Chief Executive, Office of Environment and Heritage v Douglas Brian Reitano

Land and Environment Court (NSW)|2018-12-03|Before: Robson J

Solicitors: Department of Planning and Environment (Prosecutor) Blomfield Legal (Defendant) File Number(s): 2018/00120897; 2018/00120937

Judgment

Before the Court are two Class 5 proceedings commenced by the Chief Executive, Office of Environment and Heritage ('prosecutor') against Douglas Brian Reitano ('defendant'). The defendant is charged with two offences under s 156A(1)(b) of the National Parks and Wildlife Act 1974 (NSW) ('NPW Act') in that he is alleged to have damaged vegetation in land reserved under the NPW Act.
One charge relates to the prosecutor's allegation that the defendant used a chainsaw to cut down River Red Gum trees (Eucalyptus camaldulensis) ('River Red Gum') in the Murrumbidgee Valley National Park ('Park') and the other charge relates to the prosecutor's allegation that he removed River Red Gum trees from the Park. Both offences are alleged to have been committed on or about 7 September 2016.
The defendant has pleaded not guilty to each charge.

Legislation

Section 156A of the NPW Act relevantly provides: 156A Offence of damaging reserved land (1) A person must not, on or in land reserved under this Act or acquired under Part 11: … (b) damage or remove any vegetation, rock, soil, sand, stone or similar substance, or … Maximum penalty: (a) in the case of a corporation - 10,000 penalty units, or (b) in the case of an individual - 1,000 penalty units or 6 months imprisonment, or both. … (2) It is a defence to a prosecution for an offence under subsection (1) if the accused proves that the removal or damage concerned: (a) was done in accordance with the consent of the Chief Executive or of a person or body that has the care, control and management of the land concerned under this Act, or (b) was authorised to be done, and was done in accordance with, a licence under this Act or a licence granted under the Threatened Species Conservation Act 1995, or (c) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (iii) a project approved under Part 3A of the Environmental Planning and Assessment Act 1979, or (iv) State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979, or (d) was authorised to be done by or under Part 2 of the Rural Fires Act 1997, the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property. (3) It is a defence to a prosecution for an offence under subsection (1) if the offence relates to the damage of an object or place of cultural value and the accused proves that he or she did not know, and could not reasonably have known, that the object or place concerned had cultural value. …
'Vegetation' is not defined in the NPW Act but it is not in dispute that the Red River Gums relevant to the charges fall within the purview of s 156A.

Outstanding issues

The defendant admits most of the prosecution case but says: 1. His timber-cutting activities occurred only on the grounds of the High School; and 2. His activities did not extend to cutting down trees, only to cutting up trees which were already laying on the ground.
Those are the matters in respect of which the Court must make a determination. Clearly, if the defendant is to be found guilty of the offence with which he is charged, the Court must be satisfied beyond a reasonable doubt that his timber-cutting activities took place in the Park.

Evidence

The evidence in the proceedings comprises the SOAF, which annexes a transcript of the defendant's record of interview on 7 September 2016; detailed photographic material and a map of the area; the affidavits of Mr Woods dated 20 February 2018, Mr Pupo dated 20 February 2018, Mr Pupo dated 4 October 2018, and Mr Rook dated 4 October 2018 (noting that only parts of these affidavits were read); a USB drive containing a number of video files which were played in Court; two extensive bundles of photographs taken by the surveillance cameras; and a large laminated photograph of the Precinct which was marked in different colours by witnesses and counsel during the hearing ('Exhibit D').
I note that some passages of the defendant's record of interview, dated 7 September 2016 and conducted by Mr Woods, were not admitted into evidence.
In addition to the documentary evidence, Mr Woods, Mr Pupo, Mr Rook and the defendant each gave oral evidence during the hearing. The prosecutor was largely content to rely upon the affidavits for the evidence in chief of its witnesses.

The oral evidence of Mr Rook

During his cross-examination, Mr Rook agreed that there was a hole in the fence between the Park and the High School at a point which he marked in green on Exhibit D. Mr Blomfield, solicitor for the defendant, asked Mr Rook whether any other part of the fence was down on 7 September 2016 and he denied that this was the case.
On the question of whether it was possible to drive from the Park to the High School, Mr Rook gave the following evidence (at Tcpt, 18 October 2018, p 35(1-8)): Q. There's a track on both sides of the fence which was accessible by vehicle on 7 September 2016? A. If you - depending. If you went to where the hole is, if you wanted to drive through floodwater then you would have to drive through floodwater at that time. Q. But it was accessible by vehicle, is that correct? A. Well, I wouldn't drive with my vehicle through that.
Mr Rook clarified (at Tcpt, 18 October 2018, p 35(14-15)) that he was not saying that the High School was "not accessible" but that it was necessary to drive through floodwater to obtain access.

The oral evidence of Mr Woods

During cross-examination, Mr Woods agreed that he takes cameras with him whilst carrying out surveillance works and that he has a phone which has the capacity to take photographs. Mr Woods gave evidence that he saw the defendant's Vehicle and Trailer parked in the Park at 12:40pm on 7 September 2016. Mr Blomfield asked Mr Woods why he had not taken a photograph (at Tcpt, 18 October 2018, p 39(5-26)): Q. Mr Reitano's vehicle at that point was stationary, did you agree? A. At 12.40pm, yes. Q. And you couldn't sight any person with that vehicle? A. That's correct. Q. That would be certainly important evidence that he was in the park at that time, within the confines of the park? A. Yes. Q. Did you think about taking a photo at that point? A. No. Q. Why not? A. I was driving a vehicle, I was in control of the vehicle. Q. You could certainly pull over and take a photo, you agree? A. I agree, but I didn't choose to do so on that day. Q. I'll put to you sir, that his vehicle was not parked at all or stationary there, do you agree with that? A. No.
Mr Woods gave evidence that at around 1:00pm, when he was driving back out of the Park, he heard the sound of a chainsaw. He said that he had already made the decision to exit the Park and did not consider going back to take a photograph of the defendant because, in his view, to "take a photograph and to stop and get out would be, I believe, unsafe at that particular point in time" (at Tcpt, 18 October 2018, p 40(27-38)).
Mr Woods stated that the sound of the chainsaw was coming from the area of the Park in which he saw the defendant's vehicle at 12:40pm. When asked whether the noise of the chainsaw could have been coming from the High School, he stated that based on his experience of chainsaws, "I think the sound of the chainsaw was quite loud and appeared to me quite close" (at Tcpt, 18 October 2018, p 41(1-2)).
Mr Woods also gave evidence of seeing fresh tracks consistent with the fence between the Park and Forest Drive having been pressed down to allow a vehicle to drive over it (noted at [24]). Mr Woods denied that he was guessing that they were tracks made by Mr Reitano as they appeared fresh and he saw the Vehicle on the other side of the fence driving along Forest Drive.
When asked whether he made observations of the area around the High School where the defendant claimed to have sourced the timber, Mr Woods said that he had not done so on 7 September 2016 but did so when he returned the following day. On that occasion, he said that he saw two trees that were hanging against each other, one of which appeared to have been cut and fallen into the other tree, but that he saw no other evidence of wood having been cut at the High School.
Mr Woods said that, in his view, it was very unlikely that the saw-dust he photographed in the Precinct had been produced earlier than 7 September 2016 on the basis that it had not been affected by the elements. He conceded, however, that he could not tell whether it had been cut on 7 September or 6 September (at Tcpt, 18 October 2018, p 47(1)).
In re-examination, Mr Woods gave a further explanation for not having photographed the defendant at the time he heard the chainsaw (at Tcpt, 18 October 2018, p 50(5-9)): It's the ‑ I did an assessment of the investigation at that point in time and one of the aims of the investigation was to determine if the timber had been collected, was being used in a commercial enterprise and was possibly being on sold once it had been gathered.
He stated that he could not have pursued the aspect of the investigation which related to determining whether the timber was being on sold if he had "sprung [the defendant] in the park" (at Tcpt, 18 October 2018, p 50(25)).
During re-examination, Mr Woods gave the following further account of what he observed on the grounds of the High School on 8 September 2016 (at Tcpt, 18 October 2018, p 52(23) - 53(2)): Q. You were asked some questions about observations on 8 September in the grounds of the high school and testified that you saw, I think you called them leaning trees? A. Hanging trees. Q. Hanging trees? A. Yes. Q. Those can I just clarify, that, are they connected to the ground through a root system or are they? A. No, they're trees that have been cut at the base of the trunk and whereby an attempt to fell the tree but it falls over and leans against another neighbouring tree. Q. And doesn't reach the ground? A. That doesn't reach the ground. Q. Did you see any stumps in that area? A. There was some stumps in the area but they were old, they were sort of dried out and grey and yeah. Q. How many roughly of course? A. Half a dozen. Q. And in any other part of the high school grounds that you saw, on any day, the 7th or 8th, did you see further stumps? A. No. Q. Or any evidence of freshly cut? A. No.
Mr Woods described the condition of the sawdust in the Precinct on 8 September 2016 in the following way (at Tcpt, 18 October 2018, p 53(7-11)): Yep, the condition as I approached it, the sawdust on the ground, it was fresh, it had, as I said previously, there was no indication that the elements had affected it and so it wasn't washed down, flattened down with the rain, it was moving on top and at that particular time there was considerable rainfall in the area and yeah, it was bright in colour and looked like freshly cut sawdust.
Mr Woods took a video of the felled Red River Gums and the sawdust on that day which was played in Court.

The oral evidence of Mr Pupo

Mr Pupo also gave evidence of having seen the defendant's vehicle in the Park at 12:40pm on 7 September 2016. He said that he did not have camera equipment with him at the time and could not recall whether he had a phone with him at the time.
In relation to the presence of the Vehicle and the sound of the chainsaw, Mr Pupo gave the following evidence (at Tcpt, 18 October 2018, p 56(3-38)): Q. How long was it before you think you heard the sound of a chainsaw? A. I heard the sound of a chainsaw a number of times during those logged periods, which is logged as 12.40 and - can I just refer to the log for a second between 12.40 and 1pm. I'm not sure of the exact times that I heard the chainsaws - chainsaw. Q. So, at this point you've seen the parked vehicle, on your evidence, and you've heard, if I can summarise, intermittent sound of a chainsaw; is that correct? A. I have. Q. But you couldn't sight, what you say, Mr Reitano or his driver anywhere nearby? A. I did not sight them. Q. Did it occur to you at that point, sir, to, perhaps, hide and wait to take a photograph of Mr Reitano? A. No. Q. You agree that would have been important evidence, a photograph of Mr Reitano, taking wood and loading it in the trailer within the National Park? A. Whether it would have been important evidence? Q. You agree that would have been important evidence, to take a photograph at that point of what you say A. Yes. Q. I will put it to you, sir, that the reason you didn't take a photograph, you didn't wait, because the vehicle was not there? You've been asked and answered that question. HIS HONOUR Q. What do you say to that question? It was put to you that the vehicle was not there? A. The vehicle was there.
Mr Pupo said that he did not believe that the sound of the chainsaw could have been coming from the grounds of the High School. He further said that he did not make any observations of the High School on 7 September 2016 but that on the following day he drove along the fenceline between the Park and the High School.

