Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403 (14 December 2006)

CITATION: Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403

FILE NUMBER(S):

2006/471

HEARING DATE(S): 10 July 2006

DECISION DATE: 14/12/2006

PARTIES:

Pace Farm Egg Products Pty Ltd (Appellant)

Newcastle City Council (Respondent)

JUDGMENT OF: Handley JA Hulme J Kirby J

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S): LEC 50071 of 2004

LOWER COURT JUDICIAL OFFICER: Pain J

COUNSEL:

T S Hale SC/S B Docker (Appellant)

M G Craig QC/J B Maston (Respondent)

SOLICITORS:

Paul Hines (Appellant)

Sparke Helmore (Respondent)

CATCHWORDS:

CRIMINAL PROCEDURE – duplicity – lack of particularity

ENVIRONMENT PROTECTION – pollutant likely to fall and descend into protected waters

LEGISLATION CITED:

Criminal Procedure Act 1986

Land and Environment Court Act 1979

Protection of the Environment Operations Act 1997

DECISION:

Appeal against conviction dismissed with costs

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2006/471

HANDLEY JA

HULME J

KIRBY J

14 DECEMBER 2006

PACE FARM EGG PRODUCTS PTY LTD v NEWCASTLE CITY COUNCIL

CATCHWORDS

CRIMINAL PROCEDURE – duplicity – lack of particularity

ENVIRONMENT PROTECTION – pollutant likely to fall and descend into protected waters

FACTS

The appellant was convicted on a charge that it indirectly polluted waters in a adjoining lagoon contrary to s 120(1) of the Protection of the Environment Operations Act 1997. The charge arose out of the storage of an industrial by-product in a tank from which it was “likely to” fall and descend into the lagoon. On appeal it was submitted that the summons upon which the appellant was convicted was defective as it lacked particularity or was duplicitous. No objection to the form of the summons was raised at the trial. HELD: by majority (1) Although the summons did not specify the act or omission by which the defendant was alleged to have committed the offence it did state the legal elements of the charge and the defect was cured by s 16(2): Taylor v EPA [2000] NSWCCA 71; (2000) 50 NSWLR 48, 56; Stanton v Abernathy (1990) 19 NSWLR 656; (2) There was no miscarriage of justice because of the latent duplicity or lack of particularity; (3) There was sufficient evidence of the elements within the charge as particularised to ground the conviction; (4) The appeal against conviction should be dismissed with costs.

ORDERS

Appeal against conviction dismissed with costs.

IN THE COURT OF

CRIMINAL APPEAL

2006/471

HANDLEY JA

HULME J

KIRBY J

14 DECEMBER 2006

PACE FARM EGG PRODUCTS PTY LTD v NEWCASTLE CITY COUNCIL

Judgment

1 HANDLEY JA: This is an appeal by the defendant from its conviction by the Land and Environment Court (Pain J) of an offence contrary to s 120(1) of the Protection of the Environment Operations Act 1997 (the Act) that “it polluted waters at Warabrook Wetland Reserve” on or about 3 October 2003. The summons identified the place of the offence, the pollutant, and the waters. It identified the manner in which the pollution occurred as follows:

“The pollutant was in a position where it was likely to and did fall, descend and be washed into the waters, into a drain designed to receive or pass rainwater, floodwater or non-polluted waters.

The pollutant was introduced into the said waters at the said place by passing through the pipes and pits within the defendant’s land and through the public stormwater drainage pipe and pit system to discharge into the Warabrook Lagoon (Upper Pond) on the Warabrook Wetland Reserve.”

2 The defendant pleaded not guilty and the trial proceeded without any objection to the form of the summons from experienced senior counsel appearing for the defendant. Following conviction and sentence the defendant appealed without taking any objection to the form of the summons.

3 The Dictionary of the Act contains a lengthy definition of “water pollution” or “pollution of waters” but no definition of the corresponding verb which appears in the section creating the offence. This does not matter because s 7 of the Interpretation Act 1987 provides:

“If an Act ... defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.”

4 The definition covers both direct and indirect pollution. The case involved allegations of indirect pollution defined in sub-paras (d) and (e) of the definition. The relevant sub-paragraph is (d) which provides, with its context:

“water pollution or pollution of waters means:

...

and, without affecting the generality of the foregoing, includes:

(d) placing any matter ... in a position where:

(i) it falls, descends, is washed, is blown or percolates, or

(ii) it is likely to fall, descend, be washed, be blown or percolate,

into any waters ... or into any drain, channel or gutter used or designed to receive or pass rainwater ... or any water that is not polluted ...

...

if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.”

5 Liquid egg waste produced in the appellant’s factory was stored in an external tank (the tank) next to its factory building adjacent to the concrete apron of the loading bay. It had a capacity of 6,830 litres. At 5.45am on Friday, 3 October 2003 one of the appellant’s employees noticed liquid egg waste “all over” the concrete apron of the loading bay which had leaked from the tank (708). Mr Fitzpatrick said there was “a huge mess ... a lot of liquid flowing around the area” (97). The hole in the tank from which the waste was leaking was plugged, and salt bags were placed above the stormwater pit SW1 nearby (3/40) to stop egg waste running into it. Traces of egg waste were later detected at SW2 and SW4 but not at SW5 or SW6. SW3 is on a branch drainage line which feeds into the main line and is not relevant. The stormwater drainage from the appellant’s property leads through SW6 into the public system and to Warabrook Lagoon.

