Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale

[2022] NSWLEC 6

Land and Environment Court

New South Wales

Medium Neutral Citation:

Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2022] NSWLEC 6

Hearing dates:

11 and 12 August 2021

Date of orders:

31 January 2022

Decision date:

31 January 2022

Jurisdiction:

Class 5

Before:

Robson J

Decision:

See orders at [217]-[218]

Catchwords:

CRIMINAL PROCEDURE — Summary proceedings — Leave to amend summons — Whether amendment constitutes fresh charges — Whether summons can be amended without injustice — Whether amendment necessary in the interests of justice — Whether notice of amended charge provided

CRIMINAL PROCEDURE — Summary proceedings — Use of statutory powers under POEO Act during criminal proceedings

Legislation Cited:

Clean Waters Act 1970 (NSW) (repealed), s 29(2)(a)

Criminal Appeal Act 1912 (NSW), s 5F

Criminal Procedure Act 1986 (NSW), Pt 2 of Ch 2, ss 3, 11, 12, 15, 16, 20, 21, 246

Environmental Planning and Assessment Act 1979 (NSW), s 118BA

Environmental Offences and Penalties Act 1979 (NSW)

Food Act 2003 (NSW)

Land and Environment Court Act 1979 (NSW), s 68

Land and Environment Court Rules 2007 (NSW), r 5.3

Protection of the Environment Operations Act 1997 (NSW), ss 96, 120, 169, 184, 192, 196, 198, 216

Trade Practices Act 1974 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Area Concrete Pumping Pty Ltd v Inspector Barry Childs (Workcover) [2012] NSWCA 208

Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299

Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295

Brambles Holdings Ltd v Trade Practices Commission (No 2) [1980] FCA 120; (1980) 44 FLR 182

Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; [2011] VSCA 257

Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229

Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74

Environment Protection Authority v CSR Ltd (t/as CSR Woodpanels) [1999] NSWLEC 99; (1999) 103 LGERA 161

Environment Protection Authority v Du Pont (Australia) Ltd (No 2) [2013] NSWLEC 99

Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76

G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157

Hammond v Commonwealth of Australia (1982) 152 CLR 188; [1982] HCA 42

Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263

Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1

New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33

NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252

Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460; [1982] HCA 65

Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128

Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74; (2020) 245 LGERA 219

Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2019] NSWLEC 185

Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10; (2015) 208 LGERA 1

Texts Cited:

Land and Environment Court COVID-19 Pandemic Arrangements Policy

Category:

Procedural rulings

Parties:

Water NSW (Prosecutor)
Kiangatha Holdings Pty Limited (ABN 12 129 497 856) (Defendant)
Laurence Natale (Defendant)

Representation:

Counsel:
M Wright SC with Z Shahnawaz (Prosecutor)
C R Ireland (Defendants)

Solicitors:
Lindsay Taylor Lawyers (Prosecutor)
Dentons (Defendants)

File Number(s):

2018/00295909; 2018/00295910; 2018/00295911; 2018/00295912

Publication restriction:

Nil

Judgment

1. By four separate summonses dated 27 September 2018 brought by Water NSW (‘prosecutor’), Kiangatha Holdings Pty Limited (‘Kiangatha’) and Laurence Natale (‘Mr Natale’) (collectively, the ‘defendants’) were each charged with two offences against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act’).

2. The offences relate to the pollution of water during the construction of a dirt road between 8km and 10km in length on land owned by Kiangatha in Gangbenang NSW, located approximately 15km west of Katoomba, NSW. Kiangatha is the defendant in proceedings 2018/00295909 and 2018/00295910, and Mr Natale, who is Kiangatha’s director, is the defendant in proceedings 2018/00295911 and 2018/00295912 through the special executive liability provisions in s 169 of the POEO Act.

3. In Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2019] NSWLEC 185 (‘Kiangatha No 1’), I dismissed notices of motion brought by the defendants seeking that the summonses be set aside or otherwise permanently stayed on the grounds that the summonses were duplicitous and uncertain, and found that there was no duplicity in the then filed amended summonses. The defendants appealed, and my decision was overturned by the Court of Criminal Appeal in Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 (‘Kiangatha CCA’). By Order (4) in Kiangatha CCA, the Court of Criminal Appeal stayed the proceedings until the prosecutor elects and particularises a single offence contrary to s 120 of the POEO Act in relation to each summons.

4. Presently before the Court are two notices of motion filed on 7 May 2021 by the prosecutor in proceedings 2018/00295909 and 2018/00295910, and proceedings 2018/00295911 and 2018/00295912, respectively, which seek leave to rely upon proposed amended summonses in each of the proceedings.

5. Mr M Wright of senior counsel with Ms Z Shahnawaz of counsel appeared for the prosecutor. Mr C R Ireland of counsel appeared for the defendants. The motions were heard via Microsoft Teams in accordance with the Court’s COVID-19 Pandemic Arrangements Policy over two days, on 11 and 12 August 2021.

6. For the reasons that follow, I find that the prosecutor should be granted leave to rely on the proposed amended summonses.

Background

7. The background facts relevant to each of the proceedings were summarised in Kiangatha CCA at [6] and [7] as follows:

“[6]   The respondent [prosecutor] alleges that between 1 May and 10 October 2017 Kiangatha constructed an unsealed road over numerous parcels of the land at the direction and under the control of the Mr Natale. The length of the road is given, variously, as 8 km or 10 km. This work was not discovered until an inspection was conducted by an officer of Oberon Council on 4 October 2017. It was reported by the Council to the respondent [prosecutor] the next day. It is alleged that in performing this work the applicants [defendants] failed to implement sufficient measures for sediment and erosion control to contain the flow of sediment from the disturbed ground, resulting in sedimentary pollutants either being deposited into ephemeral drainage lines or being placed in a position from which it was likely the sediment would descend or be washed into the drainage lines.

[7]   Ephemeral drainage lines are depressions in the natural surface of the land that become watercourses when sufficient run-off occurs during significant rainfall. They may also be referred to as gullies. The gullies that are the subject of the respondent’s [prosecutor’s] allegations follow the slope of the land from south to north and lead to Murdering Creek and Gibraltar Creek. From photographs that are in evidence it appears the gullies are dry most of the time. In some locations road construction was carried out directly across gullies with the result that soil and sediment was placed directly into those features. In other places disturbed soil on cuttings, batters, embankments and the like was left in such a position that plumes of sediment could fall or be washed or blown into gullies.”

8. In the original summonses in proceedings 2018/00295909 and 2018/00295911 it was alleged that Kiangatha, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery which created significant areas of disturbed soil and involved the placing of soil and sediment on “Land” (being specified by lot and deposited plan number), and that Kiangatha failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks, thereby placing the “Pollutant” (being soil and sediment from the earthworks and sediment laden waters that flowed from the earthworks) in a position where the Pollutant was likely to fall, descend or be washed into the “Waters” (being ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox’s River; and/or a dam on specified land) or the dry beds of the Waters (referred to for convenience in each of the earlier judgments collectively as the ‘likely pollution charges’).

9. The original summonses regarding the likely pollution charges were effectively the same, save that proceedings 2018/00295911 related to different “Land” and alleged that Kiangatha committed an offence that attracts special executive liability and that Mr Natale was a director or person concerned in the management of Kiangatha and accordingly (pursuant to s 169 of the POEO Act) is taken to have committed the same offence.

10. In the original summonses in proceedings 2018/00295910 and 2018/00295912, it was alleged that Kiangatha, its servants or agents undertook earthworks involved in the construction of roads by the use of heavy plant and machinery on the “Land” (being specified by lot and deposited plan number), and that Kiangatha failed to implement sediment and erosion control measures to adequately control erosion and sediment flow from the earthworks, which involved the placing of the “Pollutant” (being soil and sediment from the earthworks and sediment laden waters that flowed from the earthworks) into ephemeral drainage lines; and/or created significant areas of disturbed soil thereby placing the Pollutant in a position where the Pollutant had fallen, descended or had been washed into ephemeral drainage lines and a dam, thereby introducing the Pollutant into the “Waters” (being ephemeral drainage lines leading to Murdering Creek, Gibraltar Creek and the Cox’s River and/or a dam on specified land) (referred to for convenience in each of the earlier judgments collectively as the ‘actual pollution charges’).

11. The original summonses regarding the actual pollution charges were effectively the same, save that proceedings 2018/00295912 related to different “Land” and alleged that Kiangatha committed an offence that attracts special executive liability and that Mr Natale was a director or person concerned in the management of Kiangatha and accordingly (pursuant to s 169 of the POEO Act) is taken to have committed the same offence.

12. On 16 November 2018, the defendants made a request for further and better particulars of the alleged offences and by letter of 4 December 2018, the prosecutor provided a response. Annexed to that response was a map that depicted, relevantly, a constructed road and 35 red dot locations “at which the prosecutor alleges water pollution has occurred” (‘Red Dot Map’). These locations were further particularised in a table which detailed the geographic coordinates in degrees for each red dot location (‘Red Dot Locations’) and provided references to specific material (including photographs for a number of the Red Dot Locations and the works undertaken) contained in the affidavit of Ivan Draper affirmed 21 September 2018 which had been previously served on the defendants. The prosecutor’s response to the request for further and better particulars of the alleged offences indicated that the prosecutor alleged that the likely pollution charges occurred along the entirety of the constructed road or track (which was depicted by a pink dotted line on the Red Dot Map), and that the actual pollution charges occurred at the Red Dot Locations.

First notices of motion

13. On 19 December 2018, the defendants filed notices of motion seeking orders that the original summonses be quashed and set aside or otherwise permanently stayed on the grounds that they were patently or latently duplicitous and uncertain.

14. In the course of the hearing of the motions before me, the prosecutor indicated an intention to apply for leave to amend the original summonses and provided amended summonses, in order to first, cure what it accepted was patent duplicity in respect of the particularisation of the Waters; second, to insert a date range for all alleged offences of between 1 May 2017 and 10 October 2017; third, to amend the definition of Pollutant; fourth, to reduce the area of Land at which it alleges the actual pollution charges occurred; and fifth, to make other minor administrative amendments. The hearing of the defendants’ notices of motion before me proceeded on the basis that these amended summonses would constitute the operative pleadings in the proceedings.

