Land and Environment Court of New South Wales CITATION : BURRELL v. JACENKO [1998] NSWLEC 38 PARTIES : BURRELL v. JACENKO FILE NUMBER(S) : 50130 of 1997 CORAM: Lloyd J KEY ISSUES: :- Heritage Act 1977, s 158 LEGISLATION CITED: Land and Environment Court Act 1979, ss 55, 68 Land and Environment Court Rules, Pt 6 r 2, Pt 10 r 1 Supreme Court Rules, Pt 20 r 1, Pt 75 Div 2 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78; Giorgianni v The Queen (1985) 156 CLR 473, at 501; Du Cros v Lambourne [1907] 1 KB 40; Gould & Co v Houghton [1921] 1 KB 509; CASES CITED: Ex parte Coorey (1944) 45 SR (NSW) 287, at 295; Reg. v Glennan (1970) 91 WN (NSW) 609 at 612-613; Lenzi v Miller [1965] SASR 1 at 10; Dare v Pulham (1982) 148 CLR 658; Environment Protection Authority v Van Hessen Australia Pty Limited, Pearlman J, 27 June 1997, unreported DATES OF HEARING: 13 July 1998 DATE OF JUDGMENT: 07/23/1998 I S Lloyd QC LEGAL REPRESENTATIVES: T F Robertson & F T D DeL Davis JUDGMENT: The defendant is charged with the following offence: That he did remove trees and other vegetation from the premises known as Rosemont at 14 Rosemont Avenue, Woollahra upon which there existed a Permanent Conservation Order under the Heritage Act 1977 in contravention of s 57 and s 156 of the said Act. The particulars of the offence described in the summons are as follows: A(i) Between 16th June and 27th June 1997 the Defendant entered upon the premises known as Rosemont. (ii) Whilst upon the premises he authorised the removal to two Camphor Laurel trees and a large Bougainvillea and other general vegetation. (iii) On or about 30 March 1984 the said premises were made subject to a Permanent Conservation Order under the Act which is still applicable to the land. (iv) No consent pursuant to s 57 of the Act was granted to the Defendant to remove the trees or vegetation.@ 2. The prosecutor seeks to amend the particulars of the summons as follows: A(i) Between 16 June and 27 June 1997 the Defendant by his servants or agents entered upon the premises known as Rosemont. (ii) Whilst upon the premises the Defendant by his servants or agents removed two trees and a large Bougainvillea and other general vegetation. (iii) On or about 30 March 1984 the said premises were made subject to a Permanent Conservation Order under the Act which is still applicable to the land. (iv) No approval pursuant to Subdivision 1 of Division 3 of the Heritage Act was granted to the Defendant to remove the trees or vegetation.@ 3. Mr I S Lloyd QC, who appears for the prosecutor, submits that the amendments are necessary to reflect the fact that the defendant did not personally remove the trees and vegetation but that they were removed by or under his direction; the fact that one of the trees removed was not a Camphor Laurel but an African Olive and the species of the other tree which was removed has not been identified; and to reflect the provisions of the Heritage Act 1977 relating to the need to obtain an approval to remove trees or vegetation. Mr T F Robertson, who appears for the defendant, concedes that the proposed amendment to particular (iv) does not cause his client any prejudice and is not opposed. The other amendments, however, are opposed by the defendant. 4. Mr Lloyd QC submits that the defendant is not prejudiced by the other amendments which are sought. The affidavits served with the summons clearly show, he submits, that the evidence to be relied upon by the prosecutor is that the removal of the trees and vegetation was done by the defendants servants or agents rather than by the defendant personally; and the affidavit of a horticulturalist, served on 7 May 1998, disclosed that one of the trees which had been removed was an African Olive and that the species of the other tree which had been removed could not be identified. By letter dated 30 April 1998 the prosecutors solicitors informed the defendants solicitors, by way of further particulars, that one of the trees removed was an African Olive. By a further letter dated 23 June 1998 the prosecutors solicitors informed the defendants solicitors that an amendment to particular (ii) would be sought to show that the defendant authorised the removal of the trees and vegetation, as well as notifying the defendants solicitors of the proposed amendment to particular (iv). 5. Mr Robertson submits that the defendant would be prejudiced if the amendments (other than the amendment to particular (iv)) were to be made. He was unaware until the commencement of the hearing of the amendment now sought to be made to the species of tree alleged to have been removed. He refers to the affidavits served with the summons which described the trees which were removed as Camphor Laurels. Mr Robertson also submits that the amendment sought to reflect the allegation that the defendant authorised or procured the commission of the offence by others amounts to a different offence to that which is the subject of the present charge, the institution of which the Minister has not granted his consent as required by the Heritage Act , s 158(3) and the limitation period for the institution of which has now expired ( Heritage Act , s 158(6)). Mr Robertson refers to Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78, in which Gleeson CJ, speaking for the Court of Criminal Appeal held (at 89) that once proceedings had been instituted, the courts power to allow amendments cannot be exercised to change proceedings that have been instituted with consent into proceedings instituted without consent. Mr Robertson submits that the offence as now sought to be particularised is one which is created by the Land and Environment Court Act 1979, s 55, which is as follows: A55. A person who aids, abets, counsels or procures the commission by another person of an offence punishable in the summary jurisdiction of the court is guilty of the like offence and may be tried at the same time as or before or after the trial of the principal offender.