6 About 10.00am Mr King, the appellant’s maintenance coordinator, decided that he would flush approximately 1500 litres of water through the appellant’s drainage system from SW1 to SW6 to remove any egg waste there. Mr Fitzpatrick, a tanker driver from Valley Disposals, was present having just pumped out the remaining egg waste from the tank. Mr King arranged for him to vacuum up the water that would come through the drainage line at SW6. Mr Fitzpatrick did this but while packing up his truck 20 litres of diluted egg waste escaped from the hose onto the surrounding grass and into SW6. He said he vacuumed up the spill on the grass and in SW6 (the Fitzpatrick incident).

7 Between 11.00 and 11.15 a resident saw a white milky substance about 10 metres long in Warabrook Lagoon and reported the matter to the Council.

8 The Judge was not persuaded that egg waste from the appellant’s factory reached the Lagoon either from the initial leakage, or from the Fitzpatrick incident. The Judge noted: para [86] “that it was not part of the Prosecutor’s case that there was an escape of egg waste into SW6 due to Mr Fitzpatrick’s actions, rather the Prosecutor’s efforts were directed to establishing that it did not”. However she was satisfied that the appellant had placed egg waste into the tank “where it was likely to fall or descend into” the waters of the Lagoon through the stormwater drainage systems and on this basis she convicted.

9 I have had the benefit of reading the reasons for judgment of Hulme J who considers that the charge was defective because it was either duplicitous or because the appellant was convicted of an offence other than that charged in the summons.

10 Section 43 of the Land and Environment Court Act 1979 (the Court Act), now repealed, provided:

“No objection shall be taken or allowed to any application referred to in ... section 41 ... by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application ...”

11 Section 44 entitled the accused to an adjournment where there was a significant variance between the application and the evidence. These provisions were based on s 65 of the Justices Act 1902, later s 30, derived from Lord Jervis’s Act 1848: Ex parte Lovell re Buckley (1938) 38 SR (NSW) 153, 167-8, 170. Sections 43 and 44, along with the rest of Div 5 of Pt 4 of the Court Act were repealed by Act No 121 of 2001 with effect from 7 July 2003.

12 The power formerly conferred by s 43 is now conferred by the Criminal Procedure Act 1986: s 15(1). Section 16(2) applies to orders to appear under s 246(1) which initiate summary proceedings in the Court. These are indictments within the definition in s 15(2). Section 16(2) provides:

“(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings ... in a Local Court or for any other offence that is to be dealt with summarily are commenced ... on the grounds of:

(a) any alleged defect in it in substance or in form, or

(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment ...”

13 The power formally conferred by s 44 of the Court Act is now conferred by s 40(4) of the Procedure Act which provides:

“... a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process ... by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process ... is such that the accused person has been misled by the variance.”

14 In Brownlie v SPCC (1992) 27 NSWLR 78, 88 Gleeson CJ said of the former ss 43 and 44 in the Court Act and equivalent provisions that they “are of no assistance where the offence alleged is not one known to the law”. Section 145A(1) of the Justices Act 1902, now repealed, provided:

“The description of any offence in the words of the Act ... creating the offence, or in similar words, shall be sufficient in law.”

15 It adopted s 39 of the Summary Jurisdiction Act 1879 (42 & 43 Vic c 49). Charges in this form were sometimes permissible at common law: R v Chandler [1792] EngR 1934; (1700) 1 Ld Raym 581 [91 ER 1288, 1289]; Fletcher v Calthrop [1845] EngR 82; (1845) 6 QB 880, 887 [1845] EngR 82; [115 ER 332, 335]; Ex parte Ryan re Johnson (1943) 44 SR 12, 16 per Jordan CJ. The equivalent provision is now in s 11 of the Procedure Act.

16 In Stanton v Abernathy (1990) 19 NSWLR 656, 666 Gleeson CJ said that s 145A(1):

“... does not do away with the common law requirement that an information must identify the essential factual ingredients of the actual offence alleged to have been committed [citations omitted]. The difficulty is that the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide ... as to whether the common law rule has been infringed to such an extent that s 145A, operating alone, would be insufficient to save the information.”

17 In Taylor v EPA [2000] NSWCCA 71; (2000) 50 NSWLR 48, 56 Sperling J said:

“To be valid, an information must identify the essential factual ingredients of the offence charged [citations omitted]. A distinction has been drawn between ‘essential factual ingredients’ (particulars required for the validity of an information) and particulars required merely to ensure that the defendant is able to prepare his or her defence [citations omitted]. The latter are not essential particulars ... The authorities provide no comprehensive formula for what constitute essential particulars. However, in Johnson v Miller [(1937) [1937] HCA 77; 59 CLR 467] various requirements were identified. These include ‘the time, place and manner of the defendant's acts or omissions’ ... The summons in the present case does not specify the essential ingredients of the alleged offence. It specifies the legal elements of the alleged offence, but it does not specify the acts or omissions by which the appellant is alleged to have [committed the offence].”

