Bentley (for National Parks & Wildlife Service v Gordon; Bentley

CATCHWORDS: Offence if a person by an act or omission does anything that causes damage to the habitat of a threatened species - charges that by slashing and clearing vegetation and/or crushing vegetation and/or constructing access tracks caused damage - prosecution proposed to rely on each in the alternative - whether act causing damage an ingredient of offence - whether charges bad for duplicity - held yes and yes.

Johnson v Miller (1937) 59 CLR 467; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] 50 NSWLR 127; Parker v Sutherland (1917) 116 LT 820; CASES CITED: S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77.

Jason Robert Bentley (for National Parks & Wildlife Service - Claimant in both matters PARTIES: Hugh Charles Gordon - Opponent in 2004/1849 B.G. P. Properties - Opponent in 2004/1853

P W Larkin & C D Norton - Claimant COUNSEL: S Rushton SC & P Strickland - Opponent

Vivienne Karin Ingram, Solicitor of the National Parks and Wildlife Service - Claimant SOLICITORS: P Hines, Belmont - Opponent

LOWER COURT JURISDICTION: Land and Environment Court

IN THE COURT OF CRIMINAL APPEAL 2004/1849 2004/1853

GILES JA BUDDIN J SMART AJ

BENTLEY (for National Parks & Wildlife Service) v Hugh Charles GORDON BENTLEY (for National Parks & Wildlife Service) v B.G.P. PROPERTIES PTY LIMITED

JUDGMENT 1 GILES JA: BGP Properties Pty Ltd ("BGP") owned land at Redhead. Mr Hugh Gordon was the controller of BGP. In proceedings commenced by summons in the Land and Environment Court, Mr Gordon and BGP were prosecuted for breaches of s 118D(1) of the National Parks and Wildlife Act 1974. 2 These were applications for leave to appeal from a decision of Cowdroy J giving leave to amend the summonses. They were heard on full submissions so that, if leave were granted, the appeals could be decided. The claimants contended that leave to amend should have been refused by Cowdroy J because the summonses as amended would be duplicitous.

The amendments 3 Section 118 D(1) provided - " 118D Damage habitat of threatened species, endangered population or endangered ecological community

(1) A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, an endangered population or an endangered ecological community if the person knows that the land concerned is habitat of that kind.

Penalty: 1,000 penalty units or imprisonment for 1 year or both." 4 There were four summonses, two in which Mr Gordon was the defendant and two in which BGP was the defendant. 5 One of the summonses in which Mr Gordon was the defendant originally charged - " … That between 1 August 2001 and 7 December 2001 at Redhead in the State of New South Wales, he did, by an act, namely by slashing or clearing vegetation on Lot 1 DP 42613 and Lot 4 DP 248860, caused damage to the habitat of a threatened species, to wit Tetratheca juncea , knowing that the land concerned was habitat of that kind, contrary to s 118D(1) of the National Parks and Wildlife Act 1974 ('the Act')." 6 A like charge was made against Mr Gordon in respect of the threatened species Crinia Tillula. Tetratheca juncea is a plant; Crinia Tillula is a froglet. 7 The charges were effectively repeated against BGP as breaches by it of s 118D(1) because Mr Gordon was its controller (see s 117(5) of the Act) 8 The opponent applied for leave to amend the summonses by deleting the words "slashing or clearing vegetation" and substituting the words "slashing, clearing and/or crushing vegetation and/or constructing access tracks", and also by making the "and" between the two lots "and/or". In correspondence prior to the hearing of the application he confirmed that - " … it will be the Prosecutor's case at the trial that each of: (a) slashing vegetation; (b) clearing vegetation; (c) crushing vegetation; (d) constructing access tracks; in and of itself caused 'damage' to the habitat of the relevant threatened species, and if the Court finds that any one of them caused such damages the relevant offence will proved (subject to the other elements of the offence under s 118D being made out)." 9 Cowdroy J granted the leave requested by the opponent.

