Kiangatha Holdings Pty Limited v Water NSW; Natale v Water NSW

1. [1]

   WARD P: I have had the advantage of reading in draft Davies J’s reasons with which I agree. I also agree with the order his Honour proposes.

2. [2]

   DAVIES J: By four separate summonses dated 27 September 2018 brought by Water NSW (the respondent), Kiangatha Holdings Pty Limited and Laurence Natale (together, the applicants) were each charged with two offences against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act).

3. [3]

   The offences relate to the pollution of water during the construction of a dirt road of between eight and ten kilometres in length on land owned by Kiangatha at Ganbenang, located approximately 15km west of Katoomba. Kiangatha is the defendant in proceedings 2018/295909 and 2018/295910, and Mr Natale, Kiangatha’s director, is the defendant in proceedings 2018/295911 and 2018/295912 by reason of the special executive liability provisions in s 169 of the POEO Act.

4. [4]

   Proceedings 2018/295910 (against Kiangatha) and 2018/29512 (against Mr Natale) concern what has been referred to as actual pollution. Proceedings 2018/295909 (against Kiangatha) and 2018/295911 (against Mr Natale) concern what has been variously referred to as “likely pollution” or “deemed pollution”. The differences will be explained later.

Legislative basis for the charges

1. [5]

   Section 120 of the POEO Act provides:

2. [6]

   The dictionary at the end of the POEO Act includes the following definitions of “water pollution or pollution of waters” and of “waters”:

3. [7]

   Section 169 of the Act relevantly provides:

Procedural history

1. [8]

   In Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2019] NSWLEC 185 (Kiangatha (No 1)), Robson J in the Land and Environment Court of New South Wales dismissed notices of motion brought by the applicants seeking that the summonses be set aside or otherwise permanently stayed on the grounds that the summonses were duplicitous and uncertain. Justice Robson found that there was no duplicity in the then filed amended summonses.

2. [9]

   The applicants appealed, and the Court of Criminal Appeal found that the summonses were duplicitous. The Court stayed the proceedings until the respondent elected and particularised a single offence contrary to s 120 of the POEO Act in relation to each summons: Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 (Kiangatha CCA).

3. [10]

   Subsequently, on 7 May 2021, the respondent by two notices of motion filed on that day, sought leave to rely on proposed amended summonses in each of the proceedings. The applicants opposed leave being given. On 31 January 2022 Robson J granted leave to the respondent to rely on the proposed amended summonses: Water NSW v Kiangatha Holdings Pty Limited; Water NSW v Laurence Natale [2022] NSWLEC 6 (Kiangatha (No 2).

4. [11]

   The applicants now seek leave to appeal to this Court against that judgment pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).

Background

1. [12]

   The factual background is set out in the judgment of Robson J in Kiangatha (No 2) as follows:

2. [13]

   The proposed amended changes to the summonses were described by Robson J in this way:

3. [14]

   As noted earlier, summonses 295910 and 295912 of 2018 alleged actual pollution. The particulars of the actual pollution charges were set out by Fagan J in Kiangatha CCA at [23]-[25] as follows:

4. [15]

   Summonses 295909 and 295911 of 2018 alleged likely pollution. The particulars of those charges were set out by Fagan J at [19]-[22] of his Honour’s judgment as follows:

The primary judge’s judgment

1. [16]

   The issues between the parties at the hearing of the notices of motion were identified by Robson J at [23] as follows:

2. [17]

   The primary judge set out ss 20 and 21 of the Criminal Procedure Act 1986 (NSW) and s 68 of the Land and Environment Court Act 1979 (NSW), being relevant provisions concerning amendment of process. His Honour discussed a number of the cases concerning amendments of, and defects in, indictments, and requirements for the content of a summons.

