Carmody v Brancourts Nominees Pty Limited; Carmody v Brancourt

[2002] NSWLEC 181

Land and Environment Court

of New South Wales

CITATION:

Carmody v Brancourts Nominees Pty Limited; Carmody v Brancourt [2002] NSWLEC 181

PARTIES:

PROSECUTOR
Stephen Carmody

DEFENDANTS
Brancourts Nominees Pty Limted
Maurice Albert Brancourt

FILE NUMBER(S):

50057; 50058; 50059; 50060 of 2002

CORAM:

Talbot J

KEY ISSUES:

Prosecution :- abuse of process - plea in bar - duplicity

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 125(1)
Crimes Act 1900 (NSW) s 33, s 110
National Parks & Wildlife Act 1974 s 5, s 118D(1)
Threatened Species Conservation Act 1995 Sch 1, Sch 2
Great Lakes Local Environmental Plan 1996 cl 10(2)

CASES CITED:

Blockburger v United States (1932) 204 US 299;
Connelly v DPP [1964] AC 1254;
Dodd v Dodd (1991) 56 A Crim R 451;
Elrington (1861) 1 B&S 688;
Grady v Corbin (1990) 495 US 508;
Hedberg v Woodhall (1912) 15 CLR 531;
Li Wan Quai v Christie (1906) 3 CLR 1125;
Pearce v The Queen (1998) 194 CLR 610;
Power v Penthill House Pty Limited (1993) 80 LGERA 247;
Rogers v The Queen (1994) 181 CLR 251;
Saraswati v The Queen (1991) 172 CLR 1;
Walton v Gardiner (1993) 177 CLR 378;
Wemyss v Hopkins (1875)LR 10 QB 378

DATES OF HEARING:

07/10/2002

DATE OF JUDGMENT:

10/11/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr S J Rushton SC with Mr J D Smith (Barrister)
SOLICITORS
National Parks and Wildlife Service

DEFENDANTS
Mr P A Beale (Barrister) with Mr N Potts (Barrister)
SOLICITORS
N/A

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50057 of 2002 and 50058 of 2002

Talbot J

11 October 2002

Stephen Carmody

Prosecutor
v

Brancourts Nominees Pty Limited

Defendant
50059 of 2002 and 50060 of 2002

Stephen Carmody

Prosecutor
v

Maurice Albert Brancourt

Defendant

Judgment

Introduction

1 In matter No. 50060 of 2002 Maurice Albert Brancourt (“Brancourt”) is charged that between 27 July 2000 and 1 August 2000 he did, by causing vegetation to be cleared from Lot 1 in DP 54685 at Hawks Nest, cause damage to the habitat of a (endangered) population namely, the Koala Hawks Nest and Tea Gardens Population knowing that the land was habitat of that kind contrary to s 118D(1) of the National Parks and Wildlife Act 1974 (“the NP&W Act”).

2 By summons 50059 of 2002, Brancourt is also charged that on the same dates he did, by causing vegetation to be cleared on the same land, cause damage to the habitat of a threatened species, namely the Koala, knowing that the land was habitat of that kind contrary to s 118D(1) of the NP&W Act.

3 In matter No. 50057 of 2002 and matter No. 50058 of 2002, Brancourts Nominees Pty Limited (“the company”) is charged with the same offences.

4 Pursuant to an information laid on 22 September 2000, Brancourt was charged by summons issued out of the local court at Raymond Terrace with the offence that between 26 July 2000 and 1 August 2000 at Hawks Nest, he committed an offence under s 125(1) of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”) in that contrary to the prohibition in cl 10(2) of the Great Lakes Local Environmental Plan 1996 he directed the removal of trees to which a Tree Preservation Order (“TPO”) applied on the said lot 1 without the consent of Great Lakes Shire Council (“the council”). The particulars furnished identified the trees as 210 Slashpines and 58 Paperbarks.

5 Brancourt pleaded guilty to the charge in the local court and was convicted.

6 Each of the defendants have filed a Notice of Motion seeking an order that the two summonses dated 19 July 2002 issued against them in this Court be struck out in their entirety on the grounds of abuse of process. In the alternative, they seek that the prosecutor be ordered to elect which of the two summonses he intends to rely upon.