Duplicity 10 Leave could be given to make any amendment "necessary in the interests of justice" (Land and Environment Court Act 1979, s 68(1)). Cowdroy J considered that there was no duplicity because - "14. The Court is satisfied that the proposed amendments relate to the manner in which the damage is alleged to have occurred. The offence alleged against each defendant is stated to be a breach of s 188D of the NP & W Act, namely that damage has been caused to the habitat of a threatened species. It is the resultant damage by the offender which creates the offence, as distinct from the conduct which causes the damages. It follows that if more than one activity resulted in damage, it is unnecessary that separate charges be formulated for each different activity. 15 … The legislation would be quite unworkable if separate summons [sic] were required for each and every act said to be involved in the resultant damage to the habitat, and s 118D (1) NP & W Act does not contemplate that such conduct should be the subject of separate charges." 11 The essence of duplicity is that a defendant should not be charged in one count with commission of two or more separate offences, see for example Walsh v Tattersall (1996) 188 CLR 77 at 84, 87, 104. In S v The Queen (1989) 168 CLR 266 at 284 Gaudron and McHugh JJ said - "The rule against duplicitous counts in an indictment originated as early as the seventeenth century. See, eg, Smith v Mall; R v Stocker. It may be, as suggested by Salhany in 'Duplicity - Is the Rule Still Necessary?', Criminal Law Quarterly, vol 6 (1963) 205, at pp 206-207, that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. See, generally, R v Sadler; R v Hollond , per Lord Kenyon CJ See, as to the need for distinct consideration in relation to penalty, R v Stocker; R v Sadler; R v Morley; Cotterill v Lempriere , per Lord Coleridge CJ See, as to the availability of a plea in bar, R v Robe; Davy v Baker; R v Wells; Ex parte Clifford; R v Surrey Justices; Ex parte Witherick .

The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. See, eg, R v Robe where it was said 'this is so general a charge, that it is impossible any man can prepare to defend himself on this prosecution ... ' See also R v Hollond , per Lord Kenyon CJ; R v North; R v Morley ; and Cotterill v Lempriere , per Lord Esher MR Of course, the degree of unfairness or prejudice involved will vary from case to case, and it may be, as suggested by Professor Glanville Williams in 'The Count System and the Duplicity Rule' [1966] Criminal Law Review 255, at p 264, that on occasions the uncertainty is not 'such as to disable the defendant from meeting the charge'." (citations omitted) 12 The sometimes difficulty in applying the rule against duplicitous counts, with particular complications in the case of offences involving closely related events or constituted by continuous activity, is well known. The opponent did not suggest that considerations of duplicity were inapplicable to the offence created by s 118D(1), or that the application of the rule was modified in the case of trial by judge alone. 13 The claimants submitted that, by the words "by an act or an omission", the particular act or omission which caused damage to the habitat was made an ingredient of the offence, so that (for example) causing damage to the habitat by slashing vegetation was a separate offence from causing damage to the habitat by constructing access tracks. It relied in particular on McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] 50 NSWLR 127. In that case the charge was polluting waters contrary to s 16(1) of the Clean Waters Act 1970, and it was said at [47] that some reference to the conduct said to constitute the act of polluting was required and at [49] that both the polluting and the pollution were essential ingredients of the offence. In the claimants' submission, Cowdroy J erred in finding the offence under s 118D(1) in the damage as distinct from the conduct which caused the damage. 14 The opponent purported to uphold the reasoning of Cowdroy J, but in substance acknowledged that the offence under s 118D(1) was constituted by a person doing something (including omitting to do something) that caused damage to the habitat, so that the act or omission was an ingredient of the offence. It was submitted, however, that the rule against duplicity had to be applied in a practical manner, and that where the cumulation of separate acts caused damage to the habitat the acts could be particularised as set out in the amended summonses. The opponent's written submissions included - "The respondent's case is that the appellants caused damage to the habitat of the threatened species in a number of different ways. For example, Mr Gordon used at least two types of heavy machinery to clear the site - a flail mower and a 6 tonne excavator. The flail mower caused damage to relevant habitat by clearing large parts of the site. The 6 tonne excavator caused damage to relevant habitat by constructing access tracks, which cleared smaller parts of the Site, namely the access tracks. The damage caused by the 6 tonne excavator included both the clearing and crushing the habitat of the Tetratheca. The clearing of the Site by the flail mower caused damage to the surrounding soil of the Tetratheca and also physically crushed some of the Tetratheca plants. The heavy machinery was used over several days within the period specified in the summones (1 August to 7 December 2001)." 15 A number of cases were cited by each of the claimants and the opponent. Cases turn on their own legislation and facts, and I do not think it profitable to repeat the submissions upon the cases. 16 Section 118D(1) in terms provides that a person must not "do anything" that causes damage to the habitat. By the preceding words, a person may do something by an act or an omission. The offence is made out when the act or omission causes damage to the relevant habitat, if also the person knows that the land concerned is a habitat of that kind. In McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority the polluting was an ingredient of the event as well as the pollution, and in s 118D(1) the act or omission causing damage was an ingredient of the offence as well as the damage. 17 This is underlined by the defences in s 118D(2) - "(2) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the offence: (a) was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995, or (a1) was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995

