Bentley (for National Parks & Wildlife Service v Gordon; Bentley (for National Parks & Wildlife Service v B.G.P. Properties Pty Ltd [2005] NSWCCA 157

Bentley (for National Parks & Wildlife Service v Gordon; Bentley (for National Parks & Wildlife Service v B.G.P. Properties Pty Ltd [2005] NSWCCA 157

Because the amended summonses pleaded a series of different acts each of which could independently found the offence, the charges were duplicitous contrary to principle. The act or omission causing the damage is an ingredient of the offence under s 118D(1), and alternative acts cannot be pleaded conjunctively and disjunctively in a single count unless forming a single activity/course of conduct sufficiently particularised. Orders granting leave to amend were set aside.

Jurisdiction
Australia
Judgment Date
27 April 2005
Procedural Posture
Application for Leave to Appeal (criminal/environmental Prosecution) / Court of Criminal Appeal Reviewing Grant of Leave to Amend Summonses by Lower Court
Outcome
Appeals allowed; leave to appeal granted; orders of lower court set aside; applications to amend summonses dismissed; proceedings remitted to Land and Environment Court.
Legal Topics
['duplicity in Charges' 'amendment of Summons' 'environmental Offences' 'elements of Offence Under S 118 D National Parks and Wildlife Act 1974']
['criminal Law' 'environmental Law' 'procedure'] ['duplicity in Charges' 'amendment of Summons' 'environmental Offences' 'elements of Offence Under S 118 D National Parks and Wildlife Act 1974']

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Procedural Posture

Application for Leave to Appeal (criminal/environmental Prosecution) / Court of Criminal Appeal Reviewing Grant of Leave to Amend Summonses by Lower Court

Legal Issues

  1. 1 ['Whether the amended charges were bad for duplicity by incorporating alternative mechanisms of causing damage within a single count' 'Whether the specific act or omission causing damage is an ingredient of the offence under s 118D(1) National Parks and Wildlife Act 1974' 'Whether Cowdroy J erred in granting leave to amend the summonses']

Ratio Decidendi

Because the amended summonses pleaded a series of different acts each of which could independently found the offence, the charges were duplicitous contrary to principle. The act or omission causing the damage is an ingredient of the offence under s 118D(1), and alternative acts cannot be pleaded conjunctively and disjunctively in a single count unless forming a single activity/course of conduct sufficiently particularised. Orders granting leave to amend were set aside.

Court Disposition

Appeals allowed; leave to appeal granted; orders of lower court set aside; applications to amend summonses dismissed; proceedings remitted to Land and Environment Court.

Orders

  • ['Leave to appeal granted' 'Appeals allowed' 'Set aside orders made by Cowdroy J on 9 July 2004' 'Order that the applications to amend the summonses be dismissed' "Opponent to pay the claimants' costs of the application for leave to appeal and the appeal" 'Remit the proceedings to the Land and Environment Court for...