Brinkworth v Dendy
[2007] SASC 120
•5 April 2007
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 120Full Court: Doyle CJ, Debelle and Anderson JJ
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.
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 in question, leaving just one count alive.
On appeal to this Court a Judge of the Court allowed the appeal, holding that the counts were not duplicitous. The orders dismissing the counts were set aside.
The Judge granted leave to appeal to the defendants.
The appeal raises the question of whether the counts are duplicitous. It is convenient to consider the matter by reference to the count contained in complaint 11637/05, the complaint by reference to which these issues were argued below.
The charge
The material part of the charge in question is as follows:
Between the 22nd day of March 2002 and the 1st day of November 2002, the first and second defendants cleared native vegetation from Allotment Pieces 227 and 228 in Deposited Plan 59182, previously described as Section 12, in the Hundred of Neville, in the County of Cardwell in the South East of South Australia, contrary to Part V of the Native Vegetation Act, 1991.
Contrary to section 26 of the Native Vegetation Act, 1991.
Particulars
1.On and from 28 November 2001, the first and second defendants were registered as the perpetual lessees of Section 12 in the Hundred of Neville, being land described in Crown Lease Register Book Volume 1253 Folio 13, now described as Allotment comprising pieces 227 and 228 in Deposit (sic) Plan 59182 in the Hundred of Neville (hereinafter referred to as “the subject land”).
2Between 22 March 2002 and 1 November 2002, the first and second defendants, caused or permitted the clearance of native vegetation from areas of the subject land, without the consent of the Native Vegetation Council.
3Native vegetation was cleared from 27 separate areas of the subject land. The total of all areas cleared was 7.32 hectares.
4The vegetation was regrowth of more than 15 years of age.
5The native vegetation cleared comprised the species Eucalyptus diversifolia (Coastal White Mallee), Xanthorrhoea caespitose (Sand-heath Yacca), Melaleuca halmaturorum ssp. halmaturorum (Swamp paper-bark) and Melaleuca lanceolata ssp. lanceolata (Dryland Tea-tree).
The defendants’ argument before the Magistrate rested on the fact that the third particular alleges that native vegetation was cleared from 27 separate areas, and on a concession by counsel for Mr Dendy that a separate charge could have been laid in respect of each such area.
Before the Judge it appears to have been accepted that the 27 areas referred to were part of a large fenced paddock, possibly containing several thousand hectares. Counsel for Mr Dendy told the Judge that using aerial photography, satellite imagery and modern technology the prosecution case would involve identifying on a map or photograph the 27 areas in question, and identifying the species of native vegetation removed. Counsel for Mr Dendy also appears to have indicated that the prosecution case would not involve proof of precisely when each area was cleared, or whether each area was cleared at one time or along with other areas. I gather that the prosecution case was to be based, to some extent, on proof that native vegetation was growing on the areas in question before 22 March 2002, but was no longer there after 1 November 2002, and would rely on circumstantial evidence to support an inference that the defendants were responsible for the removal of the native vegetation that had been removed from the areas in question.
The Legislation
“Native vegetation” is defined in s 3(1) of the Act to mean “a plant or plants of a species indigenous to South Australia”, but subject to immaterial exceptions does not include a plant that is dead or a plant that was intentionally sown or planted.
The Act includes provisions under which the owner of land can apply to the Native Vegetation Council (established by the Act) for consent to clear native vegetation: s 28(1). In deciding on an application the Council must have regard to “the principles of clearance of native vegetation”, which principles are set out in a schedule to the Act: s 29(1).
The Act further provides by s 27(b)(ii) that native vegetation may be cleared “in prescribed circumstances”. The Native Vegetation Regulations 1991 (SA) (“the Regulations”) in reg 3 list circumstances in which native vegetation may be cleared without obtaining a consent from the Native Vegetation Council. Regulation 3 contains 22 subparagraphs, and a number of paragraphs contain a number of subparagraphs.
By s 3(1) the Act provides:
“to clear” native vegetation includes to cause or permit the clearance of native vegetation.
The same section further provides:
“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.
The charges were laid under s 26 of the Act which, at the time, relevantly provided as follows:
26(1) A person must not clear native vegetation unless the clearance is in accordance with this Part.
