Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

[2019] NSWLEC 182

Land and Environment Court

New South Wales

Medium Neutral Citation:	Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182
Hearing dates:	6 June, 8 and 16 August, 18 September 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders: (1)   at [104] (Matter No 381474 of 2016); and (2)   at [105] (Matter No 381475 of 2016)
Catchwords:	PROSECUTION - amendment of charges - charges held to be duplicitous - application to amend charges - application seeks to substitute multi-count charges for single count in each instance - application to reopen amendment application - Prosecutor makes application to reopen - application to rely on affidavit and supporting material - objection by Company - Company submits supporting material unlawfully obtained - taking Prosecutor's case at its highest, affidavit and supporting material would not assist in establishing a basis to permit multi-count amendment - application to reopen refused - consideration of whether multi-count amendment would effect injustice on the Company - multi-count amendment would be unjust - Prosecutor seeks single-count amendment in the alternative in each instance - single-count amendments not unjust - single-count amendments within power - single-count amendments permitted COSTS - parties equally successful on applications to amend - no order for costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1996, ss 3A(b), 21A(3) Criminal Procedure Act 1986, ss 16, 20 Environmental Planning and Assessment Act 1979, ss 125 to 127 Evidence Act 1995, s 135 Land and Environment Court Act 1979, s 68 Protection of the Environment Operations Act 1995, s 250(1)(a)
Cases Cited:	Area Concrete Pumping v Inspector Childs [2012] NSWCA 208 Boujaoude v R [2008] NSWCCA 35 Cooper v Coffs Harbour Council (1997) 97 LGERA 125 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 DPP v Kypri (2011) VR 157; [2011] VSCA 257 Rockdale Beef v Industrial Relations Commission of NSW [2007] NSWCA 128 Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd (No 2) [2019] NSWLEC 73 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2017] NSWLEC 109 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] HCASL 86 Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77
Category:	Procedural and other rulings
Parties:	Snowy Monaro Regional Council (Prosecutor) Tropic Asphalts Pty Ltd (Defendant)
Representation:	Counsel: Mr C Ireland, barrister (Prosecutor) Mr T Hale SC (Defendant)   Solicitors: Bradley Allan Love (Prosecutor) Thomson Geer (Defendant)
File Number(s):	381474 and 381475 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The Prosecutor charges the Company

The stated case

The applications to amend Charges 2 and 3

The hearings

The proposed reformulated single charges

Introduction

The reformulation of Charge 2

The reformulation of Charge 3

The multi-count charges

The relevant statutory provisions

The Notice of Motion for leave to reopen

The proposed multi-count amendments

Introduction

The potential consequences of multi-count amendments

The multi-count maximum penalties

Multi-count amendment and the possibility of injustice

Introduction

The extent of the penalty exposure

The risk in any future prosecution as a consequence of the Company’s record

Reputational risk

The expiry of the time for laying charges

The application to reopen

The proposed single-count amendments

Introduction

The Prosecutor’s submissions on the proposed single-count amendments

The Company's submissions on the proposed single-count amendments

The Prosecutor’s submissions in reply

Conclusion on the proposed single-count amendments

Costs

Orders

Directions

JUDGMENT

Introduction

1. On 13 January 2015, Snowy Monaro Regional Council, the Prosecutor in these proceedings, granted a time-limited development consent to Tropic Asphalts Pty Ltd (the Company) to operate a mobile asphalt‑processing plant. That development consent had attached to it two conditions that are now relevant in these proceedings. Those conditions were numbered (4) and (6). The conditions were set out in the Prosecutor’s Notice of Determination of the development application and were in the following terms:

(4)   The plant production must not exceed 150 tonnes per day at any time during operations.

Reason: Production above this threshold would result in the proposal being designated development and would require substantially more environmental impact assessment.

(6)   The number of trucks accessing and/ or exiting the site is not to exceed twelve (12) per day at any one time.

Reason: To ensure the traffic impacts from the development do not exceed SEPP 3 Guideline thresholds.

The Prosecutor charges the Company

2. On 16 December 2016, the Prosecutor laid, in this Court, three charges against the Company. It is unnecessary, at this point, to set out the detail of those charges. It is sufficient to note that the Company challenged the validity of each of the charges on a number of bases. Those challenges were heard by me on 24 March and 3 May 2017.

3. On 25 August 2017, I gave my decision, in which I explained why I considered that the first charge was defective and warranted being dismissed and that the second and third charges were duplicitous but were ones where the Prosecutor should have the opportunity to seek to amend the charges to cure that defect. I had, as part of the decision, rejected proposed amendments to the charges advanced by the Prosecutor.

The stated case

4. However, at the conclusion of the proceedings leading to me proposing orders to finalise these matters (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2017] NSWLEC 109), the Prosecutor proposed that I should state a case to the Court of Criminal Appeal pursuant to s 5A of the Criminal Procedure Act 1986 (the Criminal Procedure Act).

5. Although there was a dispute between the Prosecutor and the Company as to:

• whether sending a stated case to the Court of Criminal Appeal was premature or not and, if it was not premature,

• what should be the terms of the question and the supporting material,

I determined that it was appropriate to forward a stated case and settled the terms of the questions to be put and the necessary information to be provided with them.

6. It is to be noted that the stated case related to Charges 2 and 3, with there being no challenge by the Prosecutor to my determination that Charge 1 warranted being dismissed.

7. The stated case was heard by the Court of Criminal Appeal and its decision handed down on 21 September 2018 (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202). The Court of Criminal Appeal held that I was not in error in concluding that Charges 2 and 3 laid by the Prosecutor were duplicitous. Although the Prosecutor filed an application for special leave to appeal to the High Court, this application was refused on 20 March 2019 (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] HCASL 86).

The applications to amend Charges 2 and 3

8. On 23 April 2019, the Prosecutor filed a Notice of Motion in each of the remaining proceedings.

9. The two Notices of Motion are in similar (but not precisely identical) terms. In each of them, the Prosecutor seeks leave to amend the defective charge by not only altering the wording of the proposed charge but, with respect to Charge 2, proposing to add a further 40 charges (making a total of 41) in identical amended terms with each one of those resultant charges relating to a different nominated date.

10. A similar position has been taken with respect to Charge 3, where the Prosecutor also seeks to amend the wording of the charge and also to add a further 39 charges in identical terms to make a total of 40 charges, with those charges relating to a different nominated date in each instance.

11. If this aspect of the two Notices of Motion was to be agreed to by me, the result would be that the Company would face a total of 81 charges in substitution for the two charges that had been the subject of my stated case to the Court of Criminal Appeal.

