A recent decision of the Land and Environment Court highlights the considerations that arise when amending charges defective because of duplicity. A duplicitous charge is one in which the charge, on its face, alleges more than one offence.
The defendant operated a “temporary mobile asphalt batching plant” and had been charged with a breach of each of conditions 4 and 6 of the Consent between 10 January and 18 March 2015 as follows:
4) The plant production must not exceed 150 tonnes per day at any time during operations.
6) The number of trucks accessing and/or exiting the site is not to exceed twelve (12) per day at any one time.
Justice Moore had held, and the NSWCCA had confirmed (see Snowy Monaro Regional Council v Tropic Asphalt Pty Ltd  NSWCCA 202) that by nominating a range of dates (ie over some 40 days) for breaching each of the consent conditions, the two charges were duplicitous and thus not capable of being answered by the defendant. As the relevant conditions both imposed daily limits, each day that the conditions had been breached constituted a separate offence.
The proposed amendments
This subject decision (Snowy Monaro Regional Council v Tropic Asphalt Pty Ltd  NSWLEC 182) concerned the prosecutor’s attempt to remedy the defective charges by amending them to allege a breach of the conditions on each of the days that the consent conditions were contravened. Some 80 changes were therefore being proposed to replace the original two (2).
The Court agreed that it was possible for charges to be amended to cure the duplicity provided it would not cause an injustice per s21(1) of the Criminal Procedure Act:
21 Orders for amendment of indictment, separate trial and postponement of trial
(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.
But the Court held that the proposed “multi-count” amendment would create an injustice.
Firstly, and despite the principle of totality in sentencing, the multi-count amendment would still have the effect of opening up the defendant to a significantly higher maximum penalty exposure. The aggregate of the maximum penalties for the “multi-count” offences were $45.1 million and $44 million respectively.
Secondly, the proposed amendments would have had the effect of laying new charges against the defendant for which the prosecutor would otherwise have been statute barred; this given that the alleged offences occurred in 2015 and the amendments were being sought in 2019. The Court held that it would be unjust, in effect, to permit the Prosecutor to revisit its original forensic decision about the laying of charges by now permitting the multi-count amendments.
There was further potential for injustice as regards reputational risk arising from the potential for the making of publication orders. If a publication order was made relating to conviction on a multitude of counts, the risk of such reputational damage would be enhanced.
Having regard to the above, the Court determined that it would only permit an amendment of the charges so as to allege a breach of each condition on a single nominated date.
Prosecuting authorities, firstly, need to be mindful of how criminal charges are drafted to avoid duplicity arising. If there are multiple contraventions, these either need to be charged separately or the prosecutor must pick a representative charge and abandon the balance of the criminality. This applies to court attendance notices, summonses and even penalty notices (as these can be a precursor to a prosecution). Not only does the charge need to be clear and precise, but prosecutors must be mindful not to “bundle up” a duplicity of offences into a single charge.
Secondly, if an amendment is required, the question of injustice to the defendant must be given careful consideration. The case suggests that particularly where the amended charges would be out of time at the time of the amendment, any enhanced potential liability is likely to be considered an injustice.