Garrett v Freeman [2006] NSWCCA 278

Garrett v Freeman [2006] NSWCCA 278

Section 731 of the Local Government Act 1993 does not protect council employees from criminal prosecution or criminal liability. The words "for and on behalf of the Director-General" in the summonses were words of agency, so the proceedings were not properly taken by Mr Garrett in his own authorised capacity under s 179 of the National Parks and Wildlife Act 1974; however, that defect was one in substance or form capable of cure by s 16(2) of the Criminal Procedure Act 1986, and Lloyd J was also entitled to permit amendment of the summonses under Part 20 Rule 4(3) of the Supreme Court Rules 1970 because it was always intended that Stephen Garrett be the prosecutor and the mistake was not...

Jurisdiction
Australia
Judgment Date
06 September 2006
Procedural Posture
Case Stated Pursuant to S 5 AE of the Criminal Appeal Act 1912 From Land and Environment Court Prosecutions Under the National Parks and Wildlife Act 1974 / Determination by the New South Wales Court of Criminal Appeal of Questions of Law Stated by Lloyd J
Outcome
Questions in the stated case answered: 1 No; 2 Yes; 3 Yes; 4 Yes; 5 No; 6 No; 7 No.
Legal Topics
['stated Case' 'prosecutions Under Ss 118 D and 175 B of the National Parks and Wildlife Act 1974' 'authority to Commence Proceedings Under S 179 of the National Parks and Wildlife Act 1974' 'defects in Substance or Form Under S 16(2) of the Criminal Procedure Act 1986' 'amendment of Summonses Under Part 20 Rule 4 of the Supreme Court Rules 1970' 'protection of Council Employees Under S 731 of the Local Government Act 1993']
['criminal Law' 'practice and Procedure' 'local Government' 'environmental Law'] ['stated Case' 'prosecutions Under Ss 118 D and 175 B of the National Parks and Wildlife Act 1974' 'authority to Commence Proceedings Under S 179 of the National Parks and Wildlife Act 1974' 'defects in Substance or Form Under S 16(2) of the Criminal Procedure Act 1986' 'amendment of Summonses Under Part 20 Rule 4 of the Supreme Court Rules 1970' 'protection of Council Employees Under S 731 of the Local Government Act 1993']

Case Brief

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Procedural Posture

Case Stated Pursuant to S 5 AE of the Criminal Appeal Act 1912 From Land and Environment Court Prosecutions Under the National Parks and Wildlife Act 1974 / Determination by the New South Wales Court of Criminal Appeal of Questions of Law Stated by Lloyd J

Legal Issues

  1. 1 ['Whether s 731 of the Local Government Act 1993 applies to protect a council employee from criminal prosecutions or criminal liability.' 'Whether the proceedings were taken by Stephen Garrett or by the Director-General of the Department of Environment and Conservation.' 'Whether the proceedings were properly taken for the purposes of s 179 of the National Parks and Wildlife Act 1974.' 'Whether the words "for and on behalf of the Director-General of the Department of Environment and Conservation" were mere surplusage in the summonses.' 'Whether inclusion of those words was a defect governed by s 16(2) of the Criminal Procedure Act 1986.' 'Whether there was a mistake in the name of a party for the purposes of Part 20 Rule 4(3) of the Supreme Court Rules 1970.' 'Whether Lloyd J erred in permitting the further amendment to each summons.']

Ratio Decidendi

Section 731 of the Local Government Act 1993 does not protect council employees from criminal prosecution or criminal liability. The words "for and on behalf of the Director-General" in the summonses were words of agency, so the proceedings were not properly taken by Mr Garrett in his own authorised capacity under s 179 of the National Parks and Wildlife Act 1974; however, that defect was one in substance or form capable of cure by s 16(2) of the Criminal Procedure Act 1986, and Lloyd J was also entitled to permit amendment of the summonses under Part 20 Rule 4(3) of the Supreme Court Rules 1970 because it was always intended that Stephen Garrett be the prosecutor and the mistake was not...

Court Disposition

Questions in the stated case answered: 1 No; 2 Yes; 3 Yes; 4 Yes; 5 No; 6 No; 7 No.

Orders

  • ['Question 1: No.' 'Question 2: Yes.' 'Question 3: Yes.' 'Question 4: Yes.' 'Question 5: No.' 'Question 6: No.' 'Question 7: No.']