Citation: Kiangatha Holdings Pty Limited v Water NSW; Natale v Water NSW [2022] NSWCCA 280
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2022
Judge(s): Ward P; Davies J; Button J
Background
The applicants, a property company and its director, were each charged with two offences under s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act). The charges arose from the construction of a dirt road of between eight and ten kilometres on rural land west of Katoomba, which allegedly caused actual and deemed pollution of waters. The director faced charges because of special executive liability provisions that extend corporate environmental offences to those involved in managing the company.
In 2020, the Court of Criminal Appeal had stayed the proceedings until the prosecutor, Water NSW, particularised a single offence in each summons. Water NSW subsequently sought and obtained leave in the Land and Environment Court in early 2022 to amend each summons. The amended summonses identified pollution sites labelled Site A through to Site D, drawn from aerial footage captured by a drone flown over the applicants' property, replacing the earlier "Red Dot Locations" identified by geographic coordinates.
The applicants sought leave to appeal that interlocutory decision to the Court of Criminal Appeal. They argued that the amendments impermissibly substituted entirely new offence locations, and that the drone inspection, which they characterised as a trespass, constituted a contempt of court.
Legal Issues
- Whether the primary judge erred in permitting the amendments to the summonses, specifically by substituting new pollution site locations for those originally particularised
- Whether the factual findings about the location of the alleged offending were reasonably open to the primary judge
- Whether Water NSW's use of statutory inspection powers under the POEO Act after criminal proceedings had commenced amounted to a contempt of court
- Whether the evidence gathered by the drone gave rise to any issue concerning the privilege against self-incrimination
Decision
On the amendments to the summonses: The Court applied established principles of appellate restraint in relation to interlocutory decisions involving practice and procedure. The relevant inquiry was not simply whether the primary judge erred, but whether the primary judge's factual findings were reasonably open. The Court found no basis to interfere, holding that the primary judge's conclusions about the location of the sites and the materiality of the changes were open on the evidence. A factual error by a primary judge will not ordinarily satisfy the requirements for the grant of leave under s 5F of the Criminal Appeal Act 1912 (NSW).
On contempt and the use of statutory powers: The applicants argued that the statutory inspection powers in Chapter 7 of the POEO Act could only be exercised before criminal proceedings commenced, and that their later use amounted to a contempt. The Court rejected this. Section 184 of the POEO Act authorises the exercise of those powers to determine whether there has been compliance or contravention, and for the general administration of the Act and protection of the environment. Nothing in the Act limits those powers once proceedings have begun, and the Court held they should not be read restrictively to achieve that effect.
On self-incrimination: The Court found that no privilege against self-incrimination arose from the drone evidence. The drone captured physical locations and carried no testimonial dimension. The only advantage Water NSW obtained was greater precision in identifying the locations of alleged pollution, sites already known to the applicants. The Court drew a clear distinction between powers that compel a person to testify to their own guilt (including through document production) and powers that simply gather or refine physical evidence. That distinction was dispositive on the contempt argument.
Orders Made
- Leave to appeal refused
Key Takeaways
- Appellate courts apply a high degree of restraint when asked to interfere with interlocutory decisions involving practice and procedure; the relevant question is whether the primary judge's factual findings were reasonably open, not merely whether an error can be identified.
- Under s 184 of the POEO Act, statutory inspection and investigation powers in Chapter 7 of the Act are not confined to the period before criminal proceedings commence; they may continue to be exercised for determining compliance and administering the Act without temporal limitation.
- The Court of Criminal Appeal confirmed, following the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, that inspection powers should not be read restrictively to prevent their use after criminal charges have been laid.
- No question of privilege against self-incrimination arises where the evidence gathered involves no testimonial element; drone aerial photography of physical locations does not engage the privilege.
- In dismissing the contempt argument, the Court held that a "real risk" of interference with the administration of justice was not established where the advantage obtained by the prosecutor was limited to greater locational accuracy regarding sites already known to the defence.
Legislation and Cases Referenced
Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 120, 169, 184, 196, 198, 216
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 20, 21
- Civil Procedure Act 2005 (NSW), s 21
- Land and Environment Court Act 1979 (NSW), s 68
- Interpretation Act 1987 (NSW), s 35
- Clean Waters Act 1970, s 29
Cases:
- Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74
- NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252
- Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263; (2020) 247 LGERA 1
- Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2022] NSWLEC 6
- Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2019] NSWLEC 185
- DSJ v R; NS v R [2014] NSWCCA 77
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- R v Matovski (1989) 15 NSWLR 720
- Director of Public Prosecutions v Kypri (2011) 33 VR 157; [2011] VSCA 257
- Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78