Chia v Ku-ring-gai Council

Court of Criminal Appeal (NSW)|2021-06-18|Before: Hoeben CJ, Harrison J, Wilson J, Robson J

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.
HARRISON J: John Chia appeals against his conviction on 31 January 2019 and sentence on 29 November 2019 by Robson J in the Land and Environment Court on a single count that he caused injury to 74 trees the subject of the Ku-ring-gai Council Tree Preservation Order without consent contrary to s 125(1) of the Environmental Planning and Assessment Act 1979. Mr Chia was sentenced to a fine of $40,000 and ordered to pay the prosecutor's costs of the proceedings: see Ku-ring-gai Council John David Chia (No 15) [2019] NSWLEC 1 and Ku-ring-gai Council John David Chia (No 16) [2019] NSWLEC 184.
Mr Chia challenges his conviction upon the following grounds of appeal: Ground 1: The decision is affected by jurisdictional error because the summons was defective. Ground 2: The trial judge erred in finding Mr Chia vicariously liable for the tree removal in circumstances where his Honour failed to: (a) make a finding as to the terms of the direction given by Mr Chia to the contractors in relation to the removal of the trees, when such a finding was a necessary precondition to a finding of vicarious liability; (b) make a finding that the tree removal was a necessary result of the specific direction given by Mr Chia to Mr Edgar when such a finding was a necessary precondition to a finding of vicarious liability; (c) address the defence case that Mr Chia instructed Mr Edgar to comply with all relevant regulations and legislation including the 10/50 Code. Ground 3: The trial judge's finding at [488] that trees the subject of the charge were located in the area demarcated by Mr Edgar's blue and red lines was not available on the evidence and involved a denial of procedural fairness. Ground 4: The trial judge erred in finding at [526] as one of the nine reasons to find Mr Chia guilty, that the evidence that 10 trees were marked with pink paint was indicative of a direction to cut and remove trees at the site. Ground 5: The trial miscarried by reason of the trial judge's misuse of evidence of good character tendered by Mr Chia. Ground 6: The trial judge's finding of a possibility of concoction by Mr Chia in his compelled interview was not supported by the evidence and impermissibly infringed Mr Chia's right to silence. Ground 7: The trial judge erred in his approach to the evidence of Mr Edgar in that his Honour: (a) found that Mr Edgar was a witness of truth; and (b) accepted Mr Edgar's uncorroborated evidence on material issues. Ground 8: The verdict was not supported by the evidence and is unreasonable.

The charge

Mr Chia was charged by summons dated 30 September 2016 that between about 6 October 2014 and 21 October 2014 he caused injury to protected trees. The injury was particularised as the lopping and removal of trees. The manner of contravention identified in the summons was that Mr Chia "directed contractors to carry out works involving… injury to 74 trees".

The 10/50 Code

On 24 June 2014, the Rural Fires Amendment (Vegetation Clearing) Act 2014 amended the Rural Fires Act 1997 and introduced what became known as the "10/50 Vegetation Clearing Code of Practice for NSW". The provisions and the Code commenced on 1 August 2014.
Relevantly for present purposes, the 10/50 Code applies to land situated within a "10/50 vegetation clearing entitlement area", defined as land determined by the Commissioner to be a 10/50 vegetation clearing entitlement area and identified on a map published by the NSW Rural Fire Service.

Ground 2

For reasons that will shortly emerge, it is convenient to consider this ground of appeal first.
The prosecution case was that Mr Chia was vicariously liable for the removal of the trees by Mr Edgar and his subcontractors "because he directed them to carry out the works". In closing submissions, the prosecutor submitted that the Court would be satisfied that Mr Chia gave "a direction to cut down all of the trees that were removed".