12. It will be, later, necessary to discuss the proposals to expand the number of counts in some little detail.

13. In the alternative, in the event that I did not grant either of the proposed multi‑count amendments, the Prosecutor sought to rely, in each matter, on a single amended charge in the same changed wording as for each of the two multiple-count versions of Charge 2 and Charge 3 but to have that amended charge, in each instance, apply to a single day. The nominated single day in Charge 3 was different to that nominated for Charge 2. For present purposes, these nominated dates are irrelevant.

The hearings

14. On 6 June 2019, the Prosecutor moved on the two Notices of Motion. Mr Ireland, counsel for the Prosecutor, completed his submissions. Mr Hale SC, counsel for the Company, did not conclude his submissions on that day and the matter was set down for further hearing on 16 August 2019 and subsequently finalised on 18 September 2019 when I reserved my decision.

15. However, Mr Hale made it clear that the Company not only opposed both alternatives for amendment in each Notice of Motion, but also separately relied on the proposition that Charge 2 and Charge 3, as originally laid, did not disclose an offence known to law and were thus incurably defective. He also advanced the proposition, with respect to each of the charges, that the proposed changes did not constitute amendment but would constitute the laying of two fresh charges which was, it was submitted, impermissible as the limitation period within which such charges were required to be laid had expired.

The proposed reformulated single charges

Introduction

16. I have earlier explained how only Charges 2 and 3 of the charges originally made against the Company remained available to the Prosecutor for the purposes of seeking the amendment with which I am dealing. It is not necessary to reproduce the terms of Charges 2 and 3 as laid as they can be read in my earlier decision.

17. It is, however, appropriate to reproduce the terms of each of these single charges as now pleaded in the form that will go to trial (given that, for the reasons discussed subsequently, I reject the proposal that leave be given to rely on multiple reformulated charges in each proceedings and that I have determined that the single amended charge in each proceedings provides the only appropriate basis upon which those proceedings could go to trial).

The reformulation of Charge 2

18. The reformulated charge concerning the alleged breach of Condition (4) of the development consent sought to be relied upon by the Prosecutor in Matter No 381744 of 2016 is in the following terms:

1 An order that the defendant, Tropic Asphalts Pty ltd of registered office “Colas Australia Group Pty Ltd”, Unit 2, 3-5 Gibbon Road Winston Hills, NSW, 2153, appear before a Judge of the Court to answer the charge that between 20 January 2015 and 18 March 2015, at Rock Flat, in the said State, the defendant committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing that was forbidden to be done by 76A(1)(b) of the Act, in that on land (the land) to which an environmental planning instrument applied and which provided that specified development could not be carried out except with development consent, it carried out development which required development consent under that environmental planning instrument (the development) otherwise than in accordance with a development consent which had been obtained and was in force.

PARTICULARS

Development

The development was the operation of a temporary mobile asphalt batching plant on the land below.

Land

The land was lot 2 DP 825408, also known as 30 Springs Road, Rock Flat, NSW 2630.

Development consent

The development consent was that granted by Cooma‑Monaro Shire Council to development application DA 10.2014.391.1 on 13 January 2015.

Environmental Planning Instrument

The environmental planning instrument was the Cooma‑Monaro Local Environment Plan 2013 made under the Act which zoned the land RU 1 Primary Production, and in that zone the development was permissible with consent as an innominate use, or in the alternative as a development for the purposes of “roads” which was a nominate use permissible with consent in the zone.

Manner of contravention

The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 4 of the development consent which provided that the production at the plant must not exceed 150 tonnes per day at any time during operations, in that on 31 January 2015, the defendant operated the plant to produce more than 150 tonnes.

2   An order that the Defendant be dealt with according to law for the commission of the above offence.

The reformulation of Charge 3

19. The reformulated charge concerning the alleged breach of Condition (6) of the development consent sought to be relied upon by the Prosecutor in Matter No 381745 of 2016 is in the following terms:

1 An order that the defendant, Tropic Asphalts Pty Ltd of registered office “Colas Australia Group Pty Ltd”, Unit 2, 3-5 Gibbon Road Winston Hills, NSW, 2153, appear before a Judge of the Court to answer the charge that between 20 January 2015 and 18 March 2015, at Rock Flat, in the said State, the defendant committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that it did the following thing that was forbidden to be done by 76A(1)(b) of the Act, in that on land (the land) to which an environmental planning instrument applied and which provided that specified development could not be carried out except with development consent, it carried out development which required development consent under that environmental planning instrument (the development) otherwise than in accordance with a development consent (the development consent) which had been obtained and was in force.

PARTICULARS

Development

The development was the operation of a temporary mobile asphalt batching plant on the land below.

Land

The land was lot 2 DP 825408, also known as 30 Springs Road, Rock Flat, NSW 2630.

Development consent

The development consent was that granted by Cooma Monaro Shire Council to development application DA 10.2014.391.1 on 13 January 2015.

Environmental Planning Instrument

The environmental planning instrument was the Cooma Monaro Local Environment Plan 2013 made under the Act which zoned the land RU 1 Primary Production, and in that zone the development was permissible with consent as an innominate use, or in the alternative as a development for the purposes of “roads” which was a nominate use permissible with consent in the zone.

Manner of contravention

The development was carried out otherwise than in accordance with the development consent by being carried out contrary to Condition 6 of the development consent which provided that the number of trucks accessing and/or exiting the site is not to exceed twelve (12) per day, in that on 18 March 2015, the defendant operated the plant so that more than 12 trucks per day were accessing and exiting its site (being the land) at any one time.

2   An order that the Defendant be dealt with according to law for the commission of the above offence.

The multi-count charges

20. Each of the multi-count charges was in identical terms to the relevant Condition (4) or Condition (6) charge as applicable with only the relevant different date being changed in the description of the “Manner of contravention”.

The relevant statutory provisions

21. There are two provisions in the Criminal Procedure Act requiring consideration in my determination of the Prosecutor's applications to amend. The first of them is s 16(2), a provision in the following terms:

16   Certain defects do not affect indictment

(1)   …

(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

(b)   any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

22. The second of them is s 21(1), a provision in the following terms:

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.

