Wakool Shire Council v Garrision Cattle Feeders Pty Limited

[2010] NSWLEC 199

Reported Decision: 177 LGERA 282
[2011] ALMD 776
[2011] ALMD 775
[2011] ALMD 679

Land and Environment Court

of New South Wales

CITATION:

Wakool Shire Council v Garrision Cattle Feeders Pty Limited [2010] NSWLEC 199
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

PROSECUTOR
Wakool Shire Council

DEFENDANT
Garrison Cattle Feeders Pty Limited

FILE NUMBER(S):

50033 of 2010

CORAM:

Sheahan J

KEY ISSUES:

CRIMINAL LAW :- formulation of charge - does section create only one offence - duplicity, ambiguity or uncertainty - patent and latent duplicity - particulars have not overcome the duplicity, ambiguity, or uncertainty - requirement that prosecutor elect among alternative formulations of a charge or charges under the statutory provisions

LEGISLATION CITED:

Protection of the Environment Operations Act 1997

CASES CITED:

Altaranesi v Whalan [2010] NSWSC 149
B v R [2008] NSWCCA 85
Davis v Regina [2006] NSWCCA 392
Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481
Environment Protection Authority v Hardt [2006] NSWLEC 438; 148 LGERA 61
Environment Protection Authority v Hogan [2008] NSWLEC 125
Environment Protection Authority v Gossayan [2009] NSWLEC 181
Environment Protection Authority v Smart Skip Pty Ltd [2009] NSWLEC 204
Ex parte Polley; re McLennan (1947) 47 SR (NSW) 391
Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160
Hardt v Environmental Protection Authority [2007] NSWCCA 338; 156 LGERA 337
R v Manwaring [1983] 2 NSWLR 82
Romeyko v Samuels [1971-2] 2 SASR 529

DATES OF HEARING:

29 September 2010

 
DATE OF JUDGMENT: 

15 October 2010

LEGAL REPRESENTATIVES:

PROSECUTOR
Mark Seymour, barrister
SOLICITORS
Kell Moore

DEFENDANT
Tom Howard, barrister
SOLICITORS
Kells the Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

15 October 2010

50033 of 2010 Wakool Shire Council v Garrison Cattle Feeders Pty Limited

JUDGMENT

1 His Honour: The court has before it two interlocutory Notices of Motion in this class 5 prosecution. It is appropriate that they were heard, and that they be determined, together.

2 The charge laid by the Council alleges an offence against s 144 of the Protection of the Environment Operations Act 1997 which now provides:

“1. A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used , as a waste facility without lawful authority is guilty of an offence …

2. In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility”. (emphasis added)

3 The words “uses” and “causes” were added to the offence, effective 1 May 2006.

4 As currently framed, the charge against this Defendant is that it:

“ … did use the Land or permit the use of the Land for the purpose of a waste facility without lawful authority in that it has stored, treated, processed, sorted or disposed of waste on the Land, being each of (1) general waste; (2) silage wrap; or (3) paunch”. (emphasis added)

5 The Prosecutor’s Notice of Motion seeks to add to the charge the words “cause or”, so that it will read, and allege, that the Defendant: “… did use the Land or cause or permit the use of the Land …”. The solicitor for the Prosecutor in his affidavit of 20 September 2010 indicates only that “the Order omitted” those words in the section from the original charge. The Prosecutor’s written submissions (par 2) says that they were “unintentionally omitted from the originating process”.

6 On the other hand, by its Notice of Motion of 20 September, the Defendant seeks an order or a direction, pursuant to Part 75, r 11 of the Supreme Court Rules 1970, that the Prosecutor elect as between the allegations in the summons as originally filed, namely between the allegation that the Defendant did “use the land” and the allegation that the Defendant did “permit the use of the land”, in each case “for the purpose of a waste facility”. Should the Prosecutor obtain leave to amend to add “cause”, the Defendant seeks an order or direction that would require the Prosecutor to elect among the three limbs of the section.

7 The solicitor for the Defendant annexes to his affidavit in support of the Defendant’s Notice of Motion, various items of correspondence exchanged between the parties between 26 August and 16 September 2010. While the correspondence involves some argument about “lawful authority”, the Prosecutor relies on the plain words in s 144(2), to the effect that the burden of proving “lawful authority” lies on the Defendant. Solicitors for the Prosecutor have pointed out that the Prosecutor will contend that the Defendant’s land does not enjoy the benefit of any relevant development consent for the conduct of a waste facility.