3. [18]

   The significance of the issue of whether the amended summonses amount to fresh charges is that s 216 of the POEO Act requires that proceedings for an offence under the Act be commenced not later than 12 months after the date on which the offence is alleged to have been committed. The last date on which the offences were alleged to have been committed was 10 October 2017. The original summonses were issued on 27 September 2018. As mentioned, leave was only sought to rely upon the proposed amended summonses on 7 May 2021.

4. [19]

   The main evidence before the primary judge consisted of affidavits from Liam Mulligan, a solicitor in the employ of the solicitor for the respondent, and an affidavit from James Caddey, a catchment assessments officer with the respondent. Mr Caddey was a qualified but not registered surveyor. His Honour also had an affidavit from Stephanie Vatala, the solicitor for the applicants, and affidavits from Geoffrey Meyer, a registered surveyor engaged by the applicants.

5. [20]

   Mr Mulligan said in his affidavit that his understanding, from what was said in Kiangatha CCA at [68], was that the respondent was entitled to make an election and undertake further particularisation of a single offence for each of the summonses on which the respondent would proceed. Accordingly, the respondent selected four locations to be the subject of proposed amended summonses, and decided to represent those locations graphically on maps to identify to the applicants the locations where it was alleged the earthworks had been carried out “which placed soil or sediment in a position where it was placed in, or was likely to fall or descent into” waters. The maps would also identify the particular waters which were the subject of the charges.

6. [21]

   Mr Mulligan described the preparation of the maps. He said that the aerial photography data available to the respondent was at a scale of 1:100,000, and that was sufficient to produce a large-scale overview map of the whole of Kiangatha’s property. However, it had a margin of error when zoomed in to the individual sites to produce individual maps. That meant that certain landscape features did not align with GPS data of the road and drainage lines with reasonable accuracy.

7. [22]

   Mr Mulligan said that in order to obtain more accurate aerial imagery of the individual sites, authorised officers of the respondent attended Kiangatha’s property on 20 April 2021 and undertook aerial photography using a drone. At the time further detailed GPS surveying of the ephemeral drainage lines at the individual sites was also undertaken. The further aerial photographs were compiled into individual map layouts for the individual sites, and then overlain with GPS data of the constructed road and the drainage lines creating maps for each of the individual sites at a scale of 1:1,250. Those composite aerial maps for the sites were attached to the proposed amended summonses.

8. [23]

   In his affidavit, Mr Caddey said that he had attended Kiangatha’s property on four occasions in 2017 and 2018 with members of the respondent’s compliance team, and assisted in the assessment of the recent roadworks that had been undertaken by carrying out surveying work in respect of the roadworks. On 20 June 2018 he took photographs and recorded coordinates, using the GPS function available on an iPhone and other field information of various points along the newly constructed road to enable the preparation of a map showing the approximate location and extent of the recent road construction works.

9. [24]

   Mr Caddey again attended the property 20 April 2021. He carried out further survey work in the company of a Mr Newport who was operating the drone. Mr Caddey used a combination of GPS and photogrammetry obtained from the drone, focusing on the individual sites. He described his and Mr Newport’s processes, including locating and obtaining GPS coordinates for a Permanent Mark. He also described the process at the individual sites including what was done to obtain GPS coordinates, when the drone was launched, and the surveys undertaken.

10. [25]

    Finally, in his affidavit, Mr Caddey responded to the evidence of Mr Meyer retained on behalf of the applicants. Mr Caddey noted that he and Mr Meyer had been requested to undertake “quite different tasks”. Mr Meyer had been asked to prepare a map which compared the location of the GPS coordinates for the sites shown in the proposed amended summonses with those of the Red Dot Locations shown on the Red Dot Map, which had previously been provided with the respondent’s response to the request for further and better particulars of the alleged offences in December 2018. In contrast, Mr Caddey had been making a survey of the physical location of the earthworks and preparing a map. In 2018, Mr Caddey located various physical features using the equipment he had at that time, while in 2021 he was able to obtain a more accurate representation of the location of the roads and watercourses.

