Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited

12 LGERA 1 Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406 Jones v Dunkel (1959) 101 CLR 298 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Krakowski v Eurolynx Properties Limited [1995] HCA 68; (1995) 183 CLR 563 Lennard's Carrying Co Limited v Asiatic Petroleum Co Limited [1915] AC 705 Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 168 LGERA 59 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387 Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550 Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 Texts Cited: Criminal Trial Courts Bench Book, Judicial Commission of New South Wales, Sydney, 2002 Macquarie Dictionary, 5th ed (2009) Macquarie Dictionary Publishers Pty Ltd (electronic resource) S Odgers, Uniform Evidence Law, 9th ed (2010) Thomson Reuters D Ross QC, Ross on Crime, 5th ed (2011) Thomson Reuters ABC of Evidence, LexisNexis Australia (electronic resource) Category: Principal judgment Parties: Director-General, NSW Department of Industry & Investment (Prosecutor) Mato Investments Pty Ltd (First Defendant) Ian Charles Bennett (Second Defendant) Dzeladin Ceman (Third Defendant) James Lawrence Coomes (Fourth Defendant) Representation: Mr I Lloyd QC with Mr T Howard (Prosecutor) Mr J Webster SC with Ms M McMahon (First and Third Defendants) Ms A Pearman (Second Defendant) Mr C Ireland (Fourth Defendant) Crown Solicitor's Office (Prosecutor) Neville & Hourn Legal (First, Second and Third Defendants) Moray & Agnew (Fourth Defendant) File Number(s): 09/50052-5, 09/50056-9, 09/50060-3, 09/50064-7

Introduction 1The four defendants are all charged with three offences each under the Fisheries Management Act 1994 (the FM Act) relating to destruction of habitat of an endangered species of fish, a vulnerable species of fish and an endangered ecological community. All defendants are also charged with an offence under s 125 of the Environmental Planning and Assessment Act 1979 (the EPA Act) of carrying out development forbidden by s 76A(1)(b) of the EPA Act. The Second Defendant (Mr Bennett) and the Third Defendant (Mr Ceman) are directors of the First Defendant, Mato Investments Pty Ltd (Mato). The Fourth Defendant (Mr Coomes) was an independent consultant employed as a project manager by Mato. The defendants have pleaded not guilty to all of the charges. Mato and Mr Ceman were represented by the same counsel. Mr Bennett and Mr Coomes were each separately represented. All the defendants have been tried together and to the extent that evidence was common to all charges that common evidence applied to each of the defendants.

Cause damage to habitat of ecological community (Mato 09/50052, Bennett 09/50066, Ceman 09/50059, Coomes 09/50062) 2The defendants are charged with contravening s 220ZD(1) of the FM Act in that they did by an act or omission cause damage to habitat (other than critical habitat) of a threatened ecological community knowing that the area concerned was habitat of that kind. This threatened ecological community was an endangered ecological community listed in Pt 3 of Sch 4 to the FM Act and described as the "Aquatic ecological community in the natural drainage system of the lower Murray River catchment (as described in the recommendation of the Fisheries Scientific Committee to list the ecological community)" (the lower Murray EEC). The waterways in, on or adjacent to the property known as "Kunanadgee" at Lot 4 in DP 753732 including the Murray River, an unnamed creek on the property and the Big River Billabong comprised habitat for the lower Murray EEC and this habitat was damaged by the removal of snags and woody debris during the period 5 October 2007 to 16 October 2007. 3Mato was at all relevant times the proprietor of Kunanadgee and was constructing an eco-tourist resort on Kunanadgee pursuant to a development consent granted by Corowa Shire Council (the Council) in relation to development application (DA) 2007/56. The summons for Mato states as follows: The defendant through its directors, Ian Bennett and Dzeladin Ceman and through the Project Manager, Jim Coombs instructed a contractor, Michael Hanger, to carry out works on the land, which included the removal of snags and woody debris from the said waterways. Workers retained by Michael, namely Adrian Hanger, Timothy Root and Jeffrey Damen, removed the snags and woody debris from the said waterways between about 5 October 2007 and 16 October 2007 pursuant to the defendant's instructions. The removal of the snags and woody debris from the said waterways contravened condition 16 of the Development Consent. 4Mr Bennett and Mr Ceman are each separately charged as directors of Mato with otherwise identical particulars. Mr Coomes is separately charged as project manager for the eco-tourist resort development who is alleged to have instructed the contractor Mr Michael Hanger to carry out works on the land.

Cause damage to any habitat of threatened fish species (trout cod) (Mato 09/50053, Bennett 09/50065, Ceman 09/50058, Coomes 09/50061) 5The defendants are charged with contravening s 220ZD(1) of the FM Act in that they did by an act or omission cause damage to any habitat (other than critical habitat) of a threatened species knowing that the area concerned was habitat of that kind. This threatened species, trout cod, is listed as an endangered species under Pt 1 of Sch 4 to the FM Act. The waterways, damage to habitat and the acts (not omissions) alleged in the particulars to this charge, are the same as specified in the first offence above.

Cause damage to any habitat of threatened fish species (silver perch) (Mato 09/50055, Bennett 09/50064, Ceman 09/50056, Coomes 09/50060) 6The defendants are charged with contravening s 220ZD(1) of the FM Act in that they did by an act or omission cause damage to any habitat (other than critical habitat) of a threatened species knowing that the area concerned was habitat of that kind. This threatened species, silver perch, is listed as a vulnerable species under Pt 1 of Sch 4 of the FM Act. The waterways, damage to habitat and the acts (not omissions) alleged in the particulars to this charge, are the same as specified in the first offence above.

Fisheries Management Act 1994 7The relevant sections of the FM Act follow. Section 4 "Definitions" defines habitat as: any area occupied, or periodically or occasionally occupied, by fish or marine vegetation (or both), and includes any biotic or abiotic component. 8Part 7A "Threatened species conservation", at s 220A outlines the objects of this part of the FM Act: (a) to conserve biological diversity of fish and marine vegetation and promote ecologically sustainable development and activities, (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities of fish and marine vegetation, (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities of fish and marine vegetation, (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities of fish and marine vegetation is properly assessed, (f) to encourage the conservation of threatened species, populations and ecological communities of fish and marine vegetation by the adoption of measures involving co-operative management. 9Section 220B "Definitions" relevantly defines the following terms: ecological community means an assemblage of species of fish or marine vegetation (or both) occupying a particular area. endangered ecological community means an ecological community specified in Part 3 of Schedule 4. endangered species means a species specified in Part 1 of Schedule 4. endangered species, populations and ecological communities means species, populations and ecological communities specified in Schedule 4 and endangered species, population or ecological community means a species, population or ecological community respectively specified in that Schedule. key threatening process means a threatening process specified in Schedule 6. threatened ecological community means an ecological community specified in Part 3 of Schedule 4, Part 2 of Schedule 4A or Part 2 of Schedule 5. threatened species means a species specified in Part 1 (Endangered species) or 4 (Species presumed extinct) of Schedule 4, Part 1 (Critically endangered species) of Schedule 4A or Part 1 (Vulnerable species) of Schedule 5. threatened species, populations and ecological communities means species, populations and ecological communities specified in Schedules 4, 4A and 5 and threatened species, population or ecological community means a species, population or ecological community respectively specified in any of those Schedules. threatening process means a process that threatens, or that may threaten, the survival or evolutionary development of species, populations or ecological communities of fish or marine vegetation. vulnerable ecological community means an ecological community specified in Part 2 of Schedule 5. vulnerable species means a species specified in Part 1 of Schedule 5. 10The definition of threatened species, the subject of eight of the offences, includes endangered and vulnerable species. Part 7A Div 2 s 220C provides for the listing of endangered species and endangered ecological communities and key threatening processes in the schedules to the FM Act. The Fisheries Scientific Committee (the Committee) is constituted under Div 9. It can amend the lists provided for in s 220C under s 220D. "Threatened species, populations and ecological community" is defined in s 220B as those specified in any of Sch 4, 4A and 5. Under s 220F(3) a species is eligible to be listed as endangered if in the Committee's opinion: (a) it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and (b) it is not eligible to be listed as a critically endangered species. 11Under s 220FB(3) an ecological community is eligible to be listed as an endangered ecological community if in the Committee's opinion: (a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and (b) it is not eligible to be listed as an endangered or critically endangered ecological community. Schedule 4 "Endangered species, populations and ecological communities" relevantly identifies the following: Part 1 Endangered species ... Maccullochella macquariensis (Cuvier) trout cod Part 3 Endangered ecological communities Aquatic ecological community in the natural drainage system of the lower Murray River catchment (as described in the recommendation of the Fisheries Scientific Committee to list the ecological community) ... 12Under s 220F(4) a species can be listed as vulnerable if in the Committee's opinion: (a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and (b) it is not eligible to be listed as an endangered or critically endangered species. Schedule 5 "Vulnerable species and ecological communities" relevantly identifies the following: Part 1 Vulnerable species ... Fish Bidyanus bidyanus (Mitchell, 1838) silver perch 13Under s 220FC the Committee can list a key threatening process if in the Committee's opinion it adversely affects threatened species, populations or ecological communities, or it could cause species, populations or ecological communities to become threatened. 14Schedule 6 "Key threatening processes" relevantly identifies: Removal of large woody debris from New South Wales rivers and streams 15Part 7A Div 4 "Offences" includes s 220ZD "Damage to habitat of threatened species, population or ecological community" which provides: (1) A person must not, by an act or omission, do anything that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community if the person knows that the area concerned is habitat of that kind. Maximum penalty: 1,000 penalty units or imprisonment for 1 year, or both. (2) In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community, it is to be conclusively presumed that the person knew that the land concerned was habitat of that kind if it is established that: (a) the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979 , or an approval to which Part 5 of that Act applies, was required but not obtained, or (b) the act or omission constituted a failure to comply with any such development consent or approval. 16Part 7A Div 4 "Offences" includes s 220ZD "Damage to habitat of threatened species, population or ecological community" which provides: (1) A person must not, by an act or omission, do anything that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community if the person knows that the area concerned is habitat of that kind. Maximum penalty: 1,000 penalty units or imprisonment for 1 year, or both. (2) In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community, it is to be conclusively presumed that the person knew that the land concerned was habitat of that kind if it is established that: (a) the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979 , or an approval to which Part 5 of that Act applies, was required but not obtained, or (b) the act or omission constituted a failure to comply with any such development consent or approval. 17The particulars of the FM Act offences refer to the removal of snags and woody debris from the waterways. There is no definition of snag in the FM Act. The recommendation of the Committee to list removal of large woody debris from rivers and streams as a key threatening process under Sch 6 of the Act states in par 2 that large woody debris has been considered as a hazard to river navigation giving rise to the name "snags". The terms are interchangeable and there is no suggestion to the contrary from the parties. I refer to snag removal for much of the judgment on the understanding that includes large woody debris.

Elements of Fisheries Management Act offences 18According to the case particularised in the summonses, the Prosecutor must prove beyond reasonable doubt that each defendant did the acts particularised which caused or resulted in damage to any habitat of the lower Murray EEC or of trout cod or of silver perch knowing that the area concerned is habitat of these kinds. The elements of the offences which the Prosecutor must prove are firstly, that snags were removed in the offences period (Part A), secondly, damage to specified habitats was caused by snag removal (Part B), thirdly, that the defendants did acts which caused that damage (Part C) and fourthly, the defendants caused the damage knowing that the area was habitat when the damage was caused (Part D).

A. Element of offences - snag removal occurred during offences period

Evidence of snag removal at Kunanadgee 19The Prosecutor read the following affidavits: affidavit of Mr Potter, Fisheries Officer, dated 22 September 2009; affidavit of Mr Tilbrook, Fisheries Officer, dated 22 September 2009; affidavit of Mr McBurnie, Recreational Fisheries Manager, dated 22 September 2009; affidavit of Mr McHugh, Health and Building Surveyor of the Council, dated 10 November 2009; and affidavit of Mr Lee, the complainant, dated 30 September 2009, as evidence establishing that snag removal occurred in the offences period.

Mr Lee 20The complainant, Mr Lee, is familiar with the stretch of the Murray River between river chainage markers 2042km and 2046km and that the property fronting onto the River along this stretch is known as Kunanadgee. He has fished in this stretch about 15 times over the past five years and frequently caught juvenile fish. On 16 October 2007 after receiving a call from a fellow Southern Riverina Hunting Club member, Mr Lee called the Department of Industry & Investment (the DII) information hotline and had a conversation with a woman. On 17 October 2007 Mr Lee received a phone call from Mr Potter and provided details of the section of the Murray River where the de-snagging took place. On 18 October 2007 Mr Lee and his wife travelled by boat between river chainage markers 2040km and 2046km and took approximately 94 photographs of piles of timber on top of the riverbank, marks on the riverbank and scrape marks on nearby trees. These photographs were exhibited to his affidavit. Mr Lee saw heavy machinery working on Kunanadgee and large piles of logs and timber lying along the banks. Logs which had previously been in the water and vegetation that had been on the banks along this stretch were no longer there.

Mr Potter 21Mr Potter is a fisheries officer who has been employed by the DII for a period of nine years. He is the principal investigator in this matter. On 16 October 2007 Mr Potter received an internal information report stating that logs were being removed from the Murray River at a lagoon adjacent to Kunanadgee. On 17 October 2007 Mr Potter conducted a vehicle patrol of the Big River Billabong adjacent to Collandina State Forest and saw two stockpiles of large woody debris on Kunanadgee about 100m from the Kunanadgee/Collandina State Forest boundary fence. He saw watermarks, clay and silt consistent with large woody debris, commonly known as snags, that had been recently submerged by water. On 19 October 2007 Mr Potter telephoned Mr Parr and subsequently received by email a copy of a notice of determination of a development application (notice of determination) for DA 2007/56 which related to the development of an eco-tourist resort at Kunanadgee and had been applied for by Mr Bennett. 22Mr Potter conducted a vessel patrol of the Murray River adjacent to Kunanadgee on 23 October 2007. Between river chainage markers 2042km and 2046km he saw drag marks, small pieces of woody debris and upturned riverbank clay on the riverbank. On the top of the riverbank he saw stockpiles of snags located on Kunanadgee. When inspecting a wetland located on the northeastern portion of Kunanadgee on foot Mr Potter saw snag stockpiles next to a track. He walked the banks of an unnamed creek which passes through the southern portion of Kunanadgee and saw numerous stockpiles on both sides of the creek. 23On 24 October 2007 Mr Potter conducted another vessel patrol of the Murray River adjacent to Kunanadgee in the company of Mr McBurnie and Mr Clipperton, conservation manager of the DII. They inspected on foot a very large stockpile consisting of farm woody debris and snags located in the middle of a paddock on Kunanadgee. It was about 200m north of the middle section of the unnamed creek. On the woody debris he saw varying degrees of silt, clay, bio-film, watermarks, fragmites, mussels and old fishing line, which identifying factors are consistent with snags having been recently submerged by water. He saw grab marks along the trunks of the snags which appeared to have been made by a log-grabbing excavator, and vehicle and excavator tracks leading to and away from the stockpile. From the vessel Mr Potter conducted a video recording of riverbank disturbance adjacent to the Murray River on Kunanadgee (exhibit B). He saw a total of 32 sites of riverbank disturbance between river chainage markers 2042km and 2046km and recorded a conservative estimate of the width of riverbank disturbance at each site. He saw drag marks on the riverbank, upturned riverbank clay and small pieces of woody debris located at each site. Mr Potter inspected the top of the riverbank from river chainage marker 2046km and saw ten snag stockpiles consisting of either one snag or many together. He measured the snags exceeding 3m in length and from 0.30m in diameter located in each stockpile. Each site had varying identifying factors consistent with snags which had recently been submerged by water. Mr McBurnie took photographs throughout the patrol and recorded the sites on a Global Positioning System (GPS) unit. 24Mr Potter attended the Kunanadgee homestead on 25 October 2007 accompanied by Mr McBurnie and Department of Environment and Climate Change investigators, Mr Robinson and Mr Whitehead. They met with Mr Bennett, Mr Ceman, Mr Smit and Mr Hanger. Mr Bennett gave Mr Potter a copy of the development application and environmental impact statement submitted for the eco-tourist resort. Mr Potter officially cautioned him and recorded Mr Bennett saying that they wanted to "re-open the tracks as walking tracks", "the tracks were cleared, and a log on the bank was fair game", "the boys went a bit feral" and "it appears as if we have stuffed up". Accompanied by Mr Bennett and Mr McBurnie, Mr Potter conducted a vehicle inspection. Mr Robinson, Mr Whitehead, Mr Ceman, Mr Smit, and Mr Hanger followed in separate vehicles. Mr Potter stopped at various sites adjacent to the Big River Billabong, Murray River and unnamed creek where snags had been stockpiled. During the inspection Mr Bennett said, "I feel sorry for Michael, he conducted the works here. At the end of the day the company takes full responsibility". At the completion of the inspection, Mr Potter spoke to Mr Hanger who said "this wouldn't have happened if I had seen the permit conditions." 25The next day, 26 October 2007, Mr Potter faxed a copy of a stop work order issued by the DII to Mr Bennett who confirmed receipt by return email. On 30 October 2007 Mr Potter conducted a vessel and foot patrol of Kunanadgee in the company of Mr Tilbrook. 26On 2 November 2007 Mr Potter conducted a vehicle patrol of Kunanadgee with Mr McBurnie and inspected the snag stockpiles from about 1km downstream from river chainage marker 2046 to 2042km. He saw two snags in the Murray River with grab marks on the trunks that appeared to have been re-aligned. He saw 27 snag stockpiles consisting either of one or many snags. At each site he measured the snags exceeding 3m in length and 0.30m in diameter located in each stockpile. Each site had varying identifying factors consistent with snags that had been recently submerged by water. Mr McBurnie took photographs throughout the patrol and recorded the sites on a GPS unit. 27On 6 November 2007 Mr Potter conducted a vehicle patrol with Mr Tilbrook and inspected various sites along the Big River Billabong and the unnamed creek. On 8 November 2007 Mr Potter conducted a further vehicle patrol of Kunanadgee with Mr McBurnie and inspected the Big River Billabong about 200m downstream from its off-take from the Murray River. He saw four sites of riverbed disturbance. Mr Potter also inspected the unnamed creek and saw 47 snag stockpiles on the top of the bank on the northern and southern side of the creek. Each stockpile was comprised of either one or many snags. He saw five sites of creek bank and creek bed disturbance. Mr Potter measured the snags exceeding 3m in length and 0.30m in diameter located in each stockpile. Each site had varying identifying factors consistent with snags which had recently been submerged by water. Mr McBurnie took photographs throughout the patrol and recorded the sites on a GPS unit. Mr Potter conducted a vehicle patrol of the wetland located on the northeastern portion of Kunanadgee on 11 November 2007. He took nine photographs of a track through the wetland and an area of at the end of the track adjacent to the Murray River. 28On 12 November 2007 Mr Potter saw Mr McBurnie download a series of waypoints from a GPS unit onto an aerial photograph of Kunanadgee (exhibit A p 724). On that day Mr Potter also conducted a taped record of interview (ROI) with Mr Bennett at the Albury Fisheries office. Mr Tilbrook and Mr Coomes were also present. 29On 4 December 2007 Mr Potter attended Kunanadgee and met with persons from the Commonwealth Department of Environment, Water, Heritage and the Arts (DEWHA) (as it was then known). That day he also conducted a vessel patrol of the River adjacent to Kunanadgee with Dr Harris who was engaged by the DII and the DEWHA. 30On 12 December 2007 and 16 December 2007 Mr Potter conducted taped ROIs with Mr Coomes and Mr Ceman respectively, at the Albury Fisheries office, in the company of Mr Tilbrook. 31On 13 May 2008 Mr Potter compiled a spreadsheet detailing 131 sites of wood stockpiles and/or areas of disturbance along the riverbank including the Big River Billabong and the unnamed creek as identified by numbered sites on the aerial photograph prepared by Mr McBurnie (exhibit A p 724) between chainage markers 2042km and 2046km (identified in Mr McBurnie's evidence below). The spreadsheet includes a detailed description of what each stockpile contained in terms of amount and nature of wood and referred to the state of the ground around the stockpile. Areas of disturbance were also described, identified on the aerial map separately from snag piles. A large number of stockpiles are recorded as having nearby drag marks at the top of the riverbank and at the water's edge. A large number is also recorded as including snags. 32On 5 August 2008 Mr Potter attended Kunanadgee in the company of another Fisheries Officer and measured a snag stockpile located in the middle of a paddock on the property. It was 95m in length and 32m and 30m in width on the southern and northern ends, respectively. It was 3m in height at the highest point. 33Copies of the ROIs (exhibit A tabs 19, 23 and 24), the aerial photograph of Kunanadgee with river chainage markers and indicating the location of snag stockpiles (exhibit A p 724) and the spreadsheet (exhibit A p 1073) were exhibited to Mr Potter's affidavit. The video recording taken by Mr Potter of riverbank disturbance was of the northern bank of the Murray River, commencing roughly at 2042km to 2046km upstream. 34Mr Potter gave oral evidence in chief that it was the Prosecutor's intention to call Mr Michael Hanger as a witness. He was not aware whether Mr Michael Hanger was served with a subpoena and last spoke to him two weeks ago whilst he was overseas, in an unidentified location. At that time Mr Michael Hanger said he was "aware of the subpoena and that he was going to be back in a week's time". Mr Potter has unsuccessfully attempted to contact Mr Michael Hanger on a daily basis for two weeks prior to the hearing. It was his understanding that Mr Michael Hanger was unable to be contacted and would not attend Court.

Cross-examination 35Counsel for Mr Bennett asked whether Mr Potter considered Mr Michael Hanger a major witness in these proceedings because he had conducted two ROIs with him and provided an affidavit from him. Mr Potter replied "Yes" and agreed with counsel's suggestion that Mr Michael Hanger had immunity from prosecution if he became a witness in the proceedings for the Prosecutor. 36Counsel suggested that one of the things Mr Michael Hanger said to Mr Potter during their last telephone conversation was that he would not be appearing in Court and that he indicated to Mr Potter that he was nervous about appearing. Mr Potter said both of those propositions were incorrect. Mr Potter also disagreed with the suggestion that he formed a view that Mr Hanger was reluctant to appear. He agreed with counsel that the two year statute of limitations had passed so that it was too late to charge Mr Michael Hanger. 37In relation to the video recording, Mr Potter agreed that it did not show a comparison with either east or west of the river chainage markers or the other side of the Murray River. 38In relation to an onsite meeting of 25 October 2007 referred to in his affidavit, Mr Potter denied that it lasted two and a quarter hours as suggested by counsel and said it took about an hour, after which they drove around the property. Counsel asked whether Mr Bennett's statements as recorded by Mr Potter were made during the site visit. Mr Potter said to the best of his recollection, they were made at the meeting in the homestead. Counsel took Mr Potter to his one page notes of the meeting (exhibit 6A) which records Mr Bennett saying "tracks cleared were existing and a log on the bank was fair game", "the boys went a bit feral" and "appears as if we have stuffed up". She then compared these with the three and a half page notes taken by Mr Whitehead of the Department of Environment Climate Change (DECC) (as it was then known) (exhibit 7A) and asked Mr Potter to indicate where Mr Whitehead had referred to any of the statements he had recorded during the meeting. Mr Potter was not able to see his comments on Mr Whitehead's record. Counsel suggested that since Mr Whitehead, who took detailed notes of the meeting had not recorded these statements, that Mr Potter was mistaken about anything along these lines might have been said. Mr Potter disagreed because the statements were surprising to him at the time. Mr Potter was surprised that Mr Whitehead had not recorded these statements but he had not discussed it with him. 39Counsel queried why he did not see fit to make a full record of what took place. Mr Potter answered that he was there to investigate matters from his department including to ascertain details and addresses of those in attendance to be able to contact them later for interviews. Mr Robinson and Mr Whitehead were there on behalf of their own departments. Mr Potter wrote down the statements that alarmed him, and names and addresses. He could not recall a lot of details of the day including Mr Bennett making the following statements which had been recorded by Mr Whitehead: "Our intention at the outset was to make this the best eco resort we possibly could", "That's been our brief to Michael. One of the things was to remove dead logs from the tracks" and "There were thousands of dead logs all over the tracks". Mr Potter agreed with counsel that he recalled Mr Bennett having a concern about the clean-up of the site, and preliminary works on the site prior to actually constructing the cabins. Mr Potter disagreed with counsel that Mr Potter's notes were not an accurate record of what was said at the homestead but agreed it was not a full account. Mr Potter also agreed that Mr Bennett had been cooperative with his inquiries throughout the time they have been in contact. 40Counsel put to Mr Potter that it was probable no decision would have been made by the DII to prosecute Mr Coomes without relying significantly on Mr Hanger's evidence. Mr Potter said it was also based on Mr Coomes' and Mr Bennett's ROIs. 41Mr Potter said he had not inspected Kunanadgee or the unnamed creek prior to 17 October 2007. Whilst he had regularly patrolled the Murray River frontage, he could not recall when he last inspected it prior to 17 October 2007. 42Referring to par 6 of Mr Potter's affidavit, counsel suggested that there could be other causes for logs, fallen trees, and woody debris on the property showing indications as having been affected by water damage such as during times of flood. Mr Potter disagreed because there had not been a flood since 2000 and what he saw on the snag stockpile was "reasonably fresh". Counsel said this was an assumption. Mr Potter countered that if the snag stockpiles had been lying there for some time "the rain would have washed it away". He agreed with counsel that he was not suggesting the rain would have washed watermarks away. Mr Potter acknowledged it was possible that the kind of watermarks he saw on the logs on occasions could have resulted from a fallen log having lain in a boggy area or in a pond on the property or having been inundated by flood. Mr Potter did not recall seeing naturally occurring ponds in an area to the north west of the middle snag stockpiles (marked with a gold medallion starting with site 533 on the aerial photograph) but had inspected that area on 17 October 2007. 43Mr Potter did not accept that there were other causes that would result in the watermarking of woody debris and logs lying on the ground particularly in that area because some of the stockpiles were a lot taller than he was and they had watermarks on them whilst the surrounding trees did not. He acknowledged it was a possibility that the mud on the bottom of a log on photograph 547 (exhibit A p 607) could have resulted from it having been buried or embedded in the ground (such as a fence post or a pier) and not necessarily in any waterway on Kunanadgee. He agreed with counsel that he could not identify the origin on the aerial photograph (exhibit A p 724) of that log, any of the logs in photograph 548 (exhibit A p 607) or on p 608. Mr Potter similarly agreed that he could not identify the point source location of any of the logs in the middle snag stockpiles designated at sites 533 to 544, which he opined in his affidavit as being from the unnamed creek (par 17 - 18) and that they could have been from the unnamed creek or the Murray River. Mr Potter accepted that in terms of tracks leading away from the middle stockpile sites 533 to 544 (mentioned in his affidavit at par 17 - 18), there were tracks not only heading towards or from the unnamed creek, but from other areas and other waterways on the property. Given that Mr Potter had not inspected Kunanadgee prior to 5 October 2007, counsel challenged that he could not rule out the possibility that there were significant stockpiles of farm debris and collected wood at that location in stockpiles prior to 5 October 2007. Mr Potter responded that from his experience he has a good idea of the difference between farm debris, woody debris and submerged woody debris and he did not believe that what he has identified as snags were located there before that time. 44In relation to par 17 of his affidavit Mr Potter was asked whether he counted the number of logs or root boles in that middle snag stockpiles (sites 533 to 544). Mr Potter said he was "asked to give a conservative estimate and ... go to the property to count them for a remediation for something that the company Mato was working with in another part of my department". He engaged in a counting exercise but could not recall the number. He said there were too many logs that he would classify as farm woody debris in the middle snag stockpiles to count. 45Referring to the photograph at the bottom of p 601, photograph 536, depicting a log with a lighter orange coloured mark which Mr Potter suggested in his affidavit (at par 18) had been made by a "log-grabbing excavator implement", counsel asked whether Mr Potter had subjected the mark to any kind of scientific testing. Mr Potter said he could only refer to his experience of a similar work-nature as an employee of Murray Irrigation Pty Ltd. He acknowledged that it was an allegation and he could neither identify which particular piece of machinery inflicted the mark nor when it was inflicted. These responses, Mr Potter agreed, applied to every alleged grab mark or damage mark on the logs shown in the photographs (exhibit A p 600 - p 609).

Mr Potter's consideration of whom to charge (Mr Smit) 46Mr Potter met Mr Smit at Kunanadgee on 25 October 2007. He recorded Mr Smit's presence in his notes of the meeting and as part owner of Kunanadgee. Mr Potter knew Mr Smit was a guarantor of Mato and the partner of Mr Ceman's daughter. He also acknowledged that at least by 16 December 2007 he knew Mr Smit had attended and inspected the property with a key person of interest, Mr Michael Hanger, in August or September 2007. Mr Potter did not conduct an ROI with Mr Smit as he was led to believe, through his further interviews with Mr Michael Hanger and Mr Ceman, that Mr Smit was not a person of interest. In hindsight he accepted counsel's proposition that it would have been preferable to interview Mr Smit in order to ensure that his investigation obtained all relevant facts concerning the alleged incidents at Kunanadgee. In the course of making the decision not to interview Mr Smit, Mr Potter did not conduct any background searches or enquiries or speak to anyone. He was confident coming out of the interview with Mr Ceman on 16 December 2007 that Mr Smit was not a person of interest. 47Counsel suggested Mr Potter refused to have an unrecorded discussion with his client, Mr Coomes. Mr Potter could not recall Mr Coomes telephoning him prior to the interview on 13 December 2007 indicating he had information that he was prepared to give in an unrecorded interview. 48Counsel queried whether Mr Potter was confident that in the course of his investigation, every step was taken to ensure that he ascertained all the relevant facts about the alleged incidents before making a decision as to whom to charge. Mr Potter replied he was because he asked each person during their ROIs to answer truthfully and to name all the persons involved in the alleged offence. However, he would have liked to interview Mr Smit.

Re-examination 49Counsel asked what Mr Potter meant during cross-examination (in relation to par 6 of his affidavit) when he said that the area had not flooded since 2000 and the watermarks, clay, and silt he saw on the snag stockpiles were "reasonably fresh". Mr Potter was of that opinion because the silt and the clay were still present on the snag stockpiles, and in some cases, "the silt still had a moist texture or look about it". 50Counsel asked Mr Potter to go through the original photographs (exhibit C) and those in exhibit A and show the tracks that he was referring to as leading from the unnamed creek to areas in a snag stockpile. Mr Potter identified photograph 533 on p 600 of exhibit A, photograph 537 on p 602 of exhibit A, and photograph 547 on p 606 of exhibit A. Mr Potter said the rest of the photographs detail the snag stockpiles more than any tracks on the ground. Mr Potter said he saw the tracks and followed them to the unnamed creek and that they seemed fresh as the grass had been flattened. 51Counsel questioned what Mr Potter meant when he said that from his experience, he thought the snag stockpiles along the unnamed creek were "recent debris". Mr Potter clarified he meant within a two-week period. 52With regard to his observation that the marks on logs in photographs 535, 536 and at the bottom of p 601 in exhibit A were caused by a bulldozer, counsel asked whether Mr Potter had any familiarity with the use of heavy machinery. Mr Potter responded that he worked on his in-law's dairy farm where he used heavy machinery such as backhoes to remove obstacles from irrigation channels to ensure free flow of water onto the dairy farm. He was also employed by Murray Irrigation Pty Ltd as a labourer where he assisted the excavator operator to remove large woody debris that had become stuck on weirs and other irrigation structures.

Mr Tilbrook 53Mr Tilbrook, a fisheries officer, has been employed by the DII for over 25 years. On 30 October 2007 Mr Tilbrook conducted an inspection by vessel of the Murray River adjacent to Kunanadgee with Mr Potter. He saw stockpiles of large woody debris, known as snags, on the Kunanadgee bank of the Murray River between river chainage markers 2046km and 2042km. On a foot patrol he saw numerous other sites of large woody debris consisting of either one or many snags stockpiled adjacent to an unnamed creek running through Kunanadgee. He also saw sites of significant disturbance within and adjacent to the Big River Billabong. Each snag site contained large woody debris with identifying factors consistent with woody debris that had been recently submerged by water including silt, clay, bio-film and watermarks. 54During another site inspection on foot with Mr Potter on 6 November 2007, Mr Tilbrook saw the same piles of snags as he had seen on the previous inspection. He inspected various sites along the Big River Billabong and unnamed creek. He saw a very large site of large woody debris consisting of numerous snags in a paddock adjacent to the unnamed creek. Each site contained large woody debris with identifying factors of silt, clay, bio-film and watermarks, consistent with woody debris that had recently been submerged by water. Mr Tilbrook assisted Mr Potter with the collection and recording of statistical information and photography of some of these sites. The aerial photograph (exhibit A p 724) identifies the individual snag stockpiles on Kunanadgee. 55Mr Tilbrook was present when Mr Potter conducted taped ROIs with Mr Bennett on 12 November 2007, Mr Coomes on 12 December 2007, and Mr Ceman on 16 December 2007. On 15 February 2008, in the company of Mr Andrews, Manager Special Operations of the DII, Mr Tilbrook conducted a vehicle inspection of Kunanadgee. He saw the same stockpiles of large woody debris or snags on the bank of the Murray River between river chainage marker 2046km and river chainage marker 2042km. He saw the same sites of large woody debris consisting of either one snag or many snags stockpiled together adjacent to an unnamed creek running through Kunanadgee that he had seen on his previous inspections. He also saw the same sites of significant disturbance within and adjacent to the Big River Billabong that he had seen on his previous inspections. He saw the same very large site of large woody debris consisting of numerous snags in a paddock adjacent to the unnamed creek that he had seen on his previous inspections. He saw that each site contained large woody debris with identifying factors of silt, clay, bio-film and watermarks, consistent with woody debris that had recently been submerged by water that I had seen on his previous inspections. [A summary of Mr Tilbrook's oral evidence including cross-examination is not necessary.]

Mr McBurnie 56Mr McBurnie has been employed as Recreational Fisheries Manager of the DII for three years. On 24 October 2007 he accompanied Mr Potter and another on a vessel patrol of the Murray River. Between river chainage markers 2042km and 2046km, he saw a number of locations of riverbank disturbance as indicated by small broken pieces of woody debris and drag marks from the water's surface up to the top of the riverbank. He also saw large stockpiles of woody debris on the top of the riverbank in some of these locations. Mr McBurnie photographed the locations (exhibit C, exhibit A tab 13) and recorded the general area of each location as a waypoint on a GPS unit. On the same day, on a foot patrol of a large stockpile of woody debris in the middle of a paddock on Kunanadgee, Mr McBurnie saw that the majority of timber at this location had varying degrees of watermarks, clay, silt, bio-film and rub marks along them. He took photographs of this stockpile (exhibit C, exhibit A tab 13) and recorded its general location as a waypoint on his GPS. Along Hans Creek (that is the old course of the Murray River from river chainage marker 2046km to a point about 1km downstream) Mr McBurnie saw numerous stockpiles of woody debris. The majority of timber had varying degrees of watermarks, clay, silt, bio-film, mussels, fragmites and rub marks along them. He took photographs of these stockpiles (exhibit C, exhibit A tab 13) and recorded the general area of each location as a waypoint on his GPS. 57On 25 October 2007 Mr McBurnie was present during a meeting held in the Kunanadgee homestead between Mr Potter, Mr Bennett, Mr Ceman, Mr Smit and Mr Michael Hanger. Mr Robinson and Mr Whitehead of DECC were also present. He accompanied Mr Potter and Mr Bennett on a site inspection of stockpiles of woody debris adjacent to the waters of Kunanadgee. 58On 2 November 2007, Mr McBurnie and Mr Potter conducted a site inspection of Kunanadgee. He took photographs of stockpiles of woody debris adjacent to the Murray River (exhibit C, exhibit A tab 13) and recorded the general area of each photographed location as a waypoint on his GPS. On 8 November 2007, Mr McBurnie accompanied Mr Potter on a site inspection of Kunanadgee and photographed disturbed riverbed locations and stockpiles of woody debris adjacent to the Big River Billabong and the unnamed creek (exhibit C, exhibit A tab 13). He recorded the general area of the locations on his GPS. 59On 12 November 2007 Mr McBurnie downloaded the photographs taken on Kunanadgee onto compact discs and imported the GPS waypoints to the aerial photograph (exhibit A p 724). [A summary of Mr McBurnie's oral evidence including cross-examination is not necessary.]

