Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull

Land and Environment Court (NSW)|2019-11-01|Before: Pain J

Judgment

The Defendant Mr Grant Turnbull has pleaded not guilty to a charge of unlawful clearing of native vegetation contrary to the Native Vegetation Act 2003 (NV Act) over a period between January to August 2014 on a property called "Colorado" in northern NSW. The postponed trial was to commence on 8 October 2019, following my decision in Chief Executive, Office of Environment and Heritage v Turnbull (No 2) [2019] NSWLEC 145. The Defendant's counsel filed a notice of motion dated 8 October 2019 in court on that day which seeks the following pre-trial orders: 1 a permanent stay of proceedings of the charge that the applicant committed an offence against section 12 of the Native Vegetation Act 2003 (the Act) in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or property Vegetation plan for the period from 1st January 2014 to 1st March 2014 by reason of the circumstance that the period from 1st January 2014 to 1st March 2014 is statute barred in accordance with the provisions of the Native Vegetation Act 2003. 2 a permanent stay of proceedings of the charge that the applicant committed an offence against section 12 of the Native Vegetation Act 2003 (the Act) in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or property Vegetation plan for the period from 1st January 2014 to 20th August 2014 in that the charge is duplicitous and that any offence of the applicant was not a continuous offence for the purpose of the Native Vegetation Act 2003. 3 That the (or any) admissions previously made or given by the applicant in proceedings in this court in proceedings number 2014/40673 or any court are inadmissible in the trial of the applicant/defendant in these proceedings. 4 Such further, other and or ancillary orders as may be required by or pursuant to this application
The notice of motion was heard and is the subject of this judgment.
The Prosecutor intends to rely on an amended summons which states: RELIEF CLAIMED The Prosecutor claims: 1. An order that the Defendant, GRANT WESLEY TURNBULL of 26 Peter Thomson Drive, Parkwood, in the State of Queensland, appear before a Judge of the Court to answer the charge that, from about 1 January 2014 to 20 August 2014 inclusive, at or near Croppa Creek in the State of New South Wales, he committed an offence against section 12 of the Native Vegetation Act 2003 (the Act), in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or a property vegetation plan. Particulars: (a) Place of offence At or near the property "Colorado", being Lots 1 and 17 in DP 755998, Parish Gil Gil, County Stapylton, in the Moree Plains local government area. (b) Native vegetation The native vegetation cleared included: i. Brigalow (Acacia harpophylla), ii. Selah (Casuarina cristata), iii. Poplar Box (Eucalyptus populnea ssp bimbil), iv. Western Rosewood (Alectryon oleifolius), v. Wild Lime (Citrus glauca), vi. Wild Orange (Capparis mitchellii), vii. Warrior Bush (Apophyllum anomalum), viii. Thorny Saltbush (Rhagodia spinescens), ix. Wilga (Geijara parviflora), x. Budda (Eremophila mitchelii), xi. Myall (Acacia pendula), xii. Red Olive Plum (Efeaodendron australe). (c) Manner of breach (i) The Defendant was the landholder of land on which native vegetation was cleared, and/or (ii) The Defendant cleared native vegetation by means of machinery including a bulldozer, and/or, (iii) The Defendant, by his contractors or agents, cleared native vegetation by means of machinery including a bulldozer. 2. Evidence of the offence first came to the attention of an authorised officer, Glen Turner Arthur Snook, Team Leader, North West Region of the Office of Environment and Heritage, on 4 5 March 2014. 3. That the Defendant be dealt with according to law for the commission of the above offence. 4. An order that the Defendant pay the Prosecutor's costs. 5. Such orders as the Court in its discretion sees fit to make.

Native Vegetation Act 2003

Relevant sections of the NV Act provide: Part 3 Clearing native vegetation Division 1 Control of clearing 12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4. … Division 4 Civil and criminal proceedings … 42 Proceedings for offences (1) Proceedings for an offence under this Act or the regulations are to be dealt with summarily before: (a) the Local Court, or (b) the Land and Environment Court. (2) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence under this Act or the regulations is the maximum monetary penalty provided by this Act in respect of that offence, or 100 penalty units (including any daily penalty), whichever is the lesser. (3) Proceedings for an offence under this Act or the regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed. (4) However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer. (5) If subsection (4) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established. (6) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

Prosecutor's chronology

The Prosecutor submitted there were a number of related proceedings which had to be considered and tendered the following chronology to which no objection was taken by the Defendant: DATE EVENT Clearing of circa 420ha on "Colorado" property by the late Ian Turnbull between 1 Nov 2011 and 18 Jan 2012 (Grant Turnbull being the land-owner and part of the decision-making process in the clearing). 1 Nov 2011 - 18 Jan 2012 Later the subject of summary criminal proceedings against Ian Turnbull: Chief Executive OEH v Turnbull [2014] NSWLEC 150 (LEC 5.1) (the separate summary criminal proceedings are referred to, respectively, as LEC 5.1 (heard by Sheahan J.), LEC 5.2 (heard by Preston J) and LEC 5.3 (the present proceedings). The Class 1 appeal against the NV Act Remedial direction is referred to as "LEC 1" (heard by Preston J.) The Class 4 civil enforcement proceedings are referred to as "LEC 4" (heard by Craig J); and a remedial direction under NV Act issued by the OEH, which was, in turn, the subject of the merit appeal determined by Preston J: Turnbull v D-G OEH (No 2) [2014] NSWLEC 112 (LEC 1) (In same period, Ian Turnbull carried out clearing on adjacent "Strathdoon" property, owned by Cory Turnbull. This was also part of the LEC 5.1 proceedings against Ian Turnbull and was the subject of a merit appeal prosecuted by Cory Turnbull which was heard at the same time as LEC 1). Clearing of 100ha on Colorado by Grant Turnbull. 18 Aug 2012 - 5 Jan 2013 (Also clearing of the adjacent "Strathdoon" property by Cory Turnbull). Later the subject of summary criminal proceedings determined by Preston J: Chief Executive OEH v Grant Wesley Turnbull [2017] NSWLEC 141 (LEC 5.2). 16 Apr 2013 Remedial direction under the NV Act issued by OEH in respect of the Nov 2011 - Jan 2012 clearing. This was later the subject of the merit appeal in LEC 1 Unidentified date in 2013 Grant Turnbull commences merit appeal (LEC 1) against OEH NV Act remedial direction 6 Jan 2014 Clearing of areas of about 508 hectares of Colorado, in the areas subsequently identified as "Bl" and "B2" and "C1" - "C6".

                            This clearing was later subject of both the Civil Enforcement Proceedings (LEC 4) and the current Criminal Proceedings (LEC 5.3)

