Chief Executive, Office of Environment and Heritage v Geoffrey Phillip Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd

Land and Environment Court (NSW)|2015-04-22|Before: Pepper J

Solicitors: Webb & Boland Lawyers Office of Environment and Heritage File Number(s): 50726 and 50727 of 2014

The Defendants Apply to Set Aside Summonses on the Ground that They Fail to Properly Particularise the Dates of the Alleged Unlawful Acts of Clearing

By notices of motion filed on 16 January 2015, the defendants, Bogamildi Investments Pty Ltd ("Bogamildi"), and Mr Geoffrey Manchee, seek to quash two summonses filed by the prosecutor on 11 September 2014, on the basis that the summonses have failed to particularise an essential ingredient of the offence, namely, the exact date or dates upon which the offences charged are alleged to have been committed.
The applications are opposed by the prosecutor who asserts that offences are continuing offences and the manner of their particularisation is adequate as a consequence. Furthermore, even if defective, the prosecutor contends that, in any event, the summons may be appropriately amended.
The two sets of proceedings concern the alleged unlawful clearing of native vegetation contrary to s 12 of the Native Vegetation Act 2003 ("the NVA") from various lots that comprise part of a property known as "Kintyre" near Moree, commencing on 16 December 2008 and continuing up to 10 January 2013.
Section 12 of the NVA relevantly provides that: 12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.
Mr Manchee is alleged to have contravened s 12 of the NVA because he is a director of Bogamildi.
Section 42 of the NVA concerns the time within which prosecutions under that Act must be brought, namely, two years after either the date on which the offence is alleged to have occurred (s 42(3)), or two years after the date on which evidence of the alleged offence first came to the attention of an authorised officer (s 42(4)). The provision states that: 42 Proceedings for offences (1) Proceedings for an offence under this Act or the regulations are to be dealt with summarily before: (a) the Local Court, or (b) the Land and Environment Court. (2) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence under this Act or the regulations is the maximum monetary penalty provided by this Act in respect of that offence, or 100 penalty units (including any daily penalty), whichever is the lesser. (3) Proceedings for an offence under this Act or the regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed. (4) 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. (5) If subsection (4) 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. (6) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.
Each application was supported by an affidavit of Mr Mitchell Carrigan sworn 14 January 2015. Mr Carrigan acts as the legal representative for both defendants. The affidavits were identical in content.
For the reasons that follow, the applications in both matters must be dismissed.

The Summonses and the Defendant's Requests for Particulars

The summonses are in identical form with respect to the clearing alleged. They charge each defendant with a contravention of s 12 of the NVA in the following similar terms (emphasis added): The Prosecutor claims: 1. An order that the Defendant, Bogamildi Investments Pty Ltd (CAN 091 912 113) of 'Bogamildi' at 1 Bogamildi Crooble Lane, Moree, in the State of New South Wales, appear before a Judge of the Court to answer the charge that, between about 16 December 2008 and 10 January 2013 inclusive, (the Charge Period) at or near Moree in the State of New South Wales, it committed an offence against section 12 of the Native Vegetation Act 2003 (the Act), in that it cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or a property vegetation plan. Particulars: (a) Place of offence: At or near the property 'Kintyre', Newell Highway, near Moree, including lots 29, 35, 36, 37 and 38 in DP 756014, lot 30 in DP 1098703 and lot 100 in DP 131067 Parish of Mount Pleasant, County of Stapylton, in the Moree Plains local government area. (b) Native vegetation cleared Species including Casuarina cristata (Belah), Eucalyptus populnea (Poplar Box) and Alectryon oleifolius (Western Rosewood). (c) Manner of breach (i) The Corporation cleared native vegetation by means of machinery including a bulldozer; and/or (ii) The Corporation was the landholder of land on which the clearing of native vegetation was carried out. (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 an authorised officer, being Glendon Eric Turner, on 12 September 2012. 2. That the Defendant be dealt with according to law for the commission of the above offence. 3. An order that the Defendant pay the Prosecutor's costs. 4. Such orders as the Court in its discretion sees fit to make.
Correspondence attached to the affidavits revealed that on 21 October 2014, the defendants wrote to the prosecutor requesting the following particulars of the summons (emphasis added): Request for particulars The summonses generally claim that 'between about 16 December 2008 and 10 January 2013' the defendants cleared native vegetation 'at or near the property 'Kintyre', … including lots 29, 35, 36, 37 and 38 in DP 756014, lot 30 in DP 1098703 and lot 100 in DP 131067 … in the Moree Plains local government area'. Please provide us with the following particulars of the alleged offences: 1. By reference to a map, aerial photograph or plan, identify precisely the portion/s of each lot allegedly cleared of native vegetation. 2. What is the area of each portion allegedly cleared of native vegetation? 3. On what date was each such portion allegedly cleared? 4. Specify each native species allegedly cleared from each such portion.
The request was translated into an order by Biscoe J on 24 October 2014.
Therefore, on 28 October 2014, the prosecutor provided the defendants with the following particulars (emphasis added): Particulars 1. This question is not a proper request for particulars. However, I refer you to Appendix B, Image 2 on page 33 of Paul Spiers affidavit filed on 11 September 2014, which is an aerial photograph identifying the areas or polygons, within each lot on Kintyre, cleared of native vegetation. I enclose a supplementary affidavit and expert report of Paul Spiers filed on 27 November 2014, which includes 3 aerial photographs identified as Appendix B, Images 2(i), 2(ii) and 2(iii) (pages 10, 11 and 12 of the supplementary affidavit) identifying the areas or polygons, within each lot on Kintyre, cleared of native vegetation. I note from the expert evidence of Paul Spiers filed on 27 November 2014 that no clearing of native vegetation is alleged on lot 35 in DP 756014 or lot 100 in DP 131067 between about 16 December 2008 and 10 January 2013 inclusive (the Charge Period). 2. This question is not a proper request for particulars. However, the areas or polygons in each lot on Kintyre, cleared of native vegetation, have been provided on pages 30 and 31 of Paul Spiers affidavit filed on 11 September 2014 in Table 4. This table has been reproduced on page 8 in the enclosed supplementary affidavit of Paul Spiers filed on 27 November 2014 as Table 4A on page 8 to include on those areas of Kintyre that were cleared of native vegetation during the Charge Period. 3. The areas on Kintyre were cleared of native vegetation during the Charge Period. 4. The species cleared from the areas on Kintyre during the Change (sic) Period include one or more or all of the following: Common Name Scientific Name Growth Form Poplar Box Eucalyptus populnea Tree Western Rosewood Alectryon oleilfolius Tree Belah Casuarina cristata Tree Wilga Geijera parviflora Tree Thorny Saltbush Rhagodia spinescens Shrub Warrior Bush Apophyllum anomalum Shrub Budda Eremophila mitchelluii Tree Native Orange Capparis mitchellii Shrub