7 Brancourt’s complaint is that despite the council and the National Parks and Wildlife Service (“the NPWS”) conducting a joint or parallel investigation into the acts and omissions which allegedly led to the offences, he was never informed that he would be subject to prosecution by both authorities. Furthermore, if he had been so informed, he would have not entered a plea of guilty in the proceedings in the local court and would have sought advice to have all charges that may have arisen from those investigations heard together.

The defendant’s argument:

Abuse of process

8 Mr Beale contends, on behalf of the defendant, that the element of causing damage to the habitat of the threatened species or the endangered population is clearly an aggravated version of the offence for which Brancourt was convicted in the local court.

9 The statement of facts presented to the magistrate contains admissions that Brancourt authorised the contractors to underscrub the land “along with the Koala habitat” that “is clearly marked out”. A letter addressed to the council by Harper Somers Pty Limited, Surveying Engineers and Planning Consultants, on behalf of Brancourt, prior to the commencement of the clearing operation, was also in evidence before the local court. The letter acknowledged in terms that the “forest area is identified as core koala habitat” and that there was no intention to interfere with the habitat area or trees protected by the TPO.

10 Accordingly, the issue regarding the damage to a known Koala habitat was squarely before the local court and would therefore have been taken into account in determining the gravity of the offence. This circumstance, says Mr Beale, calls into question the fairness of the administration of justice by requiring Brancourt to account on a second occasion based upon the same facts. The point made by Mr Beale is that a court, in punishing Brancourt for the prior offence, has already taken into account the damage done to the Koala habitat and applied an appropriate penalty accordingly.

11 Brancourt places significant reliance upon the judgments in Rogers v The Queen (1994) 181 CLR 251, in particular Mason CJ at p 255 as follows:-

The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party’s genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories Hunter v Chief Constable [1982], at p. 536 per Lord Diplock. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.

12 The Chief Justice, quoting (at 255-6) from the joint judgement of Mason CJ, Deane and Dawson JJ, in Walton v Gardiner (1993) 177 CLR 378 at 393 reiterates that the inherent jurisdiction of a superior court to stay proceedings for an abuse of process:-

…extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or fairness.

13 Their Honours went on to say:-

Proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that is sought to litigate anew a case which had already been disposed of by earlier proceedings.

14 They continued at p 396 and state that the question was to be determined by a weighing process, including a consideration of:-

The requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.

15 Deane and Gaudron JJ delivered a joint judgment in Rogers, and at p 280 identified their concern about “the scandal of conflicting decisions” and jeopardising public confidence in the administration of justice, in a context where the onus of proof would be the same and where there is no claim of “fresh evidence” or fraud.

16 Mr Beale also relies upon the decision of the Court of Criminal Appeal (New South Wales) in Dodd v Dodd (1991) 56 A Crim R 451, particularly the judgment of Gleeson CJ. His Honour referred to speeches of a number of members of the House of Lords in Connelly v DPP [1964] AC 1254 and a discussion on Elrington (1861) 1 B&S 688. In Elrington, the accused had been discharged in respect of a complaint alleging assault. He was later charged with assault occasioning actual bodily harm and assault occasioning grievous bodily harm. Cockburn CJ had described a general principle of the common law in Elrington as follows:-

The well established principle of our criminal law, that a series of charges shall not be preferred, and whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.

17 Chief Justice Gleeson also referred to what Griffith CJ said in Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131 as follows:-

In order that a previous conviction or discharge can be a bar to subsequent proceedings, the charges must be substantially the same. The true test whether such a plea is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first.

18 His Honour also referred to the following extract from the judgment of Dawson J in Saraswati v The Queen (1991) 172 CLR 1:-

Moreover, if the prosecution chooses only to charge an accused with indecent assault where the facts would support a charge of rape or unlawful carnal knowledge, there is no reason why he should not be convicted of the lesser charge. If he were convicted and the prosecution subsequently chose to charge the same accused with the more serious offence arising out of the same facts, he would have available to him a plea in bar, not strictly a plea of autrefois convict because he would not have been convicted of the offence in the form charged, but based upon

the well-established rule at common law that whenever a person has been convicted and punished for an offence by a court of competent jurisdiction, transit in res judicatam – that is the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence.

