Director-General, Department of Natural Resources v Gleeson; Director-General, Department of Natural Resources v Epacris Pty Ltd

Crimes Act 1900 Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 Land and Environment Court Act 1979 Native Vegetation Conservation Act 1997

ADI Limited v Environmental Protection Authority (2000) 118 A Crim R 335 ; Budget Nursery Pty Ltd v Commissioner of Taxation (Cth) (1989) 42 A Crim R 81 ; Chugg v Pacific Dunlop Limited (1990) 170 CLR 249; Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242; Director General of Department of Land and Water Conservation v Pye [1998] NSWLEC 292; Director-General, Department of Planning v Epacris Pty Limited (2006) 147 LGERA 372; Director of Public Prosecutions Reference No 1 of 1999 (1999) 128 NTR 1; (1999) 105 A Crim R 489; Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 ; Director of Public Prosecutions v G (1999) 85 FCR 566; Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 ; CASES CITED: DPP (NSW) v United Telecasters Sydney Limited (1990) 168 CLR 594 ; Environment Protection Authority v Land and Environment Court (NSW) (2004) 134 LGERA 140; Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361 ; Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 153 LGERA 173; (2007) 170 A Crim R 542; R v Chin (1985) 157 CLR 671; R v Diakakis (1952) 52 SR (NSW) 15 ; R v Dittmar [1973] 1 NSWLR 722; R v Jesson [1973] 1 NSWLR 726 ; R v Nixon (2000) 181 ALR 747 ; The Australian Commonwealth Shipping Board v The Federated Seamen's Union of Australia (1925) 36 CLR 442 ; Vines v Djordjevitch (1950) 91 CLR 512; Young v Campbell (1948) 49 SR (NSW) 103

PROSECUTOR Mr D A Buchanan SC with Mr E G H Cox SOLICITORS Crown Solicitor's Office LEGAL REPRESENTATIVES:

DEFENDANTS Mr J M Ireland QC with Mr J B Maston SOLICITORS McGirr James Hall & Associates

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DIRECTOR-GENERAL, DEPARTMENT OF NATURAL RESOURCES Prosecutor

DAVID JOHN GLEESON & EPACRIS PTY LTD Defendants

JUDGMENT Jagot J: 1 David John Gleeson and Epacris Pty Ltd are defendants charged with the offence of clearing native vegetation in contravention of s 21(2) of the Native Vegetation Conservation Act 1997. The Native Vegetation Conservation Act, although now repealed, was in force at the time of the alleged offences between 1 July and 10 December 2003.

2 The prosecutor, the Director-General, Department of Natural Resources, filed a notice of motion seeking orders that the matter be referred to the Registrar for a judge to be allocated to hear the proceedings and for that judge to submit certain questions of law to the Court of Criminal Appeal for determination pursuant to s 5AE of the Criminal Appeal Act 1912. The proposed questions ask whether the Director-General or the defendants bear the burden of proof of the matters specified in ss 9, 10, 12 and 21(1), and cll 3(2) and 4(2) of Sch 4, to the Native Vegetation Conservation Act. The defendants opposed the making of the orders sought in the notice of motion. To understand the dispute and the parameters within which it must be resolved it is necessary to consider provisions of the Native Vegetation Conservation Act and the Criminal Appeal Act.

3 Section 21(2) of the Native Vegetation Conservation Act provided that: A person must not clear native vegetation on any land except in accordance with: (a) a development consent that is in force, or (b) a native vegetation code of practice. 4 The Director-General's proposed questions of law refer to provisions of the Native Vegetation Conservation Act that specified exclusions and exemptions from the operation of the Act either in whole or part. These exemptions and exclusions are framed in different terms (for example, ss 9 and 10 are to the effect that the Act does not apply to certain land, s 12 is to the effect that the Act does not apply to certain types of clearing, and cll 3(2) and 4(2) of Sch 4 are to the effect that certain acts of clearing are exempt from any requirement for development consent under Pt 2 of the Act).

5 Section 5AE of the Criminal Appeal Act 1912 is as follows: (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 6 Section 417A of the Crimes Act 1900 provides that: (1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings.

(2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person. (3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it.

