Ashfield Council V Fuda [1998] NSWLEC 13

Ashfield Council V Fuda [1998] NSWLEC 13

The proposed amendments did not charge the defendant with a different offence because s 55 of the Land and Environment Court Act 1979 does not create a separate offence of procuring or counselling but reflects the common law rule that a secondary participant may be prosecuted as a principal offender. Any need to prove intent remained a matter for the prosecutor. The Court had power to amend the particulars in the Class 5 summary criminal proceedings, and leave to amend should be granted.

Jurisdiction
Australia
Judgment Date
23 July 1998
Procedural Posture
Class 5 Summary Criminal Proceedings for Alleged Contravention of the Heritage Act 1977 / Prosecutor's Application for Leave to Amend the Summons
Outcome
Prosecutor granted leave to amend the summons.
Legal Topics
['permanent Conservation Order' 'removal of Trees and Vegetation' 'amendment of Summons Particulars' 'secondary Participation' 'aiding, Abetting, Counselling or Procuring' 'ministerial Consent and Limitation Period']
['environmental Law' 'heritage Law' 'criminal Procedure'] ['permanent Conservation Order' 'removal of Trees and Vegetation' 'amendment of Summons Particulars' 'secondary Participation' 'aiding, Abetting, Counselling or Procuring' 'ministerial Consent and Limitation Period']

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Procedural Posture

Class 5 Summary Criminal Proceedings for Alleged Contravention of the Heritage Act 1977 / Prosecutor's Application for Leave to Amend the Summons

Legal Issues

  1. 1 ['Whether the prosecutor should be granted leave to amend the particulars of the summons.' 'Whether the proposed amendments would prejudice the defendant.' 'Whether alleging that the defendant acted by servants or agents or authorised/procured removal would charge a different offence.' 'Whether s 55 of the Land and Environment Court Act 1979 creates a separate offence of procuring the commission of an offence.' 'Whether the Court has power to amend particulars in Class 5 summary criminal proceedings.']

Ratio Decidendi

The proposed amendments did not charge the defendant with a different offence because s 55 of the Land and Environment Court Act 1979 does not create a separate offence of procuring or counselling but reflects the common law rule that a secondary participant may be prosecuted as a principal offender. Any need to prove intent remained a matter for the prosecutor. The Court had power to amend the particulars in the Class 5 summary criminal proceedings, and leave to amend should be granted.

Court Disposition

Prosecutor granted leave to amend the summons.

Orders

  • ['The prosecutor is granted leave to amend the summons in the manner described in paragraph 2 of the judgment.' 'The parties are granted leave to approach the Registrar to obtain a date for the resumption of the hearing.']