Chief Executive of the Office of Environment and Heritage v Somerville

Mr Somerville Collects Bird Eggs

1. The factual background as alleged by OEH giving rise to the two classes of offences is found in the OEH's Statement of Facts dated 22 March 2019 ("the Statement of Facts"). The Statement of Facts was annexed to an affidavit of Ms Donna Somerville sworn on 12 August 2019 in support of the notice of motion. Ms Somerville is Mr Somerville's daughter. Her affidavit did no more than annex various documents that were relied upon by Mr Somerville during the course of hearing of the motion.
2. The following alleged facts are relevant to the determination of the issues raised by the motion (paragraphs 1-31 of the Statement of Facts, footnotes omitted): 1. Between 9 September 2016 and 3 December 2016, Beni State Conservation Area ("Beni SCA") was closed to the public due to adverse weather. 2. On 9 September 2016 Mr Somerville's ute became bogged in Beni SCA. 3. NPWS Field Officer Kim Turner located Mr Somerville with his vehicle at around 10:30 am. Mr Somerville told Officer Turner "I'm bird watching". At around 12:30 pm, Officer Turner returned and found Mr Somerville's vehicle in the same location and bogged. Officer Turner called in NPWS Senior Field Supervisor Dave Brill to assist. 4. Officer Brill sighted Mr Somerville's drivers licence and photographed his vehicle showing licence plate CVE 81C. Mr Somerville told Officer Brill "I was bird watching". Mr Somerville left. 5. On 20 September 2016 NPWS installed three surveillance cameras in Beni SCA. 6. On 24 September 2016 surveillance cameras captured Mr Somerville entering Beni SCA, carrying a tomahawk, at 3:14 pm. At 4:20 pm, Mr Somerville attached a ladder on to his ute and left. 7. On 25 September 2016 surveillance cameras captured Mr Somerville entering Beni SCA at 2:23 pm and leaving at 3:11 pm. Mr Somerville was accompanied by a person who moved aside the barrier to enable access to Beni SCA. 8. On 26 September 2016 surveillance cameras captured Mr Somerville entering Beni SCA at 2:23 pm and leaving at 3:11 pm. 9. On 26 September 2016 surveillance cameras show Mr Somerville leaving Beni SCA at 2:48 pm. His time of entry was not captured. 10. At some time between 4 and 5 October 2016 the surveillance cameras were stolen. 11. On 11 October 2016 NPWS discovered pink flagging tape in the bushes next to a trail inside Beni SCA. The tape had not been placed by NPWS. The tape was removed and discarded. 12. On 13 October 2016 NPWS installed a further two surveillance cameras inside Beni SCA. More pink flagging tape was discovered inside Beni SCA, some of which was collected. 13. On 14 October 2016 surveillance cameras captured Mr Somerville's ute parked at entrance of reserve, Mr Somerville entering Beni SCA at 1:47 pm and later exiting at 3:45pm. 14. On 18 October 2016 surveillance cameras captured Mr Somerville's ute parked at the exit of reserve. Mr Somerville moved the NPWS barrier at entrance to Beni SCA to one side and left in his ute at 5.18 pm. 15. Between 18 October 2016 and 19 November 2016 OEH specialist investigators also conducted periodic surveillance on Mr Somerville. 16. On 19 October 2016 specialist investigators observed Mr Somerville and his grandson Brandon Somerville in various locations around Dubbo, including around vegetation near the verge of the highway and in two parks. Brandon Somerville was seen looking into trees and climbing the trunk of trees while Mr Somerville observed and directed. Both were seen searching through bushes and shrubs. 17. On 24 October 2016 at midday Officer Turner observed that the park gates to Beni SCA (that had been in place to prevent public access due to wet weather) had been opened without authority. She drove into the park and found CVE 81C unattended on the trail. She waited for approximately 20 minutes, photographed the vehicle, and then left. Surveillance images show the ute being driven into the reserve at 10:51 am, Mr Somerville moving the NPWS barrier at entrance to Beni aside at 1:50 pm, and then leaving the reserve in his ute. 18. On 27 October 2016 NPWS located more pink flagging tape inside Beni SCA. The tape was collected on 1 November 2016. Search warrant 19. On 9 November 2016 specialist investigators obtained a search warrant. 20. On 10 November 2016 the warrant was executed at Mr Somerville's residence at 4 Lachlan Way Dubbo, over Mr Somerville's caravan located in the front yard of the property, and over Mr Somerville's ute. 21. During the execution of the warrant, Mr Somerville was asked whether he had property inside the house. He responded "only me egg collection". 22. Inside the house, investigators located two large cabinets containing more than 3,000 eggs. The cabinets had multiple drawers containing individual compartments underneath glass. The eggs appeared to have been preserved by having been hollowed out and then stored in the compartments, and protected with cotton wool. 23. When Mr Somerville was asked for the location of his egg collection, he pointed at the first cabinet and then used a key to unlock the cabinet. He stated that he had added to the collection "recently", including "a couple of weeks ago". 24. The second cabinet was located in the hallway. Mr Somerville stated "it's just an empty cabinet and it's a got a few eggs in there", but that the key had been lost. Mr Somerville exited the house, returned with a screwdriver and then a spanner, which he used to remove the lock. The drawers were opened by investigators who located 'data cards' inside some of the drawers stating "OOLOGICAL COLLECTION OF ANTHONY SOMERVILLE". 25. Inside Mr Somerville's caravan, investigators seized a wooden box containing alphabetised 'data cards'. The data cards were each headed "Oological Collection of Anthony Somerville". Each data card contained information in fields headed: - "Species", - "Scientific name", - "Check number" (each species was assigned a number, some of the numbers accorded with a list found on Mr Somerville's laptop titled "707 Birds of Australiaa.doc"), - "set mark" (which corresponded with the identification symbols marked on the eggs), - "incubation", - "date taken", - "eggs in set", - "identity", - "location", - "locality", - "Nest", - "notes" (which provided detail about the circumstances in which the eggs were taken), and - "Collected by" (typically, Anthony Somerville, but occasionally Jason Somerville, Brandon Somerville, or a combination). 26. Mr Somerville agreed the data cards were his and had been typed out by him from handwritten notes. Soft copies of the data cards were found on Mr Somerville's laptop located in the caravan. Handwritten notes were also found in the caravan containing similar information. 27. For example, a handwritten note was found for the "yellow bitten" [sic] collected on "10 June". The handwritten noted stated "the yellow bitten seems to be in trouble this is the only set of eggs so far that I have been able to blow due to very thin shells not tough blame DDT". A data card for the "yellow bitten" was found on Mr Somerville's laptop indicating he collected the egg from Nong-Hin, Thailand, on 1 June 2016. The notes include "A number of the yellow bitten eggs were collected the shells were so thin that they could not be saved the shells are very thin and this could be that there food supply is contaminated with DDT." 28. A number of tools and paraphernalia for egg blowing and storage were found in Mr Somerville's caravan, including: - a small drill, capable of drilling a hole in the eggs, - nails and a syringe, to facilitate removal of the egg's contents, - styrofoam boxes, for storage and transport, - cotton wadding and bubble wrap, for storage and transport, and - metal tins with foam inserts containing egg shaped cut outs of various sizes, for storage and transport. 29. In Mr Somerville's ute, investigators located similar tins containing foam inserts with egg-shaped cut outs, as well as nets and traps, a tomahawk, a ladder, and pink flagging tape. 30. After being cautioned, Mr Somerville made a number of statements during the execution of the warrant, including: - When asked where he got certain eggs from, he stated "Believe it or not out of a nest", - When asked where a nest was, he stated "in a paddock that was flooded" at Parkes, - When asked about the representations in a data card ("It's got a sign here that, date taken 27 of December 1964 in Warren, so it's indicative of when these ones were taken?") he answered "well for that data card, yes", - When asked if he had collected eggs recently, he said "Yes", from "All over the place", - When asked about the purpose of the tins with foam inserts ("What are these used for mate?"), he stated "Putting eggs in", "So they don't get broken", and - He agreed that he used pink flagging tape to mark trees, but stated the purpose was "as I walk into the bush and thick scrub so I can find me way out again", and denied it was marking the location of eggs. Interview with police 31. On 10 November 2016 Mr Somerville participated in a voluntary interview with Dubbo Police. When questioned about the most recent time he collected eggs, Mr Somerville said: a. "[I] jumped up on me ladder and got them", from a "nest" in a "gum tree", then put them in "what I call an egg tin", and "brought em home and took care of em". b. By 'took care of them', he meant he took them "to me caravan", where he "extracted the inside out of them, so they was a specimen shell", "with a drills and a pipe and proper drills". c. He explained that "the egg is blown, using one small hole, the albium [as said] is taken out, the membrane is taking out [as said], the yolk is taken out, which leaves a calcified shell". d. He admitted that he did not have a licence to collect eggs, and that he knew it was against the law.
3. The Statement of Facts went on to list the protected fauna, endangered populations, and threatened species, the subject of each charge as particularised in the summonses.

