Bentley v Gordon - [2004] NSWLEC 410

Land and Environment Court

of New South Wales

CITATION: Bentley v Gordon and Ors [2004] NSWLEC 410

PARTIES:
50069 of 2003; 50071 of 2003
PROSECUTOR
Jason Robert Bentley
DEFENDANT
Hugh Charles Gordon
50073 of 2003; 50075 of 2003
PROSECUTOR
Jason Robert Bentley
DEFENDANT
BGP Properties Pty Ltd
50077 of 2003; 50080 of 2003
PROSECUTOR
Jason Robert Bentley
DEFENDANT
Whet Investments Limited

FILE NUMBER(S): 50069 of 2003; 50071 of 2003; 50073 of 2003; 50075 of 2003; 50077 of 2003; 50080 of 2003

CORAM: Cowdroy J

KEY ISSUES: Environmental Offences :- amendment of summons - amendments confined to causation and not to substance of charge.

LEGISLATION CITED: Clean Waters Act 1970, s 16(1)
Criminal Procedure Act 1986, s 20
Land and Environment Court Act 1979, s 68(1)
Land and Environment Court Rules 1996, Pt 10 r 2
National Parks and Wildlife Act 1974, s 118D, 176(1)(b)

CASES CITED: Abdoula Khouzame & Samson Saliba v R (1999) 108 A Crim R 170;
Johnson v Miller (1937-1938) 59 CLR 467;
Khaled Hamzy v R (1994) 74 A Crim R 341;
McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (No 2) (2000-2002) 54 NSWLR 39;
Montgomery v Stewart (1966-1967) 116 CLR 220;
Tony Giam v R (1999) 104 A Crim R 416;
Walsh v Tattersall (1996-1997) 188 CLR 77

DATES OF HEARING: 09/07/2004

EX TEMPORE
JUDGMENT DATE : 07/09/2004

LEGAL REPRESENTATIVES:

50069 of 2003; 50071 of 2003; 50073 of 2003; 50075 of 2003
PROSECUTOR
Mr P. Strickland (Barrister)
SOLICITORS
Department of Environment and Conservation
DEFENDANT
Mr P. W. Larkin (Barrister)
Mr C. Norton (Barrister)
SOLICITOR
Paul Hines
50077 of 2003; 50080 of 2003
PROSECUTOR
Mr P. Strickland (Barrister)
SOLICITORS
Department of Environment and Conservation
DEFENDANT
n/a

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

COWDROY J

9 July 2004

50069 of 2003, 50071 of 2003 JASON ROBERT BENTLEY v HUGH CHARLES GORDON

50073 of 2003, 50075 of 2003 JASON ROBERT BENTLEY v BGP PROPERTIES PTY LTD

50077 of 2003, 50080 of 2003 JASON ROBERT BENTLEY v WHET INVESTMENTS LIMITED

Judgment

Introduction

1 The prosecutor seeks leave of the Court to amend the summons in each proceeding. The summonses generally fall in two categories. In one category it is alleged that the defendant did by an act, namely by slashing or clearing vegetation on Lot 1 DP 4264 and 3 and Lot 4 DP 248860, cause damage to the habitat of a threatened species to wit the Tetratheca juncea, knowing that the land concerned was a habitat of that kind contrary to s 118D(1) of the National Parks and Wildlife Act 1974 (“the NP&W Act”).

2 The other summons is in similar terms except it alleges that the defendant damaged the habitat of a threatened species to wit Crinia tinnula knowing that the land concerned was habitat of that kind contrary to s 118D(1) of the NP&W Act. In each case the words appear which describe the act as “the slashing or clearing vegetation on the subject…

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 Gordon

Details

AGLC: Bentley v Gordon [2004] NSWLEC 410
Case: [2004] NSWLEC 410
Decision Date: 07/09/2004

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with a case where the prosecutor, Jason Robert Bentley, sought permission to amend summonses against several defendants related to environmental offences. The defendants included Hugh Charles Gordon, BGP Properties Pty Ltd, and Whet Investments Limited. The prosecutor sought to amend the summonses to include additional activities that allegedly caused damage to the habitat of threatened species, specifically the Tetratheca juncea and Crinia tinnula, in contravention of the National Parks and Wildlife Act 1974.

The primary legal issue before the Court was whether the prosecutor could amend the summonses to include additional activities, such as crushing vegetation and constructing access tracks, without altering the substance of the charges. The defendants argued that such amendments would result in duplicitous or uncertain charges, and that separate charges should be brought for each alleged act. The prosecutor, however, maintained that the amendments were confined to the manner in which the damage was alleged to have occurred and did not change the fundamental nature of the offence.

The Court, after considering the arguments and relevant authorities, found that the amendments did not introduce duplicity or uncertainty. The Court held that the essential element of the offence was the resultant damage to the habitat, rather than the specific conduct that caused the damage. Therefore, the prosecutor was granted leave to amend the summonses to include the additional activities, provided the amendments did not alter the substance of the charges. The Court also noted that the costs of the motion were to be reserved for consideration at the hearing of the proceedings.

Orders