Land and Environment Court of New South Wales CITATION : Cum v Nightingale [1989] NSWLEC 127 (3 November 1989) [1989] NSWLEC 152 PARTIES : Cum v Nightingale [1989] NSWLEC 127 (3 November 1989) FILE NUMBER(S) : 50036 of 1989 CORAM: Bignold J KEY ISSUES: :- Land and Environment Court Act 1979 Clean Waters Act 1970 Clean Waters Regulations 1972 LEGISLATION CITED: Interpretation Act 1987 Supreme Court (Summary Jurisdiction) Act 1967 Justices Act 1902 the State Drug Crime Commission Act 1985 Ex parte N. Ormsby and Sons Pty Ltd.; Re Mason (1964) 81 W.N. Pt.1 (NSW) 286 at 290; Mathews -v- Goulburn Wool Processors Pty Ltd. (1987) 10 N.S.W.L.R. 419 ; John L. Pty Ltd. -v- The Attorney-General (NSW) (1987) 163 C.L.R. 508; Davies -v- Ryan (1933) 50 C.L.R. 379; Ex parte Lovell; Re Buckley (1938) 38 S.R. (N.S.W.) 153 at 173; CASES CITED: Ex parte Burnett; Re Wicks (1968) 2 N.S.W.R. 119; Day and Riggs -v- Rugala (1978) 20 A.C.T.R. 3; Stanton -v- Abernathy and the Director of Public Prosecutions For the State of New South Wales (unreported 10th March, 1989),; R. v Duff (1924) 41 WN 23; Ex parte Stanton 28 SR 516 at 518; Ex parte Kirkpatrick (1917) 34 WN 15; R. v Justelius (1973) 1 NSWLR 471; Ex parte Consolidated Press Limited; Re Harris & Anor (1961) 78 WN 261; Shah -v- Swallow (1984) 2 All.E.R. 528 DATES OF HEARING: DATE OF JUDGMENT: 11/03/1989 TERRENCE PANG CUM LEGAL REPRESENTATIVES: GRAHAME NIGHTINGALE JUDGMENT: Bignold J.: This is a Notice of Motion where the Defendant seeks orders dismissing a summons applying for an order pursuant to s. 41 of the Land and Environment Court Act 1979 and the order made pursuant to that section charging him with offences against the Clean Waters Act 1970. The stated ground for the relief sought is that the summons and the order do not disclose any offence. On the hearing of the Notice of Motion leave was given to the Defendant to add a further ground in support of his Motion, namely that the summons and order pursuant to s. 41 were defective and void in as much as they each alleged two offences against the Defendant. The s. 41 order charges the defendant: "to answer the offence alleged by the Prosecutor that you did between the 18th September, 1988 and 18th October 1988, discharge from a tank mounted on a table top truck Reg. JSR-971, a polluting waste within the meaning of Section 5 of the Clean Waters Act into a gully leading into an unnamed creek adjacent to Greta Road, Muswellbrook and furthermore that on the 19th October, 1988 you did discharge from a tank mounted upon a table top truck Reg. No. JSR-971, a polluting waste within the meaning of Section 5 of the Clean Waters Act 1970 into a gully, leading into an unnamed creek, adjacent to Greta Road, Muswellbrook, thereby contravening the provisions of the Clean Waters Act 1970." Although in the present case evidence has been given of the Defendant seeking and obtaining particulars of the offences charged against him the parties have argued their respective cases on the Notice of Motion on the basis that the particulars thus far provided (and which I am bound to say remain unclear even after a chequered history and obviously require some further clarification or elucidation) are not relevant. The first question to be considered is whether the summons and the s. 41 order disclose any offence. To answer this question it is necessary to recite the relevant provisions of the Clean Waters Act 1970 noting that Section 16 creates a number of offences relating to the pollution of waters and, Section 5 provides a number of key definitions eg. "pollute", "waters" and "wastes". "S.16(1) A person shall not pollute any water. (2) Without limiting the generality of subsection (1), a person shall be deemed to pollute waters if- (a) he places any matter, whether solid, liquid or gaseous, in a position where it falls, descends, is washed, is blown or percolates, or is likely to fall, descend, be washed, be blown or percolate, into any waters, or onto the bed of any waters, when dry, or causes or permits any such matter to be placed in a position; or (b) he places any such matter on the bed, when dry, of any waters, or causes or permits any such matter to be place on such a bed, and the matter would, had it been placed in any waters have polluted or have been likely to pollute those waters. (3) A person shall not cause any waters to be polluted, whether intentionally or not. (4) A person shall not permit any waters to be polluted." "S. 5 In this Act, except in so far as the context or subject matter otherwise indicates or requires:- ""pollute", in relation to any waters, means - (a) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed; or (b) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters 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) to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, and "pollutant" and "pollution" have corresponding interpretations; "wastes" means any solid, gas or liquid, with or without matter in suspension or solution in it, which is or may be discharged from premises - (a) in the course of any process or operation