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10
Court of Criminal Appeal 30 August 2013

Environment Protection Authority v Truegain Pty Ltd

[2013] NSWCCA 204

Also reported as (2013) 85 NSWLR 125
Other
COURTS AND JUDGES PROCEDURE SUMMARY JURISDICTION SUMMONS CONTAINING A SINGLE CHARGE WHETHER BAD FOR DUPLICITY PROCEDURE

Citation: Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204
Court: Court of Criminal Appeal
Date: 30 August 2013
Judge(s): Leeming JA; RA Hulme J; Button J

Background

The Environment Protection Authority (the appellant prosecutor) charged Truegain Pty Ltd (the respondent licence holder) with a single offence under s 64(1) of the Protection of the Environment Operations Act 1997. The charge alleged that Truegain contravened a condition of its environment protection licence by failing to carry out licensed activities in a competent manner. The licence authorised waste processing (non-thermal treatment) at premises in Rutherford, and the alleged contraventions occurred between approximately 2 June and 9 July 2010.

After the EPA served its prosecution brief and extensive further particulars, Truegain moved to dismiss or stay the proceedings on the basis that the single charge was bad for duplicity. The particulars identified seventeen different ways the offence was said to have been committed across twelve different locations on the premises, involving separate allegations of incompetent storage and incompetent treatment of liquid waste on different days, at different sites, and using different equipment.

The primary judge (Lloyd AJ) found the summons was duplicitous, required the EPA to amend it, and ordered the EPA to pay Truegain's costs under s 68 of the Land and Environment Court Act 1979. The EPA sought leave to appeal all three interlocutory decisions.

Legal Issues

  • Whether the EPA's summons was bad for duplicity by alleging incompetent storage and incompetent treatment of waste as a single charge under s 64(1) of the POEO Act
  • Whether separate acts of incompetent storage and incompetent treatment could constitute a single offence or a continuing course of conduct
  • Whether s 68 of the Land and Environment Court Act 1979 conferred a free-standing power to order costs in the Court's Class 5 summary criminal jurisdiction prior to the determination of proceedings
  • Whether the power to order costs in Class 5 proceedings is regulated exclusively by the Criminal Procedure Act 1986

Decision

Issue 1: Duplicity

The Court of Criminal Appeal unanimously upheld the finding of duplicity, substantially for the reasons given by the primary judge (at [3]). The rule against duplicity applies in summary jurisdiction and requires that a single charge not embrace separate and discrete offences unless they form part of the same transaction or criminal enterprise (at [39]-[40]). The elements of the relevant offence were contravening a condition of an environmental protection licence, and that condition was breached both when waste was stored incompetently and when it was treated incompetently. Each constituted an independent contravention.

The Court found the amended particulars disclosed more than one offence. Incompetent storage was alleged on six days across seven locations; incompetent treatment was alleged on six days (mostly different days) across three locations. The conduct underlying each allegation was different in time, place, and character (at [57]). The Court noted that the charge would not inevitably fail unless both sets of particulars were made out, which confirmed their independence. Leeming JA observed that the EPA's position exposed the very vice Dixon and Evatt JJ identified in Johnson v Miller: the prosecution was seeking to package what was, in substance, more serious and multifarious criminality into a single charge (at [73]-[74]).

Issue 2: Power to Order Costs Under Section 68 of the LEC Act

The Court held that s 68 of the Land and Environment Court Act was not a separate or free-standing source of power to order costs in Class 5 summary criminal proceedings (at [85]-[98]). Section 68 confers a power to order amendments "upon such terms as to costs or otherwise as the Court thinks fit," but this presupposes that any costs power is found elsewhere. It is a power to amend, not a power to award costs (at [87]).

The legislative scheme revealed two distinct costs regimes operating in parallel when the Court was created in 1979: a general civil costs power (originally s 69, now s 98 of the Civil Procedure Act) applicable to all proceedings except Class 5, and a limited criminal costs power (originally s 52, now ss 257B, 257C and 257D of the Criminal Procedure Act) applicable to Class 5 proceedings only (at [86]). To read s 68 as a third, unqualified costs power would undermine this carefully structured scheme (at [91]). The Criminal Procedure Act regime conditions costs orders on the outcome of proceedings and on findings of unreasonableness or other exceptional circumstances. An interlocutory costs order made prior to determination of the prosecution therefore had no statutory foundation (at [95], [98]).

The Court also noted that two prior costs orders made in the Land and Environment Court on the same basis, in Wakool Shire Council v Garrision Cattle Feeders Pty Ltd and Sutherland Shire Council v Benedict Industries Pty Ltd, were made per incuriam (at [98]).