11. [26]

    There was evidence from the applicants’ solicitor, Ms Vatala, that the respondent had flown a drone over Kiangatha’s property subsequent to the decision of this Court in Kiangatha CCA in a manner which constituted a trespass. The respondent claimed to be lawfully exercising powers under ss 196 and 198 of the POEO Act to conduct surveying operations. Part of Mr Caddey’s survey work was derived from the material that emanated from the flying of the drone.

12. [27]

    One of the principal issues between the parties concerned whether the new locations specified in the proposed amended summonses, called Sites A, B, C and D, corresponded with any of the original Red Dot Locations. Ms Vatala had stated in her affidavit that each of Sites A, B, C and D were spatially and physically different locations from any of the Red Dot Locations. The applicants relied in that regard on a survey plan prepared by Mr Meyer. Mr Meyer prepared a survey plan showing the location of each of the Sites and each of Red Dot Locations 2, 6, 5 and 18 (shown on the Red Dot map and being the closest Red Dot Locations to each of the Sites).

13. [28]

    The primary judge summarised Mr Meyer’s evidence in this way:

14. [29]

    The video footage was also shown at the hearing of the appeal.

15. [30]

    Having set out the parties’ submissions, the primary judge noted two important matters not in issue. First, the applicants did not seek to argue that the original summonses were a nullity and thus incapable of amendment. Secondly, the applicants did not dispute that the original summonses charged them with offences that were known to the law.

16. [31]

    His Honour said that the two issues raised by the applicants that were said to be key differences between the earlier form of the summonses and what was proposed, were the change in locations of the offences (from the Red Dot Locations to the Sites), and the reference to actual pollution occurring in the likely pollution charges.

17. [32]

    In relation to the change in locations of the offences, his Honour accepted the evidence of Mr Meyer and found that there was a difference in the locations of the geographic coordinates of Red Dot Locations 2, 6, 5 and 18 and the geographic coordinates of the Sites, and that the distance between the Sites and their respective closest Red Dot Locations varied between 34.1 metres and 85.7 metres.

18. [33]

    The primary judge accepted that there were minor differences in slope, vegetation coverage and proximity to ephemeral water courses and parts of the constructed road. However, his Honour did not consider those differences to be material in the circumstances where the locations of the respective geographic coordinates of the Sites and the closest Red Dot Locations were generally located within the same dry gully, were proximate to the same ephemeral water courses and the same parts of the constructed road, and had similar vegetation coverage.

19. [34]

    In that way, his Honour found that the differences in the locations of the geographic coordinates of the closest Red Dot Locations and the Sites represented the permissible particularisation of the location of the offences. His Honour noted that the applicants were also informed of the locations of the offences in each of the summonses through alternative visual methods, as the Red Dot Locations had been marked on the Red Dot Map in the respondent’s response to the request for further and better particulars of the alleged offences, and the Sites were marked on the aerial map and composite aerial maps attached to the proposed amended summonses. In that way his Honour found that the applicants were informed of the locations of the offences such that they could meet criminal charges.

20. [35]

    His Honour found that there was a clear visual correlation between the locations of the Sites and Red Dot Locations 2, 6, 5 and 18.

21. [36]

    In relation to the second difference identified by the applicants, that is where actual pollution occurred in the likely pollution charges, his Honour accepted the respondent’s submission that the likely pollution and actual pollution was the same offence, so to include alleged actual pollution in the likely pollution charges did not constitute a new charge. His Honour made reference in that regard to what was said by this Court in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at [82]:

22. [37]

    His Honour found further that, in circumstances where Site C and Site D were not materially different from Red Dot Locations 5 and 18, and the latter were identified during the particularisation of the original summonses as locations of alleged actual pollution in the actual pollution charges, his Honour did not consider that the reference to Site C and Site D in relation to the likely pollution charges was new evidence not previously provided to the applicants.