(b) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979,

(ii) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or

(iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (c) was authorised to be done by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or

(d) was authorised by, and done in accordance with, a conservation agreement, or

(e) was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995." 18 Section 118D(2) referred to the act constituting the offence, and by regard to the following alternatives the act was the act or omission for which permission was given. It was not the resulting causation of damage. 19 It does not follow that Cowdroy J's decision was incorrect. If the opponent's case was that the damage to the habitat had been caused by the cumulation of a number of acts or omissions, a charge could have been framed in terms which enabled him to rely on the course of conduct. I suspect that that is what his Honour had in mind. On the other hand, if the opponent's case was that the damage to the habitat was caused by one act or omission, or alternatively another act or omission, the separate acts or omissions would mean separate offences. 20 The difficulty lay in the framing of the amended summonses and the case proposed by the opponent, as explained in the prior correspondence and in the opponent's submission set out above. The opponent chose to use "and/or", deliberately so according to the correspondence prior to the hearing of the application and confirmed in submissions in this Court. It is evident that he proposes so to conduct his case as to maintain that an offence will be made out if he proves clearing vegetation without more, that an offence will be made out if he proves constructing access tracks without more, and so on, as the act or omission causing damage to the habitat; further, that an offence will be made out if he proves damage by activity on either of the lots. As is said in the written submission, he alleges damage caused in a number of different ways, and the different ways are alternatives. In my opinion this was self-inflicted and self-confessed duplicity.

The result 21 The opponent's application to Cowdroy J should have been, and should be, dismissed; that does not mean that the opponent can not make a further application to amend. Cowdroy J reserved the costs of the applications for consideration at the hearing of the summonses. That can remain. The claimants should have their costs of the appeal. 22 I propose the orders -

3. Set aside the orders made by Cowdroy J on 9 July 2004 and in lieu thereof order that the applications to amend the summonses be dismissed.