Penalty: Division 2 fine or a sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed, whichever is greater.
(2) A person must not contravene or fail to comply with a condition attached to a consent granted under this Part.
Penalty:Division 2 fine or a sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed, whichever is greater.
(3) In this section –
“land in relation to which the offence was committed” means –
(a)land on which the vegetation is or was growing or is or was situated; and
(b)land that has been, or will be, affected in any way (including by an increase in its value) by reason of the commission of the offence;
“the prescribed rate” means –
(a)the amount (if any) per hectare by which the land in relation to which the offence was committed has increased in value as a direct result of the commission of the offence; or
(b)the amount of a division 7 fine,
whichever is the greater.
…
Submissions on appeal
Mr Peek QC, counsel for Mr Brinkworth (Mrs Brinkworth did not take any part in the appeal) submits that the count set out above is duplicitous on its face, because it alleges more than one offence. It alleges more than one offence because para 3 of the Particulars alleges clearance of native vegetation from “27 separate areas of the subject land”. Mr Peek submits that the clearance of each of these areas gives rise to a separate offence. Accordingly, the count alleges 27 offences.
Mr Peek makes the point that “the subject land” referred to in the count is a large area, and submits that having regard to that fact, and to the fact that the alleged clearance occurred over a period in excess of seven months, the case is not one in which the count can be supported by applying the approach stated by Lord Diplock in Director of Public Prosecutions v Merriman [1973] AC 584 at 607 where he said:
The rule against duplicity … has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.
This principle was referred to with apparent approval by Dawson and Toohey JJ (dissenting) in Walsh v Tattersall (1996) 188 CLR 77 at 84-85 and by Kirby J at 104-105 and at 107. At 107, in the course of summarising the principles relating to duplicity, Kirby J said:
Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity.
Mr Peek appeared to submit that a stricter approach to the application of the relevant principles has been taken in Australia than has been taken in England. I can find nothing in the reasons of the members of the High Court in Walsh v Tattersall to support that submission. But in any event Mr Peek submits that the conclusion that the count alleges 27 separate offences is supported by the fact that each of the 27 areas might have been cleared at a different time, or at least on a different day, that the clearance might have been carried out by a different person or persons, that different methods of clearance might have been used in relation to different areas, and that having regard to the numerous circumstances in which clearance is permitted under the Regulations, different issues and defences might arise in relation to each of the areas concerned. Issues that might arise in relation to one area but not in relation to another include, for example, whether the vegetation in question was native vegetation; whether it was already dead; whether clearance was permitted by virtue of one of the provisions of the Regulations, and whether the defendants could rely on s 40 of the Act which makes it a defence to a charge:
… if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
He submits that these considerations support his submission that the clearance of each of the 27 areas constitutes a separate offence, raising separate issues.
He further submits that the number and nature of the issues that might arise in relation to separate areas make it unfair and embarrassing for the defendant to face a count so expressed. He submits that in trying such a count the court would not be able to ensure the orderly administration of justice, because determining the admissibility of evidence and all of the different issues that might arise in relation to the separate areas, would become practically impossible and would be productive of prejudice: see S v The Queen (1989) 168 CLR 266 at 285 Gaudron and McHugh JJ.
Mr Peek also submits that the offence charged in each count cannot be characterised as an offence defined in terms of a course of conduct or state of affairs or a continuing offence as it is sometimes called.
In Walsh v Tattersall Gaudron and Gummow JJ held that the offence charged was not an offence created by the relevant Act (in brief, because the Act made the obtaining of each of the payments in question an offence, and did not create an offence constituted by the obtaining of a number of payments over a period of time), and having so concluded added at 91:
In conclusion, it may be observed that the present case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond. There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact suffices by itself. (footnote omitted)
Kirby J referred to the same principle when he said at 107-108:
Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs. Obviously, nice questions arise as to whether individual acts of supply of prohibited drugs create the same, or substantially the same, offence so as to sustain a single count and to resist an allegation of duplicity. (footnotes omitted)
This was the approach taken by the Judge below, who said:
In my view, it was open to the appellant to charge the respondents in a single count on the basis that the act of clearing was a continuous offence in relation to the same parcel of land over a period of time. I do not think that the fact that the appellant was able to identify twenty-seven sites from which it was alleged native vegetation had been cleared, of itself, rendered the complaint duplicitous. This assertion in the particulars does no more than identify the locations on the parcel of land from which vegetation had been removed. The charging of twenty-seven counts would not assist in identifying when, according to the allegations, the removal took place, whether vegetation on one or more areas was removed on a single occasion, or whether the removal of vegetation from a particular site took place on the one occasion or over a period of days, weeks or months. It would appear that the prosecution could not provide this degree of particularity.