20 August 2014 4 -14 March 2014 Hearing of LEC 5.1 before Sheahan J 10 - 12 June 2014 Hearing of LEC 1 before Preston J 25 June 2014 In LEC 1, Preston J delivered reasons in which he indicated the areas over which he intended to make an alternative remedial direction, subject to hearing final submissions from the parties. At that time, clearing was occurring over parts of the areas identified by Preston CJ as proposed high priority remedial areas, (namely over the areas now identified as "C3" and "C4'"). That clearing is part of the clearing the subject of the present Criminal Proceedings (LEC 5.3) 31 Jul 2014 In determination of LEC 1, Preston J re-issued the remedial direction (LEC 1), requiring remedial works in the "saddlebag area" on Colorado, which included the areas now identified as "C3" and "C4". 11 Aug 2014 OEH commenced summary criminal (Class 5 proceedings against Grant Turnbull for Aug 2012 - 2013 clearing of about 100ha (LEC 5.2) 19 Sep 2014 OEH commenced the Civil Enforcement Proceedings against Grant Turnbull in respect of the clearing during the period from January to August 2014 of the areas known "81" and "'82" and "C1" - "C6": Chief Executive OEH v Turnbull (No 4) [2016] NSWLEC 66 (LEC 4). 3 - 6, 30 and 31 March 2015 Hearing of LEC 4 before Craig J. 17 February 2016 Decision made to commence prosecution proceedings against Grant Turnbull for clearing during the period from January to August 2014 of the areas known "Bl" and "B2" and "C1"- "CG" (LEC 5.3) 1 March 2016 Commencement of the present Criminal Proceedings (LEC 5.3) against Grant Turnbull for clearing during the period from January to August 2014 of the areas known "81" and "82" and "C1"- "C6" (LEC 5.3) 3 June 2016 In determination of the Civil Enforcement Proceedings (LEC 4), Craig J makes orders restraining Grant Turnbull from clearing and requiring him to carry out remedial works in areas "B1" and "B2" and "C1" - "C6" (and, additionally, ordering him to carry out the work required under the remedial direction given by Preston O in determination LEC 1.) 2 Sept 2016 Grant Turnbull appeals LEC 4 to Court of Appeal 16 December 2016 Grant Turnbull pleads not guilty to the charge in LEC 5.3 26 - 28 April and 1 - 2 May 2017 Hearing of LEC 5.2 before Preston J 4 July 2017 Court of Appeal dismisses appeal against LEC 4 decision 31 July 2017 Grant Turnbull files for special leave to HC against Court of Appeal decision (LEC 4) 6 October 2017 Trial dates for LEC 5.3 set for 4 - 15 June 2018 In determination of LEC 5.2, Preston CJ: 24 October 2017 • convicted Grant Turnbull and fined him $315,000 re Colorado; and • (also convicted Cory Turnbull and fined him $393,750 re Strathdoon). 8 November 2017 HC dismisses special leave application from decision of the Court of Appeal on the appeal from (LEC 4) 24 May 2018 The 4 - 15 June 2018 trial dates in LEC 5.3 vacated by consent because of defendant's medical unfitness (certified) due to a back injury 1 June 2018 Trial dates for LEC 5.3 re-scheduled for 18 February - 1 March 2019 6 July 2018 Grant Turnbull appeals to the Court of Criminal Appeal against the sentence imposed by the LEC in LEC 5.2 17 October 2018 Court of Criminal Appeal dismisses appeal against sentence re LEC 5.2 1 February 2019 The 18 Feb - 1 March 2019 dates fixed for the LEC 5.3 trial are vacated by Moore J (the application was made by the defendant and opposed by the OEH) 15 February 2019 Trial dates for LEC 5.3 re-scheduled for 30 September - 14 October 2019 22 August 2019 Grant Turnbull applies to vacate the Sept/Oct 2019 trial dates in LEC 5.3 28 August 2019 Pepper J. refuses to vacate the LEC 5.3 trial dates 23 Sept 2019 Grant Turnbull applies again to vacate the Sept/Oct 2019 trial dates in LEC 5.3 28 September 2019 Pain J. declines to vacate LEC 5.3 trial dates but orders that the trial will run from 8 -14 Oct, instead of from 30 Sept to 14 Oct 2019

The Defendant also tendered a chronology which I do not need to refer to.

Orders 1 and 2

The Defendant seeks an order that part of the charge period be permanently stayed as it is statute-barred pursuant to s 42(4) and (5) of the NV Act as the date when the evidence first came to the attention of the late Mr Turner, former compliance officer of the Office of Environment and Heritage (OEH), was earlier than as stated in the amended summons in par 2. The second order is related in asserting that the charge is not continuous. If established the charge period would be reduced as part would be statute-barred.

Defendant's evidence

The Defendant tendered the following evidence: 1. diary notes dated 31 January, 3-4 February and 4 March 2014 of Mr Turner (Ex 1); 2. "'Colorado' Croppa Creek NSW, 06 January 2014 Landsat Image" from Mr Spiers' report dated 5 April 2017 (Ex 2); 3. "'Colorado' Croppa Creek NSW 2013 Satellite image" dated 5 January 2013 from Mr Spiers' report (Ex 3); 4. "'Colorado' Croppa Creek NSW 07 February 2014 Landsat image" from Mr Spiers' report dated 5 April 2017 (Ex 4); 5. "'Colorado' Croppa Creek NSW 2014 ADS image" dated 14 May 2014 and "'Colorado' Croppa Creek NSW, 06 January 2014 Landsat Image" from Mr Spiers' report (Ex 5)); 6. email correspondence between Mr Turner and Mr Spiers dated 17 March 2014. Mr Turner requested an image showing areas of clearing between 18 January 2012 and 5 January 2013. Mr Spiers replied with images demonstrating clearing and specific areas of clearing. He stated "[t]here may be some other small areas that they have been into [sic] that I may need to include later" (Ex 6); 7. notice to produce to the OEH filed 7 June 2019 requiring production of all notebook entries and notes inter alia relating to Colorado between 1 January and 31 March 2014 (Ex 7); 8. affidavit of the Defendant dated 9 October 2019 (Ex 8); and 9. chronology prepared by the Defendant (Ex 9).