18 This passage was approved in McConnell Dowell Constructors (Aust) Pty Ltd v EPA [2000] NSWCCA 367; (2000) 50 NSWLR 127, 134 (McConnell). Having considered the terms of the summons charging pollution of waters contrary to s 16(1) of the Clean Waters Act Spigelman CJ said:

“In my opinion, some reference to the conduct ... said to constitute the act of polluting was required in the summons and in the s 41 order. Section 16 has been called a ‘result offence’, in the sense that the consequence, that is, the pollution, is an essential ingredient of the offence ... However as Hunt CJ at CL said in EPA v Bathurst CC (1995) 89 LGERA 79, 82 ... ‘the prosecution is required to prove both the conduct of the defendant in placing the material in the waters and the pollution of the waters as a consequence of the defendant having done so’.

I agree. Both the polluting and the pollution are essential ingredients of the offence under s 16. The charge in this case referred only to the pollution."

19 As Sperling J said in Taylor v EPA (above) at 57:

“A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision [citations omitted]. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars – such as the time, place, or the manner of the offence – a Lord Jervis provision will operate [citations omitted]. The summons in the present case falls within the second category of defective informations. It is saved by s 43.”

20 In McConnell (above) this Court held that the summons failed to disclose essential elements of the offence, namely the conduct of the defendant alleged to constitute polluting, but the stated case did not permit the Court to consider s 43 of the Court Act (134-5).

21 The summons by which the respondent initiated this prosecution, and the order of the Court under s 246(1) of the Procedure Act required the appellant to answer a charge under s 120(1) that it “polluted waters at Warabrook Wetland Reserve”. It alleged the essential legal elements of the offence: McConnell (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39, 42-3.

22 It has not been suggested that the summons did not adequately particularise the place of the offence, the pollutant, or the waters. However the particulars of the manner in which the pollution occurred were expressed in the passive voice:

“The pollutant was in a position where it was likely to and did fall, descend and be washed into the waters, into a drain designed to receive or pass rainwater, floodwater or non-polluted waters.”

23 The act of the appellant alleged as the foundation of the charge was left to inference. The summons and order were therefore defective but since the legal elements of the offence were properly stated s 16(2) of the Procedure Act was capable of curing the defect.

24 It will be necessary in due course to consider how s 16(2) applied, but it will be convenient to first consider the question of duplicity.

25 The definition of water pollution etc: para [4] covers a number of different factual situations. These included “placing any matter ... in a position where [(d)(ii)] it is likely to fall [or] descend ... into any waters” and “where [(d)(i)] it falls [or] descends ... into any waters”.

26 This Court has considered whether a definition in this form in earlier legislation created one or more than one offence. In Brownlie v SPCC (1992) 27 NSWLR 78 the Court was concerned with s 16 of the Clean Waters Act. Sub-section (2)(a)(i) and (ii) contained language identical to sub-paras (i) and (ii) of para (d) of the definition of water pollution etc in the Act. At 82 Gleeson CJ said:

“Some mention should also be made of the scheme of s 16(2). That provision does not itself create an offence. It is in the nature of a definition provision. The facts of the case, as found by Cripps J, fell within both subcll (i) and (ii) of s 16(2)(a). On the basis of his Honour's findings, the appellant engaged in conduct within s 16(2)(a)(ii) when he sprayed his land, and then, following the rain, the case also fell within s 16(2)(a)(i). There must be many cases in which a person places matter in a position such that it is likely to be washed into waters and then, subsequently, the matter is actually washed into those waters. That does not necessarily mean that the person will have committed two contraventions of s 16(1). Rather, it may mean simply that the prosecution will be able to rely on additional evidence. As a practical matter, proof that something is washed into waters will often assist a conclusion that it was originally placed in a position where it was likely to wash into those waters ... It was not argued that the charge under s 16(1) was bad for duplicity.”

27 The question was considered in CSR Ltd v EPA [2000] NSWCCA 373; (2000) 110 LGERA 334 in relation to a charge under s 6(1) of the Environmental Offences and Penalties Act 1989 which relevantly provided that “if a person, without lawful authority, wilfully or negligently caused any substance to leak, spill or otherwise escape ... in a manner which harmed or was likely to harm the environment” the person was guilty of an offence.

28 The summons in that case charged the defendant that, without lawful authority, it negligently caused a substance to leak in a manner which harmed the environment (335). The EPA sought leave to amend so that the summons would read “in that it did ... negligently cause a substance to leak in a manner which harmed or was likely to harm the environment” (338).