Mr Peek argues that the Judge erred, and that the offence here is one defined in terms of a course of conduct.
As I understood him, Mr Peek submits that the considerations referred to above mean that the clearing of the 27 areas over a period of time cannot be regarded as a single continuous offence in relation to the same parcel of land.
Mr Kourakis QC SG, appearing for Mr Dendy, does not dispute the principles that Mr Peek invoked. Indeed, it seems to me that this is not a case that calls for any reconsideration of the relevant principles. It is a case that involves the proper application of those principles.
Mr Kourakis submits that s 26 of the Act creates an offence that can be constituted by the clearing of more than one plant. The Act permits, but does not require, an offence to be charged by reference to each separate plant that is cleared. If the Act permits a charge to be based on the clearance of numbers of plants not separately or individually identified, it necessarily permits a charge to be laid that alleges the clearance of native vegetation from an area of land.
Mr Kourakis submits that Mr Peek’s own argument accepts that 27 separate charges based on the clearance of the 27 separate areas in question would be permissible. He makes the point that in relation to a particular area, the different issues identified by Mr Peek might arise. If a charge can be laid alleging the clearance of an area, he submits that the selection of the relevant area in any particular case becomes, as Kirby J said in Walsh v Tattersall, “a question of fact and degree for decision in each case”: 108. Mr Kourakis submits that on the face of the complaint there is no basis for a conclusion that the charge as laid is duplicitous simply because it identifies 27 separate areas of clearance. He acknowledged that examples can easily be constructed in which, having regard to the circumstances, a charge that is based on the clearance of a number of separate areas will be duplicitous. But, as he submits, it is equally possible to create examples in which such a charge will not be duplicitous.
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?
As a matter of ordinary language, there is no difficulty in saying that in the circumstances the defendant cleared native vegetation from the area in question, assuming always that the area can be identified.
Moreover, the definition of “clearance” includes “the burning of native vegetation”. The owner of a large area of land might set a fire and allow it to burn over a period of days or even weeks. Assuming that native vegetation is burned in the fire, it would be in accordance with ordinary usage to refer to the defendant as having cleared native vegetation from the area that the fire covered, or from some identified part of the area that the fire covered. If the complaint is that the defendant drained or flooded land, and that later that killed or destroyed native vegetation, it would again be consistent with ordinary usage to refer to the defendant as having cleared native vegetation from the area drained or flooded. So ordinary use of the statutory language is consistent with identification of the prohibited conduct as an activity that occurs over or by reference to an area of land.
The nature of the activity with which s 26 deals suggests that often it will not be possible to identify individually the plants that have been cleared. They might be too numerous to be so identified. Or, even though relatively few in number, the prosecution might be able to prove no more than that native vegetation (described in general terms) was present on the land and that after the relevant activity the native vegetation had gone. The vegetation might have been burned or removed.
Practical considerations suggest that while the prohibited act is the clearance of plants, it should be possible to charge an offence that consists of the clearance of an unspecified number of plants, and that it should be permissible to lay the charge in a form that identifies the place or area where the plants were before they were cleared. Unless this is so, in many situations the prohibition in s 26(1) will be unenforceable.
That in turn suggests that a charge of clearing native vegetation from or on a specified area of land must be a permissible form of charge.