A Search Warrant is Applied for and Executed

1. Annexed to Ms Somerville's affidavit was an affidavit of Mr Bradley Wade filed on 6 November 2018 (excluding the exhibits to Mr Wade's affidavit). Mr Wade is a Senior Investigator with NSW Parks and Wildlife Service ("NPWS"). He was the officer who appears to have had carriage of the investigation into Mr Somerville.
2. In his affidavit, Mr Wade deposed to the fact that Mr Somerville was under surveillance from 18 October to 8 November 2016. On 9 November 2016, Mr Wade attended Dubbo Local Court and obtained a search warrant for Mr Somerville's caravan and premises located at 4 Lachlan Way, Dubbo.
3. The reasonable grounds identified in the application for search warrant ("the application") justifying the search warrant included "for determining whether there has been compliance with or contravention of national parks legislation", which were stated to include the NPWA and the Threatened Species Conservation Act 1995.
4. The potential offences listed in the application included those contained in ss 98, 101, 106, 118A, 118B and 176B of the NPWA. In relation to the s 118B offence, it was noted that Mr Somerville did not hold a current licence with NPWS to lawfully hold, collect, or harm any protected fauna or threatened species (see s 118B(4) of the NPWA).
5. Under the section entitled "Background Information", the application noted that Mr Somerville had been previously charged and convicted in 1989 of various offences relating to wildlife trafficking both under the NPWA and federal legislation, for which he served time in jail and was fined.
6. In relation to the "Current Investigation", the application for the search warrant stated the following: 1. that on 9 September 2016, a vehicle registered to Mr Somerville was found bogged in Beni State Conservation Area ("Beni SCA"); 2. Mr Somerville was later observed on CCTV camera parking his vehicle outside the Beni SCA and entering the park on foot. On one occasion he was observed carrying a tomahawk and on another, a ladder. It was stated that, "it is suspected that Mr Somerville uses the ladder to scale trees and uses the tomahawk to break up wood foraging for eggs"; 3. there were a number of threatened species in the Beni SCA, including several species of birds; 4. Mr Somerville's vehicle had also been seen driving through or close by to Goonoo State Conservation Area ("Goonoo SCA"), which also contains a number of threatened species of birds; 5. on 19 October 2016, Mr Somerville and a younger male were seen to drive to a number of council parks and easements and get out and walk around looking at trees. The young male was also seen climbing a number of trees "but it could not be seen whether any eggs/chicks were tampered with or taken"; 6. on 1 November 2016, Mr Somerville and the young male were chased off two private farms in the Narromine area; 7. on 8 November 2016, Mr Somerville was seen opening the foliage of a bushy tree in Dubbo and appeared to "rummage around" in it. Later that day, he was seen entering a caravan parked on his premises at 4 Lachlan Way which had an electrical cord running into a power socket on the side of the caravan. He was in the caravan for approximately 30 minutes "despite the over 30 degree heat of the day"; 8. pink flagging tape had been found in Beni and Goonoo SCAs. It was not placed there by NPWS staff. It was "suspected that the tape is being used by Mr Somerville to mark various locations within Beni SCA for future reference"; and 9. that as at the date of the application, NSW was in the middle of the bird breeding season which includes birds laying their eggs.
7. In relation to the reason for obtaining the search warrant, Mr Wade stated in the application that (emphasis added): On the basis of the information above I believe on reasonable grounds that: (a) the above offences have been committed under the NPW Act and NPW Regulation and (b) there are records and/or things connected with the alleged offences at the Premises. A search warrant is required to allow entry into the Premises for the purposes of searching for and seizing any evidence connected with the alleged offences including (but not limited to) any records (including any records in electronic format, photographs, receipts, fauna records books and paraphernalia); flagging tape, clothing, ladders, tomahawks, cameras, GPS devices, computers, mobile telephones or devices used to access the internet or send messages and emails; or any matter or thing connected with the alleged offences.
8. The application went on to identify the power to apply for a search warrant, namely, s 199(1) and (4) of the Protection of the Environment Operations Act 1997 ("POEOA"): 199 Search warrants (1) Application for search warrant An authorised officer under this Act may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant if the authorised officer under this Act believes on reasonable grounds that: (a) a provision of this Act or the regulations is being or has been contravened at any premises, or (b) there is in or on any premises matter or a thing that is connected with an offence under this Act or the regulations. … (4) Definition In this section: matter or a thing connected with an offence means: (a) matter or a thing with respect to which the offence has been committed, or (b) matter or a thing that will afford evidence of the commission of an offence, or (c) matter or a thing that was used, or is intended to be used, for the purpose of committing the offence. offence includes an offence that there are reasonable grounds for believing has been, or is to be, committed.
9. After setting out the above provisions, Mr Wade stated that, "based on the information set out in this application I believe, and believe on reasonable grounds, that there is in or on the premises things that are connected with the offences as that expression is defined in the POEO Act" (emphasis added).
10. Under the section entitled "Purpose of the Search Warrant", Mr Wade claimed that (emphasis added): A search warrant is now sought to allow me to gain entry to the premises and, with computer forensics experts, NSW Police Force officers, Department of the Environment and Energy officer/s, and other authorised officers of the OEH who will assist me in accordance with s. 71 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and s.199A of the POEO Act, and search for and seize any protected fauna/threatened species and other evidence connected with the alleged offences including (but not limited to) any records (including any records in electronic format, photographs, receipts, fauna record books and paraphernalia); flagging tape, clothing, ladders, tomahawks, cameras, GPS devices, computers, mobile telephones or devices used to access the internet or send messages or emails; or any matter or thing connected with the alleged offences. A search warrant is required to allow entry into the premises for the purpose of searching for and seizing any protected fauna/threatened species and other evidence connected with the alleged offences including (but not limited to) any records (including any records in electronic format, photographs, receipts, fauna record books and paraphernalia); flagging tape, clothing, ladders, tomahawks, cameras, GPS devices, computers, mobile telephones or devices used to access the internet or send messages and emails; or any matter or thing connected with the alleged offences. … Exercise the powers under the Law Enforcement (Powers and Responsibilities) Act 2002 A search warrant is required to allow entry into the Premises for the purposes of searching for and seizing any evidence connected with the alleged offences, including (but not limited to) any records (including any records in electronic format, photographs, receipts, fauna record books and paraphernalia); flagging tape, clothing, ladders, tomahawks, cameras, GPS devices, computers, mobile telephones or devices used to access the internet or send messages and emails; or any matter or thing connected with the alleged offences.
11. Later that day, a search warrant was granted by Ms Holly Smith, an officer under the POEOA, on the basis that she was "satisfied on the recent and reliable evidence in support of the allegations against the occupier there are reasonable grounds to believe that items being searched for will be on the premises and are in connection with offences as described."
12. The search warrant was executed on 10 November 2016. It was upon execution of the warrant that Mr Somerville showed Mr Wade his "egg collection" and data cards. Various implements and items were located consisting of, amongst other things, birds' nests, boxes with cotton wadding, tomahawks, a handsaw, a mirror, pink and orange flagging tape, assorted tools, implements, traps, and nets.
13. Mr Somerville was placed under arrest by NSW Police later that day.