carried on in connection with any mine (within the meaning of the Mines Inspection Act 1901 or the Coal Mines Regulation Act 1982), open cut working (within the meaning of the latter Act), coal washing, trade, industry, agriculture or sewage treatment; or (b) in the course of any domestic process or operation, or which is in, or is or may be discharged from, any waste disposal depot; "waters" means any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or part thereof, and includes water stored in artificial works, water in water mains, water pipes and water channels, and any underground or artesian water, or any part thereof.." Cl. 2(2) of the Clean Waters Regulations 1972 extend the definition of "pollute" by prescribing various matters (including a number of specified "wastes") for the purposes of paragraph (c) of the definition of "pollute". The most obvious feature of the summons and s. 41 order in the present case is that in specifying the offences charged each does not adopt any of the words of s. 16 creating the offences of polluting waters. However the Defendant properly concedes that it is not essential that the summons and order adopt the description of the offence in the words of the Act. However it is essential that the summons and order state all of the factual ingredients of the offence: see Ex parte N. Ormsby and Sons Pty Ltd.; Re Mason (1964) 81 W.N. Pt.1 (NSW) 286 at 290. The essential factual ingredients stated in the summons and order that I have earlier recited may be summarised as follows:- (i) a polluting waste was discharged; (ii) into a gully leading to an unnamed creek. It is apparent that these ingredients do not coincide with the essential ingredients of the offence created by s. 16(1) being:- (i) the "pollution" (ii) of "waters" as those words are defined by s. 5. Similarly it is apparent that the ingredients in the summons and order do not coincide with the ingredients of the offence created by s. 16(3) being:- (i) "causing", (ii) the "pollution" (iii) of "waters". Likewise it is apparent that the ingredients in the summons and order do not coincide with the ingredients of the offence created by s. 16(4) being:- (i) "permitting" (ii) the "pollution" (iii) of "waters". Thus it is clear that the summons and order do not charge what Samuels JA in Mathews -v- Goulburn Wool Processors Pty Ltd. (1987) 10 N.S.W.L.R. 419 described as an offence of "actual pollution" (p. 420). His Honour stated at p. 420: "Section 16 is designed to catch up both actual pollution and deemed pollution, the latter being structured upon the provisions contained in s. 16(2)." Rather it is tolerably clear that the summons and order attempt to charge the offence under s. 16(2) of "deemed pollution". In fact upon closer analysis it is apparent that the "deemed pollution" provision made by s. 16(2) involves many separate offences involving each of the stipulated acts of "placing matter" in relation to "waters or the bed of waters" being effectively multiplied by 3 to accommodate the separate offences of (i) placing (ii) causing to be placed and (iii) permitting to be placed that matter in relation to waters or the bed of waters. Since it is apparent that the Defendant is not charged with an offence of "causing" or "permitting" matter to be placed etc I can limit consideration of the ingredients of the relevant offence to that of "placing" matter etc., the relevant ingredients of such offence being:- (i) placing any matter in a position; (ii) where it falls, descends is washed etc. or is likely to fall, descend or be washed etc. into any waters or the bed of waters; and (iii) which matter would, had it been placedin any waters, have polluted or have been likely to pollute those waters. A comparison between the ingredients of the relevant offence created by s. 16(2) and the description of the offence charged in the summons and order raises obvious problems for the Prosecutor in sufficiently identifying in the summons and order the ingredients of the charge so as to disclose an offence. The problem is acutely experienced because the summons and order do not adopt any of the statutory language creating the relevant offence eg. the words "discharge into" are used instead of the statutory word "place", no relevant verb is used (ie. "falls", "descends", "is washed") and the polluting nature and effect of the relevant matter is directly stated to be a "polluting waste". Notwithstanding these obvious verbal differences (which I might say the Prosecutor in drafting the summons and order was very unwise to create) the question remains whether the summons and order sufficiently identify the ingredients of the charge so as to disclose an offence. With considerable hesitation I have concluded that the summons and order sufficiently identify the ingredients of a relevant offence under s. 16(2)(a) and thereby disclose an offence. In so concluding I consider that the three ingredients of the relevant offence I have earlier set forth are sufficiently identified. Thus ingredient (i) is satisfied by the averment "discharge from... of a polluting