Thus in the second paragraph of the letter, the prosecutor particularised the areas allegedly cleared by reference to tables contained in two reports by an expert witness, Mr Paul Spiers, dated 8 September 2014 and 27 October 2014, respectively ("the Spiers reports").
Neither of the Spiers reports were before the Court for the purpose of this application. However, it was not a matter of controversy that the Spiers reports defined the cleared areas as polygons on maps with reference to tables attached to the reports. The tables specified clearing between 2008 and 2013, but without any reference to a day or month.
Critically for present purposes, in the letter providing the particulars the prosecutor informed the defendants that in respect of the limitation period, paragraph 1(d) of the summonses was no longer relied upon (s 42(4) of the NVA) and that s 42(3) of the NVA would be relied upon instead.
This was important because instead of the summonses only having to contain the date on which the offences first came to the attention of the authorised officer (12 September 2012), the summonses now had to contain particulars of the date or dates on which the offences were committed (see s 42(3) and (5) of the NVA).
Amended summonses have not been served on the defendants reflecting this change of position by the prosecutor.

Issues to be Determined

The gravamen of the defendants' oral and written submissions may be summarised as four-fold: 1. first, in alleging that an offence was committed between "about 18 December 2008 and 10 January 2013", the prosecution contemplates that the offences may have been committed prior to 12 September 2012, and if so, they are statute barred; 2. second, the failure of the prosecutor to specify with greater precision the date or dates in the summonses of the alleged acts of unlawful clearing denies the defendants of a substantial understanding of the case brought against them; 3. third, the summonses cannot be amended either at common law or pursuant to statute because the defect in failing to identify when the alleged unlawful acts occured is so fundamental that they are a nullity; and 4. fourth, even if the summonses were amenable to amendment, the Court would not exercise its discretion to do so because it would be unjust to the defendants.

The Defendants Are Entitled to be Told the Essential Factual Ingredients of the Offences Alleged in the Summonses

It is somewhat trite to state that a defendant is entitled to be told of the legal nature of the offence alleged. In addition to the particular act, matter or thing that is alleged is the foundation of the charge (Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [26], Johnson v Miller [1937] HCA 7; (1937) 59 CLR 467 at 489 and Environment Protection Authority v Riverina (Australia) Pty Ltd [2015] NSWCCA 165 at [102]). Moreover, it may readily be accepted that counts "should be framed with all such specificity as to time, place and circumstance as is possible" (Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [160] quoted in WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66 at [127] and [155]). This is to enable the defendant to identify the charges with which he or she is required to answer (WGC at [155]).
An indictment (or in this Court, a summons: see s 15(2) of the Criminal Procedure Act 1986 ("the CPA"), which defines "indictment" to include a summons), that fails to specify these essential elements is defective and is liable to be set aside.
Accordingly, in order to successfully prosecute each of Bogamildi and Mr Manchee, the prosecutor must establish beyond reasonable doubt each of the following elements of the offence: 1. that Bogamildi cleared vegetation, 2. that the vegetation was native vegetation; 3. that the clearing was not in accordance with a development consent or a property vegetation plan ("PVP"); and 4. in respect of Mr Manchee, that he was a director of Bogamildi at the time of the clearing.
The prosecutor submitted that the summonses provided particulars of these elements as follows: 1. the location of the alleged clearing, namely, at or near Kintyre, including the lots or portions of the lots alleged to have been cleared; 2. the date, namely, between 16 December 2008 and 10 January 2013, of the clearing; 3. the native vegetation that was cleared, namely, Belah, Poplar Box and Western Rosewood, Wilga, Thorny Saltbush, Budda and Native Orange; and 4. the manner in which the vegetation was cleared, viz, by means of machinery, including a bulldozer.
Ordinarily the date of an alleged offence is not an element of the offence, but is a particular that the prosecutor need not prove beyond reasonable doubt (Environment Protection Authority v Du Pont (Australia) Ltd (No 2) [2013], NSWLEC 99 at [7]; Ex parte Bignell (1915) 32 WN (NSW) 91; R v Dossi (1918) 13 Cr App R 158 at 159; Environment Protection Authority v Emerald Peat Pty Ltd [1999] NSWLEC 28 at [12] and WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66 at [43], [124] and [156]).
The prosecutor concedes, that by reason of s 42(3) of the NVA, time is rendered an essential factual ingredient of a contravention of s 12 of the NVA (R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373; Environmental Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; (2013) 85 NSWLR 125 at [48] and Riverina at [95]). The prosecutor also concedes that it cannot provide any greater specificity as to the date upon which each lot or portion thereof was cleared. But the prosecutor asserts that it was not required to do so because the clearing alleged to have been carried out by the defendants occurred in the course of a continuing operation over the entirety of the charge period. In other words, the prosecutor asserts that the acts of unlawful clearing formed part of a continuing offence.