7 The proceedings were commenced in December 2005. On 6 June 2006, this Court determined two notices of motion in proceedings 50069 of 2005 (Director-General, Department of Planning v Epacris Pty Limited (2006) 147 LGERA 372). Epacris applied to the Court of Criminal Appeal for leave to appeal against one of the interlocutory orders in accordance with s 5F of the Criminal Appeal Act (relating to amendment of the summons). On 27 March 2007 the Court of Criminal Appeal delivered judgment in Epacris Pty Limited v Director-General, Department of Natural Resources (2007) 153 LGERA 173; 170 A Crim R 542). The Court of Criminal Appeal granted leave but dismissed the appeal. On 10 August 2007 this Court directed that in both proceedings, amongst other things, the Director-General file the rest of the evidence for hearing on or before 12 October 2007. This direction, presumably, precipitated the Director-General's notice of motion.

8 Senior counsel for the Director-General submitted that this was an appropriate case for the Court to exercise its discretion to refer the questions of law (the Director-General not being the Crown within the meaning of s 5AE(1) of the Criminal Appeal Act). For that purpose, the Director-General filed a draft stated case identifying the questions as follows: In the circumstances of a prosecution for an offence against s 21(2) Native Vegetation Conservation Act 1997, does the burden of proof in relation to the following matters rest with the Prosecutor or with the Defendant:

(a) the matters provided by Schedule 3 of State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation, as applied by cl 3(2) of Schedule 4 and s 68 Native Vegetation Conservation Act 1997?

(b) the matter provided by cl 4(2) of Schedule 4 and s 68 Native Vegetation Conservation Act 1997?

(c) the matters provided by section 9 Native Vegetation Conservation Act 1997?

(d) the matter provided by section 10 Native Vegetation Conservation Act 1997?

(e) the matters provided by section 12 Native Vegetation Conservation Act 1997?

(f) the matters provided by section 21(1) Native Vegetation Conservation Act 1997?

9 The affidavit in support of the notice of motion sworn by Ms Rita Giurastante, a solicitor employed by the Crown Solicitor, explained that considerable time, expense and resources would have to be applied by the Director-General to disprove the various exclusions and exemptions in the Native Vegetation Conservation Act. This would be necessary if the Court applied the approach to the burden of proof in Director General, Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 at [30] and [31]. Moreover, the Director-General's senior counsel had advised that the reasoning in Bailey was contrary to s 417A of the Crimes Act and High Court authority such as Vines v Djordjevitch (1950) 91 CLR 512, Director of Public Prosectutions (NSW) v United Telecasters Sydney Limited (1990) 168 CLR 594 and Chugg v Pacific Dunlop Limited (1990) 170 CLR 249.

10 Senior counsel for the Director-General submitted, first, that it was clear the defendants intend to rely on one or more of the exclusions or exemptions nominated in the proposed questions of law (referring to now completed related proceedings in Class 1 of this Court's jurisdiction and the defendants' submissions on this notice of motion).

11 Secondly, there was a serious conflict of authority between the approach in Bailey and in cases such as ADI Limited v Environmental Protection Authority (2000) 118 A Crim R 335 (in particular at [13] to [19]) which applied s 417A of the Crimes Act (or its predecessor provision) and High Court authority including United Telecasters and Chugg v Pacific Dunlop. Moreover, Bailey itself referred to Director General of Department of Land and Water Conservation v Pye [1998] NSWLEC 292. This reference followed the abbreviation "cf". Yet Lloyd J applied High Court authority in Pye to reach the conclusion that the defendant carried the burden of proving, on the balance of probabilities, that clearing fell within the exemption in Sch 3 subcl (j) of SEPP 46. This appeared to be in direct contrast to the approach in Bailey at [30] - [31] to the effect that, subject to a possible evidential burden on the defendant, it was for the prosecutor to negate the application of s 12 and SEPP 46 beyond reasonable doubt.

12 Thirdly, a stated case under s 5AE was of a different character from an appeal. The procedure in s 5AE could be invoked at any time before the completion of proceedings (Environment Protection Authority v Land and Environment Court (NSW) (2004) 134 LGERA 140). The procedure did not require a decision by the inferior court because the purpose was to enable the judge of the inferior court to obtain advice from the superior court (see the explanation of the predecessor provisions to s 5AE in Young v Campbell (1948) 49 SR (NSW) 103 and R v Diakakis (1952) 53 SR (NSW) 15 at 18 - 19). A stated case, however, should not involve hypothetical questions (Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361 at 365; Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at [11] - [12]; Director of Public Prosecutions Reference No 1 of 1999 (1999) 128 NTR 1; (1999) 105 A Crim R 489; Director of Public Prosecutions v G (1999) 85 FCR 566; R v Nixon (2000) 181 ALR 747 at [1], [63] and [66]).

