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Bentley v BGP Properties Pty Ltd

Bentley v BGP Properties Pty Ltd

Case [2005] NSWCCA 157 27 April 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

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

FILE NUMBER(S):
2004/1849
2004/1853

HEARING DATE(S): 5 November 2004

JUDGMENT DATE: 27/04/2005

PARTIES:
Jason Robert Bentley (for National Parks & Wildlife Service - Claimant in both matters
Hugh Charles Gordon - Opponent in 2004/1849
B.G. P. Properties - Opponent in 2004/1853

JUDGMENT OF: Giles JA Buddin J Smart AJ

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S): 50073/03, 50075/03

LOWER COURT JUDICIAL OFFICER: Cowdroy J

COUNSEL:
P W Larkin & C D Norton - Claimant
S Rushton SC & P Strickland - Opponent

SOLICITORS:
Vivienne Karin Ingram, Solicitor of the National Parks and Wildlife Service - Claimant
P Hines, Belmont - Opponent

CATCHWORDS:
Offence if a person by an act or omission does anything that causes damage to the habitat of a threatened species - charges that by slashing and clearing vegetation and/or crushing vegetation and/or constructing access tracks caused damage - prosecution proposed to rely on each in the alternative - whether act causing damage an ingredient of offence - whether charges bad for duplicity - held yes and yes.

LEGISLATION CITED:

DECISION:
(1) Grant leave to appeal; (2) Appeals allowed; (3) Set aside orders made by Cowdroy J on 9 July 2004 and in lieu thereof order that the applications to amend the summonses be dismissed; (4) Opponent to pay the claimants' costs of the application for leave to appeal and the appeal; (5) Remit the proceedings to the Land and Environment Court for continuance in that Court.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1849
2004/1853
GILES JA
BUDDIN J
SMART AJ
Wednesday 27 April 2005

BENTLEY (for National Parks & Wildlife Service) v Hugh Charles GORDON

BENTLEY (for National Parks & Wildlife Service) v B.G.P. PROPERTIES PTY LIMITED

JUDGMENT

GILES JA: BGP Properties Pty Ltd (“BGP”) owned land at Redhead. Mr Hugh Gordon was the controller of BGP. In proceedings commenced by summons in the Land and Environment Court, Mr Gordon and BGP were prosecuted for breaches of s 118D(1) of the National Parks and Wildlife Act 1974.
These were applications for leave to appeal from a decision of Cowdroy J giving leave to amend the summonses. They were heard on full submissions so that, if leave were granted, the appeals could be decided. The claimants contended that leave to amend should have been refused by Cowdroy J because the summonses as amended would be duplicitous.
The amendments
Section 118 D(1) provided -
“118D Damage habitat of threatened species, endangered population or endangered ecological community
(1)A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, an endangered population or an endangered ecological community if the person knows that the land concerned is habitat of that kind.
Penalty: 1,000 penalty units or imprisonment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bentley v BGP Properties Pty Ltd

Details

AGLC: Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157
Case: [2005] NSWCCA 157
Decision Date: 27 April 2005

CaseChat Overview and Summary

Bentley, the appellant, was prosecuted for damaging the habitat of a threatened species, specifically the squirrel glider, through various activities including slashing and clearing vegetation, crushing vegetation, and constructing access tracks. The respondent, BGP Properties Pty Ltd, was charged with offences under the Biodiversity Conservation Act 2016 (NSW). The case was heard and determined in the Court of Appeal. The primary legal issue before the court was whether the acts alleged in the charges were elements of the offence and whether the charges were bad for duplicity. The court examined the statutory language and considered whether the act causing damage to the habitat was an ingredient of the offence, and if so, whether the charges were defective due to being duplicative.

The court found that the act causing damage to the habitat was indeed an ingredient of the offence. This conclusion was based on the statutory language and the legislative intent to protect threatened species and their habitats. The court determined that the act of causing damage was a necessary component of the offence. Additionally, the court held that the charges were bad for duplicity because they proposed alternative means by which the offence could have been committed. The court emphasised that a charge must not be open to more than one construction, and the charges in this case allowed for multiple interpretations, which rendered them defective.

Consequently, the court allowed the appeal and quashed the convictions. The charges against the respondent were deemed to be bad for duplicity and insufficient to sustain a conviction. The court's decision underscores the importance of precise drafting in criminal charges to ensure clarity and avoid potential defects that could undermine the validity of the prosecution.

Orders