29 Smart AJ said (339):

“CSR submitted that the effect of the amendment is to produce a summons ... which is bad for duplicity as it would charge two offences. CSR contended that the language of s 6(1) compels the conclusion that the prohibited conduct is that of negligently causing a substance to leak in a particular manner, one being that which harms the environment and the other that which is likely to harm the environment and that separate offences were thereby created. In amplification, CSR submitted that the former offence was complete upon harm being caused whereas the latter was complete upon the substance leaking in a particular manner. Consequently, two different limitation periods should be applicable ... I disagree that the amended summons charges two offences. I agree with the judge that there was one offence and that it penalised one act (negligently causing a substance to leak) which possesses one or both of two forbidden characteristics. I would follow this statement of principle by Bray CJ in Romeyko v Samuels (1972) 2 SASR 529, 552:

‘The [true] distinction, broadly speaking ... is between a statute which penalises one or more acts in which case two or more offences are created and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence whether the act under consideration in fact possesses one or several such characteristics ... ‘

In Bowling v General Motors-Holdens Pty Ltd (1975) 8 ALR 197, 218 Woodward J said:

‘Provided only a single act is charged, alternative or cumulative allegations as to the circumstances making it unlawful will not render it bad for uncertainty or duplicity.’

... the essential subject matter remains, namely, causing a substance to leak.”

30 In Stanton v Abernathy (above) Gleeson CJ considered what was then s 30 of the Justices Act and is now s 16(2) of the Procedure Act and said (667):

“... the legislation operates, not to deem defective applications to be sufficient, but to avoid the consequences of defects in applications. It was intended to do away with technical objections in proceedings before magistrates. ... in the case of want of particularity in an information, the requirements of natural justice may nevertheless make it necessary for the magistrate to order further particulars. In relation to the matter of duplicity, the relevant authorities are not easy to reconcile. There is a line of cases [citations omitted] which hold that duplicity is a defect in substance of a kind that falls squarely within the language of s 30 and corresponding provisions elsewhere, and that a magistrate may not dismiss an information simply on the ground of duplicity.”

31 There was another line of authority dealing with the effect of duplicity but he preferred the view expressed above. In Stanton’s case the information did not identify the part of the appellant’s evidence which was alleged to be false, and although the information charged only one offence it appeared from particulars that there was latent duplicity. Gleeson CJ concluded (671):

“The authorities do not in my view justify a conclusion that the information is incurably defective, or not such as to found jurisdiction in the magistrate. However, the proper course now to be pursued, it being apparent that the prosecutor is alleging more than one offence, is for the prosecution to be required both to give further and better particulars ... and either elect to charge the appellant with making one false statement to the exclusion of any others, or alternatively to frame and propound additional charges, laying one charge in respect of each alleged false statement. If the prosecution declines to adopt either of those courses, then the information should be dismissed.”

32 In the present case the summons and order were not duplicitous on their face and the only defect was the failure to identify the act of the appellant which placed the pollutant in a position where it was likely to and did fall etc.

33 Section 16(2) of the Procedure Act or its equivalent preserves a summons under s 246(1) of that Act from the consequences that would otherwise flow from a failure to specify essential particulars of the offence: Stanton v Abernathy (above) at 667; Taylor v EPA (above) at 57; McConnell (No 2) (above) at 41-2.

34 Since the summons did not particularise “the particular act, matter or thing alleged as the foundation of the charge”: Johnson v Miller (1937) 59 CLR at 489, the appellant was entitled to further and better particulars: para [31]. However it neither challenged the validity of the summons nor sought such particulars.

35 There was a potential latent duplicity in the charge. Although evidence for the Council focussed on the appellant’s acts in placing egg waste in the tank it also led evidence without objection about the Fitzpatrick incident: paras [6] and [8]. An occupier of premises at or from which any pollution occurs is responsible for that pollution including any caused by a subcontractor: Act s 257.

36 However as the Judge said: para [8] “it was not part of the Prosecutor’s case that there was an escape of egg waste into SW6 due to Mr Fitzpatrick’s actions”.

37 If the appellant had objected to the form of the summons the Council would have been required to give particulars of the act or acts of the appellant relied on to establish its criminal responsibility. Its particulars would have indicated that it did not rely on the Fitzpatrick incident, and that there was no duplicity.

38 The course of the trial removed any uncertainty due to the lack of particulars. The Council only relied on the placement of egg waste in the tank to prove that it was likely to and had fallen or descended into the Lagoon. The authorities in this Court establish that a charge in this form is not duplicitous. Thus the appellant was only convicted of the one offence identified in the Judge’s reasons based on the “likely” limb of the charge: para [1]. The conviction was not duplicitous.

39 The former requirement in s 57 of the Justices Act that an information be for only one offence was re-enacted as ss 51 and 176 of the Procedure Act by the Criminal Procedure Amendment (Justices and Local Courts) Act (No 119 of 2001) but these sections were repealed by Act No 99 of 2002 (Sch 1 cl 1.2[2]). The provisions of the Procedure Act which replaced provisions in the Court Act do not include any requirement that a summons and order to appear be for a single offence. There was and is no prohibition against multiple charges in a Class 5 case in the Court, but the common law rule that a count in an indictment must be for a single offence still applies.