The Notice of Motion for leave to reopen

Introduction

23. On 1 July 2019, the Prosecutor filed a Notice of Motion seeking to reopen each of the amendment proceedings in order to rely on material appended to the affidavit of Alan Bradbury dated 28 June 2019 and filed in support of the application to reopen. The relevant order sought by the motion was in the following terms:

1   Leave be granted to the Prosecutor to re-open its case on its Notice of Motion to amend dated 18 April 2019 (on 8 August 2019), in order to tender and rely on the delivery dockets and business records entitled ‘Asphalt Paving - Mix Locations’ exhibited to the affidavit of Alan Anthony Bradbury dated 28 June 2019 and filed in support of this Notice of Motion.

24. The Notice of Motion was supported by the affidavit of the Prosecutor’s solicitor, Mr Allen Bradbury, sworn on 28 June 2019

25. On 5 August 2019, I received an unusual communication from the Company's solicitor, Mr Harrison. That communication was in the following terms:

Land and Environment Court Proceedings No 2016/381474 and 2016/381475

We act for Tropic Asphalts Pty Limited, the defendant to the proceedings referred to above.

We refer to the notice of motion filed in the proceedings on behalf of Snowy Monaro Regional Council, on 1 July 2019 and the supporting affidavit affirmed by Alan Anthony Bradbury on 28 June 2019, listed for hearint before you on 8 August 2019, together with the resumed part heard hearing of the Council’s application to amend the summonses.

We are instructed to respectfully request that Justice Moore does not to read (sic) the affidavit of Mr Bradbury before hearing the parties’ arguments as to whether it should be read.

We have written to Bradley Allen Love, the solicitors for the Council, advising them of our client’s position and setting out our client’s reasons for this request. We have provided a copy of this letter to Bradley Allen Love and sought their client’s consent to us sending this letter. They informed us that their client does not consent to this letter being sent. However, we are concerned to ensure His (sic) Honour is informed of our client’s position before he reviews the Court file in preparation for the hearing on 8 August 2019.

A copy of this letter is being provided to Bradley Allen Love.

26. The above letter became Exhibit 2 on the motion.

27. As I had not undertaken any further pre-trial preparation and, as a consequence, had not examined Mr Bradbury's affidavit, I caused it to be separated from the papers in the Court file and placed in an envelope.

28. When the matter came before me again on 8 August 2019, it was not only necessary to deal with the two substantive Notices of Motion seeking to amend Charges 2 and 3 in the alternative fashions earlier outlined, but also to deal with the Prosecutor’s application to reopen and, in doing so, to rely on the terms of Mr Bradbury's 28 June 2019 affidavit. For the purposes of dealing with the application to reopen, Mr Hale tendered a copy of Mr Bradbury's affidavit of 28 June 2019, in redacted form, with the redactions obscuring the elements in the affidavit to which the Company objected. The redacted version became Exhibit 1.

26. The redacted copy of Mr Bradbury's affidavit was tendered for the Company as part of the contest as to whether or not leave to reopen and rely on the unredacted affidavit of Mr Bradbury and of the material annexed to it.

27. One basis upon which the Company objected to me reading the unredacted version of Mr Bradbury's affidavit, or having regard to the material annexed to it, was that the material had been obtained from the Company by the Prosecutor unlawfully. It is unnecessary to determine, for the purposes of these proceedings dealing solely with the question of amendment to the charges, whether that complaint is valid or not. The question of whether or not any or all of the material is admissible at trial for any purpose is a matter which necessarily must await trial on the two charges for which I have determined it is appropriate to grant leave for amendment.

28. The question of whether there is potentially available (subject to issues of admissibility) material demonstrating that each of the counts in the proposed multi-count amendment would be able to be established, is a matter of irrelevance. For the reasons later explained, it would be entirely unjust (and hence contrary to s 21(1) of the Criminal Procedure Act) to permit the multi‑count amendment to each charge to be made.

29. Even if I was to assume, solely for the purposes of these amendment proceedings, that the unredacted version of Mr Bradbury's affidavit, and the material annexed to it, was admissible at trial and demonstrated that the Company had breached each of the conditions on the multiple occasions sought to be relied upon in the proposed multi-count amendment to each charge (that is, taking the Bradbury material at its highest in favour of the Prosecutor), such an assumption does not displace the matters I later discuss in reaching my conclusion that it would impose significant injustice on the Company if either charge was to be permitted to be amended in the multi‑count fashion proposed by the Prosecutor.

The proposed multi-count amendments

Introduction

33. In each instance, the Notice of Motion seeking leave to amend proposes, as the primary outcome sought by the Prosecutor, that Charge 2 and Charge 3 be amended in general terms in the fashion set out above at [18] (for Charge 2) and at [19] (for Charge 3). However, each order proposes that the relevant charge not only be reformulated in that general fashion, but that it be permitted to be pleaded as multiple counts, with each one of those counts specifying a single day upon which the breach of the relevant condition of development consent was said to have taken place.

34. As earlier noted, for Charge 2, the Prosecutor proposes that a total of 41 counts should now be permitted against the Company whilst, for Charge 3, the Prosecutor proposes that 40 counts should be permitted against the Company.

The potential consequences of multi-count amendments

35. It is to be remembered that, in each instance, the breaches of the Environmental Planning and Assessment Act 1979 (the EP&A Act) alleged to arise from conduct of the Company in its operation of the temporary asphalt plant arises from the then s 125(1) of the EP&A Act, a provision which was in the following terms:

125   Offences against this Act and the regulations

(1)   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.

36. When the two remaining charges were originally laid against the Company, it was self-evident that the maximum penalty to which the Company was exposed for each alleged breach was $1.1 million. This can be seen from the terms of the then applicable s 126(1) of the EP&A Act (a penalty unit being $110):

126   Penalties

(1)   A person guilty of an offence against this Act shall, for every such offence, be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty units and to a further daily penalty not exceeding 1,000 penalty units.

The multi-count maximum penalties

37. It is obvious that, if I permit the multi-count amendment pleading in each instance, this will give rise to a maximum penalty exposure (if the Company is convicted of all the proposed multiple counts) of $45.1 million for what would become Charge 2 and $44 million for what would become Charge 3.

38. On a number of occasions during the course of these amendment applications, I asked the Prosecutor how this radically higher potential penalty exposure, in each instance, could conceivably fit within the terms of the relevant test set by s 21(1) of the Criminal Procedure Act. Before turning to consider the Prosecutor's response, it is appropriate to set out the relevant legislative element with appropriate added emphasis:

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.

Multi-count amendment and the possibility of injustice

Introduction

39. The first step in addressing the proposed amendments to the two charges which were found to be duplicitous is to consider the Prosecutor's proposal that, in each instance, it should be granted leave to rely on a substituted multi‑count charge.

