16The law requires that a defendant in criminal proceedings be told of the legal nature of the alleged offence and of the particular act, matter or thing alleged to be the foundation of the charge: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [26] (French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ). In Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, Dixon J said at 489:
"[In the present case] the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence."
17The charge must specify "the time, place and manner of the defendant's acts or omissions": Kirk at [26]; Johnson at 486. The purpose in providing particulars is to inform the court of the nature of the offence and to provide the accused with an understanding of the charge so that he or she can properly defend against it: John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519; Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153. Accordingly, particulars will be inadequate if they do not enable a defendant to effectively rely upon any statutory defences which may be available to it: Kirk at [27]-[38]; Johnson at 483-484, 490.
18The appellant submitted that the summons which commenced the proceedings failed to meet the obligation to provide adequate particulars. It was submitted that it failed to specify the actual vegetation alleged to have been cleared, the quantum of the vegetation making up the seven species which were identified, or the location of the species or individual plants beyond a "vague assertion" that 23 ha of land were cleared.
19It was submitted that these failures amounted to more than a procedural irregularity and that they undermined the appellant's ability to put forward the defences available under the Act. In particular, it was submitted that in the absence of any particulars or specific evidence of particular specimens said to have been unlawfully cleared, it was not possible for the appellant to lead evidence that such specimens were "regrowth" within the meaning of the Act. Nor, so it was submitted, was it possible for the appellant to meet the case by showing the particular plant matter alleged to have been cleared was dead.
20The respondent submitted that the appellant's argument failed to appreciate the inter-relationship between the definition of native vegetation in the Act and the allegation in the summons. It was submitted, as alleged in paragraph 1(b) of the summons, that the entirety of the vegetation cleared from the 23 ha was "native vegetation" by reason of the fact that it included one or more of the seven species.
21The respondent emphasised the manner in which native vegetation was defined in s 6(1) of the Act. It was submitted that to construe s 6(1) of the Act as referring only to individual specimens such as the seven identified species is to disregard the use of the plural in ss 6(1)(a)-(d) and, more significantly, the phrase "or if it comprises species of vegetation. The Macquarie Dictionary defines the word "comprise" relevantly as including to comprehend, include, contain, consist of, be composed of, or to combine to make up.
22It was submitted that in the context of the Act, the word "comprises" must be construed as "includes" or "contains." It was submitted that to construe the word as meaning "consists of" or "is composed of" so as to limit the definition of "native vegetation" to species existing in the State before European settlement would simply be to repeat what is already conveyed by the words "if it is of a species of vegetation", making the words "or if it comprises species of vegetation" superfluous. It was submitted that this construction is consistent with and best gives effect to the stated objects of the Act, in particular that referred to in s 3(b), which is in the following terms:
"3Objects of Act
The objects of this Act are:
(a)to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and
(b)to prevent broadscale clearing unless it improves or maintains environmental outcomes, and
(c)to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and
(d)to improve the condition of existing native vegetation, particularly where it has high conservation value, and
(e)to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation,
in accordance with the principles of ecologically sustainable development."
23It was submitted that further support for this construction of the Act is found in s 20, which provides that the clearing of "native vegetation" that comprises only ground cover is permitted if the vegetation comprises less than 50 per cent of indigenous species of vegetation. The section contemplates that "native vegetation" may include indigenous and non-indigenous species.
24The appellant responded to these submissions by considering previous decisions in relation to the meaning of the word "comprise." There is an exhaustive analysis by Lindgren J of the word in General Clutch Corporation v Spriggs Pty Ltd (1997) 38 IPR 359 at 373-376. As Lindgren J's analysis makes plain, the correct interpretation of the word "comprise" depends upon the context in which it is used.
25The appellant submitted that the word "comprises" in s 6 of the Act should be understood to mean "consists of" or "composed of", rather than "includes." It was submitted that the relevant word should be given the meaning consistent with ordinary usage and "common sense." Section 6(2) prescribes a specific, particular characteristic for vegetation to qualify as indigenous, that being vegetation which "existed in the State before European settlement." It was submitted that that specific characteristic must be applied to each species under consideration.
26It was further submitted that the interpretation advanced by the appellant does give effect to each of the words in the statute. It was submitted that the words "if it is of a species ... or if it comprises species ..." in s 6(2) is intended to accommodate the situation where the type of vegetation under consideration in s 6(1) is not uniform but is made up of more than one kind of indigenous plant. In the alternative, it was submitted that s 6(1) states that vegetation "means" various types of "indigenous vegetation." Some of these are plural (eg trees and plants) and some are singular (eg sapling or shrub, or any scrub). Accordingly, it was submitted that the words "if it is of a species" does have work to do even if comprises does not mean includes.
27The appellant emphasised that when construing a provision imposing criminal liability, the rule of lenity requires that any ambiguity be resolved in favour of the defendant: Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576 (Gibbs J); Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164 (Gibbs CJ, Mason, Wilson and Dawson JJ); Capral Aluminium Ltd v WorkCover Authority (NSW) [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at 629; see also Holmes v Director General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264; (2005) 139 LGERA 102 at [26] and cases cited there by Lloyd J.