4. Opponent pay the claimants' costs of the application for leave to appeal and the appeal.

5. Remit the proceedings to the Land and Environment Court for continuance in that Court. 23 BUDDIN J: I agree with Giles JA. 24 SMART AJ: Mr Gordon and the company seek leave to appeal against orders made by Cowdroy J in the Land and Environment Court granting leave to the prosecutor to amend certain summonses, the allowing of the appeals, the setting aside of the orders of the judge and the dismissal of the prosecutor's application to amend. 25 The summons as originally issued in 2003 in proceedings 50069/03 against Mr Gordon required him in para 1 to answer a charge that: " … between 1 August 2001 and 7 December 2001 at Redhead …. he did, by an act, namely by slashing or clearing vegetation on Lot 1 DP 42613 and Lot 4 DP 248860 cause damage to the habitat of a threatened species, to wit, Tetratheca juncea knowing that the land concerned was habitat of that kind contrary to section 118D(1) of the National Parks and Wildlife Act 1974 (the Act)." 26 The Court was told that Tetratheca juncea is a plant which grows in a vine-like way with grass-like leaves and produces a lilac flower in the spring. It has a very limited way of pollinating. 27 The summons as originally issued in proceedings 50071/03 against Mr Gordon was in the same form as just mentioned except that the relevant threatened species differs. It is Crinia tinnula, which is a froglet which lives in very poor environments near sand dunes on the coast. Froglets live in a very narrow and very acidic pH range. 28 The summons as originally issued in proceedings 50073/03 against BGB Properties Pty Ltd required it in para 1 to answer a charge that: " … between 1 August 2001 and 7 September 2001 at Redhead … Hugh Charles Gordon whilst acting in his capacity as an agent or a person concerned in the management of the Defendant, or at the direction of or with the consent or agreement of a director of the Defendant, did by an act, namely by slashing or clearing vegetation on Lot 1 DP42613 and Lot 4 DP 248860 cause damage to the habitat of a threatened species, to wit crinia tinnula, knowing that the land concerned was habitat of that kind, contrary to section 118D(1) of the National Parks and Wildlife Act 1974, as a consequence of which pursuant to section 175A of the Act, the Defendant is taken to have contravened the same provision." 29 The summons as originally issued in proceedings 50075/03 against BGP Properties Pty Ltd is in the same form as in the preceding paragraph, except that the relevant species is Tetratheca juncea. 30 On 9 July 2004 the Land and Environment Court granted leave to the prosecutor to amend the summonses in proceedings 50069 of 2003, 50071 of 2003, 50073 of 2003, 50075 of 2003, 50077 of 2003 and 50080 of 2003 by the deletion of the words "slashing or clearing vegetation" as it appeared in para 1 of each summons and the substitution of the words "slashing, clearing and/or crushing vegetation and/or constructing access tracks" and the deletion of the word "and" between "42613" and "Lot 4" in para 1 of each summons and the substitution of the words "and/or". 31 Proceedings 50077 of 2003 and 50080 of 2003 were instituted by Mr Bentley against Whet Investments Ltd. That company did not appear before Cowdroy J or seek leave to appeal to this Court. 32 The Service placed a considerable volume of evidence before the judge to enable him to appreciate the case it was making against the applicant. Before this Court the respondent Service outlined its case at trial as follows: "At the substantive hearing, the respondent proposes to adduce evidence that heavy machinery hired by BGP Properties and operated by Mr Gordon cleared parts of Lot 1 DP42613 and/or Lot 4 DP248860 ('the Site'). The respondent's case is that the appellants caused damage to the habitat of the threatened species in a number of different ways. For example, Mr Gordon used at least two types of heavy machinery to clear the Site- a flail mower and a 6 tonne excavator. The flail mower caused damage to relevant habitat by clearing large parts of the Site. The 6 tonne excavator caused damage to relevant habitat by constructing access tracks, which cleared smaller parts of the Site, namely, the access tracks. The damage caused by the 6 tonne excavator included both clearing and crushing the habitat of the Tehratheca. The clearing of the Site by the flail mower caused damage to the surrounding soil of the Tetratheca and also physically crushed some of the Tetratheca plants. The heavy machinery was used over several days within the period specified in the summonses (1 August to 7 December 2001)." 33 Counsel for the applicants explained that after the prosecutor had served a large volume of evidence it became apparent that the prosecution might experience difficulties because of the terms of the summonses. The limitation period which applied would defeat any fresh summonses as under s 176(1B) of the Act proceedings for an offence against the Act may be taken within 2 years. 34 Section 2A of the Act specifies its objects. These cover the conservation of nature including the habitat, ecosystems and ecosystem processes and biological diversity at the community, species and genetic levels. 35 Section 118D of the Act falls within Pt 8A of the Act which was inserted in 1995 and is designed to protect and preserve threatened species, endangered populations and endangered ecological communities and their habitats and critical habitat. Harming any animal and picking any plant when in each instance, part of a threatened species, an endangered population or an endangered ecological community are prohibited (s 118A). Section 118B prohibits buying, selling or possessing threatened species or an endangered population. Section 118C provides that a person must not by any act or omission do anything that causes damage to any critical habitat. 36 Section 118D(1) provides: "A person must not, by an act or omission do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, an endangered population or an endangered ecological community if the person knows that the land concerned is habitat of that kind." 37 Section 118D(2) is in these terms: "(2) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the offence: (a) was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995 , or (a1) was the subject of a certificate issued under section 95(2) of the Threatened Species Conservation Act 1995 , or (b) was essential for carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979 , or (ii) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (c) was authorised to be done by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or (d) was authorised by, and done in accordance with, a conservation agreement, or (e) was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995." 38 The essence of the reasoning of Cowdroy J appears at [14] of his judgment: "… the proposed amendments relate to the manner in which the damage is alleged to have occurred. The offence alleged against each defendant is stated to be a breach of s 118D of the NP&W Act, namely that damage has been caused to the habitat of a threatened species. It is the resultant damage by the offender which creates the offence, as distinct from the conduct which causes the damage. It follows that if more than one activity resulted in damage, it is unnecessary that separate charges be formulated for each different activity." 39 The Grounds of Appeal are: i) the judge erred in holding that the charge against the defendant would not be duplicitous and/or uncertain if the amendment sought by the prosecutor was made ii) the judge should have held that the amendment sought by the prosecutor would if made, have rendered the charge against the defendant duplicitous and/or uncertain, and accordingly should have refused to permit the prosecutor to amend the summons." 40 A criminal charge in a summons must specify the essential legal elements of an offence and also the essential factual particulars of the offence: McConnell Dowell Constructions v EPA 50 NSWLR 127 at [42]; 54 NSWLR 39 at 41-43; Stanton v Abernathy (1990) 19 NSWLR 656 at 666. The applicant contended that the precise acts and omissions said to constitute the offence are essential ingredients of the offence. I would not use the word "precise". 41 The applicants submitted in this case the elements of the offence were: (a) a person; (b) did something by act or omission; (c) which caused damage; (d) to any habitat (other than in a critical habitat); (e) of a threatened species, an endangered population or an endangered ecological community; (f) knowing that the land concerned was habitat of that kind. 42 The judge held at [11] "In the current proceedings, the charges relate to a specific issue, namely whether habitat destruction has occurred resulting from the acts of the defendants. Whether that damage was caused by slashing or clearing or by some other method is a matter for particulars and for evidence."

43 The applicants pointed out that the permitted amendments refer to the act alleged that caused damage to the habitat of the relevant species and that the prosecutor sought to plead a multitude of acts, in the alternative, as being the act causing damage to habitat: (a) slashing vegetation, and/or (b) clearing vegetation, and/or (c) crushing vegetation, and/or (d) constructing access tracks 44 The applicants contended that the words "and/or" indicated that these acts are to be relied on both conjunctively and disjunctively. At the hearing before this Court, counsel for the Service accepted that these words created some difficulty and was prepared to agree to their deletion. There is a related problem in the further amendment sought. The original summonses referred to "slashing or clearing vegetation on Lot 1 DP 42613 and Lot 4 DP 24860". The Service desired to delete the word "and" and substitute the words "and/or". 45 It was the Service's case that although each of the acts outlined in (a), (b), (c) and (d) in [21] alleges a different mechanism of causing damage, each act in and of itself caused "damage" and was sufficient to found a conviction (subject to the other elements of the offence being proved). 46 The applicants submitted that, in effect the prosecutor was arguing that although there was a single charge, all or any of the acts pleaded would support the charge and would independently lead to a conviction. Such a proposition, it was submitted, was contrary to Parker v Sutherland (1917) 116 LT 820 (English Divisional Court) which was referred to by Dixon J with evident approval in Johnson v Miller (1937) 59 CLR 467 at 488-9. 47 The applicants submitted that the rule against duplicity was summed up by Kirby J in Walsh v Tattersall (1998) 188 CLR 77 at 112: "The Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to one activity, separate offences should be the subject of separate charges." 48 The applicants submitted that the judge contravened this principle when he stated that it was unnecessary that there be a separate charge formulated in respect of each activity. The applicants further submitted that - (a) the judge erred by not holding that the act was an essential element of the offence and that s 118D proscribes an act and not an activity (or enterprise) (b) it was not open to the prosecutor to seek to charge what are admitted to be a series of different acts on the footing that they are part of the one enterprise because that is only permitted where it is the enterprise which is proscribed (c) the prosecutor had formulated a charge which on its face suffered from patent duplicity in that it patently specified things which are different acts. For example, the creation of an access track was patently different from slashing vegetation. (d) when the judge looked at the prosecution evidence to see what was proposed latent duplicity was exposed (e) the judge incorrectly gave the prosecution what was tantamount to an unlimited grant of leave to amend for any combination of slashing vegetation, clearing vegetation, crushing vegetation and constructing access tracks, either alternatively or cumulatively over a period of four months. No proper particularisation of the offence was given or required. 49 During argument the Court raised with counsel for the applicants the position which would arise if all the various acts relied upon took place upon the one day. Counsel replied that did not occur here and that every case depended upon its own particular facts. 50 The applicants submitted that not only was there patent duplicity when regard was had to the form of the charge but from the evidence to be led by the prosecution there was latent duplicity. Over a period of four months a range of different acts were done on different parts of the 44 hectare area of land but there were different mechanisms of damage. It was an abuse of language to say that the act of creating an access track with a dozer ten weeks ago was the same act as operating a flail mower in a different location seven weeks later. 51 The Service submitted that: (1) These were continuous offences so that the charges laid were permissible. It is not necessary to have an immediacy between the various acts said to constitute a continuous offence. Reliance was placed on this Court's decision in CSR Ltd v EPA 2000 110 LGRA 334. The offence which was penalised in the legislation there under consideration was negligently causing a substance to leak. The case involved an earth lagoon where leaks tend to be gradual. At 341 it was noted: "In Hodgetts v Chiltern District Council [1983] 2 AC 120 at 128 Lord Roskill, with whom the other members of the House agreed, said: 'It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place whether continuously or intermittently over a period of time'." In Walsh v Tattersall (1996-7) 188 CLR 77 at 91 Gaudron and Gummow JJ indicated that an offence could be defined in terms of a course of conduct or state of affairs. Kirby J (at 107) recognised that conduct which need not, but in some circumstances might, be constituted by activity over time could be charged in a single count.

