Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No 2)

[2005] NSWLEC 326

Land and Environment Court

of New South Wales

CITATION:	Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No 2) [2005] NSWLEC 326
PARTIES:	Minister administering the Ports Corporatisation and Waterways Management Act 1995 Mick Bechara Hakim
FILE NUMBER(S):	50057 of 2004; 50058 of 2004
CORAM:	Cowdroy J
KEY ISSUES:	Practice and Procedure :- duplicity - alleged excavation by defendant - excavation taking place over a period of several months - whether individual acts of excavation should be the subject of separate charges - whether charge duplicitous
LEGISLATION CITED:	Rivers and Foreshores Improvement Act 1948 ss 22A, 22B(1)
CASES CITED:	Carcosa v Czerwaniw as agent for Department of Health (1997) 93 A Crim R 287; Director of Public Prosecutions v Merriman [1973] AC 584; Environment Protection Authority v Emerald Peat Pty Ltd [1999] NSWLEC 28; Jemmison v Priddle [1972] 1 QB 489; Khalid Hamsey (1994) 74 A Crim R 341; R v ARD [2000] NSWCCA 443; R v Moussad (1999) 152 FLR 373; S v The Queen (1989) 169 CLR 266; Walsh v Tattersall (1996) 188 CLR 77
DATES OF HEARING:	04/02/05
EX TEMPORE JUDGMENT DATE:	02/07/2005
LEGAL REPRESENTATIVES:	PROSECUTOR I Hemmings SOLICITORS Baker & McKenzie DEFENDANT P Tomasetti SOLICITORS Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

7 February 2005

50057 of 2004
50058 of 2004

MINISTER ADMINISTERING THE PORTS CORPORATISATION AND WATERWAYS MANAGEMENT ACT 1995
Prosecutor

MICK BECHARA HAKIM
Defendant

JUDGMENT NO 2 (INTERLOCUTORY)

1 Cowdroy J: The summons in these proceedings alleges that the defendant committed an offence against the Rivers and Foreshores Improvement Act 1948 (“the Act”) between 1 October 2003 and 7 February 2004 at 10 Fortescue Street, Chiswick (“the site”) by making an excavation on land for which a permit was required without obtaining that permit, contrary to s 22B(1) of the Act.

2 Section 22B(1) of the Act relevantly provides:-

(1) A person must not:
(a) make an excavation on, in or under protected land … unless the person is either authorised to do so by a permit under this Part and does so in accordance with any conditions to which the permit is subject, or is authorised to do so by the regulations.

The phrase “make an evacuation” is defined in s 22A of the Act as follows:-
" ma ke an excavation" includes cause or allow an excavation to be made.

3 At the close of the prosecution case, the defendant submitted that the summons was duplicitous. The defendant submits that two separate excavations occurred on the site during the period alleged in the summons.

4 The defendant submits that such excavations give rise to two separate offences and that the prosecutor must elect whether the charge is to be confined to the period between October 2003 and December 2003 or to the period in February 2004. In support of its submissions, the defendant relies upon Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 106, wherein his Honour referred to the House of Lords decision in Director of Public Prosecutions v Merriman [1973] AC 584 and adopted the observations of Gaudron and McHugh JJ in S v The Queen (1989) 168 CLR 266 at 284. The defendant also relies upon the decision of the Court of Criminal Appeal in Khalid Hamsey (1994) 74 A Crim R 341.

5 The prosecutor submits that all the excavation during the period of the summons was part of one ongoing illegal activity which should properly be addressed in one charge and that it is unnecessary for two separate charges to be laid.

6 The prosecutor also submits that the observations of Kirby J in Walsh relating to duplicity were obiter, and distinguishes the circumstances of the present charge from those considered by the New South Wales Court of Criminal Appeal in Hamsey. The prosecutor relies upon the observations of Lord Diplock in Merriman [1973] AC 584, which were adopted by the Court of Criminal Appeal in Hamsey, that the rule against duplicity is to be applied in a practical rather than a “strictly analytical” way (see Merriman at 607C). The prosecutor further relies upon Environment Protection Authority v Emerald Peat Pty Ltd [1999] NSWLEC 28, wherein Talbot J adopted the observations of Lord Diplock in Merriman.

Findings

7 In Merriman Lord Morris of Borth-y-Gest considered the circumstance where several individual alleged illegal acts could constitute a single charge. After referring to the observation of Lord Widgery CJ in Jemmison v Priddle [1972] 1 QB 489 at 495, his Lordship in Merriman said at 593D:-

I agree respectfully with Lord Widgery C.J. that 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. It must, of course, depend on the circumstances.

8 Consistent with Merriman, Kirby J in Walsh considered the “apparent artificiality of insisting on applying the rule against duplicity in its full rigour” and recognised those instances where such rule would not apply. His Honour said at 107:-

If a precise understanding of the charge laid although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible …

In addition, his Honour said (also at 107):

Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly by charged in a single count.

9 Significantly his Honour recognised that it is a “question of fact and degree for decision in each case” and observed at 108:

Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which taken individually could constitute separate offences. The indicia include: (a) the connection of events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct

10 In Carcosa Pty Ltd v Czerwaniw as agent for Department of Health (1997) 93 A Crim R 287 Studdert AJA, adopting the observations of Kirby J in Walsh, similarly observed at 296:-

It is clear from the authorities that whether an information offends for duplicity depends upon the particular circumstances.

11 In Hamsey at 348-9 Hunt CJ at CL said:-

In my view the Crown is entitled to plead in the one count a charge of supply where it intends to prove a number of individual acts of supply by the accused to different people and at different times. Provided that those acts can fairly and properly be identified as part of the same criminal enterprise or the one criminal activity. But the trial Court has power to direct the Crown either to elect or to separate the offences where the indictment would other produce an unfairness to the accused. Where objection is taken to the indictment the trial judge should apply commonsense and decide what is fair in the circumstances. ( DPP v Merriman at 593:776)

12 Hamsey has been followed and adopted by the NSWCCA in at least two decisions subsequent to Walsh: see R v ARD [2000] NSWCCA 443; R v Moussad (1999) 152 FLR 373.

13 The overriding consideration in the formulation of a charge is fairness to the accused. In S v The Queen, Gaudron and McHugh JJ at 284 considered the rationale against duplicitous counts in an indictment. Their Honours observed:-

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.

14 The charge in the summons includes several acts of excavation which are alleged to have occurred between early October 2003 and 7 February 2004. Acts of excavation constitute conduct which may be constituted by activity over time, as referred to by Kirby J in Walsh at 107. The Court rejects the defendant’s submission that the acts of excavation should be regarded as having occurred in two separate periods.

15 The ultimate question requires the Court to determine whether the formulation of the charge has resulted in any unfairness to the defendant. The prosecutor’s evidence relating to the excavation was clearly described in affidavits provided to the defendant before the commencement of the hearing. The defendant was therefore on notice of the case which he was required to meet: compare Hunt CJ at CL in Hamsey at 347. In these circumstances, there has been no unfairness to the accused in the manner in which the charge has been formulated.

16 For the above reasons, the Court finds there is no duplicity in the charge as alleged by the defendant.