Mr Adrian Hanger 60Mr Adrian Hanger gave oral evidence in chief that he has been a labourer for Fine Line Building Projects Pty Ltd, which is owned by his brother, Mr Michael Hanger, for 22 - 23 years. As a labourer he conducts a variety of duties including laying tiles, using chainsaws and driving a truck to pick up, clean up and transport items. The company's office is in Boronia, near Melbourne, Victoria. 61Counsel asked Mr Adrian Hanger whether he had spoken to his brother. Mr Adrian Hanger said he had not spoken to his brother for about a week. When he spoke to Mr Michael Hanger he received "the international roaming call" and figured that his brother was "over in the Philippines or in Asia somewhere". 62Counsel asked Mr Adrian Hanger to explain how he came to do work at Kunanadgee during October 2007. Mr Adrian Hanger replied, "One afternoon I was sitting in Michael's office and he was telling me that we had a job to clean up a property up in ... Corowa, I think it is, and that we were going to clean up around the property and all the dead wood and just make it more presentable. That's the first time I've heard about it but I had no idea where it was, and then a couple of months or so later I was there, at Kunanadgee". Mr Adrian Hanger could not recall the exact date this occurred but said it was in either 2007 or 2008. He went up to Kunanadgee alone and once he arrived drove around the property to become familiar with it. 63Mr Adrian Hanger saw "[l]ogs everywhere ... a lot of debris, a lot of dead wood around under the trees ... and a lot of logs in the river". In the vicinity of the unnamed creek he saw "lots of logs in the creek, along the edge of it, lots of ... small sticks and stuff that needed to be cleaned up". Mr Adrian Hanger understood from what Mr Michael Hanger told him to do in relation to logs in that creek and on the banks "was to remove them out of the creek". Mr Adrian Hanger also saw the logs on the banks of the Murray River and into the water and in relation to those he recalled his brother asked him to pull out from the Murray River whatever they could reach as best they could. 64After his drive around the property Mr Adrian Hanger "Went back to the homestead and waited for the machines to arrive." Two persons Mr Adrian Hanger had never met before employed by a company that hauls big machinery arrived with "a rather large swamp dozer and a rather large excavator". The swamp dozer was operated by a person named Tim and Jeff operated the excavator. (That is, Mr Timothy Root and Mr Jeffrey Damon.) Afterward Mr Adrian Hanger drove them "around the property as well to show them what we were supposedly about to venture in doing." He said, " I told them that I had been told by my boss, Michael, that we were going to pull out the logs through the unnamed creek around the edge and remove all the debris in the paddocks and everywhere else. " In relation to the logs in the Murray River he told them "the same thing, to remove the logs, what [they could] reach with [their] machine." Counsel queried what the reach of that machine was into the Murray River. Mr Adrian Hanger replied, " On the banks that were high he could fairly reach everything that was on the bank, when the banks were low he could reach ... 5 or 6 metres out." 65The following day Mr Adrian Hanger and the two workers, Mr Root and Mr Damon, went to the "dam wall which is built over the top of this unnamed creek" and began working "on the bank, the side closest to the house, which would be the northern side." After a couple of hours they "went around the other side and started removing the logs on that side and generally worked along the creek." (The "dam wall" was in the vicinity of gold medallion number 711/712 and they started work around gold medallion number 714 marked on the aerial photograph (exhibit A p 724).) They worked "along the creek towards the east, so it would have been heading towards ... the Murray on the furthest distance away." (That is, toward the left on the aerial photograph (exhibit A p 724).) Mr Adrian Hanger, Mr Root and Mr Damon "worked up the creek on one side for a while and then ... moved around to the other side and did the same thing because he couldn't reach everything from one side." It took them "three or four days to get all the way up the creek." When they got to the end of the creek on the left hand side they "came back and started going ... along the Murray." To the best of his recollection, they started in "the marshland ... and worked [their] way from ... the top of [the aerial photograph] down towards the bottom ... and then worked [their] way around ... the Murray to ... the left again." They could not get right near river chainage marker 2046km because there were too many trees so they started around river chainage marker 592km and "worked down the page [of the aerial photograph]." Mr Hanger continued, "we went through - that heavily treed area is the lower area which is the swamp and we worked towards the open area which is the paddock and then kept going down and around the tree-line down to the bottom." Counsel asked how many days it took to work from in the area of that river chainage marker down around the Murray River to river chainage marker 2042km. Mr Adrian Hanger replied "That was fairly quick a lot of that and it's probably another two or three days to get down towards ... the bottom anyway. The machine was very quick at pulling the [logs] out." 66Counsel queried whether there was anyone else present apart from the three workers. Mr Adrian Hanger said, "No, there was another truck driver came in later ... to move the dirt." In relation to his brother, Mr Michael Hanger, the witness said that he probably came around three to four times during the time they worked on the property, and that the first time was on the day they started the work. Mr Adrian Hanger said, "He arrived ... towards the afternoon, and he then took us all for a drive around the property and basically everything I had told the two operators was exactly what he told them as well." When not present his brother was still giving instructions to the workers, Mr Root and Mr Damon, through Mr Adrian Hanger and if the workers asked him a question he would ring his brother. 67With regard to logs from the unnamed creek area, Mr Adrian Hanger said that once they were pulled out of the creek and from the bank, they were placed in piles along the side of the creek. Counsel enquired whether Mr Adrian Hanger and the workers had any part in putting the woody debris near the area where the words "unnamed creek" appear on the aerial photograph (exhibit A p 724) which has a gold medallion indicating photographs on p 600 to p 609 of exhibit A. Mr Adrian Hanger replied, "Yes. We ... were told from the unnamed creek where the name or the unnamed creek side which I'll call the paddock, everything in that paddock that was dead was to be put into ... a pile in the middle." The woody debris "came from the paddock side of the unnamed creek and from along the - the Big River Billabong area ... Under all the trees, all the way up right up to the front fence and then down the other side. Anything that was ... needed to be cleaned up, which was partially what I was doing as well as the other guys". Mr Adrian Hanger "had a light truck which [they] were putting a lot of the debris in and then [he would] ... go ... and ... tip it in that pile". He clarified that logs and dead stumps that were lying around near where the words the "Big River Billabong" and blue medallions appear on the aerial photograph were taken to the centre medallion. The centre medallion also contained woody debris from the banks and the paddock side of the unnamed creek. Mr Adrian Hanger did not know what was going to happen to the woody debris after they were put in piles. The wood that was taken from the banks or from the Murray River "was just taken out of the river and left in piles down there." 68Mr Adrian Hanger said that he and the workers would commence work around 7:00am - 7:30am and finish around 6pm. They stayed overnight at Kunanadgee. Mr Adrian Hanger said he would keep his brother informed of the progress by calling him every night after work and recalls that owing to difficulties with mobile phone reception, he had to "drive up to the front gate".

Owners 69Mr Adrian Hanger said that the persons whom he was told were the owners also visited Kunanadgee on a Friday and he believed they stayed for a weekend. Mr Michael Hanger also stayed that weekend. Mr Adrian Hanger returned home on Friday night and when he arrived the next week the owners were no longer there. He spoke to his brother before he went home and was told that these persons were the owners. The witness described them as persons who were well-dressed with fancy cars but could not recall their names. When counsel asked whether Mr Adrian Hanger was working when they arrived, he responded that they were pulling logs out of the Murray River. Mr Adrian Hanger said, "their cars weren't suited for the dirt tracks ... so ... I drove them around showing them ... we got to an area which I called "The Beach" at the time. It was just ... a sandbar and that's approximately where [Mr Damon] was, pulling logs out of the water at the time, and he was down there. They saw him pulling logs out of the water there, and then I kept showing them the track that was all the way around the property; taking them back to the house at the end of that." When counsel asked whether those persons said anything when Mr Damon was taking logs out of the Murray River, Mr Adrian Hanger replied "No". He said they were there for approximately 15 minutes because Mr Adrian Hanger "stopped the truck and ... they ... got out, walked around, then climbed back in again." Mr Adrian Hanger continued, "I took them everywhere. ... I drove them straight down, around the Murray [River], and then we came back along the unnamed creek. So they would have seen everything." He said the owners were with him for about half an hour and that his brother was not there. 70Mr Adrian Hanger recalled speaking to Mr McHugh (Council officer) on 16 October 2007 and confirmed that work was still being conducted at that time but most of the work had been done because it was about three weeks after he, Mr Damon and Mr Root had commenced work. They continued to work for approximately a week after Mr McHugh's visit. Council asked whether any cables were being used at that time. Mr Adrian Hanger said, "Very large ones ... there was one log in particular that we just couldn't get out of the unnamed creek... It ended up ... snapping and ... still around the tree ." The witness confirmed that it was the cable depicted in photograph 695 (exhibit A p 679).

Cross-examination 71In cross-examination by counsel for Mato and Mr Ceman, Mr Adrian Hanger confirmed his brother employed him directly, that to his knowledge, his brother was acting as the contractor to carry out the works on the site, and that his brother engaged Lance Smith Excavations Pty Ltd to do the work. He also confirmed that Mr Michael Hanger paid him directly and did not know whether it was his brother, on behalf of the company, who paid Lance Smith Excavations Pty Ltd but imagined the company was paying them. Mr Adrian Hanger added that he had seen Lance Smith Excavation Pty Ltd dockets because once filled out they had to be signed by someone and as he was there, he had probably signed most of those dockets. The workers gave the signed dockets to their boss who would have sent them to Mr Michael Hanger. 72There were circumstances when Mr Adrian Hanger would have to ring his brother, who would, on every occasion that they spoke on the telephone, give directions as to what to do and that when he was at the site he was the one who would determine if something additional had to be done. Mr Adrian Hanger said sometimes his brother would say what he wanted to do and at other times he would say, "I'll get back to you" which Mr Adrian Hanger took to mean that he possibly had to ring someone else or was thinking about it. When asked whether his brother ever said "the owner said to do this or the owner said to do that" with regard to the inquiries Mr Adrian Hanger made, he replied, "No. When he would ring me - he's always busy so it would always be the very shortest answer he can give, so he wouldn't go into detail." Mr Adrian Hanger agreed with counsel that from his knowledge and experience in working with his brother this way, he seemed to have authority to carry out the works on the site. Mr Adrian Hanger said, "I don't get involved in the office side of the business, so he doesn't tell me where the information comes from, he just gives me a scope of works and I go and do it." 73Counsel showed the witness a draft response to a notice under s 486F of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) dated 1 April 2009 issued to Mr Ceman by the DEWHA (DEWHA statutory notice) that was allegedly filled out by Mr Michael Hanger (exhibit 4) and asked him whether he recognised the writing as his brother's writing. Mr Adrian Hanger answered that it was a possibility. 74In cross-examination by Mr Bennett's counsel, Mr Adrian Hanger acknowledged that he was given immunity from prosecution because he was aware that at the time of his ROI, around 17 January 2008, that charges could have been laid against him. He was concerned about that. He accepted that his memory for names has been bad all his life, that the events occurred a long time ago, and that the ROI was about three months after the events. 75With regard to the weekend up at the site when the owners visited, Mr Adrian Hanger remembered that in his ROI he unequivocally said, "Yes" in response to the question "Had the snags been removed by that time?". He agreed with counsel that it was only once he had been given the opportunity to be granted immunity from prosecution that he told in Court that, in fact, the snags had not been removed by the time other people came to the site. Mr Adrian Hanger said that his responses at the time of the ROI may not have been accurate because he was very nervous, did not know what to expect and was "answering questions on adrenalin". He clarified that "most of the snags had been removed, but not all of them because Mr Damon was still pulling snags ... out of the river when they were there. It was basically on the last days or day of pulling snags." He added, "[T]hey still witnessed the machine pulling logs out of the river." Counsel gave him another opportunity to answer the question, emphasising that he had difficulty remembering names of people, could not remember the name of the property, has difficulty with dates, and that he was not comfortable placing the events in a particular year, let alone a particular month. Mr Adrian Hanger again accepted that he had difficulty with names and dates but he had a good memory for other things. 76Returning to the weekend of the site visit, Mr Adrian Hanger acknowledged that he went home on Friday night and was not on Kunanadgee during the weekend, that he did not actually know whether the people who visited were the owners, and that he did not recall for certain how many people visited. Mr Adrian Hanger did recall that he drove some of those people around in his truck. He disagreed with counsel's suggestion that he did not drive all the people around who turned up on that day but he accepted that it was a possibility some of them were not there at that time or had gone elsewhere. 77In re-examination, Mr Adrian Hanger identified that he would have driven around four people.

Mr Damon 78Mr Damon told the Court that he is a Transport Manager and Civil Works Foreman who is employed by Lance Smith Excavations Pty Ltd. He has worked with the owner of that company, Mr Cliff Smith, for approximately 17 years. He knows a person by the name of Tim Root who has worked for Lance Smith Excavations Pty Ltd for about five or six years. At the time of the events, his boss' office was located in Bayswater, Victoria. 79Mr Damon confirmed he worked on Kunanadgee in October 2007. His boss called him into the office, said they have a job in Corowa and asked him if he wanted to do it. He agreed to do the job. He and Mr Root took an excavator with a log grabber and a D6 bulldozer. As the machines are oversize on the roads Mr Damon piloted them up there in his pilot car when they were on the trucks. Mr Root followed. When they arrived at Kunanadgee they "unloaded the machines, helped pack the trucks up and sent them home". He and Mr Root commenced work the next morning. Mr Damon confirmed that Mr Michael Hanger was not at Kunanadgee when they arrived. They received instructions from Mr Adrian Hanger, whom he had never met before. Mr Damon worked on the excavator. Mr Adrian Hanger told him to "start cleaning up the property, pulling logs out of the ... Murray River, out of the unnamed creek" with the log grabber. Mr Damon could not recall how many days this took. He said that it was usual practice when working away from home that they work around 11 - 12 hour days. He recalls one day when they worked until midnight. He picked up the logs with the excavator which has an arm that reaches out to grab the logs and then pulled them out and put them on the bank. Mr Damon estimated that the reach of the log grabber was about 30 feet. If he was not able to pull out a log out of the Murray River he left it there. There were logs that he could not get out of the unnamed creek. Counsel showed him photographs in exhibit A p 679 depicting a snapped cable around a log in the unnamed creek and asked Mr Damon whether he remembers that incident. Mr Damon answered, "We put a cable round that log to pull it out because it was too big for me to handle and I went to start pulling on it to lift it out and it just - the cable snapped." 80Mr Damon could not remember how long he was at Kunanadgee but over the entire period he received instructions from Mr Adrian Hanger and Mr Michael Hanger. Most mornings they were told what to do that day or told to continue with what they were doing the previous day. He also could not recall how long after he arrived at Kunanadgee that he first saw Mr Michael Hanger or how often he visited but recalls that Mr Michael Hanger visited about three times. Mr Damon had not met Mr Michael Hanger before that contract. When he was there Mr Michael Hanger appeared to observe the work that the workers had done or were doing. 81Mr Damon said Mr Root used the bulldozer mostly pushing tracks, forming tracks for vehicles to travel on and cleaning up farm tracks. In relation to the logs in the unnamed creek and in the Murray River it was Mr Damon mainly doing the work. Mr Damon was told he had removed 133 logs from the unnamed creek and the Murray River. 82In relation to visitors, Mr Damon said he thought three or four other gentlemen came up on a weekend, stayed for a night and wandered around the property having a look at what they were doing. They said to him that he was doing a good job and left. He was pulling logs out of the Murray River when they visited. Mr Damon could not recall their names or describe them. 83Mr Damon confirmed the Lance Smith Excavations Pty Ltd document (exhibit F) for work done at Corowa in relation to an excavator conducted by an operator named "Jeff" charged to Mr Michael Hanger was his worksheet. It records that from 5 October 2007 to 13 October 2007 Mr Damon was lifting logs from the Murray River, from 15 October to 17 October he was digging a dam at the front of Kunanadgee and on 18 October 2007 he was digging a dam and "loading logs from creek". These entries were written by Mr Damon and accorded with his recollection of the work he did. By "loading logs from creek" Mr Damon meant to convey that he put the logs taken from the unnamed creek into a dump truck and tipped them on to the middle of the paddock, that is, where medallion numbers 533 and 534 are marked on the aerial photograph (exhibit A p 724). 84When counsel questioned whether anyone had shown him any development consent or conditions whilst he was doing the work, Mr Damon replied, "No".

Mr Root 85Mr Root is an earthmoving contractor/operator who works for Lance Smith Excavations Pty Ltd and has been with that company for approximately seven years. Mr Root identified that the Lance Smith Excavations Pty Ltd timesheet for work at Corowa in relation to a bulldozer in October of 2007 on a job charged to Mr Michael Hanger was for work conducted by him (exhibit G). 86Mr Root said the entry "cleaning logs from the river" probably meant he assisted the excavator, Mr Damon, with pulling logs out of the Murray River when he could not manage because something was too large or too heavy. In those instances Mr Root connected the bulldozer and pulled while Mr Damon lifted and pulled. He used a chain to help him pull. They pulled out logs on the edge of the bank or leaning from the bank into the Murray River. Mr Root confirmed that the photographs depicting a snapped cable around a log in the unnamed creek (exhibit A p 679) was the type of thing he was talking about. He remembered that that particular log could not be removed. 87He said day-to-day instructions came from Mr Adrian Hanger who received them from Mr Michael Hanger. Mr Root confirmed that the former was there for the entire time he worked at Kunanadgee. He had never met Mr Adrian Hanger before his involvement with that job. Mr Root recalls Mr Michael Hanger visited Kunanadgee on a weekend and appeared another time during the day but could not recall exactly when. Mr Root said Mr Michael Hanger observed what was going on. 88In relation to visitors, Mr Root said that on one occasion people who he believed were the directors visited the property, stayed a weekend and watched the workers. He knew they were directors because he met them the night they arrived. Mr Root believed it was Mr Adrian Hanger who told him they were the directors. He recalled that the name of one of them was "Dean or ... Deano" and said he recalled the name "Mr Coomes" which counsel had mentioned to him earlier that day before giving his oral evidence. He did not recall anyone else's names. 89In cross-examination by counsel for Mr Ceman queried whether Mr Root recalled that the person named "Dino" arrived late on the Friday night. Mr Root said "yes". When counsel probed whether it was around 9:00pm or 10:00pm, Mr Root replied that he did not think it was that late but it was possible. 90Mr Coomes' counsel suggested that prior to the Prosecutor's counsel mentioning his client's name, Mr Root had no recollection that Mr Coomes was one of the persons he met on site. Mr Root responded that it was hard to say but that was possibly correct. After dinner on the Friday night (12 October 2007) Mr Root said he "watched a bit of television and went to bed" and recalled speaking to one of the directors who visited but did not know which one and said it might have been Mr Ceman. Mr Root did not recall any conversation after dinner on Saturday 13 October 2007.

Mr Michael Hanger 91Mr Michael Hanger, the independent contractor employed to undertake the work, did not give evidence. The Prosecutor had intended to call him according to Mr Potter's evidence in chief. Mr Potter understood he was overseas where he had tried to contact him in the lead up to the hearing. Mr Hanger was given indemnity from prosecution by the Prosecutor. Mr Potter was cross-examined about his whereabouts and whether he was an important witness (par 35). The Court was told Mr Hanger was not served with a subpoena to appear before going overseas.

Mr McHugh (Council officer) 92Mr McHugh has been employed as a health and building surveyor by the Council for approximately nine and a half years and swore an affidavit filed on 11 November 2009. In response to a request to inspect works that were being conducted at the time, Mr McHugh attended Kunanadgee on 16 October 2007. From the entrance to the property he saw a person on foot collecting wood and another driving a bobcat loader and moving wood with its bucket. In the general vicinity he saw a dump truck and an excavator adjacent to a dam which was under construction. He had a conversation with a person who identified himself the site manager, Mr Adrian Hanger. Mr McHugh informed Mr Adrian Hanger that the development consent for the site contained many conditions including the requirement of a construction certificate prior to the commencement of works. To the best of his recollection Mr McHugh said to Mr Adrian Hanger, "Do not continue any further works until a construction certificate is obtained". He requested Mr Adrian Hanger to have his supervisor call Mr McHugh as soon as possible. Later that day he received a telephone call from Mr Michael Hanger who stated that he was in charge of the works being conducted on Kunanadgee and that the works being undertaken were not in conjunction with the development application for the proposed eco-tourist resort. Mr Michael Hanger said that he was just moving some soil from the front paddock to fill some dips around the house and repairing the road. Mr McHugh informed Mr Michael Hanger that he would pass this information to Mr Parr. On 17 October 2007 after recording the notes of his inspection and conversations with Mr Adrian Hanger and Mr Michael Hanger onto a file record, Mr McHugh passed this file record to Mr Parr. [A summary of Mr McHugh's oral evidence including cross-examination is not necessary.]

Prosecutor's submissions on element of offences that snags removed in offences period 93The evidence that workers retained by Mr Michael Hanger, his brother Mr Adrian Hanger, Mr Root and Mr Damon removed snags and woody debris from the waterways in the offences period is not disputed. Their evidence in time sheets of the number of hours worked and the activities undertaken discloses the extensive work undertaken using an excavator with a 30 foot reach in removing snags from the identified waterways. There is no dispute about the nature of the works undertaken by them. Mr Damon spent most of his working time from 5 to 13 October 2007 pulling logs out the River and the unnamed creek. The number of snags removed from the banks and waters cannot be identified with certainty but the scale of operation is evident from the workers' evidence. The work resulted from instructions given by Mr Adrian Hanger to the workers who was instructed in turn by Mr Michael Hanger. There is no dispute about these instructions. 94During the hearing, attempts were made in cross-examination to cast doubt on Mr Potter's, and Mr Tilbrook's estimates that the majority of snags in the numerous stockpiles along the Murray River appeared to have been removed recently from the River. In final submissions the defendants' counsel did not dispute the Prosecutor's evidence about the fact and extent of snag removal in the offences period.

Element of offences that snags removed established 95That snag removal took place at Kunanadgee in the offences period (5 - 16 October 2007) is confirmed by the extensive evidence outlined above. This includes the evidence of Mr Lee who first reported the removal to the DII hotline on 16 October 2007 and observed from the Murray River a large number of snags on the bank at Kunanadgee on 18 October 2007. The evidence of the investigations of departmental officers Mr Tilbrook, Mr Potter and Mr McBurnie from 17 October 2007 is summarised extensively above and identifies the extent of the snag removal undertaken including in the video evidence viewed by the Court. The number of piles of cleared timber and disturbed areas, represented as gold medallions on the aerial photograph p 724 at exhibit, A is substantiated by their evidence. The aerial photograph (exhibit A p 724) prepared by Mr McBurnie using GPS software identifies 131 snag stockpiles and areas of disturbance along the Murray River and unnamed creek and was not seriously challenged. Nor was the spreadsheet describing these 131 sites of riverbank disturbance and snag stockpiles prepared by Mr Potter on 13 May 2008 successfully challenged. 96Mr Potter inspected the Big River Billabong area by vehicle on 17 October 2007 with other officers such as Mr Tilbrook. He inspected Kunanadgee from the Murray River on 23 October 2007 between 2042km and 2046km and on 29 October 2007 when he identified that a number of snags appeared to have been recently submerged. Further inspections were carried out on 30 October 2007, and 2, 6 and 8 November 2007. A video recording was taken and shown during the hearing which shows the site from the Murray River and the evidence of dragging and disturbance on the bank. Mr Potter was extensively cross-examined about his conclusions about the numbers of snags removed and that the snags were recently removed from the waterways (par 42 - 45). His evidence based on relevant personal and work experience, also confirmed in re-examination, was unshaken in that regard. 97That the work occurred during the offences period is further confirmed by the evidence of the workers. Mr Adrian Hanger explained that he was told to remove logs from the Murray River and the unnamed creek by his brother Mr Michael Hanger (par 62 - 63). The only person he received instructions from was his brother. He stated that several days were spent removing snags from the river and the unnamed creek at his direction by the other workers Mr Damon and Mr Root. His detailed evidence in par 65 identifies by the aerial photograph (exhibit A p 724), including reference to chainage markers, where work along the River was carried out. He gave similarly detailed evidence in relation to the unnamed creek (par 67). The evidence and timesheets of Mr Damon and Mr Root confirm the substantial number of long days (seven) spent removing logs from the Murray River and the unnamed creek. Snag removal work commenced on 5 October 2007 according to Mr Damon's timesheet and took place on 5, 8, 9, and 10 - 13 October 2007. The evidence of the workers Mr Damon and Mr Root is not contested and confirms the extensive work carried out over the number of days in the offences period with an excavator used to remove logs from the waterways specified in the various summonses. 98The Prosecutor has firmly established that a very large quantity of snags was removed in the offences period from the Murray River, including the Big River Billabong, and from the unnamed creek.

B. Element of offences - snag removal caused damage to habitats 99The recommendation of the Fisheries Scientific Committee to list the lower Murray EEC as a threatened ecological community and its listing under Sch 4 Pt 3 of the FM Act is in evidence. 100The fish species trout cod ( Maccullochella macquariensis ) is listed as an endangered species under Pt 1 of Sch 4 to the Act. Trout cod was listed as an endangered species under Sch 4 by enactment of the Fisheries Management Amendment Act 1997 (cl 16 of Sch 1 to the amending Act). The fish species silver perch ( Bidyanis bidyanis ) is listed as a vulnerable species under Sch 5 to the Act. The recommendation of the Fisheries Scientific Committee to list these species is in evidence. 101As to whether habitats were damaged by the snag removal, there are two matters which must be proved. Firstly, whether the Murray River, the Big River Billabong and the unnamed creek were habitat of the lower Murray EEC, silver perch and trout cod. Secondly, whether those habitats were damaged by the removal of snags in the offences period. The Prosecutor and Mr Coomes called expert evidence on these issues.

Dr Harris 102The evidence of Dr Harris, biologist specialising in freshwater ecology and fisheries science, was relied on by the Prosecutor. He swore affidavits dated 18 September 2009, 10 December 2009 and one in reply to Dr Robertson dated 23 February 2011. As detailed in his first affidavit Dr Harris has 32 years experience in his area of expertise including research into management of riverine fish including threatened species and populations and communities in the Murray River. He has held senior research positions within NSW Fisheries and the Co-operative Research Centre for Freshwater Ecology, inter alia. Dr Harris undertook a site inspection of the Kunanadgee area on 4 December 2007 and travelled along the unnamed creek, the Big River Billabong and by boat along the Murray River and along its banks. 103In the report attached to his affidavit dated 18 September 2011 he states his belief that all Murray River freshwater fish require habitat areas at different spatial scales, and silver perch and Murray cod travel large distances. Some of the species would have been living in the vicinity of the site before it was disturbed, and others would have inhabited the area during behaviour associated with spawning and dispersal. There is clear evidence that elements of the lower Murray EEC existed in the River adjacent to Kunanadgee before and after the removal of snags, and that they would have been present at the time of snag removal and also to show the presence of trout cod and silver perch. The River was generally slow-flowing with a range of depths and velocities. Trout cod and silver perch are usually found close to cover and in relatively fast currents especially in deeper water close to the bank. 104The main action causing disturbance was the removal of large quantities of snags from the River, with piles of removed snags occurring frequently along the riverbank. He considered that the majority of visible snags had been removed, as much as 80 - 90 per cent. Because of the general decline in native aquatic species and the limited scope of survey data the abundance and species representation of the community at the site before de-snagging cannot be quantified. Nevertheless, the available information sources are sufficient to enable confident prediction. There is ample evidence that the de-snagging seen will have caused a decrease in the size of local populations through impacts on the site's population-carrying capacity and that this effect will continue until snag abundance and distribution patterns return to previous levels. The snags removed constitute the only suitable hard substrates visible in the area. As many populations are so depleted it is not possible to state with certainty that they existed at the site immediately before de-snagging. The typically wide-ranging distributions of these fish including multiple records of their presence in nearby sites in recent times leads him to the opinion that Kunanadgee would undoubtedly have been occupied, or periodically or occasionally occupied, by some of all or the listed species. The occurrence of silver perch and trout cod in survey data is patchy and infrequent reflecting their threatened status. He concludes that the site in Kunanadgee was undoubtedly well within the historical and current habitat of both species and that they would have regularly been present at this site in the Murray River. 105In his oral evidence Dr Harris stated that silver perch live up to 27 years. Trout cod have not been definitely aged as they are endangered but are closely related to the Murray cod which has been aged as commonly exceeding 50 years. They are migratory species and move over substantial distances for a variety of ecological reasons. Silver perch have been recorded over hundreds of kilometres. Trout cod have been recorded migrating through river reaches. Dr Harris refers to the data collected by Mr Lyon in the intervention reach (identified at par 119 below) where Mr Lyon studied the edge of the River beginning at Lake Hume and running downstream to Lake Mulwala, a distance of about 200km. Fish can migrate past Lake Mulwala using a fish-way. He considers that elements of the lower Murray EEC exist in the River adjacent to Kunanadgee before and after the removal of snags and were present at the time of snag removal. Both the vulnerable silver perch and endangered trout cod have been recorded in the River and adjacent to the Kunanadgee site within tens of kilometres of the site. The habitat in the River adjacent to Kunanadgee is high quality habitat for both species. The recorded sampling have still been found within tens of kilometres of Kunanadgee, a small fraction of their potential regular movement pattern. The two species have a high probability of being present at the site on or about the time of the snag removal and they would have occurred at the site within a period of months or years at the time of the offence. 106Given the definition of the lower Murray EEC, the unnamed creek comes within that description as an anabranch coming off the main River channel and re-entering further downstream. A manmade barrier has been put at the upstream end. It operates functionally as an effluent as it receives water from the River channel in periods of high flow that would dissipate and evaporate during low flows. 107In terms of silver perch and trout cod using the unnamed creek as habitat, the floodplain system of the Murray River comprises a large number of ephemeral habitats which are charged with water in high flows and steadily drain down in low flow periods. The floodplain elements have an important role in food production which are exported to the main River. Adult fish also forage in these places for food when fully charged with water. Importantly such places are key sites for the generation of new populations being critical for the survival of young fish and larvae including silver perch and trout cod. Snags have a number of useful functions, as a hard substrate used for sheltering and protection, and an important location for food as algae growing on the snags attracts insects eaten by fish. They have a hydraulic function in that they generate higher and lower water velocity around them. They have a scouring action which generates deep holes which are important for some of the large animals particularly. They also provide a hydraulic protection in areas of low flow in providing refuge from the flow. Snags provide nesting sites for the species that use that kind of habitat for nesting. 108Fish such as trout cod and silver perch have a home range within which they move. These can be over substantial distances. The juvenile fish undertake a dispersal migration from the central recruitment area that tends to be upstream of an adult habitat. Under natural conditions Dr Harris would expect those two species to be present in this four-kilometre reach all the time. At present they occur nearby upstream and downstream and he expects that some individuals would drift through this site or live at this site on at least a monthly basis. It is difficult to quantify as both species are in badly damaged populations and their numbers greatly reduced from natural levels. 109The speed of water flow is similar throughout this region and Mr Lyon has seen fish up and downstream in this region which will have very similar habitat characteristics for kilometres upstream and downstream except for the impounded waters of Lake Mulwala. 110Dr Harris visited Kunanadgee in December 2007 before snags were replaced as part of the remediation process. He observed that the majority of stockpiled material showed evidence of lengthy submergence. He saw nothing indicating terrestrial material. He considered more snags had come from the Murray River than the unnamed creek, given the size of the piles of snags immediately adjacent to the River and a comparison of these with the distribution pattern of snags on the opposite bank of the River. 111In cross-examination by Mr Coomes' counsel in relation to the probability of the fish being present at Kunanadgee during the offences period (5 - 16 October 2007) Dr Harris said he had great difficulty quantifying it as a percentage. It is very probable that one or both of those species would have been in residence at the time of the snag removal but he cannot say that they were definitely there. He agreed there was a 10 to 15 per cent chance that individuals of one or both species were not there in the offences period. 112In relation to the unnamed creek, this functions as a billabong in low flow periods where the entrance to the unnamed creek would be cut off. Dr Harris considered it remained an anabranch modified by human activity. The block bank converted it from anabranch to a billabong. Dr Harris's opinion was that the flow of water into the anabranch would occur during high flow and would flow out into the River during low flow periods in conjunction with the flooding pattern of the River. He has not obtained the hydraulic data from Lake Mulwala which would allow, with additional measurements, the occasions of high flow to be calculated but as a matter of common sense when the River channel is flowing at a high level it is connected with the bottom end of the unnamed creek. He accepted this process may not have occurred in 2007. 113Dr Harris did not see any fish in the unnamed creek in December 2007 nor did he sample for these. The water was quite turbid. He accepted that there had been no sightings of silver perch or trout cod in the unnamed creek. He considered that as it was habitat that was conducive to accumulations of young fish in the creek at that time, and that snag removal had occurred during their peak spawning period. The early spring period is a crucial time for reproduction of species including silver perch and trout cod. 114When asked about the NSW Department of Primary Industries, NSW Recovery Plan for Silver Perch ( Bidyanus bidyanus ) 2006 (the silver perch recovery plan) which refers to larvae settling in weir ponds and areas of low flow having decreased survival rates due to low dissolved oxygen levels, Dr Harris did not accept that was referring to the unnamed creek but to man-made weirs where there is temperature stratification. There may be some reduction in the year-by-year survival of eggs and larvae but in general the conditions in the unnamed creek ensure the survival of larvae. He would expect to find larvae fairly often and eggs rarely. 115He agreed that the link between silver perch and snags has not been studied in detail but from general ecological studies and hydraulic results the role of snags in generating the food bed and creating a diverse set of hydraulic conditions can be inferred for this species. They are not as strongly drawn to snags as trout cod which are closely associated with them virtually all the time as adults and subadults. Silver perch congregate and use snags and also use open water. 116Dr Harris agreed that the Murray River was a naturally very dynamic system with periods of high flow shifting things around. It is an ongoing process of accumulation of snags as banks erode and trees fall into the River. That is how snags are replenished. He agreed the number of snags would fluctuate in response to the movement of the River channel itself as banks erode and accumulate again. There would be occasional snag inputs from upstream and losses downstream as well as inputs from the banks. During high flow he agreed it was possible the scouring could occur and snags would be largely washed away. It is commonly followed by the input of snags from upstream where the same event may have occurred. 117He agreed that as he undertook a visual inspection there could have been snags embedded in the mud in the middle of the River or in areas of the River that he could not see due to the turbidity of the water. Snags can be detected in high flow as they create eddies in the water. He inspected the opposite bank (Victoria) of the River and made comparisons with the Kunanadgee side. There were a substantial number of snags on the opposite bank. The width of the River at Kunanadgee is 30 to 60m. When asked if the fish relocated when snags were removed to the other side of the River, Dr Harris said this was possible but they would meet other fish on occupied snags and that the average carrying capacity would remain unchanged with some fish leaving. The carrying capacity of an area would increase in accordance with snag density if more are introduced into an area. Fish numbers fluctuate over time depending on snag density. 118Referring to Mr Lyon's data, the total reach is 200km. Trout cod were observed five out the six years since 2004. In terms of silver perch, none were seen in 2004, three in 2005, none in 2006, one in 2007, none in 2008 and one in 2009.

Mr Lyon 119Mr Lyon, research scientist employed by the Victorian Department of Sustainability and Environment, swore an affidavit dated 31 January 2011. He has been leading a team of scientists and technicians undertaking a research project in the Murray River aimed at identifying the impacts of large scale re-snagging on native fish populations. One of the areas of the Murray River studied is the intervention reach between Lake Hume and Lake Mulwala which is about 180km long. Kunanadgee is about 30km from the lake. Snags were removed from the River for a variety of reasons in the past and are being put back in to try and restore native fish populations throughout the Murray Darling Basin. The research involves catching and observing fish species in the intervention reach between 2004 and 2010, the numbers being as recorded in his report. The catching technique used is electro-fishing, a method commonly used for fish sampling. An electric current stuns fish in the water which float to the top for weighing and measuring and identification before returning to the river. It is not 100 per cent efficient and does not result in samples of all fish at a particular location. It is affected by turbidity, flow rate of water, width of river and depth amongst other factors. Larger fish are more likely to be stunned than smaller fish. 120The effectiveness of sampling by electro-fishing has been checked by other methods and it is estimated that about 20 per cent of the fish sample is collected on average. Fish species are differently affected by the electric current. Silver perch appear to be less easily stunned. Cod are more easily stunned and float to the surface. 121Mr Lyon produced two aerial photographs titled snag sampling sites map 02B and 02C which are continuous, and show sites from Kunanadgee east to Corowa. The sampling nearest to Kunanadgee is shown on map 02B Trout Cod. Some sites are sampled every year and some on one or two occasions only. The sites on map 02C have been sampled every year. On map 02B which includes Kunanadgee the sites were sampled in 2004 and different sites in that area in 2006. 122In cross-examination by counsel for Mr Coomes, Mr Lyon stated that electro-fishing is a widely used technique to sample fish populations across the world. There are between 150 and 200 sampling sites in the intervention reach with an average length of about 50 - 80m and 15 - 20m wide. He agreed that meant that a total of about 1 - 2 km of River was sampled in the intervention reach. On map 02B exhibited to his affidavit, site 1944 was the only site where trout cod were found in the general vicinity of Kunanadgee. The study is designed to look at the River at reach scale and compare the intervention reach to other reaches. Mr Lyon was not confidant it could be used to predict the presence of fish in a 4km stretch. In terms of the River frontage, across the 180km intervention reach about 10km, 5 to 6 per cent, has been sampled. Five per cent is regarded as statistically significant. The records demonstrate that about 28 fish species were located in the six years of study from 2004 to 2010. According to the table in exhibit JL1, about six silver perch were located in six years. More trout cod (28) were identified. Out of a total of 71,342 fish caught or observed in the intervention reach in that period, that represents a rate of about 1 per 2,500 for trout cod and 1 per 11,000 for silver perch was found. He agreed that both were extremely rare fish in the intervention reach. The electro-fishing technique is not generally used to identify fish species in billabongs or creeks. 123Mr Lyon was shown photographs of the unnamed creek. In the photographs where the water level is low, he agreed that the chances of finding fish eggs or larvae is quite low. In re-examination he stated that the chances of finding fish eggs and larvae would be greater if the water level was higher. He agreed that the detection of all of the species at Kunanadgee was unlikely with electro-fishing as it has flowing water and is a deep, turbid site. He agreed that three fish dominated the species found with 19 other species located infrequently but present, including trout cod and silver perch.