23. [38]

    His Honour next turned to consider statutory and common law requirements for amendments to summonses. His Honour held that there was a public interest in making the amendment as it facilitated the proper conduct of the criminal trial in relation to the commission of alleged offences in accordance with law. As a result, his Honour was of the view that it was also necessary in the interests of justice for the amendment to occur pursuant to s 68 of the Land and Environment Court Act 1979 (NSW) (LEC Act). His Honour held that both the statutory requirements pursuant to s 21(1) of the Civil Procedure Act 2005 (NSW) and s 68 of the LEC Act and common law requirements for the amendment of summonses had been fulfilled.

24. [39]

    Finally, his Honour considered the issue arising out of the use of the drone by the respondent pursuant to the statutory powers under ss 196 and 198 contained in Chapter 7 of the POEO Act. Those sections provide:

25. [40]

    His Honour considered that Parliament intended s 198 to have broad application, and that the powers under ss 196 and 198 should not be limited to empowering authorised officers to undertake investigations prior to the commencement of proceedings only.

26. [41]

    His Honour held that it did not necessarily follow that the advantage the prosecutor obtained by exercising the statutory powers could not be obtained in another manner which is permitted by procedural rules or rules of court. His Honour accepted the respondent’s submission in that regard that it could have obtained an accurate depiction of the locations using another method.

27. [42]

    His Honour then considered the matter on the basis that the exercise of the statutory powers provided the respondent with an advantage that would have been denied under Court Rules. On that basis, the primary judge concluded, that the advantage did not constitute an interference, or a “real risk” of interference, in the administration of justice. His Honour provided three reasons for that conclusion.

28. [43]

    First, the exercise of the statutory powers was being undertaken at an early stage of the proceedings for the purpose of electing and further particularising the offences with which the applicants were charged.

29. [44]

    Secondly, the respondent exercised the statutory powers in order to obtain aerial photography, because the existing aerial photography data available to the prosecutor suffered from inaccuracies. In that way, the material obtained was confirmatory in nature, given the other material which was already available to the respondent.

30. [45]

    Thirdly, in reliance on what was said by Mason CJ at Toohey J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 502, there was a distinction between the need to protect against requiring a person to testify to guilt and the production of documents which tend to implicate a person in the commission of an offence already in existence, on the basis of the privilege against self-incrimination. The investigative power being used here was not one that involved requiring the applicants to testify to guilt. In that way there was no need to circumscribe the broad powers in those sections.

Grounds of appeal

1. [46]

   The grounds of appeal in proceedings 295909 of 2018 and 295910 of 2018 are as follows:

2. [47]

   The grounds of appeal in proceedings 295911 of 2018 are identical to those for proceedings 295909 of 2018 but substituting “D” for “C”. Similarly, the grounds of appeal in proceedings 295912 are identical to those for proceedings 295910 but substituting “B” for “A”.

Submissions

1. [48]

   The applicants submitted that the common law provides that leave to amend criminal proceedings beyond the expiry of a statutory limitation period can only be granted in circumstances where there was notice of the amended charge in the sense that the defendant had been made to understand the true nature of the amended offence before the expiry of the limitation period. Unambiguous information defining the charge sought to be relied upon must be provided to a defendant within the relevant statutory time limit.

2. [49]

   The applicants submitted that the prosecutor impermissibly sought to amend the summonses by materially changing an essential element of the s 120 offences, being the location of the alleged act of pollution or likely pollution, by substituting new locations that were not disclosed to the applicants within time.

3. [50]

   The applicants submitted that the primary judge made findings not reasonably open to him at [142] – [144] of the judgment by finding that the differences in the Red Dot Locations (including locations 2 and 6) given by geographic coordinates in the prosecutor’s letter of 4 December 2018 and the new Sites A and B respectively and their different locations were not material.