15. On 6 December 2019, I delivered judgment in Kiangatha No 1 in relation to the defendants’ notices of motion. Following delivery of the substantive judgment, and the prosecutor seeking leave to amend the original summonses generally as described at [14] above (and with no objection from the defendants), I made the following orders on 20 December 2019 in respect of each matter:

“(1)   The notice of motion filed 19 December 2018 is dismissed.

(2)   The prosecutor is granted leave to amend the summons filed 27 September 2018 in the form of Exhibit 1.

(3)   The matter is stood over for directions before the List Judge on Friday 14 February 2020.”

16. On 3 January 2020, the defendants filed an application for leave to appeal from the orders in Kiangatha No 1 to the Court of Criminal Appeal, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) and following a hearing of the appeal on 15 June 2020, on 19 October 2020, the Court of Criminal Appeal delivered judgment in Kiangatha CCA allowing the appeal and making the following orders in respect of each proceeding:

“(1) Leave granted to the applicants [defendants] pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) to appeal against the orders of the Land and Environment Court made 20 December 2019 in proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912.

(2)   Appeal upheld.

(3)   Order numbered (1) in each of proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912 made by the Land and Environment Court on 20 December 2019 is set aside.

(4) In lieu thereof it is ordered that further proceedings on each summons are stayed until the respondent [prosecutor] elects and particularises in relation to each summons a single offence contrary to s 120 of the Protection of the Environment Operations Act 1997 upon which the respondent [prosecutor] will proceed.”

Proposed amended charges and second notices of motion

17. On 7 May 2021, in response to Order (4) in Kiangatha CCA, the prosecutor filed the two notices of motion presently before me, effectively seeking leave to rely on amended summonses in each of the four proceedings. For the avoidance of doubt, the prosecutor provided the amended summonses in a form that highlighted the cumulative amendments sought to be made to the original summonses (being the amendments sought on 20 December 2019 for which I had granted leave in Kiangatha No 1 as well as additional amendments that were first particularised in the notices of motion presently before me) on the basis that the amendments sought on 20 December 2019 had been “disallowed” by the Court of Criminal Appeal in Kiangatha CCA. This approach was endorsed by the defendants. While I have some reservations about whether the Court of Criminal Appeal in Kiangatha CCA disallowed the amendments sought on 20 December 2019 (where Order (1) in Kiangatha No 1 was set aside but no mention of Order (2) was made, and noting that the Court of Criminal Appeal’s analysis was undertaken on the basis of the amended summonses), this has little practical relevance in circumstances where the evidence and submissions in the motions before me covered the differences between the original summonses and the proposed amended summonses but focused on the additional amendments that were first particularised in the notices of motion presently before me.

18. In this respect, the prosecutor now seeks to amend each of the summonses to particularise that each of the four offences against s 120(1) of the POEO Act occurred in a particular location, where these locations are respectively identified in the summonses as Sites A, B, C and D (collectively, ‘Sites’) by reference to maps and photographs attached to the proposed amended summonses provided with the notices of motion. How this is effected requires some explanation.

19. Each of the proposed amended summonses for each defendant attaches the following:

1. An aerial map labelled “Kiangatha Holdings” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the “Approximate location where pollutant has entered waters”, the “Approximate location of constructed road”, as well as “Drainage line” and “Cadastre”.

2. A composite aerial map labelled “Kiangatha Holdings – Site A” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the “Approximate location where pollutant has entered waters” and provides coordinates for this location, “Photo location & direction”, “Cadstre” and “Ephemeral drainage line”.

3. A composite aerial map labelled “Kiangatha Holdings – Site B” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the “Approximate location where pollutant has entered waters” and provides coordinates for this location, “Photo location & direction”, “Cadstre” and “Ephemeral drainage line”.

4. A composite aerial map labelled “Kiangatha Holdings – Site C” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the “Approximate location where pollutant has entered waters” and provides coordinates for this location, “Photo location & direction”, “Cadstre”, “Ephemeral drainage line”, “Approximate location of constructed road”, “Approximate location of soil & sediment from earthworks” and provides coordinates for three locations.

5. A composite aerial map labelled “Kiangatha Holdings – Site D” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which identifies the “Approximate location where pollutant has entered waters” and provides coordinates for this location, “Photo location & direction”, “Cadstre”, “Ephemeral drainage line”, “Approximate location of constructed road”, “Approximate location of soil & sediment from earthworks” and provides coordinates for two locations.

6. A series of five tabular sheets labelled “Kiangatha Holdings Site: A Photo: 1” through to “Kiangatha Holdings Site: A Photo: 5” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which each depict a ground-based photograph and associated identification details (officer, date, time, direction, filename and notes) and a composite aerial map and associated legend identifying “Approximate location where pollutant has entered waters”, “Photo location & direction”, “Other photo locations & directions”, “Cadastre” and “Ephemeral drainage line”.

7. A series of five tabular sheets labelled “Kiangatha Holdings Site: B Photo: 1” through to “Kiangatha Holdings Site: B Photo: 5” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which each depict a ground-based photograph and associated identification details (officer, date, time, direction, filename and notes) and a composite aerial map and associated legend identifying “Approximate location where pollutant has entered waters”, “Photo location & direction”, “Other photo locations & directions”, “Cadastre” and “Ephemeral drainage line”.

1. A series of five tabular sheets labelled “Kiangatha Holdings Site: C Photo: 1” through to “Kiangatha Holdings Site: C Photo: 5” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which each depict a ground-based photograph and associated identification details (officer, date, time, direction, filename and notes) and a composite aerial map and associated legend identifying “Approximate location where pollutant has entered waters”, “Photo location & direction”, “Other photo locations & directions”, “Cadastre”, “Ephemeral drainage line”, “Approximate location of constructed road” and “Approximate location of soil & sediment from earthworks”.

2. A series of five tabular sheets labelled “Kiangatha Holdings Site: D Photo: 1” through to “Kiangatha Holdings Site: D Photo: 5” and noted as prepared by the Spatial Modelling Team, Water NSW, May 2021, which each depict a ground-based photograph and associated identification details (officer, date, time, direction, filename and notes) and a composite aerial map and associated legend identifying “Approximate location where pollutant has entered waters”, “Photo location & direction”, “Other photo locations & directions”, “Cadastre”, “Ephemeral drainage line”, “Approximate location of constructed road” and “Approximate location of soil & sediment from earthworks”.

20. I note in passing that a practical result of the proposed amendments to the summonses is that the two summonses for the likely pollution charges, and the two summonses for the actual pollution charges, respectively, no longer relate to effectively the same locations. Rather, each summons relates to a discrete Site. In this respect:

1. The likely pollution charge in proceedings 2018/00295909 relates to Kiangatha, and the Land being Lot 26 DP 757035 as shown on the attached map and photographs for Site C, and the ephemeral drainage lines leading to Murdering Creek as shown on the attached map and photographs for Site C.

2. The likely pollution charge in proceedings 2018/00295911 relates to Mr Natale, and the Land being Lot 113 DP 48712 as shown on the attached map and photographs for Site D, and the ephemeral drainage lines leading to Murdering Creek as shown on the attached map and photographs for Site D.

3. The actual pollution charge in proceedings 2018/00295910 relates to Kiangatha, and the Land being Lot 26 DP 757035 as shown on the attached map and photographs for Site A, and the ephemeral drainage lines leading to Murdering Creek as shown on the attached map and photographs for Site A.

4. The actual pollution charge in proceedings 2018/00295912 relates to Mr Natale, and the Land being Lot 26 DP 757035 as shown on the attached map and photographs for Site B, and the ephemeral drainage lines leading to Murdering Creek as shown on the attached map and photographs for Site B.

21. As detailed further below, the maps and aerial photography were produced as a result of survey work carried out on Kiangatha’s property on 20 April 2021 by officers of the prosecutor, James Caddey and Kirk Newport. This included the use of a drone to take aerial photography. The prosecutor did not seek permission to enter Kiangatha’s property nor to fly a drone over Kiangatha’s property. The prosecutor advised the lawyers for the defendants that Mr Caddey and Mr Newport were “Authorised Officers” exercising powers under the POEO Act.

22. On 2, 4 and 5 June 2021, the defendants’ surveyor, Geoffrey Meyer, attended Kiangatha’s property and carried out survey work.

Issues and legal principles

23. The primary issue before me is whether leave should be granted to amend the summonses in accordance with the proposed amended summonses. This gives rise to a number of overlapping sub-issues raised by the parties in submissions, including:

1. Whether the proposed amended summonses are so different to the original summonses that they constitute “fresh” charges. This requires consideration of the scope and content of the proposed amendments.

2. Whether the statutory requirements and common law requirements for the amendment of summonses have been fulfilled. This requires consideration of the interests of justice, any injustice caused, notice of the charges, and other issues of procedural fairness.

3. Whether the manner in which the proposed amended summonses were prepared (that is, attendances by authorised officers of Water NSW and the use of a drone to take aerial photography) constitutes trespass onto Kiangatha’s property, which is unfair or disentitling conduct by the prosecutor.

24. Sections 20 and 21 of the Criminal Procedure Act 1986 (NSW) (‘CP Act’) grant the Court power to amend summonses as follows:

20   Amendment of indictment

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

(a)   with the leave of the court, or

(b)   with the consent of the accused.

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

….

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

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

…

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

25. Part 2 of Ch 2 of the CP Act, which includes ss 20 and 21, has a broad application to “all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with”, where “court” is defined to mean the Land and Environment Court: ss 3(1) and 15(1) of the CP Act. A reference to an “indictment” in Pt 2 of Ch 2 of the CP Act includes “any other process or document by which criminal proceedings are commenced”: s 15(2) of the CP Act. Given this, ss 20 and 21 of the CP Act apply to summary proceedings in the Land and Environment Court: Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 69 NSWLR 507; [2007] NSWCCA 76 at [87]; Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [19].