Dr Robertson 124Dr Robertson, ecologist, swore an affidavit dated 23 September 2010 read by Mr Coomes' counsel. He visited the site on 31 August 2010 during which he inspected a map prepared by the DII showing the locations of snag stockpiles, most of which had been replaced into the Murray River and the unnamed creek on the property by the time of his inspection. For the meaning of damage he uses the Oxford English dictionary meaning of "injury impairing value or usefulness" or "injure so as to diminish value". When evaluating whether there is damage to the habitat of the fish species and/or the lower Murray EEC, the ecological significance of the impact, if any, is a relevant consideration. As habitats are dynamic and changeable any change does not equate with damage. No baseline data about the nature and extent of snags in the Murray River and the unnamed creek immediately prior to the alleged snag removal was available, which introduces substantial doubt into any analysis of the alleged snag removal and whether it damaged habitat as alleged by the Prosecutor. Little information is available about where the snags were taken from on the riverbank, the Murray River and the unnamed creek. Not all snags along or in the Murray River or unnamed creek would have provided good fish habitat and there was no quantification or assessment of the habitat provided by snags and logs before the disturbance. The photographs showing the snags existing at the date of inspection are on the riverine edge of Kunanadgee. Not all would provide habitat for fish where they are on or above the water line, as a large number were. The remaining log piles included mixtures of logs from dry areas and those that may have been immersed in water at an earlier time, as evidenced by their darker, water-stained colours. 125The aerial photograph (exhibit A p 724) shows 38 snag stockpiles along the Murray River, 48 along the unnamed creek, 1 in the open area in the southeast area of Kunanadgee and 3 large stockpiles in the central cleared portion. The latter remain. The highest proportion of stockpiles occurred along the unnamed creek (approximately 52 per cent), the next highest stockpile occurred along the Murray River frontage. To the extent that ecological damage could be said to have occurred to fish habitat, approximately half of that damage occurred within the waters of the unnamed creek. Just less than half would have occurred within the waters of the Murray River (approximately 42 per cent). Snags were seen to be located on the both sides of the Murray River and both sides of the unnamed creek. No snags were removed on the opposite side of the River. Submerged snags would also not have been removed owing to the river depth and also to the turbidity of the water. Dr Robertson considered that substantial snags would remain on the far bank of the Murray River and within the deeper central portion of the Murray River. Despite the absence of any baseline data it is possible to estimate that 50 per cent of snags in the Murray River would have remained immediately after the alleged de-snagging because no snags would have been taken from the far bank or the central portion of the Murray River. 126A higher portion of the alleged snags would have been removed from the smaller, more accessible unnamed creek. The flow in the unnamed creek is slow or negligible as shown in the photographs in Dr Harris' affidavit. No flow was apparent at the time of inspection, the eastern end is blocked and does not connect to the Murray River. By contrast, on the western end of the unnamed creek a shallow but steady flow was evident. The unnamed creek is shallow and dries out. The unnamed creek appears likely to lose its connection with the Murray River during drier times. It is shallow and due to the lack of flow would become very hot and be deprived of oxygen during the heat of summer. It is unlikely habitat for fish species such as trout cod and silver perch. 127While fish surveys have been conducted in the Murray River in the general locality of Kunanadgee, no site-specific survey data exists for the Murray River frontage of the property. There is also no data collected for the unnamed creek. It is therefore difficult to draw any detailed or specific conclusions about the distribution, abundance and habitat usage of the Murray River. 128The conclusions of Dr Harris that the removal of snags has caused damage to the relevant habitats are too absolute given the uncertainties in the available information. The silver perch recovery plan, the NSW Department of Primary Industries , NSW Trout Cod ( Maccullochella macquariensis ) Recovery Plan 2008 (the NSW recovery plan for trout cod) and the Victorian Government Department of Sustainability and Environment, National Recovery Plan for the Trout Cod Maccullochella macquariensis 2008 (the National recovery plan) state that the depth of water and location of snags is likely to be very important in determining fish habitat. There is considerable uncertainty about the role snags play in the life cycle of trout cod and silver perch relative to other elements of their habitat. 129Dr Robertson considered Mr Lyon's data which showed that the probability of either trout cod or silver perch being present in the waters adjacent to Kunanadgee suggests that these are rare in the system and difficult to find along the intervention reach. He considered the area is excellent potential habitat for these species. The fish numbers are affected by a variety of factors including changes to water temperature as a result of the damming of rivers which has curtailed the breeding by fish like silver perch. To say they are present immediately opposite the de-snagging site goes too far. 130In relation to whether larvae of silver perch or trout cod were likely to be in the unnamed creek, Dr Robertson considered it was relatively shallow and lacked flow. There are many gaps in knowledge about the larvae of these species and where they occur in the River system. Many billabongs have large numbers of carp or other introduced species in them. There is no compelling evidence that they are likely to be there. 131The existence of fish in the general region does not confirm their existence at the site. The relatively shallow and slow flow of water in the unnamed creek does not suggest preferred habitat for trout cod and silver perch. The two fish species are rare and use only specific types of habitats in the Murray River. The River adjacent to Kunanadgee and the unnamed creek is not ideal habitat for those two species. 132Dr Harris did not attempt to analyse the snags allegedly removed. While he states that 80 - 90 per cent of visible snags were removed from the River and the unnamed creek, that relates only to the Kunanadgee side of the River, not the opposite bank or those in the middle of the River. Dr Robertson did not agree that the de-snagging would have had a definite impact on the habitat of the fish species as abundant snags otherwise remained. Further, snags are recruited into the Murray River as trees fall over and shed limbs and in times of flood are moved downstream, so that any removed are replenished through natural processes. 133The recovery plans for trout cod and silver perch do not completely support Dr Harris' opinions that de-snagging will cause a decrease in the size of local populations. These stress that there is uncertainty about the roles snags play in the biology of these species. Many factors could impact on these fish species. Given their rarity, one cannot be definite that the alleged de-snagging damaged the critical habitat of either. No site-specific data exists for the Murray River at or near Kunanadgee either before or after the de-snagging. 134Visible snags were available on the opposite side of the Murray River and fish could move to these. Invisible snags below the water in the central channel are also likely to have been left completely untouched so that there were many hard wooden substrates in the River and potentially the deeper holes in the unnamed creek after the de-snagging took place. As Dr Harris observed, many of the populations are so depleted that Dr Robertson considered that a conclusion about their presence immediately before the de-snagging cannot be drawn. Nor can the conclusion be drawn that they occupied all of the allegedly impacted habitats. None of the data suggests the fish species are likely to be in the unnamed creek habitat. 135When microhabitats are considered there is considerable room for doubt about the presence of these two fish species. Trout cod prefer a specific microhabitat or portion of the Murray River and do not occur uniformly throughout the Murray River and its anabranches and billabongs. This variability has not been considered by Dr Harris in his conclusions about the impact of the alleged de-snagging. The National recovery plan for trout cod states the last natural breeding population is at Yarrawonga, downstream of the subject site. The latest research states that the preferred microhabitat of trout cod is likely to be river positions where large woody debris is present in high quantity, close to deep water and high surface velocity further from the riverbank. The recovery plan refers to the impact of de-snagging on prime habitat of adult trout cod towards the centre of the River, close to the deep, fast flowing water. The de-snagging at Kunanadgee in the Murray River and in the unnamed creek was not in such microhabitat areas. 136Silver perch prefer a microhabitat in the Murray River and are not found uniformly throughout the Murray River and its anabranches and billabongs. Dr Harris has not considered the preferred microhabitat of silver perch before arriving at his conclusion about the impact of the alleged de-snagging. The silver perch recovery plan extracts quoted at par 95 - 97 of his affidavit illustrate how rare this fish species is and indicate that silver perch are relatively unlikely to have occupied all areas of the Murray River frontage on the subject site and the unnamed creek. The recovery plan also states that there is limited information about specific habitat requirements of silver perch or the extent to which they depend on snags, inter alia. The reliance upon snags by silver perch and the impacts of snag removal on silver perch habitat are not clearly established, as can be seen in par 5, 6, and 9 of the recovery plan, set out in par 103 - 105 of his affidavit. 137In oral evidence, Dr Robertson viewed the photographs taken by Dr Harris and indicated where he considered a number of terrestrial logs were included in the piles of logs found after the relevant events on Kunanadgee. This comment arose from inspecting the snag stockpiles across the whole property. 138Some native fish use snags as shelter from the current and a source of food. Silver perch are a more open water fish and their life cycle is not tied to snags as they do not attach eggs to logs to breed. Trout cod do use snags in that way, they are also more sedentary and move around logs within a home range. The snags would have provided some sort of food within the habitat for both fish to the extent they were there. No absolute conclusion can be drawn that silver perch was affected by the snag removal. 139In relation to damage to the habitat of the lower Murray EEC, as most of the snags removed have been replaced, the extent of damage is therefore repaired and the de-snagging may not cause any material or persistent damage. 140In cross-examination he agreed he had not considered research work in the Murray River, he is not a fish specialist, and worked as a generalist consultant. He went on a site inspection on 31 August 2010 about three years after the clearing in October 2007. He did not consider that the information provided by the Prosecutor of what was in the snag stockpiles was accurate or objective enough to provide a clear indication of where the snag stockpiles came from and what proportion was fish habitat. By the time he inspected the site some of the logs had been replaced in the Murray River. He agreed that the removal of logs is damaging to habitat with the greater proportion of logs removed the greater the potential to disturb or damage fish habitat. He agreed that the removal of large woody debris impairs the ecosystem service for many species of fish as refuges from predators and interactions between competitors.

Habitat of lower Murray EEC present at Kunanadgee 141The Prosecutor must prove beyond reasonable doubt that habitat of the lower Murray EEC was present at the site at the time of the offences. "Habitat" is defined in s 4 of the FM Act as any area occupied or periodically or occasionally occupied, by fish and/or marine vegetation and includes any biotic or abiotic component. "Ecological community" is defined in s 220B as an assemblage of fish species and/or marine vegetation occupying a particular area. The description of the lower Murray EEC in the Fisheries Scientific Committee recommendation for listing as an EEC includes "all natural creeks, rivers, and associated lagoons, billabongs and lakes of the regulated portions of the Murray River (also known as the River Murray) downstream of Hume Weir, the Murrumbidgee River downstream of Burrinjuk Dam, the Tumut River downstream of Blowering Dam and all their tributaries, anabranches and effluents including Billabong Creek, Yanco Creek, Colombo Creek, and their tributaries, the Edward River and the Wakool River and their tributaries, anabranches and effluents, Frenchmans Creek, the Rufus River and Lake Victoria. Excluded from this recommendation are the Lachlan River and the Darling River and their tributaries, and man made/artificial canals, water distribution and drainage works, farm dams and off-stream reservoirs." Listing of an EEC is provided for by Pt 7A Div 2 s 220FB of the FM Act. 142The Prosecutor submits that each of the waterways specified in the summonses (including the unnamed creek) is within the inclusive description of the lower Murray EEC. The unnamed creek was an anabranch off the main River channel, re-entering further downstream until a man-made barrier was put at the upstream end. This is agreed by Dr Harris and Dr Robertson in their evidence. This element of this offence is established by the Prosecutor.

Habitat of silver perch and trout cod present at Kunanadgee 143The Prosecutor must prove beyond reasonable doubt that the Murray River adjacent to Kunanadgee and the unnamed creek are habitat as defined in the FM Act for trout cod and silver perch as an element of these offences. I will first consider the Murray River adjacent to Kunanadgee (sometimes referred to as Hans Creek in evidence) including the Big River Billabong. The unnamed creek will be considered separately. The meaning of fish habitat under the FM Act is to be considered in light of the Act's objects in relation to threatened species conservation as outlined in s 220A, which includes protecting and promoting the recovery of rare fish species, inter alia. This is achieved in part through the protection of habitat. 144"Habitat" is defined in the FM Act to include an area occupied or periodically or occasionally occupied by fish. The Prosecutor submits that it does not have to prove that individual fish were present during the offences period in the immediate areas of de-snagging. The issue is whether the subject waterways were part of an area occupied, or periodically or occasionally occupied, by the two fish species. 145The definition of habitat in the FM Act in relation to occupation does not require the Prosecutor to establish that members of these species were occupying the immediate area of habitat disturbed during the offences period. Infrequent occupation is sufficient to establish occupation of fish habitat and is encompassed by the words in the definition of habitat of "any area ... occasionally occupied". "Occasionally" means "at times; now and then" according to the Macquarie Dictionary , 5th ed (2009) Macquarie Dictionary Publishers Pty Ltd (electronic resource). Three matters must be determined, firstly, the appropriate area of habitat, secondly, whether habitat exists which these fish species may occupy and, thirdly, whether the fish species "occupy", as defined in the FM Act, that area of habitat. The evidence in relation to these three matters is necessarily overlapping. 146An important consideration is that both species are migratory and move over considerable distances according to Dr Harris. They are also relatively long living with silver perch living up to 27 years and trout cod likely to live for much longer. 147The Prosecutor relies on the research data of Mr Lyon, its interpretation by Dr Harris and Dr Harris' expert opinion to establish that this area of the Murray River is habitat of silver perch and trout cod. Mr Lyon's evidence is that both fish species have been recorded in the intervention reach of the Murray River which included the site during electro-fishing sampling programs conducted over a large area of about 200km over several years (2006 - 2010). The number of these fish species caught in that period is small to very small as was highlighted in cross-examination of Mr Lyon when he stated that the fish, particularly silver perch, were extremely rare and could not be used to confidently predict the presence of fish in a 4km stretch of the River. Questions in cross-examination were directed to whether Mr Lyon's data was statistically significant with about 1 - 2km of a total of 200km sampled. This was considered by him to be statistically significant as about five to six per cent of the River was surveyed and five per cent is statistically important. Mr Lyon also stated that this technique is estimated to sample about 20 per cent of the fish likely to be at a particular site. Estimation of fish numbers using this method is inherently conservative. Dr Harris considers the data that silver perch and trout cod caught within tens of kilometres of the Murray River and Kunanadgee can be the basis for drawing the definite conclusion that the area of the Murray River adjacent to Kunanadgee including the Big River Billabong is habitat for silver perch and trout cod. This data allows in his opinion the definite conclusion to be drawn that these areas are occupied, or periodically or occasionally occupied, by those fish species. As migratory species they will move through long stretches of the Murray River. 148The Prosecutor submitted that the area of habitat in question should not be restricted to the immediate area around a snag on the Murray River adjacent to Kunanadgee (a distance of about 4km) but the wider area of the intervention reach of the Murray River of some 200km (the River between Lakes Hume and Mulwala). I agree that approach is consistent with the evidence of Dr Harris concerning the wide range these fish species require as a migratory species moving over large distances throughout the intervention reach and beyond. This is confirmed by the data of Mr Lyon which records silver perch and trout cod in the intervention reach of the Murray River in data collected over many years. That few were located by Mr Lyon's research efforts reflects their rarity. The area of habitat in this case is the intervention reach of the Murray River of which approximately 4km of River next to Kunanadgee is part. 149Dr Robertson's evidence emphasised the rarity of sightings of the two fish species and sought to minimise the likelihood of these fish species being located in this area adjacent to the site. Further he considered that the microhabitat which silver perch occupy must be considered as that species would not occupy all parts of the River uniformly. Given my finding that the area of habitat is the intervention reach of which the area adjacent to Kunanadgee forms a part, Dr Robertson's focus on habitat is too narrow. The evidence of Mr Lyon and Dr Harris establishes that fish "occupy" as defined in the Act, the area of habitat. 150There was disagreement between the experts as to whether fish habitat existed in the River at the site. Dr Harris gave evidence of the important role snags played as hard substrate in the River with several important functions relevant to fish life cycles. In the life cycles of silver perch and trout cod, snags have an important role in relation to foraging for food, protection from river flow and for breeding, as nesting sites. Dr Robertson did not appear to disagree that snags played an important role in relation to trout cod. The importance of snags as habitat for trout cod is identified in the NSW recovery plan for trout cod (section 4.1 Current issues and threats) which identifies that snags play a critical role in the ecological functioning of rivers and that there is a close association between trout cod and snags which provide a complex and diverse habitat and otherwise identified the same links as Dr Harris' evidence. 151Dr Robertson considered there was less data to establish that silver perch relied on snags to the same extent as trout cod. Dr Harris agreed in cross-examination that the link between silver perch and snags had not been studied in detail. The silver perch recovery plan states (section 2.5 Habitat) that silver perch have been found in a wide range of habitats and climates across the Murray-Darling Basin. There is limited information about specific habitat requirements and the extent to which this species depends on snags. It does not appear to be as reliant on snag habitat as other native freshwater species such as trout cod. Habitat issues identified in the plan which may affect silver perch include removal of snags (section 3.3 Habitat and water quality) which recognises the importance of these for river ecology. The importance of snags for silver perch is not known compared to other species. Silver perch have been recorded in faster flowing water and also amongst snags. I do not consider that the circumstance that snags may be less important for silver perch than trout cod diminishes the role of snags as part of that fish species' habitat. This finding is supported by the evidence of Dr Harris that the important link of snags for silver perch can be inferred in that snags are important in creating diverse hydraulic conditions. In the context of the FM Act and the importance of habitat protection it is sufficient that snags play a role in the habitat of a particular fish species, it need not be as important a role as for other species to establish the presence of habitat, here snags in the River. 152Dr Robertson considered that the Murray River at Kunanadgee was excellent potential habitat but did not consider it could be definitively described as habitat. He considered microhabitats should be considered as trout cod did not uniformly occupy the River preferring high quantity snags in deep water and high velocity further from the riverbank. The snag removal at the site was not obviously a preferred microhabitat for either species, being closer to the bank. This approach to habitat is narrow and not in accordance with the protective approach required by the FM Act and does not accord with the area of habitat I have identified. Dr Robertson is a generalist ecologist unlike Dr Harris who is a fisheries specialist and I prefer his evidence given his greater expertise on the scientific issues relevant to these prosecutions. The recovery plans and the evidence of Dr Harris establish beyond reasonable doubt that the area at the site is habitat as defined in the FM Act for silver perch and trout cod, meaning an area it may occupy occasionally or periodically. 153In conclusion and as submitted by the Prosecutor, the Court is persuaded that, as a matter of logic, trout cod and silver perch must have occupied the subject waterways adjacent to Kunanadgee occasionally. Relevant to this conclusion is the fact that each of these species is migratory, with a relatively long lifespan (up to 27 years for silver perch and probably between 50 - 100 years for trout cod). These fish species are proven to have been present in the intervention reach of the River both upstream and downstream of the site in circumstances where the waterways around Kunanadgee were high quality habitat for each of these fish species according to the evidence of Dr Harris. The evidence of Mr Lyon and Dr Harris establishes that those fish species "occupy", as defined in the FM Act, the area of habitat.

Unnamed creek is habitat of silver perch and trout cod 154The Prosecutor relied on the evidence of Dr Harris to submit that the unnamed creek was also habitat of silver perch and trout cod. It is an anabranch coming off the main River channel which now functions as an effluent having been blocked at one end. It is likely to receive water at times of flooding when the unnamed creek would be connected to the Murray River as a result of high water levels. Water would evaporate during low flow periods. It is an area likely to be used by young fish and larvae in particular given the floodplain characteristics of the Murray River. The intermittent flow in the unnamed creek (effluent) was conducive to the accumulation of young fish in the creek, according to the evidence of Dr Harris. 155Mr Coomes' counsel disputed (adopted by the other defendants) that the unnamed creek was habitat for silver perch or trout cod, relying on the evidence of Dr Robertson to that effect. There was reasonable doubt whether this was habitat for trout cod or silver perch because no individuals or fish larvae of these species were located in the creek and no data indicated that the two fish species in any form were occasionally present. No individual fish were found in the creek and no data exists to establish their presence at any time. Mr Lyon gave evidence that the electro-fishing technique is not used to identify fish species in billabongs. Dr Robertson doubted the likelihood of the presence of larvae of these fish in the unnamed creek at any time and did not consider the conditions in the unnamed creek were conducive to being the habitat of silver perch and trout cod. 156There is direct conflict between the two experts on the issue of whether the unnamed creek is habitat for silver perch and trout cod. At the time of the offences the area had been in drought for several years. There was low flow in the unnamed creek at the River end only. This otherwise presented as a series of water holes or was dry along the creek bed. No fish or larvae were identified in the unnamed creek by either expert. Dr Harris' evidence is that flow would be experienced in periods of flooding which are intermittent along the Murray River. During high flow periods he considered young fish and larvae would be present in the unnamed creek, meaning this would be habitat as the area would be periodically or occasionally occupied. The identification of habitat is necessarily to be determined over a lengthy period of years if intermittent natural conditions must occur in order for the habitat to exist, here flooding. Dr Robertson did not appear to give sufficient weight to the flooding characteristics of the Murray River in his evidence. Dr Harris is an expert on fish in the Murray River including silver perch and trout cod. His firm opinion that the unnamed creek is habitat for silver perch and trout cod is accepted and establishes for the Prosecutor that the unnamed creek is relevant habitat.

Element of offences that damage to habitats resulting from snag removal established 157I have found that the Murray River adjacent to Kunanadgee, which includes the Big River Billabong, and the unnamed creek are habitats identified in the three categories of offences alleging damage to habitat. The Prosecutor must prove beyond reasonable doubt that removal of snags from the Murray River including the Big River Billabong and the unnamed creek during the offences period caused damage to the habitat of silver perch, trout cod and lower Murray EEC. The defendants dispute that there was actual damage to habitat of trout cod and silver perch resulting from the removal of snags in the offences period. There is no dispute that snags were removed from the lower Murray EEC but the defendants dispute whether such removal caused more than temporary damage or none over time due to replenishment by natural forces or manual replacement of snags. The issue remains whether the amount of snag removal resulted in damage to the waterways particularised as where the offences occurred, which I have found to be habitats. 158The Prosecutor submits that de-snagging is listed in Sch 6 to the FM Act as a key threatening process. The adverse impact of de-snagging on trout cod and silver perch specifically identified in the evidence of Dr Harris is that the main disturbance was the removal of large quantities of snags from the River. He visited the area in December 2007 approximately two months after the offences period and observed the large number of snags in piles on the land. He considered there was ample evidence that this level of de-snagging would have caused a decrease in the size of local fish populations due to the impact of the loss of habitat on the site's population-carrying capacity and that this effect would continue until snag abundance and distribution patterns returned to previous levels. The fish species in question have a wide distribution and there are multiple records of their sighting at nearby sites in recent times so that in his opinion the area at Kunanadgee would have been occupied, or periodically or occasionally occupied, by some or all of the listed species (par 104 above). Dr Harris also agreed that the Murray River was very dynamic with snags shifting in high flow periods and snags being replenished by the natural process of erosion of riverbanks. 159Mr Coomes' counsel's submissions, which were adopted by the other defendants, were that there was reasonable doubt whether the work that was done damaged that habitat given the evidence of Dr Robertson that it was uncertain whether damage, as opposed to alteration, of habitat had occurred. Dr Robertson considered that as no baseline data exists for the Murray River at Kunanadgee any identification of damage is problematic. Further, the fish species are rare and silver perch is not heavily dependent on snags in its life cycle, being a more open water fish. The River is dynamic and the habitat is constantly replenished by new snags from fallen trees. Many snags remained in the water in the centre and on the opposite side of the Murray River. Further, the snags removed have been replaced by Mato. When considered holistically there is no damage. 160Alternatively, the defendants submitted that damage, if any, was temporary. Damage should be construed in s 220ZD as a material level of damage above de minimis given this is a criminal provision. Actual damage has not been proved beyond reasonable doubt. Alteration or change to a large and ever changing riverine environment is not damage within the meaning of s 220ZD. 161This is a criminal offence the elements of which must be proved beyond reasonable doubt. Damage is not defined in the FM Act. Applying the usual principles of statutory construction its ordinary meaning can be applied. The dictionary definition of "damage" is a useful guide to its meaning and includes "injury or harm that impairs value or usefulness": Macquarie Dictionary . The significance of snags as part of fish habitat and the many functions these perform in terms of protection, feeding and facilitating breeding, inter alia, are identified in Dr Harris' evidence (par 107 above). 162The consideration of damage must be in light of the purposes of the FM Act in s 220A, which include the conservation of biological diversity of fish, the prevention of extinction, and promotion of the recovery of threatened species, populations and ecological communities. Key threatening processes are those identified by the Committee under the FM Act as adversely affecting threatened species or communities or which could cause these to become threatened. Engaging in a process identified as a key threatening process by the Committee is not sufficient on its own to establish damage in a criminal prosecution of this kind. In Carriage v Stockland Development Pty Ltd (No 10) [2005] NSWLEC 272 I had to consider the terms "causes damage to habitat" in the context of threatened species habitat under the National Parks and Wildlife Act 1974. At [33] I held that it was not sufficient for the applicant in civil enforcement proceedings to point to an action which was an identified key threatening process alone to establish that damage was being caused. At [34] - [40] I considered the meaning of "causes damage to habitat" under s 118D(1) of the National Parks and Wildlife Act and applied a meaning of damage adopted by Bignold J in Donnelly v Delta Gold Pty Ltd [2001] NSWLEC 55; (2001) 113 LGERA 34 referring in turn to dictionary definitions of "loss or detriment caused by hurt or injury affecting estate, condition or circumstances". At [41] I held that change alone does not automatically equate with damage. 163Further consideration of the importance of an activity being identified as a key threatening process under the FM Act suggests that the threshold for the requirement for proof of damage resulting from the key threatening process should be informed by a presumption that harm will arise because, prima facie, the occurrence of the key threatening process is based on the Committee's view that it adversely affects threatened species and ecological communities or could cause ecological communities to become threatened. That approach is important in this case where there is no baseline data of the nature and extent of snags in the Murray River and the unnamed creek. As Dr Robertson stated, that means that the level of change and damage to habitat will be difficult to quantify. It does not prevent a general finding that damage occurred. 164I do not accept Dr Robertson's evidence that little information was available about where snags were taken from on the riverbank and the unnamed creek. Dr Harris, who attended Kunanadgee close to the offences period before snags had been returned to the River, was able to draw firm conclusions on damage caused to the Murray River and the unnamed creek. Dr Harris' evidence based on his visit in December 2007 was that more snags had been removed from the Murray River than the unnamed creek as he could compare the size of the snag stockpiles immediately adjacent to the River with the distribution pattern of snags on the opposite bank. He observed there were a substantial number of snags on the opposite bank. He also considered that most of the stockpiled material was removed from the water. Dr Robertson submitted in relation to the unnamed creek that he considered a higher proportion of snags would have been removed from the more accessible unnamed creek and from his analysis of the number of stockpiles on the Prosecutor's aerial photograph (exhibit A) which shows more piles along the unnamed creek than along the River. Of the 131 piles of snags identified in that aerial photograph about 40 are along the riverbank so that the majority are along the unnamed creek. His evidence relying solely on the aerial photograph with gold medallions that most snags were removed from the unnamed creek is not informed by actual observation of the size of the snag piles, unlike the evidence of Dr Harris. Nor is it material given my finding that the unnamed creek is fish habitat. The experts also accept that it is part of the lower Murray EEC. 165Snags would also have remained in the centre of the River and on the opposite bank so that was submitted by Dr Robertson to ameliorate any loss of snags. That there were snags remaining in the middle and far side of the River which displaced fish could use, according to Dr Robertson, did not address the evidence of Dr Harris that some fish may leave the site as a result as the fish population carrying capacity of this section of River would reflect the reduced availability of snags. As identified by Mr Lyon the cumulative loss of snags in the River is one of the problems being addressed through the reintroduction of snags. The cumulative effect of snag removal including in these cases is a relevant consideration to the assessment of damage in this matter. 166The evidence of Dr Harris is unequivocally that damage has occurred to habitat as a result of the large number of snags removed from the Murray River and the unnamed creek during the offences period. He visited the site in December 2007 some two months after the offences. He was able to view the snags on the riverbank and gain an appreciation of their size and location. Set out above in relation to the first element of the offences is the evidence of Mr Potter, Mr McBurnie and Mr Tilbrook, fisheries officers, identifying the large number and size of wood stockpiles next to the River and unnamed creek and their composition. This is summarised in the aerial photograph prepared by Mr McBurnie (exhibit A p 724) and the table identifying and describing 131 stockpiles and/or areas of disturbance prepared by Mr Potter (exhibit A p 1073). The evidence of the contractors Mr Root, Mr Damon and Mr Adrian Hanger establishes the substantial amount of time and effort spent on snag removal in the offences period. Most of the work in that period related to snag removal using an excavator and demonstrates that the number of snags removed was substantial. 167As already noted, Dr Robertson visited Kunanadgee some three years after the offences period and after a large number of snags had been returned to the River. His evidence lacks the contemporaneity of Dr Harris' observations and that is an important limitation. I consider Dr Harris' definite opinion that damage was caused does establish this element of the offences beyond reasonable doubt. 168For the purposes of determining whether an element of the offences has been proved, damage should be assessed at the time the offences were committed, not after ameliorative measures had been taken. That a large number of snags removed during the offences period have been put back into the River is a matter relevant to sentencing. The same observation applies to the evidence of Dr Robertson that damage, if any, would be ameliorated over time because a large river system is dynamic and the supply of snags is replenished over time. If the defendants' submissions were adopted it is unlikely that any prosecutions would be able to establish that damage had occurred as the dynamic nature of the River environment would always allow the submission to be made that natural processes will replenish and overcome any change of habitat so that damage would be temporary at most or that no damage over time would be caused. Such an interpretation does not give effect to the protective objectives of the FM Act which would be severely undermined by such an interpretation. 169The element of the three offences that damage to habitats of the lower Murray EEC, trout cod and silver perch was caused by the snag removal in the offences period has been proved by the Prosecutor.

C. Element of offences - whether defendants caused damage to habitats 170The Prosecutor must establish beyond reasonable doubt that the defendants caused the contractor Mr Michael Hanger to remove the snags the subject of the offences. The Prosecutor relied on admissions made in three ROIs conducted by Mr Potter and Mr Tilbrook with the three individual defendants after the offences period, summarised below. All three defendants were cautioned that what they said could be used in evidence against them and asked if they wished to contact a lawyer or relative. All declined. All were told the ROIs were taped.

Mr Bennett's ROI 171Mr Bennett attended an ROI with Mr Potter on 12 November 2007 in the presence of Mr Tilbrook and Mr Coomes, who was recorded as being a friend of Mr Bennett. Mr Bennett understood that inquiries were being made into the allegation that Mato, and Mr Bennett as a director of Mato, removed snags from the Murray River, the Big River Billabong and an unnamed creek at Kunanadgee. 172When Mr Potter asked whether Mr Bennett was authorised as a director to speak on behalf of Mato, Mr Bennett replied that he was given verbal authorisation. Mr Bennett explained that he informed the other directors he was meeting Mr Potter to conduct an interview on behalf of the directors and they said that he should go ahead with the interview. Mr Potter produced a copy of the Corcoran consent (exhibit A p 584). Mr Bennett agreed it was a copy of the development consent issued to him on behalf of Mato. 173Mr Potter said he attended Kunanadgee on 22 October 2007 to investigate snag removal from the Murray River, its banks, the Big River Billabong and the unnamed creek and asked Mr Bennett what he could tell him about it. Mr Bennett replied that the board passed a resolution in August or September that they would do some preparatory works for the commencement of works under the development consent. It was agreed that a contractor would be engaged to clear debris and wood on existing tracks. When Mr Potter asked whether the company took full responsibility for the snag removal works conducted by those contractors, Mr Bennett replied, "We have to, we do". 174Referring to the meeting of 25 October 2007 at the homestead on Kunanadgee, Mr Bennett confirmed that he had said it was Mato's intention to "clean up existing and overgrown tracks of the dead timber" and to reopen the track along the Murray River as a walking and fire access track. Mr Potter recalled asking Mr Bennett during that meeting "if the tracks were existing" and Mr Bennett telling him that a "log on the bank was fair game". Mr Bennett agreed that the tracks were existing but was not sure he used the words "fair game" and clarified that that was the intention of what he meant; they were to be cleaned up. Mr Bennett agreed with Mr Potter that during that meeting he conveyed it was Mato's intention to work closely with the DII to "rectify whatever snags were removed by re-snagging the [Murray River]." Mr Bennett accepted that he said to Mr Potter during that meeting "I feel sorry for Michael, he conducted the works here. At the end of the day the company takes full responsibility." 175Mr Potter queried why the company issued its own stop work notice to contractors on Kunanadgee. Mr Bennett answered, "Because we believed ... upon ... our own inspection that things had been ... removed that we knew should not have been." He elaborated that they first became aware that snags which they knew should not have been removed from the Murray River, had been removed, during a site visit in October. 176Mr Potter told Mr Bennett that he had identified 131 sites on the aerial photograph as snag piles and areas of bank disturbance adjacent to the Murray River, Big River Billabong and the unnamed creek. Mr Bennett agreed that during the site inspection on 25 October 2007 Mr Potter pointed out to him and he saw some of the identifying features such as watermarks, silt and dried aquatic vegetation. He did not recall seeing some dried aquatic vegetation with fishing lines attached. Mr Bennett could not estimate the number of snags he believed would have been removed from the Murray River, Big River Billabong and unnamed creek but he said that the number estimated by Mr Potter was a lot higher and the way they were mapped looked much heavier than what he anticipated Mr Potter was referring to. Mr Potter asked what was Mato's intention for the snags and woody debris which had been stockpiled in the middle of the paddock on Kunanadgee. Mr Bennett replied, "[W]e agreed with you not to touch them and ... any snags that had been removed from the [Murray River] ... to be returned to where they came from, so we've left them where they are." 177When Mr Potter asked whether Mato had engaged a site manager to oversee the development works on Kunanadgee, Mr Bennett replied, "We did, we have a project manager, Jim [Coomes], who's with us today." Mr Potter asked what instructions were given to Mr Coomes by Mato. Mr Bennett said that Mr Coomes was present at the board meeting in August which he previously mentioned and that he was given a directive, but Mr Coomes was not available to work on the project because he was ill and had been hospitalised and had not returned after the incident. He could not recall exactly when Mr Coomes went on sick leave but it was in the period of October to November during which time development works continued. 178With regard to his statement on 25 October 2007 that "the boys might have gone a bit feral", Mr Bennett clarified, "only the board can take responsibility for that, not the individual contractors. So I don't blame the contractors, they've done some outstanding work and they've been very careful not to take any green trees, they've been very careful but they have taken snags." With regard to his reference to "the boys" Mr Potter asked Mr Bennett to explain who removed the snags from the banks of the Murray River, the Big River Billabong and the unnamed creek. Mr Bennett answered that Mr Michael Hanger was given the job and he engaged a number of men to conduct preliminary works. Mr Bennett was not able to provide Mr Potter with Mr Michael Hanger's address and said "he was known through one of the ... board's acquaintances and ... was given the job." He said there was a meeting, the minutes of which recorded how it happened and that Mr Michael Hanger "was approached by one of the team who ... asked if he would be prepared to do some clean-up works on the site ... and he was ... subsequently engaged. It was a verbal engagement, it was not done in writing. ... Again, that's a weakness in our system because ... we believed that he'd be a very good contractor to use ... if we were tightly supervising what was going on." Mr Bennett said he was engaged through a personal acquaintance and thought it was Mr Smit who approached Mr Michael Hanger, whom Mr Smit had known in the past and said he knew of his work. He elaborated that it was subsequently discovered that Mr Michael Hanger was interested in the Corowa area and liked the property. Mr Bennett explained that Mr Michael Hanger was verbally told to "clear the ... existing tracks ... to remove ... dead wood that was in the way; there were thousands of logs on Kunanadgee on the site, in particular on the southern site below the anabranch of the [Murray River] and ... that's basically what it was. I should add there was no reference to snags in the brief." Mr Bennett was not able to provide a date when the contractor was engaged to start works but said it must have been "sometime between August, which was the date of these meetings, and September because the works actually commenced in late October." 179When Mr Potter asked whether Mr Michael Hanger had been given a site plan for Kunanadgee, Mr Bennett said he was not sure of the answer but believed "he would have been given one because ... he would have needed to know where the tracks were. ... [S]omebody in the team ... probably did provide him with such a layout." Mr Bennett confirmed that Mr Michael Hanger was not provided with a copy of the development consent and conditions prior to him commencing works on Kunanadgee but that he should have been. Mr Potter then asked what measures he or Mato was taking to ensure that the consent conditions were being adhered to in relation to the work on Kunanadgee. Mr Bennett replied, "[B]y issuing instructions following our board meeting ... if you like, as farmers to clear ... all the existing tracks, to clear the dead wood that we were talking about ... [T]hose instructions were in the actual brief for the site clean-up, and there was no reference to any other conditions that might have ... seen to be contentious ... as in the outlines that you've shown me today." Mr Potter asked what measures he or Mato took to ensure that the details within the minutes were being adhered to with regard to the works that were being undertaken. Mr Bennett said that Mato had appointed a project manager, Mr Coomes, to oversee all project development (including subsequent engineering works which had not started yet) and the preliminary works were within the directions that Mato's board of directors were giving to the contractor. He continued, "So there's nothing wrong in what we believe these minutes indicate were the brief to the contractor, it's just a poor communications exercise between our board of directors, if you like, through to the contractor. There's a missing gap in the middle there and that is a precise set of instructions." 180Mr Potter asked whether Mato could explain how the snags were removed from the waters and the banks of the Murray River, Big River Billabong and the unnamed creek. Mr Bennett said, "I can't, I'd have to ask Hanger to explain how it's actually done. I did not see any removed ... myself first hand, I did see them with you when I went around and observed what happened, but I didn't ... I can't explain how a snag is removed from the river ... I'm just ... not a contractor, I wouldn't have a clue." 181Mr Potter asked what Mato's understanding was of the importance of large in-stream woody debris, that is, snags. Mr Bennett said he knew because they engaged a professional firm called Habitat Planning, environmental planning and development consultants, of Albury, that all of those trees are potentially habitat for native fish. He elaborated, "[W]e're developing an eco-resort here and would like to encourage more native fish, not less, and the last thing we wanted to do was to remove their habitat ... so we're very keen to put that habitat back, but also to follow that line of thinking through with you." Referring to part 9 of the environmental impact statement, the aquatic assessment prepared by Habitat Planning Mr Potter asked whether the company was aware of its details. Mr Bennett responded, "I'm not sure if everyone in the company is aware of it, but we have ... prepared a copy ... we've paid extensive funding for all of these consultants to do this work, and ... we are aware of what the contents of the habitat report are as relates to fish habitat." As a director of Mato Mr Bennett acknowledged he was aware of an endangered ecological community being adjacent to the waters of Kunanadgee. He denied that Mato directed the contractor to remove the snags from the Murray River for ease of boat navigation and mooring but said "we do take responsibility". Mr Potter queried whether Mato provided sufficient directions to the contractor with regard to works being undertaken on or near the Murray River, Big River Billabong and the unnamed creek. Mr Bennett replied that he believed their instructions were inadequate. When Mr Potter asked whether Mato could provide a reason or excuse why it caused damage to habitat of an endangered ecological community by the removal of snags, Mr Bennett said, "[W]e can't but that was not the intention of the works."