The Harm Offences

1. For each harm offence, the summons is relevantly identical save for the commencement date of the offence range. For example, in matter 2018/340654 the summons relevantly states as follows (emphasis added): The Prosecutor claims: 1. An order that the Defendant, ANTHONY SOMERVILLE of 4 Lachlan Way, Dubbo, in the State of New South Wales, appear before a Judge of the Court to answer the charge that between about 25 August 2013 and about 10 November 2016, near Warren in the State of New South Wales, Anthony Somerville did harm an animal part of a threatened species, contrary to section 118A(1) of the National Parks and Wildlife Act 1974. 2. Particulars (a) Place of offence Warren, New South Wales (b) Threatened species The animals harmed were the eggs of the Bush Stone-curlew (Burhinus grallarius). The Bush Stone-curlew is an endangered species under the National Parks and Wildlife Act 1974. (c) Manner of harm The animals were harmed by being taken from a nest and blown, being a process by which a hole is made in an egg shell, the contents of the egg is removed, and the shell of the egg is preserved. (d) Date on which evidence of the offence first came to the attention of an authorised officer Evidence of the offence first came to the attention of authorised officer Bradley Wade on 10 November 2016.
2. Thus for each of the harm offences, the end of the period within which the offence was committed is the same, namely, 10 November 2016.
3. For each of the harm offences the summons was filed on 6 November 2018.
4. Although OEH did not concede that the mere taking of the eggs from nests (as opposed to the act of blowing the eggs, which plainly constitutes "harm" as defined in s 5) was "harm" for the purpose of the NPWA, it did not resist the submission that the taking of the eggs amounted to the "capture" of the eggs. It was right not to do so. The Macquarie Dictionary (on-line ed) defines "capture" to include "seize". In my view, the alleged taking of the eggs by Mr Somerville amounted to him seizing the eggs, and hence their capture, and therefore, was a species of "harm" as defined in s 5.

The Possession Offences

1. In each of the possession offences, the summons is relevantly identical, with the date of the commission of each offence to be "on or about 10 November 2016". For example, in matter 2018/340649 (a s 118B possession offence) the summons relevantly states as follows (emphasis added): The Prosecutor claims: 1. An order that the Defendant, ANTHONY SOMERVILLE of 4 Lachlan Way, Dubbo, in the State of New South Wales, appear before a Judge of the Court to answer the charge that on or about 10 November 2016, near Dubbo in the State of New South Wales, Anthony Somerville did possess an animal part of a threatened species, contrary to section 118B of the National Parks and Wildlife Act 1974. Particulars (a) Place of offence 4 Lachlan Way, Dubbo, New South Wales. (b) Threatened species The eggs of the Black-breasted Button-quail (Turnix melanogaster) were in Anthony Somerville's possession. The Black-breasted Button-quail is a critically endangered species under the National Parks and Wildlife Act. (c) Date on which evidence of the offence first came to the attention of an authorised officer Evidence of the offence first came to the attention of authorised officer Bradley Wade on 10 November 2016.
2. Likewise, in respect of the charge of contravening s 101(1) of the NPWA, the summons relevantly states that (emphasis added): The Prosecutor claims: 1. An order that the Defendant, ANTHONY SOMERVILLE of 4 Lachlan Way, Dubbo, in the State of New South Wales, appear before a Judge of the Court to answer the charge that on or about 10 November 2016, near Dubbo in the State of New South Wales, Anthony Somerville did possess protected fauna contrary to section 101(1) of the National Parks and Wildlife Act 1974. Particulars (a) Place of offence 4 Lachlan Way, Dubbo, New South Wales. (b) Threatened species The eggs of the following species of protected fauna were in Anthony Somerville's possession: (i) Bassian Thrush (Zoothera lunulata) (ii) Brown-backed Honeyeater (Ramsayornis modestus) (iii) Brush Cuckoo (Cacomantis variolosus) (iv) Cattle Egret (Ardea ibis) (v) Crimson Chat (Epthianura tricolor) (vi) Golden-headed Cisticola (Cisticola exilis) (vii) Little Wattlebird (Anthochaera chrysoptera) (viii) Olive-backed Sunbird (Cinnyris jugularis) (ix) Red Wattlebird (Anthochaera carunculata) (x) Rufous-throated honeyeater (Conopophila rufogularis), and (xi) Rufous Whistler (Pachycephala rufiventris). The above named species are protected fauna under the National Parks and Wildlife Act. (c) Date on which evidence of the offence first came to the attention of an authorised officer Evidence of the offence first came to the attention of authorised officer Bradley Wade on 10 November 2016.
3. Each of the possession offence summonses was filed on 6 November 2018.