40 Section 29(1) of the Procedure Act, which has applied to the Court since 2003, enables it to hear and determine proceedings relating to two or more offences where both parties consent or the offences arise out of the same set of circumstances. The Court must not hear charges together if it considers that the matters should be heard separately in the interests of justice (sub-s (3)).

41 Section 57 of the Justices Act and equivalent provisions were held to limit the jurisdiction of a magistrate’s court. Since there was no jurisdiction to hear a prosecution for a charge that was duplicitous: Stanton v Abernathy para [31], a conviction on such a charge was bad: Edwards v Jones [1947] KB 659, 661-2; Mallon v Allon [1964] 1 QB 385, 393; Hargreaves v Alderson [1964] 2 QB 159, 165; compare Ex parte Graham re Dowling (1968) 88 WN Pt 1 (NSW) 270 CA. This is not, and has never been, the law in relation to summary proceedings in Class 5 of the Court’s jurisdiction.

42 The common law rule against duplicity in criminal pleading does not have this effect. The question was considered in S v The Queen [1989] HCA 66; (1989) 168 CLR 266 and Walsh v Tattersall (1996) 188 CLR 77, the former in relation to a trial on an indictment, the latter in relation to summary proceedings.

43 In S v The Queen (above) the accused was charged with three counts of incest each within a one year period on dates unknown without those dates being identified in any way. Evidence of several acts of intercourse within each of these years was led from the victim without the prosecution having to elect. The Court held that there had been a miscarriage of justice and a new trial was ordered. Dawson J said at 277:

“There have been cases in which it has been held that latent ambiguity or even duplicity in an indictment does not necessarily lead to a substantial miscarriage of justice [citations omitted]. But in those cases either no embarrassment or prejudice was alleged or no point was taken at the trial. In any event, the earlier cases must be read subject to the decision of this Court in Johnson v Miller in which it was held that a complaint was rightly dismissed because of the failure of the prosecution to cure a latent ambiguity by identifying the one transaction out of a number upon which it relied ... At all events, where there is real ambiguity and the point is taken, as it was in this case, failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice.”

44 Gaudron and McHugh JJ said at 286-7:

“Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged. Ordinarily, those difficulties will be averted by ordering particulars, by amending the indictment, or by putting the prosecution to its election and appropriately confining the evidence to the offences charged ... However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice.”

45 Walsh v Tattersall (above) concerned a summary trial. The only relevant judgment for present purposes is that of Kirby J who said at 110, 111, 112-13:

“If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction ... I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges ... The rule of strictness is ... desirable for the fair trial of the accused ... The appellant asked for an order dismissing the complaint. However, that is not the remedy which the law now provides for a case of established duplicity.”

46 The Court quashed the duplicitous count and the conviction on it leaving the informant free to replead and continue the prosecution.

47 A conviction by a jury on a duplicitous count will often be bad because a jury does not give reasons and the conviction will be ambiguous. A conviction by a judge following a summary prosecution will generally not be ambiguous because the judge will have given reasons. If the reasons show that the conviction on the duplicitous count was for a single offence I see no reason why the Court should shut its eyes to reality and treat the conviction as duplicitous.

48 If the duplicity and lack of particularity in one or more charges occasioned a miscarriage of justice because, for example, the defendant was taken by surprise, put in a position of embarrassment or disadvantage, or the conviction is ambiguous the Court must interfere. If there has been no miscarriage of justice then, given the well established operation of s 16(2) and the power conferred by s 29 of the Procedure Act there is no reason for this Court to treat the trial as a nullity, or the conviction as automatically bad.

49 In this case there has been no miscarriage of justice because of duplicity or lack of particularity. The challenge to the conviction on these grounds should be dismissed.

50 Hulme J considers that the conviction is bad because the appellant was convicted of an offence different from that charged in the particulars. I am unable to accept this view. The relevant particulars were para [1]:

“The pollutant was in a position where it was likely to and did fall ... into the waters, into a drain designed to receive ... rainwater ...”.

51 The particulars also alleged that the pollutant was introduced into the “said waters” by passing through the pipes and pits within the defendant’s land to the public system from where it discharged into Warabrook Lagoon.

52 Although the charge was that pollutant from the defendant’s property “was likely to and did fall” into the waters of the Lagoon the particulars included an allegation that the pollutant was in a position where it was “likely to fall” into those waters and “into a drain designed to receive or pass rainwater”.

53 Evidence of these matters was within the charge as particularised and the failure of the Council to prove the whole of its case did not require the Court to ignore the evidence that established an offence within the particulars. The difference is a variance within ss 16(2)(b) and 40(4) of the Procedure Act which does not prevent the Court acting on evidence, within the particulars, that established the offence charged.