Mr Chia's submissions

Mr Chia made the following submissions about vicarious liability in the criminal law.
The general rule in the criminal law is that there is no vicarious liability for the act of an independent contractor. There are two exceptions to the general rule. First, an accused may be vicariously liable where he or she has directly authorised the doing of the physical act by the independent contractor (here, the felling of the trees). Secondly, where the independent contractor is subject to the control and direction of the accused in the execution of the task. The prosecutor relied on the "direct authorisation" exception in this case.
In Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59, in the context of the direct authorisation exception, the High Court held that an act of a contractor will be the act of the accused, if the accused orders the contractor: 1. to do the act which constitutes the offence; or 2. to do some act which comprises that act; or 3. to do some act which leads by all physical necessity to the offence.
For the principal to be vicariously liable for the acts of a contractor under the direct authorisation exception, the orders of the principal must give rise to more than a mere risk that the act comprising the offence will occur. The actus reus must be the necessary result of the instruction. A general command will not be sufficient to establish liability. In Darling Island Stevedoring and Lighterage Company Ltd v Long (1957) 97 CLR 36; [1957] HCA 26, Kitto J at 65 described the necessary direction as involving "… a specific command to do the act complained of, or to do something necessarily involving that act …".
In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240; [2003] NSWLEC 70, the defendant retained contractors to demolish a wharf. The contractors were highly qualified and experienced in the type of demolition involved and the contract included a term that they would act in accordance with "all applicable legislation, regulations etc". The demolition involved the removal of a pipe that the defendant and the contractor thought was empty, but in fact contained oil. When the contractors came to remove the pipe, they sought instructions from the principal who said, "the reservoir has been emptied … continue work". In the course of removing the pipe, oil spilled into Sydney Harbour.
In dismissing the prosecution case, Pearlman J stressed that what is needed to establish vicarious liability is more than a mere risk that the consequent event will occur: it must be a necessary result of the authorised conduct. Her Honour held at [119] that "the direction to 'continue work' was not a direct authorisation of the pollution event …" and that the "work" did not lead by physical necessity to the pollution event (Stoneman v Lyons), nor was the "work" something which necessarily involved the pollution event (Darling Island) nor was the pollution event a consequence of the "work" (Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61).
Critical to the issue of whether vicarious liability arises is the nature of the direction actually given, and any qualifications to that instruction. An instruction that the contractor perform the task in a particular way, or in accordance with specific legislation, will not provide a proper basis for a finding of vicarious liability if the contractor then fails to conduct the work in the manner directed. Further, where the principal expressly states that he or she relies on the expertise of the contractor to perform the task in a particular way (including in accordance with relevant legislation) vicarious liability will not arise. In Coffs Harbour City Council v Hickey [2004] NSWLEC 531, Lloyd J found the defendant not to be vicariously liable for the acts of a contractor who removed trees to which a tree preservation order applied. In that case, the defendant engaged a contractor to "clean up" his block and "get rid of all the lantana and regrowth". The contractor gave evidence that the defendant instructed him not to remove or damage the bigger trees on site and told him to "take care of the trees". The defendant gave evidence that the contractor had told him that they were experienced in estimating the width of trees to ensure larger trees were not removed. During the course of clearing by the contractor, a number of protected trees were knocked down.
Lloyd J found that the defendant did not instruct the contractor to remove trees in any express terms, and that the contractor did not seek to clarify the defendant's understanding of the term "regrowth". In relation to the issue of direct authorisation, his Honour found at [54] that "There was no direction to do the act that comprised the offence, or to do some act which comprised that act, or to do some act which necessarily led to the offence. Although [the defendant] instructed the contractors to clear the weeds, lantana and regrowth, I am not satisfied that this constituted a direct authority to cut down the trees in question. It was not an instruction to do an act that comprised the felling of the trees… For the same reasons, I am also not satisfied that his directions comprised an order or direction to do an act that would lead by all physical necessity to the felling of the trees. This is especially so in light of [the defendant's] reliance on the experience and expertise of the contractors."
Where the actus reus is performed by subcontractors to the contractor, or by persons unknown, it is necessary for the prosecutor to establish that the principal directly authorised the conduct. It will not be sufficient that a direction is given by the principal to the head contractor. The prosecution must also prove that the direction was given by the principal to the subcontractor. In North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169, the defendant did not personally carry out unauthorised excavation works. Some excavation was observed to be done by the contractor, Mr Jack. The evidence did not establish the identity of the persons who carried out the unauthorised works or the relationship between the defendant, Mr Jack, and those persons. Preston CJ of LEC held that the prosecution had failed to prove the defendant's guilt beyond a reasonable doubt, in circumstances where the evidence did not establish that the unknown persons were directly authorised by the defendant, or subject to the control and direction of the defendant: at [112]-[117].
The evidence led in the trial of directions given by Mr Chia was as follows.
Mr Edgar pleaded guilty to the removal of all the trees, on the basis that he did so by himself, his servants or agents. He gave evidence that he, Mr Draeger, Kane Ferguson and an itinerant climber called "Dane" all removed trees. Mr Draeger confirmed that he removed some trees. Neither Kane Ferguson nor Dane was called in the prosecution case. There was no evidence as to which person removed which trees.
Mr Draeger did not receive instructions or directions from Mr Chia. As a subcontractor, he received all his instructions from Mr Edgar. Mr Draeger did not have "personal conversations" with Mr Chia about the work. He did not hear every conversation between Mr Edgar and Mr Chia. The only words Mr Draeger heard Mr Chia say about the work were "I want that cut over there". Mr Edgar told Mr Draeger during the job that Mr Chia wanted the work done pursuant to the 10/50 rule. There was no suggestion that Mr Chia gave directions to Mr Draeger, Kane Ferguson or Dane.
Mr Edgar's evidence about instructions given by Mr Chia was that Mr Chia first wanted three large casuarina trees removed: they were "roughly ten metres" from the house. After the three casuarinas had been removed, Mr Chia "got [them] to go further and further down". He would say "I want all this cut down, I want all this cut."
Mr Edgar said that Mr Chia wanted him to clean up the site according to the 10/50 rule. Mr Edgar agreed that Mr Chia was adamant about the 10/50 rule.
In addition to Mr Edgar's direct evidence about instructions, the trial judge relied on two other matters as evidence of directions by Mr Chia: Mr Edgar's mark-up of the aerial photograph (exhibit D) and Mr McKenzie's evidence that some trees were painted with pink paint.
At [479]-[501] under the heading "The alleged directions", the trial judge considered the critical issue of what directions were given by Mr Chia. His Honour set out the evidence of instructions at [490]-[501]. The evidence does not include any direct instruction to cut trees, but is confined to shrubs: see [491].
At [516] the trial judge observed that "the only element of the offence in dispute is whether the defendant directed the contractors to carry out the clearing the subject of the charge". Although his Honour refers to "contractors", on the prosecution case, it was only Mr Edgar and his subcontractors who removed trees. Mr McKenzie and his crew did not cut down any trees. Accordingly, his Honour's references to "contractors" must be read as a reference to Mr Edgar and his subcontractors.
Although the prosecution case was one of direct authorisation, his Honour made no express finding as to what instruction was actually given. His Honour said at [521]: "Thirdly, each of Mr Edgar, Mr Draeger and Mr McKenzie gave evidence that the defendant instructed the contractors to carry out the cutting of trees on the site."
His Honour then held at [528]: "Accordingly, and for the above reasons, I am satisfied beyond reasonable doubt that the defendant directed Mr Edgar, Mr McKenzie and the other contractors to carry out the work which comprised the offence such that he is vicariously liable for the commission of the offence (Stoneman at 573-574)".

