Dendy v Brinkworth
[2006] SASC 179
•22 June 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
DENDY v BRINKWORTH & BRINKWORTH
[2006] SASC 179
Judgment of The Honourable Justice Duggan
22 June 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - DUPLICITY AND UNCERTAINTY - WHAT CONSTITUTES IN PARTICULAR CASES - OTHER CASES
Respondents charged on three complaints alleging breaches of the Native Vegetation Act 1981 (SA) - respondents argued before magistrate that counts on two of the complaints were bad for duplicity - counts alleged clearing native vegetation from several discreet sites on respondents' land - magistrate found counts were bad for duplicity - Crown appeal against finding - whether magistate erred in finding counts were bad for duplicity - discussion of continuing offences and duplicity - appellant was entitled to charge respondents for clearing discreet sites of land in a single count - act of clearing was a continuing offence - Held: appeal allowed.
Forestry Act 1967 (UK); Licensing Act 1935 (SA); National Park and Wildlife Act 1974 (NSW) s 118D; Native Vegetation Act 1981 (SA) s 26; Workers Rehabilitation and Compensation Act 1986 (SA) s 120, referred to.
Cullen v Jardine [1985] Crim LR 668; Hamzy (1994) 74 A Crim R 341; S v The Queen (1989) 168 CLR 266, applied.
Bentley v B.G.P. Properties Pty Ltd [2005] NSWCCA 157; EPA v Bathurst City Council (1995) 89 LGERA 79; Johnson v Miller (1937) 59 CLR 467; R v Giretti (1986) 24 A Crim R 112; Tovey and Smith v R [2005] EWCA Crim 530; Walsh v Tattersall (1996) 188 CLR 77; Weinel v Fedcheshen (1995) 65 SASR 156, discussed.
DENDY v BRINKWORTH & BRINKWORTH
[2006] SASC 179Magistrates Appeal
Duggan J. The respondents are the owners of large areas of land in the south-east of the State. They have been charged on three complaints alleging breaches of the Native Vegetation Act 1981 (“the Act”). It is alleged that they cleared native vegetation from land owned by them contrary to the provisions of the Act.
At the hearing of the complaints in the Adelaide Magistrates Court, counsel for the respondents argued that the counts in two of the complaints were bad for duplicity. The magistrate upheld this objection, but gave the appellant an opportunity to elect or otherwise remedy the defects perceived by the magistrate in the charges. The appellant declined to do so and the two complaints were dismissed. The appeal to this court is against the dismissal.
Section 26 of the Act provides that native vegetation must not be cleared from land unless the clearance is in accordance with the Act.
The form of wording for each count challenged by the respondents follows the same pattern. I take the single count in complaint number AMC-05-11637 as an example. This count alleges that:
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.
Particulars
1On 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 of Folio 13, now described as Allotment comprising pieces 227 and 228 in Deposited 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 Ianceolata ssp. Ianceolata (Dryland Tea-tree).
At the hearing of the appeal, I was informed that the detection of the alleged offences was aided by satellite imagery and aerial photography. In the case of the count set out above, the prosecution identified twenty-seven separate sites which, according to the allegations, were cleared of vegetation contrary to the Act. These sites were within a section of land comprising 4,112 hectares. The total of the areas cleared was alleged to be 7.32 hectares. The twenty-seven sites were visible in an aerial photograph, which the appellant proposed to tender in evidence at the hearing.
When delivering his ruling, the magistrate relied on a passage in the judgment of Kirby J in Walsh v Tattersall (1996) 188 CLR 77. In that case, an employee was charged under s 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 with obtaining, by dishonest means, payments or benefits under the Act. Kirby J said at 112:
This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related to that they amount to the one activity, separate offences should be the subject of separate charges. The Act under which the appellant was charged clearly contemplated that obtaining each payment or benefit was a separate offence. Each should have been the subject of a separate charge.
After quoting this passage the magistrate said:
After discussion with counsel the following things are apparent. The first is that there is an absence of any “Statutory warrant” for a pleading of this type in this category of cases under this legislation. The second is that the legislation does not create a “Continuing offence”. The third is that it is not put to me that the “Facts are so closely related that they amount to the one activity”.
His Honour then noted that the prosecutor agreed it was possible to allege an offence in relation to each site in the complaint, but that the prosecution had chosen not to do so. He found that the counts in each complaint were duplicitous on their face. He then put the prosecution to its election as to what offence or offences it was alleging. As I have said, the prosecution declined to elect with respect to the two complaints and they were dismissed.
Section 26 of the Act provides as follows:
26 Offence of clearing native vegetation contrary to this Part
(1) A person must not clear native vegetation unless the clearance is in accordance with this Part.
Maximum penalty: 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 or $100,000, whichever is greater.
Expiation fee: $500.
“Clearance” in relation to native vegetation is defined in s 3 of the Act as:
(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.