@ Mr Robertson submits that criminal liability is personal, except for the vicarious liability of corporations, in the cases where there are provisions such as the Heritage Act , s 159 which extends liability to directors or employees of corporations and provisions such as the Land and Environment Court Act , s 55. Moreover, whilst an offence of removing any trees or vegetation contrary to the Heritage Act , s 57(1)(g) is one of strict liability, a secondary participant such as an aider or abetter must be shown to have the necessary intent ( Giorgianni v The Queen (1985) 156 CLR 473, at 501), so that the offence alleged against a secondary participant must be a different offence. 6. The fundamental question is whether the amendments will have the effect of charging the defendant with a different offence. Section 55 of the Land and Environment Court Act , however, merely restates the common law doctrine of secondary participation by providing, in effect, that in proceedings against a secondary participant, no distinction is to be drawn between the principal offender and the secondary participant. 7. Section 55 of the Land and Environment Court Act is similar to s 351 of the Crimes Act 1900, which provides: A351. Any person who aids, abets, counsels or procures, the commission of any misdemeanour, whether the same is a misdemeanour at Common Law or by any statute, may be indicted, convicted, and punished as a principal offender.@ In Giorgianni the High Court considered the effect of this section. Gibbs CJ describes the common law position thus (at 478): Many statutory provisions which create misdemeanours refer only to the person who directly engages in the forbidden conduct, yet the ordinary rule which makes any person who aided, abetted, counsels or procures the commission of the misdemeanour liable to be convicted and punished as a principal offender nevertheless applies. Gibbs CJ then notes that s 351 of the Crimes Act is based on s 8 of the Accessories and Abetttors Act 1861 (UK) which, it has often been said, was only declaratory of the common law. 8. In the same case Mason J refers (at 490) to Athe common law doctrine of secondary participation as it is embodied in s 351. He then continues (at 490-492): AIt has been recognised that provisions such as s 351 do not themselves create substantive offences but are declaratory of the common law and procedural in nature: Du Cros v Lambourne [1907] 1 KB 40; Gould & Co v Houghton [1921] 1 KB 509; Ex parte Coorey (1944) 45 SR (NSW) 287, at 295; Reg. v Glennan (1970) 91 WN (NSW) 609 at 612-613; Lenzi v Miller [1965] SASR 1 at 10. In misdemeanour, as distinct from felony, a person who aids, abets, counsels or procures the commission of an offence, and who may for convenience be called a secondary party, is regarded for all purposes of procedure as a principal offender. It is inherent in the concept of secondary participation, however, that a person may be convicted on the basis of aiding, abetting, counselling or procuring the commission of a statutory offence although the statute creating the offence deals only with the liability of the principal offender. 9. Finally, in the same case, Wilson, Deane and Dawson JJ said (at 500): The requirement of intention on the part of an aider, abettor, counsellor or procurer or, if we may use the term, a secondary participant in a crime, is a requirement at common law and it is a requirement which is not affected by s 351 of the Crimes Act . That section merely restates the common law by providing, in effect, that in proceeding against a secondary participant in a misdemeanour, no distinction is to be drawn between the principal offender and the secondary participant: Y A Their Honours go on to note that it is the common law position which s 351 of the Crimes Act expresses. 10. The defendant cannot, therefore, rely on s 55 of the Land and Environment Court Act as creating a separate offence of procuring the commission of the offence. The offence as now sought to be particularised by the prosecutor does not change the offence as constituted by the present charge. The defendant is and always has been liable to be prosecuted as a principal offender even though he may be a person who has counselled or procured the offence as a secondary participant. I accept that intent is an ingredient of the offence of aiding and abetting, or counselling and procuring, and that knowledge of the essential facts of the principal offence is necessary before there can be intent. That, however, remains a matter which the prosecutor must prove. It does not amount to a prosecution for a different offence. 11. The courts power to allow amendments arises from the Land and Environment Court Act , s 68 and the Land and Environment Court Rules 1996, Pt 10 r 1. The particular power to allow amendments in Class 5 proceedings arises from the Supreme Court Rules , Pt 75, Div 2, which apply by dint of the Land and Environment Court Rules , Pt 6 r 2. By the Supreme Court Rules , Pt 75 Div 2 r 6, the provisions of Pt 20 of those rules are deemed to apply to summary criminal proceedings. The Supreme Court Rules , Pt 20 r 1 enables the Court to allow amendments and is to a similar effect as the Land and Environment Court Rules , Pt 10 r 1. The Court has the power to allow amendments not only of pleadings but also of particulars ( Dare v Pulham (1982) 148 CLR 658). Moreover, amendments may be made at any stage of the proceedings, including after the close of the prosecutors evidence, and after a submission by the defendant of no case to answer ( Environment Protection Authority v Van Hessen Australia Pty Limited , Pearlman J, 27 June 1997, unreported). 12. For the foregoing reasons the prosecutor is granted leave to amend the summons in the manner described in par 2 above. I grant leave to the parties to approach the Registrar to obtain a date for the resumption of the hearing. I certify that this and the 6 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.