Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd

[2019] NSWLEC 48

Land and Environment Court

New South Wales

Medium Neutral Citation:	Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2019] NSWLEC 48
Hearing dates:	14 March 2019
Date of orders:	12 April 2019
Decision date:	12 April 2019
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [62]
Catchwords:	PRACTICE AND PROCEDURE – criminal proceedings commenced alleging breaches of conditions of development consent – motions by defendant seeking striking out of amended summonses – whether amended summonses duplicitous – summonses duplicitous
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 16, 20, 21 Environmental Planning and Assessment Act 1979 (NSW) ss 125, 76A Land and Environment Court Act 1979 (NSW) s 68 Protection of the Environment Operations Act 1997 (NSW) s 64
Cases Cited:	Bentley (for National Parks & Wildlife Service) v Gordon; Bentley (for National Parks & Wildlife Service) v B.G.P. Properties Pty Ltd [2005] NSWCCA 157; (2005) 139 LGERA 449 Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; (2015) 209 LGERA 280 Einfeld v The Queen [2010] NSWCCA 87; (2010) 200 A Crim R 1 Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 Environmental Protection Authority v AGL Upstream Investments Pty Ltd [2018] NSWLEC 32; (2018) 229 LGERA 314 Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376; (2006) 149 LGERA 415 Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 R v Darko Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Category:	Procedural and other rulings
Parties:	Secretary, Department of Planning and Environment (Prosecutor) Sell & Parker Pty Ltd (Defendant)
Representation:	Counsel: A Rose (Prosecutor) T G Howard SC with J Johnson (Defendant)   Solicitors: Department of Planning and Environment (Prosecutor) Allens (Defendant)
File Number(s):	2018/00242442; 2018/00242443
Publication restriction:	Nil

Judgment

1. By way of two summonses brought by the Secretary, Department of Planning and Environment (‘prosecutor’), Sell & Parker Pty Ltd (ACN 000 101 315) (‘Sell & Parker’) is charged with offences under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) in relation to carrying out development between 26 May 2016 and 31 December 2016 (‘first charge period’) and 1 January 2017 and 22 October 2017 (‘second charge period’) on land otherwise than in accordance with a development consent, contrary to s 76A(1)(b) of the EPA Act (as the provisions were at the material times).

2. On 4 February 2019, Sell & Parker filed a notice of motion in each matter seeking orders “that the Amended Summons be struck out and the proceedings be dismissed”, and an order for costs.

3. For the reasons below, I find that the present formulation of each of the amended summons is duplicitous, and before making any consequential order, I allow the prosecutor the opportunity to seek leave to amend the summonses.

Background

4. The salient background facts have been agreed as follows:

1. Sell & Parker is the operator of a metal recycling facility at Lot 5 in DP 7086 and known as 45 Tattersall Road, Kings Park and Lot 2 in DP 550522 and known as 23-43 Tattersall Road, Kings Park (collectively, ‘the site’).

2. On 12 November 2015, the then Acting Executive Director for Key Site and Industry Assessment, acting as the Delegate for the Minister for Planning granted development consent SSD 5041 (‘the consent’), expanding the size and capacity of the facility subject to conditions, including:

A7. The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8.

A8. Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro-rata basis) until:

a)   The Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and

b)   A Final Occupation Certificate has been issued for the Development.

...

3. On 23 October 2017, the prosecutor issued and sent Sell & Parker a Notice pursuant to s 119J of the EPA Act (as it then was) (‘Notice’), seeking, inter alia:

1. a spreadsheet detailing all waste received at the site (in tonnes) from 22 May 2016 to the date of the Notice, catalogued by date and ticket number; and

2. a spreadsheet detailing all outgoing product and waste from the site (in tonnes) from 22 May 2016 to the date of the Notice, catalogued by date and ticket number.

4. On 6 November 2017, Sell & Parker responded to the Notice by providing a spreadsheet which was in excess of 1,000 pages.

5. On 7 August 2018, the prosecutor commenced the two proceedings by way of summonses against Sell & Parker.

6. On 1 November 2018, with the consent of Sell & Parker, the prosecutor was granted leave to amend each summons.

5. The amended summonses were filed on 1 November 2018. Subject to the inclusion of a different charge period and non-contentious minor changes, each amended summons under the heading “PARTICULARS”, included:

...