8 In its request dated 26 August 2010, the day before the first directions hearing, the Defendant sought the following particulars (emphasis added):

“ 1.1.1 Is it alleged that the Defendant used the Land for the purpose of a waste facility or is it alleged that the Defendant permitted the use of the Land for the purpose of a waste facility? We require you to elect between these two alternatives.
1.1.2 If it is alleged that the Defendant used the Land for the purpose of a waste facility, please identify all of the facts and circumstances on which the Prosecutor relies in so alleging.
1.1.3 If it is alleged that the Defendant permitted the use of the Land for the purpose of a waste facility, please identify all of the facts and circumstances on which the Prosecutor relies in so alleging, including the identity of the person or persons whom it is alleged the Defendant permitted to use the Land for the purpose of a waste facility.”

9 In its reply later that same day, the Prosecutor disagreed that the summons “lacks particularity”, and responded to the above paragraphs in the following terms (emphasis added):

1.1.1 It is alleged that the Defendant used, or permitted the land to be used as a waste facility. The statute does not require the Prosecutor to elect between those options as they are not alternatives , as you allege.
1.1.2 This is not a proper request for particulars. Nevertheless, in answer to this and other requests made from 1.1.2 to 1.1.3, the Prosecutor will reply upon the following facts to establish that the Defendant used or caused or permitted the land to be used as a waste facility:
(a) The presence of material including paunch, metal filings and scraps, car parts, silage wrap, and concrete rubble that would not ordinarily be expected to be generated from an agricultural use of the land and which is of a kind that is properly characterised as discarded, rejected, unwanted, surplus or abandoned material.
(b) That this material was buried.
(c) The admission recorded at [6] of the affidavit of Alan William Thomas to the effect that material was being taken from Garrisons Feedlot and an abattoir in Swan Hill and applied to the land.
(d) The admission recorded at [13] of the affidavit of Alan William Thomas and [15] and [21] of the affidavit of Mark Graham Williams that what had been buried was ‘rubbish’ and ‘waste’.
(e) The lie of Mr Hartshorn recorded at [21] of the affidavit of Mark Graham Williams.
1.1.3 See above.”

10 When the matter first came before the court in a Friday directions list, on 27 August 2010, counsel for the Defendant (Mr Howard) indicated that the Defendant was not ready to plead to the charge, because it did not have sufficient particulars to enable it to identify precisely the nature of the charge it has to meet.

11 In view of those comments made by counsel suggesting that the charge “may be defective”, the solicitor for the Prosecutor wrote to the solicitor for the Defendant again on 2 September. The Prosecutor remained of the view that, as the charge as drafted merely reflected the terms of the statute, a Prosecutor “is not required to elect between the indistinguishable concepts of using land, or permitting or causing the use of land, for an unlawful purpose” (emphasis added). The Prosecutor foreshadowed amending the charge to include “cause”.

12 On 7 September 2010, the Defendant contended that the three concepts in s 144(1) “are not, as submitted, indistinguishable … [s 144(1)] creates multiple offences for owners/occupiers of land, namely: using land as a waste facility without lawful authority; causing land to be used as a waste facility without lawful authority; and permitting land to be used as a waste facility without lawful authority”. The Defendant further contended that “the charge, as currently framed, impermissibly alleges, in the alternative, both the first … and the third of the above offences … . This framing of the charge renders the charge defective for uncertainty or duplicity and must be rectified by your election as between the alternatives.” The Defendant indicated that it would oppose the amendment of the summons sought by the Prosecutor as that amendment “would exacerbate the already existing uncertainty/duplicity by impermissibly purporting to add a third alternative …” (all emphasis added).

13 Whereas the Prosecutor in its letter of 2 September had relied upon the decision of the Court of Criminal Appeal in Hardt v Environmental Protection Authority (“Hardt”) [2007] NSWCCA 338; 156 LGERA 337, the solicitor for the Defendant pointed out that in Hardt the charge was framed only on the basis of “permitting”. Hardt in fact predated the amendment of that section to provide alternatives to “permitting” (see [3] above).

14 The Defendant maintains its position regarding the charge. In this case any confusion caused by the ambit of the charge as pleaded has not been cured, from the Defendant’s point of view, by the provision of particulars.