In fact, Mr Peek concedes as much. But once that concession is made, it becomes apparent that Mr Peek’s submission relies on the fact that although the charge alleges that clearance of native vegetation from an identified area of land (called “the subject land”), the particulars indicate that the native vegetation in question was at 27 separate locations on that land. But, of itself, that is of no significance. There might have been only 27 plants on the land, or 27 groups of plants, or 270 groups of plants. The fact remains that the charge is a charge of having cleared native vegetation from the subject land, and the particulars indicate that the subject land contained 27 stands or collections or groups of native vegetation. The evidence will disclose the size of those stands or collections or groups, the area they occupy, the relationship between each of the areas, and their relationship to the subject land as a whole. But the charge itself relates to the area referred to as the subject land. I can see no reason why the complaint should be treated as duplicitous because the particulars disclose that the cleared native vegetation was not scattered uniformly across the land, but was in 27 stands or collections or groups.
In short, once it is accepted (as it must be) that a charge of clearing native vegetation can be laid alleging the clearance of an area containing native vegetation (and not identifying individual plants), it must follow that a charge in that form is not on its face bad for duplicity merely because the particulars disclose that the native vegetation was not scattered across the whole of the area, but was found in a number of separate locations within the area.
What limits are there to this approach? Does it lead to the conclusion that the prosecution can select any area it chooses and, by its own election, control the definition of the area in question?
There are limits to the ability of the prosecution to determine the area by reference to which a charge can validly be laid. In the end it will be a question of whether, in all the circumstances, the area chosen can properly be regarded as an area within which conduct amounting to clearance (as distinct from separate and distinct acts of clearance) has occurred.
It would be unwise to attempt to specify, in the abstract, how each case is to be decided. Each case will turn on its facts. Relevant factors that occur to me will include the manner in which the boundaries of the area are identified; the extent of the area; the location, and location in relation to each other, of the plants that are said to have been cleared; the nature of the act or acts that brought about the clearance; the period of time over which those acts occurred; whether the acts in question are part of an organised project or whether they are unconnected acts. There may be other factors.
As Gleeson CJ said in Stanton v Abernathy (above), there is no verbal formula which will give an easy guide. And, as Kirby J said in Walsh v Tattersall at 107, what is presented to the court is a question of fact and degree for decision in each case.
To so conclude is not to abandon the rule against duplicity. It is to recognise that because a charge may properly be laid alleging the clearance of native vegetation from an area of land, the question of whether a charge so laid is duplicitous is unlikely to be able to be decided by reference to the form of the charge, and will turn upon whether, when the relevant circumstances are known, a consideration of the area identified and the other circumstances discloses that the conduct alleged cannot be regarded as one or a single activity of clearance.
In other words, if it is permissible to lay a charge in a form that alleges the defendant cleared native vegetation from an area which is identified (and in my opinion this is permissible), it will not be a fatal flaw that the particulars of the charge allege that within the area in question there were multiple areas or stands of native vegetation. In such a case the question is whether, once the facts are known, the activity relied on as amounting to the clearance of native vegetation from that area can, in all the circumstances, be treated as one act or activity of clearance.
This point is brought out more clearly if one bears in mind that in the present case the count in question might have contained an allegation in Particular 3 that native vegetation was cleared from 27 stands of vegetation on the land, or that 27 groups of native vegetation were cleared from the land. In due course the prosecution would have to identify, by giving particulars and through its evidence, where the native vegetation was. But a complaint in this form would, at the end of the day, present the same issue as arises here. That is, can the clearing of native vegetation found in those 27 areas be treated, in the circumstances of the case, as one activity of clearance from “the subject land”? The same issue would arise if paragraph 3 of the Particulars alleged that 27 separate plants were cleared from the subject land, or 270 separate plants. Subject to the plants being identified in one way or another, the question would again be whether, in all the circumstances, the clearance of those plants could be treated as one act or activity of clearance from “the subject land”.
I give one further example to illustrate the point. A complaint might allege that the defendant cleared native vegetation from an area of land that is identified as roughly square in shape. The Particulars might allege that the defendant removed 10 plants from one corner of the land, 10 plants from another corner, and a clump of 10 plants in the middle of the land. The complaint might refer to three areas of native vegetation or to three stands, collections or groups of native vegetation. The area in question might be quite small (a standard house block) or a vast paddock. If the prosecution case is that on a given day (the land being a small area) the defendant by hand removed each of the plants, there seems no difficulty in treating that as a single activity of clearance. If the area of land is large, and the evidence is that the defendant, over a period of time, moved from area to area removing the plants, this might still be regarded as a single activity of clearance. But if the evidence shows that one group of native vegetation was removed in January 2005 by the defendant by hand, and another group was removed in December 2005 by machine, and if there is no apparent link between the two activities, one might conclude that two acts of clearance have occurred. It would be a matter of considering all the circumstances.