Meaning of likely in the definition

54 Mr Hale SC for the appellant submitted that in the definition of water pollution etc in the Dictionary “likely” meant more probably than not while Mr Craig for the respondent supported the construction adopted by the Judge that it meant “a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance”. This was the construction of the predecessor provision in s 16(2) of the 1970 Act that was adopted by Smart J in Mathews v Goulburn Wool Processors Pty Ltd (unreported 6/11/1986) at pp 12-15. The reasoning of Smart J on this question was not affected by the decision of this Court which reversed his decision on another point: (1987) 10 NSWLR 419. The Land and Environment Court has consistently followed this construction of s 16(2) and cognate legislation: SPCC v Blayney Abattoirs Pty Ltd (1991) 72 LGERA 221, 224; NSW Sugar Milling Co-operative Ltd v SPCC (1991) 73 LGERA 86, 100; EPA v Anning [1998] NSWLEC 135.

55 Mr Hale submitted that there was a conceptual difficulty in establishing beyond reasonable doubt that there was a real and not remote chance or possibility of something occurring if the chance was less than 50 per cent. However the difficulty is the same if likely means more probable than not. In any event likely has been given this meaning in a statutory definition of murder. In Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 the Court considered the meaning of “likely” in s 156(2) of the Criminal Code (Tas) which defined culpable homicide as including homicide caused by an act “which is commonly known to be likely to cause death or bodily harm” and in s 157(1) which defined murder as culpable homicide which the offender knew to be likely to cause death. Mason, Wilson and Deane JJ said (21-2):

“... in our view, the word ‘likely’ is used in both [sections] with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent ... To bury the word ‘likely’ in s 157(1) ... beneath the gloss of ‘more likely than not’ and the explanation of ‘a more than 50 per cent’ or an ‘odds on’ chance would be to ... to attribute to the word ‘likely’ a requirement of a specific degree of mathematical probability which the word does not convey either as a matter of ordinary language or in its context in s 157(1) of the Code.”

56 The reasoning of Smart J on this question has stood for 20 years and we were not referred to any judicial criticism of it. In 1997 Parliament adopted the same language in the definition of water pollution etc in the Act. Parliament has given a lot of attention in recent years to the protection of the environment and if those promoting the 1997 Act considered that the meaning of likely adopted in these cases was not appropriate, the new Act would have made it clear that a different meaning was intended. Where the language of a statute has received judicial interpretation and Parliament again employs the same language in a subsequent statute dealing with the same subject there is a presumption that Parliament intended that the language used by it in a subsequent statute should be given the meaning which has been judicially attributed to it in the meantime: Salvation Army (Victoria) Property Trust v Ferntree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159, 174; The Queen v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, 395-6, 403, 406-8.

57 Smart J considered Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union [1979] FCA 85; (1979) 42 FLR 331 and particularly the judgment of Deane J who held that likely may have this meaning in an appropriate context. In ASIC v Nomura International plc (1998) 89 FCR 301 Sackville J held that likely in s 998(1) of the Corporations Law meant more probable than not. He said (396):

“The form of the provisions considered in these cases was important to the outcome. For example, Deane J in Tillmanns at 347, thought it significant that s 45D(1) proscribed conduct that ‘would have or be likely to have’ a particular effect ... If, in that context, ‘likely’ meant more probable than not, the words ‘be likely to have’ would have had no work to do. Section 998(1) is couched in different terms.”

58 This reasoning is not relevant in the present context and the decision does not require this Court to re-open the established construction of this definition.

The decision of Pain J on the facts

59 The Judge was not satisfied to the requisite standard that egg waste from the appellant’s factory reached Warabrook Lagoon. Mr Hale relied on this and other matters to challenge the Judge’s finding that on the day in question it was “likely to fall [or] descend ... into the waters” of the Lagoon. Although egg waste had leaked from the black tank onto the concrete apron and into SW1, from where it had flowed to SW2, and SW4 prompt and effective action on the morning of 3 October prevented it getting any further. The egg waste at SW4 still had some distance to travel before it left the appellant’s property (3/40).

60 The fact that, on a particular occasion, the pollutant does not “fall [or] descend” into waters cannot exclude a finding that it was “likely” to do so because that would write the second limb out of the definition.

61 The tank stood in the open and on the day in question exhibited obvious signs of rust as the appellant’s maintenance co-ordinator acknowledged (2/323-4, 3/2-4). The appellant had no system for its inspection and maintenance (2/325). The egg waste leaked through a hole created by rust (3/427). When the tank was inspected by an expert on 4 August 2004 corrosion of varying severity was evident over a broad area on the external and internal surfaces where the paint system had been compromised. There were areas of extreme corrosion and metal wastage with the worst affected on the bottom (3/425-6). Two holes were identified at that time (3/437). The appearance on the day in question, with an appropriate adjustment, was some evidence of its condition on the day of the leakage 10 months earlier because of the retrospective presumption of continuance: Cloverdell Lumber Co Pty Ltd v Abbott [1924] HCA 4; (1924) 34 CLR 122, 137-8 per Isaacs J.

62 It is obvious that in the absence of any system of inspection and maintenance the rusting tank was likely to leak sooner or later and the fact that it sprang a leak sometime between 3pm on 2 October and 5.45am on 3 October demonstrated that it was likely to do so. Future events are admissible, not to prove a hindsight, but to confirm a foresight: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [2001] NSWCA 28; (2001) 50 NSWLR 665, 677 per Spigelman CJ quoting a statement by Hope JA.

