Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165 Hearing dates: 22 April 2015 Decision date: 25 June 2015 Before: Hoeben CJ at CL at [1] Hall J at [2] Garling J at [132] Decision: The questions that have been submitted for determination by this Court pursuant to s 5AE of the Criminal Appeal Act 1912, are answered as follows:

Question 1: Whether the 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 Protection of the Environment Operations Act 1997.

Answer: "No".

Question 2: Whether, upon its proper construction, s 257 of the Protection of the Environment Operations Act 1997 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 Protection of the Environment Operations Act 1997 contained in paragraph 1(c)(i) of the Summons.

Answer: "No".

In relation to any ancillary or consequential matters, including costs, the parties are directed to file and serve written submission within 28 days from the date of judgment, in accordance with an agreed timetable. Catchwords: CRIMINAL LAW – Appeal - Questions of law referred to Court of Criminal Appeal from Land and Environment Court of New South Wales – LEC proceedings stayed pending outcome - Appellant commenced prosecution of respondent in LEC for water pollution under Protection of the Environment Operations Act 1997 – Summons identified 'manner of contravention' as either specified instance of pollution or arising from s 257(1) of the Act – Whether summons bad for duplicity – Whether s 257(1) negated need to provide particulars of pollution by occupier of premises – CRIMINAL PLEADING – Held that summons was bad for duplicity – Unclear whether prosecutor relied upon contravention specified or some other contravention in relation to s 257(1) – s 257(1) relates to proving liability for contravention – s 257(1) is evidentiary – the section only obviates need to prove identity of offender and facilitates proof of causation – the occupier of premises at and from which pollution occurs is taken to have caused the pollution unless matters specified in s 257(1)(a), (b) and (c) are proved – particulars as to act of pollution alleged to have occurred still required - Prosecutor relying on s 257(1) must prove that pollution occurred and how – Appeal dismissed Legislation Cited: Clean Waters Act 1970 Criminal Appeal Act 1912 Protection of the Environment Operations (General) Regulation 2009 Protection of the Environment Operations Act 1997 Cases Cited: Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 Chugg v Pacific Dunlop Ltd [1988] VR 411 CSR Limited v Environmental Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190 Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 EPA v Brazel (No 2) [2002] NSWLEC 26 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) [2005] NSWLEC 241; 141 LGERA 133 Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260 R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373 Rixon v Thompson [2009] VSCA 84; (2009) 22 VR 323 S v The Queen (1989) 168 CLR 266 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Walsh v Tattersall (1996) 188 CLR 77 Texts Cited: Archibold: Criminal Pleading, Evidence and Practice (2013) London, Sweet-Maxwell Category: Principal judgment Parties: Environment Protection Authority (Appellant) Riverina (Australia) Pty Ltd (Respondent) Representation: Counsel: JL Glissan QC; M England (Appellant) C Ireland (Respondent)