19 The applicants in Dodd had been first convicted in the local court on summary charges of possessing heroin and were subsequently indicted on new charges of supplying the same heroin.

20 Chief Justice Gleeson explained the situation at p 457 as follows:-

…in the case of each applicant, the offence first dealt with (possession) was a necessary element of the offence charged in the indictment (supply, which in this case by definition meant possession for the purpose of supply), and the latter offence was an aggravated form of the former offence in that the evidence required to secure a conviction on the latter offence would necessarily have sustained a conviction on the former.

21 His Honour found that the balance of authority in England and Australia is in favour of the proposition that the appropriate means of giving effect to the principle on which the applicants were entitled to rely is by way of a plea in bar, rather than an application for a discretionary order staying proceedings.

22 It is Mr Beale’s submission that the common element of Koala habitat raises the issue of whether Brancourt is to be punished again for the same matter.

Duplicity

23 Section 118D(1) of the NP&W Act provides as follows:-

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, population or ecological community if the person knows that the land concerned is habitat of that kind.

24 The defendants’ contention is that the charges arising out of s 118D(1) are duplicitous in that they are each charged with “damage to the habitat of a threatened species” in the one summons and “damage to the habitat of a threatened population” in the other summons. It is to be noted that both the subject matter of the threatened species and the threatened population is the Koala. Both charges arise out of the same facts. Thus, according to Mr Beale, a breach of s 118D, whether for the threatened “species” or “population”, is in reality an instance of the one offence and not two separate offences. In this particular instance, so the argument goes, there cannot be a charge in relation to the “population” offence without success on the charge of the “species” offence. This is because they both depend on the existence of a member of a “threatened species”, namely the Koala. Therefore, according to Mr Beale, if the charge was causing damage to the habitat of a threatened species or a threatened population that would not amount to a duplicitous charge as it is not a charge relating to two separate offences (Hedberg v Woodhall (1912) 15 CLR 531).

25 Mr Beale puts the argument in this way:-

Duplicity would only arise where the threatened species and threatened population are comprised of different species. In other words the charge that the Defendant caused damage to the habitat of the “Koala” necessarily involves, because of the geography, damage to the habitat of the “Hawks Nest Tea Gardens Koala population”.

26 The two elements are inextricably intertwined. If the first charge is proved then the second follows as there cannot be damage to the habitat of the “Hawks Nest Tea Gardens Koala population” without damage to the habitat of the “Koala”.

27 It is asserted that Parliament could not have intended that s 118D would be interpreted or administered as an instrument of injustice where a person could be punished twice for the same acts and omissions. Even if the charges are not bad for duplicity, they are an abuse of process as the defendants claim they would be twice charged on the same facts and evidence for what is essentially the one offence.

28 In essence, the defendant’s case is that a conviction or acquittal on one charge could lead to an autrefois plea in bar to the second, as the facts and evidence relevant to the first offence would be identical or substantially identical as that for the second. Accordingly, Mr Beale argues that the prosecutor should elect which of the charges he wishes to prefer, either the “species” or “population” charge. Otherwise, prefer the charges in the alternative.

The prosecutor’s argument

29 Mr Rushton SC appears for the prosecutor, the respondent to the notice of motion. He identifies the questions raised as being questions of estoppel and autrefois aquit in the context of abuse of process and specifically in circumstances where a plea of guilty was entered in respect of an earlier charge.

30 Initially Mr Rushton notes that it was only Mr Brancourt who pleaded guilty to the charge brought in the local court. He says that the proceedings against the company cannot constitute an abuse of process simply because Brancourt has been convicted of an offence arising out of the same facts. Accordingly, to that extent at least, he submits the application is misconceived and ought to be dismissed. I agree.

31 It is the prosecutor’s contention that the elements of the offence against s 125 of the EP&A Act are quite different in scope to the elements of the offence alleged against s 118D(1) of the NP&W Act. Firstly, the offence under s 125 of the EP&A Act is one of strict liability (Power v Penthill House Pty Limited (1993) 80 LGERA 247) whereas the offence against s 118D is a criminal offence in the conventional sense where mens rea is an element and in respect of which the Court may impose a term of imprisonment.

