Citation: Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403
Court: Court of Criminal Appeal
Date: 14 December 2006
Judge(s): Handley JA; Hulme J; Kirby J
Background
An egg products manufacturer stored liquid egg waste in an external steel tank adjacent to its factory. In the early hours of 3 October 2003 the tank leaked, spreading waste across a concrete loading apron and into at least some of the stormwater drainage pits on the property. The stormwater system on the property connected through a public drainage network to a protected wetland lagoon.
Newcastle City Council prosecuted the manufacturer for polluting the lagoon's waters, contrary to section 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act). The trial judge in the Land and Environment Court convicted the appellant, not on the basis that egg waste had actually reached the lagoon, but on the basis that the waste had been placed in a position where it was "likely to" fall or descend into the lagoon's waters.
On appeal to the Court of Criminal Appeal, the manufacturer raised procedural objections to the form of the summons, objections it had not raised at trial. The majority dismissed the appeal and upheld the conviction.
Legal Issues
- Whether the summons was defective for failing to specify the act or omission alleged as the foundation of the charge (lack of particularity)
- Whether the summons was duplicitous, in that it appeared to charge both actual pollution and likely pollution as separate bases for liability
- Whether any such defects caused a miscarriage of justice in the circumstances
- Whether, on the facts found at trial, there was sufficient evidence that the pollutant was "likely to" fall or descend into the protected waters
- What the word "likely" means in the definition of "water pollution" in the POEO Act's Dictionary
Decision
Issue 1: Lack of particularity in the summons
The summons described the pollution in the passive voice and did not identify the specific act of the appellant said to constitute placing the pollutant in a position where it was likely to enter the lagoon. Handley JA (with whom Kirby J agreed) accepted that this rendered the summons defective for failing to particularise the essential factual act. However, because the summons correctly stated the legal elements of the offence, the defect fell within the second category identified in Taylor v EPA: a failure to state essential factual particulars rather than a failure to state essential legal elements. Section 16(2) of the Criminal Procedure Act 1986 operated to cure that type of defect.
The appellant had not objected to the form of the summons at trial and had not sought further and better particulars. The course of the trial itself removed any practical uncertainty: the Council relied solely on the act of storing egg waste in the tank as the foundation of the charge.
Issue 2: Duplicity
Handley JA held that the summons was not duplicitous on its face. Although the statutory definition of "water pollution" in paragraph (d) covers both actual pollution and likely pollution, authority established that these are not two separate offences but a single act possessing one or more of several forbidden characteristics. The charge, as conducted at trial, resolved into a single offence based on the "likely to" limb alone, and the trial judge's reasons made that clear.
Hulme J dissented. His Honour considered that the particulars, by using language consistent only with actual pollution having occurred ("was likely to and did fall" and "was introduced into the said waters"), meant the appellant was convicted of a different offence from that charged as particularised. In his Honour's view this was not a mere variance but a fundamental defect going to the identity of the offence, and the conviction should be quashed. The majority did not accept that analysis.
Issue 3: Miscarriage of justice
Even accepting there was latent duplicity or insufficient particularity, Handley JA concluded that no miscarriage of justice had resulted. The appellant was not taken by surprise, suffered no prejudice or embarrassment, and the trial judge's reasons identified the single act and single offence on which conviction rested. A conviction in a summary proceeding is generally not ambiguous in the same way a jury verdict on a duplicitous count may be, because the judge gives reasons. Where no miscarriage of justice is established, section 16(2) and the court's powers under section 29 of the Criminal Procedure Act provide a sufficient answer.
Issue 4: Meaning of "likely" and sufficiency of evidence
The Court confirmed, by majority, that "likely" in the POEO Act's definition of water pollution means a real and not remote chance or possibility, regardless of whether it is more or less than a 50 per cent probability. This interpretation follows Smart J's reasoning in Mathews v Goulburn Wool Processors (1986), consistently applied in the Land and Environment Court, and aligned with the High Court's construction of the same word in Boughey v The Queen. Parliament's re-use of identical language in the 1997 Act attracted a presumption that the same meaning was intended.
On the facts, Handley JA held the evidence amply supported the finding that the egg waste was "likely to" reach the lagoon. The tank was rusted, uninspected and unmaintained. Egg waste had already escaped into stormwater pits on the property. Recent rainfall meant drainage pits were unlikely to be dry. Without the emergency containment measures actually taken that morning, waste would have flowed by gravity through the system toward the lagoon. The fact that prompt action on the day prevented actual discharge did not preclude a finding that the discharge was likely.
Orders Made
- Appeal against conviction dismissed with costs.
Key Takeaways
- A summons that states the correct legal elements of an environmental pollution offence but fails to identify the specific act alleged is defective for lack of particularity, but that defect is cured by section 16(2) of the Criminal Procedure Act 1986 where no objection was raised at trial and no miscarriage of justice resulted.
- Under the POEO Act, "likely" in the definition of "water pollution" means a real and not remote chance or possibility of pollution occurring, not a probability exceeding 50 per cent. The Court of Criminal Appeal confirmed this long-standing construction.
- A charge of indirect water pollution under the POEO Act is not duplicitous merely because the statutory definition covers both actual and likely pollution. Authority treats these as one act capable of possessing alternative forbidden characteristics, not as two distinct offences.
- Where a trial judge gives reasons identifying the single act and single offence underpinning a conviction, an appellate court may look to those reasons to satisfy itself that a potentially duplicitous or under-particularised charge did not in fact produce an ambiguous or unjust result.
- Sufficient evidence of likely pollution can be established even where actual pollution reaching the waters is not proved. Evidence of the physical condition of containment infrastructure, absence of inspection systems, the drainage layout, and rainfall conditions may together support such a finding.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated