Bentley v Gordon and Ors

Land and Environment Court (NSW)|2004-07-09|Before: Cowdroy J, Mr P

Introduction 1 The prosecutor seeks leave of the Court to amend the summons in each proceeding. The summonses generally fall in two categories. In one category it is alleged that the defendant did by an act, namely by slashing or clearing vegetation on Lot 1 DP 4264 and 3 and Lot 4 DP 248860, cause damage to the habitat of a threatened species to wit the Tetratheca juncea, knowing that the land concerned was a habitat of that kind contrary to s 118D(1) of the National Parks and Wildlife Act 1974 ("the NP&W Act"). 2 The other summons is in similar terms except it alleges that the defendant damaged the habitat of a threatened species to wit Crinia tinnula knowing that the land concerned was habitat of that kind contrary to s 118D(1) of the NP&W Act. In each case the words appear which describe the act as "the slashing or clearing vegetation on the subject lands". 3 The amendments propose the deletion of the words "slashing or clearing vegetation" as it appears in para 1 of each summons and the substitution of the words "slashing, clearing and/or crushing vegetation and/or constructing access tracks". Another minor amendment relates to the deletion of the word "and" between the words "42613" and "Lot 4" in para 1 of each summons and the substitution of the words "and/or". Nothing turns on the second amendment. The applicant did not press its proposed addition of the words "and/or digging pits" in proceedings 50071 of 2003, 50073 of 2003 and 50077 of 2003. 4 The Court has been referred to numerous portions of the evidence in each proceeding, which is voluminous. It is not necessary for the Court to restate the factual basis upon which the charges are based, save to observe that it is alleged in each charge that the defendants engaged in activity contrary to the requirements of the NP&W Act. Section 118D(1) of the NP&W Act provides:- 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.

5 The application for leave is opposed. Pursuant to s 68(1) of the Land and Environment Court Act 1979 the Court has power at any stage of proceedings to order any amendments be made which are "necessary in the interests of justice". 6 Section 20 of the Criminal Procedure Act 1986 ("the Criminal Procedure Act") provides that "an indictment may not be amended after being presented except by the prosecutor with either the leave of the Court or the consent of the accused". Section 176(1)(b) of the NP&W Act provides that notwithstanding anything in the Criminal Procedure Act proceedings for an offence against the NP&W Act must be commenced within two years after the date of commission of the offence. Part 10 r 2 of the Land and Environment Court Rules 1996 permits amendments to be made after the expiry of a relevant period of limitation, unless contrary to any law to do so. 7 The defendants submit that the amendments, if allowed, would lead to duplicitous or otherwise uncertain charges. They say that if the prosecutor wishes to pursue the matters now sought to be raised by the amendments, it would be necessary for separate charges to be brought in respect of each alleged act. It is acknowledged by the prosecutor that the statutory limitation for the institution of any fresh prosecutions arising out of the offences has now passed, since the charges allege that the conduct relied on occurred between 1 August 2001 and 7 December 2001. 8 The prosecutor has referred the Court to various authorities which have dealt with the issue of duplicitous charges, for example Montgomery v Stewart (1966-1967) 116 CLR 220 and Khaled Hamzy v R (1994) 74 A Crim R 341. The defendants have referred the Court to several decisions especially that of Kirby J of the High Court of Australia in Walsh v Tattersall (1996-1997) 188 CLR 77. The defendants submit that His Honour's judgment is of the utmost significance since it has been referred to and adopted by the New South Wales Criminal Appeal in Abdoula Khouzame & Samson Saliba v R (1999) 108 A Crim R 170 and by the learned Chief Justice of New South Wales in Tony Giam v R (1999) 104 A Crim R 416, especially at p 420. 9 The Court has heard extensive submissions and has had the benefit of written submissions. Having considered the submissions the Court considers that it is able to provide its decision in an ex tempore judgment.

10 The Court has considered the observations in Kirby J in Walsh v Tattersall (especially between p 110 and p 112) which the Court accepts is the current law in relation to pleadings in criminal matters. Before stating the relevant principles, Kirby J made it clear that much depends upon the nature of the offence when considering the formulation of charges of a criminal nature: see p 109 of his Honour's judgment. 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. By correspondence the defendants' solicitor asked the prosecutor whether it is the prosecutor's case that each of slashing vegetation or clearing vegetation or crushing vegetation or construction of access tracks was of itself the cause of the damage to the habitat. The prosecutor has confirmed that any one of those acts is relied upon in support of the charges. 12 The Court was referred to the decision in McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (No 2) (2000-2002) 54 NSWLR 39. In those proceedings there had been a failure of the prosecutor at the initial stages to specify the act which was said to cause the pollution of waters. The difference between those proceedings and the proceedings now before the Court is that s 16(1) of the Clean Waters Act 1970 (now repealed) specified that a person shall not pollute any waters. Such pollution could occur in various ways as itemised in the statute. Spigelman CJ found that both the act of polluting and resultant pollution were essential ingredients of the offence under s 16. As observed by Ipp AJA at p 44, the charge referred to the pollution, but not to the act of polluting. Accordingly the summons did not identify an act of polluting, which was an essential factual ingredient of the offence. 13 The Court was also referred to Johnson v Miller (1937-1938) 59 CLR 467. In those proceedings the prosecution failed to identify which of numerous persons could have participated in the offence referred to in the supply of liquor. That decision is again factually distinguishable from the present circumstances. 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 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. 15 The defendants' counsel also referred to the example of continuing offences. Such offences are separate and distinct from the nature of the charge which has been instituted against each of the defendants. The legislation would be quite unworkable if separate summons 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. 16 For these reasons the Court finds that there is no duplicity if leave is granted to amend in the manner sought. Accordingly the Court grants leave to the prosecutor to amend the summonses in respect of 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 appears 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 the words "42613" and "Lot 4" in para 1 of each summons and the substitution of the words "and/or". 17 Since costs have not been argued the costs of this motion are to be reserved and are to be considered at the hearing of the proceedings.

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CITATION : Bentley v Gordon and Ors [2004] NSWLEC 410 50069 of 2003; 50071 of 2003 PROSECUTOR Jason Robert Bentley DEFENDANT Hugh Charles Gordon

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