Mr Coomes' ROI 182Mr Coomes attended an ROI with Mr Potter on 12 December 2007 in the presence of Mr Tilbrook. Mr Coomes understood that inquiries were being made into alleged de-snagging in the Murray River, the Big River Billabong and an unnamed creek on Kunanadgee. 183Mr Coomes did not have any prior dealings with Mato and commenced work for it in mid-July 2007 as a consultant holding the position of project manager. He was engaged for the development works of the eco-tourist resort at Kunanadgee. When Mr Potter asked how he was engaged by Mato Mr Coomes said, "[I]t's a glorified handshake. There is a ... minute of the shareholders' meeting, dated 18 th of July this year, the shareholders agreed in principle to my appointment, and then at the shareholders' meeting on the 21 st of August, that agreement in principle was ratified and there was agreement on the fees ..." At the time of the ROI Mr Coomes had received some remuneration by Mato for services for the development works and produced copies of invoices to Mr Potter. 184No formal statement of duties was provided to Mr Coomes by the company. In consultation with Mr Bennett the primary task he was given was to manage the development and marketing of the project overall and specifically to have the project marketed by Christmas 2007. Mr Tilbrook asked if Mr Coomes' role involved providing instructions. Mr Coomes replied, "I did not have carriage. I did have a meeting with Michael Hanger, and surprisingly I have no record as to when that meeting took place, and I thought I'd use the word surprisingly because that means I can't charge for my time. We probably spent about half an hour together, and I'm just - that's a guesstimate on my part, now, because it's not the sort of meeting that would take an hour." 185Mr Potter showed Mr Coomes a copy of the Corcoran consent. Mr Coomes agreed it was an identical copy of the development consent issued to Mr Bennett on behalf of Mato and that he had seen it and read it before. Mr Coomes' first task when he came on board was to obtain relevant documents. He was not aware of the existence of the EIS and obtained that and a copy of the development application about early August. He was briefed by Mr Bennett but felt it was inadequate so he obtained briefings also from the consultants, the architect, surveyor and town planner. Mr Coomes did not discuss the findings and recommendations in the EIS and the development consent with the contractors engaged to undertake works on Kunanadgee before they commenced as he did not believe he had carriage of that matter and did not know who had carriage of it. 186Mr Potter asked whether Mr Coomes visited Kunanadgee prior to the de-snagging. Mr Coomes said he walked around the property with a marketing consultant on 29 July 2007 and noted that there was a substantial amount of woody debris or snags in the unnamed creek. When Mr Potter asked whether Mr Coomes agreed that during times of low water that creek would be dry, Mr Coomes replied, "I imagine it could be, but it wasn't dry on the occasion when I inspected it, and my recollection is that at some stage, and I don't know who I made the comment to, it may well have been Ian Bennett, that I did make the point that it was essential to retain the woody debris in the creek because that formed fish habitat." 187Mr Potter asked what instructions Mr Coomes was given by Mato with regard to the development works. Mr Coomes said, "The only instructions I received were oral instructions from Ian Bennett in the manner that ... I have already outlined. One, I did my due diligence and came back with certain recommendations as to how to reduce construction costs, and two, Ian conveyed to me it was his wish that we develop the southern portion of the site ... in effect as a sanctuary, and I use that term in its broadest context rather than in any legal context." Mr Potter queried whether Mr Coomes considered the alleged de-snagging that was carried out was for the purpose of the creation of an eco-tourist resort. Mr Coomes responded, "To my knowledge, they were not work that was proposed to be done, and certainly ... I was not advised that there was any intention to de-snag the [Murray River]. Had I been advised, I would have advised against it." 188Mr Coomes was asked to detail the purpose of Mr Michael Hanger's works on Kunanadgee. Mr Coomes said, "I have not inspected the ... work as it has been carried out. My understanding of the brief that was given to him, ... prior to the commencement of the work, bearing in mind that I did not have carriage of this matter, but my understanding was to clear out fallen timber in the vicinity of ... the ... existing farm track that was around the riverbank ... to enable that to be used ... for access ... particularly fire access ... and ... I know I had brief discussions with him in regard to the creek, and because ... of the intention to use the southern portion of the land to the south of that creek as a sanctuary, I suggested to him that ... where fallen trees formed a bridge access the creek perhaps those trees should be relocated. In a discussion I had with him prior to the commencement of the work, and ... I don't have a record of that meeting, but it would have been prior to the shareholders' meeting on the 5 th of September this year, probably in the week prior to that ... I was aware of the general requirement of the environmentalists that logs should be retained in situ wherever possible because they provide habitat ... I asked him what he was proposing to do with the logs ... he said just to leave them in the site so I didn't pursue that any further." 189Mr Potter asked whether Mr Coomes discussed the scope of works with Mr Michael Hanger. Mr Coomes said he asked Mr Michael Hanger what he was told to do and he had replied, "Basically to clear out the tracks ... just do a general clean-up." Mr Coomes added, "The area was very unkempt, it had not been maintained for a long time." Mr Potter enquired whether he directed Mr Michael Hanger to remove snags that had fallen across the creek that may have been inundated or in the water. Mr Coomes replied, "I didn't distinguish between ... I didn't make any specific comment about timber that was in the water, I made specific comment about trees that had fallen across the creek." Mr Tilbrook enquired who the second person was to give instructions to Mr Michael Hanger. Mr Coomes responded, "I deliberately didn't make inquiries as to who was briefing him because ... I didn't want to know too much about it ... because I felt if I knew too much about it I would be given that responsibility in addition to my other responsibilities and I didn't want any additional responsibilities." 190When Mr Potter asked whether Mato instructed Mr Michael Hanger to remove the snags and other woody debris from the unnamed creek, Mr Coomes replied, "I don't know what instructions Michael was given by others. All I know is what he told me, which was ... that the general cleanup ... and I don't know if he was ... I would be surprised if he was told to remove snags out of the Murray River, to be quite blunt about that because I am not sure." When Mr Potter again enquired about the unnamed creek, Mr Coomes said, "I am not sure. Well I guess you've got to say that I probably misled him on that. I guess I've got to take some responsibility on that. But I don't know who benefits out of removing the snags out of the [Murray River]. Certainly, I mean the objective of ... removing the fallen timber was just ... so that feral animals couldn't use it so that we could - I mean, I was trying to use that as a moat to avoid fencing." 191Mr Potter put that Mr Coomes was directed by Mato to instruct Mr Michael Hanger to remove the snags and woody debris from the unnamed creek. Mr Coomes replied in part, "That's incorrect. If I had received that instruction I would have advised that I would not carry that out, because the company would be in breach of its DA ... I think it is important to appreciate ... my position as a consultant." Mr Potter raised whether Mr Coomes omitted to inform Mr Michael Hanger not to remove snags and other woody debris from the Murray River, the unnamed creek and Big River Billabong. Mr Coomes answered, "I omitted to give him a copy of the ... DA, I didn't think that was ... relevant. I was not aware that there were any snags to be removed out of the [Murray River]." Mr Potter pressed whether Mr Coomes agreed that the lack of written instructions and documentation to a contractor were omissions that resulted in the destruction or damage to habitat of a threatened species, the population or ecological community. Mr Coomes said in part, "I don't know what his instructions were." Mr Coomes told Mr Potter he was not present for any period of the de-snagging. Mr Coomes provided Mr Potter with receipts for the medical appointments he attended and said he was away from work on 15 October 2007. 192Mr Coomes first met Mr Michael Hanger on the date of the meeting (which date he could not precisely identify during the ROI) which took place at his office in Kings Way, South Melbourne. Mr Coomes told Mr Potter that he asked Mr Michael Hanger what his estimate of the cost of carrying out the work was and that he had received the response that it was about $200,000. Mr Tilbrook asked whether Mr Coomes found it excessive that Mr Michael Hanger estimated that figure to do some road works and remove some fallen logs, that it would take him two weeks to do it and that he would need a D9 bulldozer and an excavator. Mr Coomes replied, "Again, I didn't have carriage of that. This was being handled by others ... who were shareholders ... as I understood it, and ... that was their problem not mine. I just wanted a figure to plug into the budget."

Mr Ceman's ROI 193Mr Ceman's ROI was conducted on 16 December 2007 by Mr Potter in the presence of Mr Tilbrook. Mr Ceman understood that inquiries were being made into the allegation that Mato removed snags from the Murray River, the Big River Billabong and an unnamed creek on Kunanadgee. 194Mr Ceman told Mr Potter he was not authorised as a director to speak on behalf of Mato for the interview and that only Mr Bennett was aware he had an interview and was answering questions with regard to de-snagging. Mr Ceman was shown a copy of the Corcoran consent. He agreed it was a copy of the development consent issued to Mr Bennett on behalf of Mato. 195Mr Potter asked whether any works had been undertaken on Kunanadgee under Mato's direction to date. Mr Ceman replied that they were cleaning up and preparing for preliminary works. Mr Potter explained that he would be making reference to snags and defined the term. Mr Ceman remarked he understood a snag was "timber laying in the river". Mr Potter showed Mr Ceman an aerial photograph of Kunanadgee and pointed out with his pen the Murray River, unnamed creek and the Big River Billabong. Mr Ceman agreed that during the site inspection on 25 October 2007 Mr Potter indicated areas adjacent to the Murray River, the Big River Billabong, and the unnamed creek where it was alleged that snags had been removed from the banks and from the waters. Mr Potter asked if Mr Ceman agreed that during the site inspection he saw that the snags in these sites had identifying features such as watermarks, silt, dried aquatic vegetation, fishing line attached to some of them and mussels on some of them. Mr Ceman said he did not see any mussels but he saw some wood with marks. Mr Potter asked Mr Ceman to explain how the snags were removed from the waters of the Murray River, the Big River Billabong and the unnamed creek. Mr Ceman replied, "Well, basically I wasn't there when they pulled them out, but obviously there was a big machine there which was cleaning the banks of the river, and ... what was next to naturally they pulled them out at the same time." As to why the snags were removed, Mr Ceman said, "Well, normally there wasn't any idea to pull the timber or snags out of the water, it was just to take them and clean up the bank, but if those trees they were lying partly in the water, and contractors come, they pull them out, that's what happened. There was pure misunderstanding and I reckon you know lack of communication on that." 196Mr Ceman said a hired contractor, Mr Michael Hanger, whom Mato engaged to conduct works on Kunanadgee for the proposed eco-tourist resort was at the site so it would have been him because nobody else was there. Mr Potter asked what Mr Michael Hanger was engaged to undertake. Mr Ceman answered that he was engaged to clean up the property because it had been left in a mess when he bought it and there was concrete, steel pipes and logs lying around. To his knowledge Mr Michael Hanger had not been paid for works he had undertaken so far. Mr Tilbrook asked Mr Ceman who engaged Mr Michael Hanger. Mr Ceman recounted that after he purchased the property and paid a deposit with his daughter, Mr Michael Hanger wanted to buy a block of land from him and to have the first pick. Mr Ceman agreed to this on the basis that Mr Michael Hanger would clean up the property. 197Mr Ceman said he had a site meeting with Mr Michael Hanger to discuss these works around September but he was not sure and did not have any written documentation of this meeting. Mr Ceman said he walked around Kunanadgee with Mr Michael Hanger and "discussed where the rubbish was, and logs of trees and ... not to cut existing trees ... just to clean old trees and everything and near the banks pull them off, and pull them out." Mr Potter asked what instructions he gave Mr Michael Hanger. Mr Ceman replied, "I asked him to clean property. We decided to make some tracks around, which basically existing one is what is there, and a few others and ... all those dead trees lying there around the banks to clean them up and put them in a pile and leave them there." Mr Ceman confirmed he gave these instructions verbally. Mr Potter asked whether he was provided with any other instructions. Mr Ceman replied, "Well, actually I understand it was discussion with ... Jim [Coomes], which was one ... nominated ... to be construction manager, there was discussions with him on that ... too." Mr Ceman stated Mr Smit was also present during the site inspection with Mr Michael Hanger. Mr Tilbrook asked Mr Ceman to elaborate on his instructions to Mr Michael Hanger regarding cleaning up snags from the banks. Mr Ceman replied, "[A]nything was sitting on the bank, on the ground. Yeah well all dead trees and everything, I did ask him I said you just pull them up and clean them up there." Mr Tilbrook questioned whether this could have meant Mr Michael Hanger was to pull out a snag that was lying on the bank but had fallen into the water. Mr Ceman countered, "Well, no ... we didn't ... specifically ... say 'Well, pull this out but don't pull this out'. I did say 'Any dead trees on the banks or something, pull them out, clean them and put them on the side on the pile'. It's all what was instructions for that." 198Mr Ceman said he specified Mr Michael Hanger was to clean the unnamed creek "as best he can" as the water was "smelly [and] stinky [and] basically there was no water there." Mr Tilbrook asked whether instructing Mr Michael Hanger to clean the unnamed creek "as best as he can" involved taking all the logs out of that dry creek. Mr Ceman said, "I didn't really specify to take all the logs or nothing, but I said clearly ... we have to take all that because it's dry ... and just to try to clean it and make it ... clean and better." Mr Tilbrook asked if Mr Ceman told Mr Michael Hanger to remove all the snags from the dry creek. Mr Ceman said, "Well I didn't specify ... out of here, or out of there ..." Mr Tilbrook suggested that Mr Ceman omitted to give him certain information; he did not tell Mr Michael Hanger not to take the logs from the creek. Mr Ceman clarified, "I didn't say really not to take them, and I said to him ... that I want it to be nice and clean because it's nothing there, it's a few logs here hanging across the path, there and everything needs all cleaning up ..." Mr Potter asked, "[T]he wood and the woody debris adjacent to that creek, and woody debris that may have gone from one side to the other on that creek, and woody debris that may have gone from the top of the bank into the dry bed of that creek, did you tell Mr Hanger to clear those logs?" Mr Ceman replied, "Yes I did". 199Mr Potter enquired whether Mr Ceman instructed Mr Michael Hanger to remove the snags that have gone from the top of the bank into the water from the sites around the Murray River identified on the aerial photograph. Mr Ceman said, "No I haven't ... instructed him to [remove] from the water but he did ask him to remove anything on the top of the bank that is a dead tree. Mr Tilbrook asked whether Mr Ceman told Mr Michael Hanger not to take any of the snags that were on the top of the bank that were lying into the water. Mr Ceman said, "No, I haven't asked him to take them, I haven't asked him not to take them ..." 200Mr Ceman said he had not read the development application and that to his knowledge copies of the development consent, the conditions and the EIS were not provided to Mr Michael Hanger prior to his undertaking the works. Mr Potter asked if Mr Coomes was responsible for the supervision and direction of works undertaken by Mr Michael Hanger and his employees. Mr Ceman responded, "Well that was his - but unfortunately he was sick there and he missed completely that." When Mr Potter queried whether anyone from Mato visited Kunanadgee whilst the works were being undertaken to ensure that the consent was being complied with, Mr Ceman said "[T]hat is not in my knowledge".

Mr Parr (Council officer) 201Mr Parr's affidavit dated 22 September 2009 states that he has been employed by the Council as Director of Environmental Services for ten years. At approximately 4:00pm on 12 October 2007, Mr Parr met with representatives of Mato, Mr Bennett, Mr Coomes, Mr Smit and Mr Bird in his office. During the meeting Mr Parr was given an update of the Kunanadgee development and issues of conditions of consent including modification of the development consent. On 17 October 2007, Mr Parr received email correspondence from Mr Bennett raising matters discussed at the meeting on 12 October 2007. A copy of this email is at p 593 of exhibit A. On that same date Mr Parr attended the property at Kunanadgee as a result of a conversation and written correspondence with Mr McHugh, a health and building surveyor of the Council. During the inspection Mr Parr saw a number of trees had been felled. On 18 October 2007, Mr Parr received an email from Mr Bennett regarding Mr Parr's telephone conversation with Mr Bird on the previous day (exhibit A p 596). There is no reference to snag removal from the Murray River or the unnamed creek in the emails. On or about 19 October 2007, Mr Parr emailed a copy of Mato's development consent to Mr Potter. On 25 October 2007, Mr Parr issued an order under the EPA Act directing Mr Bennett to cease carrying out works contrary to the development consent. 202The Prosecutor tendered the minutes of several Mato shareholders' meetings. Date of meeting: 3 August 2007 Present: J Smit, I Bennett, D Ceman, P Wood, G Wood, R Wood, J Coomes Item Description 3.1 J Smit advised that he had spoken to a colleague who had access to earthmoving equipment and was available to carry out a clean up of the site particularly around the river and creek area and to construct an access track, in a discreet manner. He believed this should be done as a matter of urgency whilst water levels in the river were low. 3.2 He advised that the contractor was prepared to carry out the work and to offset his fees against the purchase of a lot. He recommended that J Coomes prepare a scope of works for the contractor and a fee for the work be obtained. He also suggested that a discount be offered to the contractor off the price of the lot as an additional incentive. 3.3 It was agreed that prior to any lot being offered to any other person, the shareholders each identify the lot they wish to claim. 3.4 It was agreed that the contractor should be requested to price the work to be carried out and be advised that this would be offset against the purchase of a lot at a discounted price. It was also agreed that until all lots had been priced it would not be possible to enter into any firm agreement with the contractor in regard to his acquisition of a particular lot. 3.5 It was agreed that the contractor should commence work as soon as possible.

Date of meeting: 21 August 2007 Present: J Smit, D Ceman, P Wood, G Wood, R Wood, J Coomes Apologies: I Bennett Item Description 4.1 J Smit outlined the importance of having the site cleaned up and J Coomes prepared a scope of works to be undertaken. 4.2 J Smit advised that the contractor was interested in acquiring lot 1, on which he wished to construct a house. He suggested that the lot, which had been valued at $400,000, be offered to the contractor at a discounted price of $300,000, less the cost of carrying out the clean up and contracting work. 4.3 It was agreed that a quotation be obtained from the contractor to carry out the clean up work.

Date of meeting: 5 September 2007 Present: J Smit, I Bennett, P Wood, G Wood, R Wood, J Coomes Apologies: D Ceman Item Description 4.1 J Smit advised that he had met with the contractor he was proposing be engaged to carry out the site clean up work, in order to quantify the scope of the works to be carried out. It was estimated that there would be about 5 kilometres of walking paths provided in the development. The cost of providing granitic sand, or similar material, along these walkways had been estimated at about $100,000. 4.2 J Coomes advised that he considered it to be inappropriate at this time to bring a large number of trucks delivering granitic sand, or similar material, to the site as such a large number of truck movements would draw attention to the work was [sic] being carried out on site. 4.3 It was greed that the provision of granitic sand along the walkways should not be carried out at this time and should be undertaken during the development of the site.

Date of meeting: 5 October 2007 Present: J Smit, I Bennett, P Wood, G Wood, R Wood, J Coomes, C Rounds (BankWest, part only), S Larken (BankWest, part only) Apologies: D Ceman Item Description 5.1 It was noted that the site clean-up works had not commenced and that they were expected to commence shortly.

203A scope of works document was produced on subpoena by Mr Michael Hanger's company Fine Line Building Projects Pty Ltd and tendered by the Prosecutor (exhibit T).

1. Scope of Works to Clean Up Site Area Scope of Works 1 Remove fallen trees and branches, dead timber, tree stumps and stockpile. Generally tidy up area (lots adjoining Han Creek) 2 Remove fallen trees and branches, dead timber, tree stumps and stockpile. Generally tidy up area. 3 (Marina area) Form new track. Dig out existing billabong and enlarge as directed. Extend watercourse through to river and remove fallen trees and branches, dead timber, tree stumps and stockpile. Generally tidy up area. Provide a surfacing material on access road. 4 Remove fallen trees and branches, dead timber, tree stumps, major limbs and stockpile. Generally tidy up area. 5 Remove trees and logs in creek. Remove tree trunks and stockpile all dead timber. 6 Form track around river bank approximately 2 metres wide and surface with crushed rock or granitic sand as appropriate. 7 Remove any major dead trees in the river, subject to being able to do so.

2. Men and equipment to be used on site 30 to 50 tonne excavator Truck (either flat bed or tipper) D8 or D9 (or equivalent) drott (with bucket) Bobcat Approximately 4 men 204A two-page plan of the site was tendered by the Prosecutor (exhibit X) which identifies areas by number which appear to relate to the numbered areas in the scope of works document. Further evidence relied on by the Prosecutor relevant to this element of the offences is identified in Part A being that of Mr Adrian Hanger (par 69, 75 - 77), Mr Damon (par 82) and Mr Root (par 88 - 90) concerning events on 12 October 2007 when Mr Bennett and Mr Coomes and others went on a site inspection. The cross-examination of Mr Potter set out in Part A (par 35 - 40) refers to his investigation of the defendants leading up to the laying of charges and why Mr Smit was not investigated (par 46 - 48).

Evidence for Mato and Mr Ceman 205Mr Ceman, a director of Mato, is a licensed builder. He gave oral evidence that shortly after purchasing Kunanadgee in 2005 for $2.05 million and paying the deposit of $205,000, Mr Bennett approached him offering $70,000 (a third of the deposit) as one-third share in the property and with a vision of turning the property into an eco-tourist resort. Mr Ceman's daughter was also initially involved. They sought other people to finance the project. A group of doctors, including Dr Wood, were willing to become shareholders. From the start there were four directors of Mato, Mr Ceman, his daughter, Mr Bennett and Dr Wood. The funds for the development came from the bank and they were able to obtain additional money to develop the land. 206Mr Ceman realised that Mr Bennett had experience in and understanding of how to obtain development consents. It was agreed that Mr Bennett would receive $450,000 from Mato to work on obtaining a development consent. Mr Ceman was not involved in any way with the development application because his experience and knowledge was not in that field. He was principally interested in building 42 houses at the property. Mr Ceman knew that a development application was made on behalf of Mato to build an eco-tourist resort with 42 houses. He did not read it or any of the documents that went with it . 207Mr Ceman remembered that minutes were taken of the shareholders' meetings and that at the next meeting, he would see the minutes of what had been said on the previous occasion. Mr Ceman was shown minutes of the meeting on 3 August 2007 (exhibit P) and asked about his recollection of the discussion on site clean-up which is recorded at section 3.1. Mr Ceman responded that there was a discussion about the general clean-up of the property, around the cottage, sheds and the homestead, where there was a lot of concrete, steel pipes, and logs of wood. It was the board's understanding that the dead trees and objects lying around on the property were a health hazard. When asked whether there was any discussion about works in the Murray River or the unnamed creek, Mr Ceman replied, "No". He was taken to section 4.1 of the minutes of the 21 August 2007 meeting where it records Mr Smit outlining the importance of having the site cleared and for Mr Coomes to prepare a scope of works to be undertaken. Counsel asked what Mr Ceman thought were the problems associated with the wood or debris or other forms of material on the site based on his previous visits. Mr Ceman responded there were a lot of trees on the property, which were a fire hazard. Mr Ceman said there was a discussion about clearing the existing tracks, as there were logs on them which he had observed on his visits. Mr Ceman said he did not see a scope of works. 208Mr Michael Hanger telephoned him a short time before his interview with Mr Potter on 16 December 2007 and asked him whether he had received any paperwork from the government, and told him that he had been interviewed and would like to talk to Mr Ceman before he went to his interview. They arranged to meet at Mr Smit's office a couple of days afterward. 209Mr Ceman received the DEWHA statutory notice (dated 1 April 2009) (exhibit R). It required him to provide the DEWHA with information and documents for the purpose of investigating breaches of the EPBC Act by Mato in de-snagging in and around Murray River without approval. 210At the meeting with Mr Michael Hanger at Mr Smit's office to discuss the paperwork, Mr Hanger offered to assist Mr Ceman with filling it out. Mr Hanger said that if Mr Ceman said he was at Kunanadgee on 27 August 2007 with Mr Michael Hanger, no one would be prosecuted. He also offered to provide Mr Ceman with answers to give at the interview. Mr Ceman said that some of the responses in that document were not factually correct. A copy of a response to the statutory notice which Mr Ceman said was filled out by Mr Hanger was tendered (exhibit 4), subject to an order under s 136 of the Evidence Act 1995 that the statements in the document were not to be admitted as truth of their content in relation to Mr Bennett and Mr Coomes. 211Mr Ceman was directed to his ROI with Mr Potter on 16 December 2007 at par 134 - 147, when he was asked whether he had a meeting with Mr Michael Hanger at Kunanadgee to discuss works to be undertaken, what was discussed and when it took place. Mr Ceman said that he was told by Mr Michael Hanger to give those responses at the interview with Mr Potter but that in fact he had not visited the site nor given Mr Michael Hanger any instructions. Mr Ceman's counsel asked him whether he brought his diaries for 27 and 28 August 2007 and whether he had been working on those two days. Mr Ceman replied that he was in Melbourne handing over houses to customers. 212Toward the end of September 2010 Mr Ceman attended a meeting with Mr Smit, Mr Michael Hanger and Mr Michael Hanger's solicitor, Mr Phillips at Mr Phillip's office. At that meeting Mr Smit said to Mr Hanger "Michael, you know very well Dino wasn't with me on the property and Dino didn't give you any instructions whatsoever on the property or anything about it, he never spoke to you". Mr Ceman said Mr Hanger kept quiet and did not say anything. Mr Phillips wanted to speak with Mr Ceman but he said that there was nothing to speak about because he was going to Court to tell the truth. Two to four days later Mr Ceman took his son to a meeting with Mr Phillips where he repeated his desire to attend Court to tell the truth. 213On 12 October 2007 Mr Ceman said he arrived at Kunanadgee some time after 9:30pm and Mr Bennett spoke to him about what had been done at the property. Mr Ceman inspected the site the next morning with Mr Smit by vehicle at approximately 10:30am. Mr Ceman saw workers on the property, levelling the tracks but did not see anybody working in the Murray River. Mr Ceman did not know at the time that either the Murray River or unnamed creek was fish habitat. He said he did not know the meaning of the word habitat until he came to Court for these proceedings. He did not know that the consent was limited insofar as any works to be done on the site. Mr Ceman agreed he signed an undertaking (exhibit L) to carry out works to return all the snags back into the Murray River and the unnamed creek after a discussion with representatives of the DECC. They advised that if he signed the document he would not be prosecuted. The unnamed creek in 2007, according to Mr Ceman was of very poor quality. He remembers it had a few puddles of black water and a lot of the creek was dry. There had been a drought for many years at that stage. 214Mr Ceman was given a certificate under s 128 of the Evidence Act in relation to part of his oral evidence in relation to the DEWHA investigations regarding breaches of the EPBC Act.