Is a Failure to Specify the Dates of the Alleged Acts of Unlawful Clearing a Fatal Defect in the Summonses?

The defendants contend that by failing to specify the particular dates upon which the clearing is said to have occurred, the charge period encompasses a period of time that is more than two years prior to the date on which the proceedings were commenced, viz, 11 September 2014, and which is time barred.
According to the defendants, s 42 of the NVA renders the time or date of the impugned act to be an essential factual ingredient of an offence under s 12 of the NVA. Furthermore, because the prosecutor relies on s 42(3) of the NVA, and not s 42(4) of that Act, the charges must, in conformity with the plain and unambiguous text of the former provision, notify the defendants of "the date on which the offence is alleged to have been committed", that is to say, the particular occasion or occasion on which the defendants were alleged to have unlawfully cleared native vegetation.
The proscription in s 42(3) can be contrasted with the express words of s 42(5) of the NVA that the charge "need not contain particulars of the date on which the offence was committed", but only particulars "of the date on which evidence of the offence first came to the attention of the authorised officer". The legislature has, therefore, drawn a distinction in s 42(3) and (4) between offences that have been committed and offences that have been discovered.
This difference, the defendants submitted, evinces a clear intention by Parliament that the summonses in these proceedings, founded as they are on s 42(3) of the NVA, must contain the precise date or dates of the offences. The purpose of s 42(4) is to enable the prosecution of unlawful acts of clearing that have remained undiscovered and would otherwise be time barred, provided proceedings are commenced within two years of their discovery. Whereas s 42(3) observes more orthodox limitation principles and does not permit a charge to be brought unless it was commenced within, but not later than, two years after the offence is alleged to have been committed. Were it otherwise, the defendants argued, s 42(4) would be rendered otiose.
Hence, the summonses filed on 11 September 2014 could only allege acts of unlawful clearing occurring on or after 12 September 2012. Any alleged act or acts of clearing that have occurred prior to this date were, the defendants contended, time barred. To the extent that the charge period purports to rely on acts of clearing prior to 11 September 2012, the summonses are fundamentally flawed and are a nullity (R v Janceski [2005] NSWCCA 281 at [50] and John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 520).
The defendants submitted that as framed the summonses do not provide sufficient information and reasonable particularity as to the nature of the offences charged.
For the reasons that follow, I disagree.
First, in order for the defendants to succeed they must convince the Court that the identification of the date of the alleged offences in the charge period commencing on a date more than two years prior to the date on which the proceedings were instituted is a defect, notwithstanding that the final date in of the charge period is less than two years prior to the date on which the summonses were issued.
Unless expressed otherwise, where a statute, in this case the NVA, provides that proceedings for an offence created by the enactment must be instituted within a specified time, the limitation period commences to run from the date on which the offence was completed (Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 83 per Hunt CJ at CL). A prosecutor need not demonstrate that both the act of the offender, and the consequence of that act, occurred within the same limitation period. Rather, the prosecutor must merely show that the offence has been completed within the limitation period (Bathurst at 83).
As it submitted, in the present proceedings it was sufficient for the prosecutor to allege a continuing offence, the constituent acts of which commenced on 16 December 2008 and continued up to 10 January 2013. This meant that the offence was not complete until 10 January 2013, well inside the two year limitation period.
It has long been the case that where acts form part of the same transaction or criminal enterprise, they can be charged within a single count (Environment Protection Authority v Truegrain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 at [48] - [51]). The question of whether a statute attaches criminal liability to an ongoing criminal enterprise, as opposed to a particular individual act, is a question of statutory construction (Truegain at [51]). In the context of the unlawful clearing of native vegetation, the courts have tended to construe offences such as the one created by s 12 of the NVA as admitting of a continuous course of conduct.
Thus, for example, the decision in Dendy v Brinkworth [2006] SASC 179; (2006) 97 SASR 407 concerned the clearing of native vegetation contrary to s 26 of the Native Vegetation Act 1991 (SA), which simply stated that "a person must not clear native vegetation unless the clearance is in accordance with this Part". Native vegetation was cleared from 27 separate areas of the respondents' land. The form of each count was as follows (at [4]): [4] The form of wording for each count challenged by the respondents follows the same pattern. I take the single count in complaint number AMC-05-11637 as an example. This count alleges that: "Between the 22nd day of March 2002 and the 1st day of November 2002, the first and second defendants cleared native vegetation from Allotment Pieces 227 and 228 in Deposited Plan 59182, previously described as Section 12, in the Hundred of Neville, in the County of Cardwell in the South East of South Australia, contrary to Part V of the Native Vegetation Act, 1991. Particulars 1 On and from 28 November 2001, the first and second defendants were registered as the perpetual lessees of Section 12 in the Hundred of Neville, being land described in Crown Lease Register Book Volume 1253 of Folio 13, now described as Allotment comprising pieces 227 and 228 in Deposited Plan 59182 in the Hundred of Neville (hereinafter referred to as 'the subject land'). 2 Between 22 March 2002 and 1 November 2002, the first and second defendants, caused or permitted the clearance of native vegetation from areas of the subject land, without the consent of the Native Vegetation Council. 3 Native vegetation was cleared from 27 separate areas of the subject land. The total of all areas cleared was 7.32 hectares. 4 The vegetation was regrowth of more than 15 years of age. 5 The native vegetation cleared comprised the species Eucalyptus diversifolia (Coastal White Mallee), Xanthorrhoea caespitose (Sand-heath Yacca), Melaleuca halmaturorum ssp. halmaturorum (Swamp paper-bark) and Melaleuca Ianceolata ssp. Ianceolata (Dryland Tea-tree)."
