Director-General, Department of Environment and Climate Change v Gleeson; Director General, Department of Environment and Climate Change v Epacris Pty Ltd

Director-General, Department of Environment and Climate Change v Gleeson; Director General, Department of Environment and Climate Change v Epacris Pty Ltd - [2009] NSWLEC 42 - NSWLEC 2006 case summary — Zoe

[27]

Note that the parties agree to execute a property agreement pursuant to the Native Vegetation Conservation Act in the form annexed hereto and marked "B". 9 On the same day and in accordance with paragraph 1 of the consent orders, the order or direction given by notice on 12 November 2004 was formally revoked. 10 On 11 April 2005, in accordance with paragraph 4 of the consent orders, the Regional Director issued a new direction to carry out remediation work, which related to a smaller area of about 57 hectares, effectively preserving wildlife corridors on the land. The new direction was relevantly in the same terms as the first direction, which I have set out in par [5] above. A registered property agreement was also made between Epacris and the Director-General of the Department, in accordance with paragraph 5 of the consent orders. This effectively required the fencing and preservation of a larger area of about 900 hectares adjacent to the Namoi River, and the exclusion of stock therefrom, except for 60 days a year. This substitute area of land was seen as being more valuable from an ecological perspective than the land which was said to have been originally cleared. 11 On 9 December 2005, the Director-General commenced the present prosecutions. Thereafter a number of steps were taken in the proceedings. 12 On 26 April 2006, two notices of motion filed by the prosecutor were heard by me. The first was a motion to change the name of the prosecutor, who had been incorrectly named in the summons. The second was a motion for access to the defendant's property by the prosecutor's representatives and expert witnesses. I allowed the first motion and dismissed the second: Director-General, Department of Planning v Epacris Pty Ltd [2006] NSWLEC 306, (2006) 147 LGERA 372. Epacris appealed against my judgment allowing the change of name of the prosecutor. The appeal was heard by the Court of Criminal Appeal on 13 September 2006 and in a reserved judgment published on 27 March 2007 it dismissed the appeal and upheld my decision: Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76, (2007) 153 LGERA 173. On 3 August 2007, the High Court refused special leave to appeal. 13 On 14 November 2007, Jagot J heard an application by the prosecutor to submit certain questions of law to the Court of Criminal Appeal for determination relating to the burden of proof as to a number of statutory defences. In a reserved judgment published on 19 November 2007, Jagot J dismissed the application: Director-General, Department of Natural Resources v Gleeson; Director-General, Department of Natural Resources v Epacris Pty Ltd [2007] NSWLEC 749. 14 On 14 December 2007, the present prosecutions were set down for a hearing commencing on 30 June 2008. On 26 June 2008, however, the hearing dates were vacated. On 26 September 2008 the prosecutions were then set down for a hearing commencing today, 6 April 2009. On 13 February 2009, the present notices of motion were filed and were heard by me on 30 March 2009 and 31 March 2009. 15 The Native Vegetation Conservation Act 1997 was repealed on 1 December 2005 - that is, before the commencement of these prosecutions. However, prosecution for a contravention of that Act, or an offence arising under that Act, is not affected by its repeal: s 33 Native Vegetation Act 2003 and s 30 Interpretation Act 1987.

[40]

