Somerville v Chief Executive of the Office of Environment and Heritage

Court of Criminal Appeal (NSW)|2020-04-20|Before: Johnson J, Adamson J, Bellew J, Pepper J

Solicitors: Not applicable (Appellant) Department of Planning, Industry and Environment (Respondent) File Number(s): 2018/340649 - 6522018/3406542018/340656 - 672 Decision under appeal Court or tribunal: Land and Environment Court of NSW Jurisdiction: Class 5 Citation: Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 Date of Decision: 28 October 2019 Before: Pepper J File Number(s): 2018/340649 - 652 2018/340654 2018/340656 - 672

Judgment

JOHNSON J: I agree with the reasons and proposed orders of Adamson J.
ADAMSON J: By notice of appeal filed on 2 December 2019 Anthony Somerville (the appellant) appeals pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against the dismissal of his application in the Land and Environment Court on 28 October 2019 to have charges pending against him struck out. The basis of his application was that the proceedings were time-barred by reason of s 190(1)(b) of the National Parks and Wildlife Act 1974 (NSW), as then in force (the Act). The primary judge has certified, pursuant to s 5F(3)(b) of the Criminal Appeal Act that the judgment is a proper one for determination on appeal. In these circumstances, leave to appeal is not required.

The grounds of appeal

The appellant appeals on the following grounds: "Alternative limb grounds 1. The primary judge erred by finding that the time limitation periods in section 190(1)(a) and section 190(1)(b) of the National Parks and Wildlife Act 1979 (NPW Act) could both be relied upon by the prosecutor. 2. The primary judge erred by finding that the prosecutor was not required to make an election between section 190(1)(a) and section 190(1)(b). Proper operation grounds 3. The primary judge erred in the interpretation and application of section 190(1)(b) of the NPW Act."

The background facts

On 9 September 2016, officers of the respondent began a two month period of electronic and physical surveillance of the appellant. Over this period, he was observed foraging for native bird eggs in National Parks and State Conservation Areas in the Dubbo region. As a consequence of this investigation, Bradley Wade, a Senior Investigator with the NSW Department of Planning and Environment, became aware of the matters summarised in the table set out below. Date Event Source 9 September 2016 The appellant's utility was found bogged in Beni State Conservation Area (the Area). Shortly after this incident, the Area was closed and signs posted to inform the public of the closure. Application by Mr Wade for search warrant, page 4 24 September 2016 The appellant was present in the Area carrying a tomahawk and ladder. Application by Mr Wade for search warrant, page 4 Mr Wade said, in application for search warrant: "It is suspected that [the appellant] uses the ladder to scale trees and uses the tomahawk to break up wood foraging for eggs." 25 September 2016 Footage from surveillance cameras showed the appellant entering and leaving the Area with a person who moved aside the barrier to enable access. Prosecutor's statement of facts, [7] 26 September 2016 Footage from surveillance cameras showed the appellant leaving the Area. Prosecutor's statement of facts,[8]- [9] 11 October 2016 National Parks and Wildlife Service (NPWS) discovered pink tape in the bushes near a trail inside the Area which it had not placed there. The tape was removed and discarded. Prosecutor's statement of facts, [11]-[12]; Application by Mr Wade for search warrant, page 5 11 October 2016 Mr Wade was contacted by another NPWS officer with whom he discussed a bogged vehicle and the surveillance that had been conducted. Affidavit of Mr Wade, 5.11.18, [4] 18 October 2016 Office of Environmental Heritage (OEH) officers conducted periodic surveillance on the appellant who was observed entering and leaving Bunnings Warehouse in Dubbo. Affidavit of Mr Wade, 5.11.18, [6] 19 October 2016 Surveillance revealed that the appellant and his son drove to a number of council parks and easements and were observed looking into trees and searching through bushes. The surveillance record noted: "it could not be seen whether any eggs/chicks were tampered with or taken". Application by Mr Wade for search warrant, page 5 22 October 2016 The appellant was observed climbing trees, searching through bushes and trees and parking at storage facilities. Appellant's submissions 24 October 2016 The appellant's vehicle was seen in the Area notwithstanding that the park was closed. In the application for the search warrant, Mr Wade referred to the number of threatened species which lived in the Area and the presence of the appellant's vehicle. Application by Mr Wade for search warrant, page 5 27 October 2016 The discovery of unauthorised pink tape in the Area and the suspicion engendered that the appellant was using the tape to mark out areas to return to. Application by Mr Wade for search warrant, page 5 1 November 2016 Discovery of further tape. Affidavit of Mr Wade, 5.11.18, [7] 1 November 2016 Mr Wade learned from NSW Police that the appellant and a young male were "chased" off two private farms which they had entered without permission. Application by Mr Wade for search warrant, page 5