Cross-Examination 215In cross-examination the Prosecutor's counsel asked Mr Ceman about his education and employment history. Mr Ceman obtained a building admission to supervise building constructions in the former Yugoslavia after undertaking a trade course in building. He worked for six or seven years in the former Yugoslavia. After migrating to Australian Mr Ceman worked as a labourer and then at a construction company where he became familiar with building rules and regulations. He became a licensed builder in Victoria in around 1988 after sitting a three-hour English exam. Mr Ceman has lived in Australia for 40 years. He is a director and shareholder of a family business, DDC Constructions, which has been a registered company for approximately 22 years building residential dwellings. At the time he bought Kunanadgee Mr Ceman had approximately 20 subcontractors working for his business. At one time Mr Ceman was building 20 or 30 houses. Mr Ceman's son works with him and knows Mr Smit who has been his daughter's partner for eight or nine years. Mr Ceman is a director of Mato which was formed for the sole purpose of carrying out the development of the Kunanadgee eco-tourist resort. Mr Ceman was to receive one quarter of the share of profit from the development. 216Neither of the work diaries brought to Court had any record of Mr Ceman being in Kunanadgee on 12 October 2007 to 13 October 2007. He said he did not keep diaries of his involvement with Kunanadgee. 217Mr Ceman has working knowledge of proceedings of companies. Mr Ceman was shown the minutes of Mato's shareholders' meetings (exhibit P). Mr Ceman did not keep any notes of what was discussed at the meetings. He relied on Mr Coomes and Mr Bennett to keep notes. He also did not keep records of when he went to Kunanadgee to look at the progress of works. Mr Ceman was satisfied with the arrangement of Mr Coomes keeping the minutes of the meetings. Mr Ceman said that he received typed minutes by email in advance of a meeting and these were discussed at the beginning of the next meeting. He did not suggest any changes to the minutes which concern site clean-up. Contrary to Mr Ceman's evidence in chief, counsel suggested that what was recorded at section 3.1 of the 3 August 2007 minutes was discussed and agreed upon at the meeting. Mr Ceman said that he could not recall and that he would not expect a man with Mr Coomes' education and experience to falsify the minutes. It was suggested to Mr Ceman that it would be easier for machinery and the workers' removal of large woody debris at low water levels, and Mr Ceman responded that he would never advise that to be done because as a fisherman he likes fish to be present in the River. The minutes of 21 August 2007 mention that a scope of works document was prepared by Mr Coomes. Mr Ceman said he could not recall but did not think it had been prepared at that stage. 218Counsel questioned Mr Ceman at length about exhibit 4 (the response to the DEWHA statutory notice drafted by Mr Hanger). After receiving the statutory notice by mail Mr Ceman said he received a call from Mr Michael Hanger who asked whether he had received any documents and when Mr Ceman replied in the affirmative, Mr Hanger wanted to see them. They organised to meet at Mr Smit's office where Mr Hanger filled out a blank copy of the DEWHA statutory notice in his presence to guide him with his response. He says he was also given verbal instructions to assist him when answering questions at the interview with Mr Potter. When it was pointed out that the interview with Mr Potter was on 16 December 2007, which was before Mr Ceman received the DEWHA statutory notice dated 1 April 2009, he acknowledged he had made a mistake with the dates. 219Mr Ceman's response to the DEWHA statutory notice, exhibit S, was written by his son, Mr Dane Ceman, based on the document drafted by Mr Michael Hanger, exhibit 4. In accordance with the instructions given by Mr Michael Hanger, Mr Ceman said in exhibit S that he participated in an initial site visit around late August with Mr Michael Hanger and Mr Smit but that this was not factually correct. Mr Ceman said he did not read the cover letter from DEWHA (exhibit R) which refers to an offence under the Criminal Code 1995 (Cth) of knowingly providing false information in a statutory notice. 220When the draft statutory notice responses in exhibits S and 4 were compared by counsel, Mr Ceman said he did not exactly copy the responses suggested by Mr Michael Hanger for questions 1.3, which asked what route around Kunanadgee was taken during the initial site visit, and 1.4 which concerned conversations which took place during the initial site visit. When it was put to Mr Ceman that what Mr Michael Hanger had in fact said was that he would put down what he knew took place and Mr Ceman can change or add to it, Mr Ceman disagreed. He said it was how Mr Michael Hanger said his solicitor had said Mr Ceman should respond. 221Question 1.5 concerned conversations during the initial site visit about snags or de-snagging. In exhibit 4, Mr Michael Hanger had not written any response. Mr Ceman stated in exhibit S that there was no conversation about de-snagging, only cleaning up. When counsel asked where he got this information from, Mr Ceman said Mr Michael Hanger told him what to write. Question 2.1 asked what role if any Mr Ceman had in the preparation of the scope of works. In exhibit S Mr Ceman copied what Mr Hanger wrote in exhibit 4, that he had conducted the first site visit with Mr Hanger. Counsel suggested that this was a truthful answer, but Mr Ceman said that what he wrote was false because he did not visit the site with Mr Hanger. In response to question 2.2 which concerned conversations Mr Ceman participated in or heard in the course of the preparation of the scope of works and which related to its contents, Mr Ceman did not copy Mr Hanger's answer of "General talk but Mr Hanger compiled scope of works with Mr Coomes" (in exhibit 4) but wrote "General talks" in exhibit S. Counsel suggested that this was because he did not want to get Mr Coomes into trouble. Mr Ceman responded that he did not want to get anyone into trouble. It was suggested to Mr Ceman that he did not tell the full truth in exhibit S because he did not want anyone to get in trouble and that he was lying throughout his oral evidence to avoid getting convicted. Mr Ceman responded that he was not lying in Court and that he was trying his best to tell the truth. He admitted he lied earlier when he listened to other people and tried to help everybody else. 222In response to question 2.3, which asked to whom the scope of works or a copy of it was provided, Mr Ceman wrote "Not known, (Mr Coomes?)" in exhibit S. It was suggested to Mr Ceman that he wrote this instead of copying what Mr Michael Hanger wrote in exhibit 4 which was "Mr Coomes" because he did not want to get Mr Coomes into trouble. Mr Ceman disagreed saying that he gave that response because he did not agree with what Mr Michael Hanger had written. Counsel questioned Mr Ceman about his response to question 2.4 concerning the intended purpose of the scope of works, which differed to Mr Michael Hanger's suggested answer in exhibit 4. When Mr Ceman was shown a copy of the scope of works document (exhibit T), he said he had not seen it previously. Mr Ceman said he did not understand what was meant by "men and equipment power" at the bottom of the scope of works document. Counsel went through the document and what Mr Ceman saw on his visit to the property on 12 October 2007 to 13 October 2007 (that is a bulldozer, an excavator and approximately four men). Consequently counsel suggested that the scope of works was reasonably accurate as to what was required. Mr Ceman rejected this saying that it is not accurate and he would never agree to go through with it. He was taken to Mr Coomes' invoice to Mato for work done on 17 August 2007 (exhibit 2C) which records "prepare scope of works for contractor and email to J Smit". When counsel suggested to Mr Ceman that he had seen the scope of works document, Mr Ceman maintained that he had not. 223In response to question 2.5 of the statutory notice, asking about the uses to which the scope of works was put and whether it was referred to in any meetings or discussions between and including Mato personnel, Mr Ceman had copied Mr Hanger's suggestion in exhibit 4, that it "was tabled at a board meeting and given approval to proceed". Mr Ceman said that this was not factually correct. 224Question 2.6 asked whether Mr Ceman had ever been in possession of a scope of works and if so, what he did with it (2.6.1) and where it was located (2.6.2). With regard to its location, Mr Hanger's suggestion in exhibit 4 was "Ask Mr Coomes". Mr Ceman's response in exhibit S was "Don't know". Given this deviation from Mr Hanger's suggestion, counsel put to Mr Ceman that he was exercising an independent mind and that he did not want to say anything that might put Mr Coomes in a difficult position. 225Question 2.7 asked whether Mr Ceman had ever read the scope of works. If so, it required Mr Ceman to indicate when and in what circumstances it was read (2.7.1), when it was most recently read (2.7.2) and to describe the contents and effect of the scope of works to the best of his recollection (2.7.3). Mr Hanger's suggestions in exhibit 4, in response to question 2.7 was "No need" and to question 2.7.3, "Clear tracks, remove timber unknown creek, pull logs on bank river, access track to wetlands, clear fallen timber around property." Mr Ceman's answer in exhibit S omitted "remove timber unknown creek" and "pull logs on bank river". Counsel suggested Mr Ceman left them out because he knew that those actions were not supposed to have been done and he did not want to get into trouble by making an admission to that effect. Mr Ceman replied, "No ... the damage has been done when I fill this out ... the timber has been pulled out of the river". Mr Ceman agreed with counsel that on occasion he was happy to put down what he wanted to and he was not fearful of Mr Hanger, even though Mr Hanger was angry on many occasions when Mr Ceman did not copy his answers. However, when counsel suggested that Mr Hanger was not forcing Mr Ceman to do anything including give a false account to the Commonwealth authorities, Mr Ceman disagreed. Counsel proposed to him that in answering the statutory notice Mr Ceman was intending to tell the truth in some parts and not others. For example, that he did not want to make admissions about knowledge or direction of the removal of fallen logs from the banks of the unnamed creek or Murray River or from within the unnamed creek or Murray River. Mr Ceman replied that he did not give anyone instructions to do that. 226Part 4 of the DEWHA statutory notice deals with the site visit by Mato personnel on 12 - 13 October 2007. In answer to question 4.1 about who was present at Kunanadgee during the visit, in exhibit 4 Mr Hanger's suggestion is "Me, Ian Bennett, Jim Coomes, Brian". In exhibit S Mr Ceman had added to that list "Jack Smit and Brian Bird". Mr Ceman confirmed that this information was correct. Counsel again asked whether sometimes Mr Ceman was intending to tell the truth and sometimes he was lying, to which Mr Ceman replied "That's correct". When asked how to tell when Mr Ceman was lying and when he was telling the truth, Mr Ceman replied "Well I'm here to tell the truth today". He added that Mr Hanger made him lie to the Commonwealth authorities in his response to the statutory notice and that he listened to Mr Hanger so that they could "rectify the problems" and the matter "wouldn't go any further". Counsel asked whether Mr Ceman went around the property on 13 October 2007 and saw the workers still working. Mr Ceman replied he did. Mr Ceman disagreed that he saw them pulling logs out of the Murray River. When asked whether he did anything to stop the workers doing anything, Mr Ceman replied it was not his duty and he was not aware of all the things that needed to be done. 227Counsel questioned Mr Ceman about his ROI. Mr Ceman said it was a true record of what he said but that some of his answers on that day were lies. He knew it was being recorded. He said if he had understood it as a serious interview, he would have taken a lawyer. He thought he was there to tell Mr Potter what happened and that would be the end of it. After cautioning, Mr Potter asked Mr Ceman whether he understood the caution to which he replied at the time "Yes, I do" (ROI par 19). In oral evidence Mr Ceman said that at the time he did not understand the caution that what he said could be later used in evidence and that he did not think it was a serious interview. Counsel put to Mr Ceman that he told the truth at the interview because he felt he could do so; he did not think that by telling the truth anything would happen to him. Mr Ceman disagreed with that proposition. Subsequently counsel asked why there was a need to lie if at the time Mr Ceman did not think it was a serious interview. Mr Ceman replied, "Because I was told what to say and that if I say that, that matter will stop, won't go further ... no one will be charged or hurt". He said he did not lie only for his own convenience, but also to ensure there would be no trouble for anyone else including the contractors and Mato. 228Mr Ceman was referred to his ROI where he mentioned he bought Kunanadgee (see par 196 above). He agreed that he knew Mr Michael Hanger before the clearing started. Counsel queried whether Mr Ceman knew Mr Michael Hanger at the time Mr Smit was introducing him to do the work. Mr Ceman responded that he did not know at first whom Mr Smit meant when he referred to "the contractor" but when he mentioned it was Mr Michael Hanger, Mr Ceman did know who that was. They had met after he purchased the property at Kunanadgee, through Mr Smit. At par 136 of his ROI, when Mr Potter asked Mr Ceman when the site meeting with Mr Hanger took place, Mr Ceman had replied, "That would be hard, in September or something. Honestly I'm not quite sure." Counsel compared this date with Mr Hanger's suggested response to question 1.1 of the statutory notice asking when the site meeting took place (exhibit 4), of "Sometime later, August is the best I can tell you", and Mr Ceman's response (exhibit S) of "late August". When counsel asked Mr Ceman why he said September in the interview, Mr Ceman replied that it was a mistake. Mr Ceman rejected counsel's suggestion that he responded truthfully at the interview. 229Mr Ceman was directed to par 145 of his ROI where he told Mr Potter the specific instructions he gave to Mr Hanger at the site visit (which he now denies occurred) and asked whether it was a lie. Mr Ceman said he was helped with this answer too. He agreed when counsel asked whether his response at par 147 of his ROI (Mr Ceman told Mr Potter that he gave those instructions verbally) was a lie. At par 148 of his ROI, Mr Potter asked Mr Ceman whether Mr Hanger was provided with any other instructions regarding work he was to carry out on Kunanadgee and at par 149 Mr Ceman had responded, "Well actually I understand it was a discussion with ... [Mr Coomes who] was [the] one nominated ... to be [the] construction manager, there was discussions with him on that too". Counsel queried why he had volunteered this information and Mr Ceman replied he was told by Mr Michael Hanger to do so. Counsel proposed Mr Ceman was merely telling the truth as he understood it. When Mr Ceman denied this, counsel proposed he was lying in the witness box and that it was an honest answer he gave to Mr Potter because Mr Ceman knew that Mr Coomes had spoken to Mr Hanger about what he was to do. Mr Ceman said he did not know this. 230Counsel asked whether he knew Mr Coomes and Mr Hanger met on 16 August 2007 to discuss the scope of works for the clean up of the site. Mr Ceman said he could not recall. At par 155 of his ROI Mr Ceman told Mr Potter that Mr Smit was also there on the site visit. Counsel asked whether it was true that Mr Smit was there with Mr Michael Hanger but Mr Ceman was not. Mr Ceman said he had lied when he said he was there on the site visit but it was true that Mr Smit took Mr Hanger to Kunanadgee to show him around because Mr Smit reported it. Counsel suggested that Mr Ceman was lying. Mr Ceman again denied that he was with Mr Smit on the site visit. Paragraph 159 of his ROI reports Mr Tilbrook asking Mr Ceman to elaborate on his instructions to Mr Michael Hanger about clearing snags from the banks. Mr Ceman had responded "was anything sitting on ... the bank, on the ground ... all dead trees ... I did ask him I said you just pull them up and clean them up there." He said in oral evidence that this was a lie. Mr Tilbrook also asked whether that meant Mr Hanger was to pull out a snag lying on the bank which had fallen into the water. Mr Ceman had replied, "Well no ... we didn't ... specifically ... say Well, pull this out but don't pull this out. I did say 'Any dead trees on the banks or something, pull them out, clean them and put them on the side on the pile'. It's all what was instructions for that." In oral evidence Mr Ceman said this was a lie. 231Counsel further put to Mr Ceman that his oral evidence about the ROI and why he gave those answers at the interview were "a pack of lies". Mr Ceman disagreed maintaining that he lied at the interview and that his oral evidence in Court was truthful. 232In relation to his work diaries Mr Ceman agreed they were hundreds of pages long and full of entries written in English. If he could not spell something in English he would write it in Yugoslav. 233Counsel for Mr Coomes cross-examined Mr Ceman on Mr Coomes' role in Mato. Mr Ceman was asked whether the minutes of Mato's shareholders' meetings (exhibit P) recorded the passing of a resolution directing Mr Coomes to instruct, supervise and meet with Mr Michael Hanger. Mr Ceman said that he could not see it specified in the minutes but he was appointed to be construction manager and to supervise construction. When it was suggested that this was false because Mr Coomes was appointed project manager not construction or site manager, Mr Ceman replied that this included organising the scope of works and supervising all the works. In relation to question 2.3 of the DEWHA statutory notice which asked "To whom was the scope of works or a copy of the scope of works provided?" in exhibit 4 Mr Michael Hanger suggested "Mr Coomes" whereas Mr Ceman's response (in exhibit S) was "not known (Mr Coomes?)". Counsel put to Mr Ceman that the reason he made this change was because he did not in fact know that the scope of works was provided to Mr Coomes. Mr Ceman disagreed saying in this case Mr Michael Hanger was trying to blame someone else for pulling out the logs without consulting anyone. In response to question 3.24 which asked for the "details of any persons (other than yourself or Mr Hanger) who were party to, or present during, the conversation", Mr Hanger nominated Mr Bennett and Mr Coomes in exhibit 4 whereas in exhibit S Mr Ceman only nominated Mr Coomes. Mr Ceman did not have an independent recollection of that conversation having taken place. In relation to question 6.1(c) of the DEWHA statutory notice, which asked who "may have been aware of de-snagging works" at or before those works were undertaken, Mr Michael Hanger suggested Mr Ceman, Mr Bennett and Mr Coomes (in exhibit 4). In his response Mr Ceman nominated Mr Bennett and Mr Coomes with a question mark (in exhibit S). Counsel proposed that the reason he put a question mark after "Mr Coomes" was because Mr Ceman had no independent knowledge of whether Mr Coomes knew of the de-snagging prior to the time it was undertaken and he only included Mr Coomes because it was what Mr Michael Hanger had told him to say. Mr Ceman agreed with that proposition. 234Counsel took Mr Ceman to par 274 - 275 of his ROI where Mr Potter had asked what Mr Coomes was engaged by Mato to do with regard to the eco-tourist resort. Mr Ceman answered that Mr Coomes was engaged to organise the refinancing of the project and "more or less supervision in conjunction ... [with Mr Bennett]". Counsel proposed that the reason Mr Ceman spoke with hesitation about Mr Coomes' role was because it reflected his discussions with Mr Michael Hanger who had been telling him to blame Mr Coomes. Mr Ceman agreed that Mr Michael Hanger coached him for the interview.

Re-examination 235In re-examination, Mr Ceman's counsel asked whether there were any oral discussions about Mr Coomes' role. Mr Ceman replied, "[T]he discussion was to prepare the scope of works to work on different - like, organising for the finance - papers for the finance and manage or supervise the constructions". To support Mr Ceman's statement during cross-examination by the Prosecutor (see par 232 above) that when he does not understand or does not know how to spell something in English he will write something in his own language, counsel asked Mr Ceman to locate a diary entry written in his native language. Mr Ceman translated in English a diary entry written in his native language. 236Counsel showed Mr Ceman copies of his worksheets for properties and diary entries for 27 and 28 August 2007 (exhibit 5). Mr Ceman's diary entries record that on those dates he was involved in a handover of properties in Victoria.

Evidence for Mr Bennett 237Mr Bennett gave oral evidence of how he suggested the eco-tourist resort project at Kunanadgee to Mr Ceman. Mr Bennett's role was to obtain development consent for the project for which he received a fee. He is also a director of Mato. He instructed the necessary consultants to support the development application, including Habitat Planning. Their report states that fish habitat such as logs in the River will not be removed and the construction of boating works on the bank of the Murray River will not take place, as Mr Bennett instructed them. 238He advised that the directors of Mato were nominees of four trusts, Ms Alisa Ceman, Dr P Wood, Mr Ceman and himself. Mato held regular meetings approximately fortnightly at which all four joint venture parties had representatives. Mr Smit represented his partner Ms Ceman, Mr Ceman's daughter. Once Mr Coomes was appointed project manager he also attended by invitation. Proceedings were conducted informally. The minutes taken by Mr Coomes were his notes of the meetings. Meetings were generally held in Mr Smit's offices probably because he had the facilities there. It took about two years to obtain development consent which he identified as the development consent which became exhibit 1A (the Parr consent). He recognised it because it shows a corrected address having been sent to the wrong address in Hamilton, not Hampton. He thinks he received this a week or two after 30 May 2007. He made copies for the other joint venturers and gave these to them at a meeting. They realised they needed a proper project manager because there were preconditions which had to be met. He recalls that he emphasised to everyone, Mr Smit, Mr G Wood, Mr Ceman, the importance of complying with the development consent conditions. 239In relation to the ROI where he was asked questions about snag removal at Kunanadgee he stated that the minutes of shareholders' meetings record a resolution that they do some preparatory work getting ready for the commencement of works under the planning permit and a resolution was passed that debris would be cleared including from existing tracks. Mr Smit advanced that resolution to the board and that he knew a contractor who could do the job. Mr Smit undertook to meet that contractor, later found to be Mr Michael Hanger, to show him the site. Mr Bennett believes Mr Smit did show Mr Hanger the site as found out through this investigation process, that he went around 27 August to drive Mr Hanger around the site. Mr Smit recommended that Mr Coomes prepare a brief and that a quote be obtained. Mr Smit raised the possibility of offsetting the cost of the work with the purchase of a block of land because Mr Hanger was a keen water skier and wanted a property on the Big River Billabong. A purchase agreement was entered into with Mr Hanger later in about 2008. 240Mr Bennett was asked about this use of "we" in the ROI. He stated that the company took responsibility for the snag removal as someone had to and the company had engaged the contractor. When he was asked at the ROI in November 2007 he had no idea until 12 October 2007 that the snags had been removed. He gave no brief to Mr Michael Hanger at all. There was no brief from the board to touch any snags, only to remove woody debris and dead wood from the site. Mr Bennett first met Mr Hanger at the site on 12 October 2007. 241Mr Bennett was asked about statements attributed to him by Mr Potter at the site meeting on 25 October 2007 including that "a log on the bank was fair game". He explained this as meaning his attempt at explaining what was in the minds of the contractors including Mr Michael Hanger. He knew that snags should not be removed from the River or the unnamed creek and that logs on the bank were not part of the brief. Mr Bennett issued the stop work order to Mr Michael Hanger to stop taking snags from the River. On 12 October 2007 he arrived at Kunanadgee with Mr Coomes and Mr Bird. He went to the homestead where he had a meeting with a real estate agent for about an hour and saw Mr Smit. About 11am or 11:30am he was introduced to Mr Hanger and said he would like a site inspection. Two groups of cars were organised. He went with Mr Michael Hanger as the person in charge in Mr Michael Hanger's truck. The others went in another vehicle. He was asked by reference to the aerial photograph (exhibit A p 724) where he went at Kunanadgee, which was around all the works past the stockpile at site 660 along the unnamed creek to the north and the cleaned up old track on the northern side until about site 688 where the truck stopped. He saw a log with a chain around it and it was clear that attempts had been made to pull it out of the unnamed creek. He then told Mr Michael Hanger that removal of logs from the creek and the River was not permitted under the consent conditions. They drove across the man-made blocked section of the unnamed creek which was there when Kunanadgee was purchased and drove along the southern side of the unnamed creek until they got to the Murray River and followed that along. They drove along slowly and did not stop. He saw two other workers at work probably Mr Damon at site 635 where he was picking up trees off the track. He could see that snags had been removed in that area but there was no further snag removal. He saw snags that looked like they had come straight from the Murray River as they had bulbs on one end and wet areas and mud sticking to them. Mr Bennett told Mr Hanger that he would have to return the snags to the River and that such work had to stop. He did not talk to any other workers while driving around. He saw Mr Root later on working on a track. 242Later that day he went into town to meet Mr Parr, inter alia, at the Council chambers. He returned to Kunanadgee that evening by which time Mr Coomes was feeling very unwell. He got up early the next morning and told Mr Michael Hanger that the machines had to be moved from the sensitive southern area up to the northern area and there should be no more removal of snags from the Murray River. 243In relation to Mr Coomes' role, he attended the shareholders' meeting where the site clean-up was discussed. Mr Bennett had no direct conversation with Mr Coomes about the site clean-up. He clarified his answer about when Mr Coomes was sick as he did come up on 12 October 2007 for the site inspection. He did not know exactly what communications failed, whether Mr Coomes to Mr Hanger or Mr Smit to Mr Hanger. Mr Bennett was not aware of exactly what instructions were given to Mr Hanger. He assumed that Mr Smit would have told him to clear the tracks but he has no real idea as he was not there. At the meeting on 5 October 2007 Mr Smit stated that the works had not commenced so he assumed that was correct. He has no personal knowledge of whether a site plan was shown to Mr Michael Hanger. 244When asked in the ROI about what measures were taken to ensure consent conditions were complied with he stated that the board gave instructions to clear the dead wood off all existing tracks as good farmers, as timber had been piling up on the property. The brief was oral. The measure taken to ensure the details in the minutes were complied with was the appointment of Mr Coomes to oversee project development. There was nothing wrong with what the minutes said in terms of briefing the contractor. In relation to supervision at Kunanadgee between 5 and 15 October 2007, with hindsight this was unsatisfactory because until 12 October 2007 the board did not know there was no supervision. 245Mr Bennett engaged Habitat Planning as a consultant ecological firm at Mr Parr's suggestion. He noted the conclusion in their report that the proposal did not involve development on or near the Murray River and associated creeks and wetlands and would not affect the aquatic flora and fauna in their habitat. When he said he took responsibility for what occurred he meant financial responsibility. He was asked to explain what he meant by "we" at various points in the ROI as sometimes it meant the directors and/or Mr Coomes and/or the contractors. 246Mr Bennett signed the undertaking given to him by DECC as he was lead to believe by a departmental officer and a Crown solicitor's employee that there would be no prosecution if he did. He did not agree with the statement in the document that "Mato Investments has removed a large number of snags" as Mato did not do so but did assume financial responsibility. 247In cross-examination by the Prosecutor's counsel, Mr Bennett was asked about his qualifications and property development experience over 33 years and about his financial interest as a director of Mato, and the company structure of Mato. He agreed he was a quarter owner through a personal trust and stood to gain from the sale of any completed lots in the development. He first became involved in November 2005 through discussions with Mr Ceman whom he knew for about six months. He met Mr Coomes through Mr Smit in late 2006, perhaps early 2007. He understood Mr Coomes had worked as a town planner with Mr Smit on other projects. 248His role, for which he received a monthly retainer, was to obtain approval for the development application. He liaised with the Council. He organised for Habitat Planning's ecological report to be prepared and skim read that report which refers to endangered aquatic ecological communities. He was aware that the unnamed creek on the property and the Murray River were next to much of Kunanadgee. When it was suggested that he took no steps to tell the contractors about the conditions of consent, Mr Bennett stated that Mr Coomes was well aware of these. Mr Bennett had no contact with Mr Hanger. 249Mr Bennett was asked about the minutes of shareholders' meeting which were the notes kept by Mr Coomes from 18 July 2007, the first meeting Mr Coomes attended. He agreed there was opportunity to correct the minutes at the next meeting. He was questioned about wording which refers to a contractor doing a site clean-up around the River and creek and constructing an access track in a discrete manner. Mr Bennett did not recall the statement "should be done as a matter of urgency whilst water levels were low" being said at the meeting. He was asked about an email to Mr Parr at the Council dated 18 October 2007 in which it was said that the instructions to workers for site clean-up was to clear the farm of dead logs which were unsafe or scattered as debris. A second task identified was to clear logs from existing farm tracks. He was seeking to clarify the board's instructions to Mr Parr as he was concerned about what he had seen on 12 October 2007. 250Mr Bennett denied that he saw Mr Damon or anyone else taking logs from the Murray River. He saw him moving logs across a track. It appeared to him that condition 16 had been breached given that large woody debris had been removed from the creek, the River and banks of the creek and the River. He told Mr Hanger to stop the work in relation to the snag removal from the River, the creek and the banks. He did not refer to this when he met Mr Parr in the afternoon that day as he had other people with him and wished to fix up what had occurred. He did not instruct Mr Michael Hanger to undertake that work and he denied that the instruction to Mr Coomes passed on to the workers included doing such work. 251Mr Bennett did not see a scope of works and was not aware if one was prepared. He was shown the scope of works document produced on subpoena from Fine Line Building Projects Pty Ltd (exhibit T) and was asked whether the work specified fitted in with what he considered had to be done. He did not agree that the reference to item 3, the marina area and item 5, removing trees and logs in creek was what was intended. Item 7, remove any major dead trees in the river subject to being able to do so was against the principles of Mato and Mato's instructions. The scope of works does not comply with the board's instructions. There was never any intention to touch the unnamed creek. 252When he attended the ROI he knew he did not have to participate and could leave. He chose to bring Mr Coomes to the interview. He brought Mr Coomes because he believed he was to assist in the investigation and he was hopeful of resolving the matter. He realised quickly that the ROI was a serious matter. Generally speaking his answers are true and correct while there may be a few incorrect statements. The dates of Mr Coomes' illness are incorrect. The first time he was aware that Mr Coomes was unwell and this was interfering with his role as project manager was on 12 October 2007. He thought he had authority to speak on behalf of the Mato board having obtained verbal consent but has since discovered he should have been authorised in writing. 253He was shown a copy of the Corcoran consent in the ROI but this was not the consent he received signed by Mr Parr. The Corcoran consent was not the correct version. He did not realise it was the wrong version at the ROI. 254Mr Bennett could not point to anyone who told the contractor not to remove logs or woody debris from the banks of the River. He was not involved in any such discussion. He assumed the contractor had been told to remove logs and woody debris from around the property but did not have any involvement in that. He has never seen the scope of works in evidence. He denied that it accorded with a meeting between him, Mr Ceman, Mr Coomes and Mr Smit. He had no knowledge that such instructions had been passed to Mr Michael Hanger. He denied that he said to Mr Coomes to get contractors to clear the logs and woody debris from around the farm. 255In the drive around on the site on 25 October 2007 when Mr Bennett said, "the boys might have gone a bit feral" he was attempting to explain possible confusion in Mr Michael Hanger's mind. He was answering on behalf of the team throughout much of the ROI so that he referred to "we". This included covering up for Mr Michael Hanger whom he believed was in trouble. He considered Mr Potter was addressing him as a director of Mato because he personally had no involvement. He denied lying in oral evidence about speaking from Mr Michael Hanger's mindset at the ROI. When he said "we stuffed up" that was referring to Mr Hanger as well as the company. 256In relation to the undertaking Mr Bennett did not agree with the factual statement in clause 1.3 but Mato decided to sign it. He read it before he signed it after discussion with NSW Government lawyers rather than Mato's lawyers. Mr Bennett considered he was induced into signing the undertaking because DECC had decided to discontinue investigations into the site and acknowledged that Mato had been cooperative as detailed in an email from the department's solicitor dated 17 July 2007. 257Mr Bennett agreed he did not tell Mr Parr there was a problem with the site clearing on 12, 17 or 18 October 2007. He agreed that the email of 17 October 2007 distinguishes between site clean-up and clearing of farm tracks. 258Mr Bennett was going to visit the site on 12 October 2007 to see what had been done to ensure it was being done properly. He knew there were contractors on site doing work as he knew Mr Smit had arranged at the meeting of 5 October 2007 for contractors to go on site. He was expecting to go and see the clean-up of dead logs on the property including tracks. Mr Coomes asked to come for the visit with Mr Bird. He told Mr Michael Hanger at the end of the drive around on 12 October 2007 that the work in the River and creek had to stop and the snags would have to be returned to the River. He did not discuss any of his concerns with the other workers as they were Mr Michael Hanger's subcontractors. He did not agree that he was lying in giving this evidence given the invoice of Mr Damon shows that he pulled logs from the River on 13 October 2007. That work was in contravention of his instructions to Mr Michael Hanger. 259Re-snagging could not take place immediately as it was a complex activity to undertake which had to be properly planned and executed. Mr Bennett denied that the first time he thought of re-snagging was after the Council, DECC and Fisheries officers went to the property. 260Mr Bennett agreed that on his appointment Mr Coomes was to take control of the development of the site on behalf of the company. He was not aware of any scope of works when he attended the ROI with Mr Potter. None was presented to the board. Upon the appointment of Mr Coomes he considered as a director of Mato that there would be proper directions given to anybody working on the site as Mr Coomes would control the scope of works and control the works. 261Mr Smit attended most of the shareholders' meetings and these were held in his offices. He was not given authority to be involved in the scope of works. His brief was to take Mr Hanger and show him the site with Mr Coomes to prepare a scope of works for Mr Hanger. At the time of his ROI he had no idea what instructions were given to the contractors other than ones in accordance with the determination of the board. 262In cross-examination by Mr Coomes' counsel in relation to Mr Coomes' role and responsibilities, Mr Bennett agreed that Mr Coomes was responsible to him in the corporate structure as he understood the consent. He worked closely with Mr Coomes on financing and marketing, preparation of budgets and costings for the project. There was no written contract with Mr Coomes. 263Mr Bennett agreed that it was not Mr Coomes' role or responsibility to issue instructions to other people in relation to the works to be carried out by Mr Michael Hanger at Kunanadgee. Mr Bennett did not give any instructions to Mr Coomes to supervise Mr Hanger's work. Mr Smit was the one dealing with Mr Hanger. Mr Bennett had no knowledge of what happened as between Mr Smit, Mr Hanger and Mr Coomes, if anything. 264Mr Smit was heavily involved in the development of the project and participated actively in the shareholders' meetings. Mr Bennett agreed that he may have considered he had assumed authority within the rules specified by the board. Mr Smit was the person who introduced the contractor to the board and recommended that his fees be offset by the purchase of a lot. Mr Coomes was asked to prepare a scope of works and obtain a quote. There is no express reference to Mr Coomes being provided with authority to actually supervise or direct the contractor. 265Mr Bennett agreed that Mr Coomes was hard working and brought considerable expertise to the project. In relation to going through the consent conditions with Mr Coomes, Mr Bennett could not recall exactly when that occurred probably when he first arrived in July 2007. He could not recall going through Habitat Planning's report in detail with Mr Coomes just the recommendations and conditions that related to it. At that stage the focus was on the work to be done in the top third of the property as the area below was intended to be left untouched. In relation to Mr Coomes' role, his expectation about the role of project manager in the absence of any express instructions was that this would include supervision. 266In October 2007 Mr Bennett was not aware that Mr Hanger had been convicted of breaching a Victorian planning scheme and fined $20,000.

Evidence for Mr Coomes 267Mr Coomes read the following affidavits in relation to character: affidavit of Mr Jones dated 18 February 2011; affidavit of Mr O'Leary dated 3 March 2011, affidavit of Mr Sjerp dated 10 March 2011, and affidavit of Mr Turnbull dated 4 March 2011. The character references were by professional colleagues who had known Mr Coomes for close to or over 20 years and attested to his integrity and professionalism. All were aware of the charges against him. The following affidavits were also read; affidavit of Dr Ingram, medical doctor, dated 1 March 2011 and a statement of evidence of Mr Graeme Wood, director of Mato, dated 7 September 2010.

Mr Wood 268Mr Wood is an optometrist who invested in Mato's eco-tourist resort development project with his two brothers. Since 2006 he has chaired Mato's shareholders' meetings but was not involved in the day-to-day running of the project. There was no meeting at which Mr Wood was present during which instructions were given by telephone linkup or speakerphone to Mr Michael Hanger in relation to the clearing or other works at Kunanadgee. To the best of his recollection, general reference was made to the clearing of fire trails and hazard reduction. No reference was made to the removal or snags, logs or any interference with the Murray River. Mr Wood only became aware of Mr Michael Hanger's involvement in the project when he was informed by the Department about this incident. He was aware that Mr Coomes was engaged to act under the direction of Mr Bennett. 269Mr Wood gave oral evidence in chief that he is not a director of Mato or of the joint venture. He and his brothers were passive investors in 25 per cent of the Kunanadgee project. As it was easier for him to attend meetings than it was for his brothers, he attended almost all the meetings. He was acting in the role of informal chairman because they were looking to minimise the time spent so he would facilitate the discussions. Mr Wood was aware that Mr Coomes was appointed by the joint venture as project manager. Mr Coomes' authority did not extend to the appointment of contractors or subcontractors. Mr Wood said to his knowledge, Mr Coomes was appointed to help facilitate ongoing works, as in getting bank approvals and new financing. Mr Wood said Mr Coomes did not tell him that he was providing any instructions to, or directing, Mr Michael Hanger. He was aware Mr Coomes, through his company Coomes Planning, was engaged under the direction of Mr Bennett, as he ran the project from the very beginning and had the most intimate knowledge of everything that happened there. Mr Wood had no direct involvement with the day-to-day running of the project. 270In cross-examination by the Prosecutor in relation to Mr Coomes' role, counsel showed Mr Wood minutes of Mato shareholders' meetings (exhibit P) and asked if they were accurate. Mr Wood said they were notes taken at a meeting, which the shareholders used in a following meeting as a reminder of what they spoke of last time and a starting point for discussions. He assumes they are accurate. Counsel asked whether Mr Wood was the chairman of the meetings on 18 July 2007, 3 August 2007 and 21 August 2007. Mr Wood replied that they did not really have a chairman. He directed the conversations and cut the meeting times down. He was not a formal chairman in the company law sense. 271Mr Wood said Mr Smit came to just about all the meetings. Counsel asked Mr Wood whether he agreed with Mr Coomes' description of Mr Smit as a de facto director. Mr Wood replied, "No more than I was. I was at every meeting, and I had no role in day-to-day stuff, I had no role in who was appointed for anything. We never had one vote, so it's not like I could change anything at all." 272Counsel asked whether Mr Coomes was assigned by the shareholders to keep the minutes of the meetings. Mr Wood answered, "Well, he just did them, and before that we had no minutes". Counsel queried whether Mr Coomes kept the minutes well. Mr Wood said that they were Mr Coomes' interpretation of what happened, he did not greatly object to what was written but he did not scrutinise them. Mr Wood used them as a reminder of what they spoke of at the last meeting. Mr Wood did not recall receiving by email agendas from Mr Coomes prior to the meetings or the minutes of the meetings afterward. Mr Wood disagreed with counsel's proposition that he did not have an independent recollection of much of what was discussed at the meetings. Mr Wood did not make any changes to any of the minutes nor did he keep his own notes of the meetings. 273In relation to item 3.1 of minutes of the meeting on 3 August 2007, Mr Wood said, "I remember reference to tracks ... reference to logs lying around but there was never a mention of anything to do with touching the river and that I can absolutely be absolutely certain of." 274Counsel for Mr Ceman and Mato suggested in cross-examination that Mr Bennett went into the background as Mr Coomes was coming in to take over the project. Mr Wood responded that it was expected that Mr Coomes and Mr Bennett would work together because the latter had a "massive knowledge of the project from day one" and the former "added some new energy and some new skills". Mr Wood concurred with counsel that it was expected Mr Coomes would act as project manager on behalf of Mato. There was no discussion at the shareholders' meetings about taking any snags or any timber out of the River or the creek. Mr Wood stated that the shareholders "were led to believe that there was a lot of tidying to be done. But that certainly didn't involve the river". 275In re-examination Mr Wood acknowledged that he did not have knowledge of the day-to-day relationship between Mr Bennett and Mr Coomes, including instructions flowing from Mr Bennett to Mr Coomes. Mr Wood accepted that he was not in a position to know or speculate on whether Mr Coomes was ever given instructions to supervise or direct Mr Michael Hanger. Mr Wood agreed that to his knowledge the scope of works had never been put to the shareholders' meetings. Mr Wood also agreed with counsel that his evidence was that he would expect the drafting of the scope of works to be something that Mr Coomes, given his level of expertise and facility with the language and issues of detail, could turn his skills to. Counsel suggested that Mr Wood would not expect Mr Coomes to provide instructions on the ground to any contractor or subcontractor to actually implement a scope of works, without having to go back to the shareholders' meeting, where that involved significant works. Mr Wood said Mr Coomes was a meticulous planner and would "run that by you before he did anything like that". When counsel asked whether Mr Wood had any reason to doubt Mr Coomes' honesty and integrity, Mr Wood answered "No, not at all. If anything, I think that's one of his better points".

Mr Coomes 276Mr Coomes gave evidence that he lives in Canterbury, Victoria and has been a town planner for over 40 years. He has worked primarily in Victoria and until the Kunanadgee project, had never worked in NSW and is not familiar with the NSW planning and environmental regime. In his work as a town planner, Mr Coomes has appeared as an advocate before the Victorian Civil and Administrative Appeals Tribunal since 1972. Mr Coomes has also appeared regularly as an expert witness in that jurisdiction. He is not an engineer and does not have any expertise with the Building Code of Australia or assessing compliance with that code. Mr Coomes was one of the people who helped establish the Victorian Planning and Environmental Law Association and was an executive director. From 1974 to 1980 he was an executive member of the Royal Australian Planning Institute. Mr Coomes' curriculum vitae was tendered (exhibit 8C). 277Mr Coomes gave evidence that he was invited by Mr Smit to become involved in the Kunanadgee project shortly after the development consent was issued, around early July 2007. Coomes Planning, a business name owned by JL Coomes & Associates Pty Ltd, has been in operation since 1983. It was retained by Mato, the manager of the joint venture, to work on the Kunanadgee project, however there was never a written contract. Mr Coomes stated he was solely responsible to Mr Bennett. Mr Coomes said nobody else gave him instructions but he kept Mr Smit fully informed as requested, on a daily basis. 278In relation to his tasks, Mr Coomes said, "at the first meeting on 18 July, Ian Bennett stated that the most important task was the refinancing. Mr Coomes also conducted other tasks such as assisting with obtaining secondary consents and conducting market research". Up to 11 October, the bulk of his time was spent on refinancing. Counsel showed Mr Coomes his timesheets for work conducted on Kunanadgee commencing on 12 July 2007 (exhibit 9C). He had done some preliminary work prior to that date but had not recorded it. Mr Coomes' usual practice in creating timesheets is to make handwritten notes on a running sheet throughout the day and then type individual entries on a daily basis. This was intended to provide a detailed description of the work carried out each day. 279Mr Coomes was not given authority by the Mato board, the joint venture or any of Mato's directors, including Mr Bennett, to instruct or direct or supervise those carrying out the works at Kunanadgee in October 2007. Mr Coomes believes he attended all of the shareholders' meetings that were held between July 2007 and October 2007. When counsel asked whether the Mato joint venture requested him to prepare a scope of works, Mr Coomes replied, "That was ... a resolution of the joint venture. But I never took instructions directly from the joint venture. Generally, the instructions of the joint venture were conveyed to me by Ian Bennett. And he never gave me those instructions ... and nor did [Mr Smit]". Mr Coomes said he could not accurately be described as the site manager of Kunanadgee because he did not have experience or qualifications in engineering and in the use of heavy machinery. Construction manager was also incorrect because he did not have qualifications or experience in construction. Mr Coomes' professional indemnity insurance policy (exhibit 10C) which applied in 2007, does not cover construction work and Mr Coomes was told by his broker that the policy would cover him if he was "working generally in the planning area and did not accept any responsibility for any construction work". 280Based on his timesheets Mr Coomes said he first obtained a copy of the 65 development consent conditions on 16 August 2007, despite previously asking Mr Bennett and other consultants working on the project for a copy. Mr Coomes believes he first obtained a copy of the EIS and accompanying reports on or about 24 August 2007, on which date an entry in his timesheet shows he scanned various reports. Mr Coomes did not receive a detailed briefing on the EIS and accompanying reports from Mr Bennett. Mr Bennett and Mr Coomes had discussions after 24 August 2007 with regard to aspects of the reports "[i]nsofar as they had an effect on the costing of the project or the development of the project". Mr Coomes was concerned with the top third of Kunanadgee, that is, the area above "the hundred year flood line" because that was where buildings were proposed and the development was to occur. Mr Coomes read in detail the reports which affected this area and were related primarily to infrastructure and development such as the wastewater report. He believes he would have skim read Habitat Planning's report. 281In October 2007 Mr Coomes was not aware that the land at and surrounding Kunanadgee was the habitat of trout cod or silver perch. He had no detailed knowledge of the environmental issues in the area and did not know of the lower Murray EEC. Mr Coomes had no working experience at that time of the FM Act or other NSW fisheries legislation.