40. It is therefore appropriate to consider these proposed multi-count amendments (and to do so together) against the potential impacts on the Company, if such amendments were permitted. There are two aspects requiring to be considered in this context. The first is the potential penalty exposure for the Company, whilst the second is the potential unfairness on the Company if multiple convictions were recorded.

41. Each of these requires to be explored on the basis that the Company might be convicted if amended charges go to trial, thus requiring consideration of the potential outcomes if multi-count amendments are permitted, compared to what would be the outcome if a single amended count is permitted for each alleged breach of the conditions of the Company’s development consent. The proposals to amend require to be considered within this theoretical framework in circumstances where no substantive trial of any charge laid by the Prosecutor against the Company has yet commenced.

The extent of the penalty exposure

42. I have earlier set out, at [37], the maximum penalty exposure of the Company if both multi-count amendments were to be permitted. It is not necessary to repeat those figures here. It is, however, blindingly obvious that a radically higher maximum penalty exposure would be faced by the Company for each charge if the multi-count amendments were to be permitted.

43. It is sufficient, for my present consideration, to set out only one example of the response of the Prosecutor on this point. During the course of the Prosecutor’s reply submissions on 18 September 2019, the transcript records the following (Transcript, 18 September 2019, page 16, line 46 to page 20, line 43):

IRELAND: … The principle of totality is a reply to the defendant’s submission that there’s injustice or unfairness arising from the amendment that is sought. The maximum penalty that would apply for these chargers alleging a contravention of s 76A at the relevant time was $1.1 million, it was 1,000 penalty units in the Act as it was at that particular point in time and so to that extent I correct the reference to $1 million at para 39 of my written note of 4 September but of course the reality of the potential sentence that the defendant is exposed to if the charges are broken up and considering the matter hypothetically if the defendant were convicted on each of the 40 or 41 separate days for charges 2 and 3 the sentence that the defendant would face bears no relationship to the addition for example firstly of the absolute maximum $1.1 million figure.

This is for two reasons. Firstly, the principle of totality. Secondly, the nature of the charges, the conduct alleged and the subject matter of these proceedings. We’re dealing with particular breaches on particular days of conditions of a development consent dealing with the, serious of course, but dealing with the production of material from a national batching plant. It is simply not the kind of case where in any way the maximum would be approached either in relation to a rolled up charge or in relation to a sentence imposed for a conviction of a breach of a condition on a particular day.

So as a matter of reality the theoretical spectre of prejudice that may be said to arise due to the breaking up of the charges and the fact that there’s an individual theoretical maximum applying to each and every separate offence does not arise as a matter of reality and as a matter of law it can’t arise due to the principle of totality which ensures that in such a case where there are multiple alleged offences dealing with a course of conduct or ongoing conduct by a defendant that the sentence that is ultimately imposed by the Court must properly reflect the overall criminality of the defendant but no more.

It’s been said that the principle of totality requires a sentencing judge who sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the defendant and that’s a reference to the judgment of Kirby J in the Postiglione case and could I hand up just a reference to that passage and quote from that passage in Postiglione taken from Stephen Odger’s work on sentencing and your Honour will see there beneath the heading Reflecting Overall Criminality a reference to the Postiglione case.

At para 39 of my outline of written submissions I’ve also referred to two decisions of this Court applying these accepted principles. Firstly, the decision of the Chief Judge in EPA v Hanna and I’ve referred your Honour to para 80 of EPA v Hanna. Could I provide your Honour and my learned friend with a copy of EPA v Hanna and also with a copy of EPA v David Smith so your Honour has the authorities from which the passages that I refer to at para 39 in the written note are drawn and I refer your Honour to para 224 in EPA v Hanna. Your Honour sees there the reference by the Chief Judge to the principle of‑

HIS HONOUR: I understand that, your submissions refer to para 80 which is‑

IRELAND: Yes I don’t think that can be right.

HIS HONOUR: ‑fundamentally irrelevant about a phone call to a Mr Garrett.

IRELAND: Yes. Yes I’m sorry that must have been, I suspect, transposing something from Davis possibly to that case but‑

HIS HONOUR: All right. So what paragraph do you want me‑

IRELAND: 224 and your Honour will see there just the reference to the leading authorities dealing with the principle of totality and the principle is as reported there by his Honour the Chief Judge that it requires the overall sentence to be just and appropriate and the overall sentence to be reviewed to ensure that it is just and appropriate where there are a series of sentences and this was a case, unusually for this Court, where his Honour at the end of the day was dealing with an actual sentence of imprisonment but that doesn’t detract from the correct reference to the principle of totality which is uniform whether one’s dealing with fines or sentences of imprisonment.

The decision of her Honour Justice Pain in EPA and Davis which I’ve also handed up is an example of a case where the totality principle has been applied and its striking impact is clear. At para 92 her Honour refers to the sentencing principle of totality which ensures that the sum of any fines imposed is not disproportionate to the total criminality of a defendant. So in this particular case her Honour applied the principle of totality and as I say to striking effect.

If your Honour goes to para 102 the orders section in the judgment your Honour will see what her Honour did in relation to these similar offences against s 66(2) of the POEO Act making in effect, as I understand it, making incorrect statements or providing false or misleading information in the licensing or similar process under that Act.

Her Honour imposed a penalty for one offence of $10,000. For the other similar offences the penalty imposed in each case, there appears to be five of them, was $500 reflecting the operation‑

HIS HONOUR: Each of Hanna and Davis, however, were cases where the multiple charges were all laid within time, is that not the case?

IRELAND: Yes so there was no issue with‑

HIS HONOUR: Within time not being the position here.

IRELAND: The totality principle I rely upon surely as a response to the proposition that there’s a potential for injustice or unfairness to arise because of the breaking up of the charges due to some potentially greater penalty that may be imposed, the submission I make directly to that is no, as a matter of law that cannot be the case if the principles are properly applied because the operation of the principle of totality is to avoid that.

And so the principle of totality does become relevant here where the prosecutor seeks an amendment out of time. Because the amendment is sought out of time the principles outlined by his Honour Nettle J in Kypri come

into play and one question is, based on those common law principles, is there unfairness and also having regard to the wording of s 21 in particular of the Criminal Procedure Act, your Honour’s needs to consider whether the amendment can occur without injustice which seems to invite a consideration, at least in part of, injustice or unfairness to the defendant.

So in meeting the allegation that because the amendments are sought out of time and because the amendments involve a breaking up of the charges there is injustice, the principle of totality slots in there as, in my submission, a complete response to that.