33 On application for stay for abuse of process, the trial judge, Cox J, was not satisfied that the accused was not himself implicated in the murder, and therefore held that the accused had not complied with the express condition in the undertaking. Cox J concluded, therefore, that there should be no stay for abuse of process. The dismissal of the stay application was upheld on appeal. Wells J (with whom White J agreed) noted that the trial had been conducted in such a way so as to minimise any prejudice that may have arisen under the aborted deal. 34 In R v Georgiadis [1984] VR 1030, the accused was charged with grievous bodily harm and malicious wounding. In order to induce the accused to give evidence against four others in a trial, the Attorney-General of Victoria signed a document purporting to give Mr Georgiadis immunity. The relevant part of the document stated: [I] undertake that no criminal proceedings of any kind shall be taken against the said MITSOS GEORGIADIS arising out of or in respect of or on account of his participation in the aforesaid offences which might render him liable to prosecution and of which he gives evidence on the hearing of the abovementioned charges… 35 The trial began without the accused or his legal advisers having the opportunity to read this indemnity and the accused was handed the indemnity immediately prior to his swearing in as a witness. During the course of cross-examination in the trial, the accused made admissions that were the basis of the subsequent charges against him. 36 Although a formal stay was not ordered, the trial judge, Ormiston J, assessed the practical effect of the document on Mr Georgadis. Ormiston J found that both the indemnity and the manner in which the indemnity was given would have induced Mr Georgadis to give evidence that he would not otherwise have given. Ormiston J also considered the undesirable consequences of allowing the Crown to go back on such indemnities. 37 In Delellis v R (1989) 4 CRNZ 601, the accused entered into an agreement with the police that he would tell the police of the whereabouts of cocaine on the condition that they would not lay any charge of importing against him. The police subsequently laid a charge of importing on the basis that the applicant had not been completely honest with them over the way the drug came to New Zealand. 38 In granting a stay for abuse of process, Sinclair J of the High Court of New Zealand held at 604: If the police arrogate unto themselves the right to enter into "deals" which are not conditional in any way, then they ought not to be allowed to depart from the arrangement and any attempt to do so would be regarded as oppressive and an abuse of process of the court. 39 In Williamson v Trainor [1992] 2 Qd R 572, the accused was appealing against a conviction for assault occasioning bodily harm. When the matter first came for hearing in the Magistrates Court, the prosecution requested an adjournment, due to the fact that two police witnesses were unavailable. The accused objected on the grounds that he had with him a witness that was about to relocate interstate. Having regard to the amount of time that the charge had been pending and the length of time that the matter had been set down for hearing, the magistrate refused the request for an adjournment. The matter was then stood down at the request of the prosecutor. During the break, the prosecutor asked the accused whether he would sign an "indemnity" if the prosecution did not proceed with the charge. The accused agreed to sign the agreement, which stated that the accused would not seek costs and that the Crown would not proceed with the charge. When the hearing resumed, the prosecutor advised that no evidence would be presented in light of the refusal of the court to adjourn the matter. The complaint was accordingly dismissed by the magistrate and no order for costs was sought by the appellant. Several months later the accused was charged, tried and convicted of the offences in question. The accused's witness was not available at the second trial. 40 On appeal, Ambrose J found that it was unconscionable for the prosecutor to make a second complaint instituting fresh proceedings after providing the indemnity and protecting themselves against a probable costs order. Dowsett J also considered that going back on such indemnities was likely to bring the judicial process into disrepute. The Queensland Court of Criminal Appeal ordered a stay for abuse of process on the grounds that the prosecutor's conduct had prejudiced the ability of the accused to procure a fair trial because his witness was unavailable. 41 In R v Croydon Justices; Ex parte Dean [1993] QB 769, the accused assisted police in the course of a murder investigation in which the police provided assurances that they would treat the accused as a witness and he would not be charged with offences relating to the murder. During police interviews, he effectively admitted in uncautioned statements that he had assisted in the destruction of important evidence relating to the murder. 42 Straughton LJ (with whom Buckley J agreed) held that a stay should be granted for abuse of process as there were exceptional circumstances, including the accused's young age, the repeated assurances that he would not be prosecuted, and the fact that the accused had provided repeated assistance for over five weeks. 43 In Peters & Heffernan v R (1995) 83 A Crim R 142, the appellants gave sworn evidence of their own criminal conduct to avoid conviction on a more serious charge. They alleged that their evidence was given as a result of the following Crown undertaking: The Crown has indicated that if the proposed indictment proceeds to trial, whatever the outcome, it will not prosecute any of accused in respect of any substantive offences, which may have been committed pursuant to either [of] the alleged conspiracy. 44 In the interpretation of this undertaking, Simpson J (with whom Gleeson CJ and McInerney J agreed) rejected the appellants' contention that the words related to any possible offence, no matter how far it was removed from the subject matter of those conspiracies. Her Honour held at 148: Properly read, the words must be taken to refer to any substantive offence of supplying heroin or some other offence of a like, or related nature. It could not reasonably be taken to include any offence committed during the period of the conspiracies then alleged, no matter how far removed from the subject matter of those conspiracies.