Meeting with Mr Michael Hanger/scope of works document 282Mr Coomes was first introduced to Mr Michael Hanger at some time prior to 16 August 2007 when he walked into Mr Smit's office and Mr Michael Hanger was there. Mr Smit told him that Mr Michael Hanger was going to carry out the clean-up work on the site and he also told him not to advise the other joint venturers as Mr Michael Hanger may not be acceptable to some of them. The meeting took probably three to five minutes at the most. Mr Coomes said he neither knew what Mr Smit meant nor why Mr Michael Hanger may not have been acceptable. 283On 16 August 2007 Mr Coomes said Mr Michael Hanger, without an appointment, walked into his office and said that "he had been up to Kunanadgee with Jack [Smit] and Dino Ceman and that they had worked out ... what needed to be done." Mr Coomes said, "he provided me with a handwritten document which contained a list of tasks to be undertaken and advised me that Jack [Smit] had requested him to get me to type it up". He estimates the meeting would have lasted no more than half an hour. Counsel asked whether it was Mr Coomes' understanding that Mr Michael Hanger was coming to him to be instructed or directed in relation to the carrying out of those works. Mr Coomes replied, "No ... I was aware that Michael Hanger and Jack [Smit] had been friends for many years. ... I was under no illusion that in his mind he was working fully under the direction of Jack [Smit] or in association with Jack [Smit]". 284After receiving the document, Mr Coomes typed it up and handed both the handwritten and typed up versions to Mr Smit when he next came into the office either that day or the next. He told Mr Smit that Mr Hanger came into the office and asked him to type it up following their on-site meeting. Mr Coomes recalled that Mr Smit "appeared quite surprised that that had happened" and advised Mr Smit "that the work couldn't be carried out because ... it was in a breach of the development consent". Mr Coomes was concerned because a lot of the work on the scope of works document (exhibit T) seemed to go further than the "agricultural cleanup" that Mr Smit advised the joint venture was going to happen. Mr Coomes elaborated, "It contained for example opening up the tracks but crushed rock or granitic sand would have in my view formed development so that would have been prohibited. Remove the trees and the logs in the creek that was clearly in my view prohibited. And dig out existing billabong that would have been prohibited. Extend the watercourse through to the river that would have been prohibited. So I took the very simple view of saying it was all prohibited and he couldn't do any of it." Mr Smit's initial response was that Mr Coomes worried too much about rules and regulations, and should not worry about it. 285Counsel asked whether Mr Coomes had seen the scope of works document again. Mr Coomes responded that he saw it again 12 months ago. After 16 or 17 August 2007 he did not see it prior to the commencement of the works on site. Mr Coomes did not discuss that document again with Mr Smit before 5 October 2007 and said that all future references to site clean-up in the joint venture meetings referred primarily to what he understood as agricultural clean-up. Mr Coomes said Mr Smit did not tell him what he was going to do with that document. 286The only contact Mr Coomes had with Mr Hanger prior to the on-site visit on 12 October 2007 was a day or so after 16 August 2007 when Mr Coomes telephoned him claiming to be missing a drawing pencil. Mr Coomes believed the carriage of the matter was with Mr Smit and did not see a reason to speak to Mr Michael Hanger. 287Counsel directed Mr Coomes to par 442 of his ROI where he told Mr Potter that some of the things he said to Mr Michael Hanger may have been instrumental in misguiding him and asked whether this was still his view. Mr Coomes said, "No, I don't believe that Michael Hanger would have had regard to any comment I made. I believe that what occurred arose totally out of discussions between he and Jack [Smit]". Mr Coomes' understanding was that Mr Smit had total carriage of the matter and nobody else. Mr Bennett did not indicate that he had any involvement, and Mr Coomes did not suspect that he did. With regard to Mr Ceman, Mr Coomes said, "Dino didn't make decisions in regard to the joint venture. He was there as the builder to build the houses when that time arose." 288Mr Coomes had offices adjoining Mr Smit's in South Melbourne. Mr Coomes had had a professional association with Mr Smit over a number of years.

12 October 2007 site visit 289In the fortnight prior to 12 October 2007, Mr Coomes carried out three activities unrelated to the Kunanadgee project which included medical appointments. Apart from these three activities, Mr Coomes' time "was almost predominantly occupied with working with Ian Bennett in getting the financial material completed so that it could be lodged with the bank". Mr Coomes could not recall exactly when he found out that Mr Michael Hanger had commenced work at Kunanadgee. 290On 12 October 2007 Mr Coomes and Mr Bennett departed Mr Bennett's house at approximately 6am and arrived at Kunanadgee at about 10am. Mr Coomes said the "purposes were to attend the meetings that had been organised and to have a look and see what Michael Hanger was doing on the site". When they arrived Mr Smit greeted them and shortly after that Mr Elias arrived. Mr Coomes continued, "Ian [Bennett] was expecting an urgent email which he had had directed to my email account and he asked me to go into the office at the homestead." Mr Coomes recalls that "we had hamburgers standing around in the kitchen. And then Michael Hanger suggested that he take us down and show us the work that had been done". Mr Coomes and Mr Bird got into the cabin of Mr Adrian Hanger's truck. Mr Coomes' memory of that time is a bit hazy because he was feeling extremely lethargic and he had no awareness of where Mr Bennett was. Mr Coomes also did not know whether there were two vehicles used to drive around. 291Mr Coomes said he did not speak to or provide any feedback or encouragement to any of the workers he saw on the site apart from "exchanging pleasantries with Mr Adrian Hanger" which Mr Coomes did because he was in the front seat of Mr Adrian Hanger's truck. He said, "I'm very conscious of chain of command ... there were no discussions with any of the workers ... we didn't approach any of them." Mr Coomes said he did not provide any instructions or directions to anyone during the inspection because he did not have carriage of the matter and that no one asked him to provide instructions, directions or oversight on that occasion. 292Referring to his ROI at par 425 to 428, Mr Coomes said he interpreted that question as asking whether Mr Coomes inspected the works, which he did not because that was not his purpose of being on site. Mr Coomes told DEWHA during his ROI on 12 March 2008 (exhibit 12C) at p 8 that Mr Potter did not ask him whether he had attended the site on 12 October 2007 and he confirmed in oral evidence that this explained the nature of his response to Mr Potter's questions at par 425 to 427 of his ROI. 293When he was driven around the site on 12 October 2007 Mr Coomes thought the work was "a bit devastating" and "not what [he] expected to see done" because it "certainly wasn't an agricultural clean-up". When asked why he did not raise his concerns about the work with Mr Smit either on 12 or 13 October 2007, Mr Coomes explained, "I'd given him my advice. He'd clearly ignored it, in my opinion. I was feeling extremely unwell and didn't feel in the mood for a substantial argument and, as a consequence of seeing the work that had been undertaken, I was reviewing whether or not I really wanted to remain associated with the company. I'd been under extreme pressure at home to separate from them; my wife felt that I was being used." Mr Coomes was paid poorly by Mato, $28,000 for seven months' work. 294Mr Coomes remembered that he and Mr Bennett left Kunanadgee at 7am on 13 October 2007 because Mr Bennett wanted to leave. Mr Coomes' illness worsened after 13 October 2007 which prevented him working for part of 15 October and from 16 - 23 October 2007. 295On 10 December 2007 Mr Potter telephoned Mr Coomes to confirm he was still attending the ROI on 12 December 2007, at which time Mr Coomes asked if it was possible to speak to him off the record because he felt uncomfortable divulging information about Mr Smit's involvement in a recorded interview. Mr Coomes said, "Following the site inspection on - I think it was 25 October, I had been advised that the representatives of the various agencies had been informed that the reason the work occurred in the way it had was because I was ill and unable to supervise it. I was very conscious, following that point, that I was being made a scapegoat and I felt it would be in the interests of both Dave Potter and myself if I could provide him with certain information and perhaps assist him in the creation of a form of questions which would indicate that [Mr Smit] had prior knowledge of certain events and that I would not be able to deny." He added that there were instructions from Mr Smit to other members of the joint venture, including Mr Bennett, Mr Michael Hanger and himself, that the tapes of the interviews be circulated. Mr Coomes felt intimidated and as if he was being made as the scapegoat in order to prevent Mr Smit from being blamed. Mr Coomes believes he would have been able to convey the full picture about what happened and Mr Smit would have been interviewed if he had been able to brief Mr Potter beforehand. 296Mr Coomes continued working for Mato until late February 2008. He attended the shareholders' meeting in March and left Mato a day after the interview with the DEWHA. He felt that he was better able to protect himself from being the scapegoat if he kept working for Mato for a period. Mr Coomes still feels as if he was being made a scapegoat.

Cross-examination by Prosecutor 297In cross-examination, the Prosecutor's counsel asked whether Mr Coomes understood Mr Smit was an integral member of the joint venture. Mr Coomes replied that he was a nominated member of the Ceman trust on the joint venture but that in his opinion, Mr Smit was "acting as a de facto director at all times". Mr Coomes had known Mr Smit since 1999 but had only worked with him extensively a couple of years prior to 2007. Mr Coomes agreed that it appeared that Ms Ceman's part was in fact played by Mr Smit, her de facto husband.

Scope of works 298Referring to the scope of works document (exhibit T), counsel asked Mr Coomes if he put on the heading "Kunanadgee Eco Resort". Mr Coomes could not recall. He referred to Mr Michael Hanger's handwritten document which contained the tabulated information when typing up the scope of works but that he set the document out. Mr Coomes also could not recall whether "Item 1, Scope of works to clean up site" was a heading chosen by Mr Michael Hanger. Counsel asked Mr Coomes to explain the code "Kndge PM 009" at the bottom of the document. Mr Coomes said every job had a number and name. When counsel suggested that it meant Kunanadgee, project management, document number nine, Mr Coomes said he could only assume that was correct. 299With regard to Mr Coomes' timesheet for 16 August 2007 which records "Meet with contractor and discuss clean-up of site" and charges for two hours, counsel suggested that he and Mr Michael Hanger had a lengthy discussion taking up to an hour and 40 minutes. Mr Coomes denied this saying it would have only taken half an hour. 300Counsel directed Mr Coomes to his invoice for 16 August 2007 (exhibit 2C) which states "Meet with contractor and discuss scope of works for clean-up of site" and then to his invoice for 17 August 2007 which states "Prepare Scope of Works for contractor and email to J Smit". When counsel said there should be a copy of that email to Mr Smit in his computer's memory, Mr Coomes said it was not there because Mr Smit asked him remove it following the stop work order but that removing emails from his business records was not a habit. Counsel queried whether Mr Coomes thought it was improper to do so. Mr Coomes responded "I was not aware that the document had any status because I was not aware of the instructions that Jack [Smit] gave to Michael Hanger and I was not aware whether that document formed any part of any instructions given to Michael Hanger". Counsel suggested that Mr Coomes did not tell Commonwealth or State authorities about the email because he feared the existence of the email in the hands of the authorities would inculpate him in the commission of a crime. Mr Coomes rejected this suggestion because he knew he had no carriage or authority in the matter which was held by Mr Smit.

Minute taking 301Counsel took Mr Coomes to the minutes of Mato shareholders' meetings (exhibit P). Mr Coomes would use his handwritten notes to prepare typed minutes soon after each meeting. Mr Coomes had done this sort of note-taking for a number of years. Mr Coomes agreed he was endeavouring to be as comprehensive and accurate as he could be in the time available. Prior to the minutes being circulated, he had Mr Smit go over his initial draft and so the final version contained changes suggested by Mr Smit. Mr Coomes did this to ensure the accuracy of the minutes and felt it appropriate only to discuss the drafts with Mr Smit because he along with Mr Bennett was one of the directing minds of Mato. After he had shown the minutes to Mr Smit and made any suggested changes, Mr Coomes would email them to those who were present at the meeting and to those who were coming to the next meeting. If there were any changes to be made, these were discussed at the beginning of any particular meeting and Mr Coomes would take those comments on board. 302Counsel directed Mr Coomes to the minutes of the meeting on 3 August 2007 where at item 1.1 it is recorded that Mr Bennett wanted to make amendments to the minutes of the previous meeting. Mr Coomes commented that that was the only meeting where there were variations to the minutes of a previous meeting. When counsel suggested that Mr Coomes proved to be an accurate note-taker, Mr Coomes countered that this could also be because "the people attending the meeting chose not to dispute the matters [he] had recorded." Mr Coomes said he chose the topics from time to time. He also prepared the agenda based on the minutes of the previous meeting and included any matters that others including Mr Smit and Mr Bennett wanted to raise. Mr Coomes confirmed that at the next meeting, on 21 August 2007 at item 1.1, the minutes of meeting on 3 August 2007 were held a true record of that meeting and no one had any amendments to make to those minutes. Counsel suggested that once they become a true record the minutes should not be changed. Mr Coomes agreed. 303In relation to item 3.1 of the 3 August 2007 minutes, Mr Coomes said he was aware that this meant the Murray River and the unnamed creek as he "had inspected the property in the company of Jack [Smit] and John Ellis, the marketing consultant" on 28 or 29 July 2007. 304In relation to item 3.2 of the 3 August 2007 minutes, counsel suggested that if anybody were to prepare a scope of works for the contractor, Mr Smit wanted it to be Mr Coomes. Mr Coomes disagreed; he was never requested by Mr Smit to prepare a scope of works after that meeting. 305Counsel took Mr Coomes to the minutes of the meeting on 21 August 2007, which he confirmed were accepted at the following meeting as an accurate record of what occurred on that date. Regarding item 4.1, Mr Coomes agreed with counsel that "prepared" is in the past tense. However, when counsel suggested that it indicated that Mr Coomes had prepared a scope of works to be undertaken in relation to site clean-up, Mr Coomes said, "to that extent it is incorrect, because I think there is evidence that Michael Hanger provided me with the information to be included in the scope of works".

Meeting with Mr Michael Hanger 16 August 2007 306Counsel referred back to Mr Coomes' invoices (exhibit 2C) which differentiate between discussion on 16 August 2007, and preparation of the scope of works document on 17 August 2007, and suggested that preparation meant more than typing. Mr Coomes disagreed saying that all he did on 17 August 2007 was type the document that Mr Michael Hanger gave him. Counsel suggested that Mr Coomes appreciated he might be in Court when Mr Smit asked him to delete the email and the typed scope of works and that he deliberately destroyed them because he knew it was damaging to himself. Mr Coomes disagreed with both propositions. Mr Coomes confirmed that the document referred to at item 4.1 was the scope of works document (exhibit T). Counsel showed Mr Coomes a document subpoenaed from Fine Line Building Projects Pty Ltd (exhibit Y) headed "Agenda of the shareholders meeting for 21 August 2007 at 7.30pm" dated 21 August 2007 and labelled "Kndge PM 010". Mr Coomes said this document was in the manner in which he prepared agendas. Counsel suggested that the scope of works document (exhibit T) which is labelled "Kndge PM 009" was the document Mr Coomes created before he drafted that agenda. Mr Coomes disagreed and said he could not say when each document "went out" and he did not think his computer could because "it changed as new documents were put in and documents were moved around."

Changes to minutes of Mato's shareholders' meetings after confirmation by board 307Counsel showed Mr Coomes emails and minutes that have been obtained from the DEWHA under subpoena (exhibit V). Mr Coomes provided these to that Department. Mr Coomes was requested in November of 2007 by Mr Bennett to modify the minutes of the meeting by deleting any reference to Mr Smit. Mr Coomes said he could not recall that he was asked to remove reference to a scope of works. One email was from Mr Bennett to Mr Coomes received on 8 November 2007 at 1pm urgently requesting that he provide modified minutes. Another was a return email from Mr Coomes sent on the same day at 4:49pm attaching revised minutes. Mr Bennett told him he was required to delete references to Mr Smit because Mr Bennett believed that he would be able to negotiate a resolution of the matter with the Environment Protection Authority to send to Mr Potter and by deleting reference to Mr Smit he would not be charged. 308Counsel asked Mr Coomes to compare the two versions of the minutes (exhibits P and V) for the meeting on 3 August 2007. Mr Coomes confirmed that the code "PM5B" at the bottom of the revised minutes of meeting (exhibit V) indicated it was the second version of the minutes. At item 3.1 the revised minutes state "and it was agreed that a contractor be engaged to carry out site clean-up work on the lower portion of the site and to reopen existing farm tracks in the area" instead of "J Smit advised that he had spoken to a colleague who had access to earthmoving equipment and was available to carry out a clean-up of the site, particularly around the river and creek area, and to construct an access track in a discreet manner" (exhibit P). Mr Coomes agreed with counsel that various factual statements have been deleted from the minutes (exhibit P) in item 3.1. Mr Coomes also stated that he made the revised minutes under the direction of Mr Bennett. Counsel also compared item 3.2 of the revised minutes (exhibit V) which states "It was understood that a contractor was available to carry out the work and would offset his fees against the purchase of a lot. It was also agreed to offer the contractor a discount off the price of a lot as an incentive." The original minutes at item 3.2 (exhibit P) state "He advised that the contractor was prepared to carry out the work and to offset his fees against the purchase of a lot. He recommended that J Coomes prepare a scope of works for the contractor and a fee for the work be obtained. He also suggested that a discount be offered to the contractor off the price off the lot as an additional incentive." Counsel asked how it helped Mr Smit that a reference to him suggesting that Mr Coomes prepare a scope of works was deleted. Mr Coomes responded, "The direction was from Jack [Smit], initially, that I prepare a scope of works." Counsel suggested that Mr Coomes doctored the minutes partially for Mr Coomes to avoid incriminating himself in the work that took place at Kunanadgee. Mr Coomes answered, "I think the subsequent events show that that's not the case, because I provided the original notes of meeting to the [Cth] department of environment when requested to do so." 309Counsel then took Mr Coomes to item 4.1 of both versions of the minutes of meeting of 21 August 2007. The revised minutes (exhibit V) omit the following statement appearing in exhibit P "J Smit outlined the importance of having the site cleaned up and J Coomes prepared a scope of works to be undertaken." Counsel once again suggested that he made this omission to not implicate himself in the possible commission of a criminal offence, which he denied. 310Counsel showed Mr Coomes an email from himself to Mr Bennett dated 28 November 2007 attaching an electronic version of extracts from the minutes of Mato meetings (exhibit W). At that time Mr Coomes was aware that Mr Bennett wanted to forward these extracts of minutes to Mr Potter. Mr Coomes was not aware at the time that the removal of snags from the banks and within the waterways of Kunanadgee was a criminal offence. The extracts were from the revised minutes of the meetings on 21 August 2007 and 5 September 2007 which omitted references in the items headed "site cleanup" to any work in or around the unnamed creek or Murray River or any scope of works to that effect. Mr Coomes agreed with counsel that he realised in sending "sanitised" minutes to Mr Bennett to be provided to Mr Potter, that the result of that would be that Mr Potter was not being made aware of the full facts of what took place. 311Mr Coomes gave evidence that he had neither "sanitised" other minutes of Mato's shareholders' meetings nor any minutes of other companies. He did not feel it was the right thing to do but did so because he was concerned he was being made a scapegoat and felt that if he did not act accordingly, Mr Potter would be told that Mr Coomes had carriage of the matter. 312Mr Smit's request to him to delete the scope of works document and email to him attaching it was made sometime after the meeting on site at Kunanadgee on 25 October 2007 between Mr Potter and representatives of Mato including Mr Smit. Mr Coomes knew when deleting the scope of works document that it could never have been provided to Mr Potter.

ROI 313Counsel suggested that he knew at the ROI that he was being investigated for the possible commission of an offence. Mr Coomes did not appreciate that that was the purpose of the interview. He thought he was "there to assist Mr Potter or to provide him with information." After receipt of the typed version Mr Coomes made no attempt to change any of what he had said during the ROI. Mr Coomes was not aware this was a possibility and it was not suggested by his solicitors. When counsel asked if Mr Coomes told the truth throughout the interview, Mr Coomes answered "Not completely, no." Mr Coomes elaborated that he lied with regard to who had carriage of the matter and was authorised or gave authority to the contractor by saying that he did not know, when in retrospect he should have stated Mr Smit. He was concerned about his position if he advised that Mr Smit had carriage of the matter. Although Mr Potter did not recall the telephone conversation when he gave oral evidence, Mr Coomes recalled he wanted to have an "off the record" discussion with Mr Potter and that Mr Potter made the statement that "nothing is off the record". In his view Mr Potter "did not take advantage of the invitation" he gave to provide information. 314At par 87 of his ROI Mr Potter showed Mr Coomes a copy of the Corcoran consent (exhibit A p 584). Mr Coomes said it appeared to be a copy of the conditions of approval but he could not compare it with the document he used, which was the Parr consent, because he did not have his copy with him. Mr Coomes had no reason to believe that there was more than one consent. 315Mr Coomes mentioned his meeting with Mr Michael Hanger to Mr Potter (ROI at par 164) and said "surprisingly I have no record as to when that meeting took place. And I thought I would use the word surprising because that means I can't charge for my time. We probably spent half an hour together." Counsel suggested that in fact Mr Coomes did have records of his meeting with Mr Michael Hanger. Mr Coomes said, "My understanding until I went through my timesheets in preparation for this case was that my meeting with Michael Hanger was much later." Counsel suggested that when Mr Coomes met with Mr Michael Hanger on 16 August 2007 he did more than simply type up a document for him. Mr Coomes said he did not type up a document in his presence. 316Mr Coomes had told Mr Potter (ROI at par 215) "I had brief discussions with him in regard to the creek, and because ... of the intention to use the southern portion of the land to the south of that creek as a sanctuary, I suggested to him that ... where fallen trees formed a bridge across the creek perhaps those trees should be relocated ... in that discussion I suggested that ... perhaps the fallen trees that were across the ... creek should be ... relocated." Mr Coomes confirmed in oral evidence that he made the comment to Mr Michael Hanger that the fallen trees across the unnamed creek should be relocated. Counsel proposed that Mr Coomes wanted Mr Michael Hanger to act upon what he said. Mr Coomes replied "I knew that Mr [Michael] Hanger would not take instructions from me; that he would only take instructions from Jack [Smit], and my comments were basically designed to minimise what he was - what was in the document that he'd provided me. I was quite concerned at the contents of that document." Mr Coomes agreed with counsel that at the time he saw the handwritten scope of works document on 16 August 2007 he knew it contained many works to be done which were in clear breach of the development consent but typed up the document anyway and did not tell Mr Michael Hanger that he could not do those works. 317In the ROI Mr Coomes did not mention the scope of works document he had typed up to Mr Potter. In oral evidence Mr Coomes explained, "I didn't tell him of that document, and I must admit that I did not have a clear memory of the contents of the document." Given that Mr Coomes was interviewed on 12 December 2007 and he was asked to destroy the document after 25 October 2007, counsel submitted Mr Coomes was fully aware when being interviewed of his destruction of the scope of works document. Mr Coomes acknowledged that he was aware of its destruction and added, "I was being interviewed and the interview was being taped, and the tapes of the interview were to be made available to other parties. That is why I sought a separate meeting with Mr Potter so that I could convey the range of material that I possessed to him and express my concerns about the way this matter was being conducted, and my concerns about my own protection." 318Mr Coomes accepted that during the meeting between himself, Mr Bennett and Mr Parr at the Council chambers on 12 October 2007, nothing was mentioned about what he had seen at Kunanadgee earlier that day and that prior to the meeting he was well aware that there had been a breach of condition 16 of the development consent. 319During his ROI Mr Coomes informed Mr Potter that during their discussion he and Mr Michael Hanger both scribbled on a plan, being an overall layout of Kunanadgee prepared by the project architect while discussing the scope of works. When counsel asked whether Mr Coomes scribbled on it, the witness responded, "The reality is that Mr [Michael] Hanger took it and marked it up. I didn't scribble on it or make any other marks on it." Counsel showed Mr Coomes two colour photocopied pages of a plan that were produced by Fine Line Building Projects Pty Ltd (exhibit X) which were attached to the scope of works document. The first of the two pages has the top portion of Kunanadgee and it refers to three areas. Area 1 "lots adjoining Hans Creek" on the scope of works document (exhibit T) corresponds to the area marked "1" on the plan which appears to be adjoining Hans Creek. Area 3 "Marina area" on the scope of works document corresponds to where "3" is marked on the plan which appears to be next to the water basin and above it is the word "Marina" with an arrow. Counsel asked if Mr Coomes discussed that there was a marina area with Mr Michael Hanger. Mr Coomes answered, "Mr [Michael] Hanger had advised me that that was the intention of he and Jack [Smit]. I don't know that I had had a discussion with him." On the plan the unnamed creek is highlighted in yellow and marked "5". Counsel compared this and areas numbered "6" and "7" with the works described in the scope of works document. 320In oral evidence Mr Coomes said he would have had that plan on his desk at all times that he was working on that matter. Mr Coomes denied that during his meeting with Mr Michael Hanger he highlighted areas and works that he wanted him to undertake at Kunanadgee. Mr Coomes could not tell the origin of the plan or whose handwriting it was but said that was not the way he marks up a plan and it was not his handwriting. Mr Michael Hanger marked up the plan in Mr Coomes' presence and in accordance with the areas on the scope of works document, which resulted from his discussions with Mr Smit on site. Mr Coomes was horrified in that meeting when Mr Michael Hanger not only came in with his handwritten notes of the scope of works, but then actually marked on the plan where the works were to take place. Mr Coomes denied that he was telling the Court a pack of lies or that he sat down with Mr Michael Hanger, had a discussion for almost an hour and a half in relation to the scope of works and the plan of Kunanadgee and told him what to do. 321Counsel suggested that the discussion of the scope of works with Mr Michael Hanger and the marking of the plan might take up to an hour and a half as indicated on Mr Coomes' timesheets. Mr Coomes disagreed saying that it was not extensive work and that he did not have an hour and a half to give Mr Michael Hanger. Although his timesheets billed for two hours, Mr Coomes said that his recollection was that the meeting took about half an hour and that the work the subject of the discussion was "about half an hour's worth of time". 322In his ROI Mr Coomes told Mr Potter (at par 243) he asked Mr Hanger what plant and equipment he was proposing to bring on-site for occupational health and safety reasons. He had been involved in a project where a bulldozer operator was killed. Counsel suggested Mr Coomes was telling Mr Potter about that incident because he saw plant and equipment on the scope of works document. Mr Coomes replied he presumably was aware because although he had not seen the scope of works document for some time, he would have had some retained memory of that meeting. 323Mr Coomes also told Mr Potter (ROI at par 245) that he was not giving Mr Michael Hanger instructions. Counsel suggested that Mr Coomes gave Mr Michael Hanger his views on what he wanted. Mr Coomes responded, "I made certain comments in regard to the track and the creek, timber across the creek". In his ROI at par 247, Mr Coomes stated, "I did not direct him to move any snags. I directed him where trees had fallen across the creek, I didn't want them to be a bridge that feral animals could use to come into the area that we wanted to develop as a sanctuary." He also stated (ROI at par 249) "[I]t did not include timber that was in the water, although I must admit now that I was not specific about it ... I didn't make any specific comment about timber that was in the water, I made specific comment about trees that had fallen across the creek." Mr Coomes confirmed that he and Mr Hanger had that discussion. Then in his ROI at par 442, Mr Coomes stated, "The only thing I can repeat is that this is something which I didn't have the carriage of ... I gave certain advice or comments to Michael Hanger at that one meeting we had which may well have been instrumental in misguiding him." In oral evidence Mr Coomes explained, "Well firstly I don't think I misguided him at all because Mr [Michael] Hanger had clear instructions from Mr [Smit] as to what he had to do which had been worked out between the two of them. The comments I made related to the track and timber across the creek. I don't believe in hindsight that I misguided him at all because I don't think he was of the mind to be misguided. He'd fully understand what he wanted to do in association with Jack [Smit]." 324Counsel suggested that there was no doubt in Mr Coomes' mind on 16 August 2007 that Mr Hanger knew he was the project manager for the Kunanadgee eco-tourist resort. Mr Coomes responded, "I have no doubt that Mr Hanger knew I was a town planner and was responsible for project managing the town planning aspects of the project. I had no carriage of this matter and I was not a project manager in relation to it". 325With reference to par 251 of his ROI, Mr Coomes agreed with counsel that he was well aware by 16 August 2007 that there was a substantial amount of woody debris or snags within the unnamed creek from his site inspection with Mr Ellis. 326Mr Coomes acknowledged that what he saw on his visit to Kunanadgee on 12 October 2007 was largely what is in the scope of works document. He saw that the unnamed creek and banks were cleared out and was horrified. Mr Coomes did not carry out a specific inspection of the riverbank but saw fresh piles of timber and was again horrified. When counsel suggested that Mr Coomes saw workers removing snags from the Murray River or its banks while he was being driven around the property on 12 October 2007, Mr Coomes said he did not recall seeing that happen and added, "We drove along the track, which on my recollection is not close to the river bank. There was a large machine in the vicinity of the river bank, but I can't recall what it was doing. By this stage, Mr Lloyd, I was feeling quite unwell and my memory of the events of that day are not clear." Counsel suggested that Mr Coomes made no attempt to advise anybody to stop the work that was continuing on the site. Mr Coomes maintained that he had previously given advice to Mr Smit and he had clearly ignored that advice. Additionally, he said, "I was feeling unwell the last thing I felt I needed was an argument, but I felt that I would be wasting my time talking to him". 327Counsel directed Mr Coomes to an email headed "Kunanadgee Eco Resort land development costs" dated 27 September 2007 which lists $210,000 for site preparation and site clearing (exhibit 3C). Mr Coomes agreed that that was about the same figure that Mr Michael Hanger quoted to him at the meeting on 16 August 2007 (which he conveyed in his ROI at par 240 as approximately $200,000 for general tidying up). Mr Coomes did not agree that he knew that it included the works on the scope of works document. He needed a figure for a budget document being compiled by Mr Bennett, Mr Bird and himself to obtain bank finance. He could not find any record of approval of it from the joint venture. 328Another email attachment entitled "Engineering costs" (exhibit 4C) also lists $210,000 for site clearing. Mr Coomes presumed this related to Mr Hanger's work. Mr Coomes denied that he was well aware that figure included the works in the scope of works document. He did not have carriage of that matter, Mr Smit did. Mr Coomes was not aware of the instructions that Mr Smit gave to Mr Hanger. 329Returning to the site visit on 12 October 2007, counsel again put to Mr Coomes that he did not express any concern to Mr Adrian Hanger, Mr Michael Hanger or the workers about the works that evening. Mr Coomes stated that he had a conversation with Mr Root after dinner during which Mr Root said that he thought they were doing a very good job and Mr Coomes replied that the problem was there was no permit for that work (Mr Root had no recollection of that conversation: par 90 above).

Cross-examination by Mato/Mr Bennett 330In cross-examination by Mato's counsel, Mr Coomes agreed that he was engaged by Mato as an independent consultant, was paid directly by Mato and that Mato was relying on Mr Coomes to act on its behalf but added that it was within a defined scope of activities. Although he was appointed project manager, as shown in the minutes, the scope of that role was never defined and he was never asked to carry out the supervision of any construction work. Counsel put that Mato was relying upon Mr Coomes as an independent consultant. Mr Coomes clarified, "To give advice ... on matters in which I had expertise, yes". He acknowledged that there was no record of him telling Mato of the limitation of his role but said it was well-known by Mr Smit and Mr Bennett that he was a town planner. 331Regarding the scope of works, Mr Coomes said he never told Mr Michael Hanger to remove snags or woody debris from the unnamed creek, Murray River or Hans Creek. Apart from Mr Michael Hanger, the only other person Mr Coomes had a discussion with on the removal of woody debris from the unnamed creek or Murray River, was Mr Smit. In his ROI at par 345, Mr Coomes told Mr Potter that he had no recollection of having any discussions on this subject with anybody other than Mr Michael Hanger. Mr Coomes again emphasised that he did not mention Mr Smit's involvement in the matter during the ROI because he was concerned for his position. He confirmed he did not have any discussions with the board members or joint venturers other than Mr Smit about any scope of works or anything associated with what Mr Michael Hanger had told him. Mr Coomes attested he did not tell anybody that Mr Michael Hanger gave him a scope of works, which he typed up and gave to Mr Smit. 332Counsel suggested to Mr Coomes that his meeting with Mr Michael Hanger occurred at the end of August, not earlier, and took Mr Coomes to his ROI at par 215 which records Mr Coomes telling Mr Potter that the discussion with Mr Michael Hanger occurred prior to the shareholders' meeting on 5 September 2007. Mr Coomes said that was his belief until he found the entry in his timesheets. Counsel compared item 4.1 of the minutes of meetings on 21 August 2007 and 5 September 2007 (exhibit P). Mr Coomes agreed that at the later meeting on 5 September 2007, Mr Smit was indicating to him that following Mr Smit's advice at the meeting on 21 August 2007, he had met with the contractor and discussed site clean-up. Counsel suggested that the scope of works document was a false document that Mr Coomes prepared and that Mr Michael Hanger only came to Mr Coomes after he had met with Mr Smit. Mr Coomes did not agree it was a false document and said his timesheets clearly showed he met with Mr Michael Hanger on 16 August 2007. 333Counsel showed Mr Coomes an invoice dated 1 October 2007 with an entry for 19 September 2007 (exhibit 6) stating "Met with Mr Smit and discussed preparation of letter engaging contractor to carry out clean-up work on site. Prepare letter of engagement for contractor". Mr Coomes elaborated, "I produced a letter without a signature block on it which contained the matters set out in the scope of works and I think I both emailed that and took it to Jack [Smit], and I said, 'It's important that Michael [Hanger] is formally engaged. We need to know what he's going to do and we need to know what his cost is, because, as you will be aware, there was of the order of $200,000 identified for the work that he was going to do, but he sent in a bill for $480,000 or thereabouts.' I said that Jack [Smit] needed to sign a document engaging Michael Hanger". Mr Smit told him to get rid of the document and to his knowledge no such document was issued. Counsel demonstrated that his original timesheet (exhibit 2C) did not contain the entry about the letter of engagement for 19 September 2007. Mr Coomes replied, "That was deleted following the directions from Mr [Smit] to remove references to Michael Hanger." Mr Coomes presumed the document dated 1 October 2007 (exhibit 6) was the one he submitted to Mato. 334In cross-examination counsel for Mr Bennett showed Mr Coomes an email he sent to Mr Smit dated 20 September 2007 stating that a draft letter of appointment for Mr Michael Hanger is attached. The document attached was on Mato letterhead dated 19 September 2007 with code "035" and was a scope of works document similar to that tendered as exhibit T (exhibit 3A). Mr Coomes confirmed that he had access to Mato letterhead, he drafted the document and that even though there was no signature block, it was signed "Yours faithfully, Mato Investments Pty Ltd". Mr Coomes was aware Mr Smit was a joint venturer, not a director of Mato but he did not discuss the draft letter of appointment with any of the directors of Mato. Mr Coomes accepted that the document followed on from the scope of works document (exhibit T). The email Mr Smit asked him to delete sent on 17 August 2007 stated "scope of works to discuss with Michael" and attached same (exhibit 4A). 335In his ROI Mr Tilbrook asked Mr Coomes (at par 161) whether there was any supervision or monitoring of the works in his role as project manager. Mr Coomes replied, "I was advised ... in the week before I got crook that it might be a good idea if I did some supervision which did not please me at all." Mr Coomes could not recall by whom or when that statement was made. Counsel put to Mr Coomes that his role as project manager involved supervision of the site. Mr Coomes disagreed saying, "There is nothing in my background that suggests that I am qualified or experienced in carrying out supervision of work." 336Counsel compared the two versions of minutes (exhibits P and V). Mr Coomes agreed that he amended three sets of minutes: those of 3 August, 21 August and of 5 September 2007 by taking out any reference to Mr Smit and to himself having prepared a scope of works document. He also agreed that as Mr Bennett was not present at the meeting of 21 August 2007 it followed that he was not there to make any comment in respect of the minutes of 3 August 2007 and had no opportunity to say whether or not the minutes of 21 August 2007 were a true record of the meeting at the next meeting on 5 September 2007. 337Counsel referred to the email from Mr Bennett dated 8 November 2007 urgently requesting "modified minutes" (exhibit V). Mr Coomes did not recall, as suggested by counsel, that the reference to "modified minutes" was made because Mr Coomes sent an email a week earlier to Mr Bennett advising of changes to the minutes. Subsequently counsel showed Mr Coomes an email he sent on 1 November 2007 to Mr Bennett and Mr Smit (exhibit 5A) in which he suggested that the resolutions of the August and September shareholders' meetings relating to the site clean-up work be rewritten. Mr Coomes agreed the resolutions were made on 21 August 2007 and 5 September 2007. Specifically in relation to the August resolution Mr Coomes suggested that they delete the statement "and J Coomes prepared a scope of works to be undertaken". Mr Coomes acknowledged that at the time none of Mato's directors or joint venturers, other than Mr Smit, had any knowledge of a scope of works document having been prepared. Counsel put to Mr Coomes that consequently he would not be surprised that Mr Bennett would be keen to see the minutes corrected. Mr Coomes said he did not recall Mr Bennett making a specific statement in regard to that matter. Mr Coomes was aware Mr Bennett urgently needed the modified minutes when he requested them on 8 November because his ROI was scheduled for 12 November 2007.