At issue was whether the court below had erred in dismissing the charge for duplicity. After quoting from Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157; (2005) 139 LGERA 449 (at [22]), Duggan J upheld the appeal concluding that the offences could be charged as continuing offences and that therefore the prosecution did not need to identify each occasion on which an single offence might have been committed. After noting the charge his Honour said (at [24]-[26]): [24] In my view, it was open to the appellant to charge the respondents in a single count on the basis that the act of clearing was a continuous offence in relation to the same parcel of land over a period of time. I do not think that the fact that the appellant was able to identify 27 sites from which it was alleged native vegetation had been cleared, of itself, rendered the complaint duplicitous. This assertion in the particulars does no more than identify the locations on the parcel of land from which vegetation had been removed. The charging of 27 counts would not assist in identifying when, according to the allegations, the removal took place, whether vegetation on one or more areas was removed on a single occasion, or whether the removal of vegetation from a particular site took place on the one occasion or over a period of days, weeks or months. It would appear that the prosecution could not provide this degree of particularity. [25] It was appropriate to particularise in the complaint the 27 sites and the total area alleged to have been cleared. Apart from anything else, this was a factor relevant to sentence. However, the reference to the sites did not imply that the prosecution could identify any occasion on which a single offence might have been committed. Of course, the prosecution could have included 27 counts in the complaint, but this would not have identified 27 acts, each constituting an offence. The prosecution could do no more than assert continuous conduct over a period of months. [26] It is obvious that the various sites were not all cleared of vegetation on the same occasion. However, it was open to the prosecution to argue that, by reason of the nature of the act of clearing and the proximity of the sites, this was a continuous or continuing offence.
The decision was confirmed on appeal in Brinkworth v Dendy [2007] SASC 120; (2007) 97 SASR 416.
In Bentley v BGP Properties the respondent was charged with causing damage to the habitat of threatened species vegetation knowing that the land was habitat of that kind contrary to s 118D(1) of the National Parks and Wildlife Act 1974. It was contended that the charge was duplicitous and that any proposed amendments could not cure the defect. The Court of Criminal Appeal agreed, but nevertheless went on to remark that (at [55]-[56]): [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.
These comments are entirely apposite in the context of contraventions of s 12 of the NVA.
Similarly, in Director-General, Department of Land and Water Conservation v Greentree [2003] NSWCCA 31; (2003) 131 LGERA 234, the Court of Criminal Appeal held that (at [37] and [41]-[43]): 37 The defendants complain that the prosecutor has not specified the dates on which native vegetation was cleared and the acts of clearing by each employee. … 41 The offence of clearing native vegetation is of its nature likely to occur over days, weeks or months. Unlike the offences in S v The Queen, the presence of native vegetation on one day and its absence on another, is in itself evidence of clearing. 42 The prosecutor relied on the decision of this Court in EPA v CSR Ltd [2000] NSWCCA 373 where it was held that the trial judge had not erred in determining that the particulars provided to CSR of the offence of, without lawful authority, negligently causing a substance to leak in a manner which harmed the environment from 1992 until 1997 or 1998 were adequate in the circumstances. Effluent was pumped into a lagoon. From 1992 it was known that the lagoon was leaking. If it was desired to continue using the lagoon the leak had to be stopped. It was not placing the effluent into the lagoon that constituted the offence. That was only part of the circumstances. 43 What emerges from the cases is the need to have regard to the nature of the offence and the facts, matters and circumstances relied upon by the prosecutor when considering the question of particulars. With some offences, the commission of the offences may be clear, even admitted, but the details of their commission may lie and be expected to lie within the bosom of the defendant. The prosecutor may only be able to specify a period within which the offence occurred. That does not, of itself, usually result in a decision that adequate particulars have not been supplied.
Although Greentree concerned a prosecution under s 21(2) of the Native Vegetation Conservation Act 1977, the predecessor to s 12 of the NVA, the elements of both offences are sufficiently similar to render the statements made by the Court of Criminal Appeal applicable to the present prosecutions.
I therefore find that a breach of s 12 of the NVA can consist of a continuous offence occasioned by multiple clearing events over a period of time. Furthermore, sub-sections 42(4) and (5) of the NVA do not, in my opinion, as is discussed below, fatally derogate from this conclusion.
Once it is accepted that it is open to the prosecutor to charge the offences in these proceedings as continuous offences, the limitation period is calculated from the date on which the offence was completed. This was the conclusion of the Court in Environment Protection Authority v CSR Ltd t/as CSR Woodpanels [2001] NSWLEC 41; (2001) 114 LGERA 217, where the Court, after reviewing the authorities (at [35], and see the authorities referred to at [36]-[40]), held that: 35 First, I am of the view that, whilst the defendant is correct in contending that a continuing offence may be the subject of prosecution on any day during the stipulated period, it is not correct in asserting that the limitation period commences to run from any day of that period. Rather, the limitation period commences to run from the day upon which the commission of the offence has ceased. Accordingly, if this offence is ultimately found to be a continuing offence, then no question of infringement of the limitation period will arise, because the period will commence to run from some date in 1995, and the proceedings were instituted within three years thereafter.
That case involved a charge brought under s 6(1) of the Environmental Offences and Penalties Act 1989 alleging that the defendant did, without lawful authority, negligently cause a substance to leak in a manner which harmed or was likely to harm the environment. Section 12 of that Act prescribed a limitation period of three years. The proceedings were commenced on 1 August 1997. The summons did not set out any date upon which the offence was alleged to have occurred but particularised, pursuant to s 12, evidence of the offence that first came to the attention of the authorised officer on 6 December 1994. Pearlman J permitted the summons to be amended by removing that particular and instead inserting "between 1992 and 1995" as the charge period. In so doing, her Honour held that the offence could be charged as continuing offence and that, therefore, the limitation period commenced to run from the day upon which the commission of the offence ceased, namely, from some date in 1995. This meant that the proceedings were instituted within time (at [35]).