4. [51]

   The applicants submitted that the original locations provided significant scope for defending the charges based on the need for the respondent to prove actual migration of sediment into the watercourse or dry watercourse. The applicants submitted that the new locations of Site A and Site B have been selected to be actually in creek beds, eliminating that ground of defence. That was submitted to show materiality in the change of the location. The applicants made similar submissions in relation to Sites C and D.

5. [52]

   The applicants submitted further in relation to the new specification of Sites C and D, the changes were material not only for the ability of the applicants to make out a defence of honest and reasonable mistake of fact, but to the prospects of the applicants raising a reasonable doubt as to proof of the element of whether the pollution was likely to migrate from the point of placement to a particular stretch or ephemeral stream.

6. [53]

   The applicants submitted that the primary judge erred in reasoning that the amended charges were within the factual matrix of the original charges. The applicants submitted that this required them to work out the charges alleged against them.

7. [54]

   The applicants submitted that the amended summonses should not have been the subject of leave as they were based on an inspection by a prosecutor during pending criminal proceedings that gave the prosecutor forensic advantages that the Court rules otherwise denied it, there being no power in the Court to order an inspection to a prosecutor during criminal proceedings or at all.

Nature of the appeal

1. [55]

   In DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 Spigelman CJ said:

2. [56]

   The application that Robson J had before him was an application to amend the summonses. Such an application is one concerned with procedure which brings it within the well-known rules of restraint from interference by an appellate court: DSJ v R; NS v R [2014] NSWCCA 77 at 11; DAO at [55].

3. [57]

   The result is that, of the two possible bases put forward by a number of the grounds of appeal, being whether the primary judge erred or whether a finding was not reasonably open to him, the latter is the appropriate inquiry on an appeal like the present.

Consideration

1. [58]

   The grounds of appeal comprehend two principal issues. The first issue (grounds 1 to 5 in proceedings 295909 and 295911, and grounds 1 to 6 in proceedings 295910 and 295912) is whether the locations now identified are different from the locations previously specified in the earlier form of the summonses. In the course of his submissions, Mr Ireland of counsel for the applicants made clear that ground 1 was asserting, in substance, that the primary judge erred in permitting the amendments, and that grounds 2 to 5 and 2 to 6 respectively were particulars of ground 1.

2. [59]

   The second issue concerns the use of evidence obtained from what is said to be the trespass onto the applicants’ land (grounds 6 to 8 in proceedings 295909 and 295911), and grounds 7 to 9 in (proceedings 295910 and 295912).

3. [60]

   The first significant issue between the parties both before Robson J and in this Court concerned the location of the sites where the actual and deemed pollution offences were said to have occurred. In the respondent’s letter of particulars of 4 December 2018, the location of the offending in relation to the earlier form of the summonses was said to be the Red Dot Locations given by geographic coordinates. In the proposed amended summonses the location of the sites where the offences were said to have been committed were described as Sites A, B, C and D marked on aerial photographs.

4. [61]

   As noted earlier, the primary judge accepted the evidence of Mr Meyer that there was a difference in the locations of geographic coordinates of Red Dot Locations 2, 6, 5 and 18, and the geographic coordinates of the Sites, and that the distance between the Sites and their respective closeness to Red Dot Locations varied between 34.1 metres and 85.7 metres. His Honour did not, however, consider the differences to be material in circumstances where the locations of the respective geographic coordinates of the Sites and closest Red Dot Locations were generally located within the same dry gully, were approximate to the same ephemeral water courses and the same parts of the constructed road, and had similar vegetation coverage. His Honour found that the differences in the locations of the geographic coordinates of the closest Red Dot Locations and the Sites represented the permissible particularisation of the location of the offences.

5. [62]

   The primary judge noted that the applicants were also informed of the locations of the offences in each of the summonses through alternative visual methods, as the Red Dot Locations had been marked on the Red Dot Map in the respondent’s response to the request for further and better particulars of the alleged offences, and the Sites were marked on the aerial map and composite aerial maps attached to the proposed amended summonses.