The oral evidence of the defendant

The defendant gave the following explanation for travelling to the High School through the Park instead of via the public road (at Tcpt, 18 October 2018, p 68(24-28)): We had some extreme weather over that week, so, I haven't actually been in this part beforehand and knew that you could get through on the big levy that they made where the actual gates are that let the flood waters through to the south side of the park and we know it's a dry school of rocks so you can get in and out easy, so we got through that way to access the Yanco school.
The defendant gave evidence that "everybody knows where the cameras are and a lot of people have been pushing their way through that fence" (at Tcpt, 18 October 2018, p 76(45-46)).
The defendant stated that the fence was down and he was able to drive the Vehicle and Trailer into the High School. He then gave the following evidence (at Tcpt, 18 October 2018, p 71(43-29)): HIS HONOUR Q. Just tell us what you did? A. I drove down this fence line here, to approximately where someone said they said, were you nearly across from that, I've covered a lot of timber here, this is where I met two boys from the school here. BLOMFIELD: That's not pressed your Honour and there's certainly not to be evidence.
The defendant marked on Exhibit D the places within the High School where he claims to have cut and collected the timber which was in the Trailer on 7 September 2016. He said that as he was driving out of the High School through the Park he saw the vehicle in which Mr Woods and Mr Pupo were sitting. He stated he had been aware someone had been following him for the previous two days and that he drove out of the Park because he thought "oh no, he's just going to cause us trouble" (at Tcpt, 18 October 2018, p 75(2)).
The defendant stated that at 12:40pm on 7 September 2016, he was in the High School filling up the Vehicle and Trailer with timber which he was using a chainsaw to cut. He stated that the chainsaw noise would have been continuous at this point and that the sound can carry "I reckon up to 3 kilometres, easily" (at Tcpt, 18 October 2018, p 77(33-34)).
When asked in cross-examination by Mr Singleton, counsel for the prosecutor, about his assertion that "everyone knows where the cameras are", the defendant gave the following evidence (at Tcpt, 18 October 2018, p 79(28) - p 80(11)): Q. You also said everybody - I'll just get my note, whether you said everybody or everyone - "everyone knows where the cameras were." Now, of course, you don't mean that literally, the whole world, but you mean, do you not - A. Can I explain. Q. Just let me finish the question. You mean that you knew where the cameras were and, to the best of your knowledge, other people also knew where the cameras were; that's what you meant by "everyone," isn't it? A. Not exactly, no. Q. No. Did you know where certain cameras were prior to 7 September? A. Once shown, yes. Q. Once shown? A. Mm. Q. Who showed you? A. The bloke that was already in the forest cutting. Q. Is that the best description of this person you can give? A. No, it was a white Toyota Hilux and it was a gun barrel grey tray. He was already in the forest and he entered - he even told me - he entered through this point here. Q. Hang on, no. A. Well, you asked me. Q. Did you see him? A. Yes. Q. You saw him enter? A. No, he told me. Q. Right. We're not interested in what he told you. A. Well, that's fine.
Mr Singleton asked the defendant why he chose to drive through the Park to get to the High School rather than take the public road if he knew he was being followed by investigators. The defendant stated that it is "the short route" (at Tcpt, 18 October 2018, p 82(14)) and that it was the "highest, driest" means of access (at Tcpt, 18 October 2018, p 82(24)).
Mr Singleton put to the defendant that one of the crosses he marked on Exhibit D indicating where he cut wood on the High School site is in the agreed area of flooding. The defendant did not agree that the area was flooded (at Tcpt, 18 October 2018, p 83(9)).
The defendant gave evidence of the way in which the track travels through the Precinct and marked the track on Exhibit D (at Tcpt, 18 October 2018, p 91(19) - 93(25)).

Consideration

The fundamental principle which guides my consideration is that the prosecutor bears the onus of proving the guilt of the defendant beyond reasonable doubt. Even if the prosecutor establishes that he is more likely guilty than not, or I form a view that he is likely to be guilty, such conclusions will not be determinative if there is a reasonable doubt in relation to his guilt. Clearly, this represents a very high standard.
Moreover, it is axiomatic that the defendant bears no onus and is not required to establish anything. Although he has given evidence in these proceedings, the fact that he has chosen to present a hypothesis which he says is consistent with his innocence does not shift the onus of proof.
It is common ground that the prosecution case is a circumstantial one: no witness has given evidence that he or she saw the defendant cut down trees in the Park. The prosecutor therefore asks the Court to draw inferences from the evidence.

A circumstantial case

In Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 ('Shepherd'), Dawson J, with whom Toohey and Gaudron JJ agreed, and with whom Mason CJ expressed general agreement, said at 579: Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
At 579-580, his Honour went on: If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
To similar effect, McHugh J said at 593: In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.
The effect of Shepherd was discussed by Biscoe J in Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 3) [2013] NSWLEC 35, in which his Honour said at [25]: Much of the Council's evidence is not direct evidence but circumstantial evidence, much of it like the strands in a cable rather than links in a chain, from which the Court is asked to infer further facts. In contradistinction to conjecture, an inference is a conclusion of fact drawn from other proved (or assumed) facts by exercising the ordinary powers of human reason in light of human experience: G v H [1994] HCA 48, 181 CLR 387 at 390 per Brennan and McHugh JJ; Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at 264, 55 SR (NSW) 243 per Street CJ (Ferguson J concurring). Where the standard of proof is beyond reasonable doubt, not every individual piece of circumstantial evidence relied upon to prove an element by inference has to be proved beyond reasonable doubt. But the final inference on any essential element of the charge or indispensable link in the chain of reasoning must be established beyond reasonable doubt, and such a doubt must be entertained where any other inference consistent with innocence is reasonably open on the evidence: Shepherd v The Queen [1990] HCA 56, 170 CLR 573 at 579-580; Davidson v The Queen [2009] NSWCCA 150, 75 NSWLR 150 at[4] - [20]. Circumstantial evidence has to be considered as a whole, not in separate and isolated compartments, when deciding whether guilt has been established beyond reasonable doubt or whether there is an inference consistent with innocence reasonably open on the evidence: Shepherd at 580; Davidson v The Queen at [11] - [13].
In Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 ('Edwards'), Deane, Dawson and Gaudron JJ said at 210: Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt (citation omitted).
I adopt the above reasoning and note that Shepherd and subsequent cases make it clear that in a circumstantial case: 1. Guilt should not only be a rational inference but should be the only rational inference that can be drawn from the circumstances; 2. A circumstantial case might be one analogous to links in a chain or one analogous to a cable comprising several strands; 3. If a circumstantial fact is an indispensable link in a chain of reasoning, then it must be proven beyond a reasonable doubt before a conviction can be based upon it; 4. However, if the circumstantial fact is not an indispensable link in a chain of reasoning, it is not necessary for the prosecution to prove each of the circumstances which contribute to the circumstantial case beyond reasonable doubt; 5. It is for the tribunal of fact to consider the whole of the evidence (rather than considering it in discrete compartments) and it make take into account those of the circumstantial facts of which it is sufficiently satisfied in determining whether the defendant is guilty beyond a reasonable doubt; and 6. It is a matter for the tribunal of fact to decide whether or not a circumstance is indispensable.

