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Court of Criminal Appeal 19 October 2020

Kiangatha Holdings Pty Ltd v Water NSW

[2020] NSWCCA 263

Other
CRIMINAL LAW APPEAL LAND AND ENVIRONMENT COURT WHETHER SUMMONSES BAD FOR DUPLICITY APPEAL UPHELD

Citation: Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263
Court: NSW Court of Criminal Appeal
Date: 19 October 2020
Judges: Hoeben CJ at CL, Rothman J, Fagan J (judgment by Fagan J, others agreeing)

Background

The appellant company was the owner and occupier of approximately 5,000 hectares of land in the Megalong Valley, about 15 kilometres west of Katoomba. Between May and October 2017, the company allegedly constructed an unsealed road of 8 to 10 kilometres across the land without adequate sediment and erosion controls. An inspection by a council officer in October 2017 revealed that sediment had entered, or was likely to enter, a network of ephemeral drainage lines (dry gullies) that led to Murdering Creek and Gibraltar Creek.

Water NSW prosecuted both the company and its director under section 120 of the Protection of the Environment Operations Act 1997 (NSW) for polluting waters. Four summonses were issued in total: two against the company and two against the director. Each summons contained a single charge, but each charge was drafted in terms wide enough to encompass multiple distinct alleged pollution events across different locations on the property over a five-month period.

The applicants moved in the Land and Environment Court to have the charges struck out, or proceedings stayed pending the prosecutor's election of a single offence per summons, on the basis that each charge was duplicitous. Robson J dismissed those motions, and the applicants sought leave to appeal to the Court of Criminal Appeal.

  • Whether each summons was bad for duplicity, meaning each purported to charge more than one offence in a single count
  • Whether the rule against duplicity applies with the same force to environmental prosecutions as it does to general criminal matters
  • What remedy is appropriate where a charge is found to be duplicitous

Decision

Fagan J, with whom Hoeben CJ at CL and Rothman J agreed, upheld the appeal. The court found that each summons was duplicitous because the single charge in each was drawn so broadly that it captured numerous distinct alleged acts of pollution at different locations and times across the property throughout the five-month period. Each act capable of constituting a separate offence under section 120 should have been charged separately.

The court analysed the breadth of the statutory definitions of "water pollution" and "waters" under the Protection of the Environment Operations Act. Under those definitions, even placing sediment where it is merely likely to eventually reach a dry watercourse bed can constitute an offence. Given that the road construction traversed many gullies and disturbed ground across multiple parcels, there were numerous discrete events, each potentially constituting a separate offence, compressed into single charges.

Fagan J firmly rejected any suggestion that the rule against duplicity applies less strictly in environmental prosecutions than in general criminal law. The judgment stated that such a perception, if drawn from earlier case law, reflected a misunderstanding. The rule is essential to the administration of criminal justice and applies to prosecutions of all kinds, including environmental offences.

Because the charges were duplicitous, the appropriate remedy was not to dismiss the summonses outright but to stay further proceedings on each until the prosecutor elected and particularised a single offence per summons upon which it would proceed.

Orders Made

  • Leave granted to the applicants to appeal against the Land and Environment Court orders of 20 December 2019.
  • Appeal upheld.
  • The orders dismissing the notices of motion in each of the four proceedings were set aside.
  • Further proceedings on each summons stayed until Water NSW elects and particularises a single offence under section 120 of the Protection of the Environment Operations Act 1997 upon which it will proceed.
  • No costs order made (the court noting that neither the Criminal Appeal Act 1912 nor the Criminal Procedure Act 1986 permitted costs in these circumstances).

Key Takeaways

  • The Court of Criminal Appeal confirmed that the rule against duplicity, which requires that each charge allege only one offence, applies with full force to environmental prosecutions and is not relaxed in that context.
  • A single count that sweeps together multiple discrete acts of pollution across different locations and over an extended period will be duplicitous, even where those acts are alleged under a single broadly drafted statutory provision.
  • Under the Protection of the Environment Operations Act 1997, the definition of "water pollution" is wide enough that an offence can be committed without any pollutant actually contacting water, but this breadth does not allow a prosecutor to bundle multiple discrete pollution events into one charge.
  • Where duplicity is established, the appropriate remedy is a stay of proceedings pending the prosecutor's election of a single particularised offence, rather than outright dismissal of the charges.
  • Section 257C of the Criminal Procedure Act 1986 is the exclusive source of the Land and Environment Court's power to award costs in summary criminal proceedings, and it permits a costs order against a prosecutor only at the conclusion of proceedings, not on interlocutory applications.

Legislation and Cases Referenced

Legislation
- Protection of the Environment Operations Act 1997 (NSW), ss 120, 169
- Criminal Appeal Act 1912 (NSW), ss 5F, 17
- Criminal Procedure Act 1986 (NSW), s 257C
- Land and Environment Court Act 1979 (NSW), s 68(1)
- Clean Waters Act 1970 (NSW) (repealed)

Cases
- Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
- Environment Protection Authority v Riverina Australia Pty Ltd (2015) 90 NSWLR 57; [2015] NSWCCA 165
- McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (2000) 50 NSWLR 127; [2000] NSWCCA 367
- Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
- Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
- Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202
- Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376
- Director of Public Prosecutions v Merriman [1973] AC 584
- Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
- Iannella v French (1968) 119 CLR 84; [1968] HCA 14
- S v The Queen (1989) 168 CLR 266; [1989] HCA 66
- Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
- Hannes v Director of Public Prosecutions (Cth) (No.2) [2006] NSWCCA 373