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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCCA 24
Decision Date: 19 February 2002

CaseChat Overview and Summary

McConnell Dowell Constructors (Aust) Pty Ltd appealed against a decision of the Land and Environment Court, which had quashed a conviction and dismissed the summons against it for contravening section 16(1) of the Clean Waters Act 1970. The summons had charged the appellant with polluting waters, but did not detail the act of pollution said to have caused the pollution. The appellant argued that the omission of the allegation detailing the act of pollution rendered the charge fatally defective. The Environment Protection Authority argued that the curative effect of section 43 of the Land and Environment Court Act 1979 operated to render the charge sufficient, or alternatively, that the act of polluting was a legal element of the offence or merely an essential factual ingredient.

The court had to determine whether the omission of an allegation detailing the act of pollution rendered the charge fatally defective, and whether the curative effect of section 43 of the Land and Environment Court Act 1979 operated. The court also had to decide whether the act of polluting was a legal element of the offence or merely an essential factual ingredient, and whether there was a distinction between legal elements and essential factual ingredients in this context. The court held that "polluting" of waters is a legal element of the offence, while the particular way the waters were polluted constitutes a factual ingredient. The charge in the summons alleged all the legal elements of an offence contravening section 16(1), and the curative effect of section 43 operated to render the charge sufficient.

The appeal was dismissed, and the conviction and penalty imposed by the Primary Judge were restored. The court held that the omission of an allegation detailing the act of pollution did not render the charge fatally defective, as the curative effect of section 43 of the Land and Environment Court Act 1979 operated to render the charge sufficient. The court also held that "polluting" of waters is a legal element of the offence, while the particular way the waters were polluted constitutes a factual ingredient. The charge in the summons alleged all the legal elements of an offence contravening section 16(1), and the curative effect of section 43 operated to render the charge sufficient. The court further held that the distinction between legal elements and essential factual ingredients was relevant in this context, and that the omission of an allegation detailing the act of pollution did not affect the sufficiency of the charge.

Orders