The evidence

The evidence in the present case is of the kind described in Shepherd as "strands in a cable". The prosecutor does not urge upon the Court any particular fact as being essential to its case save for the fact that the defendant was in the Park on 7 September 2016, which is admitted.
I note at the outset that there are two respects in which Mr Blomfield, who appears for the defendant, concedes that the defendant's oral evidence was inaccurate: 1. The points marked on Exhibit D where the defendant claims to have collected wood from the High School; and 2. That the defendant stated that he entered the High School through the Park because it was a shorter route and dry. Mr Blomfield concedes that this is contrary to the SOAF and that it would have been easier to access the High School via Euroley Road.
Mr Blomfield submits that there are other explanations for those discrepancies. He says the defendant may have marked Exhibit D incorrectly because he was tired or because he did not understand the importance of accuracy and that he may have entered the High School through the Park because he was committing larceny and fearful of detection.
The fact that the defendant's legal representative properly conceded that the defendant's oral evidence contains inaccuracies or discrepancies is not a matter which, in itself, negatives any hypothesis consistent with the defendant's innocence, but it does lead me to the view that it is appropriate to treat the evidence of the defendant with caution.
The following facts are incontrovertible on the evidence: 1. On or about 7 September 2016, someone cut down and cut up Red River Gums in the Precinct. The evidence does not definitively establish that the trees were cut on 7 September 2016, but it is clear from the oral evidence of Mr Woods and Mr Pupo and the detailed video and photographic evidence of the trees that were cut taken on 8 September 2016, that the trees could not have been cut down more than a few days earlier. The videos show that the stumps were red, that the sawdust was moving in the wind, and that much of the sawdust was still on the stumps, all of which indicates that the timber had been recently cut. It was not suggested by either party that the timber was cut any earlier than 5 September 2016; 2. The defendant was in the Park on 7 September 2016; 3. The defendant cut up and took timber without permission either from the Park or the High School on 7 September 2016; and 4. There were extensive areas of flooding in the Park shown in videos recorded on 8 September 2016.
Furthermore, the following circumstances are established on the evidence beyond reasonable doubt: 1. The cameras were installed by NPWS on 6 September 2016. 2. The only vehicles captured south of the locked gate in the Precinct on 6 September 2016, 7 September 2016 and 8 September 2016 were NPWS vehicles and the defendant's Vehicle and Trailer. 3. On 6 September 2016, the cameras captured the following people and vehicles: 1. NPWS staff setting up Camera 2 at 2:11pm; 2. NPWS staff walking away from Camera 3 at 2:34pm; 3. NPWS staff in the vicinity of and adjusting Camera 2 at 2:48pm to 2:49pm; 4. An NPWS vehicle driving out of the day use area at 3:05pm; and 5. Four people (apparently a family) in the vicinity of the regulator at 5:20pm. 1. On 7 September 2016, the cameras did not capture any person and only one vehicle, an unidentifiable vehicle with a shining tail-light in the day use area at 6:54am, prior to 7:14am. 2. At 7:14am on 7 September 2016, the defendant entered the Precinct in the Vehicle with the Trailer. 3. On his own evidence, the defendant knows of an informal track passing through or near the stumps and sawdust where Red River Gums were cut (at Tcpt, 18 October 2018, p 91(19) - 93(25), see above at [68]). 4. A chainsaw was used between approximately 12:40pm and 1:00pm which was heard by Mr Woods and Mr Pupo. The defendant does not dispute that he was using a chainsaw but says that the sound carried from the High School to Mr Woods and Mr Pupo in the Park. 5. The Vehicle and Trailer loaded with wood saw the NPWS vehicle parked and changed direction, leaving the Park via Forest Drive instead of the route by which it entered. Precisely where the Vehicle exited the Park is disputed. 