Citation: Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204
Court: Court of Criminal Appeal, New South Wales
Date: 30 August 2013
Judges: Leeming JA; RA Hulme J; Button J
Background
The Environment Protection Authority (EPA) prosecuted a waste processing company (Truegain) in the Land and Environment Court for contravening a condition of its Environment Protection Licence. The relevant licence condition required that licensed activities be carried out in a "competent manner," encompassing the treatment and storage of liquid waste on the company's premises at Rutherford. The EPA filed its summons on the last available day under the applicable limitation period.
The single summons alleged multiple failures relating to both the treatment and storage of liquid waste across a range of dates between 2 June and 9 July 2010. After extensive correspondence and the provision of detailed particulars spanning 18 single-spaced pages, Truegain moved to dismiss or stay the proceedings on the ground that the summons was duplicitous (that is, it charged more than one offence in a single count, contrary to established procedural rules).
The primary judge, Lloyd AJ, upheld the duplicity argument and also ordered costs against the EPA. The EPA sought leave to appeal all three interlocutory decisions to the Court of Criminal Appeal.
Legal Issues
- Whether the summons was bad for duplicity by combining allegations of both treating and storing liquid waste, across different incidents and dates, within a single charge
- Whether the Land and Environment Court had power to order costs against the prosecutor in its summary (criminal) jurisdiction, at an interlocutory stage before the prosecution was determined
- Whether section 68 of the Land and Environment Court Act 1979 provided a free-standing costs power in the Court's summary jurisdiction, separate from the costs regime under the Criminal Procedure Act 1986
Decision
Duplicity: The Court of Criminal Appeal upheld the primary judge's finding that the summons was duplicitous. The summons as particularised disclosed separate acts of treating waste and storing waste, occurring on distinct dates and in relation to distinct aspects of Truegain's operations. Under established doctrine, a single charge must allege only one offence. Where particulars reveal that distinct acts are alleged, each constituting a separate offence, a single charge cannot accommodate them all without offending the duplicity rule.
The EPA had argued that its summons disclosed a single ongoing contravention of the licence condition (the failure to operate competently), rather than discrete offences. The Court rejected this characterisation. Once the detailed particulars were provided, it became clear that the prosecution was alleging multiple separate instances of non-compliance, differentiated by date, activity type, and location on the premises. The single summons could not properly contain all of those allegations.
Costs: The Court disagreed with the primary judge on the costs question. Lloyd AJ had found that section 68 of the Land and Environment Court Act 1979 gave the Court a broad, free-standing power to order costs, including on an interlocutory basis in its summary jurisdiction. The Court of Criminal Appeal rejected this approach. Leeming JA undertook a detailed analysis of the legislative history and structure, concluding that section 68 was directed at the Court's civil jurisdiction and did not extend to authorise interlocutory costs orders in summary (criminal) proceedings. The costs regime applicable in summary proceedings is governed by the Criminal Procedure Act 1986, which does not confer a general power to award costs before the outcome of the prosecution is determined.
Accordingly, while the duplicity finding was affirmed and the appeal on that ground dismissed, the costs order was set aside.
Orders Made
No orders were made in this decision.
Key Takeaways
-
The Court of Criminal Appeal confirmed that a summons in summary criminal proceedings is duplicitous if, once particularised, it reveals allegations of separate and distinct acts each constituting an offence, even where those acts are framed as a single continuing failure to comply with a licence condition.
-
A single charge cannot properly combine allegations of both treating and storing waste as discrete unlawful acts across multiple dates and locations; prosecutors must assess whether separate charges are required once the precise conduct alleged is identified.
-
Under the Land and Environment Court Act 1979, section 68 does not confer a free-standing power to award costs in the Court's summary (criminal) jurisdiction. The costs framework for summary proceedings is governed by the Criminal Procedure Act 1986.
-
No power existed to order interlocutory costs against a prosecutor in the Land and Environment Court's summary jurisdiction prior to the determination of the prosecution.
-
In granting leave to appeal, the Court set aside the costs order but otherwise dismissed the appeal, leaving the duplicity finding intact.
Legislation and Cases Referenced
Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 48, 64, 148, 216
- Land and Environment Court Act 1979 (NSW), s 68
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F
- Costs in Criminal Cases Act 1967 (NSW)
- Civil Procedure Act 2005 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Key Cases:
- Director of Public Prosecutions v Merriman [1973] AC 584
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; (1995) 37 NSWLR 150
- CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334
- Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361
- Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161
- Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 86 ALJR 217
- Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153