6. [63]

   The primary judge found that there was a clear visual correlation between the locations of the Sites and Red Dot Locations 2, 6, 5 and 18. He considered that that correlation indicated that the locations of the Sites were previously visually identified to the applicants as the closest Red Dot Locations on the Red Dot Map.

7. [64]

   His Honour found that after reviewing the locations of geographic coordinates of the closest Red Dot Locations and the Sites and the visual representation on the maps, the placement of soil and sediment in either of the locations of Site A and Site B or Red Dot Locations 2 and 6 constituted the placement of soil and sediment in the bed of the same dry gully. His Honour came to the same conclusion in relation to the locations of Site C and Site D and Red Dot Locations 5 and 18.

8. [65]

   Mr Ireland relied on Director of Public Prosecutions v Kypri (2011) 33 VR 157; [2011] VSCA 257 to submit that, if there was not disclosure of the true nature of the offence within the limitation period, the amendments could not be permitted. Here, the true nature of the offences was disclosed. The differences between what was previously alleged and what is now alleged resulted from a refinement of the locations. Where the issue is where soil or sediment is placed to constitute an offence issues are bound to arise about the precise location of the placement. Questions of materiality will arise in relation to variations in the precise identification of the placement.

9. [66]

   As the primary judge said, the essential elements of the actual pollution charges included the placement of soil and sediment in the bed of a dry gully and the essential elements of the likely pollution charges included the placement in a location from which it was likely to move into the bed of a dry gully. The amended summonses refined the locations. The question is ultimately whether it was open to the primary judge to reach the view about whether the refinements in the amended summons constituted a material change.

10. [67]

    The applicants effectively invite this Court to take a different view of the factual conclusions reached by the primary judge and set out at [32] to [37] above. The principal factual matter in dispute before the primary judge was whether the locations of Sites A, B, C and D sufficiently correlated with Red Dot locations 2, 6, 5 and 18. This Court had the advantage of reviewing the location of the Sites and the Red Dot locations on the one map, and of viewing the videos taken moving between each of the corresponding Sites and locations.

11. [68]

    It cannot be said that the primary judge’s conclusions on those factual issues were not reasonably open to him, for the reasons his Honour gave. Further, the factual findings were made in order to determine an interlocutory application seeking amendment of the summonses. As Spigelman CJ said in DAO at [55], a high degree of restraint is required by an appellate court when asked to interfere with a determination of an interlocutory matter involving practice and procedure. A factual error by a primary judge will not normally satisfy the requirement for the grant of leave required by s 5F: R v Matovski (1989) 15 NSWLR 720 at 722-723.

12. [69]

    No basis is shown for interfering with the determination of the primary judge concerning the locations of the alleged offending, and the materiality of the changes.

13. [70]

    Grounds 1 to 5 in proceedings 295909 and 295911, and grounds 1 to 6 in proceedings 295910 and 295912 should be rejected.

14. [71]

    The applicants submitted that on a proper construction, the Ch 7 powers did not authorise entry for the sole purpose of obtaining evidence and information for use in pending criminal proceedings. That is particularly so, it was submitted, because Ch 7 is the section of the Act headed and expressly concerned with “Investigation”, whereas Ch 8 is headed and concerns “Criminal and Other Proceedings”. Reliance was placed on s 35(1)(a) of the Interpretation Act 1987 (NSW).

15. [72]

    The applicants submitted in the alternative that the use of those powers in the circumstances is an interference with the procedure of the Court because it conflicts with the Court rules and is a contempt of Court. The use of these powers here was to obtain an advantage the curial rules otherwise denied the prosecutor. The applicants submitted that any advantage secured by a prosecutor contrary to legal principle compromises criminal proceedings if the fruits of that contravention are then relied upon.

16. [73]

    The applicants submitted that the primary judge erred in finding that the forensic advantage gained by the inspection could have been obtained otherwise under the Court rules.

