Bentley v Gordon and Ors [2004] NSWLEC 410

Bentley v Gordon and Ors [2004] NSWLEC 410

The proposed amendments concerned the manner in which the alleged habitat damage occurred, not the substance of the offence. Under s 118D of the National Parks and Wildlife Act 1974, the offence was the causing of damage to habitat of a threatened species; the particular acts causing that damage were matters for particulars and evidence. Because the resultant damage, rather than each separate act, constituted the offence, the amendments did not create duplicity and separate charges were unnecessary.

Jurisdiction
Australia
Judgment Date
09 July 2004
Procedural Posture
Environmental Offence Prosecution Under the National Parks and Wildlife Act 1974 / Prosecutor's Application for Leave to Amend Summonses
Outcome
Leave granted to amend the summonses; costs reserved.
Legal Topics
['amendment of Summons' 'duplicity of Charges' 'threatened Species Habitat Damage' 'limitation Period for Prosecution']
['environmental Law' 'criminal Procedure'] ['amendment of Summons' 'duplicity of Charges' 'threatened Species Habitat Damage' 'limitation Period for Prosecution']

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Procedural Posture

Environmental Offence Prosecution Under the National Parks and Wildlife Act 1974 / Prosecutor's Application for Leave to Amend Summonses

Legal Issues

  1. 1 ['Whether the prosecutor should be granted leave to amend each summons by changing the alleged acts causing habitat damage.' 'Whether the proposed amendments would make the charges duplicitous or otherwise uncertain.' 'Whether separate charges were required for each alleged act causing the habitat damage.']

Ratio Decidendi

The proposed amendments concerned the manner in which the alleged habitat damage occurred, not the substance of the offence. Under s 118D of the National Parks and Wildlife Act 1974, the offence was the causing of damage to habitat of a threatened species; the particular acts causing that damage were matters for particulars and evidence. Because the resultant damage, rather than each separate act, constituted the offence, the amendments did not create duplicity and separate charges were unnecessary.

Court Disposition

Leave granted to amend the summonses; costs reserved.

Orders

  • ['Leave granted to the prosecutor to amend the summonses in proceedings 50069 of 2003, 50071 of 2003, 50073 of 2003, 50075 of 2003, 50077 of 2003 and 50080 of 2003 by deleting "slashing or clearing vegetation" in paragraph 1 of each summons and substituting "slashing, clearing and/or crushing vegetation and/or...