15 On Thursday 9 September 2010, the solicitor for the Prosecutor emailed the solicitor for the Defendant suggesting a discussion of the outstanding issues between the parties, and an adjournment of the directions hearing for a further two weeks from 10 September to 24 September to allow those discussions to take place. I made appropriate directions on 10 September to enable that to occur and stood the matter over to 24 September for plea and/or mention. The Short Minutes of Order to which I agreed on that occasion included the following: “The court notes that the parties are continuing negotiations as to the final form of the charge contained in the summons and the Defendant is unable to enter a plea at this time”. I included by consent a direction that the parties file and serve any Notices of Motion and evidence in support thereof on or before 20 September, to be returnable on 24 September. Both sides complied with that timeframe, and when the matter came on for further directions on 24 September, it was referred to the Registrar for the fixing of a hearing date. The motions came on before me for hearing on 29 September.

Contentions

16 The Defendant contends that the disjunctive expression of the charge as framed makes it defective for uncertainty or duplicity, a defect that would be exacerbated if the Prosecutor were allowed to amend to include the third element.

17 The Defendant contends that there is clear prejudice if the Prosecutor is permitted to prosecute the allegations in the summons in the alternative. The Defendant is not properly informed of the case to be presented against it, and any particulars it might seek must depend upon which allegations are pressed. Consequentially, the admissibility of evidence may hinge upon which allegation is pressed.

18 On his contention that there are three separate offences available to be charged under s 144(1), rather than only one, Mr Howard argues that there are numerous examples where single sections of an act such as the Crimes Act penalise “more than one distinct type of behaviour and thereby create multiple offences”. He submits that the present provision cannot properly be characterised as one which penalises “one act possessing one or more forbidden characteristics”. As the charge focuses on the one person, the Defendant, the allegations featured disjunctively in the summons are mutually exclusive – the allegation that the Defendant used the land identifies the person using the land as the Defendant, but the allegation that the Defendant permitted the use of the land conveys that the actor is not the Defendant, but some third party and that the offensive conduct on the part of the Defendant was in failing to prevent the use. An allegation of “cause”, if added, more resembles the former than the latter, but has its differences from both.

19 Mr Seymour, counsel for the Prosecutor, says (submissions, par 11) that “the primary concern of the offence under s 144 of the PEO Act is the use of the land as a waste facility without authority. The offence is committed when there is unlawful and unexplained waste present on the land. The Act does not create three separate offences of use, causing the use, or permitting the use. Rather, those are three ‘instances’ of the type of conduct that the Parliament could prescribe as falling under the one offence.” He submits that there can be no duplicity in a charge which merely repeats the words of the section. It is not the Prosecutor’s intention that the Defendant be charged with or punished for more than one offence (submissions par 15), and the Prosecutor has clearly particularised its case (see par 1.1.2 in [9] above). The “forbidden act” is the unexplained presence of waste on the subject land, and there is nothing wrong with charging three alternative explanations of that presence and succeeding in proving only one.

The cases

20 Consideration of all the cases relied upon by counsel on both sides indicates that the decision in each case must rest on its own particular facts. Nonetheless, some very eminent judges have expounded upon the type of dilemma facing the court in the present case, and it is instructive to look at the reasoning and the background in each case.

21 The NSW Court of Criminal Appeal revisited the question of duplicity or uncertainty in the 2008 terrorism case B v R [2008] NSWCCA 85, which is relied upon by Mr Seymour as “the most recent authority on the parameters of the principle of duplicity”.

22 The appellants were charged on an indictment under a section of the Commonwealth Criminal Code Act, alleging a single count that they conspired with each other and with other people to do acts in preparation for a terrorist act or acts. The accused appellants alleged that the charge was bad for duplicity. Whealy J had held that, as the indictment charged one single agreement, it was not “patently duplicitous”. Having regard to the particulars supplied, His Honour also held that the situation was not “latently duplicitous”. The agreement was to do a number of acts which may constitute a number of offences, but Whealy J held that that did not make the single count duplicitous. The code did not require that the conspiracy charge be limited to an agreement to commit only one offence. The precise nature of the act or acts being contemplated may be uncertain and awaiting decision, possibly by people outside the agreement.

