Mick Bechara Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376

Reported Decision : 149 LGERA 415

New South Wales Court of Criminal Appeal

CITATION: Mick Bechara Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376

HEARING DATE(S): 16 October 2006

JUDGMENT DATE: 27 November 2006

JUDGMENT OF: Spigelman CJ at 1; Grove J at 132; Bell J at 133

DECISION: 1 Appeal from the conviction of an offence against s22B(2) of the Rivers and Foreshores Improvement Act 1948 dismissed; 2 Appeal from the conviction of an offence against s22D(5) of the Rivers and Foreshores Improvement Act 1948 allowed; 3 Set aside orders 2 and 3 of Cowdroy J made on 8 July 2005; 4 Remit the issue of what order should be made with respect to the costs of the proceedings in the Land and Environment Court; 5 No order as to costs in this Court.

CATCHWORDS: CRIMINAL LAW – Practice and Procedure – Powers and duties of prosecution – Prosecutor's duty does not extend to obtaining statements as distinct from calling witnesses. - CRIMINAL LAW – Practice and Procedure – Information, indictment or presentment – Whether bad for duplicity - Whether unfair to accused – Role of unfairness in law of duplicity. - CRIMINAL LAW – Practice and Procedure – Availability of miscarriage of just under s 5AA Criminal Appeal Act 1912 (NSW) - CRIMINAL LAW – Practice and Procedure – Validity of order

Criminal Appeal Act 1912; s5AA, s5ABN, s6(1) LEGISLATION CITED: Land and Environment Act 1979; s26, s21(i) Rivers and Foreshores Improvement Act 1948; s22B(2), s22D(1)

Alphacell Limited v Woodward [1972] AC 824 Caruso v Boucher (1975) 10 SASR 71 Environment Agency (formerly National Rivers Authority v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 Gilmour v Environment Protection Authority (2002) 55 NSWLR 593 Minister Administering the Ports Corporation & Waterways Management Act 1995 v Hakim [2005] NSWLEC 92 CASES CITED: Minister of Administering the Ports Corporatisation & Waterways Management Act 1995 v Hakim [No 2] [2005] NSWLEC 326 Nudd v The Queen (2005) 80 ALJR 61 Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137 R v Hamzy (1994) 74 A Crim R 341 R v Moussad [1999] NSWCCA 337 S v The Queen (1989) 169 CLR 266 The Queen v Apostilides (1984) 154 CLR 563