Manner of breach of the Development Consent

At all relevant times, the Emissions Collection System for the hammer mill had not been approved by the Secretary for operation and a Final Occupation Certificate had not been issued for the Development.

Contrary to condition A8, the Defendant received more than 90,000 tonnes of waste (on a weekly pro-rata basis) at the Site between 26 May 2016 and 31 December 2016, as set out in Schedule A to this summons.

...

6. Each summons annexes a document styled “Schedule A”, a three-column table containing Sell & Parker’s waste data for the relevant charge period which is referred to in the particulars. For convenience, a copy of Schedule A in relation to the first charge period (26 May 2016 to 31 December 2016) is attached to these reasons. For each week stipulated in the first column, the amount of waste alleged to have been received (in tonnes) is stated in the second column, and the corresponding alleged “Exceedance of 90,000 limit on weekly pro-rata basis (tonnes)” is stated in the third column.

7. Schedule A also contains data on the number of weeks the weekly pro-rata amount of 1,730.769 (rounded to three decimal places) was exceeded, being 31 weeks during the first charge period and 42 weeks during the second charge period. It was agreed that each schedule had been created by the prosecutor from the spreadsheet provided by Sell & Parker in response to the Notice, which itself comprised in excess of 1,000 pages.

8. The prosecutor alleges that Sell & Parker contravened Condition A8 as, at all material times, the Emissions Collection System for the hammer mill had not been approved by the Secretary for operation and a Final Occupation Certificate had not been issued for the development. The prosecutor contends that Sell & Parker received more than 90,000 tonnes of waste at the site (on a weekly pro-rata basis) during the charge periods.

9. The evidence before the Court comprised an agreed statement of facts and an extract from the spreadsheet provided by Sell & Parker in response to the Notice.

Defendant’s submissions

10. Sell & Parker submits that the rule against duplicity has been contravened by the prosecutor in respect of each of the two charges.

11. According to Sell & Parker, properly construed, the summonses allege that there were multiple breaches of the weekly pro-rata limit imposed by Condition A8 in each charge period. That is, pursuant to Schedule A, the weekly pro-rata limit was exceeded during each of the 31 nominated weeks in the first charge period and each of the 42 nominated weeks in the second charge period.

12. Sell & Parker submits that the prosecutor now seeks to persuade the Court that it has not pleaded breaches by Sell & Parker of the asserted pro-rata weekly limit, but has only pleaded a breach of what the prosecutor contends is a parallel annual limit imposed by Condition A8. Sell & Parker asserts that this interpretation is not in line with the charges as pleaded. Sell & Parker contends that identification of the offence as pleaded, the manner of breach specified and questions of duplicity should be determined objectively by construing the summonses rather than subjectively on the basis of assertions now put by the prosecutor.

13. Sell & Parker relies on the definition of duplicity espoused in Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 (‘Walsh’) at 84 and Bentley (for National Parks & Wildlife Service) v Gordon; Bentley (for National Parks & Wildlife Service) v B.G.P. Properties Pty Ltd [2005] NSWCCA 157; (2005) 139 LGERA 449 (‘Bentley’) at [11] that a defendant cannot be charged in one count with the commission of two or more separate offences.

14. To support its claims, Sell & Parker cites two decisions of the Court of Criminal Appeal: Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (‘Truegain’) and Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 (‘Tropic Asphalts’).

15. In Truegain (which concerned an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) in that the defendant was the holder of a licence, a condition of which was contravened), the prosecutor chose to advance under the one charge, separate claims that there was (both) incompetent storage and incompetent treatment. Those particulars were found by the Court to have disclosed more than one offence.

16. In Truegain, at [52], Leeming JA cited principles identified by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 (‘Hannes’) at [9] and endorsed in Einfeld v The Queen [2010] NSWCCA 87; (2010) 200 A Crim R 1 at [131]:

There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities (emphasis added).