32 The elements of the offence in s 125 are damage to trees of a specified category without consent of the council. Likewise, the offence under s 118D has the element of damage, but this relates to the habitat of the threatened species, population or ecological community in respect of which the person charged has knowledge. The knowledge which the offender must have will vary depending upon whether the allegation relates to damage to the habitat of a threatened species or population or ecological community. Each offence requires proof of the particular knowledge that the land concerned is habitat of the particular kind. Section 5 of the NP&W Act defines “threatened species, populations and ecological communities” and “threatened species, population or ecological community” as having the same meaning as in the Threatened Species Conservation Act 1995 (“the TSC Act”). The TSC Act defines the former as species, populations or ecological communities specified in Sch 1 and Sch 2 and the latter as a species, populations or ecological communities specified in either of those schedules. There is no reference to the Koala in Pt 1 of Sch 1, however, the Koala, Hawks Nest and Tea Gardens population is listed as an endangered population in Pt 2 of Sch 1. The list of vulnerable species in Sch 2 includes the Koala. Accordingly, the TSC Act and hence the NP&W Act, have made the distinction between the endangered population of the local Koala and the individual Koala, as a vulnerable species. It is essential for the prosecutor to prove in each case that the defendant had specific knowledge that the habitat was in one case habitat of the listed species and the habitat of the local population of particular Koala, in the other case.

33 Setting aside the particular office that Brancourt held in the company as a director, the essential elements of the charge causing damage to the habitat of a threatened population are that the act caused damage to the habitat of a threatened population and that Brancourt knew that the habitat was of that kind. The second charge has the same essential elements, except that the habitat must be one of a threatened species rather than a threatened population. The definitions in the TSC Act are not mutually inclusive and accordingly, a threatened population need not necessarily consist of a threatened species. Furthermore, a threatened species need not necessarily make up a threatened population. According to Mr Rushton, therefore, the two different charges have different essential elements and there is no duplicity or abuse of process in the continuation of both charges.

34 Mr Rushton also joins issue with Mr Beale’s argument that a person cannot be prosecuted for a number of offences just because they all arise out of the same act or the same course of conduct. In support of this argument, Mr Rushton relies on the judgment of the Chief Justice in Dodd at p 457, where-after referring to authority in the United States Supreme Court, His Honour observes that there are many forms of conduct which are capable of giving rise to multiple breaches of law.

35 He goes on to say at p 457 as follows:-

In Australia it is not the law that a person cannot be prosecuted for a number of offences just because they arise out of the same act or course of conduct (Australian Oil Refinery Pty Limited v Cooper (1989) 11 NSWLR 277).

36 His Honour then makes it clear that the issue in Dodd was the application of the rule which prevents more than one prosecution for the same offence. The rule also applies to prevent prosecution for an offence which is merely an aggravated form of an offence to which a person has already been punished. The citations from Dodd relied upon by the defendants should be understood in that context.

37 However, the major thrust of Mr Rushton’s argument lies, with what he says is the ultimate complete answer, in the more recent decision of the High Court in Pearce v The Queen (1998) 194 CLR 610.

38 The defendant in Pearce faced two charges, namely maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm and with breaking and entering the dwelling house of the victim and while therein inflicting grievous bodily harm on him. The charges were laid respectively pursuant to s 33 and s 110 of the Crimes Act 1900 (NSW). Both offences had an essential element of inflicting grievous bodily harm. Mr Rushton contends that the joint judgment of majority decisions in Pearce indicate that Dodd was wrongly decided.

39 McHugh J, who was in the minority in Rogers, delivered a joint judgment with Hayne and Callinan JJ.

40 After discussing the nature of double jeopardy, their Honours identified the question as whether the appellant had a plea in bar or was entitled to a stay of proceedings because the two offences arose out of a single episode.