(a) Failure to make a finding as to the terms of the direction given by Mr Chia to the contractors in relation to the removal of the trees, when such a finding was a necessary precondition to a finding of vicarious liability

Mr Chia contended that his Honour's finding at [528] erroneously includes a reference to directions to Mr McKenzie to carry out the work which comprised the offence. However, Mr McKenzie did not remove any trees and did not perform the act that is said to have constituted the offence.
Secondly, Mr Edgar's crew was comprised of independent contractors. Mr Draeger was a subcontractor to Mr Edgar. Mr Chia only gave instructions to Mr Edgar, never to his crew. Mr Draeger gave evidence that he received his instructions from Mr Edgar. No other members of Mr Edgar's crew were called in the prosecution case and there is no suggestion that Mr Chia instructed them. Mr Chia submitted in this Court that the reference at [528] to "other contractors" is misguided and not based on any evidence.
Thirdly, the evidence does not support the conclusion that Mr Chia gave directions to any contractor or subcontractor other than Mr Edgar. The evidence does not establish any relevant relationship between Mr Chia and any of the crew, which would be necessary to establish vicarious liability on the part of Mr Chia for their acts. Mr Chia submitted that, to the extent that unidentified members of Mr Edgar's crew removed trees the subject of the charge, in the absence of any evidence that Mr Chia directly authorised them to do so, it was not open to his Honour to be satisfied that Mr Chia was vicariously liable for the acts of Mr Edgar's crew: Moline at [113]-[117], [146].
Fourthly, to find Mr Chia vicariously liable for Mr Edgar's acts, it was necessary for his Honour to identify with particularity the conduct by which Mr Chia "directly authorised" the work that comprised the actus reus: Stoneman; McConnell Dowell; Hickey at [52]. His Honour's findings at [521] and [528] do not identify instructions given by Mr Chia that constitute direct authorisation. Further, nowhere does his Honour make such a finding. His Honour's summary of Mr Edgar's evidence at [58]-[93] does not include evidence of direct authorisation. The high point of that evidence is at [59] - [60]: Mr Edgar's evidence that Mr Chia initially wanted three large casuarina trees roughly 10 metres from the house and the bush and shrubs closest to the property removed. However, as his Honour noted at [395], there were no casuarina trees within 10 metres of the house. Nor does the evidence recited by his Honour at [66], [139] and [141] rise to evidence of an instruction to cut down the trees referred to in the Summons.
Mr Chia submitted, with particular emphasis upon the way in which the prosecution presented its case, it was incumbent upon his Honour to make express findings about the direct instructions to cut trees. However, his Honour failed to: 1. identify which workers cut down the trees the subject of the charge; 2. determine whether each worker was directly authorised by Mr Chia to cut down the trees the subject of the charge; and 3. determine whether the directions given by Mr Chia comprised an order or direction to do an act that would lead by all physical necessity to the felling of the trees.
Mr Chia submitted that a general finding that he "directed Mr Edgar, Mr McKenzie and the other contractors to carry out the work which comprised the offence" was not a finding that Mr Chia gave a specific command to do the act complained of, or to do something necessarily involving that act. It was not sufficient to establish vicarious liability: Darling Island Stevedoring at 65.

