Wakool Shire Council v Garrision Cattle Feeders Pty Limited [2010] NSWLEC 199

Wakool Shire Council v Garrision Cattle Feeders Pty Limited [2010] NSWLEC 199

Section 144(1) of the Protection of the Environment Operations Act 1997, as amended, creates three separate offences (using, causing, or permitting land to be used as a waste facility without authority). The practice and weight of authority require a Prosecutor to elect and charge only one (or separately charge each) rather than combining the alternatives in a single charge. The existing charge as framed was defective for duplicity or uncertainty; the Prosecutor is granted leave to amend but must elect between the available formulations and, if wishing to pursue more than one, must charge them separately.

Jurisdiction
Australia
Judgment Date
15 October 2010
Procedural Posture
Criminal Prosecution (class 5) / Interlocutory Determination of Motions on Form of Charge and Requirement for Election
Outcome
Prosecutor's and Defendant's motions both upheld in part; leave granted to amend, but election required; costs order in Defendant's favour for hearing costs.
Legal Topics
['duplicity in Charges' 'particularisation' 'protection of the Environment Operations Act 1997' 'election Between Alternative Charges' 'uncertainty in Criminal Charges']
['criminal Law' 'environmental Law' 'procedural Law'] ['duplicity in Charges' 'particularisation' 'protection of the Environment Operations Act 1997' 'election Between Alternative Charges' 'uncertainty in Criminal Charges']

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Procedural Posture

Criminal Prosecution (class 5) / Interlocutory Determination of Motions on Form of Charge and Requirement for Election

Legal Issues

  1. 1 ['Does s 144(1) of the Protection of the Environment Operations Act 1997 create one offence or multiple offences?' 'Is the charge as framed against the Defendant bad for uncertainty or duplicity because it states alternatives?' "Is the Prosecutor required to elect between alternative formulations ('used', 'caused', or 'permitted') in s 144(1)?"]

Ratio Decidendi

Section 144(1) of the Protection of the Environment Operations Act 1997, as amended, creates three separate offences (using, causing, or permitting land to be used as a waste facility without authority). The practice and weight of authority require a Prosecutor to elect and charge only one (or separately charge each) rather than combining the alternatives in a single charge. The existing charge as framed was defective for duplicity or uncertainty; the Prosecutor is granted leave to amend but must elect between the available formulations and, if wishing to pursue more than one, must charge them separately.

Court Disposition

Prosecutor's and Defendant's motions both upheld in part; leave granted to amend, but election required; costs order in Defendant's favour for hearing costs.

Orders

  • ["The Prosecutor is given leave to amend the charge to allege 'cause the land to be used'." 'The Prosecutor is ordered to elect from among the three s 144(1) formulations (use, cause, or permit), and if electing more than one, must charge them as separate offences.' "The Prosecutor to pay the Defendant's costs of...