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Court of Criminal Appeal 27 April 2005

Bentley (for National Parks & Wildlife Service v Gordon; Bentley (for National Parks & Wildlife Service v B.G.P. Properties Pty Ltd

[2005] NSWCCA 157

Other
WHETHER CHARGES BAD FOR DUPLICITY HELD YES AND YES.

Citation: Bentley (for National Parks & Wildlife Service) v Gordon; Bentley (for National Parks & Wildlife Service) v B.G.P. Properties Pty Ltd [2005] NSWCCA 157
Court: Court of Criminal Appeal, New South Wales
Date: 27 April 2005
Judge(s): Giles JA; Buddin J; Smart AJ

Background

A landowner company and its controller were prosecuted in the Land and Environment Court for breaches of section 118D(1) of the National Parks and Wildlife Act 1974 (NSW). The charges alleged that, between August and December 2001, the defendants caused damage to the habitat of two threatened species on land at Redhead by slashing or clearing vegetation.

The prosecution (the National Parks and Wildlife Service) applied to amend the summonses. The proposed amendments replaced the original description of the conduct with a broader list: slashing, clearing and/or crushing vegetation, and/or constructing access tracks. The prosecution confirmed its intention to rely on each of those activities in the alternative, meaning proof of any single one would be sufficient to establish the offence.

Cowdroy J in the Land and Environment Court granted leave to make those amendments. The Service appealed against that decision, and the Court of Criminal Appeal heard the matter on full submissions so that, if leave to appeal were granted, the appeals could be resolved at the same time.

  • Whether the act causing damage to habitat is an ingredient of the offence under section 118D(1), or whether only the resulting damage matters
  • Whether the amended summonses were bad for duplicity by charging multiple distinct acts in the alternative within a single count
  • Whether leave to amend the summonses should have been granted

Decision

Cowdroy J had reasoned that the offence under section 118D(1) was constituted by the resultant damage to habitat, not by the specific conduct producing that damage. On that basis, his Honour concluded that multiple activities contributing to the same damage did not need to be charged separately.

The Court of Criminal Appeal rejected that reasoning. The Court held that the act (or omission) causing the damage is properly an ingredient of the offence, not merely background context. The specific conduct alleged is therefore part of what a defendant must be in a position to answer, and charging several distinct acts in the alternative within the one count offends the rule against duplicity.

The rule against duplicity, as the Court explained, exists for multiple reasons: courts must know precisely what charge they are entertaining; defendants must know the case they have to meet; and the record must be clear enough to support a future plea of autrefois acquit or convict. Requiring a defendant to meet any one of four distinct categories of conduct, any of which might alone suffice for conviction, fails to meet those requirements.

Smart AJ added, in remarks directed at the practical operation of the provision, that section 118D poses genuine difficulties for the Service in environmental enforcement proceedings. His Honour observed that the facts surrounding how habitat damage was caused will often be within the peculiar knowledge of defendants rather than the prosecuting authority, and suggested that legislative amendment of the section warranted consideration.

Orders Made

  • Leave to appeal granted
  • Appeals allowed
  • Orders of Cowdroy J made on 9 July 2004 set aside; applications to amend the summonses dismissed
  • Proceedings remitted to the Land and Environment Court for continuance, with liberty for the Service to make a fresh amendment application if it chose
  • The informant (on behalf of the Service) ordered to pay the defendants' costs of the amendment application in the Land and Environment Court and of the proceedings in the Court of Criminal Appeal

Key Takeaways

  • Under section 118D(1) of the National Parks and Wildlife Act 1974, the specific act or omission alleged to have caused habitat damage is an ingredient of the offence, not merely descriptive of the surrounding circumstances.
  • A charge drafted to encompass several distinct acts in the alternative, where any one of them would alone suffice for conviction, is duplicitous and cannot stand without amendment.
  • The Court of Criminal Appeal confirmed that the rule against duplicity serves fundamental interests: ensuring defendants know the case they must meet, enabling courts to direct evidence and instructions properly, and preserving the integrity of pleas in bar.
  • In allowing the appeal, the Court left open the possibility that differently framed amendments to the summonses might be permissible, without specifying what form those amendments should take.
  • Smart AJ's judgment noted that the drafting of section 118D creates practical enforcement obstacles for the Service and indicated that parliamentary amendment of the provision deserved consideration.

Legislation and Cases Referenced

Legislation
- National Parks and Wildlife Act 1974 (NSW), s 118D(1), s 117(5)
- Land and Environment Court Act 1979 (NSW), s 68(1)

Cases
- Johnson v Miller (1937) 59 CLR 467
- McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] 50 NSWLR 127
- Parker v Sutherland (1917) 116 LT 820
- S v The Queen (1989) 168 CLR 266
- Stanton v Abernathy (1990) 19 NSWLR 656
- Walsh v Tattersall (1996) 188 CLR 77