(b) Failure to make a finding that the tree removal was a necessary result of the specific direction given by Mr Chia to Mr Edgar when such a finding was a necessary precondition to a finding of vicarious liability

Related to the previous sub-ground of appeal, a necessary precondition to a finding of guilt was a finding that the felling of the trees was the necessary result of Mr Chia's direction.
As already noted, Mr Chia maintains that there is a gap in the evidence about the identity of the persons who did the physical act resulting in the felling of the trees the subject of the charged conduct. The prosecution did not call any evidence from workers onsite other than Mr Edgar, Mr McKenzie, Mr Draeger and Mr Dahtler. Nor did the prosecution adduce any evidence of whether Mr Chia's instructions to Mr Edgar were communicated to his crew.
His Honour correctly stated the test for vicarious liability, but failed expressly to consider whether the felling of the trees was the necessary result of Mr Chia's authorisation to Mr Edgar. Mr Chia submitted that this was a necessary precondition for a finding of vicarious liability: McConnell Dowell at 265 [119], Hickey at [53].
Furthermore, as explained above, in the absence of evidence of who actually removed the trees, whether directions were given to those people and the actual terms of any directions given, the evidence could not support such a conclusion.

The defence case was that Mr Chia engaged Mr Edgar and Mr McKenzie to clean up the site and to remove no more material than was permitted by the law and the 10/50 Code in particular. It was the defence case that Mr Chia relied on Mr Edgar and Mr McKenzie to comply with the relevant legislation and that they exceeded those instructions, most probably as a result of ignorance as to the content of the 10/50 Code.
Mr Chia drew attention to the substantial body of evidence that he instructed Mr Edgar and Mr McKenzie to comply with the 10/50 Code when working on the site and that he otherwise did not give any specific instructions as to how the work was to be performed.

Mr Edgar

Mr Edgar said that when he first spoke to Mr Chia, Mr Chia wanted him to come along to his property and see what he could do about clearing it. Mr Chia spoke to Mr Edgar about using the 10/50 Code to clear his land of trees and shrubs. Mr Edgar said that he told Mr Chia about the 10/50 Code. Mr Edgar did not accept that Mr Chia wanted him to comply with the 10/50 Code but that he wanted to "use" it to remove trees and shrubs. Importantly, Mr Edgar accepted that he was required to follow the 10/50 Code. Mr Edgar believed that the 10 metres in the 10/50 Code was measured from the boundary of the property. Mr Edgar made no measurements from the house to any trees.
On 21 October 2014, Mr Edgar told Ms Miller that he was clearing a tree within 10 metres of the house which was okay and denied that he cleared trees on the lower section of the property. Mr Edgar said that when he spoke to Ms Miller on 21 October 2014, he did not believe he was in trouble because he thought he had obeyed the 10/50 Code.
Mr Edgar told Ms Miller that he removed some trees at the request of the owner of the property who he said was "John" and that "John had asked him … to remove trees … under the 10/50 legislation". Mr Edgar gave evidence that the area he marked on Exhibit D was an area that Mr Chia wanted cleared pursuant to the 10/50 Code.
Mr Edgar accepted in evidence at the trial that Mr Chia was "adamant" about the 10/50 rule. Mr Edgar said that at the time he carried out the works, he thought he was complying with the 10/50 Code and that he held this belief even when he prepared his affidavit for his sentence proceeding. His Honour in fact set out a portion of Mr Edgar's evidence in his judgement at [92] as follows: "[92] When Mr Edgar was interviewed by Mr Myles, on 29 July 2016, he was asked to mark the areas he had been instructed by the defendant to clear on an aerial photograph of the Carnarvon Road property. He marked the photo with various lines. He was asked the following questions in relation to those lines during his cross-examination (at Tcpt, 17 April 2018, p 92(4-25)): Q. And I'll take you to the document in a moment and using a red pen you did a number of lines in ever increasing distances from the house to demonstrate that area that Mr Chia wanted cleared? A. That's correct. Q. And there's no doubt about that, is there? A. No. Q. And that's the area you cleared on Mr Chia's instructions? A. That's correct. Q. What you told the Court yesterday was a recap of what you told Mr Myles on the first occasion; is that right? A. That's correct. Q. That is that you were doing no more than demonstrating to the Court on that document that area that Mr Chia wanted cleared, without going through it again? A. Yes. Q. Pursuant to the 10/50 rule? A. Yes." [Emphasis added]

Mr McKenzie

Mr McKenzie gave evidence that he knew that Mr Chia was seeking to rely upon the 10/50 Code to remove shrubs and trees from his property. At [112] his Honour noted that "Mr McKenzie said that he was aware that [Mr Chia] was seeking to invoke the 10/50 Code."