(2) The words "by an act or omission" are not indicative of an offence of one act or omission but make it clear that the words "do anything" include failing to do something. The "act" is causing damage. This is what is commonly called a "result offence". It is for that reason that the defences in s 118D(2) do not refer to the act or omission constituting the offence. It is not the act or omission which constitutes the offence, it is causing damage. The Service contended that support for this argument is found in s 118E, the penalty section which provides that the Court may, in addition to or in substitution for any pecuniary penalty direct the offender to take any action to mitigate the damage or to restore the affected habitat. 52 The Service made these supplementary submissions, which partly overlap its original submissions:

(1) The words "by an act or omission" in s 118D(1) are not indicative of an offence, the actus reus of which is confined to one act or one omission. Rather, the expression "by an act or omission" is intended to make clear that the expression "do anything" will include failing to do something.

(2) If a singular "act" or singular "omission" constitutes the offence against s 118D(1), then one would have expected the legislature to make available the defences in s 118D(2) to an accused who could not prove that "the act or the omission constituting the offence" was authorised etc in accordance with the subsection. However, what the accused is required to prove is that "the act constituting the offence" was authorised etc in accordance with the subsection. The act which constitutes the offence is "causing damage" by whatever means. The expression "the act constituting the offence" in s 118D(2) is a reference back to the doing of "anything that causes damages" in s 118D(1).