23 I will return to B v R, but will survey some older authorities first, to put the duplicity dichotomy (“patent” cf. “latent”) in some context.

Polley

24 In Ex parte Polley; re McLennan (“Polley”) (1947) 47 SR (NSW) 391, Polley was charged with not keeping licensed premises free from offensive matter. It was contended that the charge was bad for duplicity or uncertainty, and that the Prosecutor should elect. Jordan CJ said (at 392) that the question whether an enactment creates one offence or several depends upon its subject matter and language considered in the context. Mere use of the word “or” does not show that it is intended to create two offences. His Honour continued:

“ It may sufficiently appear that it is intended to create only one offence of a particular type and to supply one or more instances. Thus, where a statute prohibited a person from having a certain class of things in his possession or control, the essence of the offence so created was regarded by one learned judge as having the things in one’s control, possession being instanced as a form of control, and by another learned judge as having the things, possession and control being instanced as modes of having ”. (See Hedberg v Woodhall (1913) 15 CLR 531). “W here a statute made it an offence to be in charge of a motor vehicle whilst under the influence of drink or a drug, to such an extent as to be incapable of having proper control of it, it was held that there was here only one offence, that of being in charge whilst incapable, drink or drugs being instanced as causes of incapacity” . (See Thomson v Knights [1947] 1 All ER 112).

25 The relevant provision in Polley was in a part of the Act entitled “Sanitary provisions”, and required the licensee to keep the premises “free from offensive or unwholesome matters”. Jordan CJ was unable to regard the provision as creating two offences, saying (at 393): “I think that it creates only one, that of failing to keep licensed premises free from insanitary matters of the types of which those which are offensive or unwholesome in a sanitary sense are given as instances”. His Honour thought it important that “the Magistrate had material before him showing that the accused knew perfectly well the nature of the offensive matters which were charged against him”.

Romeyko

26 One authority commonly relied upon in these types of cases is Romeyko v Samuels [1971-2] 2 SASR 529. (Zelling J’s first instance judgment on the appeal commences at 529, and the leading judgment of the Full Court, that of Bray CJ, commences at 546. Bright and Sangster JJ agreed with Bray CJ, but added some individual comments. The appeal from the order made by Zelling J was dismissed, albeit on varying grounds).

27 Romeyko was charged with a postal offence based upon s 107 of the Post and Telegraph Act 1901-1970 (Cth), which provided (see 547) as follows:

“Any person who knowingly sends or attempts to send by post any postal article which -
(a) encloses an explosive or a dangerous filthy noxious or deleterious substance or a sharp instrument not properly protected or a living noxious creature or any other thing likely to injure other postal articles in course of conveyance or to injure an officer of the department or other person; or
(b) encloses an indecent or obscene print painting photograph lithograph engraving book card or article; or
(c) has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character,
shall be liable to a penalty not exceeding two hundred dollars or to imprisonment with or without hard labour for a term not exceeding two years."

28 As Zelling J noted (at 531), Romeyko was charged that “he knowingly sent by post a postal article which had therein words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character, contrary to s 107 …”. Romeyko was convicted and his appeal against conviction came before Zelling J. The headnote records (at 530) that Zelling J, inter alia, made the following relevant findings:

1. A mistaken view of the law did not prevent Romeyko from having “ knowingly ” sent the articles within the meaning of s 107.
2. That s 107 created at least four, and possibly five, separate and distinct offences in respect of words, marks or designs of an “ indecent”, “obscene”, “blasphemous”, “libellous ”, or “ grossly offensive ” character.
3. That unless there was statutory authority for the joinder of such charges in the one complaint, the complaint against Romeyko was bad for duplicity in that it joined charges to separate offences.

29 The Full Court held (see 530-1) that s 107(c) created only two offences, namely knowingly sending, or attempting to send, by post a postal article containing one or more of the prohibited characteristics, and that the complaint made against Romeyko was not bad for duplicity in that respect. However, the complaint was defective in that it improperly charged Romeyko in respect of “marks or designs” as well as “words”, and unnecessarily alleged that the words were “blasphemous” and “libellous”, which was not suggested by the prosecution. By reason of the improper introduction of these matters, and the failure of the prosecution to supply Romeyko upon his request with full and proper particulars of the allegations made in the complaint, the Court held that the Defendant had been prejudiced in the conduct of his defence.