Mr Draeger

Mr Edgar told Mr Draeger that Mr Chia wanted the work carried out pursuant to the 10/50 Code. The 10/50 Code was discussed as they started working down the property. Mr Draeger believed that he was clearing in accordance with the 10/50 Code. Mr Draeger made no measurements in order to satisfy himself that the 10/50 Code applied to the work he was conducting.

Mr Hyden

The unchallenged evidence of Mr Hyden was that, during the meeting he attended in Mr Chia's garage, he asked Mr Edgar if the work complied with the 10/50 Code. At [211], his Honour recorded the evidence of Mr Hyden in which he said that Mr Edgar told him that the work "was within the 10/50 rule as he saw it." Mr Edgar told him he was very experienced in these matters and had worked within several council areas and that in his experience the rules were quite flexible.

Mr Chia's compelled interview

Mr Chia stated in his compelled interview that he told Mr Edgar that it was the contractor's responsibility to get approvals that are necessary and that they had to stick with the guidelines and regulations. In relation to instructions given to the landscapers, Mr Chia told the investigator, that he "can't direct people what to do as I'm not going to be there and I have no idea what's got to be done, it's too hard".

The Judgment

At [444] under the heading "the defendant's claimed reliance on expertise", his Honour correctly characterised the defence case as being that "[Mr Chia] relied on Mr Edgar's expertise to work out whether or not the trees could be removed under the 10/50 rule. It was Mr Edgar's error in his judgment which caused the trees to be removed not [Mr Chia's]."
His Honour held: "[446] It is fair to conclude that each of Mr Edgar, Mr McKenzie and Mr Draeger had an inaccurate understanding of the 10/50 Code both at the time they carried out work for the defendant and when they gave evidence in these proceedings. It may well be that if they had had more detailed knowledge of the rules surrounding tree removal the commission of the offence would have been avoided. However, this does not alter the fact that the offence is one of strict liability. … [448] I do not consider that these matters are capable of assisting the defendant. The only outstanding issue in these proceedings is whether the defendant instructed the contractors to carry out the work which constitutes the offence such that he is vicariously liable. If the Court is satisfied beyond a reasonable doubt that he did so, the defendant cannot rely upon the expertise of the contractors who carried out the clearing."
Mr Chia's principal submission was therefore that despite the significance at trial of the 10/50 Code and the prominence in the defence submissions about his insistence that the contractor should adhere to all relevant rules and regulations, his Honour failed to make a clear finding as to whether Mr Chia gave instructions that the contractors abide by the 10/50 Code. On one view it is implicit in his Honour's observation at [446] that he found Mr Chia had directed the contractors in that way. Mr Chia submitted that, if that characterisation is correct, it must follow that his conviction should be quashed. That is because the felling of the trees was not the necessary result of Mr Chia's direction. If that is not what his Honour meant, then there is a failure to address the defence case, both factually, in failing to make a finding as to whether Mr Chia's direction was qualified by reference to the 10/50 Code, and legally, in failing to consider whether that qualification (if made) meant that the tree removal was or was not a "necessary result" of Mr Chia's direction.
His Honour's characterisation at [448] that the "only outstanding issue in the proceedings is whether the defendant instructed the contractors to carry out the work which constitutes the offence such that he is vicariously liable" was not correct. A finding that Mr Chia had given instructions that the contractors comply with the 10/50 Code would be inconsistent with the conclusion that the tree removal was a "necessary result" of Mr Chia's direction. Such a finding would necessarily result in a verdict of not guilty.
Mr Chia submitted that his Honour's failure to make a clear finding on the central issue of whether Mr Chia directed the contractors to comply with the 10/50 Code, and if so, the effect of that direction, constituted a fundamental miscarriage of justice. He argued that if his Honour had properly addressed this issue, by reference to the evidence in the case, the only available finding was that Mr Chia directed the contractors to clean up the site in compliance with the 10/50 Code and that the tree removal was therefore not a "necessary result" of that qualified direction.

Ground 2(a)