[45]

49 In R v Mohi (2000) 78 SASR 55, the accused was treated as a witness in the course of a murder investigation. The investigating detectives made a statement to the accused that he would not be charged if he provided police with the information they were seeking. As a result, the accused cooperated with the police and provided them with a detailed statement in which he admitted that he had assisted in the placing of the deceased in the boot of a vehicle and that he had washed away the deceased's blood. This statement amounted to a clear admission to the offence with which the applicant was eventually charged. 50 Martin J ordered a permanent stay of proceedings, holding at [47] that: The administration of justice will be brought into disrepute if, without good reason, the investigating and prosecuting authorities are permitted to decline to comply with the undertakings or assurances given to such persons that they will not be charged and to pursue prosecutions against those to whom such undertakings or assurances are given. 51 In Barac v Director of Public Prosecutions (Qld); Barac v Stirling [2006] QSC 421 (unreported, 29 August 2006), the police entered into an agreement with the accused that they would drop a charge for drug trafficking if the accused entered a guilty plea for possession of drugs for a commercial purpose. After entering into this agreement, but prior to the entry of the plea of guilty, the accused was charged for drug trafficking on the grounds that significant new financial evidence had arisen which was likely to transform the case into a clear case of trafficking, making the guilty plea to lesser charges of possession inadequate to reflect the accused's alleged conduct. 52 The accused alleged that there had been an abuse of process, and that he had been prejudiced because, as a consequence of the agreement, he had: (a) foregone his rights at committal on the possession charges to have witnesses give evidence orally and be cross-examined; (b) disclosed to a psychiatrist information about his involvement in the world of drugs that he would not otherwise have disclosed; and (c) organised his life on the basis that the matter had been resolved.

[59]

Q. And are you saying now - A. Reversed the other side, if you do it, you won't be prosecuted, as simple as that. 62 Mr Buchanan SC, appearing for the Director-General, submits that Mr McGirr is not a witness of credit, that his reading of the fourth paragraph of the notice -"if you do this we won't prosecute you" - is not a reasonable reading, and the court should not accept his understanding that the settlement of the Class 1 proceedings meant they were resolving the matter once and for all, including the treat of prosecution. 63 I do not accept the submission. Mr McGirr is an experienced solicitor and is an officer of the court. I accept him as a witness of credit. Moreover, his evidence is entirely consistent with that of Mrs Gleeson, to whose evidence I now turn, and with my own understanding of the effect of the notice on a fair reading of it. 64 Mrs H E Gleeson has been a director of Epacris since 2004, and is the wife of the co-defendant, Mr D J Gleeson, who is also a co-director of Epacris. She gave evidence both by affidavit and orally. In her affidavit, Mrs Gleeson states that the effect of quarantining the river bank (as a consequence of the property management agreement) was to deprive their farm of approximately one-third of its available river grazing land; and the agreement was effectively punitive, having regard to the original areas over which illegal clearing had been allegedly carried out. She states in her affidavit (paragraph 8) that she noted the terms of the notice dated 12 November 2004 and in particular the statement "[I]f you fail to comply with this direction you may be prosecuted for a breach of the Native Vegetation Conservation Act 1997". She then stated: "[f]rom that time I was concerned at the prospect of a prosecution against Epacris". She also states in her affidavit (paragraph 20): At the time that I agreed to the consent orders made on 8 April 2005 and at the time I signed the registered property agreement over the River Block I believed that no further action would be taken by the Department by way of prosecution, and had I believed that a subsequent prosecution was possible over the same alleged incident of clearing in 2003, I would not have agreed on behalf of Epacris to the terms of settlement or to the registered property agreement. 65 In cross-examination Mrs Gleeson was taken to paragraph 20 of her affidavit, in the course of which the following evidence was given: Q. You're saying, if I had been told, I wouldn't have agreed, isn't that what you're saying there? A. No, what I'm saying is I agreed to it assuming that was the end of the matter, that there would be no other prosecutions.

[62]

