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Court of Criminal Appeal 6 May 2020

Somerville v Chief Executive of the Office of Environment and Heritage

[2020] NSWCCA 93

Other

Citation: Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93
Court: Court of Criminal Appeal, New South Wales
Date: 6 May 2020
Judge(s): Johnson J; Adamson J (principal reasons); Bellew J

Background

The appellant was the subject of a two-month surveillance operation beginning in September 2016, during which investigators observed him entering closed conservation areas in the Dubbo region. A search warrant was executed on 10 November 2016, revealing a large collection of preserved native bird eggs, data cards, and associated tools. The eggs had been "blown" (their contents removed), which was accepted as constituting harm to an animal under the relevant legislation.

The respondent, the Chief Executive of the Office of Environment and Heritage, filed 23 summonses on 6 November 2018, charging the appellant with possession and harm of fauna offences under the National Parks and Wildlife Act 1974 (NSW). The appellant applied in the Land and Environment Court to have the charges struck out, arguing the proceedings were commenced outside the applicable limitation period under s 190(1)(b) of the Act. The primary judge dismissed that application.

The appellant then appealed to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW), seeking to overturn the dismissal on three grounds concerning the proper operation of the limitation periods and whether the prosecutor was required to elect between them.

  • Whether the prosecutor was required to elect between the two distinct limitation periods in s 190(1)(a) and s 190(1)(b) of the National Parks and Wildlife Act 1974 (NSW), or whether both could be relied upon in the alternative.
  • Whether the primary judge erred in finding that the two limitation periods could co-exist without any obligation to elect.
  • Whether the primary judge erred in the interpretation and application of s 190(1)(b), specifically regarding when "evidence of the alleged offence" first came to the attention of the prosecutor.

Decision

On the election issue (Grounds 1 and 2): The Court of Criminal Appeal rejected the appellant's argument that the prosecutor was obliged to elect between s 190(1)(a) and s 190(1)(b) at the time of filing. Adamson J held that the two limitation periods operate independently and may be relied upon in the alternative. Provided proceedings are commenced within at least one of the applicable periods, they are not time-barred. No election is required.

On the operation of s 190(1)(b) (Ground 3): Section 190(1)(b) runs time from the date on which "evidence of the alleged offence" first came to the attention of an authorised officer. Under s 190(4), this means evidence of any act or omission constituting the offence. For the possession charges, the relevant date was 10 November 2016, when the search warrant was executed and the eggs were physically found in the appellant's possession. The Court found that, prior to that date, investigators had suspicions but no evidence that the appellant actually possessed native bird eggs. Surveillance had not revealed any eggs being taken or held.

The Court noted an important conceptual point: possession is not an offence of act or omission in the conventional sense, but rather an offence requiring proof of a particular state. For that type of offence, the moment evidence of the offence came to the prosecutor's attention was necessarily simultaneous with the execution of the search warrant. This did not, however, warrant reading down or glossing the words of s 190(1)(b). On this analysis, the proceedings filed on 6 November 2018 were within the two-year period running from 10 November 2016, and the charges were not time-barred.

The Court also noted, without deciding the point fully, that the phrase "evidence of the alleged offence" does not require the prosecutor to have evidence of every element of the offence before time begins to run. The example given was that evidence of the offender's identity is not required before time starts to run.

Orders Made

  • Time for filing the notice of appeal extended to 2 December 2019.
  • Appeal dismissed.
  • Matter remitted to the Land and Environment Court for determination.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the two limitation periods in s 190(1) of the National Parks and Wildlife Act 1974 (NSW) can be relied upon in the alternative; a prosecutor is not required to elect between them when filing a summons.
  • Under s 190(1)(b), time begins to run from when "evidence of the alleged offence" first comes to the attention of an authorised officer, construed by reference to s 190(4) as evidence of any act or omission constituting the offence.
  • For possession-type offences, the commission of the offence is simultaneous with discovery: because possession is a state rather than an act or omission, the limitation period under s 190(1)(b) did not begin to run until the search warrant was executed and the eggs were found.
  • Investigative suspicion, surveillance observations, and circumstantial indicators do not, without more, constitute "evidence of the alleged offence" sufficient to start the limitation clock running under s 190(1)(b).
  • In dismissing the appeal, the Court left open the precise level of detail about particular items required before time starts to run, finding it unnecessary to resolve that question on the facts.

Legislation and Cases Referenced

Legislation:
- National Parks and Wildlife Act 1974 (NSW), ss 101, 118A, 118B, 190, 195
- National Parks and Wildlife Amendment Act 2010 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F
- Protection of Environment Operations Act 1997 (NSW), s 199
- Environment Planning and Assessment Act 1979 (NSW), s 9.57
- Native Vegetation Act 2003 (NSW), s 42
- Evidence Act 1995 (NSW), s 141
- Crimes Act 1900 (NSW), s 7
- Drug Misuse and Trafficking Act 1985 (NSW), s 7
- Secret Commissions Prohibition Act 1919 (NSW), s 14

Cases:
- Cumberland Council v Younan [2018] NSWLEC 145
- Livbuild Pty Ltd v Willoughby City Council [2017] NSWCCA 255
- Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428
- George v Rockett (1990) 170 CLR 104; [1990] HCA 26
- He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
- Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25
- The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106
- R v Saengsai-Or (2004) 61 NSWLR 135; [2004] NSWCCA 108
- Hodgetts v Chiltern District Council [1983] 2 AC 120
- Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 168
- Morgans v Director of Public Prosecutions [1999] 2 Cr App R 99
- Dugdale v R (1853) 1 El & Bl 435; 118 ER 499
- R v Heath (1810) Russ & Ry 184; 168 ER 750