Prosecutor's evidence

The Prosecutor tendered the following evidence: 1. Prosecutor's chronology and attachment (Ex A); 2. images titled "'Colorado' Clearing 06/01/2014 to 14/05/2014" and "'Colorado' Clearing 14/05/2014 to 02/08/2014" appendices A and B respectively to Mr Spiers' report dated 5 April 2017 (Ex B); 3. image titled "Colorado cleared areas between 1 January 2014 and 20 August 2014", appendix C to Mr Spiers' report dated 5 April 2017 (Ex C); 4. image titled "'Colorado' Croppa Creek NSW 1975 Aerial Photograph" from appendix J to Mr Spiers' report dated 5 April 2017 (Ex D); 5. Prosecutor's tender bundle of documents (Ex E) containing: 1. affidavit of Mr Murray Fisher dated 1 December 2015; 2. the Defendant's property vegetation plan (PVP) application to the Border Rivers - Gwydir Catchment Management Authority dated 22 October 2012; 3. affidavit of Mr Spiers dated 5 April 2017; 4. affidavit of Mr Spiers dated 1 October 2019; 5. email from Mr Turner to Mr Hall (employee of the OEH) and others dated 25 March 2014; 6. letter from the Prosecutor to the Defendant's solicitors dated 24 June 2019; 7. amended summons; 8. affidavit of Mr Grant Turnbull dated 22 January 2015; 9. transcript of related Class 1 proceedings 13/10355 and 13/10356 dated 10 June 2014 (Merit Appeal Proceedings - Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112); 10. transcript of related Class 4 proceedings 16/40763 (Civil Enforcement Proceedings - Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66) dated 3 March 2015; 1. Prosecutor's outline of opening submissions in the substantive proceedings dated 23 September 2019 (Ex G); 2. transcript of Merit Appeal Proceedings (marked up) (Ex H); and 3. transcript of Civil Enforcement Proceedings dated 3 March 2015 (marked up) (Ex J).
The Prosecutor read parts of the report of Mr Spiers remote sensing specialist (pars 7-13, 15-37, 45-49 including appendices A and B, 52-57 including appendix C, and pp 23-28 and 101) annexed to his affidavit dated 5 April 2017 and an affidavit of Mr Spiers dated 1 October 2019.
In his report dated 5 April 2017 Mr Spiers was asked to report on inter alia the total area cleared between 1 November 2011 and 20 August 2014 on Colorado. Mr Spiers agreed to be bound by the obligations imposed by the expert witness code of conduct in preparing his expert report. For the purposes of preparing his expert report, Mr Spiers considered various photographs and images dated between 1975 and 2014 listed in table 1. These photographs and images were attached as appendix J and include inter alia analogue photographs which have been "orthorectified", Landsat satellite images and digital images acquired by a digital Leica ADS scanner, all provided by the OEH.
Mr Spiers' skills in aerial photography interpretation are based on 25 years of experience in this discipline and field observation of patterns seen in aerial photographs. He does not have any formal qualifications in this field. He received in-house training by technical specialists in 1987 when employed by the NSW Soil Conservation Service. Mr Spiers has no formal qualifications in the use of Geographic Information Systems (GIS), a computer program designed to view and manipulate images and determine spatial areas. He has received short periods of intensive GIS training throughout his employment. He has acquired 16 years of practical experience using GIS in his day-to-day work and is experienced in the use of "ArcGIS" software.
To view changes between the orthorectified digital images within ArcGIS, Mr Spiers used the "swipe function". Images are displayed on screen and one image is "swiped" or "peeled back" to reveal the layer below. This process allows for rapid and accurate delineation of changes between images.
Mr Spiers stated that he is able to observe certain characteristics of vegetation and ground surface cover by combinations of colour or tone, texture and pattern and shape on the images. By viewing aerial photographs and digital stereoscopic images in three dimensions, Mr Spiers is able to observe inter alia trees and shrubs standing vertically above the ground surface.
Mr Spiers analysed the orthorectified digital aerial photographs, digital stereo images and satellite images for any indications of clearing activity. He constructed polygons in ArcGIS to show discrete areas of tree removal.
Mr Spiers made the following observations and conclusions: 1. between 5 January 2013 SPOT-5 satellite and 7 February 2014 Landsat images, clearing of four areas of trees and groundcover in the north-western part of Colorado amounting to 64 hectares (Mr Spiers' affidavit dated 1 October 2019 amends this evidence); 2. between 6 January Landsat and 14 May ADS 2014 images, clearing of polygon 21 in the north-western quarter of Colorado, an area of 218 hectares; 3. between 14 May ADS and Landsat 1 July 2014 images, clearing of polygons 28, 29 and part of 30; 4. between Landsat 1 July and 17 July 2014 images, clearing of the remainder of polygons 29 and 30 and the commencement of clearing of polygon 26; 5. between Landsat 17 July and 2 August 2017 images, complete clearing of polygons 26 and 27; 6. between Landsat 2 August and 20 August ADS 2014 images, part of polygon 27 subject to land preparation activities including the removal of debris from earlier clearing; and 7. 20 August ADS and 3 September 2014 Landsat images, no change in level of tree cover.
Mr Spiers observed cultivation equipment in the 14 May 2014 ADS image.
Mr Spiers concluded that an area of 220 hectares had been cleared on Colorado between the image dates 6 January and 14 May 2014. This is shown on a map labelled appendix A of Mr Spiers' report. Further, between the image dates of 14 May and 20 August 2014 clearing of 286 hectares occurred over most of the western part of Colorado. This was shown on a map labelled appendix B of Mr Spiers' report. The combined areas of clearing were shown on a map labelled appendix C.
In his second affidavit dated 1 October 2019, Mr Spiers stated that he omitted to produce in his expert report dated 5 April 2017 a Landsat image dated 6 January 2014 and annexed a copy of that image. He clarified that a statement made about clearing of 64 hectares on Colorado occurred between the 6 January and 7 February 2014 Landsat images, not between the 2013 SPOT-5 and February 2014 Landsat images as originally described in his affidavit dated 5 April 2017. He also clarified that the image titled "'Colorado' Croppa Creek NSW 07 January 2014 Landsat image" is in fact an image taken on 7 February 2014.
Mr Spiers stated in examination in chief that the "easting" and "northing" references on p 116 of Mr Turner's diary notes were in relation to a property approximately 13 kilometres away from Colorado in a south-south-west direction.
Mr Spiers stated in cross-examination that the observations he made in his expert report are similar to those recorded in previous affidavits dated 2015 and 2016. His 2015 affidavit contained similar material to his 2014 affidavit.
Mr Spiers' report dated 5 April 2017 does not contain the 6 January 2014 Landsat image referred to in his expert report. Mr Spiers stated that Landsat images are produced every 16 days. Images can be obtained every couple of days from other sources.
Mr Spiers has never been to Colorado. His conclusions in relation to clearing on Colorado were drawn from interpreting differences between the imagery. He agreed the images are affected by cloud cover and dust storms. Mr Spiers has been taught to identify factors such as these that affect interpretation of imagery. His expertise is air photo and satellite imagery interpretation. Mr Spiers stated that the conclusions he drew in relation to changes in imagery involved educated guesswork based on 30 years of experience and training. The colouring of images can change in the printing process.
Mr Spiers was asked to identify four areas on the Landsat image of Colorado dated 7 February 2014 where clearing had occurred. He was asked to mark the equivalent areas on the satellite image dated 5 January 2013. Mr Spiers concluded that an area of 64 hectares had been cleared between 5 January 2013 and 7 February 2014. He used these two images only. He did not use other images from 2013 because these were affected by cloud cover. Comparing the 5 January 2013 and 6 January 2014 images, Mr Spiers observed no clearing. He was asked to mark two areas on the 5 January 2013 image and the equivalent areas on the 6 January 2014 image. The Defendant's counsel put to him that clearing had in fact occurred and that Mr Spiers' conclusion regarding clearing between 2013 and 2014 was unsupported by the imagery included in his expert report (which Mr Spiers rejected).
In relation to the 6 January Landsat and 14 May ADS 2014 images, evidence of clearing including cultivation equipment was observed in the 14 May 2014 image. "ADS" stands for advanced digital sensor. Images produced using an ADS are not less advanced than satellite images since they serve a different purpose. These images capture more detail than satellite images. A Leica ADS image is approximately 100 times more accurate than a Landsat satellite image. Mr Spiers was asked to identify four areas on the 6 January 2014 Landsat image and compare these to equivalent areas on the 14 May 2014 ADS image. He stated that the area marked D on the 6 January 2014 image and the equivalent area on the 14 May 2014 image showed some spots. The spotting on the latter image was less dense. Mr Spiers marked on the 14 May 2014 image the location of cultivation equipment. He observed a plume of dust on the image indicating that a tractor was moving. This could not be seen from the hard copy version of the image attached to his report. In drawing conclusions about clearing between 6 January and 14 May 2014 Mr Spiers also relied on a Landsat image dated 7 February 2014 since clouds cover part of the 6 January 2014 Landsat image. He did not rely on a Landsat image dated March 2014 due to cloud cover affecting it and also did not rely on an image from April 2014.
Mr Spiers was asked whether he could conclude that there had been clearing between February and May 2014 and when exactly this occurred. Mr Spiers stated that clearing had occurred throughout this period and was unable to state when exactly clearing occurred.
Mr Spiers did not receive information from Mr Turner in relation to clearing for the period between January and 14 May 2014.
In re-examination Mr Spiers stated that he addressed the differences in the various types of images relied on for the purposes of his expert report by listing the approximate scale of each image in terms of resolution. He explained in his report what resolution means and the methodology he adopted.