Conclusion 66 I conclude from the totality of this evidence that Epacris by its director, Mrs Gleeson, and the solicitor for Epacris, Mr McGirr, understood that the terms of the notice dated 12 November 2004 led them to believe that if Epacris failed to comply with the direction contained in the notice, then Epacris may be prosecuted for a breach of the Native Vegetation Conservation Act, and, in particular, Pt 2 of that Act, as mentioned in the first paragraph of the notice. This understanding results from the clear meaning of the plain words of the fourth paragraph of the notice. I also conclude from the totality of this evidence that Mrs Gleeson as a director of Epacris, and Mr McGirr as the solicitor for Epacris, also understood that compliance with the direction contained in the notice would avoid a prosecution for a breach of the Act, and, in particular, Pt 2 of that Act, as mentioned in the first paragraph of the notice. I also conclude that this understanding was reasonably held. 67 I also conclude from the totality of the evidence, that by agreeing to settle the proceedings that had been brought in Class 1 of the court's jurisdiction, including agreeing to accept without challenge a further notice in the same terms but relating to a smaller area of land and entering into a property agreement in relation to a larger area of land, that both Epacris by its director Mrs Gleeson, and its solicitor, Mr McGirr, were led to believe that all matters in dispute, including the issues set out in the parties' respective statements of issues, were finally resolved and that they had thereby avoided any prosecution for a breach of the Act, and, in particular, for a breach of Pt 2 of the Act. I find that this belief was also reasonably held. It is self-evident, however, that if in the course of events Epacris failed to comply with the second notice then there was a real risk of such a prosecution. 68 I note the submission of Mr Buchanan SC that these understandings or beliefs could not have been reasonably held, as evidenced by the delay in bringing on the present notices of motion for a stay. According to the submission, if the defendants had such a belief then the present notices of motion could have been filed much earlier. I reject the submission. It is not clear when counsel were first asked to advise on this question. There is in evidence, however, a formal advice by the defendants' senior counsel and junior counsel dated 29 January 2009 stating that grounds existed for an application for a permanent stay. This appears to be the only formal advice to this effect. The notices of motion were then promptly filed on 13 February 2009. 69 Mr McGirr gave the following evidence In this respect: Q. Well, when did you first receive advice that a remedy for such an injustice was a stay of the proceedings? A. Well I believe it was sometime shortly before we instituted the proceedings. Counsel advised us to make this application. Having had further conferences with myself--

[70]

Q. I want to suggest to you, Mr McGirr, that if it is true that you and your client have continuously held the belief that you're promised that no criminal proceedings would be commenced if there was compliance with the first direction in the first remediation notice, that you have refrained deliberately from disclosing that belief to the department, what do you say? A. Not true. 70 Again I accept Mr McGirr's evidence. As I have presently noted, he is both a solicitor and an officer of the court. I have no reason to have any reservations about accepting his evidence. 71 I also reject the submission of Mr Buchanan SC that reading the notice as a whole, contextually and purposively, would not reasonably or sensibly lead the reader to conclude that compliance with it will save a prosecution. I likewise reject Mr Buchanan's submission that the only sensible reading of the notice is that a failure to comply with the notice would render Epacris liable to the prosecution for failure to comply with its terms. 72 Mr Buchanan accepts, however, the fact that the notice is ambiguous. In cases of ambiguity, it is desirable to give a beneficial construction in favour of the person to whom the notice is given: R v Georgiadis [1984] VR 1030 at 1037. As I have noted in par [19] above, the fourth paragraph of the notice contains a twofold threat: (i) a prosecution for a breach of the Native Vegetation Conservation Act, and/or (ii) a court order requiring compliance with the direction in the notice. As I have also previously noted, the first paragraph alleges a contravention of Pt 2 of the Act. A sensible reading is that the first of the two threatened actions is a liability for prosecution for a breach of Pt 2 of the Act, rather than a prosecution for a failure to comply with the notice to which the second or alternative course of action relates. In applying a beneficial construction in favour of the person to whom the notice is given, it also sensibly follows that compliance with the direction in the notice would save a prosecution for a breach of the Act. 73 Mr Buchanan SC submits that there was no evidence of prejudice to the defendants arising from the settlement. The submission is based on a concession made by Mrs Gleeson in cross-examination that Epacris settled for commercially sensible reasons. Mr Buchanan also submits that Epacris settled having regard to its belief as to the prospects of success in its appeal. As to this, however, Mrs Gleeson was adamant that Epacris had not done anything in contravention of the Act. I do not have to resolve this question. It is sufficient for me to find, as I do, that Epacris would not have settled the proceedings and would not have agreed to entering into the property agreement and accepting a further notice being served upon it if it thought that it would also be prosecuted for a breach of the Act. 74 Mr Buchanan SC next submits that, to the extent that each of the notices contained a promise not to prosecute if Epacris complied with the notice, any such promise was made without power and contrary to the statute, so that the fourth paragraph in the notices were and are invalid; and, If invalid, then the fourth paragraph is severable: s 32(2) of the Interpretation Act 1987. 75 I do not have to resolve this question. The validity of the notice is not in question. The decision on the part of the Director-General as to whether to prosecute is discretionary. The Director-General is not bound to prosecute whenever the Act has been infringed. 76 Mr Buchanan SC also submits that there is no evidence of Mr Gleeson's belief and there is nothing to suggest that Mr Gleeson had a belief that compliance with the notices would save a prosecution. I accept, however, the submission of Mr J M Ireland QC, who appears with J B Maston for the defendants, that, as an accused individual, one would not want legitimately and forensically at this stage of the proceedings be subjected to cross-examination on these matters. Mrs Gleeson was instrumental in the settlement, she signed the property agreement on behalf of Epacris, she was at the court when the settlement was negotiated, and she was an appropriate witness to convey the company's position as to its belief and as to its understanding at the time. Moreover, the court has evidence of the understanding of the solicitor for Epacris, Mr McGirr, who would no doubt have shared his understanding of the effect of the notices with Mr Gleeson, and in the unlikely event that he did not, then I am sure that Mrs Gleeson did.