It is appropriate at the outset to comment on the acceptance by the magistrate of the proposition that a charge for a continuing offence could not be laid under the Act. As Hunt CJ at CL pointed out in EPA v Bathurst Council (1995) 89 LGERA 79 at 87, no-one has suggested a satisfactory definition of a continuing offence. However, in this context, I use the words “continuing” and “continuous” as referring to the situation where a number of individual acts can be identified as a course of conduct which is part of the same criminal enterprise or criminal activity: Hamzy (1994) 74 A Crim R 341. In that case, Hunt CJ at CL said at 344f:
This Court has twice determined that the Crown should be permitted in the one count to charge an accused with the supply of drugs contrary to s 25 of the Drugs Misuse and Trafficking Act 1985 (NSW) where it is relying upon more than one act of supply. On each occasion, the principle had been disputed and the issue was raised for determination. In Smale (unreported, Court of Criminal Appeal, 13 November 1987) at p 4, it was said that it would be appropriate to incorporate within the one count a charge of supply based upon a number of individual acts of supply where they could fairly and properly be identified as part of the same criminal enterprise. In Locchi (1991) 22 NSWLR 309 at 312, it was said that, by reason of the breadth of the definition of “supply” in s 3 of the Act, it is legitimate to charge, in a single count, one activity even though that activity may involve more than one act, and notwithstanding that each individual act may by itself amount to an offence.
Later his Honour said:
Both Smale and Locchi cited respectable authority for the principle which they stated. In Jemmison v Priddle [1972] 1 QB 489 at 495, Lord Widgery CJ held that, depending upon the circumstances, it is legitimate to charge in a single count one activity even though that activity may involve more than one act and notwithstanding that each such act would itself constitute an offence. That statement was expressly approved by Lord Morris of Borth-y-Gest in DPP v Merriman [1973] AC 584 at 593; (1972) 56 Cr App R 766 at 776. In the same case (at 607; 796), Lord Diplock said:
“Where a number of acts of a similar nature … 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 18th century, to charge them in a single count of an indictment.”
See also Wilson (1979) 69 Cr App R 83 at 85-87; Eades (1991) 57 A Crim R 151 at 154-156; Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 283-284.
The practice referred to in these authorities was also approved in Weinel v Fedcheshen (1995) 65 SASR 156 and R v Giretti (1986) 24 A Crim R 112.
An early example of the practice is to be found in R v Firth (1869) 11 Cox 234, where the Court of Criminal Appeal approved the laying of a single count of stealing gas where it was alleged that the taking of gas when circumventing the meter occurred over a period of some years.
Again, in R v Giretti, an offence of trafficking in a drug was said to constitute a continuous activity which could be charged as one offence, although it may have involved a number of finite incidents.
In Johnson v Miller (1937) 59 CLR 467, the appellant was charged with being the licensee of a hotel from which a person was seen exiting on a Sunday, contrary to the Licensing Act 1935. According to the evidence upon which the prosecution proposed to rely, about 30 persons were seen coming out of the hotel at intervals over the period of time alleged in the complaint. The complainant was able to give the exact time when each person came out of the premises.
The High Court held that the complaint was rightly dismissed by reason of latent ambiguity. Dixon J said at 486:
But, if the complainant were to prove that many persons unknown issued from the hotel during the period given in the particulars on the day, at the place and in the circumstances mentioned in the complaint, it is evident that it would become quite uncertain which of them was the person unknown to whom the complaint referred. In other words, the facts or the alleged facts disclosed a latent ambiguity in the complaint. The latent ambiguity might have been removed by making an amendment or by giving particulars selecting one instance or person to the exclusion of the others. Doubtless it would not be easy to avoid all ambiguity, but, either by reference to the exact time when the person selected was seen to emerge or to the numerical place he occupied in the succession of people said to have been seen between the times given, it would have been possible to tie the complaint down to one instance and make it incapable of equal application to each of the thirty instances.
The Court held that there was a defect in the complaint and the appellant had been prejudiced as a result.
The case is distinguishable from the present in that the particularisation of an individual site on the land would not have had the effect of identifying a finite incident constituting the commission of an offence. All that could be alleged in relation to a particular site was that, between the dates charged in the complaint, native vegetation was removed from the site within the period of time particularised in the complaint.
The concept of continuing offences has been discussed in a number of environmental cases. In Cullen v Jardine [1985] Crim LR 668, the appellant was convicted of felling trees without a licence contrary to the Forestry Act 1967 (UK). The allegation was that 90 trees were removed. The appellant was charged with a single offence and appealed against conviction on the ground that the information was bad for duplicity. It was submitted that there may be a separate defence in respect of one or more trees. According to the evidence, the felling took place over three days. The Act provided for a penalty in relation to each tree.
The Queen’s Bench Divisional Court (May LJ and Kennedy J) dismissed the appeal. It was held that it was unnecessary to prove that the offence took place on a single occasion. May LJ said:
It was entirely possible for magistrates to decide which trees were cut down illegally and which were not, and to impose penalties by reference to those findings. The mere fact that a number of issues may arise in the course of the trial does not turn one activity into two or more activities and thus render the information bad for duplicity … the question of duplicity is one of fact and degree …
The case was quoted with apparent approval by the Court of Criminal Appeal in Tovey and Smith v R [2005] EWCA Crim 530 at [27].