Knowledge of authorised officer

Part of the charge period is statute-barred under s 42 of the NV Act as Mr Turner the authorised officer referred to in prayer 2 of the amended summons knew of clearing on Colorado the subject of these charges earlier than 4 March 2014. The evidence gives rise to the inference that he was aware shortly after early February 2014.
Section 42(4) of the NV Act provides that proceedings for an offence may be commenced within but not later than two years after the date on which evidence of the alleged offence first came to the attention of an authorised officer. If prayer 2 of the amended summons accurately states the position, then the proceedings were relevantly commenced within two years under s 42(4) of the NV Act. The Prosecutor has not identified or served any affidavit or other evidence demonstrating that the offence came to the attention of the authorised officer Mr Turner on 4 March 2014.
If the Prosecutor relied on s 42(3) of the NV Act then the period before 2 March 2014 is more than two years from the clearing.
The lawyers for the Defendant have had produced to them in their role as lawyers for the late Mr Ian Turnbull notes from the late Mr Turner which reveal facts that are and must be in contradiction to prayer 2 of the amended summons. Mr Turner's notes include: 1. entries for 31 January 2014: "had seen clearing"; "I drove past there every day"; "clearing is not for a fence line"; "man who lives down the road operated the dozer"; "7:30 am this morning trees lying where they were pushed over. Not stacked …"; 2. entries for 3 February 2014: "I wont [sic] put [BLANK] who have lived here for years in jeopardy …"; and 3. "asked to work for the Turnbulls" and "proximity and fear of retribution [BLANK] will provide this limited affidavit - if useful".
The above entries record current, continuing observations in the diary of the officer Mr Turner. It should be inferred those entries refer to the clearing the subject of these proceedings. The evidence of the alleged offence came to the notice of the authorised officer as described in the entries in [32] above, that is, on 31 January 2014 and on 3 February 2014.
There may be advanced by the Prosecutor an argument that the mere discovery of evidence of clearing is not enough to amount to notice sufficient to engage s 42(5) of the NV Act by reason of a need to investigate the clearing to arrive at a conclusion that there was relevant clearing and to that end to use aerial photographs or other investigation tools to arrive at a conclusion. That may be accepted and the Defendant did not submit a precise date except that the date was shortly after 3 February 2014.
Additional evidence supports the Defendant's case as follows: 1. Mr Spiers' concession in evidence that in January 2014 he had been in touch with Mr Turner to secure the base maps (where the property outlines were) and contrary to what is set out in par 23 of Mr Spiers' report, was in touch with Mr Turner at that time to have the map outline provided to him; 2. Mr Spiers' email exchange with Mr Turner dated 17 March 2014 and the inference therefrom of available and accessible contact with Mr Turner; 3. Mr Spiers' concession that routine production of new aerial images occurred every 16 days; 4. Mr Spiers' concession that he had use of a desktop GIS (which system is referred to in pars 19 to 21 of his report; 5. Mr Spiers' evidence that the photograph appendix J showed little or no clearing as at February 2014; 6. the Prosecutor's failure to call any evidence at the hearing to resist the conclusion that the clearing described in [32] above was other than clearing observed on the January dates recorded in Mr Turner's diary notes; 7. the obvious availability of such evidence given the identification of numerous persons in Mr Turner's diary notes, some with telephone numbers and some obviously blacked out in the records produced to the Defendant and tendered in court; 8. the ready availability of some of the persons identified in Mr Turner's diary notes such as identified barristers in Sydney; 9. the acknowledged continuing interest of the authorised officer Mr Turner of claims concerning clearing on the property Colorado and another Turnbull property, Strathdoon, over a period (years) long prior to January 2014; and 10. the necessary resulting inference from the foregoing (a)-(i) that the evidence observed as set out in [32] above must have been properly investigated in the days following 31 January 2014 and on 3 February 2014.
The inference arises that Mr Turner was aware of the clearing the subject of these proceedings shortly after these dates, before 4 March 2014. The Defendant has discharged the burden in s 42(5) of the NV Act of establishing the contrary to the date in the amended summons: see Rummery v Chief Executive Office of Environment and Heritage (2014) 201 LGERA 428; [2014] NSWCCA 106 (Rummery) at [84]. The amended summons was filed out of time and these proceedings should be stayed.

Continuous clearing not demonstrated by Mr Spiers' evidence

In relation to Order 2 of the notice of motion the Prosecutor cannot show any evidence of continuous clearing throughout the period of the amended summons. Evidence of any clearing between February 2014 and May 2014 has not been established having regard to the following: 1. Mr Spiers was not able to demonstrate that clearing as claimed to have been visible to him in preparing his report was shown on the aerial photographs shown to him and tendered in evidence; 2. the evidence of Mr Spiers that the photograph appendix J showed little or no clearing as at February 2014; 3. the concession by Mr Spiers that the aerial photograph showing the property Colorado in May 2014 did not show the trees and property as he saw it and that we (the Court) "would have to take his word for it"; 4. the answers and concessions during his evidence as to other evidence to the effect that " we would have to take his word for it"; and 5. the failure to adhere to Sch 7 of the Uniform Civil Procedure Rules 2005 "Expert witness code of conduct" in respect of (c) and (d) immediately above.
The Prosecutor seeks to identify separate clearing areas which are separated in points of time. In Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd (2015) 209 LGERA 280; [2015] NSWLEC 117 (Manchee) at [52], Pepper J referred to the need to prove an offence is a continuing one. There can be no satisfactory evidence of any clearing prior to May 2014 if reliance is placed upon the need to take the word of Mr Spiers.
Nor is there evidence of continual clearing if the contentions of the Defendant concerning when notice came to the attention of the authorised officer, as set out above, are accepted.
If the Defendant's contention on this aspect is upheld then it is submitted the effect on the case for the Prosecutor is that part of the period alleged in the particulars of the amended summons is outside the period of limitation of two years under s 42(3) of the NV Act.

Knowledge of authorised officer

The Prosecutor relied on s 42(4) and also s 42(3) if necessary in submitting the proceedings are not statute-barred. In relation to when the authorised officer Mr Turner became aware of the offence, the amended summons states that this was on 4 March 2014. The Defendant has not provided any evidence that Mr Turner knew of the clearing on Colorado the subject of these charges earlier than 4 March 2014. None of the diary notes relied on by the Defendant are shown to relate to the clearing on Colorado the subject of these charges. The Prosecutor's chronology identifies that a number of investigations occurred in early 2014, including a hearing in the Court on 4 March 2014 on the conviction of Mr Ian Turnbull of clearing on Colorado.
Firstly, the diary notes relate to different proceedings and not the clearing the subject of these Class 5 proceedings. The entry on p 113 dated 31 January 2014 refers to Colorado, "discussed statute bar" and "Strathdoon 28 June". This entry was clearly made in relation to clearing that occurred before January 2014, the subject of the Class 5 proceedings 12/51231 before Sheahan J between 4 and 14 March 2014 and the Merit Appeal Proceedings between 10 and 12 June 2014. Both proceedings concerned clearing on Colorado by Mr Ian Turnbull between 1 November 2011 and 18 January 2012.
Secondly, the parts of the notes which have been crossed out relied on by the Defendant do not concern the Defendant, Colorado and the clearing the subject of these proceedings. These were crossed out by the person who produced the notes in response to the subpoena filed in the trial of Mr Ian Turnbull because it was irrelevant to the category of documents requested. Entries on pp 114 and 116 refer to "John Wilkinson" and "Muldoon" is in the margin of the entry on p 116. These entries relate to another property and person the subject of an unrelated clearing investigation.
Thirdly, the entry dated 3 February 2014 on p 116 includes "Brenton Whibley 'Talga' may have seen clearing on Colorado". There is no indication that this concerns the clearing of Colorado the subject of these proceedings. Further Mr Spiers stated in oral evidence that the GPS coordinates outlined in this entry relate to a location some 14 kilometres south of Colorado.
Fourthly, the notice to produce issued to the Prosecutor in these proceedings requested notes relating to or in connection with Colorado between 1 January 2014 and 31 March 2014, not clearing which occurred throughout this period. The Prosecutor informed the Court it produced material in response to the notice similar but not identical to Ex 1 (material not tendered in this hearing).
The Prosecutor tendered an email from Mr Turner dated 25 March 2014, in which he stated: I received a phone call from an informant whilst I was in Sydney for the Stage 1 prosecution on Tuesday 4th March that clearing has re-commenced in the north-western part of 'Colorado'. OEH Compliance and Regulation Officer Mr Robert Strange drove to the property a couple of days later on 6th March 2014 and confirmed that some more clearing activity has occurred on 'Colorado' - see attached Inspection Report.
This email is clear evidence that Mr Turner became aware of the subject clearing on 4 March 2014.

Continuous clearing demonstrated

The Prosecutor submitted that the evidence establishes the following propositions: 1. firstly, that the Defendant had a plan to carry out clearing upon this area of land; 2. secondly, that clearing on Colorado was done in accordance with the plan held by the Defendant; and 3. thirdly, that clearing activities on Colorado occurred continuously from January to August 2014.
The Defendant's application dated 22 October 2012 to the Border Rivers - Gwydir Catchment Management Authority for a PVP sought to carry out an "activity" described as "broad-scale clearing" of areas totalling 558 hectares on the parts of Colorado the subject of this clearing charge.
Mr Fisher OEH officer swore an affidavit dated 1 December 2015 which exhibits the Defendant's application under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to the Department of the Environment (Cth) in December 2012 to convert an area of 558 hectares into cropping land including parts of Colorado the subject of this clearing charge.
The transcript of the Merit Appeal Proceedings dated 10 June 2014 includes an admission that the Defendant planned to clear Colorado. The Defendant objected to this admission being relied on, relying on ss 137 and 138 inter alia of the Evidence Act 1995.
The transcript of the Civil Enforcement Proceedings dated 3 March 2015 includes an admission that clearing of Colorado had occurred in accordance with a plan held by the Defendant. The Defendant also objected to this admission being relied on for the same reasons.
The Defendant's affidavit dated 22 January 2015 filed in the Civil Enforcement Proceedings includes a timeline of clearing and agricultural work done on Colorado.
Authorities such as Manchee at [43]-[44] and Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (Truegain) at [48]-[52] support the Prosecutor's submission that there is sufficient evidence to demonstrate that continuous clearing occurred between February 2014 and May 2014. The evidence of Mr Spiers establishes the clearing occurred over the period of time in the amended summons. It is not necessary to show positively that clearing occurred in March and April 2014 for a continuous offence to be established.