HIS HONOUR: But in Davis, is it not reasonable to assume from her Honour’s decision that Mr Davis’ penalty on the first charge for which he sentenced him of $10,000 is the penalty that would have applied for that charge if it had been a single charge and that all that has happened with respect to the subsequent charges, having their penalties reduced to 500, is that in addition to the 10 Mr Davis got a further for all of the charges that were laid in addition to the first one.

In this instance is it not the position, even if I were to adopt that broad outline and assume for example that in the instance where there are 41 charges here and I’m just giving numbers to be brief and easy to understand, but assume I were to find Mr Hale’s client guilty of charge 1 in the 41 charge series and fine his client $10,000 on that basis and then add 40 lots of 500 for each of the next charges. They would be 40 lots of 500 derived from an application of the principle of totality but nonetheless 40 lots of 500 that could never otherwise have been imposed on Mr Hale because the charges weren’t laid in time. Doesn’t that make 40 times 500 a matter to be weighed on the question of injustice?

IRELAND: Your Honour no‑

HIS HONOUR: In that your client elected at the time the charges were originally laid to lay three charges, didn’t elect to lay, from memory, 41 and 39 and however may have potentially underpinned the charge that is now gone.

IRELAND: Yes. My response is no your Honour for this reason.

HIS HONOUR: Yes.

IRELAND: The comparison needs to be between the rolled up charge that was laid within time.

HIS HONOUR: Yes, one maximum penalty.

IRELAND: Yes one maximum penalty but a charge that was found by the Court of Criminal Appeal to include in it allegations of multiple offences so the breach is on each and every separate day. So in terms of the criminality of the conduct that is what the defendant would have been sentenced for if there had have been a conviction on that rolled-up charge. There would have been in the context of one sentence being imposed sentencing for those contraventions, successive contraventions of condition 4 or condition 6 on each and every separate day.

The principle of totality is that because that is the overall criminality of the conduct that is involved here and firstly that doesn’t change, the overall criminality does not change or increase because the charges are broken up. The second proposition is that the principle of totality requires the overall sentence to reflect at all times the overall criminality.

So the overall amount, the addition if you like of the you know the X thousand dollars for charge 1 and a $500 if it be that for the subsequent breaches of condition 4 or condition 6, the principal of totality simply means that that must still reflect the same thing, the same constant, the same overall criminality.

So it would be to contravene the principle of totality for there to be an additional monetary imposition in my submission. So it can’t consistently with the principle of totality occur. So that is not one element of prejudice that in my submission the defendant can properly rely upon because the proper application of the principle of totality removes it.

HIS HONOUR: Yes.

IRELAND: And your Honour in terms of the sentence that was imposed by her Honour in Davis, because your Honour doesn’t know whether the 10,000 may have been notionally reduced by your Honour from the penalty that‑

HIS HONOUR: Well I understand that.

IRELAND: Yes. Your Honour they’re the additional oral points that the prosecutor seeks to make in reply in addition to the written document of 4 September 2019. Fundamentally the defendant submits in global reply that the amendments sought achieve the interests of justice.

HIS HONOUR: Prosecutor’s submission.

IRELAND: Sorry the prosecutor submits that the amendments achieve the interests of justice. The amendments can be effected without injustice. There’s also reliance on the broad and unfettered power of amendment in s 20 and the particular power in s 68 of the Land and Environment Court Act. Rather the interests of justice are all in favour of this amendment being made, in particular order 1, to capture this defendant’s alleged overall criminality. Unless there’s anything further they’re the submissions in reply.

44. It is entirely without doubt that, if the two multi-count proposed repleadings are permitted and, after trial, the Company is convicted and stands to be sentenced on multiple counts, the principle of totality necessarily arises as part of the overall sentence determination process for each conviction. In this context, it would not matter whether the sentencing process had been triggered by pleas of guilty or whether the sentencing process was triggered by findings of guilt made after a contested criminal trial. Equally, it would not matter whether, for each count, conviction and sentence was to flow from the establishing of guilt on all the proposed multiple counts for Charge 2 and Charge 3, or merely for some smaller selection of them.

45. In Georges River Council v WK Strong Pty Limited; Georges River Council v Awada [2019] NSWLEC 97, Preston CJ set out, concisely, the effect of the principle of totality. He said, at [80] and [81]:

80   The effect of the totality principle is to require the Court, which passes a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate and reflects the total criminality before the Court. In relation to fines for multiple offences, an appropriate result may be reached by reducing the amounts of the fine for each offence.

81   Care must be taken, however, to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality or the sentence for any individual offence to become disproportionate to the objective gravity of that offence.

46. The necessary inference of what his Honour wrote is that an accumulation of sentences for a series of individual offences, even if of generally the same typology, will necessarily reflect an aggregate sentence commensurate with the total criminality of the actions of the particular defendant.

47. In this instance, if the Company was to be convicted of all of the offences pressed for each of the multi-count charges, there could be absolutely no doubt that the total penalties which would be appropriate to be imposed would be significantly higher than the penalty which would be likely to be imposed if the Company was convicted on a single-count charge in each of these proceedings. This would be an injustice (and one of significance) in the sense envisaged by the use of that word in s 21(1) of the Criminal Procedure Act.

48. Although I have set out above the submissions made for the Prosecutor concerning why the principle of totality in sentencing would be ameliorative of this position, I reject those submissions in light of the significantly higher maximum penalty exposure that would arise.

49. Whatever might be the application of the principal of totality (if all counts resulted in findings of guilt), the necessary outcome would be a penalty on each charge significantly higher than could be expect after a finding of guilt on a single charge.

The risk in any future prosecution as a consequence of the Company’s record

50. In sentencing any person or entity who is convicted of a criminal offence, a court is obliged to have regard, as part of the consideration of the offender’s subjective circumstances, to the offender’s prior convictions (if any) that are relevant. This is mandated by s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1996 (the Sentencing Procedure Act).

51. In this instance, in addition to the proposed multi-count charges posing a significant financial risk based on the applicable penalties for the Company if it was to be convicted on such a basis, such convictions would also pose a future risk for the Company, a risk which would arise if the Company was charged in the future with some further offence of a planning or environmental nature.

52. If the Company was to be convicted on multiple counts of breaching either or both of Conditions (4) and (6) of the Company’s development consent, such sentencing process must consider the need for specific deterrence for the Company; nonetheless, the potential arises that the Company may offend in future; be charged; be convicted; and stand to be sentenced.

