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Dendy v Brinkworth

Dendy v Brinkworth

Case [2006] SASC 179 22 June 2006

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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 179
Magistrates 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 22^nd day of March 2002 and the 1^st day of November 2002, the first and second defendants cleared native vegetation from Allotment Pieces 227…

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.

Continue reading Dendy v Brinkworth

Details

AGLC: Dendy v Brinkworth [2006] SASC 179
Case: [2006] SASC 179
Decision Date: 22 June 2006

CaseChat Overview and Summary

Dendy and Brinkworth were charged on three complaints alleging breaches of the Native Vegetation Act 1981 (SA). The respondents argued before the magistrate that the counts on two of the complaints were bad for duplicity. The counts alleged that the respondents had cleared native vegetation from several discrete sites on their land. The magistrate found the counts to be bad for duplicity, and the Crown appealed against this finding. The appeal raised the question of whether the magistrate had erred in finding the counts bad for duplicity.

The court considered the issue of duplicity and whether the counts should have been consolidated. The court noted that the act of clearing native vegetation from multiple discrete sites could be considered a continuing offence. The court held that the appellant was entitled to charge the respondents for clearing discrete sites of land in a single count. The court found that the magistrate had erred in finding the counts bad for duplicity and allowed the appeal.

The court found that the act of clearing vegetation from multiple discrete sites constituted a single continuing offence. Therefore, the counts could be properly consolidated in a single charge. The court held that the magistrate had erred in finding the counts bad for duplicity, and the appeal was allowed. The court's decision clarified the law regarding duplicity and continuing offences in the context of charges under the Native Vegetation Act 1981 (SA).

Orders