Knowledge of authorised officer

In relation to Order 1 concerning the timing of the knowledge of the relevant clearing of Mr Turner, the Defendant bears the onus of establishing that the offence came to the attention of an authorised officer on a different day to that identified in the amended summons, see Rummery per Ward JA at [84]. I accept the submissions of the Prosecutor concerning the diary notes of Mr Turner summarised above in [42]-[45], which the Defendant primarily relied on as evidence supporting its submissions. None of the extracts of that diary has been shown to be relevant to this charge. They cannot therefore be relied on to suggest that Mr Turner became aware of the relevant clearing earlier.
That Mr Turner and Mr Spiers knew each other and had contact earlier than March 2014 does not prove that Mr Turner knew something earlier than 4 March 2014 about the relevant clearing. They were professional colleagues and there was more than one investigation into clearing of native vegetation on-going in early 2014 and a number of Court proceedings were on foot, as the Prosecutor's chronology and submissions identify. Further, and as identified in Rummery at [107], access to electronic data by Mr Spiers also does not prove actual knowledge of the relevant clearing by Mr Turner at an earlier point in time. The email correspondence between Mr Spiers and Mr Turner dated 17 March 2014 relied on by the Defendant is after 4 March 2014 in any event. The evidence relied on by the Defendant summarised above in [35] considered cumulatively does not establish earlier knowledge on Mr Turner's part and no such inference arises.
The email tendered by the Prosecutor dated 25 March 2014 supports the date in the amended summons. The Defendant has not discharged the onus of proof it bears. No part of the charge period is statute-barred on the basis the date the authorised officer became aware of the clearing was earlier than 4 March 2014.

Continuing offence should be determined at trial

As this is a pre-trial application, I do not consider that I must determine finally whether a continuous offence has been established by the Prosecutor. It suffices if I find that sufficient basis exists in the evidence for such a matter to be determined at the trial. The Defendant complained that as there is no evidence that clearing took place between February and May 2014 in Mr Spiers' report, a continuous offence has not been established and part of the charge period is therefore statute-barred.
As the Prosecutor submitted, and I adopt, the limitation period for a continuing offence commences to run when the commission of the offence has ceased. In Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217; [2001] NSWLEC 41 at [35], Pearlman J reviewed the authorities at length and held that the limitation period applicable to a charge brought under s 6(1) of the Environmental Offences and Penalties Act 1989: … commences to run from the day upon which the commission of the offence has ceased. Accordingly, if this offence is ultimately found to be a continuing offence, then no question of infringement of the limitation period will arise, because the period will commence to run from some date in 1995, and the proceedings were instituted within three years thereafter. The Court has reached the same conclusion in relation to ss 12 and 42 of the NV Act (Manchee at [33]-[38]).
Also as the Prosecutor submitted, and I adopt, it is not always possible to establish the particular act or acts causing damage giving rise to an environmental offence. In the joint judgment of Director-General, Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234; [2003] NSWCCA 31 (Greentree), the Court of Criminal Appeal observed that: [41] The offence of clearing native vegetation is of its nature likely to occur over days, weeks or months. Unlike the offences in S v The Queen, the presence of native vegetation on one day and its absence on another, is in itself evidence of clearing. … [43] What emerges from the cases is the need to have regard to the nature of the offence and the facts, matters and circumstances relied upon by the prosecutor when considering the question of particulars. With some offences, the commission of the offences may be clear, even admitted, but the details of their commission may lie and be expected to lie within the bosom of the defendant. The prosecutor may only be able to specify a period within which the offence occurred. That does not, of itself, usually result in a decision that adequate particulars have not been supplied.
Greentree considered the predecessor to the NV Act, the Native Vegetation Conservation Act 1997, the offence under s 21(2) being similar to that under s 12(1) of the NV Act.
As the Prosecutor submitted, and I adopt, ss 12 and 42 of the NV Act are capable of being charged as a continuing offence. The concept of a "continuing offence" was reviewed by Leeming JA in the Court of Criminal Appeal in Truegain. His Honour said: [48] It has long been the case that where acts formed part of the same transaction or criminal enterprise, they could be charged in a single count. … … [50] Thus the general rule is that unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity they should be separately charged. … [51] The question whether a statute attached criminality to an ongoing criminal enterprise, as opposed to a particular act, is inevitably a question of construction. … [52] … the question whether an enactment creates one offence or several depends upon its subject matter and language considered in their context. … These passages establish that, as his Honour put it at [52], the question whether s 12 of the NV Act "creates one offence or several" is a matter of statutory construction.
Further, in Bentley v Gordon; Bentley v BGP Properties Pty Ltd (2005) 139 LGERA 449; [2005] NSWCCA 157, cited also in Manchee at [39], Smart AJ in the Court of Criminal Appeal said: [55] Environmental offences are notoriously difficult of proof. While the damage caused to a particular area is often all too evident, the prosecuting authority by its officers, is not present when the actual damage is caused and does not know the precise mechanism by which the damage was caused. The prosecuting authority may be able to ascertain the machinery which the landholder has or used. The landholder may do the work himself or have staff do it or engage contractors. From inspections of the property after the damage has been caused it may be evidence that the damage has been caused by an act or acts in that the result produced could not have happened without an act (or, in some circumstances, an omission). However, it may not be possible to identify the particular act or acts causing the damage. Not infrequently the damage will have been committed by a series of acts, for example, driving a mower or a dozer or grader over an area for an hour or so, or even over some days or weeks. It may be some weeks later before an inspection takes place as a result of intelligence received or gathered by the Service. [56] I would adhere to the statements of principle that for continuing offences and facts so related that they amount to one activity and that where an offence is defined in the terms of a course of conduct or state of affairs, the prosecution can rely on a series of closely related acts (or omissions) and is not confined to relying on one act. Nor would I question that the acts or omissions relied upon by the prosecution may take place continuously or intermittently over a period of time. These principles are of appreciable importance in relation to environmental offences. Damage of consequence may be caused by several acts in combination, whereas damage caused by one act may be inconsequential. … These observations have been said by this Court to be "entirely apposite in the context of contraventions of s 12 of the [NV Act]" (Manchee at [40]).
These authorities confirm that a charge of native vegetation clearing can be continuous and proof can be established by intermittent events. Mr Spiers concluded in his report that clearing took place between February and May 2014. He was not able to say when clearing occurred in that period. His conclusions are based on the comparison of various images drawn from accepted sources which enable comparison of the appearance of land at different dates. It is not essential that there be images from March or April 2014 to prove continuous clearing.
The Defendant's criticism of Mr Spiers' evidence as an expert in the field of remote sensing is entirely misplaced. Mr Spiers' report dated 5 April 2017 clearly and extensively sets out his methodology and attaches hard copy images of computerised mapping. It is not necessary for the acceptance of his opinion evidence that the Court or anyone else be able to personally view the precise features which Mr Spiers attests to in his report. There is no difficulty in "taking his word for it". Nor has the Defendant established any failure to comply with the expert witness code of conduct by Mr Spiers.
The Prosecutor also seeks to rely at trial on evidence that the Defendant had a plan to carry out the clearing the subject of the charge as contained in a PVP application under the NV Act and an application for an approval under the EPBC Act and that such clearing was done without approval. Such evidence strengthens the Prosecutor's case.
The Prosecutor also sought to rely on admissions of clearing made by the Defendant in the Civil Enforcement Proceedings and Merit Appeal Proceedings. I consider the admissibility of admissions in other proceedings in relation to Order 3 which includes the limited admissions sought to be relied on in relation to the issue of continuous clearing relevant to Order 2. I conclude at [113] below that such admissions should not be excluded at this stage as I did not accept the Defendant's submissions relying on various sections of the Evidence Act. The admissions are admissible. I left for determination at trial whether admissions in civil proceedings can carry weight at a criminal trial, a matter identified in R v Adler (2004) 48 ACSR 693; [2004] NSWSC 108 at [124], extracted below at [108]. As that finding affects the weight to be given to the admissions relied on by the Prosecutor in relation to Order 2 I do not intend to have regard to these now. They are not needed to conclude that Order 2 ought not be made.
It is appropriate that the issue of whether the offence is continuous be determined at trial.
Although the Defendant's motion refers to duplicity, this was not addressed in submissions. As the Prosecutor submitted, no obvious basis for such a finding exists if, as I have found, the question of whether the offence is continuous remains for determination at trial.
Orders 1 and 2 while discrete do overlap in part. No basis for making these orders has been established by the Defendant.