Time Within Which Proceedings May be Commenced

1. The time within which proceedings may be commenced for a breach of ss 101(1), 118A or 118B is set out in s 190 of the NPWA. That provision stipulates as follows: 190 Time within which proceedings may be commenced (1) Proceedings for an offence under this Act or the regulations may be commenced: (a) within but not later than 2 years after the date on which the offence is alleged to have been committed, or (b) within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer. (2) If subsection (1) (b) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice, summons or application must contain particulars of the date on which evidence of the offence first came to the attention of any authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any authorised officer is the date specified in the court attendance notice, summons or application, unless the contrary is established. (3) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act. (4) In this section, evidence of an offence means evidence of any act or omission constituting the offence.
2. OEH contends that the summonses, having been filed on 6 November 2018, were within the two year time period which expired on 10 November 2018, and were therefore commenced within time.
3. Mr Somerville, by contrast, argues that because of the circumstantial evidence obtained by OEH prior to 6 November 2016, either the offences were committed before that date, or they first came to the attention of an authorised officer (namely, Mr Wade) prior to that date, and therefore, are time barred by reason of the operation of s 190(1) of the NPWA.

Issues for Determination

1. From the written submissions and the oral arguments, the following issues for determination emerged: 1. who bears the onus of establishing that the 22 proceedings have been brought out of time; 2. was OEH required to elect in each summons whether it relied on s 190(1)(a) or s 190(1)(b) of the NPWA for the purpose of commencing proceedings, or could it rely on both and, provided that one of the limbs was satisfied, this would be sufficient for the proceedings to be commenced within time; 3. if only s 190(1)(b) applied, what is the proper construction of that section having regard to the definition of "evidence" in s 190(4); and 4. whether the circumstantial evidence that first came to Mr Wade's attention prior to 6 November is sufficient to constitute "evidence of any act or omission constituting the offence" in s 190(4).

Who Bears The Onus of Demonstrating Whether the Proceedings Were Commenced Out of Time

1. It may be accepted that ordinarily OEH would bear the onus of establishing beyond reasonable doubt that all of the proceedings were brought within time (Cumberland Council v Younan [2018] NSWLEC 145 at [57]). To the extent that OEH relies upon s 190(1)(a) of the NPWA, it bears the obligation of satisfying this onus to the criminal standard (s 141(1) of the Evidence Act 1995).
2. However, given the language of s 190(2) of the NPWA ("the date on which evidence first came to the attention of any authorised officer is the date specified in the…summons…unless the contrary is established"), to the extent that Mr Somerville seeks to establish the contrary for the purpose of s 190(1)(b), the onus is on him to prove on the balance of probabilities that the charges were brought out of time (Younan at [57] and Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 at [84] and [104]. See also s 141(2) of the Evidence Act).

OEH Was Not Required to Elect Between s 190(1)(a) and (b) of the NPWA in the Summonses for the Possession Offences

1. Ordinarily an issue of election does not arise because if there is any doubt as to when the offence was committed, the prosecutor relies on the more generous time limit, which is typically that afforded by s 190(1)(b) of the NPWA. The present case therefore reveals a novel question of statutory interpretation about which neither party was able to provide any authority directly on point.
2. The issue arises only in relation to the possession offences. OEH contended that provided that either of the times stipulated in s 190(1)(a) or (1)(b) of the NPWA were satisfied, the possession proceedings had been commenced within time. It relied upon the fact that the chapeau to paragraph 1 of the relevant summonses clearly states that the offence was commenced "on or about 10 November 2016" and that paragraph 1(c) does no more than particularise and confirm that date. In other words, paragraph 1(c) was no more than confirmatory of the nominated date, and was consistent with the evidence that it was not until the warrant was executed on 10 November 2016, that evidence of the commission of the possession offences was obtained, namely, that animal parts (the eggs) of a threatened species or an endangered population were found in Mr Somerville's possession and control contrary to ss 101(1) and 118B(1) of the NPWA. Moreover, because the offences contained in ss 101(1) and 118B(1) were ongoing offences, the offence continued to be committed while Mr Somerville had the eggs in his possession and control. Accordingly, on 10 November 2016, Mr Somerville committed an offence under ss 101(1) and 118B(1) of the NPWA, and s 190(1)(a) having been satisfied, the possession offences were commenced within time.
3. OEH argued that even if it could not discharge its onus under s 190(1)(a) to the requisite degree, it could, in any event, nevertheless rely upon the time limitation provided for in s 190(1)(b) of the NPWA and that Mr Somerville had not discharged his onus of establishing to the contrary in relation to the date stated in the summons of 10 November 2016, pursuant to s 190(2).
4. In response, Mr Somerville argued that because s 190 of the NPWA is a time bar contained in a penal provision it should be strictly construed (citing Scott v Cawsey [1907] HCA 80; (1907) 5 CLR 132 at 154-155 and Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576). He therefore submitted that the proper construction of s 190(1) of the NPWA was that, by reason of the use of the disjunctive word "or" in s 190(1) of the NPWA, the two limbs of that provisions were in the alternative, thereby requiring a prosecutor to elect which time period it relied upon. In respect of the possession offences, s 190(1)(a) of the NPWA was not available to OEH, it having made an election stipulated in paragraph 1(c) of the summonses to rely on the time limit provided for in s 190(1)(b) (when read together with s 190(2)).
5. The ambit of the rule in Beckwith in the modern era of statutory construction was discussed by the Court in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 (at [94]-[95], quoting from Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10 at [49]-[53] per Robson J). In Leda the Court observed that the rule is "as the authorities above are at pains to emphasise, a rule of last resort" (at [97]).
6. More recently, Kiefel CJ and Keane J in The Queen v A2 [2019] HCA 35 stated that (at [52], referring to Beckwith at 576 and Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164, footnotes otherwise omitted): 52 A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any "loose" construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.
7. This is consistent with the decision in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [57]).
8. The general principles to be applied when construing statutes were summarised in A2 as follows (at [32]-[37], footnotes omitted): 32 The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. 33 Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. 34 This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight. 35 The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation. 36 These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision. 37 None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.
9. Having regard to the principles and authorities referred to above, there is, in my view, no warrant for construing s 190(1) of the NPWA as requiring a prosecutor to make an election between the two time periods stipulated in that section. The plain and unambiguous wording of that provision permits the prosecutor to rely on either or both time limits. A broader rather than narrower interpretation of s 190(1) of the NPWA accords with the purpose of the provision, which includes a recognition by the legislature that the commission of some of the offences created by that Act may not be immediately detectable and that additional time may therefore be needed to commence proceedings in order to uphold the aims of the Act. These aims include the objects expressly referred to in s 2A of the NPWA. For example, s 2A(1) of the NPWA states: 2A Objects of Act (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers,…
10. In the present case, in relation to the possession offences, the nominated date is coincident with both the date on which the offence was committed having regard to the continuing nature of the act of possession constituting an element of the offence in ss 101(1) and 118B(1), and the date (for the reasons explained fully below) upon which the offence "first came to the attention of" Mr Wade, viz, 10 November 2016. In these circumstances, OEH has satisfied both limbs of s 190(1) of the NPWA and in doing so it is not required to elect which time limit it relies upon to the exclusion of the other. Provided that one of the time periods specified is met, the proceedings will have been commenced within time.
11. In my view, having regard to the evidence, OEH has discharged to the requisite degree its obligation of demonstrating that the date on which the possession offences were committed was on or about 10 November 2016. This was the date upon which the warrant was executed and the eggs were found to be in Mr Somerville's possession or control. The elements of the ss 101(1) and 118B(1) offences were complete as at that date. The possession summonses having been filed on 6 November 2018, the proceedings for the possession offences were commenced within time.
12. If, however, the above reasoning is flawed, OEH can still rely on s 190(1)(b) because Mr Somerville has not, for the reasons given below, discharged his onus of proving to the contrary, that is, of establishing that the alleged possession offences first came to the attention of Mr Wade earlier than the date specified in the summons, namely, 10 November 2016.