13 Fourthly, the balance of convenience and the administration of justice favoured use of the case stated procedure at this stage to resolve the questions of law. Otherwise, the Director-General would be faced with the choice of either preparing evidence negating each of the exclusions and exemptions or taking the gamble that its position (namely, Bailey was wrong and the defendants had the burden of proving application of any exclusion or exemption identified in the proposed questions on the balance of probabilities) ultimately would be vindicated. If the Director-General adopted the first course (which senior counsel foreshadowed the Director-General would not, having regard to his advice) it would involve substantial inconvenience, delay and cost. If the Director-General adopted the second course then the question of the burden of proof would inevitably arise given the defendants' position. The Director-General would have to invoke the case stated procedures at that time. At that time, however, if the Director-General's position were not ultimately vindicated, the defendants may claim that an application to adduce further evidence negating the exclusions and exemptions involved splitting the prosecutor's case in breach of the requirements in R v Chin (1985) 157 CLR 671. The only difference between a case being stated immediately and at some later time was the inconvenience, delay and cost likely to arise by deferring resolution of the questions of law. Accordingly, there was utility in the case being stated to the Court of Criminal Appeal immediately. 14 Finally, it was no answer for the defendants to point to parts of the Director-General's evidence filed and served (specifically paragraphs 45 - 55 of the report attached to the affidavit of Dr Michael Olsen sworn 11 October 2007). That evidence was prepared in order to meet certain foreshadowed defences and not because the Director-General considered that the exclusions and exemptions in the Native Vegetation Conservation Act constituted negative elements of the offence. Contrary to the defendant's submissions, the questions involved issues of law. Factual findings by the trial judge were not required.

15 The defendants submitted that it was not a function of the Land and Environment Court (or, presumably, the Court of Criminal Appeal) to give an advice on evidence to the Director-General. The proceedings had been commenced in December 2005 and related to actions alleged to have occurred in the latter half of 2003. The fact that the Native Vegetation Conservation Act specifies circumstances in which an offence will and will not have been committed is unremarkable. The sections referred to by the Director-General in the proposed questions of law are simply part of the statutory scheme. The defendants have no obligation to make concessions on that account. The real issue with respect to this belated application by the Director-General is whether the Court of Criminal Appeal wants to give the Director-General an advice on evidence and, for its part, whether this Court wants to be involved in the process. The defendants submitted that the courts would not do so.

16 Further, there was no hearing of the proceedings so as to enliven s 5AE(1). This Court had not made or been called upon to make any ruling on the burden of proof. The inconvenience, delay and cost referred to by the Director-General (if correct) were nothing more than a consequence of the statutory provisions. The defendants did not accept that the proceedings would necessarily suffer from less delay by reason of adopting the Director-General's procedure. Both parties, not merely the Director-General, would be affected by delay. It was not clear that the questions could or should be answered outside a particular factual context. In Bailey there was an agreed statement of facts. Finally, and contrary to the Director-General's submission, it was by no means self evident that Bailey was wrong.

17 The defendants' opposition to the orders is sound.

18 It is true that s 5AE operates at any time before the conclusion of the hearing. Nevertheless the purpose of the provision is to provide the trial judge with assistance in coming to a decision (Budget Nursery Pty Ltd v Commissioner of Taxation (Cth) (1989) 42 A Crim R 81 at 82, cited in Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 166). Providing a trial judge with assistance is one thing. Relieving a prosecutor of the burden of making a potentially difficult forensic decision is another.

19 The relevant passage from Budget Nursery referred also to R v Dittmar [1973] 1 NSWLR 722 at 725. This reference raises a related issue - namely, whether the questions, at this time at least, are questions "arising at or in reference to the proceedings" within the meaning of s 5AE. At 725 Nagle J disavowed the suggestion that R v Jesson [1973] 1 NSWLR 726 stood for any general principle that a case could only be stated at the conclusion of the evidence. However, he reiterated the significance of the observations of Isaacs J in The Australian Commonwealth Shipping Board v The Federated Seamen's Union of Australasia (1925) 36 CLR 442 at 450 - 451. Isaacs J said that a question "arises" when it is necessary to enter into a legal determination of the matter on the facts stated. A question does not arise merely because it may arise later. The latter would offend the "non-hypothetical rule". The cases cited by the Director-General support this fundamental prescription.