Order 3 exclusion of evidence

The Defendant seeks an order that material containing admissions of the Defendant not be relied upon. The Defendant relied on ss 90, 128, 132, 137 and 138 of the Evidence Act and the Dictionary definition of "admission", set out below: Part 3.4 Admissions … 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Part 3.10 Privileges … Division 2 Other privileges … 128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. … Division 4 General … 132 Court to inform of rights to make applications and objections If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision. … Part 3.11 Discretionary and mandatory exclusions … 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. … Dictionary (Section 3) Part 1 Definitions … admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding. …

Defendant's evidence

The Defendant's affidavit dated 9 October 2019 states that in these proceedings the Prosecutor seeks to convict him of a criminal offence for clearing which was the subject matter of evidence in the Civil Enforcement Proceedings in March 2015. The Defendant was represented in those Civil Enforcement Proceedings by Mr Joseph and Mr Alexis SC.
The Defendant did not know until he was charged in 2016 in these proceedings that he could or would be charged in respect of the same clearing the subject of the Civil Enforcement Proceedings. The Defendant was not at any time advised by Mr Joseph or Mr Alexis SC that he could or would be so charged. If he had known that he would be prosecuted for the clearing the subject of the Civil Enforcement Proceedings, he would have sought to delay the hearing of those Civil Enforcement Proceedings so that any evidence given in those proceedings would not be used against him in this criminal trial.
The Defendant stated in cross-examination that he has been legally represented by Mr Joseph since early 2012. In the Civil Enforcement Proceedings he accepted that he had carried out clearing in the polygons marked B1, B2, C1 and C6 in annexure A to the judgment in contravention of the NV Act). The Defendant disputed in those proceedings the overall area cleared, 29 hectares as opposed to approximately 500 hectares (at [4]). In the Civil Enforcement Proceedings the OEH sought a declaration that the Defendant had carried out clearing in contravention of the NV Act.
The Defendant was taken to [6] of the Civil Enforcement proceedings which states: Mr Turnbull contends that the declaratory order sought by the applicant is inutile and should not be made. He also contests the granting of an injunction on the basis that he has acknowledged his contravention and stated, in evidence, that he will not carry out any further clearing of native vegetation in contravention of the Act.
The Defendant stated that the effect of this paragraph was that a declaration and/or injunction was unnecessary because the Defendant admitted to clearing in contravention of the NV Act. The Defendant relied upon those admissions to avoid a declaration and injunction.
The Defendant was taken to the transcript of the Civil Enforcement Proceedings dated 3 March 2015. He stated that once he had learnt that his late father had been charged with unlawful clearing in 2012 he knew that unlawful clearing might result in a charge being brought against the person responsible. The Defendant had this knowledge throughout the Civil Enforcement Proceedings.
In re-examination the Defendant stated that he conflated being charged with being the recipient of a remediation direction. In further cross-examination the Defendant stated that he knew that his late father had been charged with a criminal offence and had not been given a remediation direction.

Prosecutor's evidence

The Prosecutor tendered a bundle of documents to be relied on for the purposes of argument concerning Order 3 which contains (Ex F): 1. transcript of Merit Appeal Proceedings dated 10 June 2014; 2. points of claim and points of defence in Civil Enforcement Proceedings; 3. affidavit of the Defendant dated 22 January 2015 filed in the Civil Enforcement Proceedings which stated that he accepted Dr Jenkin's opinion to the effect that 29.4 hectares of native vegetation were cleared on Colorado within the areas marked B1, B2, C1, C2, C5 and C6 and that such clearing was in breach of s 12 of the NV Act; 4. transcript of Civil Enforcement Proceedings dated 3 March 2015; and 5. consent to institute proceedings dated 17 February 2016.
In the course of the hearing the material the Prosecutor intended to rely on was clarified to be parts of pp 59-85 of the transcript of the Defendant's sworn testimony given on 10 June 2014 in the Merit Appeal Proceedings and parts of pp 51-116 of the transcript of the Defendant's sworn testimony given on 3 March 2015 in the Civil Enforcement Proceedings.

Defendant's submissions

The contravention of the NV Act case alleged against the Defendant in these proceedings is the same contravention the subject of the Civil Enforcement Proceedings heard in 2015 and determined in 2016. The first time the Defendant learned of the criminal proceedings was when the amended summons and order were served in 2016. The Defendant's evidence in the Civil Enforcement Proceedings should not be admitted against him in these criminal proceedings. The evidence constitutes admissions within the meaning of the Evidence Act. Sections 137 or 138 apply so that the Court should decline to admit this evidence.
The Civil Enforcement Proceedings were used improperly to obtain evidence which has been sought to be used in these Class 5 proceedings. By commencing the Civil Enforcement Proceedings and running them to hearing prior to commencing criminal proceedings, the OEH led the Defendant to believe that he either would not be prosecuted, or that his evidence would not be used against him. Using that evidence now is unfairly prejudicial, and should be prohibited because it was obtained improperly. By not notifying the Defendant of the intention to commence criminal proceedings, the Defendant was deprived of the opportunity to seek to stay the Civil Enforcement Proceedings, and was denied even the opportunity to make any choice of any kind.
The circumstance that the trial judge did not inform the Defendant pursuant to s 132 of the Evidence Act of his right to object under s 128 had the result that either the evidence was obtained improperly, or alternatively its admission in the criminal proceedings is unfairly prejudicial.
In circumstances in which a person is accused of contravention of an Act in civil proceedings, which would also constitute a criminal offence, s 132 renders it incumbent on the Court to have advised the Defendant of his right to make a s 128 application. Where evidence is given by a person in the position of the Defendant who was unaware of his entitlement to make such an objection, it is submitted that either it was "improperly obtained" or that it would be "unfairly prejudicial" (to the extent of outweighing its probative value) to admit it against him in criminal proceedings. Sections 137 or 138 exclusions should apply to overcome the fact that a certificate under s 128 was not sought or granted.
That the Civil Enforcement Proceedings were underway in respect of actions under legislation which allowed or provided for criminal prosecution for those actions is sufficient to enliven s 132 in respect of all categories of evidence. Section 132 on its face turns on the appearance of the possibility of grounds for making an objection and not on the ultimate success or failure of such application.
Assuming the s 132 obligation arose, and failure to comply with it has the result that evidence obtained following such a failure was improperly obtained for the purposes of s 138 (for which there is precedent: LGM v CAM (2011) 46 Fam LR 118; [2011] FamCAFC 195), the balancing exercise set out in s 138 must still be passed. That is, the desirability of admitting it must outweigh the undesirability. The "undesirability" in this case (from the public policy perspective to which the section is directed) would be directed to a failure of the judge to fully inform the accused, the Defendant, of his right not to incriminate himself.
Concerning s 90, the combined failure of the Prosecutor to indicate criminal proceedings were contemplated, the absence of any warning by the trial judge to comply with s 132, and the Defendant's lack of awareness of the options available to seek to preserve his right to silence, gives rise to consideration of the discretion to exclude the admissions pursuant to s 90 of the Evidence Act. Section 90 requires a lower burden than that imposed by either ss 137 or 138.
There is no suggestion that the Defendant recognised, but waived, the right to silence. The perceived unfairness in this case arises from the fact that the Defendant would not have put on evidence and subjected himself to cross-examination, or else would have sought a temporary stay of the Civil Enforcement Proceedings, had he been aware that criminal proceedings were contemplated.
The Prosecutor did not (previously) indicate its intention to pursue criminal proceedings nor was an undertaking sought from the OEH that it would not use evidence given in the Civil Enforcement Proceedings against the Defendant in criminal proceedings. There was no application made for a temporary stay of the Civil Enforcement Proceedings pending the outcome of (any) criminal proceedings.
The Defendant may have faced a choice whether to give evidence in the Civil Enforcement Proceedings and thereby disclose the evidence he might give in any subsequent criminal proceedings or refrain from giving evidence in any civil proceedings. This predicament if recognised by the Defendant arises in circumstances such as this: R v Adler at [123]. Temporary stays of civil proceedings are sometimes granted in recognition of the "invidious choice" placed onto defendants in such cases: Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97 at [36].
Similarly, s 128 certificates are routinely granted where a witness objects to giving evidence on the basis that it may tend to prove they have committed an offence or are liable to a civil penalty. Such a certificate provides that the evidence, or evidence obtained as a consequence of that evidence, cannot be used against the person in subsequent proceedings (apart from proceedings relating to the falsity of the evidence).
Each of the above regimes are directed to avoiding the prejudice caused by a criminally accused having previously given evidence in related civil proceedings and so, it is submitted, implicitly recognises that prejudice.

