McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [No 2] [2002] NSWCCA 24

McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [No 2] [2002] NSWCCA 24

The summons alleged that the appellant did pollute waters contrary to s 16(1) of the Clean Waters Act 1970 and thereby alleged all legal elements of the offence: a polluting, by a person, of any waters. The omitted detail as to the particular act of polluting was an essential factual ingredient concerning the manner in which the offence was allegedly committed, not a legal element. The defect was therefore within the curative operation of s 43 of the Land and Environment Court Act 1979, and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
19 February 2002
Procedural Posture
Criminal Appeal / Appeal to the New South Wales Court of Criminal Appeal From Orders of the Land and Environment Court Dismissing a Notice of Motion to Strike Out a Summons as Invalid or Permanently Stay Proceedings
Outcome
Appeal dismissed.
Legal Topics
['polluting Waters' 'validity of Summons' 'legal Elements of Offence' 'essential Factual Ingredients' 'curative Provisions' 'land and Environment Court Proceedings']
['criminal Law' 'environmental Law' 'criminal Procedure'] ['polluting Waters' 'validity of Summons' 'legal Elements of Offence' 'essential Factual Ingredients' 'curative Provisions' 'land and Environment Court Proceedings']

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Procedural Posture

Criminal Appeal / Appeal to the New South Wales Court of Criminal Appeal From Orders of the Land and Environment Court Dismissing a Notice of Motion to Strike Out a Summons as Invalid or Permanently Stay Proceedings

Legal Issues

  1. 1 ['Whether the omission from the summons of an allegation detailing the act of polluting said to have caused the pollution rendered the charge fatally defective.' 'Whether s 43 of the Land and Environment Court Act 1979 cured the defect identified in the summons.' 'Whether the act of polluting was a legal element of an offence contrary to s 16(1) of the Clean Waters Act 1970 or merely an essential factual ingredient.']

Ratio Decidendi

The summons alleged that the appellant did pollute waters contrary to s 16(1) of the Clean Waters Act 1970 and thereby alleged all legal elements of the offence: a polluting, by a person, of any waters. The omitted detail as to the particular act of polluting was an essential factual ingredient concerning the manner in which the offence was allegedly committed, not a legal element. The defect was therefore within the curative operation of s 43 of the Land and Environment Court Act 1979, and the appeal was dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "The Court affirms the order made by Pearlman J on 20 June 2001 dismissing the appellant's notice of motion filed on 15 June 2001."]