28It was further submitted that the Act restricts the use a person can make of property and, accordingly, the general presumption in the event of ambiguity is that the court should prefer an interpretation that does not interfere with a citizen's proprietary rights: Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363 at 373; Commonwealth v Hazeldell Ltd [1918] HCA 75; (1918) 25 CLR 552 at 563; Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343; CJ Burland Pty Ltd v Metropolitan Meat Industry Board [1968] HCA 77; (1968) 120 CLR 400 at 406-407, 15; see also the cases cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia (2011, 7th ed) at [5.21].
29The appellant submitted that the relevant object of the Act in s 3 is to prevent the clearing of native vegetation. Native vegetation means indigenous vegetation and, accordingly, if the definition of "native vegetation" is read as including indigenous and non-indigenous vegetation, the Act would extend beyond its stated objects by criminalising the clearing of non-native vegetation.
30The appellant submitted that s 20 does not assist the respondent. It was submitted that it provides a special exemption in relation to clearing of certain ground cover. It was further submitted that if it be relevant at all, the provision assists the appellant. The appellant submitted that if "indigenous vegetation" means, as the prosecutor suggests, vegetation that "includes" species of vegetation that existed in the State before European settlement, it would be a nonsense to speak of vegetation comprising "less than 50% of indigenous species of vegetation" because, if the definition of "indigenous" in s 6(2) were applied, then "indigenous species" in s 20 would itself include indigenous and non-indigenous species. It was submitted that it would be absurd to construe the Act so that the clearing of non-indigenous species on land was a criminal offence.
31The issue of the meaning of the word "comprises" was raised for the first time in this appeal in the context of this ground of appeal. There was no suggestion at the trial that the appellant did not understand the nature of the charge and the particulars relevant to it sufficiently to be able to mount its defence.
32It must be remembered that in many situations where native vegetation exists there is also likely to be vegetation which is not indigenous. Ordinary experience suggests that many introduced species have found Australia's natural environment conducive to their propagation, very often to a level that seriously impacts upon the indigenous species. It could not have been the intention of the legislature that in circumstances where non-indigenous species were present, the Act would not operate to protect the indigenous species of vegetation.
33Accordingly, I accept the respondent's submission that a purposive interpretation of s 6(2) requires that the word "comprises" be construed as "includes". To construe the word as meaning "consists of" would frustrate the Act's stated objects of protecting native vegetation and preventing broadscale clearing that does not improve or maintain environmental outcomes. So to construe s 6(2) would require the prosecution to painstakingly identify the precise quantum of indigenous vegetation within a large parcel of land. In most cases where native vegetation has been cleared, although it may be possible to identify after the event that some individual trees have been removed, the vegetation will be in such a state that it is not possible to identify individual plants or trees which have been destroyed. The practical result of the appellant's interpretation would be to preclude a good many prosecutions, even where the evidence suggests that large-scale clearing has incidentally destroyed native vegetation.
34The appellant's submission that ambiguous penal statutes must be interpreted in favour of a defendant is a truism. But the argument, as applied to the Act under consideration, wrongly assumes that s 6(2) is ambiguous. Gibbs J's comments in Beckwith v The Queen at 576 are instructive:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort."
35The applicant has failed to clear the first hurdle of establishing an ambiguity in s 6(2) of the Act. The "ordinary rules of construction" to which Gibbs J referred include the principle that statutes are to be construed in context and in such a way as to best give effect to their object and purpose. As the High Court made clear in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408, context and purpose are to be "considered in the first instance, not merely at some later stage when ambiguity might be thought to arise". An interpretation of s 6(2) that has regard to context and purpose leaves no room for ambiguity. There is therefore no warrant for resorting to the rule that a penal statute ought to be strictly construed.
36In any event, at the trial, the appellant had no difficulty in understanding that it was charged with removing multiple plants of varying species which were indigenous. It understood that it was alleged that the species were dispersed throughout 23 ha of land which had been cleared by mechanical means, although some individual trees remained. If the appellant contended, as it did, that the vegetation which was removed was only regrowth as provided by s 19, it could have brought evidence to establish that fact. However, the prosecution case was that even if there was some non-native vegetation present, there was throughout the 23 ha parcel of land native vegetation which was removed, and that the presence of that vegetation was established by a careful examination of portions of the land which had been cleared to establish from the residue of destroyed vegetation whether it was native. Those observations were supported by a detailed examination of portions of adjoining land which had not been cleared.
37The interpretation of s 6(2) on which I have settled does not preclude a defendant from seeking to establish that the trees and plants which were on the land were regrowth within the meaning of the Act. In the same manner that the prosecution may carry out a detailed survey to determine the trees and plants that were present, a defendant may itself survey the land to establish the age of those trees and plants.
38Although I am not persuaded that the appellant did not have sufficient particulars to defend against the charge, the dispersion and likely density of the trees and plants on the land were relevant to the quantum of the penalty. I shall consider in relation to the ground of appeal which challenges the appropriateness of the penalty the evidence that established the amount of vegetation existing on the land that was cleared.