17. Regarding step one, Sell & Parker submits that the offences charged relate to the carrying out of development contrary to a development consent. In relation to step two, Sell & Parker submits that the acts in breach of the consent are pleaded as receiving more than 1,730.769 tonnes of waste in each of the particularised weeks. Accordingly, Sell & Parker notes that 31 and 42 breaches respectively are particularised in the summonses.

18. In Tropic Asphalts, by way of three separate summonses, the defendant was charged with carrying out development otherwise than in accordance with a development consent which was in force. The first charge was struck out for reasons not relevant to the present motions. The second charge related to the defendant engaging in a course of conduct during the charge period, being production at the plant of more than 150 tonnes per day in breach of condition 4 (production must not exceed 150 tonnes per day), and the third charge alleged that more than 12 trucks per day were accessing the site during the charge period in breach of condition 6 (trucks not to exceed 12 per day). At first instance and on appeal, each of the second and third charges was found to be duplicitous. A separate contravention of conditions 4 and 6 was found to occur on each day the plant produced more than 150 tonnes or more than 12 trucks entered or exited the site: Tropic Asphalts at [59]. Sell & Parker submits that the circumstances in respect of the charges considered in Tropic Asphalts cannot be distinguished from the present proceedings.

Prosecutor’s submissions

19. The prosecutor also refers to the two-step process formulated by Basten JA in Hannes at [9] to identify duplicity, and submits that Sell & Parker has only been charged with receiving excess waste in breach of Condition A8. That is, it has not been charged with processing excess waste. In this way, the prosecutor contends that the prohibited act has only one quality, being the receiving of excess waste (and not the processing thereof).

20. In relation to Schedule A, the prosecutor confirms that the data contained therein was derived from the extensive information provided by Sell & Parker in response to the Notice. Sell & Parker provided figures in relation to the amount of waste (in tonnes) received at the site on a daily basis in the relevant periods and the prosecutor submits that it then used that (daily) data to calculate the amounts received on a weekly, and then on an annual basis.

21. The prosecutor submits that annexing “these figures” to the summonses clarifies how the total amount of waste received during the charge periods was calculated.

22. The prosecutor submits that the figures in the third column of the spreadsheet in Schedule A are not “essential to prove” the elements of the offence. Nonetheless, the prosecutor contends that their inclusion does not cause any unfairness to Sell & Parker. The prosecutor references Truegain, Walsh and Tropic Asphalts as follows:

23. In Truegain, at [48], Leeming JA stated:

It has long been the case that where acts formed part of the same transaction or criminal enterprise, they could be charged in a single count.

24. In Walsh, at 107, Kirby J similarly stated:

If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible.

25. In Tropic Asphalts, Bathurst CJ cited the principles espoused by Kirby J at 108 in Walsh and stated, at [53]:

…a consideration of whether criminal acts were sufficiently close in time and space to “fairly and properly be identified as part of the same criminal enterprise” involved consideration of various indicia including the “connection of the events in point of time”, the “similarity of the acts”, the “physical proximity of the place where the events happened” and the “intention of the accused throughout the conduct”.

26. The prosecutor submits that the charges in these proceedings are distinguishable from those in Tropic Asphalts as they do not relate to discrete contraventions of s 76A(1)(b) of the EPA Act on each day or each week that Condition A8 was contravened. Instead, the prosecutor submits that the contravention can be characterised as a continuing course of conduct constituting a single offence, that being receiving waste in excess of the annual limit.

27. The prosecutor submits that the present proceedings are more comparable to Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376; (2006) 149 LGERA 415 (‘Hakim’). In Hakim, at [82], [85], Spigelman CJ held that there was no unfairness in proceeding on the basis of a single overall arraignment which included matters that arose in the course of one construction project. This principle was cited in Environmental Protection Authority v AGL Upstream Investments Pty Ltd [2018] NSWLEC 32; (2018) 229 LGERA 314 at [53].

28. As such, it is submitted that it was open to the prosecutor to proceed on a single charge for breaching the annual limit or on multiple charges for breaching the weekly pro-rata limit (31 times in 2016 and 42 times in 2017). However, the prosecutor decided to lay two charges for breaches of the annual limit as opposed to 73 charges for breaches of the weekly pro-rata limit as it contends that the latter may have overstated the gravity of the offences.

