shall, in due course, publish in amplified fashion, my reasons for concluding that the Defendant’s Notice of Motion must be dismissed in its entirety. For the present, it may be sufficient if I note my reasons in abbreviated fashion. Generally speaking, I have been persuaded by the arguments presented by Prosecuting Counsel.

8. In particular, I am satisfied that the offence under s 6(1) of the Act charged against the Defendant is capable of giving rise to a continuing offence. That is, the act of “negligently causing any substance to leak in a manner which harms or is likely to harm the environment” obviously comprehends an act or omission ensuing over a period of time including the extended period alleged in the present summons, as particularised. In particular, the verb “to leak” naturally embraces a continuing action.

9. Accordingly, the section is capable of providing for a “continuing offence” as that term is known in the criminal law.

10. An alternative basis to the view that the section relevantly provides for a continuing offence, is that taken by Lord Roskill in Chiltern District Court v. Hodgetts (1983) AllER 1057 namely to eschew reference to the words “continuous” and “continuing” because of the difficulties that they sometimes create in relation to statutory offences and instead to recognise the fact that:

It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time.

11. These conclusions upon the nature of the offence charged, largely determine the Defendant’s alternative claim that the charge is duplicitous. That claim was chiefly based upon the extensive discussion of the principle of duplicity in criminal counts found in the judgment of Kirby J in the recent decision of the High Court of Australia in Walsh v Tatersall (1996) 188 CLR 77. His Honour was in the majority, but the other members of the majority (Gaudron and Gummow JJ) did not deal with the question of duplicity. The minority joint judgments of Dawson and Toohey JJ held that the compendious charge laid in that case had not produced duplicity.

12. However, Kirby J’s judgment expressly recognised exceptions to the duplicity principle, including:
(i.) a charge of a continuing offence; and
(ii.) a charge involving multiple acts involving the same criminal enterprise of activity.

13. In my judgment, the present charge, as particularised, satisfies each of these exceptions to the duplicity principle. Accordingly, the charge does not involve duplicity.

14. For all the foregoing reasons, the Defendant’s Notice of Motion must be dismissed.