26. In addition, s 68 of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’) provides:

68   Amendments and irregularities

(1)   In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.

…

27. Although the prosecutor drew the Court’s attention to the Court of Criminal Appeal’s comments in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74; (2020) 245 LGERA 219 (‘Snowy Monaro CCA (No 2)’) at [56]-[57] on the basis that the Court of Criminal Appeal considered the distinction between the powers to make amendments in s 21 of the CP Act (with its reference to “amended without injustice”) and s 68 of LEC Act (with its reference to “necessary in the interests of justice”), I do not consider this commentary to assist in delineating the difference between the sections, although I accept that the Court of Criminal Appeal found that the primary judge had effectively considered and undertaken the required statutory exercise in relation to both sections in making his decision regarding the amendment of the summons. I also note and adopt the reference made to a “balancing exercise” to be undertaken in considering “the interests of justice”: Snowy Monaro CCA (No 2) at [57].

28. There has been judicial consideration of the scope of the ability to amend summons. In Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128 (‘Rockdale Beef’), Basten JA made the following comments at [122]-[123]:

“[122] At a time when the trial court lacked an express power to amend an information [i.e. a summons], there was an important distinction to be drawn between the provision of particulars (which could be ordered) and amendment of the information itself. That distinction is no longer of importance and s 16(2) should not be read down as if it were. Rather, the relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis, and not by use of labels, seeking to distinguish between “essential legal elements” and “essential factual particulars”. …

[123]   These remarks [i.e. the remarks of the bench in Ex parte Thomas; Re Otzen (1947) 47 SR(NSW) 261 suggesting that an information that does not charge an offence cannot be cured by s 65 of the Justices Act 1902 (NSW) (being on equivalent terms to s 16(2) of the CP Act), and instead an amendment is required] are inconsistent with the proposition that a failure properly to plead the elements of an offence necessarily rendered the information invalid. Indeed, the power of “amendment” itself may be inconsistent with such a conclusion. Accordingly, 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”, adopting the terminology of Mahoney JA in Boral Gas [(NSW) Pty Limited v Magill (1993) 32 NSWLR 501] at 518C-D, nor are the proceedings based on them a nullity.”

29. These comments illustrate that where a summons is not a nullity or void from the outset, an amendment may be made to cure defects. Rockdale Beef refers to s 16 of the CP Act, a further procedural provision in Pt 2 of Ch 2 of the CP Act, which provides as follows:

16   Certain defects do not affect indictment

…

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

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

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

30. This section does not facilitate the making of amendments, but rather preserves an indictment (defined to include summons) notwithstanding an alleged defect in substance or in form, allowing the proceeding to continue to be heard on the merits notwithstanding the defect. However, as noted in Rockdale Beef, there are limits on the scope of this provision and in some circumstances an amendment to the summons may be required. At [132]-[133] Basten JA commented:

“[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. …

[133] Section 16(2) (and related provisions) do not reveal an intention to deprive a defendant of a fair trial. The possibility of a need for remedial amendment is recognised in ss 17 and 21. If irremediable unfairness would result from a particular defect, that defect might well fall outside the terms of s 16(2). …”

31. An example of this is provided in Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 (‘Built NSW’), where Bathurst CJ at [126] found that s 16(2) of the CP Act could not operate to validate a prosecution instituted by a person without authority to do so, as such a failure was more than a “defect” in substance or in form (as contemplated by s 16) but was rather an unauthorised act. His Honour also found that the amendment power in s 21 of the CP Act could not extend to deeming the proceedings to have been instituted by someone else such that the charge was incapable of being amended to cure this issue.

32. In addition to the statutory requirements for the amendment of the summonses, the defendants identify the common law requirement that amendment of criminal proceedings after the relevant statutory limitation period can only be granted where the defendant had notice of the amended charge, by reference to Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; [2011] VSCA 257 (‘Kypri’) where Nettle JA at [37] commented:

“…if a charge is defective for failing to aver an essential element of the offence alleged, but contains sufficient information to enable a reasonable defendant to determine the true nature of the offence alleged, it may be amended (even after expiration of the limitation period) in order to accord to what was always understood to be the true nature of the offence alleged. …such an amendment is regarded as acceptable; for the reason that it is not unfair so to defeat the limitation period where the defendant has been made to understand the true nature of the offence alleged before the limitation period expired.”

33. The defendants note that this analysis of the common law requirement in Kypri has been applied in NSW in Snowy Monaro CCA (No 2) at [45]. While the prosecutor expressed concern as to whether Kypri reflects the position in NSW as it distinguishes between essential factual and legal elements, the prosecutor accepts that it demonstrates that amendments which simply clarify what is already apparent on the face of the charge are permissible: Kypri at [24].

34. The prosecutor directed the Court to the requirements for a charge. Rule 5.3 of the Land and Environment Court Rules 2007 (NSW) (‘LEC Rules’) provides the requirements to validly commence proceedings in the Court’s summary criminal jurisdiction.

5.3   Commencement of proceedings

(1) Proceedings for an offence that may be taken before the Court in its summary jurisdiction are to be commenced in the Court by summons claiming an order under section 246 of the Criminal Procedure Act 1986 in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.

(2) A summons seeking an order pursuant to section 246 (1) of the Criminal Procedure Act 1986 is to be accompanied by the affidavits intended to be relied on as establishing prima facie proof of the offence charged.

35. The CP Act provides that in describing the offence, “[t]he description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law”; and further, that a summary offence may be sufficiently described by a “short expression” that generally describes the offence: ss 11 and 12 of the CP Act.

36. In addition, there are common law requirements for the content of a summons as noted by the High Court in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 (‘Kirk’) at [26]:

“The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW) [(1987) 163 CLR 508; [1987] HCA 42], it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller [(1937) 59 CLR 467; [1937] HCA 77], Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.” [citations omitted]

37. The requirements articulated in Kirk, and their interaction with the statutory regime for the amendment of a summons were further considered by the Court of Appeal in G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 (‘GPI (General)’) where Hodgson JA held (at [32]-[36]) that while Kirk decided that it was necessary that a statement of the offence identify the act or omission of the defendants said to constitute the offence, this requirement does not displace ss 11 and 16(2) of the CP Act which restrict objections to the form of charges. Further, Hodgson JA considered that Kirk confirmed the necessity for the defendant not only to be told of the legal nature of the offence but also of the particular act, matter and thing alleged as the foundation of the charge, but did not say that this particularisation had to occur at the time the charge was first brought: at [33]. His Honour concluded that in the appeal before the Court, if the particulars of the charges were deficient, the particulars could be provided in other ways and further, an application to amend the charges could be granted unless it substantially changed the nature of the charge: at [35], [36].

38. GPI (General) was considered by Bathurst CJ in Area Concrete Pumping Pty Ltd v Inspector Barry Childs (Workcover) [2012] NSWCA 208 (‘Area Concrete Pumping’) at [47], where the Chief Justice noted:

“In these circumstances GPI (General), in my opinion, is authority for the proposition that a failure to adequately particularise a charge will not without more render it a nullity and that having regard to the provisions of s 16(2) of the CP Act and s 170(3) of the IR Act [Industrial Relations Act 1996 (NSW), being a similar provision to s 68 of the LEC Act], defects can be cured by amendment to the charge or subsequent particularisation, at least provided the charge describes an offence known to law and that procedural unfairness is not caused to the defendant by the amendment.”

39. In this respect, the statutory regime for the amendment of charges (in this case summonses), or the further particularisation of charges can cure an inadequately described offence, such that it is not rendered a nullity, provided that the original charge disclosed an offence known to law (an issue that goes to jurisdiction) and that procedural unfairness has not occurred.

40. An example of this is provided in Built NSW, where despite it not being strictly necessary to deal with the issue in light of previous findings, Bathurst CJ (with whom Beazley P and Hoeben CJ at CL agreed) found that summonses which adopted the language of a different subsection of the relevant occupational health and safety legislation to that subsection under which the charge was formulated (and thus failed to aver an element of the offence in the subsection the charge was formulated under, where on the facts as pleaded the different subsection could not apply), did not disclose an offence known to law. His Honour’s analysis at [140] emphasised that this failure could be distinguished from circumstances where an essential element has been left out which can be cured without procedural unfairness to the defendant, as:

“…the deficiencies are so great that they do not plead a charge known to law as distinct from merely omitting or mispleading an essential element of the charge which could be cured by amendment or further particularisation. It follows that I do not think that the defects are ones to which s 16(2) of the CPA [CP Act] applies, nor ones which could be cured by amendment consistent with the authorities to which I have referred above.”

41. The issue of procedural fairness is addressed by the prosecutor in relation to amendment of the summonses after the expiry of the limitation period to commence proceedings. The prosecutor refers to the commentary of Basten JA in GPI (General) at [80] as follows:

“In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they not having faced trial or yet pleaded to the charges) and where that which constitutes an essential factual allegation, as opposed to a desirable degree of particularisation of facts alleged, is a distinction involving matters of evaluative judgment, the contention should be rejected. The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law. Neither principle will necessarily be breached: the orders by which the proceedings were commenced were not invalid.”

42. As considered below, the prosecutor contends that it can rely on the material provided to the defendants with the original summonses as relevant to the nature of the prosecutor’s case and to the question of procedural fairness, by reference to Rockdale Beef at [126] where Basten JA noted “[i]f it were thought necessary, in the interests of procedural fairness, to make express reference to the relevant business in the charge, the prosecution was entitled to rely upon the material set out in the affidavit of Inspector Wolf, in support of the application”.

Evidence

43. The prosecutor read two affidavits of Liam Neale Mulligan affirmed 7 May 2021 and 12 July 2021; the affidavit of James William Caddey affirmed 12 July 2021; and also placed before the Court three affidavits which had been provided (with the original summonses) to the defendants in October 2018, being the affidavits of Paul Crossan affirmed 21 September 2018 (and Exhibit PC-1 to that affidavit); the affidavit of Amelia Stein sworn 22 September 2018 (and Exhibit AS-1 to that affidavit); and the affidavit of Ivan Draper affirmed 21 September 2018 (and Exhibit ID-1 to that affidavit).