Re-examination 338Counsel re-examined Mr Coomes on his evidence that although during the ROI (at par 345) he told Mr Potter that he only had discussions with Mr Michael Hanger about the removal of woody debris forming bridges across the unnamed creek, his response was the result of concern for his position and that in fact he also had discussions with Mr Smit. Counsel asked Mr Coomes to describe what particular concern for his position had resulted in him giving a partially correct answer to that question. Mr Coomes repeated that after the on-site meeting on 25 October 2007 when he was advised that the reason that the work was carried out was because he was not available to supervise, Mr Coomes felt he was a likely scapegoat and he wanted to protect himself from any consequential adverse action arising from the work that was done. He was seeking to protect his integrity and professional reputation. He felt if he referred to Mr Smit's involvement the process of framing him would become a fact. 339Counsel referred to the email from Mr Coomes to Mr Smit dated 20 September 2007, attaching a draft letter of appointment (exhibit 3A) and asked why Mr Coomes sent this email and document to Mr Smit. Mr Coomes responded that the joint venture had not formally agreed to Mr Michael Hanger's engagement so Mr Coomes wanted to find out on what basis he was engaged to firstly, identify the amount of money that had been agreed to be paid to him and secondly, to identify the work that he was to do. Mr Coomes added, "It had been a practice of mine over many years to provide, for want of a better term, the wrong form of information in a document in order to get it corrected. That is the form of draft document that I sent to Jack [Smit]." Mr Smit did not want the document and wanted him to get rid of it. He understood from this response that in all of Mr Smit's submissions to the shareholders' meetings, "he had only ever talked of an agricultural type of clean up". In Mr Coomes' view even if Mr Smit had not followed the warning he gave on 16 or 17 August 2007 not to carry out the works in the scope of works document in order for those works to be discussed and their implementation considered by the joint venture, that proposal would have needed to have gone before another shareholders' meeting. This never occurred. Mr Coomes deleted that email to Mr Smit and draft letter of appointment (exhibit 3A) because the letter was never going to be utilised and he has never seen any signed or issued version of a letter in that form. Mr Coomes stated he only became aware again of the existence of the document when he it was provided to him in Court during cross-examination. 340Mr Coomes confirmed that the deletion of the reference to the draft letter of appointment dated 19 September 2007 in his invoice for 1 October 2007 was under a direction from Mr Smit. With regard to the deletion of documents and modification of minutes he was instructed by Mr Smit to implement in or about October or November 2007, Mr Coomes decided in December 2008, by which time he had left his contractual arrangement with Mato, to provide disclosure of the documents then in his possession to the DEWHA. 341In relation to his role as project manager, Mr Coomes maintained that he required specific direction to do particular tasks (that is, he did not have a general authority to act) and was generally under the direction of Mr Bennett to whom he reported.

Prosecutor's submissions 342The Prosecutor must prove that the snag removal in the offences period resulted from the defendants' actions. The Prosecutor submitted that causation is determined by applying common sense to the facts of the case per March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ at 515, Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 and according to the purpose for which the question is asked. A person may cause damage to habitat by act or omission and by logical inference, a combination of these. A positive act is not required and Empress Car Co does not require this. Nor must the acts or omissions of the defendants be the immediate cause of the damage. Nor is there such a requirement in s 220ZD(1). Empress Car Co makes clear that "do anything that causes damage" has a wide interpretation.

Individual defendant's liability 343That the work of the contractors was caused by the directions they were given by Mr Michael Hanger is not disputed. The dispute is the link between the defendants and Mr Michael Hanger. The removal of snags was a natural and predictable consequence of the instructions given to the contractor Mr Michael Hanger by the defendants. A verbal agreement was reached with Mr Hanger. Agreement was not reached at a single meeting but emerges by inference from the facts proven in the evidence of Mr Ceman, Mr Coomes and Mr Bennett. 344The defendants' sworn evidence lacked credit and reliability and should be rejected where it was self-serving. Only those parts of their evidence which could be regarded as inculpatory should be accepted. This is particularly the case where they seek to resile from the admissions in the ROIs with Mr Potter.

Mr Bennett 345The general, unqualified instructions of the Mato board for a site clean-up first discussed on 3 August 2007 to which Mr Bennett was a party by his own admission and the omission to apprise the contractor of the effect of condition 16 of the development consent, had the predictable consequence that all accessible snags would be removed. The general instructions to remove all dead logs logically includes the removal of snags provided the logs were even partly out on the bank. Mr Bennett attended the meeting of 3 August 2007 when a site clean-up was discussed. That he did not attend the 21 August 2007 meeting when there was further discussion of the need for a site clean-up and preparation of a scope of works is irrelevant. There is an email from Mr Bennett dated 27 September 2007 sent to all the directors, Mr Smit and Mr Coomes which includes a quote for site clearing of $210,000. According to Mr Coomes' invoice of 3 September 2007 he spoke to Mr Bennett about the meeting the following day. Mr Bennett was provided with the "costings" for the project attributing $210,000 for the "clean up works" to be carried out by Mr Hanger. He emailed documents quoting this figure for site clearing to Mr Ceman, Dr Wood, Mr Smit, Mr Coomes and others on 27 September 2007 and 17 October 2007 (exhibits 3C and 4C). 346In the ROI Mr Bennett who acted as spokesperson for Mato admits to being party at the shareholders' meeting to the general instructions to be given to Mr Hanger when asked by Mr Potter when the snag removal started (par 80). He refers to the passing of a resolution to clear debris and the existing tracks on the property preparatory to commencing works on the development application. He identified Mr Michael Hanger as the contractor engaged to perform certain works he was briefed on. He stated that "a log on the bank was fair game" which he clarified to mean they were there to be cleaned up. These words were chosen carefully and his explanation in sworn evidence that he was trying to speak about the contractor's state of mind should not be accepted. While he tried to clarify that "we" meant his ROI answers mean different things he was clearly speaking for the company. That is clear from the context of the ROI. He answered the question from Mr Potter about what instructions were given to Mr Hanger saying he was told to clear existing tracks of dead wood and there was no reference to snag removal in the brief. When asked about how the company explained that snags were removed from the water, Mr Bennett stated that they probably went beyond the bounds of the instruction to clean up dead trees. He also sought to clarify in his emails to Mr Parr dated 18 October 2007 that tidying up of the site in preparation for future works was taking place. In cross-examination he accepted he had deliberately drawn a distinction between two tasks, firstly, removal of woody debris and secondly, clearing of tracks. The removal of woody debris was not confined to the clearance of tracks. 347Mr Bennett's attempts to accept responsibility for the independent contractor's actions in the ROI does not sit with a genuine belief on his part that the work was outside his instructions. If the contractor was to blame someone in Mr Bennett's position is more likely to blame the independent contractor. He was asked about his statement on 25 October 2007 that "the boys might have gone a bit feral" but that he was not blaming the contractors. He conceded that the general instructions given by the board were taken too far because of a lack of internal communication. He says that the board did not give any written instructions to Mr Hanger, only oral. That contract assumes that cleaning up means dead trees which the contractors took to include snags as they would not necessarily understand what a snag means. 348Mr Bennett failed to stop the work of pulling logs from the river on 12 October 2007. If the work had been contrary to instructions the inference arises that he would have done this. Mr Bennett also failed to raise the removal of logs with Mr Parr at the meeting on 12 October 207 and in the email sent by him to Mr Parr on 17 October 2007 in which he states the site clean up was going well. This behaviour is consistent with Mr Bennett believing the work carried out was in accordance with instructions given.

Mr Ceman 349The evidence discloses two occasions which give rise to the inference that there was a verbal contract on behalf of Mato to employ Mr Michael Hanger to do work which included clearing logs from the River. The instructions provided by Mr Ceman during his walk around on site sometime in August 2007 with Mr Smit and Mr Michael Hanger required the removal of snags. These instructions are referred to in Mr Ceman's ROI where he stated he told Mr Hanger to clean the property, makes tracks and clean up dead trees on the bank and put them in a pile. He admitted that he told Mr Hanger to clear the unnamed creek. Mr Ceman's oral evidence that he lied in the ROI should not be accepted. His evidence lacked credibility. For example, the draft answers to the Commonwealth statutory notice allegedly provided by Mr Hanger before the ROI with Mr Potter could not have been prepared before April 2009, well after the interview.

Mr Coomes 350The instructions of the Mato board were confirmed by Mr Coomes on behalf of the company in the scope of works document prepared at the meeting with Mr Michael Hanger on 16 August 2007 which required the acts constituting the removal of the snags to be undertaken. In his ROI Mr Coomes conceded that he directed Mr Hanger to remove logs crossing the unnamed creek. Mr Hanger said to Mr Coomes at that meeting that he had been on site with Mr Smit and Mr Ceman. Mr Coomes admitted in cross-examination that he showed a plan to Mr Hanger in that meeting. His timesheet for that day suggests the meeting took at least two hours. The inference arises from this evidence that he was involved in giving instructions to Mr Hanger. He is guilty on the limited admissions made in relation to the unnamed creek and the Court should infer that he went beyond that in preparing the scope of works document in the meeting with Mr Hanger on 16 August 2007. 351The existence of the scope of works document confirms that such oral or written instructions were given to Mr Michael Hanger because the work carried out by Mr Damon and Mr Root accords with the scope of works document produced on subpoena by Fine Line Building Projects Pty Ltd . It provided expressly for the removal of snags for the Murray River and the unnamed creek. It is unknown how that scope of works document was given to Fine Line Building Projects Pty Ltd but that does not matter, the inference on the known facts is that Mr Coomes gave it to Mr Hanger or to Mr Smit who in turn gave it to Mr Hanger. The scope of works was clearly discussed and prepared by Mr Coomes on 16 August 2007 and sent without any rider to Mr Smit by email. 352The case against Mr Coomes is overwhelming given that he met Mr Michael Hanger to discuss a scope of works which he prepared following that meeting on 16 August 2007. A plan was marked up to identify where works were to be undertaken. The Court should find that both Mr Hanger and Mr Coomes marked up the plan, contrary to Mr Coomes' evidence that only Mr Hanger did. The meeting lasted two hours according to Mr Coomes' timesheets about which he was meticulous. The evidence of Mr Wood is that the two persons who carried out the project were Mr Coomes and Mr Bennett. Mr Coomes' evidence that he told Mr Smit that part of the scope of works was illegal should not be accepted and was self-serving. Mr Bennett's counsel put to him that he sent to Mr Smit a draft letter of engagement for Mr Michael Hanger based on the scope of works document despite knowing this included illegal work and that he admitted to deleting this and his invoice referring to it. While he sought to blame others on the basis that he acted under instructions, this was clearly a blatant attempt by him to hide inculpating circumstances. 353The minutes of shareholders' meetings are damning particularly as Mr Coomes attempted to sanitise them. In relation to those of the meeting on 3 August 2007, the references to Mr Smit having a colleague available to carry out a clean-up particularly around the River and creek area which should be done urgently when water levels were low and to Mr Coomes being required to prepare a scope of works for the contractor were removed in the version in exhibit V. In relation to the minutes of the meeting on 21 August 2007, the reference to Mr Smit saying clean-up was important, to Mr Coomes having prepared a scope of works document and to the contractor being interested in lot 1 were removed. In relation to the minutes of the meeting on 5 September 2007 the reference to Mr Smit advising he had met the contractor he was proposing to engage to carry out the clean-up in order to quantify the scope of the works carried out was removed. He altered the key parts of the minutes of shareholders' meetings to hide his and other directors' culpability and therefore that of Mato. 354Moreover, the Prosecutor submits the Court should find that the directors (Mr Bennett and Mr Ceman) and project manager (Mr Coomes) were at Kunanadgee on 12 and 13 October 2007, watched the workers removing logs from the Murray River when they were taken around by Mr Adrian Hanger and omitted to stop them as the evidence shows that work continued with the pulling out of logs on 13 October 2007. This is despite Mr Bennett's evidence that he told Mr Michael Hanger on 12 October 2007 that such work must stop immediately. At least one of them congratulated the contractors on their work. 355The actions of the contractors cannot properly be characterised as intervening conduct of such a powerful and unforeseeable nature as to have had the effect of breaking the causal connection between the conduct of the defendants and snag removal. In light of the nature of the instructions provided by the defendants, the actions of the contractors were predictable ordinary consequences of the acts and omissions of the defendants.

Mato's liability 356The enforceable undertaking (exhibit L) signed by Mr Bennett and Mr Ceman on behalf of Mato contained the admission that Mato had removed a large number of snags from the areas the subject of the charge. 357Mato's liability as a corporation must be through a human agent and depends on a finding that a person acting as the mind and will of the company, being one or more of the individual defendants, gave instructions which are attributable to Mato. In Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [ 2009] NSWLEC 232; (2009) 172 LGERA 225 Biscoe J held that the actions of a director were properly attributed to the company under the primary rules of attribution, general rules of attribution and special rules of attribution. General rules of attribution include principles of agency and vicarious liability. 358Primary rules of attribution are found in the company's constitution (exhibit K) and/or under company law. Mato's constitution is in evidence and establishes that the directors have broad capacity to act on behalf of the company. The conduct and state of mind of Mr Bennett and Mr Ceman may properly be attributed to Mato pursuant to primary rules of attribution as they were directors who constituted the mind of the company. Alternatively, pursuant to the general rules of attribution by reason of the fact that they were directors who, in the course of their conduct regarding the Kunanadgee development, acted as officers of and agents for the company. Mr Coomes as project manager, fulfilled a senior role which was open-ended. He was asked at the meeting of 3 August 2007 to provide a scope of works for the contractor and in doing so his state of mind can be attributed to Mato. 359Mr Coomes, having been appointed as the Project Manager of the sole project the company was incorporated to put into effect, was a senior executive officer for the project and, in that respect, represented the company. It was clearly contemplated that he was provided with an open-ended role as project manager and was it specifically contemplated in the shareholders' meeting of 3 August 2007 that he would provide a scope of works for the contractor. Accordingly, his conduct in providing instructions and state of mind in the course of furthering the development is properly to be attributed to Mato. 360Alternative to the submissions on causation above at par 342, each of the defendants is vicariously liable for the actions of the contractors in removing the snags from the subject waterways. In relation to Mato, the conduct of those giving instructions are attributable to the company (see above). The general rule that a principal is not vicariously liable for the actions of an independent contractor is subject to recognised exceptions that where the principal orders the contractor (a) to do the act constituting the offence, (b) to do some act comprising that act, or (c) to do some act which leads by physical necessity to the offences: Stoneman v Lyons [1975 ] HCA 59; (19 75) 133 CLR 550 per Mason J at 573, Stephen J at 562 applied in Coffs Harbour City Council v Hickey [2004] NSWLEC 531 and Director-General, Department of the Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73. An express instruction to carry out the conduct constituting the offence/s constitutes the offence. A general unqualified instruction to remove logs and dead wood is analogous to the general instruction considered by Pepper J in Walker (No 2) at [313] - [317]. 361Special rules of attribution apply as a matter of statutory construction independent of the other categories of attribution. In Issa Biscoe J derived special rules of attribution under s 44(b) and s 12(2) of the Native Vegetation Act 2003 in light of the policy of that Act in protecting native vegetation at [119] - [122]. By analogy, special rules of attribution should apply under s 220ZD(1) where a company has as its sole purpose the carrying out of a particular development such that the conduct of the directors of the company, and the conduct of a person appointed as project manager for that specific development, which breach s 220ZD(1) of the Act is attributable to the company. The conduct of contracted persons carrying out the development in breach of that section upon sufficiently general and unqualified instructions which would be reasonably expected to lead to the contravention in circumstances where the contractors are not told of conditions expressly prohibiting such conduct, is attributable to the company.

Failure of Prosecutor to call key witnesses 362All the defendants submitted that the Prosecutor had failed to prove any of the FM Act offences beyond reasonable doubt because the circumstances which resulted in the clearing of snags by Mr Michael Hanger's employee, Mr Adrian Hanger and subcontractor Lance Smith Excavations Pty Ltd, who employed Mr Root and Mr Damon, are unknown in his absence. It is undisputed that Mr Michael Hanger was engaged to carry out works on-site and that he directed his employees/contractors to remove snags from the Murray River, the Big River Billabong and the unnamed creek. The summonses issued to all defendants state that they directed Mr Hanger to carry out the works. They deny directing his work or providing him with the scope of works document in exhibit T, which was produced on subpoena by Mr Hanger's company Fine Line Building Projects Pty Ltd . Mr Ceman told Mr Hanger and Mr Smit that he would tell the truth at the hearing in relation to coaching by Mr Hanger. As the Court does not know who told Mr Hanger to do what and how, the Prosecutor has not established its case. 363Mr Hanger was given indemnity from prosecution but was not issued with a subpoena before going overseas where he apparently remained during the hearing. The Prosecutor concedes that he is unwilling to appear. Contrary to the Prosecutor's submission, the existence of the written scope of works is not evidence that Mr Michael Hanger received it from any defendant, or caused Mr Hanger to conduct the works in accordance with the scope of works. In the absence of Mr Michael Hanger no such inference can arise. 364Another key witness not called was Mr Smit, a representative of one of the joint venturers. He is the person, based on the evidence of Mr Coomes, who gave Mr Hanger his instructions. He was not investigated by the Prosecutor despite his name appearing in minutes of meetings in relation to the scope of works and in various ROIs. According to Mr Coomes' oral evidence, Mr Smit told him to conceal the scope of works for Mr Hanger from the board of Mato. Mr Smit directed him to alter the minutes of shareholders' meetings and tax invoices to mask his involvement. Mr Potter conceded in cross-examination that Mr Smit was a person of interest whom he regrets not interviewing (TS190.30, 217.35, 218.10). Shareholders' meetings were held in Mr Smit's office, he was present at such meetings and Michael Hanger was his colleague (minutes of the 3 August 2007 meeting at 3.1). Mr Smit proposed that Mr Coomes prepare a scope of works and recommended a discount be offered to the contractor Mr Michael Hanger on the price of a lot. 365The Prosecutor has a duty to call all relevant witnesses: R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563; Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 . 366A Jones v Dunkel (1959) 101 CLR 298 inference is not available as against the defendants in relation to the failure of Mr Michael Hanger and Mr Smit to give evidence: Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [5] - [14].

No omission particularised by Prosecutor 367Section 220ZD prohibits acts or omissions which cause damage to habitat of threatened species and ecological communities. The particulars in the charges specify the breaches of the section are through an act (of instructing Mr Michael Hanger) not an omission (a failure to provide adequate instructions an/or the conditions of he development consent). The Prosecutor has to establish that the defendants carried out the works or that this was done as a result of the instructions (as a positive action) of the defendants. Any alleged failure to provide adequate instructions to the contractor Mr Michael Hanger is not relevant as it was not particularised.

Mato's defence 368There is no evidence that anybody having the beliefs, opinions or representing the mind of Mato gave instructions to Mr Michael Hanger. This is necessary per Lennard's Carrying Co Limited v Asiatic Petroleum Co Limited [1915] AC 705 in order for liability to be proved. Such a person must be identified. In Krakowski v Eurolynx Properties Limited [1995] HCA 68; (1995) 183 CLR 563 the High Court said that knowledge of different aspects of a transaction by different company officers did not relieve the corporation from the responsibility for these. In terms of who had direct authority to act for Mato, no person who was the alter ego of the company, including Mr Bennett, did. The board of directors did not issue any such direction to Mr Hanger. The evidence of Mr Bennett, Mr Ceman and Mr Wood was that an agricultural clean-up was contemplated. 369Mato's and Mr Ceman's counsel submitted that any work to be carried out on behalf of Mato was to be in a scope of works, as reflected in the minutes of shareholders' meeting on 21 August 2007. None was ever put before the board for its approval. Mr Coomes was instructed to prepare a scope of works in accordance with the board's decision and it was he who met with Mr Hanger and prepared a scope of works document. 370The Prosecutor has not established that the works were carried out as a result of actions by Mr Ceman or Mr Bennett and therefore by Mato. Their evidence is that there was to be an agricultural clean-up. There was no discussion about, or instruction to undertake, removal of snags from the Murray River or any creek recorded in the minutes of shareholders' meetings. Only Mr Hanger knows what instructions he received and he has not appeared. 371Mr Coomes as an independent consultant did not act for Mato. Mr Coomes' evidence is that Mr Smit directed Mr Hanger. No document exists to establish this. Mr Smit and Mr Michael Hanger did not give evidence. Mr Smit had no authority from the board to instruct Mr Hanger as to the works other than those agreed by the board. There is no evidence that instructions as identified in the charge of removing snags and woody debris were given to Mr Hanger. The evidence suggests there were no instructions given to Mr Hanger for any work to be carried out along the River or the creek. 372In the absence of evidence that Mr Ceman and Mr Bennett instructed Mr Hanger to carry out works, Mato cannot be vicariously liable for the works carried out by Mr Michael Hanger, the relevant principles being identified in Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Limited [2003] NSWLEC 70; (2003) 128 LGERA 240 at [79] - [106]; North Sydney Council v Moline ; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 at [114]; and Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366 at [339] - [346]. There is no evidence that either of these defendants directly authorised the works by Mr Hanger, corroborated by Mr Coomes' evidence. Nor did Mr Ceman or Mr Bennett control or direct the work by the contractors. No director was on site until 12 October 2007 after the commencement of the works. Mr Bennett's evidence is that on that day he spoke directly to Mr Hanger, and told him to stop de-snagging and advised that the logs taken out of the Murray River and the unnamed creek would have to go back. This must be accepted in the absence of contrary evidence. While the timesheets of Mr Damon show further removal of trees on Saturday 13 October the inference is that Mr Michael Hanger did not direct him to cease doing so. 373No control over Mr Hanger was exercised by Mr Ceman or Mr Bennett. The relevant principles are identified in Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 and applied in State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387 and Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51 (both cases concerned whether control was exercised over an independent contractor's work). 374Mr Coomes' evidence is that he was told by Mr Smit to keep the scope of works document secret from the board. Mato has no responsibility for Mr Coomes' actions as he was an independent consultant. There is no evidence that any director had control over his work and none that they directly authorised his work. The only evidence of how the scope of works document was produced was from Mr Coomes. Mato cannot be vicariously liable for Mr Coomes' actions. 375The minutes of the 5 October 2007 shareholders' meeting state that work was yet to commence but the timesheets of Mr Damon and Mr Root show work commenced on 5 October 2007. This is further evidence that no control was exercised over Mr Michael Hanger by the directors Mr Bennett and Mr Ceman. 376As referred to in Issa at [92], in Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 Allsop P at [7] stated that "for a company to be attributed with the intentions of a person attributed with criminal responsibility that person must act in furtherance of the company's interests ... (references omitted)". There is no evidence the desnagging was in Mato's interests given that its aim was to establish an eco-tourist resort. Mato had no control over Mr Michael Hanger's work.

Mr Ceman's defence 377Mr Ceman has given evidence truthfully before the Court and explained why he lied in the ROI. He should be accepted as a truthful witness. If Mr Ceman's oral evidence is accepted, contrary to his statements in the ROI, he did not give any instructions on site to Mr Michael Hanger in late August or September 2007. Mr Ceman gave an explanation for his behaviour in relation to the approach of Mr Hanger who suggested how he should behave in relation to the ROI and the DEWHA statutory notice. If exhibits S (the statutory notice with Mr Ceman's son's handwriting which was submitted to the DEWHA) and 4 (Mr Hanger's version) are compared, they are clearly very similar with only minor variations. For example, question 2.5 asked what use the scope of works was put to, the answer was that it was tabled at a shareholders' meeting was known by Mr Ceman to be incorrect. Exhibit S when viewed as a whole is clearly Mr Ceman's answers based on what he was told to say by Mr Hanger. 378Mr Coomes gave evidence that at the 16 August 2007 meeting with Mr Hanger, Mr Hanger told him he had been on a site visit with Mr Smit and Mr Ceman. That site meeting cannot have occurred by that date. In exhibits 4 and S at 1.1 the date given for the initial site visit is late August. (In oral evidence Mr Ceman said he could not recall the date of the site meeting). Mr Ceman produced diary entries for 27 and 28 August 2007 but his counsel accepted these could not be relied on to establish the date of that meeting. The only people who can substantiate whether or not Mr Ceman was on site are Mr Hanger and Mr Smit and neither appeared. 379Mr Coomes' evidence that Mr Ceman met Mr Hanger and Mr Smit on site should not be accepted because he is unreliable. It is clear from the minutes tendered by Mr Coomes' counsel for 19 September 2007 compared to those in exhibit 6 (tendered by Mr Bennett) that this entry was altered to remove the words "meet with J Smit and discuss preparation of letter engaging contractor to carry out clean up work on site. Prepare letter of engagement for contractor." This suggests that it is unlikely there was a meeting with Mr Michael Hanger on 16 August 2007. Further, the email dated 20 September 2007 (exhibit 3A) attached a draft letter of engagement for Mr Michael Hanger. In the ROI Mr Coomes said that the site inspection took place in late August or early September.

No positive act by Mr Bennett in instructing Mr Hanger 380The Prosecutor has not established any credible evidence of a positive act linking Mr Bennett to any instructions, participation or express authorisation to Mr Michael Hanger to de-snag the waterways at Kunanadgee. In the absence of its star witness, Mr Hanger, granted immunity from prosecution, and in the absence of any evidence from the witnesses called that Mr Bennett witnessed or ever directed any of them to remove snags from the waterways, the Prosecutor has relied primarily on admissions made by Mr Bennett in his ROI. In light of evidence heard and thoroughly tested during the proceedings, these admissions are no longer sustainable as inculpatory against Mr Bennett. 381The evidence also shows that the admissions made in respect of the undertaking agreed to by Mr Bennett (exhibit L) followed representations made to him that further proceedings were unlikely to follow if the undertaking was signed. 382In relation to the element of the charge that Mr Bennett authorised and/or instructed Mr Michael Hanger to remove snags from the waterways, the evidence establishes that Mr Bennett authorised only a limited scope of works for a clean-up of tracks and a general farm clean-up. Mr Bennett was not aware of a scope of works document existing contrary to the board's instructions for a clean-up of the tracks. There is no evidence that Mr Bennett directed Mr Michael Hanger to de-snag the waterways at any time. Mr Bennett met Mr Michael Hanger for the first time on 12 October 2007 after snags had already been removed in the offences period. He did not see any snags being removed from the River. His evidence is that he saw Mr Damon clearing tracks. 383The Prosecutor relies on Mr Bennett's answers in the ROI but that does not equate to sworn evidence before a court, contained leading questions and incorrect factual assertions and Mr Coomes was present, albeit at the request of Mr Bennett. In his sworn evidence Mr Bennett explained that he participated believing that it was possible to achieve a resolution of the matter. Further, he did not direct Mr Michael Hanger to immediately return the logs to the river. The questions and responses in the ROI are ambiguous and refer to the bank of the River. Mr Bennett's evidence is that he knows snags should not be removed from the River. 384The evidence is that Mr Bennett did not direct Mr Michael Hanger to de-snag the Murray River, the Big River Billabong or the unnamed creek at any time, having only met him for the first time on 12 October 2007, TS408.10, 410.45, once the snags had already been removed. Mr Bennett did not know that snags were being removed between the relevant offence dates.

"A log on the bank fair game" 385Mr Bennett used the words "a log on the bank was fair game" as recorded by Mr Potter at the bottom of a one-page note recording the events over a two and a quarter hour period (exhibit 6A) during a meeting on site with Mr Bennett on 25 October 2007. However Mr Bennett submits that comment was made on a view of the site while Mr Potter was pointing to a snag with a chain around it and still in the River. Notes were made by Mr Whitehead (exhibit 7A) during that site meeting which make no reference to the comment said to be made by Mr Bennett. 386During cross-examination Mr Bennett credibly explained the context of that comment which was made in his attempt to explain what might have been in the mind of Mr Michael Hanger. It formed part of comments made by Mr Bennett that day on site that "the boys [the contractor and sub contractors] had gone a bit feral". Mr Bennett also squarely addresses the answer he gave in the ROI at par 106.

Status of the minutes taken by Mr Coomes and exhibit V (amended minutes) 387Contrary to the Prosecutor's submission that the minutes of shareholders' meetings (exhibit P) can be relied upon, the oral evidence of Mr Coomes has shown that the notes of meetings that he took, forming exhibit P, cannot confidently be taken by the Court to be an accurate record of any of the relevant matters that the Court must decide in these proceedings. Mr Coomes in cross-examination conceded that he has doctored numerous records including the minutes forming exhibit P under instruction from Mr Smit and various timesheets and invoices sent to Mato, exhibit 6 and exhibit 2C. Exhibit 2C indicates that Mr Coomes was in the habit of discussing the minutes with Mr Smit, see 3 September 2007 invoice at 23 August 2007 entry, second sentence. Likewise the 1 October 2007 invoice at the 11 September 2007 entry shows the notes of the meeting of 5 September 2007 though dated 10 September 2007 are in fact not finalised by Mr Coomes until 11 September 2007 after he met with Mr Smit and discussed the outcome of the meeting. 388Mr Coomes' oral evidence was also that he doctored the minutes in order to remove certain potentially damaging and inculpatory references to Mr Smit. References to Mr Smit's role in recommending that Mr Coomes prepare a scope of works for the contractor (exhibit P minutes of 3 August 2007 meeting at 3.1 and 3.2) and to him having met the contractor to quantify the scope of works to be carried out were removed (exhibit P minutes of 5 September 2007 meeting at 4.1). Any potentially damaging references to Mr Coomes were also removed (exhibit P minutes of 21 August 2007 meeting at 4.1 and minutes of 5 September 2007 meeting at 4.2). 389The minutes were not necessarily closely scrutinised by the board. Mr Bennett was not present at the 21 August 2007 meeting when previous minutes were confirmed as a true record and he could not challenge the record of that meeting at the 5 September 2007 meeting. To the extent they can be relied on, the board directed that there be a general farm clean-up and was limited to that. 390Mr Bennett requested the amended minutes (exhibit V) by email to Mr Coomes on 8 November 2007 just before the ROI with Mr Potter who requested them. It should be inferred that he did not read them and that he was simply requesting minutes he knew were amended.

No responsibility for directing Mr Coomes 391Mr Coomes' evidence is that he considered himself answerable primarily to Mr Smit. They worked side by side at Mr Smit's offices and Mr Coomes had worked with Mr Smit previously. At the time Mr Bennett met Mr Coomes he was no longer being paid a monthly retainer, that retainer had ceased upon Mr Bennett securing the development consent and a monthly retainer was now being paid to Mr Coomes to project manage the works. Nonetheless the evidence shows that Mr Bennett continued to work on the project and meet regularly with Mr Coomes in respect of the refinancing of the project and other matters. It is not in dispute that each of the directors stood to gain significant profits from the realisation of the joint venture. It was Mr Wood's evidence in explaining par 7 of his affidavit that it was his understanding that Mr Bennett had the most intimate knowledge of the project having secured the consent. Whilst it was his understanding that Mr Bennett ran the project, in truth in terms of a pecking order he put Mr Bennett ahead of Mr Coomes, but acknowledged that he had no direct involvement in the day-to-day running of the project. Whilst he would have expected that Mr Bennett and Mr Coomes would work together he was not there to say what in fact went on. 392Mr Bennett became managing director in February 2008 after the period of the offences alleged. At the time of the offence he was no more responsible for Mr Coomes than any other director. 393The invoices of Mr Coomes (exhibit 2C) and in particular the invoice dated 3 September 2007 shows several entries in respect of Mr Coomes discussing the project with Mr Smit. The available inference from the numerous entries regarding Mr Smit is that Mr Coomes, despite asserting that he worked solely with and took direction from Mr Bennett, may not have been working solely with Mr Bennett. Notwithstanding working closely with Mr Bennett on various of the matters to do with the project, Mr Coomes may in fact have worked principally with Mr Smit on another agenda. Mr Coomes stated in oral evidence that at no time did Mr Bennett (or Mr Ceman) know about his discussions with Mr Smit. 394The manner in which Mr Bennett gave evidence suggests that he is not a liar given his credible demeanour under cross-examination and his credible explanation of various statements in his ROI. His explanations as to why he adopted liability on behalf of Mato for the actions of Mr Michael Hanger on site were that he approached the ROI as the means of attempting to achieve a resolution of the problems created by others on site. At all times during the ROI he was endeavouring to be co-operative and at all times he showed himself prepared to accept responsibility on behalf of Mato, in particular financial responsibility for the de-snagging. Contrary to the Prosecutor's submission that in his answer in the ROI Mr Bennett differentiated between the clearing of tracks and site clean-up, that was all part of the clean-up brief he referred to in the ROI. He also referred to the clearing up of dead wood as good husbandry as there was timber piling up and the tracks had to be kept clear. He stated there were thousands of logs on the track. When asked in cross-examination if he was aware that he was not supposed to remove woody debris from rivers and streams, he said that he would never allow that to happen. His oral evidence was that he had never seen the scope of works document, it was never tabled in a shareholders' meeting and whoever prepared it did not abide by what he intended. 395The errors in the ROI he corrected in his oral evidence, such as the date Mr Coomes was unable to supervise the work due to ill health, are explicable and reflect his change in knowledge of what occurred. In relation to 12 October 2007, Mr Bennett has consistently stated that he only ever met Mr Michael Hanger that day for the first time. He was only ever interested in speaking to Mr Michael Hanger and not the subcontractors.

Mr Bennett's emails of 17 and 18 October 2007 396The Prosecutor submitted that the emails dated 17 and 18 October 2007 sent by Mr Bennett to Mr Parr do not refer to the clearing of snags and therefore are evidence of guilt beyond reasonable doubt that Mr Bennett gave instructions that this be done. These emails are the highest the Prosecutor can put its case against Mr Bennett. The emails need to be read in context. The credible explanation given by Mr Bennett was wanting to provide a solution to the significant problem created and in subsequently working over an extended period with Fisheries and other departments to re-snag the River in a manner acceptable to each of these authorities. It can be accepted that Mr Bennett was at all times a credible and consistent witness. Particularly in the absence of Mr Michael Hanger and Mr Smit, Mr Bennett's evidence should be accepted. 397There is no evidence that Mr Bennett had any prior knowledge that Mr Michael Hanger would undertake such extensive works. The email attaching the quote for site clearing of $210,000 is dated 17 October 2007, after the site visit on 12 October 2007 and after Mr Bennett had told him to stop. Mr Michael Hanger's invoice to Mato for $484,000 dated 23 December 2007 (exhibit 3) is well after the commission of the offence. 398Additional matters which suggest Mr Bennett is not responsible for the instructions giving rise to the offence are as follows: he had no knowledge of the scope of works document (exhibit T), he had no motive to carry out such an offence as the removal of snags provides no benefit to the eco-tourist resort he was working to achieve, he had no knowledge of the unauthorised work by Mr Hanger before it was done, he ordered the work to stop as soon as he became aware of it on 12 October 2007 and he did not cause snags to be put back in immediately. Mr Michael Hanger had a motive as the larger the job the more he could offset against a block of land. Further, he told Mr Bennett he was interested in water skiing and the removal of snags would enhance the use of the land for that purpose. 399The Prosecutor has not established that Mr Bennett caused Mr Michael Hanger to carry out the removal of snags from the River or unnamed creek. The charges against Mr Bennett should be dismissed.

Mr Coomes' defence 400Mr Coomes is a man of previously unquestioned honesty and integrity, an experienced, respected and highly regarded Victorian town planning consultant based in Melbourne who is charged as a principal with four offences. His status among the defendants is unique. He is not an owner or investor in the project, and unlike his co-defendants has absolutely no motive to participate in the charged offences, and none has been alleged by the Prosecutor. The evidence is he was paid a pittance in commercial terms ($28,000) for his work as a consultant over seven months on this project. He has now ended his association with Mato.