[71]

Discretion 77 The court has a discretion in deciding whether to grant a stay. The remedy of a stay is sparingly granted: Jago per Mason CJ at 34 and per Gaudron J at 76, noted in par [27] above. As was said by the High Court in refusing special leave to appeal in Attorney-General (NSW) v Watson, the remedy is used sparingly and with the utmost caution: [1987] 20 Leg Rep SL 1. 78 The exercise of the discretion is to be determined by a weighing process involving a balancing of a variety of considerations: Walton v Gardiner at 395-396, noted at par [29] above. The test of fairness involves a balancing process of the interests of the accused and the community's right to expect that persons charged with criminal offences are brought to trial: Jago per Mason CJ at 33. 79 With these considerations in mind, I note the prosecutor's reliance on three particular reasons why the court should not grant a stay. Firstly, the defendants have waited some three and a half years before bringing this application without proffering an explanation for the delay. Secondly, under the statute the making of a remediation order is no impediment to a prosecution for unlawful clearing. Thirdly, any unfairness to the defendants is outweighed by the public interest in punishing the defendants and denouncing their conduct. 80 I am satisfied, however, that the delay in bringing the present motions for a stay has been satisfactorily explained, as noted in pars [68] to [70] above. Moreover, the delay is not all one way. The prosecutor itself delayed in filing summons until the very last day of the limitation period within which prosecutions may be commenced, and the summons was not served until some time after the expiry of the limitation period. The leisurely pace at which the prosecutor proceeded suggests that he should be the last to complain about any leisurely pace adopted by the defendants. 81 I accept the prosecutor's submission that the statute allows the bringing of a prosecution for illegal clearing in addition to giving notice of a remediation order. But the prosecutor is acting unfairly and unjustly in leading the defendants to believe that by complying with a remediation order they can thereby save a prosecution. As I have found, the statement in the notice - "[i]f you fail to comply with this direction you may be prosecuted for breach of the Native Vegetation Conservation Act" - had that effect. 82 As to the public interest, the prosecutor has not been without a remedy. It has served a second order for remediation, not challenged by Epacris, and a property agreement, both of which have and will result in a continuing cost and inconvenience to Epacris, and which will, according to the experts of both parties, result in an acceptable - indeed preferable - environmental outcome. 83 The balancing exercise persuades me that the prosecution must be stayed. The circumstances in this case are sufficiently exceptional, giving rise to an unfairness and an injustice to the defendants amounting to an abuse of process. The countervailing considerations are: (a) the prosecutor has gained the advantage of an unchallenged second notice of direction to carry out remediation works when the original notice was in dispute, together with a property agreement, in circumstances where Epacris was reasonably induced to believe that a full and final settlement had been achieved having regard to the parties' respective statements of issues; (b) this had the effect of satisfying the public interest, at least in part; since it achieved a more acceptable ecological outcome; and (c) the unfairness and prejudice caused to the defendants was a direct consequence of the prosecutor's conduct. 84 The prosecutor could, of course, have protected himself by expressly stating in the notice that notwithstanding compliance with the notice, the defendants, Epacris and Mr Gleeson as its director, nevertheless remained liable to a prosecution for a breach of Pt 2 of the Act in that they did unlawfully clear native vegetation. Alternatively, the warning in the notice could have been confined to a prosecution for a failure to comply with the notice itself. If that had occurred then the defendants could not complain, although they might then not have settled the proceedings in Class 1 of the court's jurisdiction and preferred to litigate, or might not have settled on the basis that they did.

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Cases Cited (16)

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