Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263

Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263

The charges laid against the applicants under s 120 were duplicitous because they each alleged multiple, separate and complete acts of pollution (placement of pollutant) occurring at distinct times and locations; neither the exception for continuing offences nor the exception for single criminal transaction was applicable on these facts. The rule against duplicity requires separate charges for each completed offence unless an exception is strictly met.

Jurisdiction
Australia
Judgment Date
19 October 2020
Procedural Posture
Criminal Appeal / Appeal From Land and Environment Court Decision on Strike Out/stay Application
Outcome
Appeal upheld; orders of Land and Environment Court set aside; further proceedings stayed until respondent elects and particularises a single offence per summons.
Legal Topics
['duplicity of Charges' 'prohibition of Pollution' 'particularisation of Offences' 'criminal Procedure']
['criminal Law' 'environmental Law'] ['duplicity of Charges' 'prohibition of Pollution' 'particularisation of Offences' 'criminal Procedure']

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Procedural Posture

Criminal Appeal / Appeal From Land and Environment Court Decision on Strike Out/stay Application

Legal Issues

  1. 1 ['Whether the offences charged under s 120 of the Protection of the Environment Operations Act 1997 (NSW) are duplicitous due to covering multiple separate acts in one charge.' 'Whether the alleged offending could be characterised as a continuing offence or a single criminal transaction for the purposes of avoiding duplicity.' 'What constitutes a single offence or separate offences for pollution under s 120 in the present factual context.']

Ratio Decidendi

The charges laid against the applicants under s 120 were duplicitous because they each alleged multiple, separate and complete acts of pollution (placement of pollutant) occurring at distinct times and locations; neither the exception for continuing offences nor the exception for single criminal transaction was applicable on these facts. The rule against duplicity requires separate charges for each completed offence unless an exception is strictly met.

Court Disposition

Appeal upheld; orders of Land and Environment Court set aside; further proceedings stayed until respondent elects and particularises a single offence per summons.

Orders

  • ['Leave granted to the applicants pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) to appeal against the orders of the Land and Environment Court made 20 December 2019 in proceedings 2018/295909, 2018/295910, 2018/295911 and 2018/295912.' 'Appeal upheld.' 'Order numbered (1) in each of proceedings 2018/295909,...