Mr Wade was also aware (as is evident from his application for the search warrant) that, in the 1980's, the appellant had been convicted of possession of native fauna.
On 9 November 2016, Mr Wade and another officer who was also authorised for the purposes of the Act applied for, and obtained, a search warrant in respect of premises at 4 Lachlan Way, Dubbo NSW 2830 (the premises). The application was made pursuant to s 199 of the Protection of Environment Operations Act 1997 (NSW) (the PEO Act) which relevantly provided: "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. …"
The application for the search warrant set out in detail the "current investigation". It included the following passage: "OEH Investigators have conducted surveillance on Mr Somerville and a young male over a number of days. On Wednesday 19 October 2016, Mr Somerville and a younger male, again believed to be Brandan Somerville, were seen to drive to a number of council parks and easements close to his premises. Once there, they were seen to get out and walk around the parks looking at trees. The young male was also seen to climb a number of the trees, but it could not be seen whether any eggs/chicks were tampered with or taken." [Emphasis added.]
On 10 November 2016, twelve investigators from State and Commonwealth authorities including Mr Wade executed the search warrant. Before the search commenced, Mr Wade and the appellant had the following exchange: "[MR WADE]: Have you got any eggs here? [THE APPELLANT]: Yes. [MR WADE]: And what eggs do you have here? [THE APPELLANT]: Me whole egg collection."
The search revealed that the appellant possessed a large collection of preserved native bird eggs, data cards and tools. The birds' eggs had been "blown", that is, their contents, the yolk and the albumen, had been removed. It was common ground that this amounted to harm to an animal. These items were seized. The data cards maintained by the appellant revealed that some of the eggs had been in his possession since 2007. This Court was informed by Mr Tuckey, who appeared on behalf of the respondent, that none of the eggs the collection of which was recorded on the cards had been collected during the period of surveillance.

The proceedings in the Court below

On 6 November 2018, the respondent filed 23 summonses which variously charged the appellant with offences of possession and harm of fauna under the relevant provisions of the Act.
In respect of the possession offences the date nominated in the summons as the date of the offence was "on or about 10 November 2016". This was the date on which the search warrant was executed. In respect of the harm offences, a period was particularised with a different commencement date for each offence and the same end date of 10 November 2016. I assume that the data cards kept by the appellant were the source of evidence for the commencement date. In respect of both categories of offence the following paragraph was included in the particulars: "(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 an authorised officer: Evidence of the offence first came to the attention of authorised officer Bradley Wade on 10 November 2016."
The Court was informed by Mr Hemmings SC, who appeared with Mr Farrell on behalf of the appellant, that the appellant sought to enter a plea of guilty to the charges. However, a judge of the Land and Environment Court (the Court below) referred the appellant for legal advice, presumably to avoid the situation considered by this Court in Livbuild Pty Ltd v Willoughby City Council [2017] NSWCCA 255, where an appeal was allowed from an order for conviction which had been entered consequent on the appellant's plea of guilty to an offence which was ultimately accepted to be time-barred.
Ultimately, Mr Hemmings offered to advise the appellant pro bono. Initially Mr Hemmings appeared as amicus curiae but subsequently he and Mr Farrell have appeared on behalf of the appellant on the same pro bono basis. The Court is grateful for their assistance. The history set out above may be significant for the purposes of sentencing since the appellant's readiness to plead guilty at an early stage will be a relevant consideration for the sentencing judge in due course, it being accepted that if the time bar point was determined in favour of the respondent, the appellant was guilty of the offences charged.
By notice of motion filed 14 August 2019, the appellant sought orders that the charges in the summonses be struck out as being time barred.
On 16 October 2019 the respondent, in its written submissions, agreed to withdraw proceedings 340653 and 340655, which related to offences allegedly committed in 2007. It also contended that the remaining proceedings were not time barred, and that it could commence proceedings relying on either s 190(1)(a) or s 190(1)(b) of the Act.
The notice of motion was heard on 21 October 2019.
On 28 October 2019, her Honour dismissed the application, and held that, in so far as the respondent relied on s 190(1)(b), the body of circumstantial acts relied upon by the appellant was insufficient to activate the commencement of the time period with the consequence that, as at 6 November 2018, the remaining 22 charges were within time: Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155. Her Honour found, at [72]: "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."
Her Honour referred to the decision of Robson J in Cumberland Council v Younan [2018] NSWLEC 145 (Younan) and said: "[75] 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]). [76] 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."
The primary judge also found that the respondent was entitled to rely on either limb of s 190(1) and was not required to elect between the time periods specified. Her Honour said at [53]: "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."