44. The defendants read the affidavit of Stephanie Suzanne Vatala sworn 15 June 2021 and two affidavits of Geoffrey Bruce Meyer affirmed 15 June 2021 and 27 July 2021. The defendants placed before the Court a USB (containing video footage which was viewed in Court) being Annexure E to Mr Meyer’s affidavit affirmed 15 June 2021.

45. The Court also received a Statement of Agreed Facts filed 5 August 2021 which recorded the background facts (which informed the background summary at [7]-[22] above) and annexed the defendants’ request for further and better particulars of the alleged offences dated 16 November 2018, and the prosecutor’s response to the request for further and better particulars of the alleged offences dated 4 December 2018, details of which are recorded at [12] above and further considered later in this judgment.

46. In his affidavit affirmed 7 May 2021, Mr Mulligan, a solicitor in the employ of the solicitor for the prosecutor, provided details of the procedural history of the proceedings including the first notices of motion filed by the defendants; my judgment in Kiangatha No 1; the judgment of the Court of Criminal Appeal in Kiangatha CCA; and the filing of the second notices of motion attaching the proposed amended summonses.

47. In his affidavit affirmed 12 July 2021, Mr Mulligan traversed similar (and in some cases the same) ground as in his affidavit affirmed 7 May 2021, but in greater detail. He deposed to the service of the original summonses on each defendant on 2 October 2018 (along with copies of the affidavits of Mr Crossan, Mr Draper, and Ms Stein, and their exhibits). He noted that in the defendants’ appeal to the Court of Criminal Appeal, “each party proceeded on the basis of the Amended Summonses for which leave was granted by Robson J”. Following this, he understood that in Kiangatha CCA, the Court of Criminal Appeal had determined that “the Summonses, in the form for which leave had been granted by Robson J, were affected by duplicity”. Mr Mulligan noted his understanding that the prosecutor was entitled to make an election, and undertake further particularisation of a single offence for each of the summons, on which the prosecutor would proceed. He referred to Kiangatha CCA at [68], and in particular, the comment that “the respondent could readily identify by map coordinates the separate locations at which soil was placed in proximity to a gully that was likely to be polluted by erosion of the soil into it. The specific part of the gully that was placed at risk of such transfer of soil could also be identified by map coordinates.”

48. Mr Mulligan deposed that following the judgment in Kiangatha CCA, the prosecutor selected four locations to be the subject of proposed amended summonses, and decided to represent these locations graphically on maps to identify (to the defendants) the locations where it is alleged the earthworks had been carried out “which placed soil or sediment in a position where it was placed in, or was likely to fall or descend into”, waters. The maps would also identify the particular waters which were the subject of the charges.

49. Mr Mulligan described the preparation of the maps. He stated that the aerial photography data then available to the prosecutor (via the NSW Government’s SIXMaps service) was at a scale of 1:100,000 and was sufficient to produce a large-scale overview map of the whole of Kiangatha’s property (being the aerial map referred to at [19(1)] above), however, it had a “margin of error” when “zoomed in” to the individual Sites to produce individual maps, which meant that certain landscape features did not align with GPS data of the road and drainage lines with “reasonable accuracy”.

50. Mr Mulligan deposed that in order to obtain more accurate aerial imagery of the individual Sites, authorised officers of the prosecutor attended Kiangatha’s property on 20 April 2021 and undertook aerial photography using a drone. At that time, further detailed GPS surveying of the ephemeral drainage lines at the individual Sites was also undertaken. Mr Mulligan deposed that the further aerial photographs were “compiled into individual map layouts” for the individual Sites, and then overlain with GPS data of the constructed road and the drainage lines creating maps for each of the individual Sites at a scale of 1:1,250. These composite aerial maps for the Sites were attached to the proposed amended summonses (being the maps referred at [19(2)]-[ 19(5)] above).

51. In his affidavit, Mr Caddey, a Catchment Assessments Officer with Water NSW and a qualified (but not currently registered) surveyor, deposed that he attended Kiangatha’s property on four occasions in 2017 and 2018 (with members of the Water NSW Compliance Team, Ms Stein and Mr Draper) and assisted in the assessment of the “recent roadworks” that had been undertaken, by carrying out “surveying work” in respect of the roadworks.

52. Mr Caddey deposed that on 20 June 2018, he took photographs and recorded coordinates, using the GPS function available on an iPhone and other field information, of “various points” along the newly constructed road to enable the preparation of a map showing the approximate location and extent of the “recent road construction works”. He noted that the map was a “graphical representation” of the roadworks, prepared in the available time and using the available equipment, and he “determined to prepare this map at a ‘graphical scale’, meaning an accuracy of about +/−10m”.

53. Mr Caddey deposed as to his process when undertaking the surveying work including the determination of the starting point for the map (where he recorded GPS coordinates with an accuracy of +/−5m, which he opined was sufficient for the purpose of his survey work); the materials and applications utilised when undertaking the survey; and the materials he considered but did not utilise. In this respect, Mr Caddey opined that he did not search the Survey Control Information Management System to check for any “Permanent Marks” because he did not consider it to be necessary for the purposes of the survey he was conducting (being the preparation of a map showing the approximate location of the earthworks that had been carried out).

54. Mr Caddey again attended Kiangatha’s property on 20 April 2021, which I surmise was in the course of the prosecutor’s particularisation of the proposed amended summonses as described at [50]. He carried out further survey work in the company of Mr Newport using a combination of GPS and photogrammetry obtained from a drone operated by Mr Newport, and focusing on the individual Sites.

55. Mr Caddey described his and Mr Newport’s processes when undertaking the further surveying work, including locating and obtaining GPS coordinates for a Permanent Mark (where Mr Caddey opined that only one Permanent Mark was required as a “physical base point” for the survey then being undertaken). He also deposed as to the process at the individual Sites, including what was done to obtain GPS coordinates, and when the drone was launched, and the surveys undertaken. Mr Caddey also deposed that during the survey work, Mr Caddey and Mr Newport had two interactions with Mr Natale, where Mr Natale expressed concern about the survey work being undertaken.

56. Mr Caddey noted that he had not been involved in any confirmation of the survey data obtained on 20 April 2021 or the production of any “plans/maps” produced on that day.

57. Finally, in his affidavit Mr Caddey responded to the evidence (noted below) of Mr Meyer, a registered surveyor retained on behalf of the defendants. Mr Caddey noted that he and Mr Meyer had been requested to undertake “quite different tasks”. Mr Meyer had been asked to prepare a map which compares the location of the GPS coordinates for the Sites shown in the proposed amended summonses with those of the Red Dot Locations shown on the Red Dot Map (which had been provided with the prosecutor’s response to the request for further and better particulars of the alleged offences dated 4 December 2018). In contrast, Mr Caddey had been making a survey of the physical location of the earthworks and preparing a map. In 2018 Mr Caddey located various physical features using the equipment he had at that time, while in 2021, he was able to obtain a more accurate representation of the location of the roads and watercourses.

58. Mr Caddey deposed as to (what he considered were) the relevant differences in approach and process between his survey work and that done by Mr Meyer, which included potential and actual differences in the time available, precision of equipment, measurement of Permanent Marks, and computational techniques. He also made comments regarding the use of coordinates to locate physical features in circumstances where the physical features (being the road and watercourses) have not moved, which I treat as submissions.

59. As noted at [43], three affidavits and their respective exhibits produced in September 2018 were placed before the Court by the prosecutor to show the “background material” that related to the grant of orders pursuant to s 246 of the CP Act for the service of the original summonses, and also to illustrate the “significant body of material” in relation to the charges as they were originally framed that was made available to the defendants: Tcpt, 11 August 2021, p 65(17-42). The content of these affidavits and exhibits can be shortly summarised:

1. Mr Crossan deposed in relation to being notified of the construction of a network of unsealed roads on Kiangatha’s property by personnel from Oberon Council; helicopter inspections undertaken by Water NSW; the issuing of a prevention notice under s 96 of the POEO Act and associated Class 1 proceedings in the Land and Environment Court in relation to the construction of unsealed roads; the commissioning of expert reports; and interviews conducted by Water NSW with relevant persons. He exhibited a large number of the documents (which included extensive photographs of Kiangatha’s property, and the works undertaken) referred to in his affidavit.

2. Ms Stein deposed as to the issuing of a prevention notice to Kiangatha in relation to required action to manage erosion and sediment movement relating to the construction of the road and associated Class 1 proceedings in the Land and Environment Court, and her observations at a number of inspections of Kiangatha’s property in November and December 2017. She exhibited documents related to the prevention notice and photographs taken during her inspections of Kiangatha’s property.

3. Mr Draper deposed about being notified of earthworks on Kiangatha’s property by personnel from Oberon Council and undertaking inspections of Kiangatha’s property, and exhibited a number of photographs that were taken during his inspections of Kiangatha’s property as well as statements made by other persons in attendance at the inspections. (In passing I note that it was material in Mr Draper’s affidavit that was discretely referred to in the prosecutor’s response to the request for further and better particulars of the alleged offences dated 4 December 2018 as noted at [12] above.)

60. In her affidavit, Ms Vatala, solicitor for the defendants, detailed the “procedural background” to the proceedings, with references to the defendants’ notices of motion alleging duplicity and uncertainty; the judgment in Kiangatha No 1; the judgment of the Court of Criminal Appeal in Kiangatha CCA; and the subsequent listing of the proceedings and filing of the second notices of motion by the prosecutor. Ms Vatala deposed to the “significant delay” of the prosecutor in advising the defendants and the Court that it sought to rely on the proposed amended summonses (which I read on the basis it is a submission), and the impact of that delay on Mr Natale.

