Background
The Environment Protection Authority (EPA) brought Class 5 criminal proceedings in the Land and Environment Court against four defendants arising from the alleged supply of mulch contaminated with asbestos and other prohibited substances from a facility at Bringelly, New South Wales. VE Resource Recovery Pty Ltd (VERR) was charged with breaching a condition of its environment protection licence under s 64(1) of the Protection of the Environment Operations Act 1997 (POEOA). Its director, Arnold Vitocco, faced derivative liability under the executive liability provision in s 169(1) of that Act. Partners Freescale Trading Pty Ltd and Runkorp Pty Ltd, who operated the facility under the name “Greenlife Resource Recovery Facility,” were charged with conducting licensed activities without an EPL (s 48(2)), causing asbestos waste to be re-used contrary to s 144AAB, and breaching a 2016 mulch resource recovery order under cl 93(7) of the Protection of the Environment Operations (Waste) Regulation 2014. The EPA’s investigation had spanned over 300 sites and yielded 102 summonses filed in December 2024.
The proceedings involved a voluminous evidentiary record — including approximately 181 gigabytes of data served on the defendants in January 2025, a 325-page statement of facts with 794 footnotes, and successive tranches of affidavits from laboratory technicians, environmental scientists, and site inspectors deposing to sampling, chain of custody, and asbestos analysis. Compliance with the court-ordered disclosure timetable proved difficult: by the time of the motions, the EPA had served affidavits in multiple tranches, some after a court-imposed deadline that required leave for further service.
Two competing notices of motion came before Pepper J for determination. The EPA sought leave to file and serve 17 additional affidavits constituting supplementary evidence. The defendants, characterising the EPA’s rolling disclosure as an unfair piecemeal approach that impeded proper preparation of their defence, sought either an outright stay of the criminal proceedings or, in the alternative, a conditional stay until the EPA provided all outstanding witness statements, affidavits from witnesses who declined to provide written evidence, and an amended s 247E notice and statement of facts under the Criminal Procedure Act 1986 (CPA).
The Court’s Holding
Pepper J upheld the EPA’s supplementary evidence motion and dismissed the defendants’ stay application. On the leave question, the Court found that the defendants had suffered no actual prejudice from the proposed late filing of the 17 affidavits, most of which were short technical statements from laboratory or environmental personnel deposing to sampling and analysis work. By contrast, denying leave would cause real prejudice to the EPA’s ability to formally prove its case. The Court noted that the EPA had made reasonable attempts to obtain the affidavits prior to the s 247E deadline, including writing to reluctant witnesses and warning them of potential subpoenas, and that the remaining delay was largely attributable to witnesses’ initial unwillingness to provide written evidence rather than prosecutorial inaction.
On the stay application, the Court applied the established legal principles governing stays of criminal proceedings, which require demonstration of exceptional circumstances and a real risk of an unfair trial that cannot be remedied by lesser means. Pepper J found that no such exceptional circumstances had been demonstrated. While the defendants’ complaint about the piecemeal and open-ended character of the EPA’s disclosure had some foundation, any resulting prejudice was capable of being cured through appropriate case management directions rather than the drastic remedy of a stay. The conduct of the EPA, though at times unsatisfactory in its management of the disclosure timetable, did not reach the threshold required to warrant halting the proceedings.
The formal orders are set out at paragraph [120] of the judgment. Costs of both motions were reserved.
Key Takeaways
- A court may grant leave to a prosecutor to adduce supplementary evidence after a court-imposed deadline where there is no actual prejudice to the defendants and denial would prejudice the prosecution’s ability to prove its case.
- Rolling or piecemeal service of prosecution evidence, while potentially criticisable, does not by itself justify a stay of criminal proceedings; defendants must demonstrate exceptional circumstances and an unfair trial risk that cannot be cured by case management.
- In complex environmental criminal prosecutions involving large witness pools and scientific sampling evidence, courts will favour targeted case management orders over stays as the remedy for disclosure management failures.
- The executive liability provision in s 169(1) of the POEOA means a company director is taken to have committed the same offence as the corporation unless they prove they lacked influence over the relevant conduct or exercised all due diligence to prevent it.
- Witnesses who decline to provide written statements may still be compelled to give oral evidence at hearing; a prosecutor’s s 247E notice may identify such persons as proposed oral witnesses even where no affidavit or statement has been obtained from them.
Why It Matters
This decision provides practical guidance on the management of large-scale environmental criminal prosecutions, which commonly involve dozens of scientific witnesses, multi-site investigations, and evidence gathered over extended periods. It confirms that courts will use their inherent case management powers to accommodate genuine evidentiary complexity while maintaining fair trial rights, preferring to cure procedural prejudice through tailored directions rather than the blunt instrument of a stay. For practitioners, it underscores that obtaining a stay on the basis of prosecutorial disclosure delays requires a high threshold — documented actual prejudice and an absence of lesser remedies — not merely inconvenience or the disruption of defence preparation.
The case also illustrates the breadth of environmental criminal exposure available under the POEOA framework, with a single contaminated-mulch operation giving rise to overlapping charges against corporate operators, licensees, and individual directors covering unlicensed activity, licence breach, asbestos waste re-use, and breach of resource recovery orders. The executive liability mechanism in s 169(1) remains a significant tool for the EPA in holding individuals accountable for corporate environmental offending.