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Jeremy Gans

29 Oct, 9 tweets, 2 min read

"These definitions are so wide that soil or sediment may constitute a pollutant and placement of such material in the bed of a dry gully may constitute water pollution.": caselaw.nsw.gov.au/decision/1751e…

"In the present case the charges have been particularised in a manner that does not involve the alleged pollutant having entered any body of water, either flowing or still. The so-called “likely pollution charges” do not even involve the soil having actually reached a dry bed".

"it does not follow from recognising the construction as a single engineering project that one may regard numerous individual acts, committed in the course of that project and of a kind that s 120 forbids, as an “overall transaction” from the point of view of criminal pleading."

"The fact that all placements of soil took place during five months of construction of one road means that the placements of soil in proximity to widely separated gullies necessarily took place at distinct times and locations as work progressed."

"There must certainly be a lower limit to the analysis of soil placements along this road into separate infringements of s 120. I accept that it would not be necessary for a prosecutor to lay a separate charge for each bucket load from an excavator or each thrust of a bulldozer."

"what the respondent has endeavoured to consolidate into a single instance of infringement of s 120, to be prosecuted on one count, is far more ambitious than joining up as one event several bucket loads or dozer pushes at a single location near a single gully."

"the activity at the three locations the subject of the actual pollution charges amounts to the commission of at least three separate offences against s 120. I say “at least” because further examination may reveal a still greater number of separate offences."

"Judging by the number of cases in which New South Wales authorities have endeavoured to prosecute multiple discrete infringements of environment protection laws on single count summonses, it may be inferred that such authorities have gained the impression that the rule...

... against duplicitous pleading is to be applied more loosely in relation to this type of offence than in the administration of the general criminal law. That is not so. The rule must be applied to prosecutions of offences of all kinds."

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