Brinkworth v Dendy

Case [2007] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

BRINKWORTH & ANOR v DENDY

[2007] SASC 120

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Anderson)

5 April 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - DUPLICITY AND UNCERTAINTY

The appellants were charged on one count of clearing 27 areas of native vegetation contrary to s 26 of the Native Vegetation Act 1991 (SA) – the appellants submit that the charge is duplicitous and that it would be unfair and embarrassing to face the count as expressed – a Magistrate ruled that the count was duplicitious – a single Judge of the Supreme Court allowed an appeal against the Magistrate’s order – the appellants appeal to the Full Court - the question is whether the activity relied on as conduct constituting the charge can be regarded as one act of clearence - the fact that the count alleges 27 stands or groups of cleared areas is not of itself duplicitous - no act of patent duplicity made out - latent duplicity may be pursued at trial - appeal dismissed.

Native Vegetation Act 1991 (SA) s 3(1), s 26, s 26(1), s 27(b)(ii), s 28(1), s 29(1), s 40; Native Vegetation Regulations 1991 (SA) reg 3, referred to.
Director of Public Prosecutions v Merriman [1973] AC 584; Walsh v Tattersall (1996) 188 CLR 77; S v The Queen (1989) 168 CLR 266, discussed.
Stanton v Abernathy (1990) 19 NSWLR 656; Bentley v BGP Properties Pty Ltd (2005) 139 LGERA 449; Johnson v Miller (1937) 59 CLR 467, considered.

BRINKWORTH & ANOR v DENDY
[2007] SASC 120

Full Court:  Doyle CJ, Debelle and Anderson JJ

  1. DOYLE CJ: Mr Dendy laid three complaints in the Magistrates Court against Mr and Mrs Brinkworth. Each complaint charged the defendants with having, between 22 March 2002 and 1 November 2002, cleared native vegetation from certain land, contrary to s 26 of the Native Vegetation Act 1991 (SA) (“the Act”). Two complaints contained one count each, the other complaint contained three counts. When the complaints came before the Magistrates Court on 31 January 2006, counsel for the defendants raised a preliminary objection that (with one exception) each count was duplicitous. The duplicity was said to arise from the fact that each such count stated, by way of particulars, that native vegetation had been cleared from a number of separate areas on the land in question.

  2. The Magistrate upheld the objection.  He required counsel for Mr Dendy “to elect”.  I take this to mean that he required counsel to select or identify one only of the areas referred to in the relevant counts, and to limit each of the relevant counts to a single area.  Counsel declined to do so.  The Magistrate dismissed the four counts…

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AGLC
Brinkworth v Dendy [2007] SASC 120
Case
[2007] SASC 120
Decision Date

CaseChat Overview and Summary

The case of Brinkworth v Dendy involves an appeal against a ruling by a Magistrate that a charge of clearing native vegetation contrary to the Native Vegetation Act 1991 (SA) was duplicitous. The appellants argued that the charge was duplicitous and unfair, as it listed 27 areas of cleared vegetation. A single Judge of the Supreme Court allowed an appeal against the Magistrate’s order, and the appellants now appeal to the Full Court. The central issue before the Full Court was whether the clearing of 27 areas of native vegetation could be regarded as a single act of clearance.

The Full Court examined the principles governing duplicity in charges and concluded that the offence in question did not constitute a continuous offence. The court noted that the rule against duplicity aims to ensure fairness by allowing the defendant to know what case they must meet. While the court acknowledged that the rule against duplicity can be difficult to apply in practice, it found that the charge did not suffer from patent duplicity. Latent duplicity, if it arises, could be addressed during the trial. The court held that the charge could proceed as pleaded, subject to any latent duplicity being pursued at the trial stage.