29. The prosecutor submits that it presented the total amounts of waste received in the charge periods by converting the daily figures provided by Sell & Parker into weekly totals for ease of reference (and notes that if the daily figures were recorded, the schedules, and by extension the summonses, would have been much longer).

30. By adopting the course that it did, the prosecutor submits that it does not seek to prove that Sell & Parker contravened the consent each week it received in excess of 1,730.769 tonnes of waste. The schedules were included to show that the single offence was part of Sell & Parker’s continuing course of conduct to receive waste in excess of the prescribed annual limit in 2016 and 2017.

31. The prosecutor accepts that elementary fairness underpins the rule against duplicity and that the purpose of the rule is to enable a defendant to know what it has been charged with. The prosecutor submits that properly read, the summonses clearly show that Sell & Parker has been charged with breaching the annual limit, and the inclusion of the weekly amounts do not render the charges duplicitous or unfair.

32. Further, although both the prosecutor and Sell & Parker agree that the actual construction of Condition A8 is not an issue presently before the Court, the prosecutor submits that the decision to lay single charges for breaching the annual limit instead of multiple charges for breaching the weekly limit accords with the principle that where there is ambiguity in a development consent condition, it must be construed against the interests of the consent authority: Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 324.

33. The prosecutor submits that while the Court should decline to grant Sell & Parker the relief it seeks in its notices of motion, to avoid any confusion the prosecutor is able, with leave, to amend the second column in the schedules (without affecting the charges) to reflect the amount of waste received at the site per day, rather than per week during the charge periods. The prosecutor submits that it could also omit the third column if the Court believes this will clarify the charges. The prosecutor submits that these amendments would not cause any injustice to Sell & Parker.

34. The prosecutor further submits that the costs of the notices of motion be reserved.

Consideration

35. Each amended summons alleges a breach of s 125(1) of the EPA Act in relation to development being carried out otherwise than in accordance with a development consent, contrary to s 76A(1)(b) of the EPA Act.

The legislative framework

36. Section 125(1) of the EPA Act, as in force at the relevant times, provided:

Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

37. Section 76A(1)(b) of the EPA Act, as in force at the relevant times, provided:

(1)   General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)   such a consent has been obtained and is in force, and

(b)   the development is carried out in accordance with the consent and the instrument.

38. It is well-accepted (Walsh at 84, 87, 102 and Bentley at [11]) that a defendant cannot be charged in one count with the commission of two or more separate offences. The historical background and purpose of what has become known as the rule against duplicity is compendiously set out by Leeming JA in Truegain at [36]-[46] and is not repeated.

38. The essential difference between the parties can be simply stated. Sell & Parker contends that Schedule A is expressly incorporated to describe the elements of the alleged contraventions of s 76A(1)(b) of the EPA Act. It is presented in the form of a three-column table and contains two clear representations; first, that during each of the nominated weeks in the first column, there was a weekly pro-rata limit; and, second, that limit was exceeded during each of a specified number of nominated weeks. Thus, in each charge there were multiple breaches of a weekly pro-rata limit imposed by Condition A8. Sell & Parker therefore submits that the amended summonses breach the rule against duplicity in that Sell & Parker cannot properly be charged in one count with the commission of multiple separate offences.

39. Conversely, the prosecutor states that each summons properly read indicates that the manner of the breach involves receiving more than 90,000 tonnes of waste per calendar year for each of the charge periods. The prosecutor accepts that it could have proceeded on a single charge for breaching the annual limit or on multiple charges for breaching the weekly pro-rata limit, however the prosecutor chose to lay two charges for breaching the annual limit as opposed to 73 charges for breaching the weekly pro-rata limit.

40. I consider that whether a charge is duplicitous involves a question of fact and degree and should be considered objectively.

41. As stated by Leeming JA in Truegain at [51], the question of whether a statute attaches criminality to an ongoing criminal enterprise as opposed to a particular act is inevitably a question of construction. The question of construction must involve (or commence with) consideration of the statutory provisions under which the charge was laid. These principles, as stated by Basten JA are set out at [16] above. There is no doubt that where acts form part of the “same transaction or a criminal enterprise”, they can be charged as a single count: Truegain at [48] and Tropic Asphalts at [47].