Orders Made

  • Leave to appeal granted and appeal allowed in part
  • The costs order (order 2) made on 18 April 2012 was set aside
  • The appeal otherwise dismissed

Key Takeaways

  • A single environmental licence condition requiring "competent" carrying out of licensed activities does not automatically render all particularised failures a single offence. Where incompetent storage and incompetent treatment occur on different days, at different locations, and involve different conduct, they constitute separate offences and cannot be joined in a single charge without attracting the rule against duplicity (at [57], [63]).

  • The rule against duplicity continues to apply in summary jurisdiction, including in the Land and Environment Court's Class 5 proceedings. Courts exercising that jurisdiction may respond to duplicity by ordering particulars, requiring the prosecutor to elect between charges, or permitting amendment rather than dismissing the summons outright (at [39]-[40]).

  • Section 68 of the Land and Environment Court Act 1979, which empowers the Court to order amendments on terms as to costs, is not a free-standing or independent source of power to award costs. The language is directed to the power of amendment, not costs, and must be read within the broader legislative scheme (at [87]-[88]).

  • In Class 5 (summary criminal) proceedings in the Land and Environment Court, costs are governed exclusively by the Criminal Procedure Act 1986, principally ss 257B, 257C and 257D. An interlocutory costs order against a prosecutor, made before proceedings are determined, has no statutory foundation under that scheme (at [95], [98]).

  • Prior Land and Environment Court decisions ordering costs against prosecutors in Class 5 proceedings under s 68 of the LEC Act were identified by the Court of Criminal Appeal as having been made per incuriam, and should not be treated as authoritative on the costs power question (at [98]).

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005
- Costs in Criminal Cases Act 1967
- Courts Legislation Amendment Act 2007
- Crimes Act 1900
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912
- Criminal Procedure Act 1986
- Crimes (Sentencing Procedure) Act 1999
- Crown Lands Act 1889
- Crown Lands (Amending and Declaratory) Act 1912
- Justices Act 1902
- Land and Environment Court Act 1979
- Land and Valuation Court Act 1921
- Protection of the Environment Operations Act 1997
- Summary Jurisdiction Act 1848 (Eng)
- Supreme Court Act 1970
- Supreme Court (Summary Jurisdiction) Act 1967

Cases
- Attorney-General of Queensland v Holland (1912) 15 CLR 46
- Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217
- Barton v Berman [1980] 1 NSWLR 63
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
- Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150
- Calleija v R [2012] NSWCCA 37.
- Cha v R [2012] NSWCCA 142
- Chapman v R [2013] NSWCCA 91
- Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161
- Chugg v Pacific Dunlop Ltd [1988] VR 411
- CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334
- Davis v R [2006] NSWCCA 392
- De Romanis v Sibraa [1977] 2 NSWLR 264
- Director-General, NSW Department of Industry & Investment v Coomes [2012] NSWLEC 251
- Director of Public Prosecutions v Merriman [1973] AC 584
- Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1
- Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361
- Ex parte Justelius; Re Lucas (1970) 92 WN (NSW) 455
- Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
- Ex parte Polley; re McLennan (1947) 47 SR (NSW) 391
- Ex parte Williams (1909) 9 SR (NSW) 140
- Hakim v Waterways Authority of NSW [2006] NSWCCA 376; (2006) 149 LGERA 415
- Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151
- Hedberg v Woodhall (1913) 15 CLR 531
- Iannella v French (1968) 119 CLR 84
- John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338; (2010) 202 IR 82
- Johnson v Miller (1937) 59 CLR 467
- Knight v FP Special Assets Ltd (1992) 174 CLR 178
- Latoudis v Casey (1990) 170 CLR 534
- Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486
- Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
- Parker v Sutherland (1917) 86 LJKB 1052
- Partington v Pacific Link Housing Ltd [2013] NSWCA 259
- Port Macquarie - Hastings Council v Lawlor Services Pty Ltd (No 7) [2008] NSWLEC 75; (2008) 159 LGERA 87
- R v Abdollahi (No 12) [2013] NSWSC 485
- R v Manwaring [1983] 2 NSWLR 82
- R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373
- R v WWS [2009] VSCA 125; (2009) 22 VR 559
- Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323
- Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7
- Rodgers v Richards [1892] 1 QB 555
- S v The Queen (1989) 168 CLR 266
- Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119
- Stanton v Abernathy (1990) 19 NSWLR 656
- Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121
- Swift & Co v Board of Trade [1926] 2 KB 131
- Taylor v The Queen [1997] TASSC 5; (1997) 6 Tas R 318
- The Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114
- Wakool Shire Council v Garrision Cattle Feeders Pty Ltd [2010] NSWLEC 199; (2010) 177 LGERA 282
- Walsh v Tattersall (1996) 188 CLR 77