Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWCCA 289

Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWCCA 289

The appeal was upheld because the multiple discharges of effluent from the STP into the tributary during the charge period were sufficiently connected by the statutory and licence framework, the same scheduled activity, same premises, same nature of discharge, same discharge point and same regulatory conditions to constitute a single compendious instance of offending capable of being charged as one count under s 120(1) of the Protection of the Environment Operations Act 1997. The primary judge also erred by ordering the EPA to elect and particularise a single offence before determining whether Charlotte Pass should be permitted to withdraw its existing guilty plea.

Jurisdiction
Australia
Judgment Date
08 December 2021
Procedural Posture
Criminal Appeal Concerning Prosecution Summons for Offence of Polluting Waters / Appeal to the Court of Criminal Appeal From Orders of the Land and Environment Court
Outcome
Appeal upheld; order of the primary judge set aside; respondent's application concerning duplicity dismissed.
Legal Topics
['duplicity' 'rule Against Duplicity' 'single Criminal Enterprise' 'pollution of Waters' 'environment Protection Licence' 'withdrawal of Guilty Plea']
['criminal Law' 'environmental Law' 'criminal Procedure'] ['duplicity' 'rule Against Duplicity' 'single Criminal Enterprise' 'pollution of Waters' 'environment Protection Licence' 'withdrawal of Guilty Plea']

Case Brief

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Procedural Posture

Criminal Appeal Concerning Prosecution Summons for Offence of Polluting Waters / Appeal to the Court of Criminal Appeal From Orders of the Land and Environment Court

Legal Issues

  1. 1 ['Whether a summons charging one count of polluting waters over an extended period, involving multiple acts of water pollution, was bad for duplicity.' 'Whether the multiple discharges of effluent were sufficiently connected to constitute a single compendious instance of offending or single criminal enterprise.' "Whether the primary judge erred by deciding duplicity and ordering election and particularisation before determining the respondent's application to withdraw its guilty plea."]

Ratio Decidendi

The appeal was upheld because the multiple discharges of effluent from the STP into the tributary during the charge period were sufficiently connected by the statutory and licence framework, the same scheduled activity, same premises, same nature of discharge, same discharge point and same regulatory conditions to constitute a single compendious instance of offending capable of being charged as one count under s 120(1) of the Protection of the Environment Operations Act 1997. The primary judge also erred by ordering the EPA to elect and particularise a single offence before determining whether Charlotte Pass should be permitted to withdraw its existing guilty plea.

Court Disposition

Appeal upheld; order of the primary judge set aside; respondent's application concerning duplicity dismissed.

Orders

  • ['Uphold the appeal.' 'Set aside order 1 of Pepper J dated 21 May 2021.' 'Dismiss the application for order 1 and 2(a) in the Notice of Motion filed by the respondent in the Land and Environment Court proceedings 2020/200270 on 27 November 2020.']