The respondent submitted that it was not necessary to a finding that the prosecution had established that Mr Chia had given the relevant direction to the contractors to carry out the work which involved the removal of the trees that his Honour also make a finding as to the terms in which the direction has been given. The respondent observed that no authority is cited for that proposition and contended that it would be sufficient if Mr Chia gave a specific command to do the act complained of, or to do something necessarily involving that act: judgment at [521].
Mr Edgar's evidence was that, almost every afternoon of the eight days over which the tree felling works were conducted, Mr Chia was at the site and gave a series of specific directions that he wanted the trees felled that were in fact felled. For example: "[Mr Chia] saw what we actually did and he wanted us to go further down the southern side and the eastern side of the property." "Each day he would see what we had progressed and then he wanted to go further down." "Basically we kept going until he said…that was it."
The respondent submitted, given the fact that Mr Chia gave specific instructions to the head contractor Mr Edgar, and also gave directions to Mr McKenzie, for the removal of the trees, the fact that the trees were then cut down by Mr Edgar and his team and that the fallen trees were removed from the site, in the main by Mr McKenzie's team, is sufficient evidence that the removal occurred as a direct result of the instructions given to Mr Edgar by Mr Chia.
The respondent submitted that, in contrast to the factual position in McConnell Dowell, Mr Chia's instructions to remove the trees were "quite different". In the present case, Mr Chia directed the contractor to do the very acts that comprised the offence - remove particular trees - and to do something necessarily involving that act, that is to say, to clear vegetation from particular areas.
In arriving at his findings at [479]-[501] and [516]-[518], his Honour set out his conclusions on the issue of whether the prosecution had proved that Mr Chia had directed the clearing to be carried out. His Honour gave weight to the following: 1. the concession by Mr Chia's counsel that he had directed the land inside "the blue and red lines", marked during the Council's investigation on an aerial image, to be cleared; 2. the evidence from the contractors as to the directions that they received from Mr Chia or which they saw and heard him give; 3. Mr McKenzie's phone records that supported his evidence that he reported progress of the clearing to Mr Chia; 4. the fact that 10 trees were marked with pink paint, indicative of directions having been given to cut and remove trees at the sight.

Ground 2(b)

The respondent submitted that it was incorrect to contend that it was necessary, as an essential precondition to a finding of vicarious liability, for his Honour to have found that the tree removal was a necessary result of a specific direction given to Mr Edgar by Mr Chia. The respondent relied upon Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73, as an illustration of the application of the third category in Stoneman v Lyons concerned with directing a contractor to do an act making the principal vicariously liable. In that case, wanting to "clean up" the site, the defendant instructed a purported specialist in environmental land clearing, to remove the "undergrowth" or "small regrowth" on a property. The contractor removed vegetation that was "native vegetation" and caused a breach of the Native Vegetation Act 2003. The defendant contended that it had relied upon the expertise of its contractor to ensure that no vegetation which was "native vegetation" under the Act was injured. The trial judge was unable to conclude that the contractor held itself out as being able to provide specialist expertise and advice on whether the clearing of vegetation that it was engaged to carry out was lawful or not. Her Honour found that: "…the (defendant's) instructions, framed as they were, led to much more than a mere risk that the consequential event of unlawful clearing of native vegetation would occur; they led inexorably and inevitably to this end (McConnell Dowell at [119]). I make this finding in light of the earlier findings made by me concerning the reliance placed by the defendant on [the contractor's] specialist knowledge and expertise."
The respondent's primary submission in the present case is that Mr Edgar's evidence, which his Honour accepted, was that Mr Chia ordered him to do the act which constituted the offence. Alternatively, Mr Edgar's evidence was that Mr Chia ordered him to clear the vegetation to which he pointed. That was evidence that Mr Edgar was to do acts which comprised the tree removal with which Mr Chia was charged. On that basis, there was said to be no necessity for the trial judge to be satisfied of the third way in which direct authorisation could be proved, that Mr Chia ordered Mr Edgar to do an act that led by all physical necessity to the offence.

Ground 2(c)

The respondent specifically accepted in this Court that his Honour did not address the defence case below that Mr Chia instructed Mr Edgar to comply with all relevant legislation, including the 10/50 Code. However, the respondent submitted that it was Mr Chia, as the principal, who was obliged to comply with the law and that he could not avoid responsibility for discharging that duty by delegating performance of it to an independent contractor: Stoneman v Lyons per Mason J at 574. The respondent submitted that, if a principal directs his contractor to do an act that is unlawful, it is not to the point that the principal told the contractor at an earlier time to follow the law, which would make the act lawful having assumed, without inquiring as to the contractor's knowledge of the law, that the contractor would do so.
The respondent emphasised that his Honour correctly regarded Mr Chia's submissions, that he should not be responsible for Mr Edgar's failure to understand or implement the 10/50 Code, as no answer to the charge. His Honour said this at [448]: "The only outstanding issue in these proceedings is whether the defendant instructed the contractors to carry out the work which constitutes the offence such that he is vicariously liable. If the Court is satisfied beyond reasonable doubt that he did so, the defendant cannot rely on the expertise of the contractors who carried out the clearing."
Notwithstanding the respondent's specific acceptance in this Court that his Honour did not address the defence case, that Mr Chia instructed Mr Edgar to comply with all relevant legislation, including the 10/50 Code, the respondent went on to contend in this Court that "his Honour did not overlook the 10/50 Code or [Mr Chia's] case in relation thereto". His Honour analysed the legal significance of the Code at [23]-[30]. Mr Chia made no closing submissions as to the lawfulness of the felling of the 74 trees in question, and submitted that if his contractors had complied with the Code, the prosecution would never have been brought. His Honour found that none of the trees cut down was exempted by operation of the Code from the Tree Preservation Order. His Honour's recognition of Mr Chia's submission has been set out in terms at [48] above.
His Honour concluded that each of Mr Edgar, Mr McKenzie and Mr Draeger had an inaccurate understanding of the 10/50 Code at the time they carried out the work for Mr Chia. The respondent then made the following written submission in this context: "More to the point, however, there was no basis for a finding that it was reasonably possible that Mr Edgar held himself out as providing specialist knowledge or expertise in the 10/50 Code. There was no finding, or basis for a finding, that [Mr Chia] engaged Mr Edgar to provide such specialist knowledge. There was no basis for a finding that [Mr Chia] had directed Mr Edgar to comply with the 10/50 Code. By contrast, his Honour accepted the evidence as to [Mr Chia] having directed Mr Edgar (and Mr McKenzie, particularly as to the trees he marked with pink paint) to remove trees (or, in Mr McKenzie's case, cause the trees to be removed) which he indicated. It is relevant both that Mr Edgar gave evidence that [Mr Chia] wanted to 'use' the recent introduction of the 10/50 rule as an opportunity to clear his land of trees and shrubs, and that his Honour accepted Mr Edgar as a witness of credit."
The respondent submitted that his Honour considered Mr Chia's 10/50 Code defence and rejected it. In those circumstances the respondent maintained that Mr Chia failed to establish that his Honour erred by failing to address the defence case that Mr Chia instructed Mr Edgar to comply with all relevant regulations and legislation, including the 10/50 Code.