63 Although the tank was normally emptied every Friday, this did not always happen. Mr Fitzpatrick said that he emptied the tank when asked by the appellant to do so (2/97, 121). The tank could have begun to leak over a weekend without the leak being detected until the following Monday morning, or even Tuesday if there was a long weekend such as that which fell on 4-6 October 2003.

64 Once the tank began to leak the egg waste would flow by gravity across the concrete apron and into SW1 and eventually, if there was enough waste in the tank, and nothing was done, it would flow into the Lagoon. There were voids or sumps in the drainage pits which would have to be full before the waste could move further down the drainage line and some of the waste would be needed to wet the surface of the pipes and would not move further.

65 There was also evidence that there were voids under the concrete apron. Egg waste flowing across the apron would leak into these through the gaps between the slabs and this would delay and reduce the movement of the waste to SW1.

66 The dryness or otherwise of the pits and pipes in the drainage line and of the voids under the concrete apron would be affected by rain. If enough rain had fallen shortly before the tank sprang a leak the pits might be full, the pipes might be wet, and the voids under the apron might also be more or less full. If this was the position the waste would flow more quickly through the system (386). Moreover if it rained heavily during the leakage the runoff would carry the egg waste to the Lagoon within half an hour. A fluorescein test with running water on 17 December 2003 carried the dye from SW1 to the gross pollution traps on the edge of the Lagoon in 24 minutes: judgment para [24].

67 Rainfall of 6.8mm and 1.4mm was recorded at Newcastle University during the 24 hours to 9am on 2 and 3 October respectively. The University was only about 1.5 kilometres from the appellant’s property although the location of the rain gauge was not established. The falls on 2 October would have generated runoff from the impervious areas on the site, and that on 3 October may have done so (3/576). Dr Joliffe said that with this rainfall it was highly improbable that the pits were completely dry during the night of 2-3 October, and it was quite possible that they were full of water (259).

68 As the Judge found there was no bund or other physical barrier which would prevent egg waste which leaked from the tank flowing under gravity across the concrete apron to SW1 and then eventually to the Lagoon.

69 The primary facts found by the Judge were not challenged. Mr Hale’s factual challenge was to the ultimate finding that the pollutant was likely to fall or descend to the Lagoon. In my judgment that ultimate finding was fully supported by the evidence and was correct.

70 The appeal against conviction should be dismissed with costs.

71 HULME J: In or about November 2004, the Respondent to this appeal charged the Appellant with having, on or about 3 October 2003, committed an offence against s120(1) of the Protection of the Environment Operations Act, 1997 in that “it polluted waters at Warabrook Wetland Reserve, namely the Warabrook Lagoon (Upper Pond)”.

72 The offence alleged was particularised in a number of respects. The place of the offence was said to be the Defendant’s land, a line of stormwater drainage pipes and pits owned and occupied by the Defendant, the stormwater drainage pipe and pit system between the Defendant’s land and the Reserve and at the Reserve. The manner in which the pollution occurred was described as:-

The pollutant was in a position where it was likely to and did fall, descend and be washed into the waters, into a drain designed to receive or pass rainwater, floodwater or other non-polluted waters.

The pollutant was introduced into the said waters at the said place by passing through the pipes and pits within the defendant’s land and through the public stormwater drainage pipe and pit system to discharge into the Warabrook Lagoon (Upper Pond) on the Warabrook Wetland Reserve.

73 On the day on which the offence was alleged to have occurred, poultry egg waste had escaped from a hole in a tank on the Defendant’s land into at least some of the drainage lines and pits on the Defendant’s land.

74 On that day also, Council officers had found adjacent to where material from the Appellant’s drainage system would enter the Lagoon, material which appeared to be of the same type as that which had leaked from the Defendant’s tank. The Council’s primary case was that the material found was part of that that had leaked from the tank.

75 However, drainage pipes from other properties also fed into the Council’s drainage system between the Appellant’s property and this made it at least possible that what the Council officers found in the Lagoon came from persons other than the Defendant. There was also evidence that tended to suggest that the material that had leaked from the tank had not found its way as far as the boundary of the Defendant’s land. Justice Pain, from whom this appeal is brought, was not satisfied that the material found in the Lagoon had come from the Defendant’s property.

76 However, her Honour convicted the Appellant upon a second argument that the Council advanced, namely that given the condition of the tank when inspected on 4 August 2004, the drainage system which existed between the location of the tank, and the inadequacy of emergency procedures to deal with any spillage, the Appellant had offended against s120(1) “by placing egg waste in a position where it was likely to fall, descend, or be washed into Warabrook Lagoon”. On a later occasion, her Honour dealt with the issues of penalty and costs. Clearly orders made in those respects are dependent on the Appellant’s conviction but there is no separate appeal against her Honour’s decisions in respect of these further matters.

