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Court of Criminal Appeal 6 May 2020

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd

[2020] NSWCCA 74

Public order & justice offences
APPEAL WHERE CHARGES FOUND TO BE DUPLICITOUS CONSENT

Citation: Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 6 May 2020
Judge(s): Harrison J (with whom Hamill J and Wilson J agreed)

Background

The respondent, an asphalt contractor, operated a mobile batching plant under a development consent granted in January 2015. The prosecuting council charged the contractor with summary offences under the Environmental Planning and Assessment Act 1979, alleging breaches of consent conditions over a roughly two-month operating period. The relevant conditions capped daily production at 150 tonnes and limited truck movements to 12 per day.

The charges had a troubled procedural history. The Land and Environment Court found both remaining charges were duplicitous because they alleged a "course of conduct" over the entire charge period rather than identifying specific days of breach. The Court of Criminal Appeal upheld that finding in 2018, and the High Court refused special leave to appeal.

When the matter was remitted, the council sought leave to amend. The primary option was to split each charge into approximately 40 separate counts, one for each working day in the charge period. The alternative was to reduce each charge to a single nominated day. Moore J permitted only the single-day amendment and refused the multi-count amendment. Both parties then sought leave to appeal that interlocutory decision.

  • Whether Moore J denied the prosecutor procedural fairness by failing to determine the contested issue of whether the totality principle would prevent any overall penalty on 41 separate counts from exceeding the penalty available on the original single charge.
  • Whether Moore J gave adequate reasons for rejecting the council's totality argument in declining to allow the multi-count amendment.
  • Whether Moore J erred by comparing the proposed 41-count amendment against a single-day charge rather than against the original multi-day summons.
  • Whether Moore J erred in refusing to reopen to admit a supporting affidavit (the Bradbury affidavit), and whether he failed to consider that material when assessing whether the amendment was in the interests of justice.
  • Whether Moore J erred by failing to consider the amendment power under s 68 of the Land and Environment Court Act 1979 at all.
  • Whether Moore J erred in permitting the alternative single-day amendment (Tropic's cross-appeal).

Decision

Grounds 1, 2 and 3 (totality and reasons). The Court of Criminal Appeal granted leave on these grounds but dismissed the appeals. Harrison J accepted that Moore J did not expressly engage with the council's totality argument in the terms the council had framed it. However, the court found that the absence of a direct ruling on that argument did not constitute a denial of procedural fairness or a failure to consider a relevant matter, because the totality argument did not ultimately bear on the correctness of the decision to refuse the multi-count amendment. Any error in reasoning did not cause a different outcome.

Ground 6 (failure to consider s 68). The court also granted leave on this ground but dismissed the appeal. Harrison J found that Moore J had in substance considered the interests of justice, even if he had not explicitly addressed s 68 of the Land and Environment Court Act by name.

Grounds 4 and 5 (the Bradbury affidavit). The court refused leave to appeal on these grounds. Moore J had declined to reopen proceedings to admit the affidavit, noting that the material went only to the strength of the prosecution case rather than to whether the amendment itself was just. The Court of Criminal Appeal regarded that conclusion as unexceptionable.

Tropic's cross-appeal (single-day amendment). The court granted leave but dismissed Tropic's appeal against Moore J's order permitting the single-day amendment. The amendment to a single nominated day was found to have been properly allowed.

Orders Made

  • Leave granted to the council to appeal on Grounds 1, 2, 3 and 6; appeals on those grounds dismissed.
  • Leave refused to the council to appeal on Grounds 4 and 5.
  • Leave granted to the contractor to appeal on Grounds 1, 2 and 3 of its cross-appeal; that appeal dismissed.

Key Takeaways

  • A prosecutor's failure to secure an express ruling on a contested argument (here, the totality principle) does not automatically constitute a denial of procedural fairness; the court will consider whether that argument was determinative of the outcome.
  • Under s 21 of the Criminal Procedure Act 1986 and s 68 of the Land and Environment Court Act 1979, a court may permit amendment of a summons without injustice to substitute a single particularised charge, even where the original charge was found duplicitous for spanning multiple days.
  • The strength of the underlying prosecution case is not a relevant consideration when a court assesses whether a proposed amendment to charges is in the interests of justice.
  • Where a charge alleging a "course of conduct" is found duplicitous for failing to nominate specific days of breach, a prosecutor seeking to replace it with multiple individually-dated counts faces a real procedural hurdle; the court retains a discretion to permit only a more limited amendment.
  • Adequate reasons do not require explicit citation of every statutory provision; it is sufficient if the primary judge's reasoning demonstrates substantive engagement with the relevant interests-of-justice test.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 21
- Environmental Planning and Assessment Act 1979 (NSW)
- Land and Environment Court Act 1979 (NSW), s 68

Cases
- Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2017] NSWLEC 109
- Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202
- Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2019] NSWLEC 182
- Walsh v Tattersall (1996) 188 CLR 77
- House v The King (1936) 55 CLR 449
- Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
- Mifsud v Campbell (1991) 21 NSWLR 725
- Stead v State Government Insurance Commission (1986) 161 CLR 141
- DAO v R (2011) 81 NSWLR 568
- Area Concrete Plumbing Pty Ltd v Inspector Childs (2012) 223 IR 86
- Segal v Waverley Council (2005) 64 NSWLR 177
- Attorney-General (NSW) v Built NSW Pty Ltd [2013] NSWCCA 299
- Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
- Liristis v Director of Public Prosecutions [2018] NSWCCA 196
- Director of Public Prosecutions v Kypri (2011) 33 VR 157