6. From 7:14am onwards on 7 September 2016, the cameras captured the following persons and vehicles: 1. The defendant's Vehicle and Trailer heading north over the regulator laden with timber at 8:52am (8:54am was the time recorded by Camera 2, but having regard to the fact that the timing on Camera 2 was slightly inaccurate, the photograph was taken at approximately 8:52am); 2. At 8:56am, Camera 1 photographed a different utility with a covered tray and roof rack moving in a circle consistent with it driving briefly into the day use area and immediately turning to leave it; 3. At approximately 12:10pm (or the recorded time of 12:12pm), the defendant's Vehicle and Trailer, now empty of timber, were captured by Camera 2 heading south over the regulator back into the Park; 4. At approximately 12:36pm (or the recorded time of 12:38pm), Camera 2 captured the NPWS vehicle carrying Mr Woods, Mr Pupo and Mr Rook driving south over the regulator; 5. At 12:37pm, Camera 3 captured the NPWS vehicle driving south along the Walking Track; 6. At 1:06pm, Camera 3 captured the NPWS vehicle driving north; 7. At approximately 1:07pm (or the recorded time of 1:09pm), Camera 2 captured the NPWS vehicle driving north; 8. At 1:09pm, Camera 1 captured the NPWS vehicle arriving back at the day use area; 9. At 1:18pm, Camera 1 captured a silver utility vehicle with a black tray driving into the day use area. It departed at 1:23pm; 10. At approximately 2:03pm (or the recorded time of 2:05pm), Camera 2 captured the NPWS vehicle driving south over the regulator; 11. At 2:05pm, Camera 1 captured a white station wagon driving into the day use area. It departed at 2:16pm; and 12. At 5:30pm, a grey sedan was pictured in the day use area on Camera 1. The photographs are consistent with it having driven in, circled, and then driven back out, but this is not entirely clear. 1. On 8 September 2016, the cameras captured the following persons and vehicles: 1. At 8:39am, Camera 1 captured a white utility with a gun-barrel grey tray driving out of the day use area; 2. At 8:46am, Camera 1 captured an unidentifiable white vehicle, which appears to be a van, was in the day use area; 3. At approximately 9:06am (or the recorded time of 9:08am), a man walked south onto the regulator and was captured by Camera 2; 4. At approximately 10:25am (or the recorded time of 10:27am), the NPWS vehicle passed Camera 2, heading south; 5. At 2:01pm, the NPWS vehicle and a second NPWS vehicle were photographed by Camera 1 exiting through the day use area; 6. At approximately 2:41pm (or the recorded time of 2:43pm), Camera 2 captured the second NPWS vehicle heading south over the regulator; and 7. A vehicle consistent with the appearance of the second NPWS vehicle can be seen in a blurred photograph taken by Camera 3 at 3:28pm. 1. There was no evidence of freshly cut timber in the High School. The investigators noted that one tree had been cut and fallen into another but the timber was clearly still on the grounds of the High School. The only stumps on the High School grounds were older and greyer in appearance.
In addition to those matters, the prosecutor asks me to draw certain inferences and accept certain disputed evidence.
The prosecutor asks me to infer that no-one else committed the offences, having regard to the fact that no other person was observed operating a chainsaw and that no other vehicle was observed entering, being in, or leaving the Precinct although it was under surveillance. Further, the prosecutor invites me to conclude that the evidence contradicts the defendant's version of events.
The prosecutor accepts that the camera technology is such that the photographic evidence taken alone is insufficient to completely exclude the possibility that someone entered the Precinct and left with timber. However, it submits that I can take the evidence into account as a "strand" consistent with the High Court's decision in Shepherd.
I consider that the photographic evidence does not exclude the possibility that another vehicle was within the Precinct at another time and note the concern of the defendant that the vehicle captured at 8:39am on 7 September 2016 (see above at 83(a)) was photographed leaving the Park but not entering. The evidence cannot be described as fool-proof.
However, I do consider that it is unlikely that another vehicle gained access to the Precinct without being captured by any of the cameras either entering or exiting. The defendant's Vehicle and Trailer as well as both NPWS vehicles were captured several times and I consider it appropriate in the circumstances to give some weight in the sense explained in Shepherd to the fact that no other vehicle was captured south of the locked gate in the Precinct.
