Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155

Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155

The possession proceedings were commenced within time because the possession offences were ongoing, the eggs were found in Mr Somerville's possession or control on 10 November 2016, and the summonses were filed on 6 November 2018. OEH was not required to elect between s 190(1)(a) and s 190(1)(b). For s 190(1)(b), the earlier surveillance and search-warrant material showed, at most, possible or preparatory offending and did not amount to evidence of any act or omission constituting the charged possession or harm offences. Evidence constituting the offences first came to Mr Wade's attention when the search warrant was executed on 10 November 2016, so the proceedings were not time barred.

Jurisdiction
Australia
Judgment Date
28 October 2019
Procedural Posture
Class 5 Criminal Proceedings / Notice of Motion by the Defendant Seeking That 22 Charges Be Struck Out as Time Barred Under S 190(1)(b) of the National Parks and Wildlife Act 1974
Outcome
Notice of Motion dismissed. Costs reserved.
Legal Topics
['time Bar for Commencement of Criminal Proceedings' 'national Parks and Wildlife Act Offences' 'possession of Protected Fauna and Threatened Species' 'harm to Animal Parts of Threatened Species' 'onus of Proof' 'construction of S 190 of the National Parks and Wildlife Act 1974']
['criminal Law' 'environmental Law' 'statutory Interpretation'] ['time Bar for Commencement of Criminal Proceedings' 'national Parks and Wildlife Act Offences' 'possession of Protected Fauna and Threatened Species' 'harm to Animal Parts of Threatened Species' 'onus of Proof' 'construction of S 190 of the National Parks and Wildlife Act 1974']

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings / Notice of Motion by the Defendant Seeking That 22 Charges Be Struck Out as Time Barred Under S 190(1)(b) of the National Parks and Wildlife Act 1974

Legal Issues

  1. 1 ['Who bears the onus of establishing whether the 22 proceedings have been brought out of time' 'Whether OEH was required to elect in each summons whether it relied on s 190(1)(a) or s 190(1)(b) of the National Parks and Wildlife Act 1974' 'If only s 190(1)(b) applied, what is the proper construction of that section having regard to the definition of "evidence" in s 190(4)' 'Whether the circumstantial evidence that first came to Mr Wade\'s attention prior to 6 November 2016 was sufficient to constitute "evidence of any act or omission constituting the offence" in s 190(4)']

Ratio Decidendi

The possession proceedings were commenced within time because the possession offences were ongoing, the eggs were found in Mr Somerville's possession or control on 10 November 2016, and the summonses were filed on 6 November 2018. OEH was not required to elect between s 190(1)(a) and s 190(1)(b). For s 190(1)(b), the earlier surveillance and search-warrant material showed, at most, possible or preparatory offending and did not amount to evidence of any act or omission constituting the charged possession or harm offences. Evidence constituting the offences first came to Mr Wade's attention when the search warrant was executed on 10 November 2016, so the proceedings were not time barred.

Court Disposition

Notice of Motion dismissed. Costs reserved.

Orders

  • ["The defendant's notice of motion is dismissed." 'Costs of the motion are reserved.']