McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) - [2002] NSWCCA 24

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [No 2] [2002] NSWCCA 24

FILE NUMBER(S):
60747/01

HEARING DATE(S): 19/02/02

JUDGMENT DATE: 19/02/2002

PARTIES:
McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [No 2]

JUDGMENT OF: Ipp AJA Kirby J Howie J

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S): LEC 50009/99

LOWER COURT JUDICIAL OFFICER: Pearlman J

COUNSEL:
J L Glissan QC/G Newport (Appellant)
D Buchanan SC/J Kelly (Respondent)

SOLICITORS:
Doyles Construction Lawyers (Appellant)
Environment Protection Authority (Respondent)

CATCHWORDS:
CRIMINAL LAW - appeal - summons charged appellant with polluting waters contrary to s 16(1) of the Clean Waters Act 1970 - whether omission of an allegation detailing the act of pollution said to have caused the pollution renders the charge fatally defective - whether curative effect of s 43 of the Land and Environment Court Act 1979 operates - whether act of polluting is a legal element of offence or merely essential factual ingredient - distinction between legal elements and essential factual ingredients - "polluting" of waters is legal element - the particular way appellant polluted waters constitutes factual ingredient - charge in summons alleges all the legal elements of an offence contravening s 16(1) - appeal dismissed.

LEGISLATION CITED:
Environmental Offences and Penalties Act 1989
Clear Waters Act 1970
Land and Environment Court Act 1979

DECISION:
(1) Appeal dismissed (2) The Court affirms the order made by Pearlman J on 20 June 2001 dismissing the appellant's notice of motion filed on 15 June 2001.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60747/01

IPP AJA
KIRBY J
HOWIE J

19 February 2002

McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD v ENVIRONMENT PROTECTION AUTHORITY [NO 2]