30 The following passages from Bray CJ’s judgment (at 552-553, but emphasis now added) have been frequently relied upon since:

The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics . Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow…. s 107(a) creates several offences if more than one of the things referred to therein is enclosed in the same postal article, but it is not necessary to decide that. In s 107(a) the various prohibited things are each separated by the word "or", whereas in s 107(c) the word "or" only appears once before the last item in the collection, and this has sometimes been regarded as a feature of importance, though with respect, it seems to me that it can only possess very limited significance.

I think, then, that s 107(c) only creates one offence of sending a postal article of the kind referred to. This conclusion renders it unnecessary to discuss many of the points canvassed about the form of the complaint in the event of the Court holding that more than one offence was alleged in it.

That does not mean, however, that I think the complaint was properly drawn. Clearly, in my view, it was not. The pleader has been curiously selective. In my view, if it is intended to allege that the postal article in question possesses more than one of the forbidden characteristics, then they should be mentioned conjunctively, not disjunctively, and if any of those characteristics is not intended to be alleged it should not be mentioned at all . I could, perhaps, conceive of a rare case where the prosecutor was really in doubt as to which of the forbidden characteristics was present but thought that he could prove that at least one of them must have been, as if, for example, he was not really sure whether an inability to exercise effective control over a car was due to drink or to drugs but was sure that it must have been due to one of them. Even then I should have thought it might ordinarily be better to allege the two conjunctively instead of disjunctively.
…
At common law an indictment which alleged in the same count two offences was bad in all circumstances if they were alleged disjunctively and bad also when they were alleged conjunctively unless the same act could constitute more than one offence.
…
Probably, in strictness, counts improperly joined conjunctively are bad for duplicity, and counts improperly joined disjunctively are bad for uncertainty ”. (See Bastin v Davies [1950] 2 KB 579, at 581 per Lord Goddard CJ).

Manwaring

31 The New South Wales Court of Criminal Appeal dealt with the question in R v Manwaring [1983] 2 NSWLR 82. The principal majority judgment was delivered by Miles J, and Street CJ concurred. Begg J generally agreed, but dissented on grounds not relevant to the present question.

32 Section 89 of the Crimes Act 1900 provided:

“ Whosoever by force takes away, or detains against her will, any female of any age, with intent to marry or carnally know her, or to cause her to be married to or carnally known by any person, shall be liable to penal servitude for fourteen years”.

33 The court held that the language used when seen within the context of the Act, indicated an intention on the part of the legislature that two offences were intended to be created, one of forcibly taking or detaining the woman by the accused with the intent of marrying or carnally knowing her himself, and the other of forcibly taking or detaining a woman with the intent of causing her to be married or carnally known by someone else.

34 The court applied Bray CJ’s test in Romeyko, but held that to charge that the accused did by force take a woman against her will with intent to cause her to be carnally known by him and other persons or any of them, was bad for duplicity and uncertainty.

35 Miles J said (at 88G – 89E):

“ In my view there is no great difficulty in regarding an overt act combined with a particular intent as constituting a different offence from the same act done with a different intent. A wounding with intent to kill under s 27 is clearly a different offence from a wounding with intent to do grievous bodily harm under s 33. Further, there are examples in the Crimes Act of different offences created within the same section according to the intent accompanying the overt act. For instance s 33 penalizes not only malicious wounding done with intent to cause grievous bodily harm but also malicious wounding done with intent to resist lawful apprehension, and although it may be said that on the face of it the malicious wounding is in either case the same overt act, it is the specific intent which accompanies the act which characterizes that act for the purposes of the criminal law. Accordingly in my view a count alleging malicious wounding with intent to cause grievous bodily harm or with intent to resist lawful apprehension in the alternative would be bad for uncertainty. Likewise in my view the language used in s 89 seen within the context of the Act indicates an intention on the part of the legislature that two (at least two) offences were intended to be created, one the forcible taking or detaining of a woman by the accused with the intent of marrying or carnally knowing her himself and the other the forcible taking or detaining of a woman by the accused with the intent of causing her to be married or carnally known by someone else. Had the legislature intended that the intent necessary to accompany that forcible taking or detaining was that the woman be carnally known by anybody, including the accused, it would have been simple to say so. It may be observed that that was exactly what was done in the United Kingdom where the Sexual Offences Act, 1956, s 17, now provides that: "It is an offence for a person to take away or detain a woman against her will with the intention that she shall marry or have unlawful sexual intercourse with that or any other person ...”.