61. Ms Vatala also deposed as to the flying of a drone above Kiangatha’s property on 20 April 2021, and annexed correspondence from April 2021 between the parties’ solicitors in relation to the drone. In this correspondence Ms Vatala stated that Water NSW personnel were “trespassing” on Kiangatha’s airspace and requested that data or footage obtained as a result be deleted. The prosecutor responded that authorised officers of Water NSW had undertaken surveying operations and were acting lawfully in the exercise of their powers under ss 196 and 198 of the POEO Act and did not trespass on Kiangatha’s property.

62. Finally, Ms Vatala deposed that the Sites are different from the original Red Dot Locations. She referred to (and annexed) the defendants’ request for further and better particulars of the alleged offences dated 16 November 2018 and the prosecutor's response dated 4 December 2018 that particularised the alleged offences (and annexed the Red Dot Map detailing the Red Dot Locations and the table of coordinates). By reference to the evidence of Mr Meyer on behalf of the defendants (noted below), Ms Vatala stated that each of the Sites A, B, C and D, described in the annexures to the proposed amended summonses as “Approximate location where pollutant has entered waters”, are, in her opinion, “spatially and physically different locations” to any of the Red Dot Locations.

63. In his affidavit of 15 June 2021, Mr Meyer, a registered surveyor, deposed that he was engaged on behalf of the defendants to prepare a survey plan showing the location of each of the Sites (as shown on the plans annexed to the proposed amended summonses, and as described in the geographic coordinates he was provided with) and each of Red Dot Locations 2, 6, 5 and 18 (shown on the Red Dot Map, being the closest Red Dot Location(s) to each of the Sites, and as described in the geographic coordinates he was provided with). Mr Meyer identified the Red Dot Locations as 2A, 6B, 5C and 18D.

64. Mr Meyer noted the steps he undertook to prepare the survey plan, including converting the geographic coordinates to grid coordinates MGA 2020; undertaking a field survey on 2 June 2021 including the location of two Permanent Marks; using surveying program LISCAD Plus to create a computer file with the relevant grid coordinates plotted on a base plan; and attending Kiangatha’s property on 2, 4, and 5 June 2021 and plotting the relevant grid coordinates on the ground using surveyor’s markers. He deposed that he had “located the actual physical positions of the geographic coordinates provided to me by Dentons [the defendants’ solicitors]…with a scientific margin of error of no more than 1 metre”.

65. Mr Meyer measured the distance between each of Sites A, B, C and D and the corresponding Red Dot Location, being a distance of 53.8m between Site A and Red Dot Location 2 (Mr Meyer’s 2A); a distance of 34.1m between Site B and Red Dot Location 6 (Mr Meyer’s 6B); a distance of 35.5m between Site C to Red Dot Location 5 (Mr Meyer’s 5C); and a distance of 85.7m between Site D to Red Dot Location 18 (Mr Meyer’s 18D).

66. Mr Meyer made a number of observations in relation to the “topographical differences” between the four Sites and the four Red Dot Locations as follows:

1. Site A is on “newly installed aggregate” (which Mr Natale informed Mr Meyer had been placed there in within the last three months) and close to the centre-line of a minor watercourse, whereas Red Dot Location 2 is upslope 53.8m.

2. Site B is also on “newly installed aggregate” (which Mr Natale informed Mr Meyer had been placed there in within the last three months) and close to the centre-line of a minor watercourse, whereas Red Dot Location 6 is 34.1m away on flat level land uphill and west of the same minor watercourse.

3. Site C is located in the centre-line of a watercourse and 35.5m downstream from Red Dot Location 5, which is located on top of a slope very near a track and within a rudimentary silt trap.

4. Site D is located on the bank and in reeds close to the line of a watercourse 85.7m downstream from Red Dot Location 18, which is located on the side of a hill approximately 10m east and upslope from the watercourse.

67. On 5 June 2021, Mr Meyer took video footage walking between each of the individual Sites and the corresponding Red Dot Locations. The video footage was shown in Court.

68. In his affidavit of 27 July 2021, Mr Meyer provided further details of the survey work he had previously undertaken “to demonstrate its very high level of accuracy”. Mr Meyer deposed as to the conversion of the geographic coordinates of each of the individual Sites and the Red Dot Locations, searching land titles, registered survey plans (deposited plans) and Permanent Marks for Kiangatha’s property and adjacent properties; carrying out a reconnaissance survey to locate Permanent Marks in the area and to assess signal strength and telephone connections to the network of Global Navigation Satellite System Continuously Operating Reference Stations; determining the bearing and distance between the two Permanent Marks and comparing this to other measurements shown on deposited plans; orientating the boundaries of relevant Kiangatha properties so that the Sites and the Red Dot Locations could be shown with respect to the lot boundaries; validation in the field by navigating to an existing reference mark on a deposited plan using the “stake out” function on his surveying instrument; and marking the Sites and the Red Dot Locations using the “stake out” function on his surveying instrument.

69. Mr Meyer also reviewed and made comments in relation to Mr Caddey's affidavit dated 12 July 2021. He raised a number of issues with the level of detail that Mr Caddey provided when describing his survey work and Mr Caddey’s method of undertaking the survey work. Finally, Mr Meyer noted that the maps and plans prepared using Mr Caddey’s survey data were not referred back to Mr Caddey for authorisation and authentication prior to their finalisation.

The parties’ positions

Summary

70. All parties engage with the powers to amend summonses in s 21 of the CP Act (which empowers the Court to amend summonses where such amendment can be undertaken “without injustice”) and s 68 of the LEC Act (which empowers the Court to make amendments which in the opinion of the Court are necessary in the “interests of justice”).

71. In summary, the prosecutor submits that while the original summonses were defective due to duplicity, they were not a nullity and thus amendment or further particularisation of the summonses is permitted. The prosecutor contends that the proposed amendments are permitted pursuant to s 21 of the CP Act and s 68 of the LEC Act because, by comparing the original summonses, the evidence in support of the original summonses, and the proposed amended summonses, the underlying factual matrix and the essential nature of each charge remains the same (such that the proposed amended summonses do not constitute fresh charges).

72. Instead, the effect of the proposed amended summonses is to restrict the facts for each summons to a single allegation of water pollution, where the prosecutor notes that factual matters are capable of further particularisation at any stage of the proceedings. The prosecutor submits that these amendments were “no doubt” contemplated by the Court of Criminal Appeal in Kiangatha CCA. Finally, the prosecutor contends that while procedural fairness is a relevant consideration in circumstances where the prosecutor seeks to make the amendment after the expiry of the statutory time limit for the offences, no procedural unfairness would be caused to the defendants.

73. In contrast, the defendants submit that the proposed amended summonses are impermissible as they seek to change an essential element of the s 120 offences (by changing the location or substituting new locations of the offences, and alleging actual pollution with respect to the likely pollution charges). They contend that the changes in the proposed amended summonses do more than simply clarify the original summonses and instead the proposed amended summonses constitute fresh charges.

74. In the alternative, the defendants submit that the original summonses should not be amended because this would cause injustice and unfairness. The defendants raise the failure of the prosecutor to give notice of the proposed amended summonses within the statutory limitation period and a number of other factors such as the effluxion of time, and the different locations (and their different characteristics).

Prosecutor’s submissions

Same essential nature and underlying factual matrix

75. The prosecutor contends the “essential nature of each charge” in the summonses, being water pollution by soil and sediment, and the “underlying factual matrix” of road construction in the absence of appropriate sediment controls, remain unchanged between the original summonses and the proposed amended summonses. In support of this submission, the prosecutor compares the scope of the original summonses (that water pollution was caused by soil and sediment from 8kms of road construction polluting waters at various locations in a network of drainage lines across a number of parcels of land), and the evidence filed in support of the original summonses, with the scope of the proposed amended summonses (that soil and sediment from a defined area of earthworks from road construction polluted a single ephemeral drainage line (or dry gully) leading to Murdering Creek).

76. The prosecutor contends that the nature of its case can be ascertained from the original summonses, which claimed orders that the defendants answer charges that they had committed offences against s 120(1) of the POEO Act (being a “sufficient description of the offence” by reference to ss 11 and 12 of the CP Act). Each of the elements of the offence of water pollution were particularised (being the act of polluting, the pollutant, the waters, and the person and the place of the offence by reference to various land parcels, noting the original summonses do not plead the timing of the offence).

77. The prosecutor submits that the nature of its case can be further ascertained from the three affidavits provided to the defendants with the original summonses in October 2018 (referred to above at [43] and [59]), as they contain further evidence of the prosecutor’s allegation of water pollution. More specifically the prosecutor submits that:

1. Mr Crossan’s affidavit refers to and exhibits a “Notice requiring information and/or records to be provided” issued to the defendants on 17 July 2018 pursuant to s 192 of the POEO Act, which refers to water pollution caused by soil and sediment from road construction in the recitals. It also exhibits two expert reports, in which each expert describes the placement of soil and sediment in and near watercourses, the mobilisation of the sediment, and pollution of waters, arising from road construction. The expert reports reproduce photographs with examples of the expert’s observations.

2. Ms Stein’s affidavit describes her inspections of the property and her observations regarding the fresh disturbance of soil due to construction, the absence of adequate sediment and erosion controls including failing batters and lack of compaction of soil. She describes new roads being cut and sediment being placed into natural watercourse crossings, sediment deposits being placed in dry watercourses, and sediment dispersing downslope into gullies and dry watercourses. It exhibits a map showing the locations of her observations, and reproduces a “Notice of preventative action” issued to the defendants on 7 December 2017 pursuant to s 96 of the POEO Act, which indicated that Water NSW reasonably suspected that Kiangatha’s construction of a road network was “causing sediment to be in a position where it has washed or is likely to be washed into tributaries of the Coxs River…”.

3. Mr Draper’s affidavit describes the identification of Kiangatha’s property, his inspections of the road construction, and the taking of GPS measurements at certain points. It also includes his observations of the steep terrain and the presence of dry gullies, his observations of the absence of adequate sediment and erosion controls and, later, the failure of the batters and further erosion, and sediment travelling towards tributaries of Murdering Creek.