Judgment

IPP AJA: On 24 February 1999 the respondent issued a summons charging the appellant with polluting waters contrary to s 16(1) of the Clean WatersAct 1970. The summons alleged:
“On or about 25 February 1998 at Woolloomooloo Bay in the State of New South Wales, [the appellant] committed an offence against the Environmental Offences and PenaltiesAct 1989 in that it did pollute waters contrary to s 16(1) of the Clean Waters Act 1970”.
The appellant sought an order striking out the summons. It contended before Pearlman J, the Chief Judge of the Land and Environment Court, that the summons was defective in several respects. For the purposes of these reasons it is necessary only to refer to the appellant’s argument that the summons was defective in that:
“It fails to set out the acts or omissions of the [appellant] which are alleged to constitute the alleged offence – in simple terms, it fails to disclose what the defendant did which is alleged to be wrong”.
On 20 May 1999 Pearlman J delivered a judgment in which she rejected the appellant’s argument.
By judgment delivered 13 September 2000 (McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No. 1) (2000) 50 NSWLR 127 this Court held that Pearlman J had erred as the summons did not identify an act of polluting which is an essential factual ingredient of the offence.
In so deciding, the Court did not consider the question whether an act of polluting was a legal element of the offence. This was not a question that the court was required to address. Nor did the court consider s 43 of the Land and Environment Court Act 1979. Spigelman CJ observed (at 134):
“The applicability of s 43 of the Land and Environment Court Act is a matter for further consideration in that Court”.
Thereafter, the question of the operation of s 43 arose before Pearlman J when the appellant, by way of notice of motion, sought an order that the summons be struck out as invalid or, alternatively, an order that the proceedings be permanently stayed. The crisp issue before her Honour was whether s 43 operated so as to cure the defect identified by this Court.
Section 43 provides:
“No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, s 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order”.
In the subsequent hearing before Pearlman J, the appellant submitted that the omission to allege an act of polluting on the part of the appellant was fatal as such an act was an essential legal element of the offence alleged and therefore could not be cured by the application of s 43. Pearlman J did not accept this argument. She held that the summons should not be dismissed and the proceedings should not be permanently stayed.
The appellant repeats its contentions before this Court. It seeks an order that the determinations made by Pearlman J on 20 June 2001 be set aside and the proceedings against it be dismissed.
In Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Sperling J (with whom Meagher JA and James J agreed) said at (57):
“Section 43 of the Land andEnvironment Court Act 1979 provides, so far as is material, that no objection shall be taken or allowed to any application (ie the summons) referred to in, or to an order made under s 41, by reason of any alleged defect in it in substance or in form. This is what is known as a Lord Jervis provision. Similar provisions are to be found in the Justices Act 1902, ss 30 and 65.
A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision: Ex parte Price: (1899) 20 LR (NSW) 343. ex parte Bartlett; (1896) 17 LR (NSW) 108. Ex parte Thomas; Re Otzen; (1947) 47 SR (NSW) 261. ex parte Burnett; Re Wicks; [1968] 2 NSWR 11. Boral Gas (NSW) Pty Ltd vMagill (1993) 32 NSWLR 501 per Mahoney JA at 517. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars – such as the time, place, or the manner of the offence – a Lord Jervis provision will operate: John L Pty Ltd; per Brennan J at 529, 531. Stanton v Abernathy; (1990) 19 NSWLR 656 per Gleeson CJ at 667. R v Cassell; (1996) 2 NSWCR 89. R v Duff. (1924) 41 WN (NSW) 23.
The summons in the present case falls within the second category of defective informations. It is saved by s 43.”
The charge in the summons alleged that the appellant “did pollute waters contrary to s 16(1)”. Particulars of the place and kind of pollution alleged were provided in the summons. Accordingly, the question in this appeal is whether the omission of an allegation detailing the act of polluting said to have caused the pollution renders the charge fatally defective so as to preclude the curative effect of s 43.
The answer to that question depends, in turn, on whether the act of polluting is a legal element of the offence or merely an essential factual ingredient thereof. That is because a charge that omits a legal element of the offence is incurable, whereas, by reason of s 43, a charge that lacks an essential factual ingredient of the offence may still be maintained.
The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed. But putting the difference in this way does not necessarily help in the differentiation process.
I think it helpful to note that the purpose of the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. If the charge does not allege an offence known to the law, the court has no jurisdiction and the charge must be struck out.
The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet: Stanton v Abernathy (1990) 19 NSWLR 656. Thus, the legal elements of the one charge may be proved in more than one way – by differing sets of essential factual ingredients.
This case concerns a statutory offence. The elements of a statutory offence must be discerned from the relevant statutory provisions. In the present instance, these are ss 16(1) and (7a) of the Clean Waters Act. Section 16(1) provides:
“A person shall not pollute any waters”.
Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the Environmental Offences andPenalties Act 1989.
Significantly, the term “pollute”, in relation to waters, is defined by the Clean Waters Act (s 5). The definition contains three paragraphs, each of which provides for a different meaning of pollute. Paragraph (a) provides, generally, that pollute means to introduce into waters any matter so that “the physical, chemical or biological condition of the waters is changed”. Paragraph (b) contains a complex definition that broadens the meaning of pollute so that it means (in summary form) to introduce into waters matter which alone or together with other matter makes or is likely to make the waters unclean, etc, detrimental to health of persons, undrinkable to farm animals or is likely to interfere with the enjoyment of rights. Paragraph (c) provides that pollute means to introduce into waters any matter that is of a prescribed nature, description or class that does not comply with a prescribed standard. The latter, in effect, is a deemed polluting.