Empress Car Co

36 The House of Lords considered the relevant principles in Empress Car Co (Abertillery) Ltd v National Rivers Authority (“Empress”) [1998] 1 All ER 481. This was a “pollute waters” case, in which there was an appeal against conviction. It involved an allegation of “causing” a pollutant to enter controlled waters. The court held that one must actively do something to produce a situation in which the polluting material can escape, even though what was done was not the immediate cause of the pollution. The principal judgment was that of Lord Hoffmann, who quoted the section as follows: “A person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter into controlled waters”. His Lordship found a conceptual distinction between “causing” and “knowingly permitting”, so as to create two alternative offences.

Hardt

37 The correspondence between the parties referred to Hardt (see [13] above). The Defendant was charged that “he, being the owner of land that could not lawfully be used as a waste facility, permitted the land to be used as a waste facility”. He was convicted by Preston ChJ ([2008] NSWLEC 438; 148 LGERA 61), his Honour finding that the appellant intentionally allowed waste to be brought on to and disposed of on the land. At no stage was the charge or the argument in the case against the polluter broadened beyond the concept of “permit the land to be used” (the then formulation of the section), so the question of duplicity was not raised. The Court of Criminal Appeal reported counsel for the appellant Defendant to the Bar Association, but dealt with the appeal on its merits, and unanimously dismissed it. I do not find the decision of much assistance on the question presently before the court.

Davis

38 A more relevant case for the present purposes is Davis v Regina [2006] NSWCCA 392. Among the charges brought against Davis was an offence against s 86(2) of the Crimes Act, as it stood at the relevant time, namely an aggravated kidnapping offence. He was charged with taking the complainant, without her consent and with intent to obtain advantage, namely to have her company, and that, at the time of the taking, he occasioned her actual bodily harm. Basten JA and Whealy J agreed with the judgment of Howie J. The court found that the use of verbs in the alternative in the statutory provision, namely “takes” or “detains” did not create separate offences. The appeal was based on an argument that, although Davis was charged with taking her, the evidence and conviction was based not only on the taking, but also on the detaining. He argued that the conviction was bad for duplicity. The court said that the statutory provision did not create two offences, but rather provided for two ways of committing one offence.

39 Howie J did not refer to Romeyko, but did refer (at [45]) to Manwaring, on the question of interpretation of abduction offences (s 89 as it then applied had been repealed before Davis). He quoted (in [46]) some of the comments Miles J made in Manwaring (at 88), which occurred prior to the passage I quoted above (in [34]), relevantly (at 88E – 88F):

“ If different types of forcible abduction had been provided for in separate sections, then it would not be difficult to conclude that Parliament intended that an offence provided for in one section should be regarded as separate and distinct from that provided for in another section. It does not necessarily follow, however, that, by bringing all forms of forcible abduction into one section, Parliament intended that one offence only was thereby to be created. There are numerous examples in the Crimes Act of single sections which penalise more than one distinct type of behaviour and thereby create multiple offences, for instance the various types of attempt to murder provided for in ss 27 to 29.”

40 Howie J then said, at [51]:

“It is true, as the appellant submits, that the word "detains" effected a change to the common law offence of kidnapping. But that is not so significant in my mind in light of the fact that the concepts of taking away and detaining had both been included in most of the statutory abduction charges that were clearly the precursor of the actus reus of s 90A and that every kidnapping involved a detention. As has been noted, the policy behind s 90A was not the prevention of the asportation of the person away from a particular place or the protection of a particular class of person, but rather the interference with the liberty of the person for the purpose of obtaining an advantage. ”

41 His Honour went on to examine second reading speeches etc, and then said, at [56] and [65]:

“The history of the present offence of kidnapping in s 86 of the Crimes Act seems to confirm my initial impression that the section contains only one offence but provides that it can be committed in one of two ways so far as the actus reus of the offence is concerned: by taking or detaining the victim. As at common law, every taking will include a detention, but not every detention will involve a taking. In any event it is the interference with the liberty of the person that is the conduct at the heart of the modern day concept of kidnapping. I can see no policy consideration that would warrant an interpretation of the section as giving rise to two distinct offences as the appellant asserts .
…
In my opinion the words "takes or detains" do not create two offences but merely provide for two ways of committing the offence in s 86. This is how the abduction offences were considered upon which the original section, s 90A, was modelled and it is the only practical and logical way of considering the conduct at which the section is directed. Such an interpretation does not deprive the word "detention" of any work to do, because clearly there can be a detention without a taking and yet there will be in such a case an interference with the victim's liberty”.

