Environment Protection Authority v Truegain Pty Ltd [No 2] [2012] NSWLEC 55

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Truegain Pty Ltd [No 2] [2012] NSWLEC 55 Hearing dates: 20/03/2012 Decision date: 20 March 2012 Jurisdiction: Class 5 Before: Lloyd AJ Decision: Prosecutor must elect as to which of the two particulars it has now identified it wishes to pursue Catchwords: CRIMINAL LAW - prosecution - duplicity -- particulars - summons as particularised bad for duplicity Legislation Cited: Protection of the Environment Operations Act 1997, s 64(c) Cases Cited: Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Byrne v Baker [1964] VR 443 Chugg v Pacific Dunlop Ltd [1988] VR 411 Johnson v Miller (1937) 59 CLR 467 Category: Separate question Parties: Environment Protection Authority (Prosecutor) Truegain Pty Ltd (Defendant) Representation: M Higgins (Prosecutor) J Horowitz (Defendant) Patricia Lenehan (Prosecutor) Horowitz & Bilinsky (Defendant) File Number(s): 50471 of 2011

EX TEMPORE Judgment 1On 16 March 2012 I upheld the defendant's objections to the summons as then particularised and held that the summons as amplified by the particulars furnished by the prosecutor was bad for duplicity. The prosecutor now states that it relies upon only two of the particulars in the summons, namely: (c) (iv) Failing to adequately treat liquid waste at the Premises; and /or (v) Failing to adequately store liquid waste at the Premises 2The prosecutor has also furnished the defendant with further particulars of the two failures upon which it now relies. 3The defendant submits that the two particulars now relied upon by the prosecutor remain bad for duplicity. Moreover, the defendant submits that the particulars now furnished in relation to each failure are themselves bad for duplicity. 4The prosecutor has this morning explained the processes which occur on the defendant's property to show that both the treatment and storage of liquid waste at the premises forms part of the one activity. What has been described, however, is a continuing process of treatment which includes decanting, pumping and treating liquid waste. The storage of liquid waste, it seems to me, is a separate activity - the liquid is simply stored. 5A failure to treat adequately and a failure to store adequately gives rise, in my opinion, to separate or discrete omissions each of which, if established, gives rise to an offence. 6To repeat what I said in my previous judgment, "only one offence can be proved under one charge", as Dixon J said in Johnson v Miller (1937) 59 CLR 467 at 487. Moreover, as Dixon J also said at 489: ... evidence of more than one offence cannot be admitted, and under one charge to take evidence of a number of separate instances of the commission of the same offence ... is to pursue a course contrary to law. 7In the present case each of the particulars (c)(iv) and (v) in the summons would constitute an offence. The case is indistinguishable from Byrne v Baker [1964] VR 443, Chugg v Pacific Dunlop Ltd [1988] VR 411 and Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 where in those cases the legislation is in material respects similar to that with which we are concerned here. 8As in those cases, the particulars now furnished in the present case allege separate and distinct failures each of which would be a contravention of the Protection of the Environment Operations Act 1997. As Hill J said in Boral Gas at 179: In my view, these alleged failures involve at least two alleged contraventions ... and therefore two offences. The nature and content of each failure is separate and distinct. 9The prosecutor must therefore elect as to which of the two particulars it has now identified it wishes to pursue. 10The defendant complains about a further difficulty with the particulars that have been supplied in that they identify the offence as occurring at different pieces of equipment at different locations within the licensed premises and identify acts or omissions which, in the case of the storage of liquid waste, involve also treatment of that waste. The defendant relies upon the judgment of Hungerford J in Boral Gas at 206: ... each represent significant and separate categories of conduct by an employer to ensure the stipulated condition of a safe workplace. Of course, a failure to observe any one of them will be a breach, but a multiple failure must surely lead to multiple breaches. If that were not so and only one breach was regarded as having occurred then, I think, the importance of one or other of the requirements would be negated. It would be a fortiori where each failure occurred at a different location at a workplace or, even at the same location, arose out of different circumstances. The point may be illustrated by referring to a building site - if at the same time on the same day an employer failed to provide a safely insulated power tool and failed to provide a safe electrical system for the workplace, how could it be said only one offence was committed? I would think clearly there would be two separate and distinct failures by the employer in relation, first, to equipment, and, secondly, to the system of work ... 11As I understand the defendant's submission, it is said that the nature and content of each alleged failure is itself separate and distinct. I do not require the prosecutor at this stage to respond to this complaint until it makes an election as to which of the particulars (c)(iv) or (v) in the summons it wishes to pursue as its submissions may vary depending upon its election.