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Court of Criminal Appeal 8 December 2021

Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd

[2021] NSWCCA 289

Other
PROSECUTION DUPLICITY WHETHER SUMMONS BAD FOR DUPLICITY MULTIPLE ACTS OF WATER POLLUTION EXCEPTION TO RULE AGAINST DUPLICITY WHETHER SINGLE CRIMINAL ENTERPRISE

Citation: Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWCCA 289
Court: Court of Criminal Appeal
Date: 8 December 2021
Judges: Preston CJ of LEC; Price J; Adamson J

Background

Charlotte Pass Snow Resort Pty Ltd operates a resort within Kosciusko National Park and runs a sewage treatment plant (STP) that discharges partially treated effluent into an unnamed tributary of Spencers Creek. Although Charlotte Pass held an environment protection licence regulating that discharge, over a period of roughly two and a half months it committed approximately 78 separate acts of polluting waters in breach of s 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act). Those 78 acts were charged in a single count on the one summons.

Charlotte Pass pleaded guilty to the single charge. It then applied by notice of motion to have the summons set aside as duplicitous (meaning it improperly charged more than one offence in a single count), or alternatively to compel the Environment Protection Authority (EPA) to elect and particularise a single act of water pollution. Charlotte Pass also sought leave to withdraw its guilty plea.

The primary judge, Pepper J of the Land and Environment Court, dealt with the duplicity question first and found the summons was indeed duplicitous. She ordered the EPA to elect and particularise a single offence before any question of withdrawing the guilty plea was addressed. The EPA appealed that decision to the Court of Criminal Appeal.

  • Whether a summons charging multiple acts of water pollution in a single count was bad for duplicity under the rule against charging more than one offence per count
  • Whether those multiple acts fell within the recognised exception to that rule as a "single criminal enterprise" or single compendious instance of offending
  • Whether the primary judge erred in deciding the duplicity question before resolving Charlotte Pass's application to withdraw its guilty plea
  • Whether it was appropriate to order the EPA to elect and particularise a single charge before the withdrawal application was determined

Decision

The Court of Criminal Appeal, in reasons delivered by Preston CJ of LEC (with Price and Adamson JJ agreeing), upheld the appeal on both grounds.

On the duplicity question, the Court held that the 78 acts of water pollution were sufficiently connected with each other to constitute a single compendious instance of offending capable of being charged in one count. This brought the charge within the recognised exception to the rule against duplicity for single criminal enterprises or transactions. The primary judge was wrong to conclude that the exception did not apply.

On the procedural question, the Court found that the primary judge should not have decided the duplicity issue at all before first resolving the application to withdraw the guilty plea. A guilty plea changes the procedural landscape: if the plea stood, there would be no trial at which duplicity could cause the mischief the rule is designed to prevent. The question of duplicity was therefore premature.

Flowing from that error, the Court also held that the primary judge ought not to have ordered the EPA to elect and particularise a single charge while the guilty plea remained on foot. Ordering an election before determining the withdrawal application put the cart before the horse and was itself an error.

Orders Made

  • The appeal was upheld
  • Order 1 of Pepper J dated 21 May 2021 was set aside
  • Charlotte Pass's application for orders 1 and 2(a) in its Notice of Motion (filed 27 November 2020) was dismissed

Key Takeaways

  • Multiple acts of water pollution committed over an extended period can constitute a single compendious instance of offending and be charged in one count, provided the acts are sufficiently connected to fall within the single criminal enterprise exception to the rule against duplicity.
  • The Court of Criminal Appeal confirmed that the "single criminal enterprise" exception is available in proceedings under s 120(1) of the POEO Act, not merely in traditional criminal law contexts.
  • Where a defendant has entered a guilty plea and simultaneously seeks both to challenge a summons as duplicitous and to withdraw that plea, the withdrawal application must be resolved first. The duplicity question is premature while the plea remains on foot.
  • Ordering a prosecutor to elect and particularise a single charge before a guilty plea withdrawal application is determined was held to be a procedural error: the order was premature and logically inverted the correct sequence.
  • A finding that a summons is duplicitous does not automatically entitle a defendant to withdraw a guilty plea. The Court noted there was no presumption that leave to withdraw would be granted and no evidence that Charlotte Pass lacked a genuine consciousness of guilt when it pleaded.

Legislation and Cases Referenced

Legislation
- Protection of the Environment Operations Act 1997 (NSW), ss 120, 122
- Criminal Appeal Act 1912 (NSW), s 5F(1)(c)

Cases
- Bentley v Gordon (2005) 139 LGERA 449; [2005] NSWCCA 157
- Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
- Kiangatha Holdings Pty Ltd v Water NSW (2020) 247 LGERA 1; [2020] NSWCCA 263
- Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202
- Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
- R v Beary (2004) 11 VR 151; [2004] VSCA 229
- R v Eades (1991) 57 A Crim R 151
- R v El-Kotab (2002) 4 VR 546; [2002] VSCA 109
- R v F (1996) 90 A Crim R 356
- R v Jones [2004] VSCA 68