Consideration of Ground 2

The three sub-grounds of this ground are effectively slight variations upon a single theme. Mr Chia complains in this Court that he is entitled to know the precise facts upon which his conviction is based. It is not sufficient in his submission for the trial judge to form the view that Mr Chia's contractors carried out the illegal work in felling trees rendering him vicariously criminally liable for their acts unless the terms of his direction or instructions are known. Fundamental to this submission is Mr Chia's reliance upon a direction that his contractor comply with the 10/50 Code. His submission in that regard distils to a proposition that, if he directed Mr Edgar to comply with the Code, he was not thereby simultaneously giving any instruction to cut down trees outside the area covered by that Code. In other words, Mr Chia could not at one and the same time be giving an instruction to commit a criminal act if the instruction was subject to an express or implied condition or qualification that whatever tree felling was to take place had to be carried out in accordance with the law.
His Honour referred to the 10/50 Code in his judgment at [26]-[31]: "[26] The prosecutor submits that the 10/50 Code does not assist the defendant because none of the 74 removed trees was within 10m of an external wall of a building containing habitable rooms. Even if this requirement was satisfied, the prosecutor submits that the defendant did not have owner's consent to remove the trees on the Roseville Golf Club or the Crown reserve as required by section 5 of the 10/50 Code and s 100R(6) of the Rural Fires Act. [27] Furthermore, the prosecutor notes that the exemption under the TPO which refers to the Rural Fires Act (exemption no 8, extracted above at [21]) states that it is an exemption to the TPO to carry out tree works 'for which an order or permit had been issued under the Rural Fires Act'. [28] Whilst it acknowledges that the words 'order' and 'permit' are not defined under the TPO, the prosecutor notes that the 10/50 Code is dealt with in Division 9 of the Rural Fires Act in which there is no use of the terminology 'order' or 'permit'. Therefore, the prosecutor says that the 10/50 Code is not, strictly speaking, an 'exemption' to the TPO. [29] As noted above, s 100R(3) of the Rural Fires Act relevantly provides that clearing work may be carried out pursuant to s 100R 'despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003 or the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act'. The TPO is an instrument made under the EPA Act such that s 100R(3) provides that it is displaced by the 10/50 Code. [30] Consequently, the prosecutor accepts that it bears the onus of proving that the tree clearing works with which the defendant is charged do not fall within the 10/50 Code. It does not rely upon the line of authority in this Court that the defendant has the onus of establishing that the tree works fall within an exemption to the TPO on the balance of probabilities, because the 10/50 Code is not an exemption to the TPO but rather displaces it to the extent that it applies by virtue of s 100R(3) of the Rural Fires Act. [31] I note the prosecutor's concession in this regard but consider that it is of relatively little moment on the basis that it is not contended by the defendant that the 10/50 Code exempts the relevant trees from the operation of the TPO. In any event, to the extent that it is necessary, I am satisfied beyond reasonable doubt, and the parties agree, that the 10/50 Code does not apply to any of the 74 trees as none of them was within 10m of an external wall of a building containing habitable rooms and that the majority were on land not owned by the defendant and were felled in the absence of owners' consent."
I have recorded these paragraphs from his Honour's reasons to emphasise that he did not engage at this point of his judgment with the way in which Mr Chia sought to raise the significance of the 10/50 Code as part of his defence. Nor did his Honour do so at [448], where he dealt with the question of whether or not Mr Chia was entitled in effect to rely upon his anticipation or expectation that his contractors would follow his instructions and whether he could rely upon their expertise. In neither context does his Honour engage with Mr Chia's proposition, that a proper understanding of his instructions should have incorporated a finding about whether or not those instructions included Mr Chia's requirement that the contractors adhere to the 10/50 Code in performing the work.
Nor is this argument capable of being disposed of merely by reference to questions of whether or not Mr Chia knew that Mr Edgar had any particular specialist knowledge or expertise with the 10/50 Code or whether Mr Chia purported to rely upon that expert knowledge or expertise in giving his instructions. The respondent has submitted that Mr Chia will be liable if he directs his contractor to commit an unlawful act and that it is not to the point that he had earlier told the contractor to follow the law. However, if the instruction as properly understood is to cut down trees on his property but only in accordance with the applicable law, the instruction cannot be construed as a direction to commit an unlawful act: to the extent that some trees fall outside the 10/50 Code, for example, the instruction cannot be taken as an instruction to fell those trees if the instruction also includes a direction to comply with the Code. To that extent, Mr Chia's proposition that the terms of his instruction or direction to Mr Edgar should have been found in specific terms has a significant attraction.
