Case Background
By way of summons (“the Summons”) filed on 17 April 2014, Riverina (Australia) Pty Ltd (“Riverina”) was charged under the Environment Protection Authority (“EPA”) with an offence of polluting waters being a breach of section 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (the “POEO Act”). The particulars of the charge alleged that Riverina disposed of waste material through a storm water drainage system which flowed down a number of drainage lines and then discharged into a main body of water. Relevantly, the items forming the manner of contravention as set out in the Summons were separated by the words “and/or”.
The hearing commenced in the Land and Environment Court on 1 December 2014. On the first day of the trial, Riverina sought to set aside the Summons on, inter alia, the grounds that the Summons was duplicitous. This issue centred on the particularisation in the Summons of the “manner of contravention” of s 120 of the POEO Act. On 5 December 2014 Pepper J, the primary judge, held that as the specific particularisation, being the use of the words “and/or” contemplates two distinct unlawful acts being two separate offences that were in effect being included in the one count. Consequently, Her Honour held that the Summons was duplicitous (at [46]) and required the EPA to elect to “…remove the embarrassment” or the Summons would be struck out (at [4]).
The judgment of Pepper J can be accessed here: Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190. Following the judgment and at the request of the EPA, relying on s 5AE of the Criminal Appeal Act 1912 (NSW), two questions of law were referred to the New South Wales Court of Criminal Appeal (“NSWCCA”). The proceedings in the Land and Environment Court were stayed pending the determination by the NSWCCA. The submissions made by the EPA to the NSWCCA essentially argued that: firstly, the particularisation in the Summons merely relied upon two different ways of proving the one offence; and secondly, the EPA challenged Pepper J’s construction of s 257. Where s 257 allows the EPA to assume the occupier of premises at or from which any pollution occurs is taken to have caused the pollution unless certain exceptions apply to negate the assumption.
As such, the questions for determination by the NSWCCA were as follows:
Question 1
Whether the [primary] Court erred in finding that the summons filed on 17 April 2014 was bad for duplicity because more than one offence had been charged in the one count of contravention of s 120(1) of the POEO Act.
Question 2
Whether, upon its proper construction, s 257 of the POEO Act obviates the need for the Prosecutor to provide the defendant with the essential details of the particular act, matter or thing alleged as the foundation of the manner of contravention of s 120(1) of the POEO Act contained in paragraph 1(c)(i) of the Summons.
Case Analysis
To determine the answer to question 1, the NSWCCA relevantly considered the rule against duplicity and confirmed that the general rule is that “unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity, they should be separately charged” ([96] Hall J). Put simply, the rule against duplicity prohibits the prosecution from alleging two or more offences in a single charge.
In this instance, the EPA did not identify the act or manner of pollution referred to in paragraph 1(c)(i) of the Summons. As a result, the Summons was held to be capable of encompassing any or all possible acts of pollution at or from the premises and as such was considered to contravene the rule against duplicity ([105]-[109] Hall J).
Paragraph 1(c)(i) of the Summons is set out below:
Manner of Contravention:
- (i) The defendant was the occupier of the premises at Lot 101 Reynolds Road, Casino, known as “Riverina Stock Feeds“ (the Premises), at or from which which (sic) pollution occurred; and/or
The NSWCCA then considered question 2, in which the Court held that s 257 of the POEO Act did not remove the need for the EPA to provide Riverina with particulars of the facts alleged in paragraph 1(c)(i) of the Summons. The NSWCCA found that s 257 facilitates proof that an occupier caused the alleged pollution but it does not operate to eliminate the requirement to prove the elements of an offence under s 120 ([123]-[126] Hall J). In other words, s 257 does not alter the legal elements of a s 120 offence, rather s 257 can be used to remove the requirement to prove that the occupier was the person who committed the act of pollution.
Hall J further explored the operation of s 257 stating:
- Section 257 is not an offence-creating provision, but it is in the nature of a deeming provision to proceedings in which a person is charged with a pollution offence under the PoEO [123].
- Section 257 is not limited to water pollution. It is a provision that facilitates proof of one matter, namely that the defendant (occupier) caused the alleged pollution [123].
- Section 257 only operates upon proof of a particularised act of pollution which is an element of an offence charged under s 120. However, it does not exempt a prosecutor from an obligation to identify the factual substratum, namely, the specific act of pollution [124]-[125].
- Section 257 does not eliminate the need for admissible evidence to prove the element of the offence created by s 120, the act of pollution. Section 257 operates only after evidence adduced in a prosecution establishes the relevant act of pollution (or other conduct causing the pollution) [126].
The judgment of the NSWCCA can be accessed here: Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165
Implications
EPA v Riverina (Australia) serves as a reminder for the potential for miscarriage of justice where a defendant is left in a position of disadvantage in not being informed as to the particular act as the foundation of a charge. Councils should be mindful as to the clarity that is required when particularising pollution related offences.
For more information on responding to charges for pollution offences, or environmental and planning law, please contact the Matthews Folbigg Local Government team to speak with one of our local government lawyers.