The statutory predecessor to s 190

Before s 190 was inserted into the Act, s 176(1B) relevantly provided that "notwithstanding anything in the Criminal Procedure Act 1986, proceedings for an offence against this Act or the regulations may be taken within two years after the offence was committed."

The time bar in s 190

Section 190(1) relevantly provided: "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."
Section 190 was inserted into the Act by the National Parks and Wildlife Amendment Act 2010 (NSW). As referred to above, previously, under the old s 176(1B), there had been a single time bar, the two-year bar contained in s 190(1)(a). The Explanatory note to the Bill which became the Act said that the amendment brought the Act into line with corresponding provisions in Chapter 8 of the PEO Act. The note (at 17) explained: "[P]roposed section 190 provides that proceedings for offences under the Principal Act or the regulations under that Act may be commenced within (but not later than) 2 years after the date on which the offence occurred or on which evidence of the alleged offence first came to the attention of any authorised officer (currently such proceedings may only be commenced within 2 years of the date on which the offence occurred) …"
The Honourable Michael Veitch, Parliamentary Secretary, said in the Second Reading Speech, Legislative Council (Hansard), 1 June 2010 at 23352: "[The Bill] extends the statute of limitations period to two years from when an offence came to the attention of an authorised officer. This is consistent with other compliance regimes."
It was common ground that, in accordance with s 190(2), the date specified in the summons would be taken to be the date on which evidence first came to the attention of any authorised officer, unless the accused person adduced evidence to the contrary which established a different date on the balance of probabilities: s 141 of the Evidence Act 1995 (NSW).

The offence provisions

The provisions which created the offences of which the appellant was charged were as follows.

The possession offences: ss 101 and 118B

Section 101(1) of the Act relevantly provided that "a person shall not buy, sell or have in the person's possession or control any protected fauna". This offence carried a maximum penalty of 1,000 penalty units or one year's imprisonment or both.
Section 118B of the Act relevantly prohibited the possession of certain animals or plants as follows: "118B Buying, selling or possessing threatened species or endangered population (1) A person must not … have in possession or control any animal … that is of, or is part of, a threatened species or an endangered population."
It was common ground that the birds' eggs of which the appellant was in possession fell within the definition of "animal" in s 5 of the Act. "Bird" is defined to include "egg". "Egg" is defined to include "any part of an egg or eggshell". It was common ground that birds whose eggs were taken were part of a "threatened species" and that the relevant maximum penalty was 2,000 penalty units or 2 years' imprisonment or both.

The harm offences

Section 118A(1) of the Act relevantly provided: "(1) A person must not: (a) harm any animal that is of, or is part of, a threatened species, an endangered population or an endangered ecological community, or (b) use any substance, animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any such animal."
The expression "harm an animal" was defined by s 5 as follows: "harm an animal (including an animal of a threatened species, population or ecological community) includes hunt, shoot, poison, net, snare, spear, pursue, capture, trap, injure or kill, but does not include harm by changing the habitat of an animal."
It was common ground that the blowing of eggs for the purposes of preservation constituted harm to an animal for the purposes of the offence under s 118A(1). The prosecutor accepted that he could not rely on s 190(1)(a) for the harm offences because the precise date of commission of the harm offences was not known although, as referred to above, a range was specified.
An offence under s 118A(1) carried a maximum penalty of 2,000 penalty units or 2 years' imprisonment or both.

Consideration

I propose to address grounds 1 and 2, referred to by the appellant as the "alternative limb grounds", first, before turning to ground 3, referred to by the appellant as the "proper operation ground".

