Bentley (for National Parks & Wildlife Service v Gordon; Bentley (for National Parks & Wildlife Service v B.G.P. Properties Pty Ltd [2005] NSWCCA 157

Reported Decision : 139 LGERA 449

New South Wales Court of Criminal Appeal

Bentley (for National Parks & Wildlife Service v Gordon; Bentley (for National Parks & Wildlife Service v B.G.P. Properties Pty Ltd [2005] NSWCCA 157 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 November 2004

JUDGMENT DATE: 27 April 2005

JUDGMENT OF: Giles JA at 1; Buddin J at 23; Smart AJ at 24

DECISION: (1) Grant leave to appeal; (2) Appeals allowed; (3) Set aside orders made by Cowdroy J on 9 July 2004 and in lieu thereof order that the applications to amend the summonses be dismissed; (4) Opponent to pay the claimants' costs of the application for leave to appeal and the appeal; (5) Remit the proceedings to the Land and Environment Court for continuance in that Court.

CATCHWORDS: Offence if a person by an act or omission does anything that causes damage to the habitat of a threatened species - charges that by slashing and clearing vegetation and/or crushing vegetation and/or constructing access tracks caused damage - prosecution proposed to rely on each in the alternative - whether act causing damage an ingredient of offence - whether charges bad for duplicity - held yes and yes.

Johnson v Miller (1937) 59 CLR 467; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] 50 NSWLR 127; Parker v Sutherland (1917) 116 LT 820; CASES CITED: S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77.

Jason Robert Bentley (for National Parks & Wildlife Service - Claimant in both matters PARTIES: Hugh Charles Gordon - Opponent in 2004/1849 B.G. P. Properties - Opponent in 2004/1853