Prosecutor's submissions

Before turning to address argument to those particular provisions of the Evidence Act, it is important to have regard to the significant aspects of the Defendant's application: 1. firstly, the Defendant did not dispute that the material the Prosecutor proposes to tender is evidence of admissions made by the Defendant. On the contrary, he expressly asserted that the contested material is evidence of admissions within the meaning of the Evidence Act (see at [81] above) and his arguments that they should be excluded under ss 138 or 90 rest on that premise; 2. secondly, the Defendant does not contend that any of the admissions he made were other than voluntary. Clearly the evidence was voluntarily given by him and without him having taken any objection to giving the evidence; 3. thirdly, as the Prosecutor understands it, the Defendant does not contend that his privilege against self-incrimination was abrogated. It is not surprising that the Defendant does not put that contention, as it could not properly be accepted in light of the fact that he gave the evidence voluntarily and without objection: see, eg, R v Clyne (1985) 2 NSWLR 740 (Clyne) at 746-747; and 4. fourthly, the Defendant did not contend that the admissions he made are unreliable. That is, he does not suggest that any of the admissions he made should be excluded under s 85 of the Evidence Act.
No evidence has been obtained improperly by the Prosecutor. The admissions were made during testimony given voluntarily in the Civil Enforcement Proceedings. The Defendant was legally represented throughout. The admissions served his own interests in seeking to have no declaration made in the Civil Enforcement Proceedings or any restraining order made. There is no foundation for the submission made that the Prosecutor commenced those proceedings for an ulterior motive. The only reasonable inference to be drawn from the judgment in the Civil Enforcement proceedings is that the intention was the remedying and restraining of clearing of native vegetation in contravention of the NV Act. There is no basis for submitting that the OEH led the Defendant to believe he either would not be prosecuted or that his evidence would not be used against him. The Defendant was neither compelled nor induced by the OEH to give evidence in those proceedings. He admitted the clearing in contravention of s 12(1) of the NV Act when he filed his points of defence. Section 12 clearly states that contravention of that provision is an offence.
If the Defendant, with the benefit of legal representation, did not perceive the possibility when he filed his pleadings in the Civil Enforcement Proceedings and when he later gave evidence in those proceedings that he might be prosecuted for the commission of an offence against s 12(1) of the NV Act in respect of the clearing he admitted having carried out in contravention of that provision, then that can only be characterised as his own mistaken assumption. The responsibility for that rests at his feet and at the feet of his lawyers: see for example Clyne at 746 citing R v Coote (1873) LR 4 PC 599 at 607-8 (Coote). That does not suggest any impropriety on the part of the Prosecutor within the meaning of s 138 of the Evidence Act.
It is significant that the Defendant swore an affidavit dated 22 January 2015 in the Civil Enforcement Proceedings stating at par 4 that "[w]ith the benefit of legal advice … such clearing occurred in breach of section 12 of the Native Vegetation Act". It cannot be said that this admission, made by way of sworn affidavit and read by the Defendant's counsel in the previous proceedings, was improperly obtained.
The purpose of the privilege against self-incrimination is to protect the witness against the jeopardy of criminal charges and the purpose will not be fulfilled where the answer to a question will not add to the jeopardy in which they already stand by virtue of having voluntarily given a proof of evidence: Brebner v Perry [1961] SASR 177 at 182-83 (Mayo J).
If contrary to the above the Court considers that the evidence given by the Defendant in the Civil Enforcement Proceedings was improperly obtained, it should be admitted since the desirability of admitting the evidence outweighs the undesirability of admitting the evidence in light of its high probative value. The statements made by the Defendant were described as clear admissions in the Civil Enforcement Proceedings at [4], [10], [11], [18], [42], [43] and [52].
No basis existed in these circumstances for an obligation to fall on the trial judge in the Civil Enforcement Proceedings to issue a warning as provided for in s 132 of the Evidence Act. The Defendant had in advance of the hearing filed points of defence formally admitting the contravention of s 12(1) of the NV Act. He could not have had any reasonable grounds when giving evidence to object under s 128 of the Evidence Act to giving evidence in the nature of admissions consistent with the formal admissions he had already made on the pleadings. Section 132 of the Evidence Act did not apply to the evidence the Defendant gave.
The Defendant presents facts here which are considerably more anodyne than those the High Court considered in Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 (Em) to be insufficient to warrant exclusion of admissions of the accused in that case under s 90 of the Evidence Act. At its highest, the Defendant's case is that he was not aware when he gave evidence in the Civil Enforcement Proceedings that he could or would later be prosecuted for a criminal offence in relation to the clearing, and was not informed of this by the OEH or his own lawyers. This is insufficient to prompt the Court to exercise its discretion under s 90 to exclude the evidence of the Defendant's admissions. There is otherwise no basis in the interests of fairness for applying s 90 of the Evidence Act to exclude these submissions.