The reasoning articulated in Environment Protection Authority v CSR was affirmed and applied by the Court in Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332 (at [42], emphasis added): 42 To be accepted, Mr Hale's submission would require the date of commission of the offence to have occurred on 9 August 2001, there being no issue that the summons complied with the statutory limitation period in s 216(1). But I cannot accept this submission as accurate. The authorities make clear that a continuing offence gives rise to a complaint from day to day but it is not completed from day to day. It is completed on the day that the contravention ceases. In the case of a continuing offence, the statutory limitation period commences to run from the last day of the commission of the offence (see Cook v Cook (1923) 33 CLR 369; Ex parte Wakefield (1927) 27 SR (NSW) 261 and J Robins and Sons Ltd v Maloney (No 2) (1935) AR (NSW) 155 which are discussed in Environment Protection Authority v CSR Ltd t/a CSR Woodpanels (2001) 114 LGERA 217 at pars 32 - 41).
In Huntley, the corporate defendant was charged that from 15 March 2001 continuing until 29 August 2001, it contravened an environment protection licence by accepting construction and demolition waste in breach of its licence conditions. Under the relevant statute creating the offence, proceedings had to be commenced within 12 months of the date upon which the offence was alleged to have been committed. The summons was issued on 9 August 2002. It was argued that no prosecution of the contravention of the licence could be maintained for any period earlier than 9 August 2001 because it would be statute barred. The argument was rejected by the Court not only for the reasons given immediately above but because (at [43]): 43 In this case, the last day of the commission of the offence was 29 August 2001. The summons was filed within a period of 12 months from that date, so that the statutory limitation period prescribed by s 216(1) was complied with. The defendant commenced to contravene the licence when it accepted C&D material at the premises on 15 March 2001 and it continued to contravene the licence until 29 August 2001.
Pearlman J's reasoning is, moreover, consistent with the opinion expressed by Hunt CJ at CL in Bathurst City Council, where his Honour stated (at 83): 83 In the present case, the defendant submitted that the prosecutor has to show both the act of the offender and the consequences occurred within the limitation period provided by s 12. I do not accept that submission. What the prosecutor has to show is that the offence became complete at a time within that limitation period.
Applying these authorities to the present facts, the limitation period began to run on 11 January 2013. Therefore, provided the summonses were filed within two years of that date, which they were, no part of the continuing offences with which Bogamildi and Mr Manchee have been charged are statute barred.
Second, in my opinion, the existence of sub-sections 42(3), (4) and (5) of the NVA do not act to abrogate this established line of authority. In particular, s 42(5) should not be used to construe s 42(3) as requiring identification of the precise date on which each alleged act of unlawful clearing was committed. Properly analysed that is not what either s 42(3) or 42(5) state. Section 42(3) is silent as to what particulars are required. Section 42(5) requires specification of the date on which the offence was committed, not each act giving rise to the offence. This has been adequately identified in the present summonses, namely, between 16 December 2008 and 10 January 2013. True it is that some of the conduct relied upon by the prosecution reaches back in time beyond the two year period prior to the summonses being filed, but this does not matter. The offence was committed, in the sense of the last alleged act of clearing was completed, on 10 January 2013. This is within the time limitation specified in s 42(3) of the NVA.
Section 42(4) of that Act does no more than permit prosecutions to be brought that would otherwise be clearly out of time. This may, especially given the difficulty of ascertaining breaches of the Act in remote locations, be many years outside the two year time limitation. It must be acknowledged that there may be factual scenarios, such as the present case, where a prosecutor can potentially avail itself of either limitation period contained in s 42 of the NVA, however, it is more easy to envisage circumstances where the prosecutor does not know when the clearing occurred but, for example, through a routine comparison of aerial photographs, an officer becomes aware that a contravention of s 12 may have occurred. In this instance, contrary to the submission of the defendants, s 42(4) will have considerable work to do, irrespective of s 42(3). In short, I am unconvinced that, as a matter of construction, s 42(4), even when read in conjunction with (5), purports to oust from the ambit of the NVA the ability to prosecute for continuing offences.
Third, to the extent that Bogamildi and Mr Manchee contend that this construction of ss 12 and 42(3) results in unfairness, it must be recalled that at trial the prosecutor must still prove beyond reasonable doubt that the offence is a continuing one. This will include demonstrating the location of the area cleared, the timing of the clearing, the acts bringing about the clearing, the connection of the various acts of clearing to each other, and whether the acts in question are part of an organised course of conduct or whether they are unconnected (Brinkworth v Dendy at [40]-[41] per Doyle CJ). It is not the case, as the defendants submitted, that the prosecutor can simply assert that the offence is a continuing one in order to include acts that would otherwise be statute barred.
The defendants pointed to the fact that, according to the Spiers reports, the acts of clearing relied upon by the prosecution occurred at distinct locations on the property at distinct times, and therefore, it could not be concluded that the offences with which they were charged properly constituted a single continuous offence. Ultimately the evidence may bear this contention out. But as the cases make plain, the final determination of whether the offence particularised is a continuing one must await the trial and the completion of the evidence (CSR Ltd v Environment Protection Authority [2000] NSWCCA 373; (2000) 140 LGERA 334 at [52]-[53] and Environment Protection Authority v CSR at [41]).
In summary, because the breach of s 12 of the NVA is charged as a continuing offence, the prosecutor is not required to particularise the date of each act of alleged unlawful clearing and the statutory limitation period commences to run on the last day of the commission of the offence, which in this case is 10 January 2013. The summonses are not, therefore, defective.

