Bentley (for National Parks & Wildlife Service v Gordon; Bentley (for National Parks & Wildlife Service v BGP Properties Pty Ltd

[2005] NSWCCA 157

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Duplicity
3. › Rule against duplicitous charges
4. › Environmental offence
5. › Whether multiple alternative acts causing damage may be charged in single count
6. › Whether act causing damage an ingredient of offence
7. › National Parks and Wildlife Act 1974 (NSW), s 118D(1)
1. Criminal Law
2. › Charges and informations
3. › Amendment of summons
4. › Whether amendment should be refused on ground of duplicity
5. › Land and Environment Court Act 1979 (NSW), s 68(1)
1. Environmental Law
2. › Threatened species
3. › Damage to habitat
4. › Elements of offence under s 118D(1)
5. › Whether offence constituted by act causing damage or by resultant damage
6. › National Parks and Wildlife Act 1974 (NSW), s 118D

Quick Take

The act or omission causing damage to habitat is an ingredient of the offence under s 118D(1) of the National Parks and Wildlife Act 1974, not merely the resultant damage. Charges that plead multiple alternative acts each independently sufficient for conviction are duplicitous. However, a charge may be framed to rely on a course of conduct where the cumulation of acts caused the damage. Smart AJ suggested that amendment of s 118D should be considered given the practical difficulties it poses for prosecution.