78. In these circumstances, the prosecutor contends that it was “abundantly clear” from the original summonses and the evidence provided with the original summonses that the essential nature of the prosecutor’s case alleges “water pollution of dry gullies arising from the construction of roads” on Kiangatha’s property. The prosecutor notes that the evidence “consistently” describes first, the road being constructed across dry gullies and on steep land where plumes of sediment occur downslope and towards dry gullies; second, the overall lack of adequate sediment and erosion controls; and third, a worsening of erosion over time. The prosecutor also notes that the allegation of “water pollution” was articulated in the three affidavits; the notice requiring information and/or records to be provided; and the notice of preventative action.

79. On the prosecutor’s submission, the proposed amended summonses retain the essential nature of the prosecutor’s case, because the prosecutor now alleges water pollution as a result of soil and sediment from a defined area of earthworks due to road construction polluting a single dry gully in each of the proposed amended summonses. The proposed amended summonses rely on the same underlying factual matrix set out in support of the original summonses. The change is that the prosecutor has amended and provided further particulars which go to the location within Kiangatha’s property where the alleged offences occurred, which enable the defendants to more precisely locate the offences within the previous location of the constructed road.

Reduction of scope and election of a single allegation

80. The prosecutor submits that the amendments made in the proposed amended summonses effectively “restrict” the facts of each summons to a single allegation of water pollution. Notwithstanding the retention of the essential nature of the charge and the underlying factual matrix, the prosecutor contends that it could not elect a single allegation from the broader particulars of the road network and drainage lines of the original summonses without revisiting the essential factual particulars of the summonses.

81. In this respect, the prosecutor submits that the earlier particulars provided in relation to the original summonses are no longer relied on by the prosecutor, and new particulars have been provided. The prosecutor rejects the defendants’ complaints regarding the differences between the particulars, characterising the particulars as “having changed by a matter of metres”, and denying that this means the nature of the offences the defendants are being charged with has changed.

82. The prosecutor submits that the defendants cannot be prejudiced by the reduction in the scope of the factual matrix relied on in relation to the proposed amended summonses. This is because the prosecutor previously relied on the whole of the constructed road in the original summonses (in contrast to the specific parts of the constructed road now relied on) and the drainage network has remained the same.

83. The prosecutor refers the Court to a number of previous cases where the amendment of summonses following an earlier finding of duplicity has been permitted. In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182 Moore J considered the permissibility of amending summonses following a finding of duplicity to replace a reference to engaging in a course of conduct with a reference to a specific day. His Honour commented at [93]:

“…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. …”

84. On appeal, the Court of Criminal Appeal commented in Snowy Monaro CCA (No 2) at [44]:

“Faced with the decision of this Court [being the judgment of the Court of Criminal Appeal in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 upholding Moore J’s earlier finding of duplicity], Snowy Monaro has in my opinion permissibly sought to do no more than clarify the charges, by either nominating a single day upon which a breach of each condition is alleged to have been committed or by particularising every day upon which a breach of each condition is alleged to have been committed. I do not consider this to be an attempt to formulate a new or different charge: the offences alleged, being breaches of the relevant conditions of consent, stay the same.”

85. The prosecutor seeks to distinguish the circumstances before me from two other cases where the amendment of the summonses was found to impermissibly enlarge the prosecutor’s factual case. In Environment Protection Authority v Du Pont (Australia) Ltd (No 2) [2013] NSWLEC 99 (‘Du Pont’) at [30], Pepper J commented as follows:

“…In my opinion the application to amend must be rejected for the following reasons:

(a) first, in my view, the amendment will mean that the substance of the charge is not based on the same facts and the offence is therefore changed. Critically, the amendment will incorporate new campaigns of different products containing MSM than those understood by all parties to be the alleged source of the fugitive dust, some of which were processed in a different part of the factory, namely, at the DF plant. To date the focus of the preparation of the parties has been on dust allegedly emitted from the F&G plant during the April/May campaigns. By amplifying the charge period, the EPA will significantly enlarge the factual scope of the proceedings. In short, it will not be the same case;

…”

86. In Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34 at [122], Moore J considered a complaint that “the now proposed geographic identifier (Catchment 1) was not an identifier arising out of anything pleaded by the Prosecutor with respect to the original defective charge against each of the Defendants”. His Honour upheld the complaint, finding at [127] that the prosecutor’s evidence in relation to the original charges did not include “material which would enable, by necessary implication, sufficient information that would permit the identification of Catchment 1 as a discrete geographic element of the site”; finding at [130] that the evidence would not permit the defendants to “discern the geographic location of the Prosecutor’s now proposed to be pleaded offending conduct”; and further at [133], the now proposed mode of identification “only came into existence as an identifying concept able to be known to the Defendants … after the expiry of the relevant limitation period.” His Honour concluded at [134]:

“…the charge for which leave is now sought in the proposed Amended Summons does not constitute some appropriate and legally acceptable refinement of the earlier charge found to be defective but, correctly understood, constitutes a fresh charge laid out of time in circumstances where no sufficient information of a relevant identifying nature had been made available by the Prosecutor to the Defendants prior to the expiry of the statutory time limit.”

87. The prosecutor submits that the circumstances before me constitute a permissible election of a single allegation in relation to each of the summonses, and this has involved a restriction of the previous facts relied on with respect to the original summonses. Such amendments would have “no doubt” been foreseen by the Court of Criminal Appeal in Kiangatha CCA (noting however, that the prosecutor rejects the defendants criticism that it inappropriately utilised the comments of Fagan J in Kiangatha CCA as a “prescription for the prosecutor to follow”: Tcpt, 12 August 2021, p 78(14-16).

Amendment does not constitute a “fresh” charge

88. As explicated further at [106]-[114] below, the defendants contend first, the change in the locations of the alleged offences; and second, the inclusion of actual pollution in the likely pollution charges, means that the proposed amended summonses constitute fresh charges. The prosecutor rejects both these assertions, and submits that the proposed amended summonses do not constitute fresh charges.

89. The prosecutor’s submissions in relation to the change in the location of the alleged offences have been summarised above at [81]-[82]. In short, the prosecutor relies on the scope of the evidence that was provided to the defendants with the original summonses, and the limited practical difference between the location of the alleged offences in the particulars provided for the original summonses and in the proposed amended summonses, to support its position that the change in the location of the alleged offences does not make the proposed amended summonses fresh charges. This submission also engages with the reference in Kypri at [24] to amendments being permissible where they clarify what is already apparent from the face of the charge (to the extent the prosecutor accepts that Kypri reflects the position in NSW).

90. In relation to the inclusion of actual pollution in the likely pollution charges, the prosecutor contends that this does not result in a new charge, because the placement of a pollutant that results in “actual” pollution of waters and the placement of a pollutant in the position where it might cause “actual” pollution are the same offence. The prosecutor cites Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 (‘Brownlie’) at 82, where Gleeson CJ commented:

“There must be many cases in which a person places matter in a position such that it is likely to be washed into waters and then, subsequently, the matter is actually washed into those waters. That does not necessarily mean that the person will have committed two contraventions of s 16(1) [of the Clean Waters Act 1970 (NSW)]. Rather, it may mean simply that the prosecution will be able to rely on additional evidence. As a practical matter, proof that something is washed into waters will often assist a conclusion that it was originally placed in a position where it was likely to wash into those waters.”

91. The prosecutor also refers to the analysis of Pearlman J in Environment Protection Authority v CSR Ltd (t/as CSR Woodpanels) [1999] NSWLEC 99; (1999) 103 LGERA 161 at [35], where her Honour considered the reference to harm and likely harm in s 6(1) of the Environmental Offences and Penalties Act 1979 (NSW) (repealed) and concluded that the section penalises a single act that may have a number of “forbidden characteristics”, stating “[i]t is an act which is unlawful in specified circumstances, that is, where it harms the environment or is likely to harm the environment”. By analogy, the prosecutor submits that it is the placement of a pollutant which constitutes the offence, whether it causes or is likely to cause “actual” pollution.

92. The prosecutor also submits that the inclusion of locations where alleged actual pollution occurred in the likely pollution charges is not new evidence, where the defendants have had the evidence of the three affidavits provided to them with the original summonses since October 2018, and this included evidence of actual pollution through the migration of sediment plumes from the road construction and the deposition of sediment and soil into dry gullies (including photographs).

Further issues of procedural fairness

93. Where the proposed amended summonses do not constitute fresh charges, but are nonetheless sought after the expiry of the statutory time limit for the alleged offences, the prosecutor contends that the focus becomes procedural fairness. This is because, provided no procedural unfairness would be suffered by the defendants, and the defendants are charged with offences known to law, amendments to summonses to cure defects such as duplicity are permissible: Built NSW at [47]; GPI (General) at [80]. It is uncontentious between the parties that the defendants have been charged with offences known to law, being water pollution pursuant to s 120(1) of the POEO Act: Tcpt, 11 August 2021, p 33(1-2).

94. Turning to the issue of notice to the defendants, the prosecutor refers to New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33 at [125], and submits that the evidence in the three affidavits provided with the original summonses (which is also relied on in relation to the proposed amended summonses) makes it clear that the defendants cannot claim that they were denied procedural fairness in relation to preparing a defence to the proposed amended summonses.

95. The defendants raise changes to the landscape (as a result of further grading, installation of aggregate on the road surface, earthworks, or new or different sediment controls) in the time since the defendants were charged with the alleged offences as a procedural fairness issue. The prosecutor accepts that the landscape upon which the road was constructed may have changed by natural means or human intervention since the alleged offences were committed. However, the prosecutor notes that in circumstances where Kiangatha owns the relevant land and undertook the works subsequent to the alleged offences, the defendants would be able to understand the alleged offences and differentiate this from what occurred after the alleged offences.

96. Further, many of these issues would be present even if the summonses were not amended, in circumstances where the prosecutor previously referred to the whole of the constructed road (rather than certain parts of the constructed road) in the original summonses. The defendants have also not been prevented from conducting their own investigations of the construction of the road and its effects, with the prosecutor submitting that the fact that Mr Meyer was able to undertake detailed survey work in relation to the alleged offences on the defendants’ instruction illustrates that the defendants were able to investigate the alleged offences.