If the Summonses are Defective, Can the Defect be Cured?

If, however, the above analysis is incorrect, and the summonses are defective, is the defect fatal or can it be cured? The prosecutor submits that it can, whereas the defendants submit that it cannot.
The prosecutor submits that there are two methods by which the asserted defect may be overcome: 1. first, by reason of s 16(2)(a) of the CPA; and 2. second, by amending the charges including, if necessary, the provision of further particulars, pursuant to either ss 20 and 21 of the CPA, or s 68 of the Land and Environment Court Act 1979 ("LEC Act").
In this regard, it should be noted that the prosecutor accepts that a fresh or replacement summonses cannot be laid because the limitation period has now expired. The prosecutor also concedes that s 16(1)(g) of the CPA does not assist because s 42(3) of the NVA has made time an essential factual ingredient of the offence.
Section 16(2)(a) of the CPA provides that: 16 Certain defects do not affect indictment (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form…
By way of corollary, ss 20 and 21(1) of the CPA state as follows: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.
These complementary provisions enable the Court to disregard formal and technical objections being taken if the proceedings are to be tried summarily, and to permit amendment of the summons in appropriate circumstances.
The defendants argued that these provisions, and s 16(2) of the CPA in particular, had no application because the defect here was so fundamental, and not a mere formality or technicality, that the charge was a nullity. And thus, that by parity of reasoning, the summonses could not be amended because there was nothing to amend. The charges were a nullity because, according to the defendants, there was no offence capable of prosecution under s 12 of the NVA that rendered the clearing of native vegetation outside the two year limitation period unlawful. In other words, it was an offence not known to law.
At common law, an indictment is defective and liable to be quashed if it fails to identify "an essential factual ingredient" of an offence (Doja v R [2009] NSWCCA 303 at [105] per McClellan CJ at CL). But this formulation has subsequently been qualified (see Rockdale Beef Pty Ltd v Industrial Relations Commission (NSW) [2007] NSWCA 128 at [122] per Basten JA), and it has since been recognised that the common law approach has been moderated (Doja at [121]) by s 16 of the CPA (and its equivalents); which "confines the deficiencies in a pleading that may void an indictment" (Doja at [121]). Nevertheless a charge that discloses no offence whatsoever cannot be remedied (Doja at [3] and [4] per Spigelman CJ).
The application of s 16(2) of the CPA was at issue in Rockdale. In that case, a contractor was injured when working in the boning room of an abattoir owned by Rockdale Beef Pty Ltd ("Rockdale"). Two charges were laid against Rockdale. In the Industrial Relations Commission, both were dismissed. One of the charges was based on the factual premise that Rockdale was a person who had control of plant used by people at work. The trial judge considered that this charge was fatally flawed because it failed to allege an essential legal element of the offence, namely, that the plant in question was controlled in the course of a trade, business or other undertaking, as required by the provision giving rise to the offence.
The Court of Appeal expressly disavowed the proposition that s 16(2) will not save an information that fails to specify an essential legal element of the offence (Rockdale at [119] per Basten JA). The appropriate classification of what was amenable to amendment pursuant to s 16(2) of the CPA, and what is not, is not aided by distinguishing between the essential elements of the offence and the essential legal particulars of the offence (at [122]). Rather, as long as the defect can be remedied by amendment, the charge will not be void and the proceedings will not be based on a nullity (at [123]).
In Rockdale the Court of Appeal held that because the charge stated that the plant, a drag chain conveyor, was used by people at work and was controlled by Rockdale, no serious defect existed the relevant charge and the allegation of criminal activity would not be further advanced by expressly stating that the plant was controlled in the course of a business. Furthermore, even if the omission were a substantive defect, it fell within the terms of s 16(2) of the CPA and the charge could be amended. In other words, the defect ought not be read as not clearly identifying the nature of the offence charged in some material respect, and no irremediable unfairness would result by permitting the amendment (at [131]-[133]): 131 The fact that s 16(2) (and its predecessors) has been held not to apply in relation to necessary particulars, does not mean that it has no effect in relation to a statement as to the nature of the offence. In Knaggs, Campbell JA noted that the deficiencies in a court attendance notice could be "so gross that as a matter of construction s 16(2)(a) would be read as not applying to them": at [48]. That may be conceded, in circumstances where doubt is left as to the precise offence which is sought to be charged; but that is not this case. Where an offence is identified, in terms which admit of no uncertainty or ambiguity, it would be to ignore the purpose and intended effect of s 16(2) to find that proceedings had not been validly commenced because a phrase had been omitted which described a particular element of the offence which was in substance an extended description of the circumstances in which the section operated, rather than an additional element. In other words, the allegation that a person had control of plant used by people at work, the plant being identified as a drag chain conveyor, is not advanced by saying that the plant was controlled in the course of a business. However, if that were a defect and a matter of substance, it nevertheless fell within the literal terms of s 16(2). 