42 Mr Howard contends that the reasoning which was appropriate in Davis, cannot properly be applied in this present case, where the alternative concepts nominated by alternative verbs are mutually exclusive.

B v R

43 I return now to B v R (see [21] – [23] above). At [49] and [51] of his judgment, the Chief Justice likened the reference to terrorist act or acts in the relevant section of the code to the reference to “one or more forbidden characteristics within the analysis adopted by Bray CJ in Romeyko” (at 552), and found that “there is no element of duplicity by (sic) pleading the statutory provision identifying ‘forbidden characteristics’, to use Bray CJ’s words”.

44 His Honour went on to express a preference for the term “latent ambiguity” over the term “latent duplicity”, and said (at [53]):

“ Latent ambiguity can be identified when an indictment does not suggest duplicity on its face, but the way in which the Crown case is to be, or has been, conducted can be seen to subject the accused to the possibility of being convicted of one of a number of distinct offences. In the context of a charge of conspiracy this principle involves the exposure of an accused to being convicted of more than one conspiracy ”.

45 His Honour also said (at [61] and [62]):

“ That the appropriate step upon finding even latent duplicity is to put the prosecutor to an election or to provide particulars or to require appropriate directions has long been the position …
None of the applicants came before this Court seeking an order in the nature of requiring an election, nor for a stay by reason of inability to provide a fair trial. The sole order sought in this regard is an order to quash the indictment. On the latent duplicity argument, this was said to be based on the alleged impossibility, in view of the complexity of the matters that fall to be determined, of remedying the alleged defects in any manner, whether by means of election or particulars or directions”.

46 In the result, the court (per Spigelman CJ, with James and Howie JJ agreeing) refused leave to appeal on the ground of duplicity.

Altaranesi

47 In the recent NSW Supreme Court case of Altaranesi v Whalan [2010] NSWSC 149, Harrison J applied the Romeyko principles. This was a private criminal prosecution in the local court against the plaintiff’s former co-workers. There were several proceedings, but Harrison J was hearing an appeal from the Sutherland Local Court (Schurr LCM). Her Honour had made a finding of duplicity. A multitude of offences was/were alleged against four respondents. The information clearly related to more than one act, or more than one series of acts, and certainly to different acts at different times by different people. The particulars alleged multiple criminal enterprises, namely that each respondent committed more than one offence. Harrison J referred, with approval, to both Romeyko (at [32]) and Manwaring (at [33]).

48 In [59], Harrison J noted that although none of the errors promoted by the plaintiff had been made out, the plaintiff “might reasonably have anticipated he would have been given an opportunity to make an election or to amend the application so as to put it in a proper form”.

Submissions

49 Mr Seymour says that an allegation of “patent duplicity” must source the complaint to the actual terms of the statute and the charge. It would need to be shown that the terms of the charge offend against the rule that an information or indictment can contain only one single allegation. He says that Spigelman CJ’s reasoning in B v R suggests that this question is one of construction of the actual offence. (See also Jordan CJ’s explanation in Polley.)

50 Mr Seymour goes on to submit that if the Defendant’s complaint is of “latent duplicity”, ie the possibility that a Defendant may be convicted or punished for more than one offence, that claim is inherently directed towards the facts alleged against the Defendant, rather than the terms of the statutory charge itself (B v R at [53]).

51 Mr Seymour put to the court (submissions at pars 15-16) that if the complaint were one of latent duplicity, the motion by the Defendant is premature. “… if, on the close of the Prosecutor’s case (at trial) or submissions (on penalty) it is apparent to the Court that the Prosecutor is infringing the rule against latent duplicity, then it will be appropriate for a direction to be made that the Prosecutor make an election. The other alternative remedy is to direct the Prosecutor to provide further and better particulars. However, the Prosecutor would submit that fulsome particulars have already been provided and the Defendant should have a clear understanding of the case it is required to meet or accept”.