In my opinion, his Honour's conclusions at [446] and [448] are not accurate. It is accepted by the parties that his Honour correctly identified the only outstanding issue as whether Mr Chia instructed his contractors to carry out the work that constituted the offence "such that he is vicariously liable". The reference in that passage to potential vicarious criminal liability has the tendency in the present context to deflect attention from the fundamental point, which is what were the terms of the instructions or directions that were given. A proper understanding of precisely what was "the work" that was the subject of the instructions requires an assessment of the effect of the 10/50 limitation or condition.
It seems to me that one does not reach the point of assessing the factual question of whether any of the Stoneman v Lyons limbs may have been satisfied until the terms of the alleged direction or instruction are clearly articulated and understood. His Honour did not reject the evidence that Mr Chia specified to Mr Edgar that compliance with the 10/50 Code was essential. The respondent's potentially pejorative reference to the fact that Mr Chia may have instructed that he wanted to "use" the Code, does not support a necessary conclusion that he wanted to misuse it or ignore it.
As I have earlier noted, his Honour correctly recorded at [516] that "the only element of the offence in dispute is whether [Mr Chia] directed the contractors to carry out the clearing the subject of the charge". It would not have been open to his Honour to conclude that Mr Chia had done so, and thereby committed the offence charged, without disposing of the contention that his instructions to do anything included, and were therefore qualified by, the requirement that the 10/50 Code should be followed.
I take the respondent's submission, that there was no basis for a finding that Mr Chia had directed Mr Edgar to comply with the 10/50 Code, to mean that Mr Chia's complaint, that his Honour made no such finding, has no force as such a finding would not assist him in any event. The respondent does not contend that his Honour made such a finding but that it was wrong: the respondent's submission was instead that his Honour considered Mr Chia's 10/50 Code defence and rejected it. With respect, however, it does not appear to me that his Honour did so. I agree with Mr Chia that his Honour failed to address the defence case that Mr Chia instructed Mr Edgar to comply with all relevant regulations and legislation, including the 10/50 Code.
I took Mr Buchanan to this during the course of oral submissions in this Court as appears in the following extract from the transcript: "HARRISON J: Could I just interrupt you very briefly. Just one point crosses my mind. Do you accept Mr Edgar's evidence in cross examination where he agreed, presumably, that there was no doubt that Mr Chia wanted him to follow the 10/50 rule? BUCHANAN: We do. HARRISON J: Thank you."
In summary, properly understood, if Mr Chia gave a particular instruction to comply with the 10/50 Code, it would necessarily operate as a constraint or limitation upon the width of his instructions in general, if not something that fundamentally informed or qualified the terms of the instruction that was given. An instruction or direction to comply with the 10/50 Code, if given, is in effect an instruction not to fell trees that are not within the 10/50 zone. Mr Chia could not be liable, vicariously or otherwise, if he did not instruct or direct the offending work to be performed. His Honour's recitation at [516] of the agreed position at trial necessarily required his Honour specifically and in terms to decide the 10/50 Code issue upon which Mr Chia relied.
I consider that Ground 2 is made out. His Honour did not make a clear finding on the issue of whether Mr Chia directed the contractors to comply with all relevant regulations and legislation, including the 10/50 Code. That issue was central to his defence. Mr Chia's success on this ground means that his conviction should be quashed and a new trial ordered.
It becomes unnecessary in these circumstances to consider the other grounds of appeal and it is on one view preferable not to do so.
The orders I propose are as follows: 1. Allow the appeal against conviction. 2. Quash the conviction. 3. Order a new trial.
WILSON J: I agree with Harrison J.

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. Decision last updated: 20 August 2021

Native Vegetation Act 2003(NSW)

Rural Fires Amendment (Vegetation Clearing) Act 2014(NSW)

(2003) 128 LGERA 240

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