Whether the Circumstantial Evidence That First Came to Mr Wade's Attention Prior to 6 November 2016 Fell Within the Proper Construction of s 190(1)(b) of the NPWA

1. It is convenient to deal with the remaining issues for determination together. Assuming, contrary to the reasoning above, that OEH did elect to exclusively rely on s 190(1)(b) for the ss 101(1) and 118B(1) NPWA offences and accepting that it did rely wholly on s 190(1)(b) for the harm offences, what is the proper construction of s 190(1)(b) having regard to s 190(4) of that Act?
2. It did not appear to be a matter of controversy that when s 190(1)(b) is construed together with s 190(4) of the NPWA, as is required by the latter provision, the former provision reads as follows: "within but not later than 2 years after the date on which evidence of [any act or omission constituting] the alleged offence first came to the attention of the authorised officer". I accept this to be a correct reading of s 190(1)(b) of the NPWA.
3. Rather, controversy surrounded whether it was sufficient that the evidence referred to in s 190(1)(b) was evidence of any act or omission constituting an alleged offence under the NPWA with which Mr Somerville was charged or whether, and more specifically, evidence was required of any act or omission constituting the precise offence as particularised in the summonses.
4. Mr Somerville posited the former construction and contended that because circumstantial evidence (as described in the Statement of Facts and the application for and grant of the search warrant) of acts preparatory to the commission of both the harm and the possession offences came to the attention of Mr Wade prior to 6 November 2016, all 22 charges were commenced out of time. This objective evidence was reinforced by references throughout the application and the grant of the search warrant that Mr Wade held a belief that the warrant was needed to seize evidence connected with "the alleged offences", such offences including contravention of ss 101(1), 118A(1) and 118B(1) of the NPWA, and that "the above offences have been committed under the NPW Act". It was also consistent with the statutory requirements of the power exercisable under s 199 of the POEOA, requiring a belief on reasonable grounds that a contravention of the Act has been, or is taking place, at the relevant premises.
5. OEH submitted, however, that a nexus was required between the evidence of the acts and omissions and the particular offence with which Mr Somerville had been charged and that the circumstantial acts relied upon by Mr Wade to obtain the search warrant and his subjective belief that some or all of the offences referred to in the application had been committed was not sufficient. Rather, it was not until the warrant was executed on 10 November 2016 that the elements of the offences crystalised and that evidence of any act or omission constituting the offences contained in ss 101(1), 118A(1) and 118B(1) came to Mr Wade's attention. This was because prior to this date there was no evidence of "any act constituting the offence", but merely evidence of circumstantial acts which may have been preparatory to an act constituting the offences in question.
6. Put another way, OEH contended that the composite phrase "evidence of any act…constituting the offence" (emphasis added) in s 190(4) of the NPWA meant evidence of any act constituting an element of the offence charged. In other words, it sought to insert into the definition in s 190(4) of the Act the words "an element of". Thus: 1. in respect of the s 118A(1) harm offences, what was required to enliven the time period within which proceedings had to be commenced for the purposes of s 190(1)(b) was evidence of acts constituting "harm" (as that term is defined in s 5) for the purpose of s 118A(1)(a) or the use of any of the objects referred to in s 118A(1)(b); and 2. in relation to the possession offences charged under ss 101(1) and 118B(1), what was required was evidence of acts constituting the possessing or controlling of any protected fauna or animal (or animal part) referred to therein.
7. In response, Mr Somerville submitted that to insert any such words into s 190(4) (and therefore s 190(1)(b)) constituted an unwarranted and impermissible gloss on the proper meaning of that provision, transforming "any act" into "a specific act". To read s 190(4) in the manner contended by OEH would, moreover, lead to absurdity insofar as a prosecutor could reset the time within which proceedings had to be commenced if better evidence was obtained by reason of a compulsory process such as the execution of a search warrant, thereby obviating the intended operation of s 190(1)(b) of the NPWA. Furthermore, this would, Mr Somerville stated, have the effect of rendering all but otiose the words "first came to the attention of" in s 190(1)(b) of the NPWA, as that clause would be left with little, if any, work to do (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382).
8. According to Mr Somerville, correctly interpreted, s 190(1)(b) (when read with s 190(4) of the NPWA), is broad enough to include the ancillary acts of looking for, foraging, or hunting as evidence of an act constituting both the possession offences and the harm offences. These acts first came to the attention of Mr Wade prior to the 10 November 2016 date specified in the summonses, and more particularly, they first came to his attention prior to 6 November 2016 (that is, two years prior to the date upon which the 22 proceedings were commenced). Therefore, the proceedings were commenced out of time in respect of both the possession offences and the harm offences.
