Citation: Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165
Court: Court of Criminal Appeal, New South Wales
Date: 25 June 2015
Judges: Hoeben CJ at CL, Hall J, Garling J
Background
The Environment Protection Authority (EPA) prosecuted a stock feed company in the Land and Environment Court (LEC), alleging that on or about 22 April 2013, the company polluted waters near Casino, NSW, in contravention of s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (the PoEO Act). The alleged pollution involved waste material, including tallow, fats, and oils, being sent down stormwater drains from the company's premises and washing into nearby waterways.
At the commencement of the LEC hearing, the company raised a preliminary objection that the summons was duplicitous. The summons had described the "manner of contravention" in three alternative paragraphs: one relying on the company's status as occupier of the premises under s 257(1) of the PoEO Act, and two others identifying specific acts of placing pollutants into drains or in positions where they would wash into the waters.
The LEC (Pepper J) upheld the duplicity objection and required the EPA to elect between the alternatives or face a strike-out. The EPA then applied to have two questions of law referred to the Court of Criminal Appeal, with the LEC proceedings stayed pending the outcome.
Legal Issues
- Whether the LEC erred in finding the summons was bad for duplicity because it charged more than one offence in a single count under s 120(1) of the PoEO Act.
- Whether s 257(1) of the PoEO Act, on its proper construction, removes the need for the prosecutor to provide particulars of the specific act alleged as the foundation of the manner of contravention charged in paragraph 1(c)(i) of the summons.
Decision
On the first question, the Court of Criminal Appeal answered "no": the LEC had not erred. The summons charged multiple distinct offences in a single count. Paragraph 1(c)(i) relied on occupier liability under s 257(1), while paragraphs 1(c)(ii) and (iii) alleged specific acts of placing pollutants into drains and in positions where they could wash away. These were separate and distinct bases for liability, not merely alternative ways of framing the same act, and their combination in one count rendered the summons bad for duplicity.
On the second question, the Court also answered "no." Section 257(1) is an evidentiary provision, located in the PoEO Act's evidentiary provisions chapter. Its function is to relieve the prosecutor of the burden of identifying the specific individual who caused the pollution, by deeming the occupier of premises to have caused any pollution occurring at or from those premises, unless the occupier establishes the matters in s 257(1)(a), (b), and (c).
Critically, the Court held that s 257(1) does not dispense with the requirement to prove, or to particularise, the underlying act of pollution itself. A prosecutor relying on s 257(1) must still establish that pollution occurred and describe how it occurred. The section addresses the identity of the offender and assists with proving causation, but it does not eliminate the defendant's entitlement to be informed of the particular act, matter, or thing alleged as the foundation of the charge.
The Court confirmed that the fundamental common law pleading rule, that no count in a summons should charge two or more separate offences, is not displaced by s 257. The lack of particularity in the summons as drafted risked a miscarriage of justice by leaving the defendant in a position of embarrassment or disadvantage before trial.
Orders Made
• Parties directed to file and serve written submissions on ancillary or consequential matters, including costs, within 28 days from the date of judgment in accordance with agreed timetable
Key Takeaways
- The Court of Criminal Appeal confirmed that combining distinct bases for liability in a single count of a summons will render that summons bad for duplicity, even in environmental prosecutions under the PoEO Act.
- Section 257(1) of the PoEO Act is an evidentiary provision only: it deems the occupier of premises to have caused pollution occurring at or from those premises, but it does not relieve the prosecutor of the obligation to particularise the act of pollution alleged.
- A prosecutor relying on s 257(1) must still prove that pollution occurred and describe how it occurred; the section removes the need to identify the specific individual who caused it, but no more.
- Under the common law rule restated in Johnson v Miller (1937) 59 CLR 467, a defendant is entitled to know not only the legal nature of the offence charged but also the particular act, matter, or thing alleged as its foundation. Section 257 does not override this entitlement.
- In dismissing the appeal, the Court confirmed the LEC's approach of requiring the EPA to elect between the alternative bases of liability before proceeding to trial.
Legislation and Cases Referenced
Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 120(1), 257
- Criminal Appeal Act 1912 (NSW), s 5AE
- Protection of the Environment Operations (General) Regulation 2009 (NSW)
- Clean Waters Act 1970 (NSW)
Cases:
- Johnson v Miller (1937) 59 CLR 467
- Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190
- Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125
- CSR Limited v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334
- McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127
- Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260
- Taylor v Environment Protection Authority (2000) 50 NSWLR 48
- Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150
- Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- S v The Queen (1989) 168 CLR 266
- Walsh v Tattersall (1996) 188 CLR 77
- R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373