Environment Protection Authority v Truegain Pty Ltd [2012] NSWLEC 41

Environment Protection Authority v Truegain Pty Ltd [2012] NSWLEC 41

The summons, as amplified by the particulars, was duplicitous because the particulars alleged more than one offence: they included contraventions of licence conditions other than condition 01.1, contraventions of other statutory provisions, and numerous disparate acts or omissions which, if proved, would each constitute a separate contravention. Section 64(1) refers to contravention of 'any condition' in the singular, and the Protection of the Environment Operations Act 1997 contains no provision equivalent to s 31 of the Occupational Health and Safety Act 2000 permitting multiple contraventions to be charged as one offence. The availability of the s 64(2) defence also supported treating...

Jurisdiction
Australia
Judgment Date
16 March 2012
Procedural Posture
Class 5 Criminal Prosecution Under S 64(1) of the Protection of the Environment Operations Act 1997 / Separate Question on Amended Notice of Motion Seeking Dismissal or Stay on the Basis That the Charge Was Duplicitous
Outcome
The summons, as amplified by the particulars, was held to be duplicitous, but the process was not incurably bad; the prosecutor could remedy the defect by electing before trial which matter alleged in the particulars it proposed to pursue.
Legal Topics
['duplicity' 'summons Amplified by Particulars' 'environment Protection Licence Conditions' 'continuing Offence' 'election by Prosecutor']
['criminal Law' 'environmental Law' 'criminal Procedure'] ['duplicity' 'summons Amplified by Particulars' 'environment Protection Licence Conditions' 'continuing Offence' 'election by Prosecutor']

Case Brief

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Procedural Posture

Class 5 Criminal Prosecution Under S 64(1) of the Protection of the Environment Operations Act 1997 / Separate Question on Amended Notice of Motion Seeking Dismissal or Stay on the Basis That the Charge Was Duplicitous

Legal Issues

  1. 1 ['Whether the charge under s 64(1) of the Protection of the Environment Operations Act 1997, as amplified by further and better particulars alleging multiple acts, omissions, licence condition breaches and statutory contraventions, was bad for duplicity.' 'Whether s 64(1) creates an offence directed only to a specific contravention of a licence condition or can encompass a course of conduct or continuing offence made up of more than one act.' 'Whether the appropriate consequence of duplicity was dismissal or stay, or requiring the prosecutor to elect which matter to pursue.']

Ratio Decidendi

The summons, as amplified by the particulars, was duplicitous because the particulars alleged more than one offence: they included contraventions of licence conditions other than condition 01.1, contraventions of other statutory provisions, and numerous disparate acts or omissions which, if proved, would each constitute a separate contravention. Section 64(1) refers to contravention of 'any condition' in the singular, and the Protection of the Environment Operations Act 1997 contains no provision equivalent to s 31 of the Occupational Health and Safety Act 2000 permitting multiple contraventions to be charged as one offence. The availability of the s 64(2) defence also supported treating...

Court Disposition

The summons, as amplified by the particulars, was held to be duplicitous, but the process was not incurably bad; the prosecutor could remedy the defect by electing before trial which matter alleged in the particulars it proposed to pursue.

Orders

  • ['The summons, as amplified by the particulars, is duplicitous.' 'The prosecutor may elect, prior to trial, which of the matters alleged in the particulars it proposes to pursue.']