Grounds 1 and 2: the alternative limb grounds

Grounds 1 and 2, which are related, raise the same question: may a prosecutor rely on s 190(1)(a) or (b) in the alternative or is a prosecutor obliged to elect, and if so, at what time, between the two alternatives?
Mr Hemmings argued that, in respect of the harm offences, the prosecutor could only rely on s 190(1)(b) because the prosecutor accepted that, in respect of those offences, the date on which the offence was committed was unknown. The appellant argued that, in respect of the possession offences, the prosecutor could rely on either s 190(1)(a) (an entitlement to commence proceedings within two years of the date of the offence) or s 190(1)(b) but not both and that this followed from the wording of s 190.
He submitted that the purpose of s 190(1)(a) was to ensure that prosecutions were brought in a timely manner. He argued that the dispensation granted to a prosecutor in s 190(1)(b) ought be construed strictly. He contended that s 190(1)(b) would allow a prosecutor to commence proceedings outside the period of two years from the date of the offence only if the prosecutor first became aware of evidence of the offence after the date on which the offence had first been committed. Mr Hemmings submitted that s 190 did not permit the prosecutor to commence proceedings for an offence later than two years after evidence of the offence had first come to the prosecutor's attention, even if the offence was a continuing offence. He argued that such a construction would tend to reward prosecutorial lassitude and render the date on which the offence was time-barred uncertain. He submitted, further, that it would leave s 190(1)(b) no work to do with an offence such as possession.
In support of the second ground, Mr Hemmings argued that the effect of the word "or" in s 190(1) was that the prosecutor had to nominate in the summons, once and for all, which one of the two alternatives it relied upon. Mr Hemmings submitted further, and in the alternative, that, even if the prosecutor was not obliged to nominate the date in the summons, he would need to amend the summons to specify s 190(1)(a) in respect of the possession offences and that such amendment ought not be granted because the applicable time bar particularised in the summons was s 190(1)(b). He submitted that an amendment ought not be permitted to allege a time-barred offence.
The appellant sought to advance his argument by comparing the different statutory formulation adopted in s 9.57 of the Environment Planning and Assessment Act 1979 (NSW) (the EPA Act), which provides: "(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 - [certain nominated officials] … (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 any such investigation 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 such investigation officer is the date specified in the information or application, unless the contrary is established." [Emphasis added.]
The appellant contended that, had the draftsperson intended to confer two true alternatives on the prosecutor in the present case, the formulation set out in s 9.57(5), (5A) and (5B) of the EPA Act could have been adopted.
Whether the primary judge was in error in finding that the prosecutor could rely on either or both of s 190(1)(a) and s 190(1)(b) is ultimately a question of statutory interpretation. It is important that courts, when engaging in a process of statutory construction, refrain from constraining legislative drafting to particular formulations. The task of ascertaining legislative intention does not require, and is not necessarily assisted by, a comparison between drafting techniques used in different statutes to discern changes in convention or fashion. The authorities to which the Court was referred contain various formulations providing for extensions of time periods by reference to the state of knowledge of the prosecutor. Each case turns on the wording of the relevant statute.
However, it is useful to compare s 190(1) with a provision such as, for example, s 14(3) of the Secret Commissions Prohibition Act 1919 (NSW) (now repealed), which was considered by the High Court in Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25. In s 190 the prosecutor has the advantage of being entitled to commence proceedings within the later of the two periods in s 190(1)(a) and (b). By contrast, s 14(3) provided: "No prosecution under this Act shall be commenced after the expiration of two years from the commission of the offence charged, or six months from the first discovery thereof by the principal or the person advised, as the case may be, whichever expiration first happens." [Emphasis added.]
Section 14(3) of the Secret Commissions Prohibition Act was construed as imposing a general time limit of two years and conferring what was described as an "immunity from prosecution" which applied six months after the discovery by the principal. This result was achieved by the inclusion of the words, "whichever expiration first happens". As the plurality said, at 175: "It is not a fixed period of liability. The offence may or may not be discovered by the principal. Unless and until it is discovered the six months does not commence to run. In other words a new and additional fact must occur which after the effluxion of six months defeats the liability which otherwise would continue for two years. As the bar depends upon a new event, which may or may not happen, and its subsequent occurrence operates in defeasance of a liability which has been incurred, we think that the burden of proof is on the defendant."
By contrast, s 190(1)(b) is an exception to the rule in s 190(1)(a) that proceedings must be commenced within two years. The principle that, as an exception in favour of the prosecutor, it must be strictly construed (Morgans v Director of Public Prosecutions [1999] 2 Cr App R 99 at 113 (Kennedy LJ, Sullivan J agreeing)) must be doubted in light of what was said by Kiefel CJ and Keane J in The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [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." [Footnotes omitted.]