The prosecutor asks me to accept that the only two means of access to the Precinct as at 7 September 2016 were via the day use area or by laying a section of fence on the ground and driving over it. The defendant gave evidence that some fencing in the south-eastern corner of the Precinct was down but this was denied by Mr Rook.
I find that it is likely that the only two means of access to the Precinct on 7 September 2016 were via the day use area or by laying a section of the fence on the ground and driving over it. I do not consider that this is established beyond reasonable doubt, but I consider there is sufficiently strong evidence of this for me to take it into account as one of the "strands" of the cable in the sense discussed in Shepherd, albeit a weaker strand than others which I have identified.
Further, the prosecutor submits that I would not accept the defendant's position that a section of fencing was down along the southern half of the boundary between the Precinct and the High School.
I accept the evidence of Mr Rook and Mr Woods that the fencing was not down in that area (at Tcpt, 18 October 2018, p 27(12-36) and Tcpt, 18 October 2018, p 49(10-11)). Mr Woods also noted that there were no vehicle tracks (at Tcpt, 18 October, p 49(10-11)). Mr Rook gave evidence that there was a gap in the northern half of the Precinct and High School fenceline but that it was not possible to cross there because of the flooding (at Tcpt, 18 October 2018, p 36(5)). Accepting this evidence, I do not consider it likely that the fencing was down in that area, at least not to the extent contended by the defendant. Again, this is not a matter on which I place significant weight but I consider it is appropriate to have some regard to it in the Shepherd sense.
On the basis of the agreed area of flooding and the defendant's admission that he would not have undertaken timber-cutting activities in floodwaters, I accept the prosecutor's submission that I can infer that it would have been impractical and pointless for the defendant to have continued much further westward than the area of stumps and sawdust the subject of the charges and further that he did not. Again, this is not an inference which I draw beyond reasonable doubt, but a matter which I consider together with the other matters established on the evidence.
The prosecutor submits that I should accept the evidence of Mr Woods and Mr Pupo that the defendant's Vehicle and Trailer were in the Precinct at 12:40pm on 7 September 2016. The defendant denies that he was there. It was suggested to the witnesses (and by Mr Blomfield by way of submission) that the reason they did not photograph the Vehicle and Trailer at that time is that it was not there.
I consider the evidence of Mr Woods and Mr Pupo credible and consistent with the surveillance records and photographic material. Moreover, I do not accept that the fact that they did not take a photograph of the Vehicle at 12:40pm is determinative that the Vehicle was not present in the Precinct at that time, and I consider that Mr Woods gave a credible alternative explanation in that the investigators wished to see whether the timber was being on-sold as part of a commercial enterprise and that this goal would have been undermined had they been noticed by the defendant at that time (see above at [53]). In those circumstances, I am comfortable that the presence of the Vehicle and Trailer in the Precinct at 12:40pm on 7 September 2016 is a matter I can take into account as a strand in the cable of evidence presented by the prosecutor.
The defendant makes one complaint of the evidence of Mr Pupo and Mr Woods in that Mr Pupo says that he drove down the fenceline between the High School and the Park on 8 September 2016 whereas Mr Woods denies having driven along the fenceline on 8 September 2016 (at Tcpt, 18 October 2018, p 47(48)).
I do not place any weight on this criticism of Mr Woods and Mr Pupo on the basis that, as the prosecutor submitted, it is clear that two NPWS vehicles were in the Park on 8 September 2016. Each of Mr Woods and Mr Pupo was present on that day but there is no evidence before the Court as to which vehicle they were in. It is not inconsistent with the evidence before the Court that Mr Pupo drove along the fenceline and Mr Woods did not.