Consideration of Order 3

The Prosecutor seeks to rely at trial on admissions made by the Defendant in the Civil Enforcement Proceedings and the Merit Appeal Proceedings. There is no dispute the relevant statements are admissions as defined in the Evidence Act. As noted above in [51]-[52] in relation to Order 2, the Prosecutor also sought to rely on some limited admissions in the Civil Enforcement Proceedings and in the Merit Appeal Proceedings as part of its argument supporting a period of continuous clearing being proved. It submitted that the Defendant had a plan to clear the land relying in part on these admissions. My findings in relation to the overall question of admissibility of admissions also applies to that material.
As the Prosecutor agreed in the course of the hearing, this is the first time it has taken the approach of first commencing Civil Enforcement Proceedings seeking remedial orders in relation to clearing of native vegetation contrary to the NV Act, followed later by criminal proceedings under the NV Act in relation to the same clearing event. At first blush, that the Defendant considers in these circumstances that he has been unfairly treated and should not have his earlier admissions in the Civil Enforcement Proceedings used against him in the criminal proceedings is understandable. It may well not be unfair to the extent of having that evidence excluded however.
The Civil Enforcement Proceedings were commenced in September 2014, shortly after the clearing offence was committed, the period of clearing ending in August 2014. The purpose of the Civil Enforcement Proceedings was remedial as identified in the Civil Enforcement Proceedings at [3]. The decision to commence criminal proceedings was not taken by the Prosecutor until February 2016. I infer that whether criminal proceedings would be commenced was unknown by the Prosecutor at the time of the Civil Enforcement Proceedings.
Section 138 provides for the exclusion of improperly or illegally obtained evidence. The Defendant submitted that the admissions were obtained improperly because the Prosecutor did not advise that criminal proceedings were also to be commenced, the Defendant did not have the opportunity to rely on s 128 and obtain a certificate that any evidence given could not be used in later criminal proceedings and the trial judge should have issued a warning about the availability of s 128 pursuant to the obligation in s 132. No definition of improper is provided in the Evidence Act. In Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146 at [67] Pepper J cited French CJ in Parker v Comptroller-General of Customs (2009) 252 ALR 619; [2009] HCA 7 (Parker) at [29]-[30] as describing the "relevant ordinary meanings of improper to include not in accordance with truth, fact, reason or rule; abnormal, irregular, incorrect, inaccurate, erroneous, wrong" in the absence of a statutory definition. In LGM v CAM at [165] the Full Family Court identified that the term "improperly" is wide. Howie J in R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97 (Cornwell) at [20] was cited: … the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. The conduct amounting to impropriety need not be attended by bad faith or an abuse of power, Cornwell at [20].
The Defendant has not established that any of the evidence obtained in the Civil Enforcement Proceedings was improperly obtained for the reasons given by the Prosecutor as summarised above in [94]-[97]. That admissions were made voluntarily with the benefit of legal advice in an affidavit before the hearing commenced and in the defence filed in the Civil Enforcement Proceedings is a key matter to consider, as is clear from Clyne citing Coote at [95] above as relied on by the Prosecutor. As the Prosecutor had not determined to commence criminal proceedings in September 2014 when the Civil Enforcement Proceedings were commenced there can be no suggestion that the Prosecutor should have told the Defendant that criminal proceedings were also to be commenced.
The Defendant has also submitted that there was a responsibility on the part of the trial judge in the Civil Enforcement Proceedings to give a warning as provided for under s 132 of the Evidence Act. I do not agree with the Defendant's submission that these circumstances gave rise to any obligation on the trial judge in the Civil Enforcement Proceedings to consider s 132. All the circumstances must be considered. That the possibility of criminal proceedings in the future might arise on its own does not cause s 132 to arise here given the voluntary and up-front nature of the admissions made by the Defendant. Allied to the application of s 132, the Defendant submitted that he was not able to avail himself of a certificate under s 128 of the Evidence Act which he may have done had he been advised that he was also going to be charged. Section 128 specifies at the outset that it applies if a witness objects to giving particular evidence on the grounds specified in subs (1)(a) or (b). The Defendant did not object to giving evidence leading up to and at the hearing of the Civil Enforcement Proceedings.
In R v Adler, James J stated, in the context of s 1317Q of the Corporations Act 2001 (Cth): [122] The extent to which an offender is punished for his conduct always depends on decisions made by the prosecuting authorities, whether to prosecute and, if so, what charges should be laid. See Pearce at 620 (30) and Maxwell v The Queen (1996) 184 CLR 501. Decisions taken by the executive which affect the extent to which an offender is liable to be punished for his conduct would not undermine public confidence in the administration of justice by the courts. [123] Likewise, any placing of a defendant in civil proceedings in a dilemma whether to give evidence in the civil proceedings and thereby disclose the evidence he might give in any subsequent criminal proceedings or to refrain from giving evidence in any civil proceedings and run the risk of the court in the civil proceedings drawing a Jones v Dunkel inference against him, would not undermine public confidence in the administration of justice by the courts. Under s 1317Q evidence would not be admissible in any subsequent criminal proceedings of the evidence given by the accused in previous civil penalty proceedings.
The Defendant considered its position is assisted by the following paragraph in R v Adler, made in the context of s 1317Q: [124] At the hearing of the application the parties were in agreement, and in my opinion correctly, that, whatever is the true effect of s 1317F, it cannot mean that a declaration of contravention made by a judge according to the civil standard of proof in previous civil penalty proceedings is admissible, and still less that it is conclusive evidence, in subsequent criminal proceedings before a jury in which the criminal standard of proof applies. If, by virtue of s 1317Q, evidence in previous civil penalty proceedings is not admissible in subsequent criminal proceedings, then, surely, a declaration of contravention made in previous civil penalty proceedings could not be admissible in the subsequent criminal proceedings.
Whether that observation is applicable in this case can be determined at trial, in my view.
The admissions in the Civil Enforcement Proceedings and Merit Appeal Proceedings were not obtained improperly, as that term was defined in Parker, as the conduct complained of was not irregular, erroneous or wrong. Accepting that "improperly" imports a wide range of behaviour which need not be in bad faith or an abuse of process, the circumstances of this case do not suggest anything improper. Accordingly, whether the admissions should be excluded pursuant to s 138(1) of the Evidence Act in light of the matters identified in s 138(3) need not be considered.
The Defendant also relied on s 90 of the Evidence Act which was considered by the High Court (Gummow and Hayne JJ) in Em extracted as follows: 93 Section 90 appears in Pt 3.4 of the Act (ss 81-90) which is headed "Admissions". Some of these provisions (including s 84) apply in civil and criminal proceedings. Others, including ss 85, 86 and 90, apply only in criminal proceedings. Sections 85 and 86 apply only to evidence of admissions by the defendant; s 84 is not so limited. 94 It should be observed that s 90 is cast in a form which differs from ss 84, 85 and 86. These set out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted. Section 90 empowers the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution of an admission (not expressly limited to an admission by the defendant) where to use the evidence would be "unfair to a defendant". 95 Part 3.11 (ss 135-139) is headed "Discretions to exclude evidence". The heading is misleading. Section 137 obliges the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution where the danger of "unfair prejudice to the defendant" outweighs its probative value. Sections 138 and 139 are accurately described as providing a discretion to exclude improperly or illegally obtained evidence. 96 In considering the case the appellant seeks to base upon s 90, it is necessary to read the Act as a whole, with particular reference to the operation of the provisions of ss 84, 85, 86, 137, 138 and 139. … 107 As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, "would be unfair". That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as "fair" or "unfair". … 109 When it is "unfair" to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. "Unfairness", whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or "safety net" provision.
In Em Gummow and Hayne JJ at [109] identified that s 90 arises as a final safety net, all other relevant provisions (ss 84, 85, 86, 137, 138 and 139) having been found not to apply to exclude the evidence in question. The Defendant did not rely on ss 84 (admissions influenced by violence and other conduct), 85 (reliability of admissions), or 86 (exclusion of records of oral questioning) and I have found above that s 138 does not arise.
As emphasised in Em at [107] the issue for determination is whether use of the admissions at trial gives rise to unfairness not the circumstances in which the admissions were made. The same circumstances outlined above at [82]-[91] are relied on by the Defendant in relation to s 90. I accept the Prosecutor's submission set out above at [100] that reliance on the admissions at trial is not unfair in light of the considerations in Em. I conclude the admissions are admissible. The weight to be given to them can be determined at trial.
Express provision is made in some statutes to restrict the use of evidence given by an accused in civil penalty proceedings in subsequent criminal hearings. Section 9.57(7) of the Environmental Planning and Assessment Act 1979 states that if a person is the subject of a civil enforcement order a person cannot be convicted of a criminal offence. Section 1317Q of the Corporations Act 2001, considered in R v Adler, presently provides that evidence of information given by an individual is not admissible in criminal proceedings against the individual if that person previously gave the evidence for a pecuniary penalty order or a relinquishment order against them for a contravention of a civil penalty provision and the conduct alleged to constitute an offence is substantially the same as the conduct that was claimed to constitute the contravention. No such provision exists in the NV Act.
Order 3 in the notice of motion should not be made.
The Defendant is unsuccessful in relation to the orders sought in his notice of motion and it is to be dismissed.

Order

The Court orders: 1. The Defendant's notice of motion dated 8 October 2019 is dismissed. 2. The exhibits are returned.

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: 04 November 2019

(2005) 139 LGERA 449

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