Burrell v Jacenko - [1998] NSWLEC 38

Land and Environment Court

of New South Wales

CITATION: BURRELL v. JACENKO [1998] NSWLEC 38

PARTIES: BURRELL v. JACENKO

FILE NUMBER(S): 50130 of 1997

CORAM: Lloyd J

KEY ISSUES: :-

LEGISLATION CITED: Heritage Act 1977, s 158
Land and Environment Court Act 1979, ss 55, 68
Land and Environment Court Rules, Pt 6 r 2, Pt 10 r 1
Supreme Court Rules, Pt 20 r 1, Pt 75 Div 2

CASES CITED: Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78;
Giorgianni v The Queen (1985) 156 CLR 473, at 501;
Du Cros v Lambourne [1907] 1 KB 40;
Gould & Co v Houghton [1921] 1 KB 509;
Ex parte Coorey (1944) 45 SR (NSW) 287, at 295;
Reg. v Glennan (1970) 91 WN (NSW) 609 at 612-613;
Lenzi v Miller [1965] SASR 1 at 10;
Dare v Pulham (1982) 148 CLR 658;
Environment Protection Authority v Van Hessen Australia Pty Limited, Pearlman J, 27 June 1997, unreported

DATES OF HEARING: 13 July 1998

DATE OF JUDGMENT:
07/23/1998

LEGAL REPRESENTATIVES:
I S Lloyd QC
T F Robertson & F T D DeL Davis

JUDGMENT:

The defendant is charged with the following offence:

That he did remove trees and other vegetation from the premises known as Rosemont at 14 Rosemont Avenue, Woollahra upon which there existed a Permanent Conservation Order under the Heritage Act 1977 in contravention of s 57 and s 156 of the said Act.

The particulars of the offence described in the summons are as follows:

A(i) Between 16th June and 27th June 1997 the Defendant entered upon the premises known as Rosemont.

(ii) Whilst upon the premises he authorised the removal to two Camphor Laurel trees and a large Bougainvillea and other general vegetation.

(iii) On or about 30 March 1984 the said premises were made subject to a Permanent Conservation Order under the Act which is still applicable to the land.

(iv) No consent pursuant to s 57 of the Act was granted to the Defendant to remove the trees or vegetation.@

2. The prosecutor seeks to amend the particulars of the summons as follows:

A(i) Between 16 June and 27 June 1997 the Defendant by his servants or agents entered upon the premises known as Rosemont.

(ii) Whilst upon the premises the Defendant by his servants or agents removed two trees and a large Bougainvillea and other general vegetation.

(iii) On or about 30 March 1984 the said premises were made subject to a Permanent Conservation Order under the Act which is still applicable to the land.

(iv) No approval pursuant to Subdivision 1 of Division 3 of the Heritage Act was granted to the Defendant to remove the trees or vegetation.@

3. Mr I S Lloyd QC, who appears for the prosecutor, submits that the amendments are necessary to reflect the fact that the defendant did not personally remove the trees and vegetation but that they were removed by or under his direction; the fact that one of…

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.

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Details

Case: [1998] NSWLEC 38
Decision Date: 07/23/1998

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Burrell v Jacenko was presided over by Lloyd J. The defendant, Jacenko, is accused of removing trees and vegetation from the premises known as Rosemont in Woollahra, which were subject to a Permanent Conservation Order under the Heritage Act 1977, in violation of sections 57 and 156 of the Act. The prosecution sought to amend the particulars of the summons to reflect that Jacenko had authorised the removal of the trees and vegetation by his servants or agents, and to correct the description of the species of trees removed. Jacenko opposed these amendments, arguing that they would prejudice his defence and amount to a different offence that could not be prosecuted without the Minister's consent.

The court had to determine whether the amendments would change the nature of the offence and whether the court had the power to allow such amendments. Lloyd J concluded that the amendments did not constitute a different offence, as section 55 of the Land and Environment Court Act 1979, which is similar to section 351 of the Crimes Act 1900, does not create a separate offence of procuring the commission of an offence but restates the common law doctrine of secondary participation. The court also noted that it has the power to allow amendments not only of pleadings but also of particulars, at any stage of the proceedings, including after the close of the prosecutor's evidence.

Accordingly, Lloyd J granted the prosecutor leave to amend the summons in the manner described in paragraph 2 above. The court also granted leave to the parties to approach the Registrar to obtain a date for the resumption of the hearing. This decision highlights the court's power to allow amendments to particulars of summons, even if they change the description of the offence, as long as they do not amount to a different offence that requires the Minister's consent.

Orders