132 More broadly, whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given. If the notice could be read as not clearly identifying the offence charged, or at least "the nature of" that offence, in some material respect, the defect might be outside the scope of the remedial provision. The effect of s 16(2) may be seen to weaken the mandatory statutory requirement with respect to notice, by removing a basis of invalidity. However, its operation will not depend on the good faith of the prosecutor, but on the effect of the notice. The test for validity will differ from that applied in relation to privative clauses: see R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 616; Plaintiff S157/2002 v The Commonwealth(2003) 211 CLR 476 at [19]-[20] (Gleeson CJ) and [57]-[60] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). On the other hand, the construction to be given to s 16(2) will involve reconciliation between its terms and those of a provision imposing a requirement with which there has been defective compliance: c.f. Plaintiff S157 at [69] and [77]. 133 Section 16(2) (and related provisions) do not reveal an intention to deprive a defendant of a fair trial. The possibility of a need for remedial amendment is recognised in ss 17 and 21. If irremediable unfairness would result from a particular defect, that defect might well fall outside the terms of s 16(2). No such unfairness was demonstrated in relation to the charge under s 10(2).
As adverted to above, there are some circumstances in which a defect in an indictment cannot be cured at all by amendment. In R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 and R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263, for example, s 16 of the CPA could not save an indictment that had not been signed by the person holding the relevant authority as required by s 126 of that Act. This was because this statutory requirement was an essential element of the validity of every indictment that invested the relevant court with jurisdiction to hear the charge (Halmi at [7] and Janceski at [98]).
By contrast, in Doja it was held that an indictment was not invalid, and the proceedings a nullity, in circumstances where the prosecutor had failed to plead the necessary mental element of knowledge or reckless disregard of the truth of statements made in respect of two counts of making a statement knowing it to be false or misleading with the intent to obtain a financial advantage (at [130]).
In the present case, the summonses clearly identify the nature of the offence charged, namely, the clearing of native vegetation without consent or a PVP, on the land identified and during the time period specified. In my view, there is no uncertainty or ambiguity as to the offences specified in the summonses that would preclude the operation of s 16(2) of the CPA. The defendants are hence precluded from objecting to the summonses on the ground that they fail to state the exact dates upon which the acts of alleged unlawful clearing were carried out or because some of these acts appeared to fall outside the two year limitation period. This is not to say, however, that at trial the defendants cannot object to those acts that are plainly statute barred under the NVA.
Even if this analysis is wrong and s 16(2) does not apply, the prosecutor would, in my opinion, be entitled to amend the summonses to excise those breaches of s 12 of the NVA that occurred prior to 12 September 2012, under either s 20 or s 21 of the CPA.
Amendment may be made at any stage of the proceedings, including after the close of the prosecutor's evidence and after a submission by the defendant of no case to answer (Burrell v Jacenko (1998) 99 LGERA 173 at 176-177). The power covers amendments not only of pleadings, but also of particulars (Burrell at 177). Although ss 20 and 21 refer to "an indictment", there is no relevant distinction for present purposes between amending pleadings on an indictment or a summons (Bentley v Gordon [2004] NSWLEC 410; (2004) 147 A Crim R 95 at [5]-[6]).
Section 20 of the CPA states that no amendment may be made by a prosecutor except with leave of the Court or with the consent of the accused (the latter of which is not forthcoming in this instance). Under s 21, the Court may, of its own motion, order the summonses to be amended provided that this can be done "without injustice" and provided that the Court "thinks it is necessary to meet the circumstances of the case".
In my view, the charges can be amended without any injustice to the defendants in order to meet the circumstances of the case, and I would grant leave to prosecutor to do so either pursuant to ss 20 or 21 of the CPA.
The amendment of the summons by the insertion of new dates for the charge period will not change the essential nature of the offence, which, as described above, is the clearing of native vegetation without consent or absent a PVP. While the dates when the offences are alleged to have occurred are essential factual ingredients by reason of s 42(3) of the NVA, the amendment of those dates to include only those acts occurring from 12 September 2012 onwards will not have the effect of charging the defendants with a different offence (Environment Protection Authority v CSR Ltd t/as CSR Woodpanels [2001] NSWLEC 41; (2001) 114 LGERA 217 at [18]).