53. In this context, it is to be noted that the present proposed charges (whether multiple counts or a single count in each proceedings being irrelevant) are ones of strict liability, meaning that any future Prosecutor charging the Company for a future offence merely needs to establish the facts of the alleged breach to give rise to conviction and, then, movement to the sentencing process.

54. In circumstances of such hypothetical future conviction, s 21A(3)(e) of the Sentencing Procedure Act would then come into play, requiring that sentencing judicial officer to have regard to the Company’s prior relevant convictions. Multiple convictions would weigh more heavily against the Company than a single one on either charge.

Reputational risk

55. From 15 July 2015, an amendment to the EP&A Act came into effect. This amendment inserted s 126(2A) - a provision that had the effect of expanding the range of orders able to be made as a consequence of a conviction for a breach of the Act. The amendment effected the importation of Pt 8.3 of the Protection of the Environment Operations Act 1995 (the POEO Act) as a suite of available measures in circumstances where a defendant was, relevant to matters here requiring consideration, convicted of an offence pursuant to s 125(1) of the EP&A Act (for a detailed explanation, see Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 at [113] to [133]).

56. This new provision has had the effect, in the context of the matters here requiring consideration, of permitting the making of publication orders provided for in s 250(1)(a) of the POEO Act if the Company was convicted of charges laid by the Prosecutor.

57. In each of the summonses commencing these proceedings, the Prosecutor sought, as one of the outcomes:

1 Such further orders pursuant to Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court thinks fit.

58. If the Company is convicted of any offence arising out of these proceedings, it will be almost inevitable that a publication order would be made as part of the element of general deterrence arising out of the proceedings (a matter arising out of the objective for sentencing in s 3A(b) of the Sentencing Procedure Act).

59. However, it is also the position that the making of a publication order upon conviction for an offence also has the consequence of inflicting reputational damage on the individual or entity convicted of the offence.

60. In these circumstances, permitting a multi-count amendment in each of these proceedings would have significant potential to expose the Company to far greater reputational damage if it is convicted in such multi-count circumstances than would be the position if it was to be convicted on either or both counts arising from a single-count summons in each proceedings.

61. Subjecting the Company to that risk, although of less significance than the penalty risk exposure, is nonetheless a factor contributing to the injustice of permitting multi-count amendments to either charge.

The expiry of the time for laying charges

62. The fourth factor to be considered in determining whether or not there would be injustice occasioned to the Company if the Prosecutor’s multi-count amendments were to be permitted arises from the timing of these proposed amendments. The conduct by the Company said to give rise to the various elements in the multi-count charge was a period of time commencing 20 January 2015 and expiring on 18 March 2015.

63. The provision in the EP&A Act establishing the limitation on time when fresh charges can be laid was, relevantly, s 127, a provision in the following terms:

127   Proceedings for offences

(1)   ...

(2)   ...

(3)   ...

(4)   ...

(5)   Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.

(5A)   However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of:

(a)   in relation to proceedings for an offence instituted by or with the consent of the Secretary or a member of staff of the Department—any investigation officer who is a member of the staff of the Department, or

(b)   in relation to proceedings for an offence instituted by or with the consent of a council or a member of staff of a council—any investigation officer who is a member of the staff of that council, or

(c)   in relation to proceedings for an offence instituted by any other person—any investigation officer.

In this subsection, investigation officer means an investigation officer within the meaning of Division 1C, whether or not the person has the functions of an investigation officer in connection with the offence concerned.

64. There is no dispute that the time limit within which original charges were permitted to be laid has now expired. It is not now permissible for the Prosecutor to lay further original charges against the Company for its conduct during the period it operated the temporary asphalt-making plant within the Prosecutor’s local government area.

65. Although, perhaps, a lesser corollary of the first two matters discussed above, it is also the position that, by the proposal to lay each multi-count charge, the Prosecutor effectively seeks to lay the many additional charges in each matter well after the expiry of the time period within which such charges could be laid.

66. This is sought by an amendment process to a charge which was laid within the permitted time period and is, as a consequence, not statute-barred by that time period. The question of the Prosecutor electing to pursue but a single charge for the breach of Condition (4) of the development consent and a single charge of Condition (6) of the development consent, in lieu of pursuing a charge for each of the relevant days during the period originally proposed in the duplicitous charges and now proposed to be aggregated in the multi-count charge in each instance when such multiple charges were available to the Prosecutor, is also a factor to be weighed in this consideration of whether permitting the multi-count charges would constitute an injustice.

67. To permit this, in itself, would visit an injustice on the Company, given that it would have been open to the Prosecutor to lay individual charges for breaches of either Condition (4) or Condition (6) for each day now proposed in the multi-count charges and to have done so within the permitted time period. That the Prosecutor elected to proceed in the fashion embodied in the two Summonses filed on 19 December 2016 was a matter of forensic choice for the Prosecutor. It would be unjust, in effect, to permit the Prosecutor to revisit its original forensic decision about the laying of charges by now permitting the multi-count amendments to be made.

The application to reopen

68. For the reasons I have explained in the above section of this judgment, the first order sought in each Notice of Motion to amend the charge in each of the Summonses filed on 19 December 2016 is to be rejected on a “first principles” basis as being an application which could not be granted without occasioning injustice to the Company. I have earlier explained why I regard the proposition that a single charge should be permitted to be amended to substitute multiple charges would be to render an injustice on the Company in each matter. As earlier observed, to do so would be unconscionable.

69. As I earlier observed, I have reached that conclusion on the assumption that, solely for the purposes of these amendment proceedings, that which would be disclosed by Mr Bradbury's affidavit, if read in its unredacted form, together with the material proposed to be exhibited to it:

• was based on material which had been lawfully obtained;

• would be admissible at trial, despite any objection which might be taken to it pursuant to s 135 of the Evidence Act 1995;

• consequentially, would have high probative value against the Company on each of the multiple charges which would arise if the first order, in each Notice of Motion seeking leave to amend the Summonses to substitute multiple charges, was approved.

Despite making those assumptions (effectively, in my view, taking the Prosecutor's case at its highest, with respect to the alleged breaches of Conditions (4) and (6) of the 2015 development consent), it would render a monstrous injustice on the Company if an amendment of the nature sought to substitute multiple amended charges in each matter was to be permitted.

70. Having reached that conclusion, on the basis of those assumptions concerning Mr Bradbury's 28 June 2019 affidavit and the material exhibited to it, there is no basis upon which it would be appropriate for me to read that affidavit in its unredacted form or to examine the material exhibited to it.