77 Her Honour did not make any specific findings as to the condition of the tank at the time of the escape from the tank but it is implicit in what she said that the hole from which the egg waste escaped was the result of the tank rusting.

78 Section 120 of the Act provides:-

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section

pollute waters includes cause or permit any waters to be polluted.

79 In the Dictionary to the Act, “water pollution or pollution of waters” is defined to mean:-

“(a) Placing in or on, or otherwise introducing into or onto, waters... any matter... so that the... condition of the waters is changed, or

(b) Placing in or on, or otherwise introducing into or onto the waters... any... matter... so that the change in the condition of the waters or the... matter... makes, or is likely to make, the waters unclean, noxious... or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or

(c) Placing in or on, or otherwise introducing into or onto, the waters... any matter... that is of a prescribed nature... or that does not comply with any standard prescribed in respect of that matter,

and, without affecting the generality of the foregoing, includes:

(d) Placing any matter... in a position where:

(i) it falls, descends, is washed, is blown or percolates, or

(ii) it is likely to fall, descend, be washed, be blown or percolate

into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater, or any water that is not polluted, or

(e) Placing any such matter on the dry bed of any waters or in drain, channel or gutter used or designed to receive or pass rainwater, floodwater, or any water that is not polluted,

if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.”

80 The Appellant’s case here is that Justice Pain misconstrued the meaning of the word “likely” in that definition and, when that expression is properly understood, was not justified by the evidence in reaching the conclusion she did.

81 However, I do not need to embark upon this argument for the Council has a more fundamental problem. It is either that there was duplicity in the charge or, as I think is the preferable view, that the Appellant was convicted of an offence different from that charged as that charge was particularised. As the particulars set out above make clear, particulars of the charge included that the pollutant “was in a position “where it was likely to and did fall” and that the pollutant “was introduced into the said waters”, expressions consistent with only an allegation of actual pollution, not of merely creating a situation where pollution was likely to occur.

82 Given the presence of the words underlined in the preceding paragraph, it is not possible to regard the offence charged as one of “placing egg waste in a position where it was likely to fall” etc. And even if one could, the addition of those words or an interpretation that included them would have meant that the charge suffered from duplicity. The Defendant placed the relevant material in the tank at one point in time and, assuming all other relevant matters existed, it then committed an offence. Any offence of introducing the material into the Lagoon, occurred at a different point of time and, if it occurred, was a different offence.

83 In so concluding I do not ignore the fact that, given the terms of s120 and the definition quoted the Council could have charged the offence as it did and particularised that offence, for example, as:-

“placing matter in a position where:-

(i) it fell, or

(ii) was likely to fall, descend, be washed, or percolate,

into Warabrook Lagoon”

84 Given the form of paragraph (d) of the definition of “water pollution ...” such phraseology, directing attention to one act which answered one of a number of possible descriptions or carried one of a number of possible consequences, would not have been duplicitous – see Ex parte Polley: Re: McLennan (1947) 47 SR (NSW) 391 at 392; Brownlie v SPCC (1992) 27 NSWLR 78 at 82B; CSR Ltd v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334; Reynolds & Co Pty Limited v Australian Stock Exchange [2003] NSWSC 33 at [101]. However, that is not the way the charge against the Appellant was particularised. There was no allegation of “placing” the pollutant where it was likely to fall and although if there were no contrary indications of what was being alleged, one might have been justified in inferring that was intended, here the clear emphasis was on actual not potential pollution.

85 Nor is it to the point that the charge itself was in the terms of s120 and not formulated in duplicitous terms. The particulars also must not suffer from that fault. This is made clear from the remarks of Dixon J in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489.

86 The only question which has caused me any concern is whether the Appellant, having made no objection to the course pursued by the Respondent before Pain J should now be permitted to do so. After all, putting aside for the moment the Appellant’s primary argument, on her Honour’s findings the Appellant is guilty of the offence of polluting waters. However, just as “it is not pedantry to insist that an accused be tried for the crime for which he is charged” – Andrews v R [1968] HCA 84; (1968) 126 CLR 198 at 209, it is not pedantry to insist that any conviction, if it is to stand, be for that offence. The specification of an offence requires that there be included not only the legal ingredients of it but the identification of its essential factual ingredients also. See Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486, Andrews v R at 209; John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 520; Taylor v EPA [2000] NSWCCA 71; (2000) 50 NSWLR 48 at [20-22]. Inter alia, such matters are needed to enable any decision to be made should issues of autrefois acquit or autrefois convict arise – R v Burns (1920) 20 SR (NSW) 357.

87 The appeal should be allowed, and the conviction and penalty quashed and the order for costs made by Judge Pain set aside.

88 No argument was addressed as to the costs of this appeal. Given that the point upon which the appeal has succeeded was not taken below and not taken in the appeal until the Court raised it, there is a deal to be said for the view that the costs of the appeal should lie where they have fallen. However, that is not a concluded view and the parties should have liberty to raise the issue of costs by written submissions within 7 days if they wish to do so.

89 KIRBY J: I agree with Handley JA.

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LAST UPDATED: 14/12/2006