9. In my opinion, the submissions of Mr Somerville ought not be accepted. Significantly, it should be noted that in drafting ss 190(1)(b), 190(2), and again in s 190(4) of the NPWA, the deliberate use of the indefinite article "the" when referring to "the offence" and not "an" is a strong textual indicator that a nexus or connection between the acts or omissions and the offence as charged is required. In other words, acts or omission of any offence charged under the NPWA will not suffice for the purpose of s190(1)(b).
10. While this begs the question as to the strength of the necessary connection between the act or omission relied upon as evidence of the offence and the offence as charged, at a minimum the acts or omission must be acts or omissions referrable to the elements of the offence the subject of the summons. Section 190(4) makes it plain that the "evidence of an offence means" (and not "includes") evidence by way of an act or omission of "the" possession offences and "the" harm offences, and not mere potential offending in general under the NPWA.
11. The use of the qualifier "any act or omission" is similarly a deliberate choice by Parliament. As Mr Somerville correctly submitted, it expands the range of acts or omissions evidence of which will enliven the time within which proceedings must be commenced under s 190(1)(b). But the word "any" must be read in the context of s 190(4) as a whole, which includes the words "constituting the offence". It is not at large; it is tethered to the offence as charged.
12. It is unlikely that to be "evidence" for the purpose of s 190(4) of the NPWA, the acts or omissions must mirror exactly the particulars contained in the summons of, for example, the specific threatened species or protected fauna harmed or possessed. Nevertheless, the acts or omissions must form a part of the possession and harm offences under ss 101, 118B, and 118A of the NPWA. They must constitute, at least in part, an element of those offences. Visiting, foraging, and leaving markings in conservation areas is not an element of any of the offences charged.
13. In this regard, evidence of Mr Wade's subjective belief or suspicion that any one of the numerous offences under the NPWA that he identified in the application for a search warrant had been committed by Mr Somerville is not determinative. This amounted to no more than evidence of potential offending in general under that Act and not evidence of "the offence" as charged in the summonses.
14. Furthermore, there is, as OEH correctly submitted, "a great distance between evidence that the accused might be committing and offence and evidence of an act constituting [a particular] offence". The circumstantial evidence that first came to Mr Wade's attention prior to 6 November 2016 rose no higher than evidence that Mr Somerville might be committing, or preparing to commit, an offence. There was nothing unlawful of itself about Mr Somerville being present in the Beni or Goonoo SCAs; being seen on public or private lands; looking into bushes or shrubs or climbing trees; or even being in a caravan on a hot day. Until the search warrant was executed there was nothing linking the coloured tape to Mr Somerville. And Mr Somerville was not observed using the tomahawk or ladder, nor was he seen removing, disturbing, collecting, possessing, or harming any animal, protected fauna, or part thereof. In my view, none of these acts were sufficient to be "any act or omission constituting" the offences contained in ss 101(1), 118A(1), or 118B(1) of the NPWA. At best, these acts amounted to evidence that Mr Somerville was looking or foraging for eggs to collect at some point in the future. But these acts did not constitute an offence under the NPWA, let alone the offences with which he was charged. Accordingly, as at 6 November 2016, there was no evidence of "any acts constituting the" possession and harm offences that had first come to the attention of an authorised officer.
15. Mr Wade's knowledge of Mr Somerville's earlier convictions for wildlife trafficking in 1989 did not transform the circumstantial evidence referred to above into an act constituting any of the offences, especially given the passage of nearly 20 years since the commission of those offences. While that knowledge might give rise to an apprehension of a proclivity or tendency to harm and possess native fauna, it was not evidence that first came to Mr Wade's attention that Mr Somerville had harmed or possessed relevant fauna as at 6 November 2016.
16. It remains the fact that it was not until the search warrant was executed on 10 November 2016 that evidence of any act constituting the offences with which Mr Somerville has been charged first came to the attention of Mr Wade. Prior to this, the acts observed did not constitute the harm and possession offences, or indeed any offence under the NPWA.
