Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322

Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322

The summonses were validly instituted because, applying Stukey v Iliff, the naming of "Stephen Garrett for and on behalf of the Director-General" meant that the prosecution was Stephen Garrett's prosecution, not the Director-General's, and Stephen Garrett was authorised by the Director-General to bring it. The additional words were mere surplusage. Even if they constituted a defect, it was a defect in form cured by s 16(2) of the Criminal Procedure Act 1986 and amendable under the Supreme Court Rules 1970. There was no prejudice or misleading of the defendant, so leave was granted to amend the summonses by deleting the surplus words.

Jurisdiction
Australia
Judgment Date
08 June 2006
Procedural Posture
Summary Criminal Prosecution for Two Offences Against S 118 D(1) of the National Parks and Wildlife Act 1974 / During the Hearing, the Defendant Objected That the Proceedings Were Defective Ab Initio; the Court Determined the Objection and Granted Leave to Amend the Summonses
Outcome
Defendant's objection rejected; leave granted to the prosecutor to amend the summonses.
Legal Topics
['amendment of Summons' 'name of Prosecutor' 'validity of Commencement of Proceedings' 'authority to Bring Prosecution' 'summary Proceedings in the Land and Environment Court']
['environmental Law' 'criminal Procedure' 'practice and Procedure'] ['amendment of Summons' 'name of Prosecutor' 'validity of Commencement of Proceedings' 'authority to Bring Prosecution' 'summary Proceedings in the Land and Environment Court']

Case Brief

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Procedural Posture

Summary Criminal Prosecution for Two Offences Against S 118 D(1) of the National Parks and Wildlife Act 1974 / During the Hearing, the Defendant Objected That the Proceedings Were Defective Ab Initio; the Court Determined the Objection and Granted Leave to Amend the Summonses

Legal Issues

  1. 1 ['Whether proceedings for offences against the National Parks and Wildlife Act 1974 were validly instituted where the summonses named the prosecutor as "Stephen Garrett for and on behalf of the Director-General of the Department of the Environment and Conservation".' 'Whether, under s 179 of the National Parks and Wildlife Act 1974, the named prosecutor was Stephen Garrett or the Director-General.' 'Whether any defect in the form or naming of the prosecutor was fatal to the proceedings or was cured by s 16(2) of the Criminal Procedure Act 1986.' 'Whether the Court should permit amendment of the summonses to delete the words following the name Stephen Garrett.']

Ratio Decidendi

The summonses were validly instituted because, applying Stukey v Iliff, the naming of "Stephen Garrett for and on behalf of the Director-General" meant that the prosecution was Stephen Garrett's prosecution, not the Director-General's, and Stephen Garrett was authorised by the Director-General to bring it. The additional words were mere surplusage. Even if they constituted a defect, it was a defect in form cured by s 16(2) of the Criminal Procedure Act 1986 and amendable under the Supreme Court Rules 1970. There was no prejudice or misleading of the defendant, so leave was granted to amend the summonses by deleting the surplus words.

Court Disposition

Defendant's objection rejected; leave granted to the prosecutor to amend the summonses.

Orders

  • ['Leave is granted to the prosecutor to file amended summonses deleting from the name of the prosecutor, whenever appearing, the words which follow the name of Stephen Garrett.' 'The amendment takes effect from the date of the filing of the summonses.']