In Bentley v B.G.P. Properties Pty Ltd [2005] NSWCCA 157, the respondent was charged with causing damage to the habitat of a threatened species of vegetation, knowing that the land concerned was habitat of that kind. The offence was created by s 118D(1) of the National Park and Wildlife Act 1974 (NSW). It was contended that the complaint was duplicitous. In his reasons in the New South Wales Court of Criminal Appeal, Smart AJ said:
Environmental 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 act 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.
I 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. I regard the present case as a borderline one.
In the present case, “clearance” as defined in the Act has a wide meaning. The word is defined to include a variety of activities. Furthermore, it is to be expected that the most frequent application of the Act would concern rural or broadacre land. The clearing of such land is likely to be carried out in the course of a continuing operation spread over a period of time. Penalties under the Act are calculated by reference to the amount per hectare by which the land has increased in value as a direct result of the commission of the offence, or the sum of $2500, whichever is the greater.
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.
It was appropriate to particularise in the complaint the twenty-seven sites and the total area alleged to have been cleared. Apart from anything else, this was a factor relevant to sentence. However, the reference to the sites did not imply that the prosecution could identify any occasion on which a single offence might have been committed. Of course, the prosecution could have included twenty-seven counts in the complaint, but this would not have identified twenty-seven acts, each constituting an offence. The prosecution could do no more than assert continuous conduct over a period of months.
It is obvious that the various sites were not all cleared of vegetation on the same occasion. However, it was open to the prosecution to argue that, by reason of the nature of the act of clearing and the proximity of the sites, this was a continuous or continuing offence.
Even if a separate offence had been charged with respect to each of the sites, the offence charged in each count could well have been continuous in nature in that the prosecution could not exclude the possibility that the clearing of a particular site involved more than one act of clearing.
In S v the Queen (1989) 168 CLR 266 at 284, Gaudron and McHugh JJ explained the rationale behind the rule relating to duplicity. Their Honours said:
One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. See, generally, R v Sadler (1787) 2 Chit 519; R v Hollond (1794) 5 TR 607 at p 623 [101 ER 340 at p 348], per Lord Kenyon CJ. See, as to the need for distinct consideration in relation to penalty, R v Stocker; R v Sadler; R v Morley (1827) 1 Y & J 221 [148 ER 653]; Cotterill v Lempriere (1890) 24 QBD 634 at p 637, per Lord Coleridge CJ. See, as to the availability of a plea in bar, R v Robe (1735) 2 Str. 999 [93 ER 993]; Davy v Baker (1769) 4 Burr 2471 [98 ER 295], R v Wells; Ex parte Clifford (1904) 91 LT 98; R v Surrey Justices; Ex parte Witherick [1932] 1 KB 450.
The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.
In the present case, the prosecution alleges that the respondents cleared native vegetation from the area of land identified in the count. It is unable to identify a particular occasion on which the alleged clearing took place. However, it is my view that the offence would be established if it were proved that, between the dates alleged, the various species of vegetation particularised in the charge were cleared other than in accordance with the Act. I do not think that the manner in which the charge is framed would, of itself, give rise to difficulty in determining the admissibility of evidence; nor do I think that the manner in which the respondents are charged would lead to difficulty in the sentencing process. The penalty is to be determined by reference to the provision to which I have referred. The amount of the penalty depends upon the area cleared.
It appears that the magistrate may have been influenced by the prosecutor’s apparent concession that a “continuous” offence was not alleged. However, I do not regard the concession as significant in view of the different meanings which are given to that term. As I have said, even if the sample complaint alleged twenty-seven separate counts, each count would allege a continuous offence in the sense in which I have used that term. The prosecution cannot prove that there were twenty-seven single occasions on which an offence was committed.
The argument before the magistrate focussed on whether, because the prosecution was able to identify the twenty-seven sites on the property, it was necessary to plead a separate offence in relation to each site. I have explained why, in my view, that was not necessary.
Mr Crocker, for the respondents, drew attention to the affidavit of Mr Lister who acted for the second respondent before the magistrate. Mr Lister stated in the affidavit that there was a pre-trial conference in the matter. He said that the duplicity argument was raised at the conference and the prosecutor commented that the prosecution need prove an offence in relation to only one of the sites in order to prove a charge. She is alleged to have said that the only relevance in failing to prove one or other of the other sites would be in relation to sentence.
I have expressed the view that the particularisation of the sites did not identify specific occasions on which it was alleged a discreet offence took place. I understand the prosecutor’s comments as referring to the fact that, if clearing contrary to the Act was established on any part of the property between the dates alleged, the offence would be proved. The extent to which the clearing was proved would be relevant to sentencing.
In my view, the magistrate erred in dismissing the complaints on the ground that they were duplicitous.
The appeal will be allowed and the order dismissing the complaints will be set aside.
The matter will be remitted to the Magistrates Court for further hearing.
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