42. I do not accept the prosecutor’s submission that the present facts are comparable to Hakim. In Hakim, the appellant was charged with one offence of excavating on, in or under protected land (in circumstances where the particulars of the charge identified several distinct excavations which took place some months apart). Spigelman CJ considered the “scope and purpose” of the legislative scheme and found, at [87], that nothing in the scope and purpose of the legislative scheme suggests that the word “excavation” required the specification of each distinct act capable of constituting a different excavation, and as such the prohibited conduct was to be understood as extending to a course of conduct over a period of time pursuant to an overall scheme.

43. Similarly, as Bathurst CJ noted in Tropic Asphalts at [49]: “the question of ‘whether an enactment creates one offence or several depends upon its subject matter and language considered in their context’”. The Chief Justice then confirmed that the “strict approach” to the question of duplicity remains the law in this country and referred to the comments of Dixon J in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 (‘Johnson v Miller’) at 489:

...In my opinion [the prosecutor] should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.

45. Bathurst CJ also referred to the comments of Evatt J in the same case at 498:

The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.

46. Remembering that the “strict approach” to resolving questions of duplicity in the pleading of criminal charges was confirmed in Johnson v Miller at 110 and Tropic Asphalts at [53], in the present circumstances, I find that s 76A(1) of the EPA Act can apply to a continuing course of conduct (which is recognised by the fact that other provisions of the EPA Act impose a daily penalty for ongoing contraventions), however it can also extend to breaches of a particular provision of a consent which is the basis of the present charges. It is not disputed before me that such breaches can be charged as separate offences.

47. The essential question is whether each summons demonstrates that the charge encompasses a single offence or multiple separate offences. It is now well-accepted that unless an allegation constitutes a continuing offence or offences which are closely related amounting to one activity, they should be separately charged: Truegain at [50]. Further, as Kirby J explained in Walsh at [107]:

If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise, this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible.

48. While the prosecutor’s submissions at par (30) state that the weekly exceedances show “...that the single offence was part of the Defendant’s continuing course of conduct to receive waste in excess of the prescribed annual limit in 2016 and in 2017”, the material in each of the schedules, being explicitly and necessarily incorporated into the particulars of the offences charged does not, on its face, accord with this contention.

49. I accept Sell & Parker’s submission that the prosecutor’s written submissions throw into “sharp relief” the prosecutor’s somewhat “ambivalent position” in respect of the charges where for example, at par (18) of the prosecutor’s written submissions, the figures in the third column of each schedule are said to “...indicate the consistency with which the Defendant exceeded the weekly prorata limit, which should have indicated to the Defendant that it was at risk of breaching the annual limit”. This, combined with the acceptance by the prosecutor that it was open to it to proceed on a single charge or multiple charges in relation to the weekly pro-rata limit and that it decided to lay two charges for the breaches of the annual limit, may explain why the charge as formulated is ambiguous on its face.

50. Put simply, the prosecutor takes the position in its submissions, and on my reading of the summonses, that Sell & Parker did in fact breach the asserted pro-rata weekly limit during each of the weeks within the respective charge periods. Whilst the prosecutor now submits that it has only pleaded a breach of the annual limit imposed by Condition A8, I consider that this is not apparent from the charges as pleaded.

51. While the background to the prosecutor’s preparation of the schedules (that is, the provision of lengthy material by Sell & Parker pursuant to the Notice) is understandable, objective consideration of each summons raises the type of concern that was, in relation to not significantly different facts, distinctly stated by Bathurst CJ (as quoted above) in Tropic Asphalts at [58] as follows:

Thus, the question is whether the particularised charges relate to “discrete” contraventions of s 76A(1)(b) occurring on each day that the condition was contravened or whether the contravention is capable of being seen as a “continuing course of conduct” constituting one offence. If the former is the correct characterisation, then the charges are bad for duplicity. If the latter, then they are not.