17. This reasoning, at the risk of repetition, is consistent with the conclusion arrived at in Rummery (at [104]-[107]) and the reasoning and conclusion reached in Younan, where Robson J stated that (at [73] and [77]-[82]): 73 In the present case, s 127(5A) provides an exception to the usual rule contained in s 127(5) that proceedings must be commenced within two years of the alleged offence. The exception depends upon evidence of the alleged offence coming to the attention of an authorised officer. In the present circumstances, the relevant inquiry for the Court is directed towards what is meant by "evidence of the alleged offence". … 77 The ordinary meaning of the word "offence" in the present context is a crime. In law, it imports the notion of elements which must be made out beyond a reasonable doubt in order for an accused person to be found guilty. In neither sense does it import the notion of the particular offender, although obviously any criminal proceeding depends upon an identified defendant in respect of whom the elements making up the alleged offence are sought to be made out. 78 I find that "evidence of the alleged offence" on its face means evidence capable of indicating that an offence has been committed. In this circumstance, it would be insufficient merely to have evidence that construction works had commenced. An investigation officer would also need to have evidence brought to his or her attention capable of showing that a construction certificate had not been obtained. However once evidence of both of these elements is brought to his or her attention, and assuming the time limit provided s 127(5) has expired, the time limit provided by s 127(5A) is engaged. As I have explained, and in light of the prosecutor's concession, this threshold has been satisfied in the present case. 79 Although not determinative given my finding that this is the effect of the ordinary language, I am comforted in this construction by the fact that this appears a sensible operation of the section in the context of the statute. 80 In this regard, it is to be observed that a two-year time limit ordinarily applies from the time at which the offence is committed. Where s 127(5) applies, the two-year period includes the time it takes a council or prosecuting authority to conduct its investigations (including identifying the defendant) and prepare the matter for trial. Having regard to the ordinary position, one would expect that when the exception provided for by s 127(5A) applies, the investigation and preparation is also to be completed within the two-year period. Such investigation would include any attempt to identify the persons responsible for the alleged offence. 81 The extension of time provided by s 127(5A) operates to extend the time in which a prosecutor is able to bring proceedings where the actual commission of the offence, as opposed to the identity of the offender, does not come to the attention of the prosecutor's attention until sometime later. 82 It does not permit the prosecutor from holding off investigating the offence, thereby failing to discover the identity of the person responsible and extending the period of time in which it is able to commence the proceedings. It would be unusual if s 127(5A) did have this effect given that the intention of the time limit included in s 127(5) is presumably to encourage prosecuting authorities to bring proceedings for a breach of the EPA Act as quickly as possible and create certainty in that regard.
18. In Younan, his Honour was dealing with a not dissimilar limitation provision, namely, s 127(5), (5A) and (5B) in the Environment Planning and Assessment Act 1979 ("EPAA"), although there was no equivalent provision to s 190(4) of the NPWA: 127 Proceedings for offences (5) Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed. (5A) However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6. (5B) If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established.
19. Although Robson J construed "evidence of the alleged offence" in s 127(5A) of the EPAA to mean "evidence capable of indicating that an offence has been committed" (at [78]), a complete reading of that paragraph of his Honour's judgment makes it clear that all elements of the offence charged had to first come to the attention of the authorised officer, which in that case included not only that construction works had commenced but also "evidence brought to his or her attention capable of showing that a construction certificate had not been obtained" (at [78]. The relevant charges related to the commencement of the erection of a building in accordance with a development consent but without a construction certificate in breach of s 81 of the EPAA; at [3]).
20. In any event, in the present application, as explained above, the acts relied upon by Mr Somerville do not disclose that an offence had been committed. Nor is the circumstantial evidence that first came to Mr Wade's attention capable of showing that relevant animal parts or protected fauna had been collected, harmed, or were otherwise in the possession of Mr Somerville.

Conclusion and Orders

1. Having regard to the proper construction of s 190(1) of the NPWA as elucidated above, I do not find either that OEH was required to elect between the time periods specified in that provision (it is sufficient if the proceedings were commenced within one of the limitation periods referred to therein) or, in relation to s 190(1)(b) of that Act, that the body of circumstantial acts relied upon by Mr Somerville to establish to the contrary was sufficient to enliven the time period within which the proceedings were required to be commenced by OEH, to the effect that as at 6 November 2018, the 22 charges were time barred.
2. Mr Somerville's notice of motion must therefore be dismissed.
3. In relation to costs, both parties have enjoyed success insofar as it may be concluded that it was the filing of the motion that caused OEH to withdraw the two 2007 harm offences.
4. Costs in Class 5 criminal proceedings are governed by Div 4 of Pt 5 of the Criminal Procedure Act 1986 ("CPA"). Generally, an order that costs are payable to either the accused or the prosecutor is not made until the conclusion of the proceedings (with an exception for costs payable upon adjournments: see s 257F of the CPA). It is therefore appropriate that the costs of the motion be reserved.

Amendments 05 December 2019 - Fixed typographical errors at [24], [46], and [70]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2019