17. [74]

    As the applicants submitted, the powers in ss 196 and 197 are within Ch 7 of the POEO Act, and that chapter is headed “Investigation”. However, s 184, the first section in Ch 7, provides:

18. [75]

    As can be seen, the powers in Ch 7 may be exercised “for determining whether there has been compliance with or a contravention of this Act”, and “generally for administering this Act and protecting the environment”. There is no limitation within the Act which provides any limit on the exercise of the powers once criminal proceedings have been commenced.

19. [76]

    Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 was an appeal principally turning on whether a privilege against self-incrimination applied to a corporation. The issue arose because after proceedings had been commenced by the EPA charging Caltex with an offence of polluting the ocean in contravention of the Clean Waters Act 1970 (NSW), the EPA issued a Notice to Produce and a Notice under s 29(2) of the Clean Waters Act requiring production of documents. Section 29(2)(a) provided that an authorised officer might by notice in writing require the occupier of any premises from which pollutants were being discharged into waters to produce documents relating to the discharge of the pollutants.

20. [77]

    In his judgment, McHugh J said (at 557-559):

21. [78]

    The joint judgment of Mason CJ and Toohey J said (at 507):

22. [79]

    In NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252, Spigelman CJ (Hidden and Latham JJ agreeing) said:

23. [80]

    It was significant, as the primary judge found, that no issues regarding the privilege against self-incrimination arose in relation to the evidence gathered by the drone, because there were no testimonial aspects involved. That was a matter which significantly distinguished the present proceedings from the notices issued in Nutricia, or even the notices for production of documents in EPA v Caltex. The purpose of the use of the drones was, as the primary judge said, because the existing aerial photography data available to the prosecutor suffered from inaccuracies. The only advantage obtained by the prosecutor was the benefit of greater accuracy in pinpointing the locations where the pollution was alleged to have occurred or was likely to occur. In that way, the sole and dominating purpose was obtaining evidence.

24. [81]

    Although the applicants sought to rely on the apparent approval by Spigelman CJ in Nutricia of the passage from the judgment of Deane, Dawson and Gaudron JJ in EPA v Caltex at 537, this reliance is misplaced. The passage was directed specifically to the issue of self-incrimination because of the requirement in Nutricia to answer to what amounted to interrogatories after criminal proceedings had commenced. No question of self-incrimination arises in the present case and could not, in any event, arise insofar as the corporate applicant is concerned by reason of the decision in EPA v Caltex.

25. [82]

    In relation to the primary judge’s conclusions at [204] of his Honour’s judgment (summarised at [40] above), no detail was provided about what alternative methods were available, and how they might have been available under the court rules. However, these conclusions, even if wrong, do not seem to me to be determinative of the matter.

26. [83]

    In the first place, the provisions of ss 196 and 198 should not be read restrictively to prevent or limit their application after the commencement of criminal proceedings: EPA v Caltex at 507 and 557-559. Secondly, there is no “real risk” of interference with the administration of justice when the advantage obtained was merely a greater clarification of the locations of the relevant sites which were already known to the applicants: Nutricia at [143] and [145]. The applicants’ submission that “any advantage” secured by the prosecutor compromises criminal proceedings is contrary to what was said in Nutricia.

27. [84]

    Thirdly, the primary judge was correct to note the distinction between orders or powers that might require a person to testify to their guilt even by the production of documents, and the use of a power here to do no more than gather, or refine, the evidence. As noted earlier, the protection against self-incrimination is only relevant to Mr Natale, but not to Kiangatha.

28. [85]

    Grounds 6 to 8 in proceedings 295909 and 295911, and grounds 7 to 9 in proceedings 295910 and 295912 should be rejected.

Conclusion

1. [86]

   I propose the following order:

   1. (1)

      Refuse leave to appeal.

2. [87]

   BUTTON J: I agree with Davies J.