41 The following appears at par 18 on p 616:-

It is clear that the plea in bar goes to offences the elements of which are the same as R v Emden (1808) 9 East 437 [103 ER 640]; R v Clark (1820) 1 Brod & B 473 [129 ER 804], or are included in R v Elrington (1861) 1 B & S 688 [121 ER 870]), the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for "substantially the same" (Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131 per Griffith CJ; R v O'Loughlin (1971) 1 SASR 219 at 253-254 per Wells J; cf R v Barron [1914] 2 KB 570 at 575 per Lord Reading CJ ) offence, or for an offence the "gist" or "gravamen" (O'Loughlin (1971 ) 1 SASR 219 at 258 per Wells J) of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins (1875) LR 10 QB 378, for the "same matter" per Blackburn J . It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts.

42 Referring back to the test identified by Griffiths CJ in Li Wan Quai, they confine the enquiry suggested in that case to an enquiry about what evidence would be “sufficient” to procure a legal conviction as opposed to what evidence might be given.

43 They also confine the application of Wemyss v Hopkins (1875) LR 10 QB 378 at par 24 on p 618 as follows:-

On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.

44 Reference is made to the test ultimately applied by the Supreme Court of the United States in Blockburger v United States (1932) 204 US 299 at 304 when the Court held the following:-

“…where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

45 After quoting extensively from a dissenting judgment of Scalia J in the United States Supreme Court (Grady v Corbin (1990) 495 US 508), McHugh, Hayne and Callinan JJ concluded in par 28 at p 620 as follows:-

Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an inquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J. The stream of authorities in this country runs against adopting such a test and there is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld.

46 Although the High Court appears to have reverted to a stricter test than that adopted in Rogers, the following observations (in par 29 at p 620) leave the question open to some extent:-

Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen.
The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series or events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose.

47 The issue of overlap will arise if the prosecutor obtains a conviction against Brancourt in this Court. Observations made in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce at p 623 – 4 warn against the prosect of punishing an offender twice for the commission of the elements of an offence that are common so that the judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality.

Conclusion

48 Having regard to the more recent explanation given by the High Court in Pearce the Court is not satisfied that in the circumstances of this case a plea in bar should be upheld or that any of the proceedings are an abuse of process. Although there are clearly common elements of the offences, namely the clearing of trees specified in the TPO which coincidentally form part of the habitat of a individual Koala and a Koala population, the trees categorised by the TPO foreseeably, almost certainly, do not comprise the totality of habitat for Koala species. A further element of the offences now charged is that s 118D(1) requires that the defendant know that the land concerned (not necessarily the vegetation) is habitat of the kind referred to. The fact that evidence in respect of Koala habitat was given in the local court, does not entitle the defendant to raise a plea in bar or claim abuse of process given the explanation of the test in Wemyss and Li Wan Quai in Pearce. This invites attention only to the elements of the offences that must be proved to establish commission of each of the offence, not to identifying which witnesses might be called or what they could say. Any issue about whether the defendant is exposed to double punishment will arise on sentencing and can be adequately dealt with by addressing the questions identified in Pearce at p 624.

49 On the issue of duplicity it is correct, as the prosecutor asserts, that the TSC Act makes it clear that the composition of a threatened population is distinct from a threatened species. Accordingly, there is a different test in regard to knowledge of the defendant in respect of the habitat of the species or the population. It may well be that the habitat is common but the knowledge that the habitat is of the particular kind identified in the charge is quite distinct. The Court is not satisfied that the charges, as presently framed, are duplicitous. Once again, as in relation to the issue of a plea in bar and abuse of process, the questions of being punished for the same event can be resolved on sentencing. In the meantime, the prosecutor is not required to make an election.

50 That nevertheless leaves an issue not now directly relevant to the question of duplicity, namely whether only one offence can arise pursuant to s 118D(1). If necessary, the issue of whether separate charges are individually bad can be resolved at the trial.

Orders

51 The Court makes the following formal orders:-

(1) The Notices of Motion in matter No. 50057 of 2002, matter No. 50058 of 2002, matter No. 50059 of 2002 and matter No. 50060 of 2002 filed 2 August 2002 are dismissed.

(2) Costs on each Notice of Motion reserved.
(3) Exhibits may be returned.

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