The Full Court dismissed the appeal, agreeing with the single Judge that the charge was not duplicitous. The court emphasised that the charge could be amended or particulars could be sought if any ambiguity or unfairness became apparent during the proceedings. The court also noted that any issues of unfairness or uncertainty could be dealt with as they arose during the trial. The appeal was thus dismissed, and the case was remitted to the Magistrates Court for further proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, while I would not describe the offence in question as “a continuous offence”, subject to that point I agree with the substance of the remarks of the single Judge that are set out above.Conclusion I would dismiss the appeal. When the matter is remitted to the Magistrates Court any question of latent duplicity can be pursued in due course as the prosecution unfolds. So can any question of unfairness or uncertainty that might arise, if it does arise, making it unfair or embarrassing for the defendants to face a count expressed as the counts in question are. DEBELLE J: I agree with the substance of the reasons of the Chief Justice. I agree also with the substance of the reasons of the judge below with the qualification that, like the Chief Justice, I would not describe the offending alleged as “a continuous offence”. While easy to state, the rule against duplicity may on occasions be difficult to apply. The rule is that no one count in an indictment should charge the defendant with having committed two or more separate offences. The rule is grounded on a basic consideration of fairness, namely, that an accused should know what case he has to meet: S v The Queen (1989) 168 CLR 266 at 285. The rule is to be applied in a practical, rather than a strictly analytical way: Director of Public Prosecutions v Merriman [1973] AC 584 at 607 per Lord Diplock. There is no technical verbal formula of precise application which constitutes an easy guide as to whether the rule against duplicity has been infringed: Gleeson CJ in Stanton v Abernathy (1990) 19 NSWLR 656 at 666 applied by Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 108. The court has a discretion. Subject to the individual circumstances of each case, it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act: Director of Public Prosecutions v Merriman at 593 per Lord Morris. For the reasons which follow, the appellants’ contention that the complaint was bad for duplicity failed to have adequate regard to the nature of the offence constituted by s 26 of the Native Vegetation Act. Section 26 of the Native Vegetation Act provides that a person must not clear native vegetation unless the clearance is in accordance with Part 5 of the Act. The section is expressed in terms which are wide enough to include all kinds of removal of native vegetation. That conclusion is reinforced by the definitions of “to clear” and “clearance” in s 3 of the Native Vegetation Act 1991. The expression “to clear” is defined in these terms:“to clear” native vegetation includes to cause or permit the clearance of native vegetation. “Clearance” is defined:“clearance”, in relation to native vegetation, means –(a) the killing or destruction of native vegetation;(b) the removal of native vegetation;(c) the severing of branches, limbs, stems or trunks of native vegetation;(d) the burning of native vegetation;(e) any other substantial damage to native vegetation,and includes the draining or flooding of land, or any other act or activity, that causes the killing or destruction of native vegetation, the severing of branches, limbs, stems or trunks of native vegetation or any other substantial damage to native vegetation. Plainly, there will be many kinds of conduct which will result in a clearance of native vegetation. It will range from the removal of a single item of native vegetation, say a tree, up to the clearance of a large area heavily grown with native vegetation. It will include the removal of stands of native vegetation containing, say, a few trees, as well as the removal of native vegetation from an area where there are a number of stands of native vegetation. Section 26 is concerned with the result, that is to say, a clearance of native vegetation. Section 26 provides a penalty which is calculated by reference to each hectare or part of a hectare of the land on which the offence was committed, that is to say the land on which the vegetation was situated: see s 26(3).

Ratio Decidendi

Legal Principle Established

He submits that the systematic destruction of native vegetation within a single paddock over a period of some months is the clearing of that vegetation, involving a composite act of clearing encompassing all of the areas in question. He submits that if any ambiguity or unfairness appears in the course of the hearing, the matter can be dealt with by then requiring the complainant to amend or by requiring the giving of particulars, but unless and until the need for that arises the count is good and should be allowed to proceed as pleaded.Consideration of submissions The relevant principles are clear enough. The law is conveniently summarised by Kirby J in Walsh v Tattersall. The position is succinctly stated by Dawson and Toohey JJ (dissenting) at 84 where their Honours said:The proscription against duplicity is succinctly stated by Archbold, Criminal Pleading, Evidence and Practice, 44th ed (1995), vol 1, p 75:“The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences … This rule though simple to state is sometimes difficult to apply … Duplicity in a count is a matter of form, not evidence.”The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation. That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield, Barker, Creek, Mendelson (1973) 57 Cr App R 849 at 855-856. For this reason S v The Queen is, in our view, not a case of duplicity. (footnotes omitted)See also S v The Queen (above). The difficulty with the principles lies in their application to the facts in a case like this. It is attributable to the difficulty (perhaps impossibility), of producing “a technical verbal formula of precise application which constitutes an easy guide … as to whether the common law rule has been infringed”: Stanton v Abernathy (1990) 19 NSWLR 656 at 666 Gleeson CJ, cited by Kirby J in Walsh v Tattersall at 108. I begin by considering the terms of the Act. The conduct that attracts the prohibition in s 26 of the Act is clearing native vegetation. Clearing native vegetation, or the clearance of native vegetation, can range from removing a single branch from a single plant through to the removal or killing of a plant. Clearly enough, a charge under s 26 could be based on the clearance (as defined) of a single plant. But if the defendant has cleared a number of plants, must a separate charge be laid in respect of each plant, whatever the circumstances may be? For example, it might be alleged that on a given day the defendant used a bulldozer blade to remove 50 plants from an area of land. The area might be quite small (such as a standard house block) or might be a paddock comprising a number of hectares. In those circumstances, can the defendant be charged in a single count with clearing native vegetation from the land, or must 50 separate counts be laid?