Subject to the exception considered below, an offence cannot come to the attention of any authorised officer before it is committed. Section 190(1)(b) would have no effect if it were not read as a true alternative to s 190(1)(a). Thus, the additional time bar in s 190(1)(b) must be regarded as an expansion of the prosecutor's right to bring proceedings because it authorises the commencement of proceedings in the period after two years from the offence provided the proceedings are commenced within two years of the date on which the alleged offence first came to the attention of an authorised officer. In these circumstances, there is no justification for reading the separate bases in ss 190(1)(a) and (b) as being other than true alternatives.
Continuing offences and offences of possession provide a potential exception to the proposition that one cannot know of an offence before it is committed. Suppose, for example, the prosecutor had failed to commence proceedings within two years of evidence of the commission of the offence coming to his attention (the evidence date) but that, during that period, the appellant had remained in possession of the eggs. Had the search warrant been executed, say, three years after evidence date, would the proceedings have been time-barred? If the appellant's construction is correct, the prosecutor would be time-barred from bringing proceedings. If the respondent's construction is correct, the prosecutor could still bring proceedings under s 190(1)(a), notwithstanding that the time bar under s 190(1)(b) had expired.
It is useful in this context to consider what the situation would have been prior to the enactment of the 2010 amendment which, in effect, added s 190(1)(b). The statutory predecessor to s 190(1)(a) was, as set out above, s 176(1B).
It is important at the outset to acknowledge that an offence of possession is in a somewhat special category since it involves neither an act nor omission, but rather a state of affairs, that of exercising control over a thing: He Kaw Teh v The Queen (1985) 157 CLR 523 at 564-565 (Brennan J); [1985] HCA 43 and R v Saengsai-Or (2004) 61 NSWLR 135; [2004] NSWCCA 108 at [58] (Bell J, Wood CJ at CL and Simpson J agreeing). It was for that reason that there was no crime of possession under the common law, which considered that a crime required an act: R v Heath (1810) Russ & Ry 184; 168 ER 750; Dugdale v R (1853) 1 El & Bl 435; 118 ER 499. Possession has been described as an offence of a "situational" type: Peter Gillies, Criminal Law (4th ed, 1997, LBC) at 793-794. The offence of possession may be charged in respect of any day on which the accused person was in possession of the prohibited item or items. The term "possession" is not defined in the Act. Nor is it subject to deeming provisions: cf. s 7 of the Crimes Act 1900 (NSW) and s 7 of the Drug Misuse and Trafficking Act 1985 (NSW).
The offence of possession bears some similarity to continuing offences in that such offences are not typically committed on a single occasion on a particular day. The relevant principle was stated by Lord Roskill in Hodgetts v Chiltern District Council [1983] 2 AC 120 at 128 as follows: "It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time."
The analogy between possession offences and continuing offences is not, however, exact. For example, s 195 of the Act, entitled "continuing offences" provides that where a person fails to do or ceases to do something required by the Act or the regulations by a particular time, the person is "guilty of a continuing offence for each day the contravention continues". Such statutory extension is not required for possession offences which continue until possession is relinquished.
It follows from the particular nature of the crime of possession that it would have been open to the prosecutor to commence proceedings under s 190(1)(a) on 6 November 2018 for the offence of possession alleged to have occurred on 10 November 2016 even if all of the eggs which were found to be in the appellant's possession on 10 November 2016 could be shown (by reference to his data cards) to have been in his possession since 2007.
The issue for determination is whether the prosecutor is bound to elect between s 190(1)(a) and s 190(1)(b) or whether the prosecutor may rely on one, both or either of these time limitations. There is a subsidiary question as to the time within any such election may be made.
The appellant contended that a prosecutor is obliged to elect between s 190(1)(a) and s 190(1)(b) before commencing proceedings and make that election clear in the summons. Mr Hemmings submitted that the purpose of s 190 is twofold: to extend the time within which proceedings for an offence may be brought where the date of commission is not known and to ensure that a prosecutor, to whose attention evidence of the commission of an offence has come, is not lax about commencing proceedings. Thus, he submitted that s 190 tends to protect those who have committed offences and to encourage the timely investigation of offences. Mr Hemmings contended that it would be unfair and at odds with the purpose of the provision to permit a prosecutor who has particularised, under s 190(1)(b), the date on which evidence of the commission of an offence first came to his or her attention, to rely also on s 190(1)(a) in the event that the accused is able to prove that evidence of the commission of the offence first came to the prosecutor's attention on a date that was more than two years before the summons was filed.
The difficulty with Mr Hemmings' submission is that the express words of the provision provide for two relevant time limits, either of which may be called in aid to support the commencement of proceedings. In my view, it follows from the use of the word "or" between s 190(1)(a) and s 190(1)(b) that the prosecutor is entitled to rely on either or both bases for commencing proceedings. The prosecutor's right to bring proceedings and the concomitant liability of the accused for the offences, are not extinguished until the later of the two time periods specified in s 190(1).
Accordingly, neither ground 1 nor ground 2 has been made out.