waste"; ingredient (ii) is satisfied by the averment "into a gully leading to an unnamed creek"; and ingredient (iii) is satisfied by the averment "polluting waste". In relation to ingredient (iii) although the expression "polluting waste" is not a defined term the word "waste" is defined by s. 5 and the word "polluting" is cognate to the defined word "pollute" and takes its corresponding meaning accordingly - see s. 7 of the Interpretation Act 1987. Accordingly I am of the opinion that the summons and order disclose an offence, namely one of the several offences created by s. 16(2)(a) and therefore the summons and order are sufficient in law and accordingly are sufficient to invoke the Court's jurisdiction. If I were wrong in this conclusion the question would arise whether s. 43 of the Land and Environment Court Act upon which the Prosecutor relies applies to overcome any "defect in substance" in the s. 41 order. Since this question was fully argued I should express my views on it. Section 43 is in the following terms: "No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 41 or 42 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 or order." In respect of the application of s. 43 the Prosecutor placed considerable reliance upon the dissenting judgment of Brennan J. in John L. Pty Ltd. -v- The Attorney-General (NSW) (1987) 163 C.L.R. 508. In that case Brennan J. was the only member of the High Court to consider whether s.6 of the Supreme Court (Summary Jurisdiction) Act 1967 (in the same terms as s. 43 of the Land and Environment Court Act ) operated to avoid the consequences of a defect in the charge, the majority not considering the question because it held that the section did not in terms apply to the originating process in that case, namely an information (p. 522) and Toohey J. not considering it necessary to consider the question because he held (contrary to the majority judgment) that the information was not defective by reason of its failure to specify a material particular (pp. 543/4) being a view shared by Brennan J. who held that the information was not "so incurably bad as to require or warrant a dismissal of the proceedings without more": p. 529. His Honour held that the "information was sufficient in law to invoke the jurisdiction of the Court": p. 529. It was in these circumstances that Brennan J. went on to consider the effect of s. 6 holding that "it operates not to deem defective applications to be sufficient, but to avoid the consequences of defects in applications": pp. 529/530. This also was the view of the operation of s. 6 taken by the New South Wales Court of Criminal Appeal (see p. 522). However it is apparent from Brennan J.'s judgment that His Honour's views on the operation of s. 6 were addressing a defect in the information on account of a want of particularity in contrast to a defect that rendered the information "incurably bad". This is especially made clear by His Honour's citation of Davies -v- Ryan (1933) 50 C.L.R. 379 in the following passage at p. 528: "In Davies -v- Ryan (1933) 50 C.L.R. 379 Evatt J. distinguished between a case where a complaint is so defective that the information must be dismissed, and a case where a complaint is lacking in particulars and the defendant is entitled to an order for particulars in order to meet the case against him. Jordan C.J. said in Ex parte Lovell (1938) 38 S.R. (N.S.W.) at pp. 169-170 "the object, as is pointed out by Evatt J. in Davies -v- Ryan , can be secured otherwise than by insisting upon a retention of the old rule that these particulars must necessarily be given upon the face of the information itself". The distinction drawn by Evatt J. saves the criminal law from the reproach of being crippled by technicality." Thus it is apparent that there is nothing in the judgment of Brennan J. that would support the conclusion that s. 43 of the Land and Environment Court Act 1979 operates so as to validate a summons and s. 41 order that fails to disclose any offence. Such a summons and order would be incurably bad. This understanding of His Honour's judgment accords with existing authority on the operation in relation to an information that discloses no offence, of s. 65 of the Justices Act 1902 (which is to the same effect as s. 43 of the Land and Environment Court Act ) - see Ex parte Lovell; Re Buckley (1938) 38 S.R. (N.S.W.) 153 at 173; Ex parte Burnett; Re Wicks (1968) 2 N.S.W.R. 119; Day and Riggs -v- Rugala (1978) 20 A.C.T.R. 3. These and other authorities are collected and comprehensively analysed in the recent judgment of Yeldham J. in Stanton -v- Abernathy and the Director of Public Prosecutions For the State of New South Wales (unreported 10th March, 1989), referred to by the Prosecutor. His Honour expressed his conclusions on the effect of s. 30 of the Justices Act (to the same effect as s. 65) in the following passages at pp. 16 and 17: "But I adhere to the view that, even if an Information does not comply with the common law requirement that it should "identify an essential actual ingredient of the actual offence" - ie the