Birdon Dredging Pty Ltd v McDonagh on behalf of Council of Great Lakes [1999] NSWCCA 416

Reported Decision : 106 LGERA 110

New South Wales Court of Criminal Appeal CITATION : Birdon Dredging Pty Ltd v McDonagh on behalf of Council of Great Lakes [1999] NSWCCA 416 FILE NUMBER(S) : CCA 60625/98 HEARING DATE(S) : 18 October 1999 JUDGMENT DATE : 16 December 1999

PARTIES : Birdon Dredging Pty Limited v Gerrard McDonagh on behalf of Council of Great Lakes JUDGMENT OF : Priestley JA at 1; James J at 1; Kirby J at 1

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 50057/97 LEC 50058/97 LOWER COURT JUDICIAL OFFICER : Bignold J

COUNSEL : Appellant - J. Webster Respondent - B. Walker SC, I. Hemmings SOLICITORS : Appellant - Russell C Byrnes, Surry Hills Respondent - Peter Rees, New Lambton Heights CATCHWORDS : Environmental Planning and Assessment Act; charges alleging dredging within specified oyster leases in contravention of Council consent; dredging outside specified leases without Council consent Criminal Appeal Act ss 5AA, 5AB ACTS CITED : Environmental Planning and Assessment Act Land & Environment Court Act s56 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 CASES CITED: Gilson v The Queen (1991) 172 CLR 353 Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661 DECISION : Appeal allowed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60625/98 LEC 50057/97 50058/97

PRIESTLEY JA JAMES J KIRBY J

Thursday, 16 December 1999

BIRDON DREDGING PTY LTD v G. McDONAGH on behalf of COUNCIL OF GREAT LAKES

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT (the Act) - two charges under the Act against the appellant - the first alleged dredging within specified oyster leases in contravention of Council consent - the second alleged dredging outside the specified leases without Council consent - trial judge dismissed the first but convicted on second - basis of conviction was that appellant must have committed one of the offences and as the second was the more probable appellant should be convicted of it - on appeal by way of rehearing. Held : considering the only remaining charge by itself as the court must do, there was no proof beyond reasonable doubt of where the dredging took place and as this was an essential ingredient of the charge the appeal must be upheld and the charge dismissed. ORDERS