In short, when a defendant attacks a charge under s 26 on the basis that a single count alleging clearance of an area is duplicitous, in most (if not all) such cases the answer must be that there is no patent duplicity because of the form of the complaint, and that the Court will be able to decide whether or not there is latent duplicity only in light of a sufficient understanding of the prosecution case to enable the court to determine whether or not the activity relied on can be treated as a single activity of clearance of the area in question.
The count in question is not duplicitous on its face. It is permissible to allege, as is alleged, that the defendants cleared native vegetation from an identified area and over a period of time. The fact that the particulars allege that the native vegetation was in 27 stands or groups or areas is, of itself, neutral. Of itself it does not indicate duplicity.
As Dawson and Toohey JJ observed in Walsh v Tattersall (above), a complaint of patent duplicity is a matter of form, and does not depend on the evidence to be called. And, as Kirby J said in Walsh v Tattersall at 109:
Where the alleged duplicity of the charge is latent, it may only be manifested by the way in which evidence is presented to support the charge. It may not be until the prosecution’s case is concluded that it becomes apparent that the prosecution cannot prove all of the acts that have been rolled together in a single composite charge, making plain the unsuitability of the process reliant on that charge. (footnotes omitted)
In the present case it might yet emerge that the charge is duplicitous.
Before the Magistrate and before the Judge certain aspects of the relevant facts were identified. However, having concluded that the charge is not duplicitous on its face, it is not appropriate to decide whether or not duplicity will emerge when the facts are known, other than on a firm factual basis which the parties agree fairly reflects the prosecution case.
I add that some support for the conclusion reached is provided by the penalty stipulated in s 26(1). While the area “of the land in relation to which the offence was committed” might be proved after a conviction is obtained, as part of the sentencing process, the manner in which the penalty provision is expressed is, at the least, consistent with an offence being described as referable to an area of land.
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).
If native vegetation is cleared at one time from one piece of land, there is one act of clearance notwithstanding that the area of land is in fact very large and that the stands of native vegetation are separate from one another. It would be absurd and render the Act unworkable, if not also unenforceable, if a separate offence was constituted by each area of native vegetation which is cleared. That serves to underline the fact that the Act is concerned with the result of the activity by which land is cleared of native vegetation.
Assume a very large area heavily grown with native vegetation. It might take days or even weeks to clear the native vegetation but, once cleared, it constitutes a single act of clearance because an area with native vegetation has been cleared of that vegetation. Again, it would be absurd to require a separate charge in respect of each plant which comprised the native vegetation. The same reasoning applies, where a number of stands of native vegetation in a large area are cleared. Although, the time required to clear the land may extend over a period of days, if not weeks, it nevertheless results in an act of clearance of native vegetation. A clearance of native vegetation has occurred notwithstanding that the activity by which the land was cleared occupied a period of days or weeks. In addition, the act of clearing might be carried out by one method, say bulldozing, or by a number of methods, say a mixture of bulldozing and other techniques. Section 26 is not directly concerned with the activities which result in clearance. What is proscribed is the result of the activities.
Section 26 does not, therefore, create an offence which is necessarily constituted by a single act of the defendant. It is possible that there will be occasions when a single act will constitute an offence, namely, where one tree which is a species of native vegetation is killed or removed or where one stand of native vegetation is cleared. More usually, the offence will be committed by clearing an area of native vegetation, be it a large or a small area, or by clearing several areas of native vegetation, be they large or small.