Ground 3: the proper operation ground

Ground 3 raises the issue whether the possession offence and the harm offences are time-barred and, accordingly, whether the primary judge was in error in refusing to strike out the summons.
Mr Hemmings submitted that the primary judge's application of s 190(1)(b) was erroneous. He argued that the use of the word "first" in s 190(1)(b) indicated that Parliament intended time to start to run from an "initial or preliminary stage in an investigation process, rather than an advanced stage". Mr Hemmings submitted that it was sufficient that the prosecutor had an "inkling" that the offence had been committed because the prosecutor had a further two years to carry out and complete the investigation before being required to charge the accused. The appellant emphasised the use of the word "any" in the phrase "evidence of any act or omission constituting the offence" in support of his submission that it was unnecessary for evidence of each of the elements of the offence to have come to the attention of the authorised officer as long as evidence of at least one element had come to the attention of such a person. The appellant further contended that the "offence[s]" referred to in the Act were the legal species of offence, not the particular details of the actual offence charged. The appellant sought to draw from the words "evidence of an act constituting an offence" the proposition that direct evidence was not required since a piece of circumstantial evidence would also be sufficient.
The appellant submitted that prior to 6 November 2016 (being two years before the proceedings were commenced) Mr Wade was aware of a significant body of circumstantial evidence of the commission of the offence. The evidence relied upon is summarised in the table set out above. The appellant argued that, for the purposes of the harm offences, evidence of an act constituting the offence must extend to evidence of the taking or collecting of eggs. Further, he submitted that the fact that it was sufficient for Mr Wade to depose, for the purposes of the warrant, that he believed on reasonable grounds that certain offences (including harm and possession offences) had been committed, was powerful corroboration that evidence of these offences had already come to his attention for the purposes of s 190(1)(b).
This argument contains a non sequitur. There is a significant gap between having reasonable grounds to believe that an offence has been committed (being the formulation required for a warrant under s 199 of the PEO Act) and having evidence of the commission of an offence come to one's attention for the purposes of s 190(1)(b) of the Act. The distinction between the concepts of suspicion, belief and proof was addressed in George v Rockett (1990) 170 CLR 104 at 115-116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 26 as follows: "In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s. 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind … and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justice must be satisfied that there are reasonable grounds for suspecting that 'there is in any house, vessel, vehicle, aircraft, or place - Anything' and that there are reasonable grounds for believing that the thing 'will … afford evidence as to the commission of any offence'. Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove."' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay [its] debts as they became due' as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said: 'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.' The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
In light of the distinction recognised in George v Rockett, it does not follow from the fact that Mr Wade had reasonable grounds to believe that the offences had been committed, that evidence of the offences had come to his attention for the purposes of s 190(1)(b).
The proper construction of an extended time limit in analogous provisions has been considered in various contexts. For example, in Younan, Robson J held, for the purposes of s 127(5A) of the EPA Act, that it was not necessary that the identity of the offender be known for evidence of the alleged offence to have come to the attention of the prosecutor: see also Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 168 at [15] (Fraser JA, Holmes JA and Daubney J agreeing). In Younan, his Honour held, at [78], that "'evidence of the alleged offence' on its face means evidence capable of indicating that an offence has been committed."
In Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428, this Court considered s 42 of the Native Vegetation Act 2003 (NSW) (now repealed), which relevantly provided: "(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."