71. That affidavit, and the material exhibited to it, has no part to play in my consideration of whether leave should be granted, in each matter, to substitute a single amended, particularised charge in each matter. It is, therefore, self-evident that the Notice of Motion seeking leave to reopen to rely on this material is to be dismissed. It is equally self-evident that, although I have set out the assumptions I have made about that affidavit and the exhibited material for the purposes of determining the first proposal in each of the Notices of Motion seeking leave to amend, I have, in fact, made no rulings of any substantive nature with respect to that material as, obviously, I am unaware of its content.

The proposed single-count amendments

Introduction

72. In the alternative to the multi-count amendment to each charge sought by the Prosecutor as its preferred outcome to the Notice of Motion in each of the proceedings, the Prosecutor’s alternative, fall-back proposal in each matter was to rely on a single amended charge. Each of those single amended charges (alleging a breach of the relevant condition in each proceedings) have earlier been set out.

73. As can be seen from their terms, each of these charges alleges a breach of the relevant development consent condition on a single day. However, the Prosecutor does not nominate the same day upon which the single count breach is alleged. In the proceedings in which a breach of Condition (4) is alleged, the date of the alleged breach in the single-count charge is 31 January 2015, whilst that in the Condition (6) breach count is 18 March 2015.

The Prosecutor’s submissions on the proposed single-count amendments

74. Mr Ireland submitted that the statutory power to amend in s 21(1) of the Criminal Procedure Act was broad and only to be limited if amendment would be unjust.

75. In support of this submission, Mr Ireland cited Area Concrete Pumping v Inspector Childs [2012] NSWCA 208, at [115], where Basten JA said:

115   In accordance with the principle stated in Owners of the Ship 'Shin Kobe Maru', a statutory provision which permits amendment of a charge by particularisation, at any time, should not be subject to implied limitations which would prevent a prosecutor identifying a legitimate offence and which would allow a possible offender to escape penalty where he or she could have been required to stand trial without unfairness.

76. Mr Ireland also relied on s 68 of the Land and Environment Court Act 1979 (the Court Act) as an alternative source of power to permit amendment. He noted that this provision had been relied on to amend a criminal pleading in the Court (citing Cooper v Coffs Harbour Council (1997) 97 LGERA 125 at 132 at footnote 31).

77. Mr Ireland further submitted that either statutory power supported amendment in each proceedings as such an amendment was necessary in the interests of justice – because, without the amendment, the Company will evade facing a trial on charges properly reflecting the true criminality of its conduct.

78. Mr Ireland contended that not to allow amendments would be contrary to s 21, as there was no injustice to the Company caused by a single-charge amendment. Mr Ireland further added that the only circumstance in which a charge cannot be amended is if the charge is missing an essential legal element. He distinguished this from a failure to provide essential factual particulars, asserting only the latter applied in the current circumstances and therefore the charges could be amended (citing Boujaoude v R [2008] NSWCCA 35 at [42]-[49]).

The Company's submissions on the proposed single-count amendments

79. Mr Hale submitted that the single-count amendments proposed in the alternative by the Prosecutor were defective and that, therefore, the alternative orders sought by the Prosecutor to rely on the proposed amended single count in each of the proceedings should be rejected. He said that they were defective as they were a nullity in law, due to not disclosing an offence punishable by law and also lacking an essential element of the alleged offence, and therefore were incapable of amendment (Company’s submissions, 28 May 2019 [24]).

80. Mr Hale submitted that an indictment founds the jurisdiction of the Court, and whether or not an indictment discloses an offence is determined by the Statement of Particulars. He argued that, as originally laid, Charge 2 was expressed in the singular, identifying only one thing which constituted the offence, with the charge period spanning from 20 January 2015 to 18 March 2015. He then asserted that conduct spanning a period of more than one day could not constitute an offence for the reasons held by the Court of Criminal Appeal (also applying the analysis of Gaudron and Gummow JJ in Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 91).

81. In DPP v Kypri (2011) VR 157; [2011] VSCA 257, Nettle JA said, at [24]:

24   A charge which lacks an essential element of the alleged offence is defective and, at common law, may be described as a nullity. If, however, the true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission, the charge may be amended ….. (even out of time) to include the missing element; on the basis that such an amendment does no more than clarify what is already apparent from the face of the charge.

82. Prima facie, that which is quoted above is the position here applicable.

83. However, Mr Hale argued that, in these circumstances, the failure to identify the date of the discrete offences meant it was not clear what the offence was that was being alleged against the Company and this could not be saved by s 16(2) of the Criminal Procedure Act. To support this, Mr Hale cited Rockdale Beef v Industrial Relations Commission of NSW [2007] NSWCA 128 (Rockdale Beef), where Basten JA said, at [132]:

132 More broadly, whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given. If the notice could be read as not clearly identifying the offence charged, or at least “the nature of” that offence, in some material respect, the defect might be outside the scope of the remedial provision. The effect of s 16(2) may be seen to weaken the mandatory statutory requirement with respect to notice, by removing a basis of invalidity. However, its operation will not depend on the good faith of the prosecutor, but on the effect of the notice.

84. It was the position advanced by Mr Hale that, in this case, the relevant charge, on its face, did not identify the nature of the charge because of the absence of identification of a specific date upon which the offending conduct was alleged to have taken place. This took the matters outside the scope of potential rectification by amendment.

85. However, it is to be observed that, for the purposes of my consideration of the submissions advanced by Mr Hale that the single-count amendments are also impermissible, nothing turns on the fact that different dates are proposed if the single-count amendments are permitted.

The Prosecutor’s submissions in reply

86. In response to the Company’s submissions, Mr Ireland noted that the problem identified with each charge that gave rise to the duplicity was not the pleading of the charge but the particulars and submitted that the power of amendment the Prosecutor relies on includes the power to amend particulars. He specifically referenced 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 (Bogamildi) as an example of the power of amendment including the pleading of a charge, such as carrying out development in contravention of a development consent (Prosecutor’s submissions in reply, 3 June 2019 [4]).

87. Mr Ireland further submitted that the Company’s submission that each charge is a nullity was incorrect and contrary to my earlier judgment and Court of Criminal Appeal judgment, noting my earlier judgment had found the charges were amenable to rectification by amendment (Prosecutor submissions in reply, 3 June 2019 [10]).