52 Mr Howard made clear during Mr Seymour’s final argument that the Defendant put its case on the motions on the basis of “patent duplicity”, but he preferred to allege “uncertainty” or “ambiguity”, as in Romeyko. He submitted that the application of the Romeyko test, as approved by NSW superior courts in Manwaring, B v R, and Altaranesi, if not also Davis, means that s 141(1) clearly penalises three separate types of conduct, not one act possessing one or more forbidden characteristics. Alternatives within one provision do not preclude the charging of separate offences, but it is a question of whether there are separate characteristics, or separate types of conduct involved. Mental elements are relevant in some cases, and not in others.

Consideration

53 The court accepts that “patent duplicity” is a question of the proper construction of the relevant provision upon which the charge is based, and that “latent duplicity” flows more from the factual basis underlying the charge.

54 In a case such as the present, the conflict appears to be more one of ambiguity and uncertainty, and the court would normally expect such an impasse to be likely resolved by particulars properly sought and provided. However, in the present case the particulars provided, and the attempted “without prejudice” discussions, have not succeeded in achieving a resolution which would allow the matter to proceed on a fair, equitable, and expeditious basis.

55 The charge as framed, and the particulars provided (in par 1.1.2 quoted in [9] above), express the offence in the alternative, despite the assertion to the contrary (in par 1.1.1 in [9]), and do not distinguish between the three “activities” created as offences (namely using, causing, or permitting), even asserting that they were/are “indistinguishable” (see [11]).

56 As noted above (see [13] and [37]), the offence at the time of the first instance trial in Hardt was framed in terms of “permitting”. A check of the court’s records of cases brought under s 144, following the 2006 amendment (noted above in [3]) indicates that prosecutors have adopted the practice of framing charges under s 144(1) in terms of only one of its now three alternative elements – see “use” in Environment Protection Authority v Hogan [2008] NSWLEC 125, Environment Protection Authority v Gossayan [2009] NSWLEC 181, and Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160; and “cause to be used” in Environment Protection Authority v Smart Skip Pty Ltd [2009] NSWLEC 204.

Conclusion

57 On balance, I consider that that practice, and the position articulated by Mr Howard in argument, and by the Defendant’s solicitor in correspondence (see [12] above), better reflect the weight of authority (Romeyko, Manwaring, and Empress, c.f. Polley, B v R, and Davis). The section as now framed creates three separate offences.

58 The Prosecutor should be granted leave to amend, but ordered to elect upon which of the three available formulations of a charge under s 144(1) it will proceed. If more than one, they should be separately charged against the Defendant.

59 The court expects the Prosecutor to comply with any reasonable further request(s) for particulars, and will expect the Defendant to enter a plea at the next directions hearing, so that the matter can be fixed for hearing.

60 As the Defendant has succeeded in the argument it has put to the Prosecutor since at least the time of the first directions hearing on 27 August 2010, an argument it put in detail in its solicitor’s letter of 7 September 2010, and sought to resolve without motions, it is entitled to an order that the Prosecutor pay at least some of the costs it has incurred.

Orders

61 The court, therefore, makes the following orders and directions:

1. The notice of motion brought by the Prosecutor on 20 September 2010 is upheld to the extent that the Prosecutor is given leave to amend the charge, if it chooses, to allege an offence of “ cause the land to be used ”.
2. The notice of motion brought by the Defendant on 20 September 2010, seeking an order or direction, is upheld to the extent that the Prosecutor is ordered to elect from among the three formulations available in s 144(1) the Protection of the Environment Operations Act 1997, and, if it elects more than one, is further ordered to charge them as separate offences.
3. The Prosecutor is ordered to pay the Defendant’s costs of the hearing on 29 September, but all other costs on the motions are to be each party’s costs in the cause.
4. The Prosecutor is to file, and serve on the Defendant’s solicitor, its amended charge/summons within 7 days of these orders.
5. If further particulars are required, the Defendant is to request them within a further 7 days, and the Prosecutor is to provide them within a further 7 days thereafter.
6. The prosecution is stood over to the List Judge’s list, for plea and further directions, on Friday 19 November 2010, with a view to its being set down for hearing.
7. The parties are to have liberty to apply to Sheahan J or the List Judge on 3 working days’ notice.

15/10/2010 - Coversheet - Typographical error in key issues - Paragraph(s) N/A