However, this Court's consideration was limited to the facts of the case. Ultimately, this Court held that Mr Rummery had not established on the balance of probabilities that the date specified in the summons (as to when evidence of the illegal clearing first came to the attention of the authorised officer) was incorrect.
The question of when time starts to run is ultimately a question of fact to be adjudged by applying the wording of s 190 to the facts of the given case.
The appellant contended that the searching, foraging, hunting and seizing of eggs in the manner carried out by him constituted evidence of the possession of the eggs. He submitted that such evidence had come to Mr Wade's attention prior to 6 November 2016 (being two years before the commencement of the proceedings). The difficulty with this submission is that, although the facts of which Mr Wade was aware, amounted to grounds for believing that the offences had been committed, he did not have evidence of an act or omission that constituted the offence within the meaning of s 190(4). He believed, by reason of the area in which the appellant conducted his activities and the timing of the foraging, that he was after the eggs of threatened species but without evidence of at least one egg being harmed or being in his possession, time under s 190(1)(b) did not start to run.
Section 190(1)(b) must be judged by reference to the contemporaneous knowledge of the prosecutor and not by hindsight. Evidence obtained by the prosecutor before evidence of the commission of the offence first came to his attention might be admissible as circumstantial evidence in an eventual hearing. However, it does not follow that such evidence constituted evidence of the commission of the offence for the purposes of s 190(1)(b) at the time it first came to the prosecutor's attention. The present case affords a useful example. In any defended hearing, the prosecutor might want to adduce evidence obtained during the surveillance period against the appellant. The purpose of the tender of such evidence might be to show that the egg collection found in his caravan was his egg collection and had not been left there by a third party. However, in circumstances where the prosecutor had no evidence that the appellant had harmed or possessed a single egg, I am not satisfied that time had started to run until the search warrant was executed on 10 November 2016.
Accordingly, ground 3 has not been made out.
In these circumstances, it is not necessary to address the submissions put by Mr Tuckey as to what level of detail about particular eggs was required to be known by the prosecutor before time would start to run.
I note for completeness that the primary judge appears to have interpreted what Robson J said in Younan as requiring that (in the context of s 127(5A) of the EPA Act), evidence of each of the elements of the offence come to the attention of the prosecutor before time starts to run. I do not consider this analysis to be correct. For example, the prosecutor would be obliged to establish beyond reasonable doubt that the appellant was the person in possession of the eggs in order to prove the charge. I note that Robson J held in Younan, that the prosecutor did not have to have evidence of the identity of the offender before time started to run under s 127(5A). The meaning of the expression "evidence of the alleged offence" in s 190(1)(b) is to be taken from s 190(4): namely, "evidence of an offence means evidence of any act or omission constituting the offence".
If s 190(1)(b) does not have any practical operation for the possession offences with which the appellant was charged in the present case, this is a consequence of the circumstance that the offence of possession is, as referred to above, neither an offence of commission or omission, but rather an offence which requires proof of a certain state, namely, the exercise of control over a particular thing. Thus the commission of the offence was simultaneous with the time at which the prosecutor found the eggs in the appellant's possession. This circumstance does not provide a warrant for either reading down s 190(1)(b) or including a gloss on the words of the section.
Mr Tuckey informed the Court that the respondent did not seek costs. Accordingly, it is not necessary to address the question of costs.

Proposed orders

For the reasons given above, I propose the following orders: 1. Extend the time for filing the notice of appeal to 2 December 2019. 2. Dismiss the appeal. 3. Remit the matter to the Land and Environment Court for determination.
BELLEW J: I agree with the reasons and proposed orders of Adamson J.

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: 06 May 2020

Environment Planning and Assessment Act 1979(NSW)

National Parks and Wildlife Amendment Act 2010(NSW)

Native Vegetation Act 2003(NSW)

Protection of Environment Operations Act 1997(NSW)

Secret Commissions Prohibition Act 1919(NSW)

(2014) 201 LGERA 428

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (16)

Cited By (8)