time and place of the alleged offence and the act done by the person against whom the Information was laid, s 30, which precludes any objection being taken to any alleged defect in substance or in form operates, in accordance with its clear terms, to render valid such Information. But that is not to say that if no offence is disclosed s 65 can be called in aid. Cases which I have mentioned would deny it that operation. Section 65 of the Justices Act has been held to apply to Informations where essential particulars have not been given - R. v Duff (1924) 41 WN 23 ; Ex parte Stanton 28 SR 516 at 518 ; Ex parte Kirkpatrick (1917) 34 WN 15 . So also where erroneous particulars have been given in the Information - R. v Justelius (1973) 1 NSWLR 471 ; or irrelevant material alleged - Ex parte Consolidated Press Limited; Re Harris & Anor (1961) 78 WN 261 . Other cases, some referred to in the written submissions of counsel, demonstrate that it does not apply where the Information fails to disclose all the legal elements of an offence. In the present case I am satisfied that the Information does sufficiently disclose the legal elements of an offence under s. 20(1) of the State Drug Crime Commission Act 1985 even though it is deficient in that particulars of the evidence given, which was alleged to be false to the knowledge of the plaintiff, and the respects in which it was false, should have been furnished. Thus, in my opinion, the Information is not so incurably bad as to require or warrant dismissal of the proceedings, without more." Accordingly if I were wrong in holding that the summons and s. 41 order in the present case discloses an offence I would have held, consistent with existing authority, that s. 43 of the Land and Environment Court Act 1979 would not avoid the consequence of that summons and order being invalid on account of failing to disclose an offence. This brings me to the alternative ground of invalidity of the summons and s. 41 order relied upon by the Defendant, namely that since more than one offence is charged the s. 41 order exceeds the power conferred by s. 41 or is otherwise bad for duplicity. In my opinion this attack on the validity of the summons and s. 41 order fails. The fact that s. 41 refers to "an offence" and "the offence" in the singular form does not, as a matter of ordinary statutory construction, deny the section an operation in respect of a plurality of offences. In this respect it is to be noted that there is no equivalent in Division 5 of Part III of the Land and Environment Court Act to s. 57 of the Justices Act 1902 requiring an information to be for only one offence. In Stanton (which involved an information for an indictable offence in respect of which s. 57 of the Justices Act did not apply) it was argued that there was a common law requirement that such an information charge one offence only. Although Yeldham J. did not find it necessary to decide whether that argument should be accepted it is apparent from p. 19 of his judgment that His Honour was not persuaded of the correctness of the argument. In any event His Honour held at p. 21: "If the Information had contained a number of offences then it would have been preserved by s 30, and the proper course would have been for the prosecution to have been put to its election, in which event (assuming the common law rule against duplicity did apply) other Informations could have been laid. But it is not appropriate at the end of the prosecution case to dismiss an Information on the ground that it asserts more than one offence." I would respectfully accept His Honour's approach in the present case, although I would hold, as a matter of power, that an order under s. 41 of the Land and Environment Court Act may lawfully charge a defendant with more than one offence. In the present case it is very clear that the Defendant is charged with two offences (though involving the same offence) committed on separate occasions. The charges do not arise out of the same incident or event. Nor are the charges alternative offences. No injustice to the Defendant is apparent or is claimed. Instead the Defendant pleads what is nothing more than a technicality in an attempt to avoid being exposed to criminal responsibility. As Lord Roskill states in Clayton -v- Chief Constable of Norfolk (1983) 2 All.E.R. 984 at 989: "The object of the rule against duplicity has always been that there should be no uncertainty as to the offence charged." If there were any technical defect in the summons and order (by virtue of charging two separate offences) I would hold that s. 43 overcomes it. However for the reasons given, I do not think that any such defect exists in relation to the summons and s. 41 order in the present case. The summons and order are capable of being regarded as containing two separate counts or as being separate summonses and orders in respect of each of the two offences charged cf. Shah -v- Swallow (1984) 2 All.E.R. 528. For all of the foregoing reasons I order that the Defendant's Notice of Motion be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.