The prosecution of environmental offences of this kind is difficult. The difficulties were identified by Smart JA in Bentley v BGP Properties Pty Ltd (2005) 139 LGERA 449 in these terms:
55Environmental offences are notoriously difficult of proof. While the damage caused to a particular area is often all too evident, the prosecuting authority by its officers, is not present when the actual damage is caused and does not know the precise mechanism by which the damage was caused. The prosecuting authority may be able to ascertain the machinery which the landholder has or used. The landholder may do the work himself or have staff do it or engage contractors. From inspections of the property after the damage has been caused it may be evident that the damage has been caused by an act or acts in that the result produced could not have happened without an act (or, in some circumstances, an omission). However, it may not be possible to identify the particular acts or acts causing the damage. Not infrequently the damage will have been committed by a series of acts, for example, driving a mower or a dozer or grader over an area for an hour or so, or even over some days or weeks. It may be some weeks later before an inspection takes place as a result of intelligence received or gathered by the Service.
56I would adhere to the statements of principle that for continuing offences and facts so related that they amount to one activity and that where an offence is defined in the terms of a course of conduct or state of affairs, the prosecution can rely on a series of closely related acts (or omissions) and is not confined to relying on one act. Nor would I question that the acts or omissions relied upon by the prosecution may take place continuously or intermittently over a period of time. These principles are of appreciable importance in relation to environmental offences. Damage of consequence may be caused by several acts in combination, whereas damage caused by one act may be inconsequential.
In the case of clearance of native vegetation from land, there is one result, namely, the cleared land. Section 26 proscribes conduct which has led to that result.
The activities may be sufficiently closely related that they constitute one activity and so one offence. There might be occasions when the acts of clearing are so separated in time and place that they cannot be said to constitute one activity. Every case must be determined on its own circumstances.
The appellants relied on Johnson v Miller (1937) 59 CLR 467 and Walsh v Tattersall but fundamental to those decisions is the premise that the relevant statutory provision in each case imposed a distinct liability for a separate offence: see Johnson v Miller at 483 per Dixon J and Walsh v Tattersall at 89 per Gaudron and Gummow JJ. The clearance of native vegetation falls into a different category of offence. As I have said, it would be absurd and render the Act unenforceable if a separate offence existed in respect of each item of native vegetation which had been cleared. At the same time, it is not a continuous offence. If the offence of clearing native vegetation has any parallel in terms of the matters which must be proved, it is to be found in offences which require proof of a number of events to constitute one activity. Examples are the offences of the trafficking in drugs or keeping a house of prostitution. However, the issue is not to be resolved by seeking to categorise the offences under one heading or another. Instead, it is necessary to examine the nature of the offending which the legislation seeks to proscribe. Where the nature of the offending is constituted by a series of acts which together produce a result, the prosecution is entitled to charge them in a single count giving particulars of the acts which constitute the offence.
In this case the prosecution alleges that over a period of time the appellants cleared native vegetation by removing it from the land. It is alleged that the clearance was intended to increase the area for grazing livestock. The prosecution case was that the appellants had engaged in a planned and systematic clearing of a number of small areas of native vegetation in one very large fenced paddock. At this stage, there is no evidence how that clearance was effected. The area of land in which the clearing occurred is extremely large. There is no evidence of the extent of the land on which the clearance is alleged to have occurred. It is at least several thousands of hectares. A number of the 27 separate areas are very close to one another. Others are some distance apart. They are not so far apart as to prevent the clearance being effected in one operation.
At this stage, there is nothing to show that the alleged clearing was not the result of one activity conducted over a period of time. Counsel for the prosecution sought to put some material before the magistrate on that question but counsel for the Brinkworths objected to that course. The objection on the ground of duplicity cannot be determined given the absence of any knowledge of the evidence on the which the prosecution seeks to rely.
The prosecution has provided full particulars of each of the areas alleged to have been cleared. There will, therefore, be no prejudice to the appellants. They know the areas which are alleged to have been cleared. They appellants know the case they have to meet.
In all the circumstances, the prosecution should proceed. Should the evidence disclose that the clearing occurred at quite different times in quite different locations and was not part of one project or operation, it might be necessary for the question of duplicity to be reconsidered. The question will have to be reconsidered in light of the evidence then adduced.
I agree that this appeal should be dismissed.
ANDERSON J: For the reasons given by Doyle CJ, I agree that the appeal should be dismissed.
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