(f)   examine and inspect any records,

(g)   copy any records,

(h)   seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,

(h1)   for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier,

(i)   do any other thing the authorised officer is empowered to do under this Chapter.

(3)   The power to seize anything connected with an offence includes a power to seize—

(a)   a thing with respect to which the offence has been committed, and

(b)   a thing that will afford evidence of the commission of the offence, and

(c)   a thing that was used for the purpose of committing the offence.

A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.

181. It is clear that these statutory powers empower authorised officers of Water NSW to access land without permission from the landowner, and subsequently to take photographs. The powers are granted on broad terms, allowing access to premises where pollution is suspected “at any time” and authorising a wide range of actions. I consider that the clear language in which the statutory powers are granted indicates Parliament’s intention to override a landowner’s common law property rights.

182. The parties disagree about whether these statutory powers can be exercised to gather evidence during criminal proceedings. This is pertinent because legislation “expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court”: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460; [1982] HCA 65 (‘Pioneer Concrete’) at 473. In this respect, consistent with the commentary of McHugh J in Caltex at 558-559 (extracted at [101] above), evidence gathering procedures are not limited to the use of court procedures during the course of pending litigation and can include obtaining evidence under a statutory power. However, if exercising a statutory power to obtain evidence interferes with the course of justice then it may constitute a contempt of court. Interference with the course of justice was described by Gibbs CJ in Pioneer Concrete at 467-468 as giving a party “advantages which the rules of procedure would otherwise deny him”.

183. Resolving this dispute requires consideration of three questions, being first, whether the statutory powers were otherwise available during the criminal proceedings; secondly, whether the construction of the provisions conferring the statutory powers support their use after criminal proceedings have commenced; and thirdly, whether the use of the statutory powers will provide an advantage beyond that which is permitted by the rules of court and constitute a contempt of court: cf. Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295 (‘Elm’) at [44].

184. The first question can be dealt with shortly. The defendants submit that ss 196 and 198 of the POEO Act give the prosecutor access to Kiangatha’s property overriding Kiangatha’s common law property rights. In the absence of contrary submissions from the prosecutor, I accept that neither the LEC Rules nor the UCPR applies to confer jurisdiction on the Court to order access for a prosecutor in proceedings in Class 5 of the Court’s jurisdiction. In these circumstances, access to Kiangatha’s property would not be available during criminal proceedings without recourse to the relevant statutory powers.

185. This is relevant because if a court’s own powers can be used to obtain the same outcome as the statutory powers, then using the statutory powers would not amount to a contempt of court. For example, in Caltex at 507, Mason CJ and Toohey J held that in circumstances where the principle against self-incrimination does not apply to corporations, and thus a notice to produce can be issued under the court’s process to compel the production of information during proceedings, there is no reason to construe an analogous statutory power in a limited manner. This approach was also adopted by Brennan J at 517, where his Honour commented that the need to guard against a contempt of court is removed where a warrant could be issued to obtain the same outcome as the statutory powers.

186. Turning then to the second question, ss 196 and 198 of the POEO Act are drafted in broad terms, which would suggest that they are prima facie capable of applying after a criminal proceeding has commenced. However, a more detailed consideration is warranted.

187. Section 196(1)(b) of the POEO Act empowers authorised officers to access premises in circumstances where pollution is suspected to have occurred in the past, to be occurring, or to likely occur in the future. This is a broad power, and one which specifically contemplates access to premises after a (suspected) pollution event has occurred. The conditions for accessing premises in s 196(1)(b) in circumstances of suspected pollution are notably broader than the conditions for entry in the other circumstances contemplated in the section, as there is no caveat restricting access to a “reasonable” time, or to only when activities are being carried out. This suggests that Parliament was contemplating empowering authorised officers to access premises in a variety of situations.

188. Once premises have been lawfully accessed, s 198(1) of the POEO Act provides for “anything that in the opinion of the authorised officer is necessary to be done for the purposes of this Chapter” to be undertaken. Section 198(2) sets out a number of specific actions which are authorised. While the list covers a range of different actions, they can generally be described as investigative in character as they relate to gathering material and obtaining information.

189. The defendants drew the Court’s attention to the location of ss 196 and 198 in Ch 7 of the POEO Act, headed “Investigation”. In contrast, Ch 8 of the POEO Act is headed “Criminal and other proceedings”. I accept that Ch 7 of the POEO Act is concerned with investigations which would normally occur prior to proceedings being commenced, and that Ch 8 is concerned with the commencement and conduct of criminal proceedings. However, at the beginning of Ch 7 of the POEO Act, s 184 provides as follows:

184   Purposes for which powers under Chapter may be exercised

Powers may be exercised under this Chapter for the following purposes—

(a)   for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act,

(b)   for obtaining information or records for purposes connected with the administration of this Act,

(c)   generally for administering this Act and protecting the environment.

190. I consider that in circumstances where s 198(1) of the POEO Act authorises anything necessary to be done for the purposes of Ch 7, and the purposes of Ch 7 include generally administering the POEO Act, Parliament intended the provision to have broad application. A similar conclusion was reached by McHugh J in Caltex at 557, with his Honour suggesting that nothing in the terms of the pertinent legislation in that case “suggests that the power conferred by that provision to obtain evidence against a person is spent once proceedings against that person have been commenced.”

191. Construing ss 196 and 198 of the POEO Act to have a broad application is also consistent with the objects of the POEO Act, and the public interest in the use of investigative powers to protect the environment. I consider the reasoning of Mason CJ and Toohey J in Caltex at 507 to be apt, where their Honours considered that issuing a notice requiring the production of documents under s 29(2)(a) of the Clean Waters Act 1970 (NSW) (repealed) for the purposes of ascertaining whether a breach of the statute or a licence has occurred, and for obtaining evidence of such a breach, and found that to allow one purpose but not the other would be “artificial”. Rather, their Honours concluded that if it would be permissible prior to the commencement of proceedings, it must be permissible after the proceedings have commenced.

192. In conclusion, I find that the exercise of the statutory powers in ss 196 and 198 of the POEO Act should not be construed to as limited to empowering authorised officers to undertake investigations prior to the commencement of proceedings, but are instead capable of applying after criminal proceedings have commenced.

193. The final question relates to the use of ss 196 and 198 of the POEO Act in the specific context of the criminal proceedings before me. It is uncontroversial that the authorised officers of Water NSW attended Kiangatha’s property on 20 April 2021 for the purpose of taking aerial photography from a drone to obtain more accurate aerial imagery of the Sites in the course of the prosecutor’s election and further particularisation of a single offence in relation to each summons. The fact that ss 196 and 198 of the POEO Act were utilised to obtain material to be directly used in these proceedings distinguishes the circumstances before me from a number of the previous cases, where the statutory powers were not so clearly being utilised to obtain material that was intended to be used in the extant criminal proceedings: cf. Pioneer Concrete; Elm at [77], [80]. This focuses my consideration on whether the access to Kiangatha’s property and taking of aerial photographs provides an advantage in these proceedings beyond what is permitted to a litigant by the rules of court and thereby constitutes a contempt of court.

194. The parties directed me to a number of cases where statutory powers were utilised to require questions to be answered or documents to be produced. In these cases, the courts grappled with the interference of the statutory powers with the administration of justice and the accusatorial system of criminal justice.

195. In Brambles Holdings Ltd v Trade Practices Commission (No 2) [1980] FCA 120; (1980) 44 FLR 182 at 189, Franki J (in contempt proceedings brought by a defendant in proceedings that had been commenced for offences against the Trade Practices Act 1974 (Cth)) concluded that the statutory power to serve notices requiring information in relation to alleged offences, utilised by the Trade Practices Commission, did not extend to service of notices after proceedings had been commenced for a penalty, where that notice was directed to obtaining answers from a defendant which were relevant to the proceedings against the defendant. Justice Franki found at 192 that where the service of the notice was for the purpose of obtaining information from the defendant which could not be obtained by a process in the court (because discovery and interrogatories were denied to the Trade Practices Commission), and thus to achieve an advantage in the proceedings, was a “clear interference with the court.”

196. A similar conclusion was reached in Hammond v Commonwealth of Australia (1982) 152 CLR 188; [1982] HCA 42 at 198, where Gibbs CJ found that the examination of a witness in a Royal Commission on matters directly arising in criminal proceedings against that witness constituted a real risk of interference in the administration of justice (even if the answers were not admissible in evidence), as it would prejudice the witness in his defence of the criminal proceedings.

197. In Caltex, as noted above, the majority found, on the basis of different reasoning, that the privilege against self-incrimination did not apply to corporations and accordingly a notice requiring the production of documents did not need to be construed in a restrictive manner to avoid authorising an interference in the administration of justice. In coming to this conclusion, McHugh J put forward the proposition at 558 that, “in the absence of clear legislative indication to the contrary, a statute should not be read as authorizing an interference with the course of justice.” A “restrictive construction” of the investigative power was also adopted by Brennan J at 517-518, because his Honour considered it to be inconsistent “with an accused's right of silence at the pending trial” (although his Honour noted that this would not be the case where, as in the case he was determining, the documents in question speak for themselves and a warrant could be issued to the same effect). His Honour noted at 516-517 that a statutory power requiring the giving of information will usually be construed as being exhausted when criminal proceedings are commenced, because the power is “conferred for the purpose of the performance of the administrative function of determining whether proceedings should be instituted”.

198. Chief Justice Mason and Toohey J also considered the privilege against self-incrimination and the accusatorial system of justice. Their Honours distinguished at 502 between the production of documents that are already in existence (which are “in the nature of real evidence” that speaks for itself) and requiring a person to testify to guilt (which is evidence brought into existence in response to the exercise of investigative power or in the course of legal proceedings), suggesting that the case for protecting the latter is “much stronger” than the former. Their Honours suggested at 503 that while the privilege against self-incrimination would protect against the production of documents, it does not necessarily follow that the protection is an “essential element” in the accusatorial system of justice.