It follows that there are several ways in which a person may pollute waters, namely, the ways defined in the statutory definition of “pollute. That being so, it seems to me, by the language of the statute, the relevant legal element of the offence is the act of “polluting”, as defined, of waters. The particular way in which the defendant is alleged to have polluted the waters concerned will constitute the essential factual ingredients of the charge.
In Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 Gleeson CJ said at 83 that an offence of contravening s 16(1) requires the prosecution to prove that the defendant performed some act which resulted in waters being polluted (see also Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82). This, I think, is on the basis that the prosecution relies on “pollute” as defined in either one of paras (a) or (b). The need to prove these matters stems from the statutory definition of “pollute”. The existence of the need, however, does not convert these matters into legal elements of the offence. In my view, they are and remain essential factual ingredients of the legal element of “pollute” in the offence of contravening s 16(1).
Accordingly, in my view, the elements of the offence are:
(a)         a polluting;
(b)        by a person;
(c)        of any waters.
The charge alleges these three elements. Therefore, the language of the charge, on its face, describes an offence known to the law, namely, a contravention of s 16(1). The court is thereby vested with jurisdiction to hear the prosecution of that offence.
In a case where the prosecution relies on a polluting that falls within para (a) or para (b) of the definition of pollute, it will have to prove both an act of polluting and the consequence of pollution. Both these matters make up the defined meaning of pollute.
On first principles, therefore, I would hold that the charge in the summons alleges all the legal elements of an offence consisting of a contravention of s 16(1) and I would dismiss the appeal on that basis.
In the appellant’s written submissions it relied on an observation by Spigelman CJ in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 1) (at 134) that:
“Both the polluting and pollution are essential ingredients of the offence under s 16”.
In the appellant’s written submissions it submitted further that “both the pollution and the polluting are essential ingredients required to make out an offence under s16”. The written submissions repeated that “being a result offence there is need to specify the acts and omissions of both pollution and polluting, such particulars being essential legal ingredients of the offence”. In this context, by “essential legal ingredients” the appellant meant legal elements.
I would pause to observe, firstly, that an offence of contravening s 16(1) that is based on polluting in terms of para (c) of the definition of pollute is not a result offence. Whether the offence with which the appellant is charged involves polluting in terms of para (c) or some other form of polluting is not yet known. This can be made clear by the provision of particulars. For the purposes of the issue raised in this appeal it is sufficient that the charge alleges the legal element of polluting. Secondly, I would note that the term “result offence” is merely a convenient description of a category of offences and it does not give rise to special rules of its own.
It is necessary to refer in some detail to the reasons of Spigelman CJ in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 1) so that his remarks, so relied on by the appellant, can be seen in context.
His Honour referred to Taylor v Environment Protection Authoritywhere Sperling J at (134) pointed out that the summons in that case specified the legal elements of the offence but did not specify the acts or omissions by which the defendant was alleged to have committed the offence. The learned Chief Justice then said, “In my opinion, some reference to the conduct, apparently of the defendant’s subcontractor, said to constitute the act of polluting was required in the summons … “ Later Spigelman CJ said “Both the polluting and pollution are essential ingredients of the offence under s 16. The charge in this case referred only to the pollution.”
As Spigelman CJ made clear in his reasons, the fact that the appellant was alleged to be vicariously liable “was not an ingredient of the offence at all”. In my respectful view, it is plain from his Honour’s reasons as a whole that, by the word “ingredient” in this sentence, he meant “legal element”. The learned Chief Justice’s comment that some reference to the conduct of the appellant’s subcontractor (said to constitute the act of polluting) was, nevertheless, required in the summons was therefore an observation that such a reference was needed to explain the manner in which the offence was said to have been committed. The failure to allege the manner of the commission of the offence meant that there was an essential factual ingredient missing from the charge. This conclusion is supported by his Honour’s earlier reference to Sperling J’s remarks (at 134) in Taylor v Environment Protection Authority
As regards the second observation of the Chief Justice relied on by the appellant, it is necessary to note that the charge contained particulars of the pollutants said to have been used and the waters said to have been polluted. Thus, when his Honour said that both the polluting and pollution were essential ingredients of the offence under s 16 and observed that the charge referred only to the pollution, he was referring to the fact that particulars had been given of the pollution but not of the act of polluting. Thus, he was referring again to the essential factual ingredients that were required, not to the legal elements. These conclusions are borne out by the order made by the Court in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 1) to the effect that the summons did not identify an act of polluting which is an essential factual ingredient of the offence.
Accordingly, in my view, McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 1) does not assist the appellant. Indeed the contrary is the case. In my opinion, while the charge in the summons omitted essential factual ingredients from the charge, as was held in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 1), it did not omit any of the essential legal elements.
Accordingly, I would dismiss the appeal.
KIRBY J: I too would dismiss the appeal for reasons given by the presiding judge.
HOWIE J: I also agree.
IPP AJA: The orders of the Court will be:
(1) Appeal dismissed.
(2)The Court affirms the order made by Pearlman J on 20 June 2001 dismissing the appellant’s notice of motion filed on 15 June 2001.

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LAST UPDATED: 22/02/2002