Whether there is a rational hypothesis consistent with the defendant's innocence

In Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 at 605-606, Windeyer J said: The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt - that they cannot be so satisfied if there be still open some reasonable hypothesis compatible with innocence.
In the present case, the defendant has presented a version of events which he says is consistent with his innocence. The difficulty with accepting that he cut and collected the timber in the grounds of the High School is that it requires me to accept: 1. That in addition to the defendant's admitted crime of taking timber from the High School, a very similar crime took place in the Precinct at a very similar time, either that day or, at the very most, two days earlier; 2. That the person who committed the offences with which the defendant is charged managed to escape detection by any of the cameras set up by NPWS and by the NPWS investigators who were present in the Park; 3. That the defendant chose to drive to the High School through the Park although a shorter and easier route was available by public road and although accessing the grounds of the High School through the Park required him to drive closer to the High School itself than otherwise would have been the case; 4. That the defendant chose to cut and take wood without permission on the grounds of the High School during a school day instead of within the Park although he did not have permission to cut wood in either location and doing so at the High School would have increased his chances of detection; 5. That the defendant chose to access the High School grounds from the Park although it is agreed that the boundary between the High School and the Park was flooded (albeit perhaps not impassable); 6. That the defendant was nevertheless unable to accurately mark on Exhibit D (whether by reason of imperfect recollection, tiredness, or a failure to understand the importance of accuracy, as suggested by Mr Blomfield) the area in which he cut wood within the High School; 7. That wood was cut on and taken from the grounds of the High School on 7 September 2016 despite no evidence of recent interference being located in that area on the following day; 8. That the evidence given by investigators as to the location of the defendant's Vehicle and Trailer at 12:40pm was fabricated, or a vehicle and trailer of identical appearance were present in the Precinct at that time; 9. That the chainsaw sounds heard by the investigators which they believed were coming from within the Precinct were in fact coming from the High School; and 10. That the defendant changing direction to evade the NPWS investigators is indicative not of guilt but rather indicative of the fact that he did not wish to undergo the "trouble" of explaining to the investigators that the timber had been taken from outside the Park.
I consider that each of these facts is unlikely and that some are extremely unlikely. It may be that a hypothesis consistent with innocence could be sustained despite it being necessary to assume one or more unlikely facts. However I do not consider that a hypothesis which requires each of the propositions enumerated above to be believed is rational or that, in the circumstances, a rational hypothesis exists consistent with the defendant's innocence.
Whilst I note that the defendant submitted that his version of events should be given some credence because it was provided to Mr Woods immediately when he was interviewed on 7 September 2016 and because it contained an admission against interest that he committed an act of larceny in taking timber without permission from the High School, I do not consider that these are matters which significantly aid the defendant.
Although it is true that where an exculpatory account is given by a defendant immediately and without reflection it is more likely to be considered reliable (see, eg, Dixon J's comments in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532), this does not mean that the Court elevates the reliability of such an account where it is highly implausible. In the present case, the explanation that the defendant obtained the timber from the High School rather than from within the Park was the only explanation available to the defendant apart from admitting that he had committed the offences.
In those circumstances, I do not consider the fact that the defendant raised this explanation whilst being questioned on 7 September 2016 as well as at trial means that it should be considered reliable when regard is had to the entirety of the evidence. That is particularly the case given that the defendant, on his own account, was aware that he had been detected from the time he saw the NPWS in the Park until he was interviewed in Narrandera such that his explanation was not wholly spontaneous and he cannot be said to have lacked any opportunity for concoction (cf Astill v R (1992) 63 A Crim R 148 at 156).

Whether the defendant is guilty beyond reasonable doubt

In spite of my finding that the defendant has not produced a rational hypothesis consistent with his innocence, and although I consider that no such hypothesis exists, it is axiomatic that the defendant is not required to demonstrate anything. Rather, the onus lies with the prosecutor to prove the defendant's guilt beyond reasonable doubt.
Although my finding that no rational hypothesis exists consistent with the defendant's innocence is a restatement of the requirement in Shepherd that the only rational inference is the guilt of the defendant, for the avoidance of doubt, I consider that the matter can be stated affirmatively.
Having regard to the matters outlined in [82] and [83], my findings above at [90], [92], [93] and [95] as well as the fact that to accept a version of events consistent with the defendant's innocence would require acceptance of the unlikely propositions outlined at [99] above, I consider that, whilst the prosecution case is circumstantial, the evidence against the defendant is overwhelming.
Accordingly, and for the above reasons, I am satisfied beyond reasonable doubt that the defendant is guilty of the offences as charged.

In proceedings 2018/00120897: 1. The defendant is guilty of the offence as charged.

In proceedings 2018/00120937: 1. The defendant is guilty of the offence as charged.

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: 11 December 2018

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