(3) The defences in s 118D(2) are not consistent with an offence which is constituted by a single act or a single omission. 53 Both parties referred in some detail to other provisions of the Act and analysed in some detail the statutory provisions referred to in s 118D(2). Although this was done at the request of the Court in the hope that it may throw light upon the meaning of s 118D, no significant assistance was gained from these exercises. 54 I do not accept the Service's submission that the defences in s 118D(2) are not consistent with an offence which is constituted by a single act or a single omission. I see no good reason why a single act or a single omission, if it fell within any of the paragraphs of s 118D(2), could not provide a defence assuming the damage was caused by the single act or omission relied upon. 55 Environmental offences are notoriously difficult of proof. While the damage caused to a particular area is often all too evident, the prosecuting authority by its officers, is not present when the actual damage is caused and does not know the precise mechanism by which the damage was caused. The prosecuting authority may be able to ascertain the machinery which the landholder has or used. The landholder may do the work himself or have staff do it or engage contractors. From inspections of the property after the damage has been caused it may be evident that the damage has been caused by an act or acts in that the result produced could not have happened without an act (or, in some circumstances, an omission). However, it may not be possible to identify the particular act or acts causing the damage. Not infrequently the damage will have been committed by a series of acts, for example, driving a mower or a dozer or grader over an area for an hour or so, or even over some days or weeks. It may be some weeks later before an inspection takes place as a result of intelligence received or gathered by the Service. 56 I would adhere to the statements of principle that for continuing offences and facts so related that they amount to one activity and that where an offence is defined in the terms of a course of conduct or state of affairs, the prosecution can rely on a series of closely related acts (or omissions) and is not confined to relying on one act. Nor would I question that the acts or omissions relied upon by the prosecution may take place continuously or intermittently over a period of time. These principles are of appreciable importance in relation to environmental offences. Damage of consequence may be caused by several acts in combination, whereas damage caused by one act may be inconsequential. I regard the present case as a borderline one. 57 Part of the problem arises from the terms in which s 118D(1) is expressed and part from the terms of the proposed amendment. 58 In the present case the Service has by using the words "slashing, clearing, and/or crushing vegetation and/or constructing access tracks" in the proposed amendment relied on a series of acts on a 44 hectare property, each of which would constitute an offence. The methods and acts used to cause the alleged damage to the habitat are peculiarly within the knowledge of the defendants. Apparently, and not unexpectedly, the Service is not able to relate any particular act to any particular damage. The amendment proposed requires the defendants to meet a series of acts unrelated to any particular damage and over a wide area. 59 The essence of the offence is doing anything that causes damage to any habitat (other than a critical habitat) of a threatened species. The "doing anything" must be by an act or omission and that is an element of the offence and would have to be included in the charge. However, it does not follow that the "act" would have to be specified in the way in which this has been proposed in the amendments. In the factual particulars delivered with the statement of the charge in the summons the nature of the damage could be described in some detail followed by the statements that, by necessary inference, such damage must have been caused by an act, specifying any further facts and circumstances relied upon. It should then be stated that these are the best particulars that the prosecutor can supply, and, if it be the fact, that the prosecutor is not able to give further particulars of the act causing the damage. The draftsman of the charge and particulars may well be able to improve substantially on the outline I have suggested. 60 There are other problems which will need to be addressed. The damage may vary significantly over the 44 hectare property. This may necessitate different charges as the nature of the act required to inflict different types of damage may also differ significantly. It will be a question of degree. The Service proposed to amend the summons by deleting the word "and" and substituting the words "and/or" where reference is made to the two Lots on which the damage is said to occur. This requires some explanation or justification. 61 The amendments permitted are, at the very least, embarrassing and should not have been allowed.. As framed they require the applicants to meet a number of different cases any one of which, if proved, would constitute the offence charged. This is not to say that amendments differently framed would not have been permissible. 62 The question remains what should be done when the amendments permitted should not be allowed to stand. I would favour remitting the matter to the judge with the Service, if so advised, being at liberty to make an amendment application to elucidate the charge and reformulate its particulars. The argument before the judge concentrated on a matter of substance, namely, what was the essence of the offence with insufficient attention being paid by the Service to matters of form. 63 Having regard to the way in which s 118D is framed and the difficulties it poses, both as to matters of form and substance, there are considerable practical obstacles in the Service being able to make effective use of that section in its efforts to protect the environment by preventing damage to the habitats of threatened species, endangered populations or endangered ecological communities. As mentioned, the facts as to how damage was caused will be peculiarly within the knowledge of the potential defendants, for example, the landholder, his staff, his sharefarmer or his contractors. Amendment of the section should be considered. 64 As the amendments proposed by the Service were faulty as to form it must bear the costs of the application to amend before the judge and of the proceedings before this Court. 65 I propose the following orders: 1. Leave to appeal granted. 2. Appeal against the order of Cowdroy J of 9 July 2004 permitting the amendment allowed; Order set aside. 3. Remit the question of amendment of the charges specified in the summonses to the Land and Environment Court to consider such further application for amendment by the informant on behalf of the Service as it may wish to make and for directions for the further hearing of the summonses. 4. Order that the informant pay the costs of Hugh Charles Gordon and BGP Properties Pty Limited of the application to amend the charges in the summonses before the Land and Environment Court and the proceedings in this Court.

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