This conclusion is reached notwithstanding the submission by the defendants that to allow the summonses to be amended would result in injustice to them because: 1. the prosecutor has served 11 experts' reports and affidavits, most of which would be irrelevant if it were permitted to amend the charge to allow offences only occurring after 11 September 2012, and because the defendants have had to absorb and meet this evidence thereby wasting time and costs; 2. alternatively, prejudice would result in allowing the prosecutor to proceed on the evidence already served insofar as the defendants do not know how much of that evidence the prosecutor will ultimately rely upon; 3. permitting the prosecutor to withdraw some of the irrelevant evidence and allowing it to file and serve evidence referable only to the amended charge would cause delay and additional expense; and 4. a cost order would provide no remedy to the injustice that the defendants would suffer as a consequence of any amendment.
In my opinion, particularly in the absence of any affidavit or other evidence verifying these claims, this asserted prejudice and injustice appears to be exaggerated, if not confected. While the amendment could potentially result in delay and extra costs being incurred while amended notices are served under Div 2A of the CPA, This is likely to be minimal given that no plea has been entered by either defendant, no expert evidence has been filed by the defendants in response to the prosecutor's expert evidence, and no trial date has been set. Indeed, it is possible that a truncated charge period may in fact result in a considerable savings of both time and expense as less, rather than more, evidence is required by the parties, and as less, rather than more, time is required to hear and determine the charges. And to the extent that the defendants understandably require certainty as to the scope of the prosecutor's case against them, as stated above, the prosecutor can be ordered to file amended Div 2A notices, including, an amended statement of facts, s 247E notices, in addition to directions being made for the prosecutor to identify the affidavits or portions of affidavits that it will seek to rely upon.
Finally, while there are difficulties in pursuing a costs order under s 257F of the CPA for the costs thrown away occasioned by any amendment (it is unlikely that the conduct of the prosecutor has caused the matter to be adjourned in the manner in which that provision contemplates), if at the conclusion of the proceedings the prosecution is successful, costs will nevertheless be at the discretion of the Court and any prejudice caused to the defendants as a result of the amendment can be accommodated at that juncture.
For the sake of completeness, the prosecutor also relied on s 68(1) of the LEC Act as a source of power to permit amendment of the summonses. That section states that: 68 Amendments and irregularities (1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.
The defendants argued that s 68 was not applicable because that provision only relates to a "failure to comply with this [LEC] Act or rules of Court". But not only is this submission inconsistent with the plain language of s 68(4) of the LEC Act ("this section does not apply to proceedings in Class 1, 2, 3, or 4 of the Court's jurisdiction" - thereby leaving its application to only Class 5 matters), in Environment Protection Authority v Du Pont (Australia) Ltd (No 2) [2013] NSWLEC 99 the Court affirmed its power under s 68 of the LEC Act to, at any stage of the proceedings, order amendments to be made to a summons which are "necessary and in the interests of justice" (at [4]-[5]): 4. Pursuant to s 68(1) of the Land and Environment Court Act 1979 the Court has power, at any stage of the proceedings, to order amendments to be made, including to a summons, which are "necessary in the interests of justice" (Cooper v Coffs Harbour City Council [1997] NSWSC 598; (1997) 97 LGERA 125 at 132 and Marrickville Council v Danias [2002] NSWLEC 49 at [6]). In addition, A power to allow amendments in Class 5 proceedings arises from Pt 75 r 6 of the Supreme Court Rules 1970 ("SCR") and Pt 19 of the Uniform Civil Procedure Rules 2005 ("UCPR"), both of which apply to Class 5 proceedings by dint of r 5.2 of the Land and Environment Court Rules 2007. Part 19 of the UCPR authorises the Court to amend pleadings, which for present purposes includes a summons, with leave of the Court after a date has been fixed for trial (r 19.1(1) of the UCPR). 5. Although amendment may be made at any stage of the proceedings, including after the close of the prosecutor's evidence and after a submission by the defendant of no case to answer (Burrell v Jacenko (1998) 99 LGERA 173 at 176-177), s 20 of the Criminal Procedure Act 1986 states that no amendment may be made by a prosecutor except with leave of the court or with the consent of the accused (although s 20 refers to "amendment of an indictment", there is no relevant distinction for present purposes between amending pleadings on an indictment or a summons (Bentley v Gordon [2004] NSWLEC 410; (2004) 147 A Crim R 95 at [5]- [6]). The power covers amendments not only of pleadings, but also of particulars (Burrell at 177).
Therefore, I additionally consider that amending the summonses to exclude those acts of unlawful clearing falling outside the limitation period to be necessary in the interests of justice.
Accordingly, were it necessary to do so, I would permit the prosecutor to amend the summonses to include only those alleged acts of unlawful clearing that occurred between 12 September 2012 and 11 September 2014.

Orders

Seeking by way of relief that the summonses be quashed, for the reasons given above, the notices of motion are dismissed.
The proceedings are relisted before the List Judge on 31 July 2015 for further directions.

Amendments 09 June 2023 - Typographical error amended in [38]. 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: 09 June 2023

(2004) 139 LGERA 449

(2000) 140 LGERA 334

(2003) 131 LGERA 234

(2001) 114 LGERA 217

(2003) 125 LGERA 332

(2005) 139 LGERA 449

At a glance

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Judgment (11 paragraphs)

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Cases Cited (49)

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