52. The fact that the schedules were created from figures provided to the prosecutor (and such figures were kept in accordance with what was said to be Sell & Parker’s “recording obligations” under another condition of the development consent) is not determinative. The fact that the prosecutor used that information to calculate the amounts received on a weekly (and then an annual basis) may be understandable, however, I do not consider that it was “...necessary to annex these figures to the summonses, to explain how the total waste received during the relevant periods was calculated” as submitted by the prosecutor. Further, I do not accept that the provision of particulars in this form does not cause any unfairness to the defendant or that the schedules are “just another way of presenting the figures which the Defendant provided to the Department”. I accept the submission of Mr Howard, senior counsel for Sell & Parker (Tcpt, 14 March 2019, p 7(33-35)) that, acknowledging that the rule against duplicity is a matter of fairness, the present charges are unfair in that, by way of example, Sell & Parker may have a different defence for exceeding the limit in particular weeks if they were separate charges.

53. The facts of the present matter are similar to those in Tropic Asphalts in that properly construed, the charges as pleaded relate to discrete breaches on each week Condition A8 was contravened.

54. For the reasons above, and whilst it is a matter of fact and degree, I am of the view that the present formulation of each of the summonses is duplicitous and that Sell & Parker is entitled to know the particular offences it is called upon to answer.

55. The prosecutor submits (Tcpt, 14 March 2019, p 19(32-35)) that, if the Court found that there was “unfairness”, and to avoid any confusion, pursuant to ss 20 and 21 of the Criminal Procedure Act 1986 (NSW) (‘CPA’) and s 68(1) of the Land and Environment Court Act 1979 (NSW), it could be remedied by amendments to the schedules, without resorting to the “drastic” action sought by Sell & Parker. The prosecutor further submits that it would seek to amend to reflect any concern residing with the Court.

56. In response to the prosecutor, Sell & Parker, without being aware of the form of any amendment, does not accept that any amendment would cure the duplicity about which it complains and, whilst accepting that the Court may have power to allow the amendment, reserves its position if leave to amend was sought.

57. Section 16(2) of the CPA relevantly provides:

16   Certain defects do not affect indictment

...

(2)    No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a)   any alleged defect in it in substance or in form, or

...

58. Further, ss 20 and 21 of the CPA relevantly provide:

20   Amendment of indictment

(1)   An indictment may not be amended after it is presented, except by the prosecutor:

(a)   with the leave of the court, or

(b)   with the consent of the accused.

(2) This section does not affect the powers of the court under section 21.

(3)   For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

21   Orders for amendment of indictment, separate trial and postponement of trial

(1)   If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

…

(6)   Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

59. The application of the above provisions was recently considered in Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; (2015) 209 LGERA 280 at [60]-[71], however, I accept that there are circumstances in which a defect in an indictment cannot be cured at all by amendment: R v Darko Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281.

60. In any event, s 20 of the CPA states that no amendment may be made except with leave of the Court (or with the consent of the other party). I express no opinion as to whether an appropriate amendment could be made without injustice to Sell & Parker and/or whether leave should be granted to the prosecutor to amend the charges, until the Court has received an application for leave to amend and heard from each of the parties in relation to any such amendments.

61. In the circumstances, I allow the prosecutor the opportunity to seek leave to amend the summonses.

Orders

62. The orders of the Court are:

In proceedings 2018/00242442:

1. The prosecutor is to make any application to further amend the summons by filing any evidence and written submissions on or before 18 April 2019.

2. The defendant is to file any evidence and written submissions in reply to the prosecutor’s application to further amend the summons on or before 29 April 2019.

3. The matter is listed for directions at 9:30am on 3 May 2019.

4. Costs are reserved.

In proceedings 2018/00242443:

1. The prosecutor is to make any application to further amend the summons by filing any evidence and written submissions on or before 18 April 2019.

2. The defendant is to file any evidence and written submissions in reply to the prosecutor’s application to further amend the summons on or before 29 April 2019.

3. The matter is listed for directions at 9:30am on 3 May 2019.

4. Costs are reserved.

**********

Schedule A (44.5 KB, pdf)

Decision last updated: 16 April 2019