Environment Protection Authority v Truegain Pty Ltd [No 2]

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environment Protection Authority v Truegain Pty Ltd [No 2] [2012] NSWLEC 55
Hearing dates:	20/03/2012
Decision date:	20 March 2012
Jurisdiction:	Class 5
Before:	Lloyd AJ
Decision:	Prosecutor must elect as to which of the two particulars it has now identified it wishes to pursue
Catchwords:	CRIMINAL LAW - prosecution - duplicity -- particulars - summons as particularised bad for duplicity
Legislation Cited:	Protection of the Environment Operations Act 1997, s 64(c)
Cases Cited:	Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Byrne v Baker [1964] VR 443 Chugg v Pacific Dunlop Ltd [1988] VR 411 Johnson v Miller (1937) 59 CLR 467
Category:	Separate question
Parties:	Environment Protection Authority (Prosecutor) Truegain Pty Ltd (Defendant)
Representation:	M Higgins (Prosecutor) J Horowitz (Defendant) Patricia Lenehan (Prosecutor) Horowitz & Bilinsky (Defendant)
File Number(s):	50471 of 2011

EX TEMPORE Judgment

1. On 16 March 2012 I upheld the defendant's objections to the summons as then particularised and held that the summons as amplified by the particulars furnished by the prosecutor was bad for duplicity. The prosecutor now states that it relies upon only two of the particulars in the summons, namely:

(c)

(iv) Failing to adequately treat liquid waste at the Premises; and /or

(v) Failing to adequately store liquid waste at the Premises

1. The prosecutor has also furnished the defendant with further particulars of the two failures upon which it now relies.

1. The defendant submits that the two particulars now relied upon by the prosecutor remain bad for duplicity. Moreover, the defendant submits that the particulars now furnished in relation to each failure are themselves bad for duplicity.

1. The prosecutor has this morning explained the processes which occur on the defendant's property to show that both the treatment and storage of liquid waste at the premises forms part of the one activity. What has been described, however, is a continuing process of treatment which includes decanting, pumping and treating liquid waste. The storage of liquid waste, it seems to me, is a separate activity - the liquid is simply stored.

1. A failure to treat adequately and a failure to store adequately gives rise, in my opinion, to separate or discrete omissions each of which, if established, gives rise to an offence.

1. To repeat what I said in my previous judgment, "only one offence can be proved under one charge", as Dixon J said in Johnson v Miller (1937) 59 CLR 467 at 487. Moreover, as Dixon J also said at 489:

... evidence of more than one offence cannot be admitted, and under one charge to take evidence of a number of separate instances of the commission of the same offence ... is to pursue a course contrary to law.

1. In the present case each of the particulars (c)(iv) and (v) in the summons would constitute an offence. The case is indistinguishable from Byrne v Baker [1964] VR 443, Chugg v Pacific Dunlop Ltd [1988] VR 411 and Boral Gas…