199. In NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252 (‘Nutricia’), the Court of Criminal Appeal considered a stated case relating to six notices (in the form of interrogatories) to provide information and documents issued under s 37 of the Food Act 2003 (NSW), where two of the notices sought information relating to criminal proceedings already commenced, and four sought information relating to the investigation of further offences and referred to further charges.

200. Chief Justice Spigelman (with whom Hidden and Latham JJ agreed) identified at [105]-[106], that while no fundamental right was involved in the circumstances, there was a relevant fundamental principle being “the need to safeguard the integrity of the system of, relevantly, criminal justice which is protected by the contempt of court doctrine” and the “relevant ‘general system of law’ … is the Australian accusatorial system of criminal justice.” His Honour considered at [112] that “a clear statement [would be needed] before Parliament will be taken to intend that a statutory power can be exercised in such a way as would, in the absence of such authority, constitute a contempt of court…”. However, contempt of court involves “so fundamental a principle” that considerations of administrative convenience and regulatory effectiveness would not justify an inference that Parliament intended to override the law of contempt which applies after criminal proceedings are commenced: at [123].

201. Chief Justice Spigelman concluded that utilising a statutory power for the sole or dominant purpose of obtaining evidence to be used in proceedings (where this provides an advantage that is not available under the court rules) would constitute contempt of court. Accordingly, the two notices relating to the commenced criminal proceedings were not authorised by the statutory power: at [137]. However, his Honour also noted at [143] that not just any “effect” on the proceedings constitutes contempt of court, as there must be a “real risk” of interference with the administration of justice. In this respect, not every “advantage” will constitute an impermissible interference with court proceedings so as to amount to a contempt of court: at [145]. His Honour found at [171] that the other four notices were authorised by the statutory powers as they were not issued with the sole or dominant purpose of obtaining evidence for use in current proceedings, even if the prosecution may obtain an indirect advantage in extant criminal proceedings.

202. Finally, in Zhang, Preston CJ of LEC concluded at [92] that issuing a notice under s 118BA of the Environmental Planning and Assessment Act 1979 (NSW) to compel a third party to answer questions did not amount to a contempt of court in circumstances where there was no actual or real risk of interference with the due administration of justice in criminal proceedings. This was because the use of the statutory power to compel a third party who was not a witness or a defendant in the criminal proceedings did not give the prosecutor an advantage in the proceedings which it would otherwise be denied. I note that the focus on a third party is a point of distinction between the circumstances considered in Zhang and the circumstances before me in these proceedings.

203. Returning to the circumstances before me, I find that the exercise of the statutory powers provides the prosecutor with an advantage in the proceedings. It appears to me that without the exercise of the statutory powers, and the ability to access Kiangatha’s property, the prosecutor would not have obtained the material it used to produce the composite aerial maps for each of the individual Sites which were attached to the proposed amended summonses. If leave is granted to amend the summonses, the prosecutor intends to rely on the proposed amended summonses for the rest of these proceedings. Clearly identifying the locations of the Sites and the surrounding landscape in the proposed amended summonses with reference to composite aerial maps will assist the prosecutor in its conduct of the proceedings.

204. However, it does not necessarily follow that the advantage the prosecutor obtained by exercising the statutory powers could not be obtained in another manner which is permitted by procedural rules or rules of court. In this respect, accessing Kiangatha’s property and using a drone is not the only method of producing material that identifies each of the individual Sites for use in the proposed amended summonses which was available to the prosecutor. I accept the prosecutor’s submission that it could have obtained an accurate depiction of the locations of the road, drainage lines, and ground-based photographs using another method (although I hold some reservations as to whether the proposed ground-truthing method would in fact not require access to Kiangatha’s property). But other long-distance methods or aerial mapping products may give the prosecutor the same advantage which is permitted by procedural rules or rules of court.

205. In the event I am incorrect in finding that the prosecutor did not obtain an advantage that would otherwise be denied under procedural rules or rules of court, I have also considered the outcome on the basis that such an advantage would have been denied. In these circumstances, I conclude that the exercise of the statutory powers provided the prosecutor with an advantage that would have been denied but that the advantage does not constitute an interference, or a “real risk” of interference, in the administration of justice. My reasons for this conclusion follow.

206. First, the exercise of the statutory powers is being undertaken at an early stage of the proceedings for the purpose of electing and further particularising the offences the defendants are being charged with. The material obtained is being used to delineate the proposed scope of the offences with which the defendants are being charged. While I accept the comments of Spigelman CJ in Nutricia at [160], noting that the formal presentation of a charge is a critical step in the accusatorial criminal justice system, I do not consider that obtaining material to better assist in the delineation of the offences as part of an interlocutory application to amend the summonses prior to the timetabling of evidence to interfere with the accusatorial criminal justice system.

190. Further, the exercise of the statutory powers for this purpose at this early stage in the proceedings can be characterised as investigative in nature. In contrast to the circumstances in a number of the cases to which the Court was referred, where the purpose of obtaining material was to rely on that material as evidence to prove an offence charged, the material is being used to delineate the offences. The defendant retains the ability to consider and respond to the offences once delineated, and the prosecution retains the onus to prove the elements of the offences beyond reasonable doubt in the accusatorial system of justice. Accordingly, I do not consider the advantage obtained by the prosecutor to constitute an interference with the administration of justice given the stage of the proceedings.

191. Secondly, the prosecutor exercised the statutory powers in order to obtain aerial photography because the existing aerial photography data available to the prosecutor suffered from inaccuracies. In the circumstances, the material obtained was confirmatory in nature given the other material which was already available to the prosecutor. This is very different to the exercise of statutory powers to require a defendant to provide answers in an interview or via interrogatories, or the exercise of statutory powers to require the production of documents, which involves the prosecutor obtaining new evidence which was not previously available to it, and which may support the prosecutor’s case and undermine the defendant’s privilege against self-incrimination.

192. In this respect, the circumstances before me can be clearly distinguished from Preston J’s comments in Zhang at [75], where his Honour referred to the issue of a notice compelling an accused to answer questions as enabling an “extra-curial inquisitorial investigation” to be conducted, which constitutes an improper interference with the due administration of justice in the proceedings against the accused and a contempt of court.

193. Thirdly, as noted by Mason CJ and Toohey J in Caltex at 502, there is a distinction between the need to protect against requiring a person to testify to guilt, and the production of documents which tend to implicate a person in the commission of an offence already in existence, on the basis of the privilege against self-incrimination. Their Honours identify that the production of documents may involve some testimonial aspects, and conclude that the privilege against self-incrimination does protect the production of documents although its unavailability may not compromise the accusatorial system.

194. In the present circumstances, I do not consider there to be a need to protect against the prosecutor obtaining access to land (and the taking of aerial photographs) on the basis of the privilege against self-incrimination, especially where there are no testimonial aspects involved. Given this, I accept the submissions of the prosecutor and find that the circumstances before me can be distinguished from the defendants being issued with statutory notices to provide information or to attend an interview contrary to the right to silence (using that expression as reflecting a number of separate and distinct immunities: Caltex at 503).

195. Given this, while the “the degree of connection between the exercise of the statutory power and extant proceedings is an important element in determining whether there is a contempt or abuse” (Nutricia at [197]), and I accept that the prosecutor’s purpose in using the statutory powers in ss 196 and 198 of the POEO Act to support and inform its election and further particularisation of a single offence in relation to each summons is closely connected to the conduct of the current proceedings, I do not consider the prosecutor to have obtained an “advantage” by using its statutory powers in ss 196 and 198 of the POEO Act, which interferes with the administration of justice, such that it constitutes a contempt of court. Rather, the circumstances before me reflect the situation foreshadowed by Spigelman CJ in Nutricia at [145], where a “mere” advantage does not necessarily result in an impermissible interference with court proceedings occurring.

196. For completeness, I have also considered the implications of the stay imposed by the Court of Appeal in Order (4) of Kiangatha CCA. I accept the prosecutor’s submissions and consider that while the stay clearly applies to actions that can be taken by the parties in the proceedings, it does not affect the exercise of the prosecutor’s statutory powers under the POEO Act. I do not accept the defendants’ contention that the imposition of the stay in and of itself means there is no ability to take action in the proceedings under the procedural rules, and such that any exercise of the prosecutor’s statutory powers under the POEO Act constitutes an interference with the course of justice.

197. As a result, I find that the prosecutor was entitled to rely on the statutory powers in ss 196 and 198 of the POEO Act to access Kiangatha’s property and take aerial photography. This means this material was obtained without trespass, and does not constitute unfair or disentitling conduct by the prosecutor for the purposes (only) of considering the amendment of the summonses to reflect the proposed amended summonses.

Conclusion

215. In summary, I find that the proposed amended summonses are not so different to the original summonses that they constitute “fresh” charges. Further, the statutory requirements and common law requirements for the amendment of summonses have been fulfilled. Finally, I consider that ss 196 and 198 of the POEO Act empower authorised officers of Water NSW to obtain material used in the preparation of the proposed amended summonses, such that this does not constitute unfair or disentitling conduct by the prosecutor.

216. On the basis of my findings, the prosecutor should be granted leave to amend the summonses to reflect the proposed amended summonses.

Orders

In proceedings 00295909 and 00295910 of 2018

217. The Court orders:

1. Water NSW is granted leave to rely on the amended summonses attached to the notice of motion filed 7 May 2021 and marked C in proceedings 00295909 of 2018.

2. Water NSW is granted leave to rely on the amended summonses attached to the notice of motion filed 7 May 2021 and marked A in proceedings 00295910 of 2018.

3. The proceedings are stood over for directions before the List Judge on Friday 25 February 2022.

In proceedings 00295911 and 00295912 of 2018

218. The Court orders:

1. Water NSW is granted leave to rely on the amended summonses attached to the notice of motion filed 7 May 2021 and marked D in proceedings 00295911 of 2018.

2. Water NSW is granted leave to rely on the amended summonses attached to the notice of motion filed 7 May 2021 and marked B in proceedings 00295912 of 2018.

3. The proceedings are stood over for directions before the List Judge on Friday 25 February 2022.

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Decision last updated: 31 January 2022