86. Although Mr Ireland admitted that each charge as originally laid was defective, he put that the defect did not constitute an offence unknown to the law (Prosecutor submissions in reply, 3 June 2019 [12]) and that this defect could be cured by amendment. Mr Ireland further submitted that the law is clear that an amendment to essential factual particulars, such as time periods, is within the scope of a permissible amendment to a summons - citing Bogamildi. In this case, Pepper J said, at [73]:

The amendment of the summons by the insertion of new dates for the charge period will not change the essential nature of the offence …

Conclusion on the proposed single-count amendments

89. Although I have held that multi-count amendment would offend against s 21(1) of the Criminal Procedure Act, it does not follow that a single amended count in each proceeding would be offensive.

90. For the purposes of considering the Prosecutor’s alternative application to permit a substituted single count alleging a breach on a nominated date, I am satisfied that none of the bases upon which I have rejected the multi-count amendments apply to consideration of whether or not it is permissible and appropriate to permit the alternative single-count amendments sought in each proceedings.

91. In [132] of Rockdale Beef earlier quoted, Basten JA considered whether a defect is of a kind that is not able to be covered by s 16(2)(a) of the Criminal Procedure Act. His Honour proposed that “if the notice could be read as not clearly identifying the offence charged, or at least ‘the nature of’ that offence, in some material respect, the defect might be outside the scope of remedial provision.”

92. This suggests quite a broad scope for amendment under s 16(2)(a), as understanding the nature of an offence is not necessarily bound to knowing the dates of the offence. While this is excerpt is not the whole of that paragraph, nothing else in that paragraph discusses whether a failure to identify dates of an offence would fall outside the scope of s 16(2)(a). In fact, a reading of that paragraph, when coupled with [123] of Rockdale Beef (as noted by Robson J in Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd (No 2) [2019] NSWLEC 73 (Sell & Parker (No 2)), means that:

… so long as a defect can be remedied by amendment, the informations    are not “void” in the sense that the “defects cannot be removed by amendment or otherwise put aside.

93. I have concluded that amendment to allow for single-charge offences is permissible and should be made in the current circumstances. This is because the nature of the offence - being, carrying out development in contravention of a condition of development consent, in each instance - was known to the Company. By allowing amendment to specify the dates of the offending conduct, the defect will be cured and it will not be “void” in the sense proposed by Basten JA in Rockdale Beef.

94. This is supported by what Pepper J said in Bogamildi, as noted above, namely, that amendment of a summons by the insertion of new, precise date to specify the time of the offending conduct will not change the essential nature of the offence. Although her Honour was dealing with a different offence, the clearing of native vegetation under the Native Vegetation Act 2003, her Honour made plain that an incorrect date period did not change the essential nature of the offence in question. The same position applies with the offending conduct in each of these proceedings.

95. As observed by Robson J in Sell & Parker (No 2), at [35], “amending dates in a summons did not change the essential nature of the offence.”

96. The power of amendment is broad and only limited by unfairness to a defendant, which does not here arise. Despite the dates of the charges needing to be amended, the Company was aware of the essential nature of the offence and will not be unfairly prejudiced by allowing the Prosecutor to amend the dates to charge offences on single nominated days in each proceeding.

97. I have earlier dealt with the question of the expiry of the time period for the laying of fresh charges, doing so in the context of the proposed multi-count charges sought by the Prosecutor. It is unnecessary to deal with this topic further concerning the proposed amended single charges.

98. It is sufficient to note that, for the reasons outlined above, permitting the amended single counts is entirely unexceptional and within power. There is no reason why, as a matter of discretion, the single-charge amendments should not be permitted.

99. I am therefore satisfied that I should grant leave to the Prosecutor to amend in the terms of the proposed single charge sought to be relied upon in each Summons by the 23 April 2019 Notice of Motion in each proceedings.

Costs

100. Given that I have concluded that the Prosecutor is successful, but only to the limited extent that it is permitted to rely on, in each matter, a single charge (these charges being ones which, in each instance, in the amended form for which leave has been given, I am satisfied are valid), but that the Prosecutor has not been successful in its seeking of leave to rely on multiple additional charges in each matter, the Prosecutor can only be regarded as partially successful.

101. On the other hand, although the Company has successfully resisted the Prosecutor being granted leave to rely on the multiple additional charges proposed in each matter, it has been unsuccessful in convincing me that the resultant single charge (arising from my determination that the second element in each application to amend should be permitted) would result in a defective charge in each instance. I have not been persuaded that, separately from the reasons for resisting the multiple-charge amendment, there is a proper basis that would warrant those single charges being struck out.

102. Finally, as it has not been necessary to address the merits of the application to reopen to rely on Mr Bradbury's 28 June 2019 affidavit (and therefore not requiring me to address the issue as to whether or not the detailed material, whatever it might disclose, had been unlawfully obtained), and as this was, in comparative terms, a much less significant element of the matters which I was required to address, I have taken the position that the elements of these hearings addressing that matter should also be regarded as weighing neutrally in my consideration of the question of costs.

103. As each party has been, effectively, equally successful, I am satisfied that there should be no order for costs, with the result that each party will bear its own costs.

Orders

104. The orders of the Court in Matter No 381474 of 2016 are:

1. The Notice of Motion of 28 June 2019 seeking to reopen those proceedings and to rely on the affidavit of Alan Bradbury sworn on 28 June 2019 is dismissed; and

2. In the Notice of Motion filed on 23 April 2019 seeking to amend the charge alleging breach of Condition (4) of the development consent granted to the Company on 13 January 2015:

1. Leave to rely on an Amended Summons pleading 41 counts alleging breaches of the condition is refused; and

2. Pursuant to s 21(1) of the Criminal Procedure Act 1986, leave to amend to rely on a single charge alleging that the Company breached Condition (4) on 31 January 2015 is granted.

105. The orders of the Court in Matter No 381475 of 2016 are:

1. The Notice of Motion of 28 June 2019 seeking to reopen those proceedings and to rely on the affidavit of Alan Bradbury sworn on 28 June 2019 is dismissed; and

2. In the Notice of Motion filed on 23 April 2019 seeking to amend the charge alleging breach of Condition (6) of the development consent granted to the Company on 13 January 2015:

1. Leave to rely on an Amended Summons pleading 40 counts alleging breaches of the condition is refused;

2. Pursuant to s 21(1) of the Criminal Procedure Act 1986, leave to amend to rely on a single charge alleging that the Company breached Condition (6) on 18 March 2015 is granted; and

3. No order as to costs.

Directions

106. In order to permit the parties to have sufficient time to consider the terms of this decision, I direct that both matters be listed before the List Judge for further directions on Friday 13 December 2019.

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Decision last updated: 28 November 2019