20 The orders sought in the Director-General's notice of motion offend the non-hypothetical rule. A question does not arise within the meaning of s 5AE by reason of a foreshadowed forensic decision of a party to proceedings. Many questions (whether they be of law or otherwise) arise for parties contemplating or involved in proceedings. There is a difference between questions arising for a party and questions "arising at or in reference to the proceedings". A party cannot convert a question that does not arise in the relevant sense into one that does arise by asserting that it is likely to make one forensic decision as opposed to another.

21 There are strong indicators supporting this conclusion. (1) The questions as framed are in the most general terms. (2) The questions might only arise in the future if the Director-General makes a particular forensic decision. (3) This decision is within the sole control of the Director-General. (4) The outcome of this notice of motion might itself affect this decision. (5) The first order sought (namely, that a judge be allocated to hear the proceedings) is possible having regard to s 30 of the Land and Environment Court Act 1979, but involves a contrivance. Neither the substantive proceedings nor any separate question has been fixed for hearing within the meaning of s 252 of the Criminal Procedure Act 1986.

(6) The effect of the orders sought in the notice of motion would bypass the trial judge altogether. If the questions were referred and the present advice to senior counsel for the Director-General vindicated, then the trial judge will never have to deal with the questions. If the advice is not vindicated, then (presumably) the question will also never arise because the Director-General will have to prepare the evidence. Either way, at least at this time, the advice is to the Director-General and not to the trial judge to assist in reaching a decision.

(7) The questions may not in fact become determinative of the outcome of the proceedings. Much will depend on the course of the proceedings (which cannot be anticipated at this time).

(8) The motion can be tested against the approach this Court would take to an application for determination of the questions separately from the hearing. The proper response would be to decline to do so on the basis that it is for the Director-General to make his or her own forensic decisions.

22 None of these observations offend the decision in Environment Protection Authority v Land and Environment Court (NSW). That case principally concerned a question whether proceedings had been concluded within the meaning of s 5AE. Declining to make the orders sought in this matter, as the Director-General accepted, cannot be characterised as in any way frustrating "the only right of the prosecution to test the judge's findings on questions of law where otherwise it was proposed to decide the case in favour of the defendant" (at [57]). As noted, there has as yet been no occasion in this matter calling for any finding by a judge with respect to the questions in the notice of motion.

23 Accordingly, the questions do not fall within s 5AE of the Criminal Appeal Act as they are not questions of law "arising at or in reference to the proceedings".

24 If, contrary to my conclusion, s 5AE is available in these circumstances then the same considerations weigh strongly against any exercise of discretion in favour of the Director-General and provide an independent basis for declining to make the orders sought. Specifically: (1) Preparing evidence to negate each and every exclusion and exemption may well involve substantial cost and inconvenience and, perhaps, some delay. Whether the Director-General wishes to take that course or not is a matter for the Director-General. Consistent with the defendants' submissions, the fact that the Director-General might be confronted with this decision is a consequence of the statutory scheme creating the offence. (2) The difficulty presented by the proposed procedure is that it involves a request for judicial advice to assist the Director-General. Depending on the outcome, this advice might or might not relieve the Director-General of the burden of preparing certain evidence. Irrespective of the outcome, the questions of law (although no doubt pressing for the Director-General) remain hypothetical. The criteria of utility, saving time, cost and delay (invoked by the Director-General in support of the notice of motion) pre-suppose that the questions for resolution in fact arise. Resolution of many hypothetical questions may satisfy these criteria but the courts, nevertheless, will not entertain the questions. (3) The other submissions made on the Director-General's behalf do not weigh sufficiently against these considerations so as to warrant making the orders sought. The observations in Bailey at [30] and [31] were described in [32] as "of only peripheral import" because there was an agreed statement of facts. The procedures in s 5AE of the Criminal Appeal Act will be available if and when the trial judge is faced with a serious conflict of authority potentially determinative of the proceedings and makes a decision relating to that issue. At that time (but not before) the questions will arise at or in reference to the proceedings within the meaning of s 5AE. The exclusions and exemptions in the Native Vegetation Conservation Act, although wide ranging, were part of the statutory scheme from the outset. Many (but not all) involve what can reasonably be described as formal matters concerning the location and status of the land. The proceedings have not been fixed for hearing. The Director-General can apply to extend the timetable for the filing and service of further evidence if so minded. All of these factors weigh against the making of orders as sought.

25 For these reasons, the notice of motion is dismissed. Costs may be argued.

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