Attacks on credit not substantiated 401The Prosecutor's submissions that Mr Coomes lacks credibility should be rejected. Two bases for such a submission were made. Firstly Mr Coomes sent an email to Mr Smit dated 20 September 2007 attaching a draft unsigned letter of engagement (exhibit 4A). Mr Coomes' uncontradicted evidence is that he is not aware that was sent on to anyone. He was said to be lying when he gave evidence in chief about the scope of works document (exhibit T) which appeared to be the document he typed up for Mr Hanger. He gave oral evidence about how exhibit T was created. He said he gave that document and Mr Hanger's handwritten notes to Mr Smit that day or the next. He stated that he did not see that document for another 12 months. No evidence in chief was given about this, exhibit 4A being introduced in cross-examination by Mr Bennett's counsel. He answered truthfully what was put to him about it by Mr Bennett's and Mr Ceman's respective counsel. Mr Coomes stated that he prepared a draft letter of engagement as he wanted to know the proposed terms so he sent the draft letter on 20 September 2007 in similar terms to the scope of works document to Mr Smit. In re-examination he stated that the letter was deleted from his computer at Mr Smit's request. 402Secondly, the Prosecutor says that Mr Coomes lied on oath because he deleted notes he kept of Mato shareholders' meetings at the direction of others such as Mr Smit, his superiors, after the snag removal and prepared different versions of the minutes (exhibits V and W). Exhibit P is the original minutes. These changes were fully disclosed to the DEWHA by Mr Coomes in December 2008. None of this affects his credibility in oral evidence before the Court. 403Thirdly, the Prosecutor (and counsel for Mato and Mr Ceman) attacked Mr Coomes' credibility because of differences in invoices rendered by him to Mato. The invoice in exhibit 6 contains an entry for 19 September 2007 of drafting a letter of engagement to send to Mr Smit. The version in exhibit 2C does not contain that entry for that day. Mr Coomes' evidence is that this was done at the request of Mr Smit. That is no basis for an attack on credit. 404Fourthly, counsel for Mr Ceman also sought to attack Mr Coomes' credibility in relation to the date of the meeting with Mr Michael Hanger on 16 August 2007 despite Mr Coomes' timesheets (exhibits 2A and 9C) both recording the meeting on that day. This was based on Mr Ceman's evidence on the draft response to the statutory notice provided to him by Mr Michael Hanger (exhibit 4) which stated the meeting was in late August. That is no basis for attacking Mr Coomes' credibility. 405Key aspects of his oral testimony are corroborated by other documents. His testimony is consistent with the DEWHA interview. He was otherwise forthright in his evidence of what actions he took both good and bad while working for Mato. That he altered his own notes of meetings which notes had no formal or legal status should not affect his credit as a witness. He gave lengthy and detailed answers in the witness box and the Court would form a favourable impression of his demeanour in the witness box.

Causation of alleged offence 406The Prosecutor must prove beyond reasonable doubt that Mr Coomes engaged in conduct (positive acts) such that the actions of Mr Hanger were a natural consequence of Mr Coomes' actions and he is taken to have caused the damage per Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [ 2010] NSWLEC 144; (2010) 179 LGERA 386 ; Olmwood and Walker (No 2) at [274(f)]. The only evidence of a positive act that could be said to have resulted in the snag removal is the face-to-face meeting that Mr Coomes had with Mr Michael Hanger on 16 August 2007. 407It was acknowledged by Mr Coomes in his ROI that he had met Mr Michael Hanger at his Kings Way office and that Mr Michael Hanger described the work that he proposed to do. Mr Coomes provided further details of this meeting in his oral evidence to the effect that Mr Hanger visited him, discussed Mr Hanger's proposed scope of works and asked him to type up that document (exhibit T) and that afterward he provided it to Mr Smit. 408Mr Coomes' oral evidence was that when he gave the scope of works document to Mr Smit following the meeting with Mr Michael Hanger, he told Mr Smit that the work was in breach of the development consent and could not be done. His oral evidence was that Mr Smit told him not to worry so much about rules and regulations and he did not see that document again for 12 months or so. Mr Smit has not given evidence. Before any site clearance work in such a scope of works was implemented, the joint venture would have had to agree and they would not have done so. Mr Wood confirmed that he anticipated that Mr Coomes would have put such a proposal before the joint venture. Mr Coomes did not conceal the scope of works document from the joint venture. What happened with it is unknown after Mr Coomes provided it to Mr Smit. There is no evidence that Mr Coomes told Mr Michael Hanger to implement the scope of works at the meeting or any other time. 409Given Mr Coomes' oral testimony about his advice to Mr Smit on or about 16 - 17 August 2007, and also (and quite independently) because there is no evidence to suggest that his short meeting with Mr Michael Hanger had any particular causative effect on Mr Michael Hanger's conduct, it cannot be concluded beyond a reasonable doubt that Mr Coomes' conduct in that meeting caused the snag removal works or precipitated them as a natural consequence. 410A draft letter of engagement was later emailed by Mr Coomes to Mr Smit incorporating much of the scope of works document, but there is no evidence this letter ever went beyond a draft, and no evidence it was ever given to Mr Hanger in draft or final form. It does not add to the causation case against Mr Coomes. 411Further a Jones v Dunkel inference arises in favour of Mr Coomes in relation to the evidence of Mr Smit and Mr Hanger in relation to the meeting on 16 August 2007, the discussion afterwards with Mr Smit and what was said by Mr Smit in relation to the draft letter of engagement he prepared. Dyers v The Queen confirms that such an inference arises where the prosecutor has a duty to call all relevant witnesses and fails to do so, as in this case. It has become clearer as the case progressed that Mr Smit had a significant role to play and his presence was necessary to complete the narrative of proof. That is clearly also the case for Mr Michael Hanger. 412Mr Coomes' defence crucially depends on interaction and conversations with these two missing witnesses in circumstances where the Prosecutor submits that Mr Coomes should not be believed except where he has inculpated himself. There is no commonsense causation supporting a finding that there was a positive act by Mr Coomes in relation to Mr Hanger. The fact that the scope of works document was produced by Mr Michael Hanger's company is not evidence establishing that Mr Coomes gave it to him.

Further doubt 413Mr Coomes had no discernible motive to instruct Mr Hanger to breach the development application by removing snags, in contrast to Mr Smit who was a party to the joint venture agreement and whose partner had a beneficial interest of 25 per cent of the development. Mr Michael Hanger stood to gain a valuable land holding and also had an interest in removing snags as a keen water skier. Further, Mr Coomes had a substantial professional reputation to protect. He was not insured for site supervision and was not being paid handsomely. All these factors suggest it is very unlikely that he would have provided instructions to Mr Hanger to carry out unlawful snag removal. No positive act beyond reasonable doubt has been established. 414If the Court finds that Mr Ceman's ROI should be accepted then Mr Coomes cannot be responsible. 415In relation to the evidence of the workers on site on 12 October 2007 the evidence of Mr Damon that an unknown person said to the workers on 12 October 2007 they were doing a good job does not assist as there were many people present when this was said. Mr Damon's evidence should not be construed as a statement that all four persons made the comment, rather he could not distinguish who said it. Mr Coomes' evidence is that he did not speak to any of the workers during the drive around except to exchange pleasantries with Mr Adrian Hanger, being ill on 12 October 2007. 416As there were also other workers present there is no basis for concluding from Mr Damon's evidence that the comment was directed at him as Mr Root was also doing track work. Nor can such a remark play a causative role in his removal of snags given that he already had instructions. Mr Coomes had no authority over the workers. Mr Coomes gave evidence that he did convey his concerns to Mr Root over dinner on 12 October 2007. 417Mr Coomes was a consultant not a director or investor and therefore was subordinate to Mr Smit and Mr Bennett and the other joint venturers. When told of the proposal to do unauthorised work he advised against it. He acted under the supervision of Mr Bennett and Mr Bennett did not have carriage of the site clean-up works at Kunanadgee.

Consideration of whether the Prosecutor has proved element of offences that defendants caused damage to habitat 418The Prosecutor must prove beyond reasonable doubt that the defendants caused damage to the habitats particularised in the charges. There are two overarching matters to consider first.

Absence of two key witnesses 419As submitted by the defendants, in the absence of any evidence from Mr Michael Hanger there is no direct evidence establishing how the work of snag removal came to be carried out by Mr Root and Mr Damon, employed by Lance Smith Excavations Pty Ltd, and his brother Mr Adrian Hanger. Mr Adrian Hanger said he acted under the instructions of Mr Michael Hanger who instructed him as to what was to happen each day. If there was a particular issue Mr Adrian Hanger would ring Mr Michael Hanger for instructions. The evidence of Mr Adrian Hanger establishes that all the instructions for the work to be carried out came from Mr Michael Hanger alone. Mr Michael Hanger told him to remove logs from the Murray River and the unnamed creek and this is what Mr Adrian Hanger did and told Mr Damon and Mr Root to do. Mr Adrian Hanger was unaware of any arrangements for payment Mr Michael Hanger had. Mr Adrian Hanger did not meet any of the owners of the property until 12 October 2007. His oral evidence was that his brother told him afterward that the people he met were the owners. He did not know their names and could not say who he drove around on that day. 420Mr McHugh, the Council officer (referred to at par 70, 92 above) who inspected the site on 16 October 2007, attests to a conversation with Mr Adrian Hanger who said he was the site manager and that his brother was the main person in charge. Following a request that his supervisor call as soon as possible Mr Michael Hanger rang Mr McHugh and said he was in charge of the works at Kunanadgee. Mr Hanger told him that the works being carried out were not pursuant to the development consent for the eco-tourist resort. 421This evidence emphasises the importance of Mr Michael Hanger's role as an independent contractor in charge of carrying out the work at Kunanadgee. In the absence of his evidence there is a significant gap identifying why Mr Michael Hanger gave the instructions that he did to the workers to clear snags from the waterways. The Prosecutor bears the onus of proving its case beyond reasonable doubt and the absence of Mr Michael Hanger in particular substantially compromises the ability of the Prosecutor to do so. Mr Potter, the investigating officer, was asked in chief and in cross-examination (summarised at par 34 - 36) about Mr Michael Hanger not attending. He said Mr Hanger was overseas where he had tried to contact him unsuccessfully. Mr Potter agreed in cross-examination that Mr Michael Hanger was a major witness who undertook two ROIs, provided an affidavit and was granted immunity for prosecution (par 35). It also leaves the individual defendants' evidence that they did not instruct Mr Michael Hanger uncontradicted by him. 422A further potential witness who also appears to be important and has not given evidence is Mr Smit. He was not formally interviewed by the Prosecutor. In Dyers v The Queen Gaudron and Hayne JJ stated at [11] that there is a responsibility imposed on the prosecution to call all available material witnesses unless there is good reason for not doing so. That it would have been desirable to formally interview Mr Smit was stated by Mr Potter in oral evidence. Mr Smit is a representative of one of the joint venture entities (the Ceman Kunanadgee Property Trust) and represented his partner Mr Ceman's daughter, a director, at the Mato shareholders' meetings. The shareholders' meetings were held at his offices and Mr Coomes' office was also located there. He is recorded as attending all of the Mato shareholders' meetings the minutes of which are extracted for July to October 2007 above (unaltered version exhibit P). He is the person recorded in the minutes dated 3 August 2007 as having a colleague with access to earthmoving equipment who was available to carry out a site clean-up around the River and creek area and that such work should be done when water levels were low. He is recorded as stating that the contractor was prepared to offset his fees against the purchase price of a lot. 423The minutes of 21 August 2007 record Mr Smit as outlining the importance of having the site cleaned up and that the contractor was interested in purchasing a particular lot. The minutes of 5 September 2007 record that Mr Smit undertook to meet with the contractor to quantify the scope of works to be carried out. The minutes state that Mr Smit was the person who met with the contractor. Mr Bennett's oral evidence was that Mr Smit was the person he believed showed Mr Hanger around the site. In cross-examination by Mr Coomes' counsel, Mr Bennett stated that Mr Smit was heavily involved in the shareholders' meetings and was the person liaising with the contractor. In his ROI Mr Bennett referred to Mr Smit as the person who approached Mr Michael Hanger (par 178 onwards). Mr Ceman identified in his ROI that Mr Smit was present during the site inspection with Mr Hanger and himself (as he admitted at that stage) in around September 2007. 424The evidence of Mr Coomes, if accepted, also emphasises the essential involvement of Mr Smit in briefing Mr Hanger. Following the meeting with Mr Michael Hanger on 16 August 2007 and typing up of the scope of works, Mr Coomes sent the scope of works to Mr Smit. Mr Coomes emailed the draft letter of engagement of Mr Michael Hanger dated 20 September 2007 to Mr Smit who told him to delete it. The only person connected with Mato with whom Mr Coomes dealt in relation to arranging the site clean-up was Mr Smit. Mr Potter, the investigating officer, was cross-examined about his investigations and whether these should have included Mr Smit (summarised in par 46 - 48). 425The defendants submit that the absence of these relevant witnesses results in the Prosecutor not being able to establish the various charges. Further Mr Coomes' counsel submitted a Jones v Dunkel inference arises from this failure, namely that their evidence would not have assisted the Prosecutor in explaining or contradicting Mr Coomes' evidence as to what he said in relation to Mr Hanger and Mr Smit. The Prosecutor submitted that no Jones v Dunkel inference can arise in criminal proceedings also relying on Dyers v The Queen . According to the Criminal Trial Courts Bench Book , Judicial Commission of New South Wales, Sydney, 2002 to date (loose-leaf at Update 33, June 2011) "Witnesses - Not called by Crown" at [2-1050] "Introduction", where the Crown does not call a material witness the relevant direction to a jury is based on the High Court decision in Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 at [27] (per Gleeson CJ, Gummow, Kirby and Kiefel JJ) that: ... where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. 426Mahmood overturned an earlier NSWCCA decision which had held that Jones v Dunkel directions could be given against the Crown in such circumstances. The Prosecutor had intended to call Mr Michael Hanger but he became unavailable unexpectedly but did not intend to call Mr Smit. No Jones v Dunkel inference arises from the absence of Mr Hanger and Mr Smit, rather I can take that into account in assessing whether there is reasonable doubt about the defendants' guilt. 427The offences of causing damage to habitats are particularised as the instructing of a contractor Mr Michael Hanger by the directors of Mato, Mr Bennett and Mr Ceman, and by Mr Coomes, the project manager. All denied during the hearing that they had any involvement in instructing Mr Hanger to do work resulting in the snag removal. In the case of Mr Bennett the Prosecutor brings forward no direct or indirect evidence that he had any role in instructing Mr Hanger beyond participating in shareholders' meetings where there was discussion of employing a contractor to do clean-up work on site which included removing dead logs from existing tracks. In the absence of any evidence from Mr Michael Hanger and Mr Smit it is highly unlikely that the Prosecutor can prove that Mr Bennett instructed Mr Michael Hanger. Arguably the Prosecutor fails at the outset in relation to proving the liability of Mr Bennett personally but I consider below Mr Bennett's defence, the admissions made by him in the ROI and his oral evidence. Separately, his involvement as a director will be considered in relation to Mato's liability. 428The circumstances in relation to Mr Ceman and Mr Coomes are more complicated in assessing the impact of the lack of evidence from key witnesses being called by the Prosecutor. The Prosecutor has relied on Mr Ceman's evidence in the ROI of giving instructions during a walk around the site to Mr Hanger in the presence of Mr Smit in August or September 2007. This is argued to be further supported by Mr Coomes' evidence of his meeting with Mr Michael Hanger on 16 August 2007 resulting in him typing up a draft scope of works. Their respective defences will need to be considered in light of the Prosecutor's case.

Omission not particularised 429It was not until final submissions that the Prosecutor's counsel submitted that the defendants' guilt arose from the omission to inform the contractor of condition 16 of the development consent. As submitted by the defendants, the Prosecutor opened its case and it is particularised in the summonses of the charges on the basis that the defendants engaged in positive acts in providing certain instructions to the contractor Mr Michael Hanger. It is not fair in criminal proceedings for the Prosecutor to change the particulars relied on in final submissions to include in part a different case to that particularised at the outset as the case the individual defendants had to meet. The case against the individual defendants is confined to proof of a positive act of instructing Mr Michael Hanger.

Admissions in the ROIs 430Admissions made in the ROIs by Mr Bennett, Mr Ceman and Mr Coomes are relied on by the Prosecutor as evidence of consciousness of guilt. In the absence of a key witness, Mr Michael Hanger, the case against these defendants depends, to a greater or lesser extent, on their admissions in the ROIs. The case against Mr Ceman relies substantially on his admissions in the ROI. Under the Evidence Act relevant terms are defined in the Dictionary as follows: 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. previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. representation includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated. 431Section 184 of the Evidence Act provides specifically for admissions of fact in criminal proceedings. These are formal admissions made where the court is satisfied that the accused was advised to make them by a legal practitioner or understands the consequences of making them: see S Odgers, Uniform Evidence Law , 9th ed (2010) Thomson Reuters at [1.5.200]. D Ross QC, Ross on Crime , 5th ed (2011) Thomson Reuters at [1.2600] - [1.2610] identifies admissions made leading up to or in the course of a criminal trial as a concession that there will be no contest on a matter of fact. The admissions made in the ROIs by the defendants are not admissions of this kind as they are not formal admissions made, meaning an acknowledgment that there will be no contest as a matter of fact. The portions of each of the ROIs relied on by the Prosecutor were admitted over objections in the course of the hearing. The admissions made by Mr Bennett, Mr Ceman and Mr Coomes admit liability at differing levels of specificity for different matters. They were made in the course of investigations following cautions by a departmental officer that he was investigating possible breaches of the FM Act. They are statements which can be weighed up, particularly if inconsistent with other evidence, as part of the evidence before the Court including the sworn testimony and cross-examination of the individual defendants.

Whether Mr Ceman caused damage to habitats 432Mr Ceman is charged individually and as a director of Mato with three offences of causing damage to habitat which requires the Prosecutor to establish that he is liable for the snag removal by Mr Michael Hanger. The case against him personally is that he instructed Mr Hanger during a walk around the site in August or September 2007 in the company of Mr Smit resulting in snag removal from the unnamed creek and the Murray River. 433The incriminating statements in the shareholders' minutes of the meeting on 3 August 2007 attributed to Mr Smit, that a site clean-up particularly around the River and unnamed creek area should be done as a matter of urgency when water levels were low, were put to Mr Ceman by the Prosecutor in cross-examination. Mr Ceman denied that the board agreed to remove woody debris when water levels were low and said he would not have agreed to works in the River (par 217). In chief Mr Ceman stated that a general clean-up of the property was intended (par 207 above). 434In his ROI on 16 December 2007 Mr Ceman said he made arrangements for Mr Michael Hanger to clean up the property on the basis that he could buy a lot (par 196 above). Mr Ceman met with Mr Hanger and Mr Smit at Kunanadgee. He could not recall when this was but he thought it was sometime in September 2007 to discuss the clean-up work required and answered a number of questions about what he said to Mr Hanger at that meeting (summarised at par 197 - 199). This included asking Mr Hanger to clean up dead wood from existing tracks and along the top of the bank of the River and around the unnamed creek. He also told Mr Hanger to clean up dead wood across the unnamed creek. He did not tell Mr Hanger to remove or not to remove snags from the River. In his oral evidence he stated that these answers were untrue and he did not meet with Mr Hanger and Mr Smit on site at all. Further, he had no involvement in briefing Mr Michael Hanger to do any work on site. His oral evidence is that he was approached by Mr Hanger after the snag removal and told to answer questions a certain way in the ROI as a way of the matter not proceeding any further. Mr Hanger told him that this was the advice of Mr Michael Hanger's solicitor of what to do to resolve the matters. 435Mr Ceman's admissions in the ROI implicate him in providing instructions to Mr Hanger which could have lead to the snag removal from the unnamed creek and, by inference, from the River. These admissions no doubt lead the Prosecutor to consider him potentially guilty of the offences. Mr Ceman now asks the Court to accept his explanation for why his statements in the ROI were untrue and that he had no involvement in briefing Mr Michael Hanger at any time before the offences period. The Prosecutor submits that Mr Ceman lied in his oral evidence and should be found guilty in light of his admissions in the ROI. His oral evidence and his answers in the ROI in relation to briefing Mr Hanger are in direct conflict. 436The Prosecutor tendered Mr Ceman's response to the DEWHA statutory notice (exhibit S). Mr Ceman said he was provided with a draft response by Mr Michael Hanger which was tendered by his counsel (exhibit 4). Apart from Mr Ceman saying that exhibit 4 was written by Mr Michael Hanger, Mr Adrian Hanger stated that the handwriting might be his brother's (par 73). Mr Ceman at first stated that the draft response was provided before the ROI with Mr Potter in December 2007. This was to support his explanation for why he answered as he did in the ROI as being what Mr Hanger told him to say. When it was pointed out to him that the statutory notice was not sent by the DEWHA until April 2009, well after the ROI in December 2007, he stated it was provided later. His counsel submitted that Mr Ceman largely copied the answers Mr Hanger provided because, I infer, such behaviour albeit after the ROI supported Mr Ceman's oral evidence that his answers in the ROI were based on what Mr Hanger told him to say. 437Mr Ceman copied some of Mr Hanger's answers he knew were incorrect in his response to the notice. An obvious example is the answer to question 2.5 that the scope of works document was tabled at a shareholders' meeting and approved when he knew this was untrue. The difference in answers between exhibits S and 4 was highlighted in lengthy cross-examination by the Prosecutor summarised at par 220 - 226 above and by Mr Coomes' counsel (par 233 in relation to answers to questions 2.3, 3.4 and 6.1). It is clear from Mr Ceman's answers that he amended many of the answers given by Mr Hanger, as well as copying others. Mr Hanger in exhibit 4 referred to Mr Coomes being involved in the preparation of the scope of works document and having a copy of the scope of works, and to Mr Bennett and Mr Coomes being involved in a telephone conversation instructing Mr Hanger. Some answers Mr Ceman gave referred to general talks without referring to Mr Coomes, referred to Mr Coomes with a question mark as someone who might have the scope of works document, and omitted Mr Bennett as someone who gave instructions, so that these responses were less incriminating than those provided by Mr Hanger. 438Another answer different to Mr Hanger's draft was the description of what the scope of works described. Mr Hanger's answer to question 2.7 was to clear tracks/remove timber from the creek and pull logs from the River. This was changed by Mr Ceman who omitted the references to pulling logs from the creek and the River. Mr Coomes' counsel identified three answers where Mr Coomes changed the response from Mr Hanger's draft answers in relation to Mr Coomes. These differences in answers suggest Mr Ceman did attempt to answer some questions on the basis of his own knowledge, rather than always copy what Mr Hanger wrote. Some answers suggest that Mr Ceman did apply his own mind to the responses to the statutory notice in several questions. His explanation that he answered the notice as he did because Mr Hanger told him to is not sustained when the answers in exhibit S highlighted in cross-examination are considered. In any event Mr Michael Hanger's draft answers in exhibit 4 could not have assisted Mr Ceman at the time of to his ROI in 2007. 439Mr Ceman's counsel tendered his work diaries for 27 and 28 August 2007 which showed that he was in Melbourne and could not therefore have been on a site visit with Mr Smit and Mr Michael Hanger. Why that was done is not clear on the evidence before me as those dates have not been the subject of evidence apart from one statement by Mr Bennett which was not relied on in any submissions by any counsel. 440There is evidence contradicting Mr Ceman's oral testimony. Mr Coomes' evidence was that when Mr Hanger came to see him on 16 August 2007 Mr Hanger told him he had been on site with Mr Ceman and Mr Smit to get instructions. 441The Criminal Trial Courts Bench Book , "Consciousness of Guilt, Lies and Flight" at [2-962] " Notes" states: 3. Where the prosecution suggests or contends that a lie was told by the accused out of a consciousness of guilt, the jury must be directed that it has to be satisfied of four things before the lie can be used for that purpose: (a) that what the accused said is "precisely identified" as a lie, (b) that the lie was deliberate, (c) that it related to a material aspect of the case and revealed knowledge of the offence or some aspect of it, and (d) that the lie had been told because the accused knew that the truth would implicate him in the commission of the offence charged and the lie is capable of bearing that character: Edwards v The Queen at 210; Zoneff v The Queen at [16]; R v Spathis [2001] NSWCCA 476 at [349]-[351] and R v Quinlan (2006) 164 A Crim R 106 at [15]. ... 6. A lie can only be used as evidence of consciousness of guilt of an offence charged where [the jury is satisfied] that it points unequivocally to the consciousness of the specific offence charged, and not some other offence or crime or wrongdoing or discreditable conduct: R v Cook [2004] NSWCCA 52 at [50]; Steer v R [2008] NSWCCA 295 at [47]... 442Mindful of these cautions when considering whether a defendant has lied, Mr Ceman said on oath in Court that he lied in the ROI, which lies implicated him in the offences to a limited extent in relation to the removal of trees from the unnamed creek at least. His explanation for doing so is that he wished to assist Mr Michael Hanger and Mato in not being charged with any offence and because Mr Michael Hanger told him that his solicitor said this should be done. According to Mr Ceman he attended meetings with that solicitor. As already identified, Mr Hanger and Mr Smit have not given evidence to either corroborate or challenge the oral evidence of Mr Ceman. To be fair to Mr Ceman he could not have been aware that Mr Hanger would not be at Court until the first hearing day. 443Mr Ceman's oral evidence that he lied in the ROI was unsatisfactory. Firstly his statement that he did not realise that the ROI was a serious matter is difficult to accept. The taped ROI identifies that he was given a clear caution and Mr Potter asked if he wished to consult a lawyer which he declined. He was aware the ROI would be taped. He has lived in Australia for four decades and conducts a large building business, suggesting he has reasonable English language and life skills. While his counsel referred to his use of his native language in his work diary when he had difficulties in comprehension, he appeared to understand the matters put to him in the ROI and in the witness box. 444Secondly, he initially claimed that he gave answers in the ROI based on what Mr Hanger told him in the draft response to the DEWHA statutory notice (exhibit 4). As stated above, I infer that the draft response was tendered to confirm Mr Ceman's explanation for lying in the ROI because his responses purportedly reflected the draft answers. He was wrong in his evidence about when he received the draft response from Mr Michael Hanger stating this was before the ROI in December 2007. The DEWHA statutory notice was not issued until 2009. Mr Ceman later recognised this error in his oral evidence, as he had to given the obvious substantial difference in dates. The answers in exhibit 4 cannot support Mr Ceman's evidence that he gave answers in the ROI based on what Mr Hanger told him to say. 445Thirdly, as the above comparison of the draft response to the DEWHA statutory notice and Mr Ceman's response show, Mr Ceman did not simply copy Mr Hanger's answers. On many occasions he amended or changed answers because he did not agree with or did not know about what Mr Hanger had written. This does not support an inference that at the much earlier ROI he simply answered as Mr Hanger told him to. 446Fourthly, that Mr Hanger provided draft answers to Mr Ceman which he accepted does not reflect well on the credit of Mr Ceman's oral evidence generally and does not assist in establishing that he did not go on the site inspection with Mr Hanger and Mr Smit. Indeed the draft answer supplied by Mr Hanger and included in Mr Ceman's response to the DEWHA statutory notice was that he did go on the initial site visit with Mr Hanger and Mr Smit. This was the evidence he gave earlier in the ROI in 2007. As it is the same as the answer he gave in the ROI and as Mr Ceman's response to the statutory notice appears to be a mixture of matters he knew to be true and those he did not, it is possible to infer that he answered that part of the notice correctly. 447Fifthly, Mr Hanger's draft response potentially implicated others in the offences, particularly Mr Coomes and Mr Bennett to a lesser degree. While Mr Ceman did not copy exactly every response allegedly provided by Mr Hanger he did give answers suggesting the involvement of others such as Mr Coomes and Mr Bennett in briefing Mr Hanger, about which he did not have personal knowledge. The inference arises that these answers were not based on his own knowledge and that he was prepared to give such answers. They are unreliable (and are not able to be admitted for the purpose of proving any fact in relation to Mr Coomes and Mr Bennett in any event). 448Sixthly, commonsense should be applied to the circumstances he related of Mr Hanger's offer to assist in giving answers in the ROI (and much later the DEWHA statutory notice) which Mr Ceman knew were wrong, because Mr Hanger's solicitor allegedly said this would help resolve the matter. His oral evidence in this regard is self-serving. Mr Ceman's oral evidence is not substantiated by any evidence from Mr Hanger's solicitor, or Mr Smit who would presumably be able to provide corroborating evidence as to whether or not Mr Ceman went on the site visit with Mr Michael Hanger. 449Seventhly, continuing to apply commonsense, it is unclear why Mr Ceman would wish to help Mr Hanger to the extent of lying in these serious circumstances. He stated that he was trying to be helpful. Mr Michael Hanger was previously known to him through Mr Smit but there was no suggestion of any kind of special relationship to justify such behaviour. 450Eighthly, Mr Ceman's oral evidence (at par 212 above) that Mr Smit allegedly said to Mr Hanger in a meeting at Mr Hanger's solicitor's office that Mr Hanger knew Mr Ceman did not go on the site visit, is entirely self-serving. There is no evidence to confirm such a statement from Mr Smit who allegedly made it (or from Mr Hanger to whom it was directed) or Mr Hanger's solicitor who was present. I do not accept that evidence. 451Ninthly, Mr Coomes was clear in his evidence that he met Mr Michael Hanger on 16 August 2007 after a site visit with Mr Smit and Mr Ceman, according to what he recalls Mr Hanger stating. This meeting is identified in his invoice for that day. While there is no evidence from Mr Hanger to confirm this conversation, there is no reason to doubt Mr Coomes' recollection of what he was told and on what date. Other witnesses such as Mr Wood have identified Mr Coomes' excellent planning and meticulous organisational skills. He struck the Court as a careful witness. It accords with Mr Ceman's statement in the ROI that he went on a site visit with Mr Smit and Mr Hanger and fixes the date of that visit as before 16 August 2007. 452For these reasons I do not accept Mr Ceman's denial of his admission in the ROI that he attended the site visit with Mr Hanger and Mr Smit, which must have been sometime before 16 August 2007, and gave instructions to remove trees from the unnamed creek. The inference from the evidence is that he did. The lie in his oral evidence is precisely identified, was deliberate, and relates to a material aspect of the case. Mr Ceman was aware the answers in the ROI implicated him in the commission of the offences. His lie in his oral evidence points to his consciousness of guilt, to draw on the Criminal Trial Courts Bench Book's considerations in this regard. 453It is now necessary to consider whether that finding is sufficient to establish that Mr Ceman caused Mr Hanger to remove snags. Given the nature of Mr Ceman's admissions in the ROI that he instructed Mr Hanger that trees should be removed from the unnamed creek, and in the absence of other evidence to the contrary as I have not accepted Mr Ceman's oral evidence on this issue, that fact is established. This view is further supported by the content of the scope of works document which Mr Coomes typed up following the meeting with Mr Hanger which referred to removal of snags from the unnamed creek area. As already noted, while Mr Ceman could not have been aware that Mr Hanger was not giving evidence until the first day of the hearing, other witnesses to support his evidence could have been called but were not. 454I consider the Prosecutor has established this element of the offence in relation to Mr Ceman of causing Mr Hanger to remove trees, being snags, from the unnamed creek. I do not consider that the Prosecutor has proved from the ROI alone that Mr Ceman caused Mr Hanger to remove trees from the River. His answers in the ROI were not expressly to remove trees from the River, unlike the explicit request in relation to the unnamed creek. He stated that trees on the top of the bank of the River could be removed. No mention was made of removing trees from the River. Further, the Mato minutes of shareholders' meetings do not contain any such instruction and Mr Ceman's evidence is that there was no discussion or intention of doing so considered at the meetings on 3 and 21 August 2007 at which he was present.

Whether Mr Bennett caused damage to habitats 455The Prosecutor has charged Mr Bennett personally and must prove that Mr Bennett caused the snag removal undertaken by Mr Hanger in order to prove the three offences of causing damage to habitat. The case against Mr Bennett is mounted in part on the basis that he was party to general instructions as one of the directors of Mato which had the predictable consequence that all accessible snags would be removed from the specified waterways. The Prosecutor relies on the minutes of shareholders' meetings. The potentially incriminating statements in the minutes of the meeting on 3 August 2007 attributed to Mr Smit, that a site clean-up particularly around the River and creek area should be done as a matter of urgency when water levels were low, were put to Mr Bennett by the Prosecutor in cross-examination. Mr Bennett stated in his evidence in chief that the intention of Mato's board was to clean up the site by removing dead logs and woody debris from existing tracks and the property generally. He made similar statements in the ROI (par 178 above). In cross-examination he did not recall the statement "should be done as a matter of urgency whilst water levels were low" being made (par 249 above). The minutes do not contain a specific instruction to remove trees or snags from any waterway. 456The Prosecutor relied heavily on Mr Bennett's admissions in the ROI on 12 November 2007 to establish his individual guilt in relation to the clearing of snags by the contractor Mr Michael Hanger. As identified above, the admissions must be weighed up in light of the evidence otherwise before the Court as they are not formal admissions of facts establishing any element of the offence. In the ROI, Mr Bennett stated that he accepted responsibility for the removal of snags on the basis that there appeared to be a misunderstanding between the board of Mato and the contractor about what work was to be done next to the Murray River (par 173 - 174, 179). The instructions to the contractor were to clean up the property (par 173, 178). Mr Bennett clarified in oral evidence his answers in the ROI that accepting responsibility meant that the company would take financial responsibility for the clean-up. He did not intend by these statements an admission that he or the company were criminally liable for the snag removal. 457I accept the submissions of his counsel that Mr Bennett explained credibly in his cross-examination why he made the statement in the ROI that "a log on the bank was fair game" as a possible representation of what might have been in the minds of the workers at the time snags were pulled from the River. His oral evidence is that he was then unaware and continues to be unaware of how the removal of snags came to take place. The admissions of Mr Bennett in the ROI are not sufficient to establish guilt in relation to any element of the offences individually or as a director of Mato given his evidence at the hearing, which I accept for the reasons to be identified. 458The Prosecutor urged a finding that all the defendants' oral evidence should not be relied on because of their demeanour and inconsistent evidence. That submission does not apply to my assessment of Mr Bennett's oral evidence. The dangers of relying on demeanour in assessing a witness' credibility have been identified by the High Court in several cases including Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at 128 - 129. Further authorities to similar effect are identified in the ABC of Evidence , LexisNexis Australia (electronic resource at Service 46, November 2011 ) at "Demeanour" at [56,215] " The power of an appellate court to overturn findings of fact". The thrust of the authorities is that reliance on demeanour in making findings adverse to a witness is to be approached with caution. To the extent I can or should consider Mr Bennett's demeanour I do not consider there was any demonstrated basis for making an adverse finding in relation to his credibility. A preferable approach to assessing evidence is to consider the objective circumstances to the extent these can be known, as outlined in the discussion of evidence to follow. 459The evidence in relation to Mr Bennett's role as a director of Mato in participating in meetings and decisions of the board as reflected in the minutes of meetings on 3 August, 5 September and 5 October 2007 discloses no contact with Mr Hanger and no role in briefing him. Mr Bennett was not present at the meeting on 21 August 2007 (when the preparation of a scope of works document was discussed). No scope of works for Mr Michael Hanger or his company was put before the board of Mato for its approval. His counsel made submissions which called into question the reliability of the minutes as an accurate record of what occurred given Mr Coomes' evidence that some of the minutes were altered (referred to below). The minutes reflect Mr Bennett's evidence that the board determined that a scope of works be prepared for a clean up. The minutes of 21 August 2007 state that "J Coomes prepared a scope of works" . In the absence of Mr Hanger the minutes alone do not establish that instructions from the board to remove trees and snags from any waterway were given to him. 460According to the timesheets of the contract workers, work commenced at the site on 5 October 2007. This was unknown at the shareholders' meeting on 5 October 2007. According to the minutes work was to commence shortly. Mr Bennett gave evidence that he was going on the site visit on 12 October 2007 to inspect work done (par 258 above). 461Mr Bennett's evidence is that he met Mr Michael Hanger for the first time on 12 October 2007 at Kunanadgee. There is no evidence that he had any contact with Mr Michael Hanger or that he directed Mr Michael Hanger to do any work at Kunanadgee before that day. Until 12 October 2007 he was unaware that any snags had been removed from the River and unnamed creek. His evidence is that he was shocked by what he saw on site in terms of the removal of snags from the Murray River and the unnamed creek and that he told Mr Hanger that such work should cease immediately. In the absence of any evidence from Mr Michael Hanger there is no evidence which challenges the oral evidence of Mr Bennett as to his dealings with Mr Michael Hanger on 12 October 2007 and that Mr Bennett had had no prior contact with Mr Hanger. 462Potentially inconsistent evidence was given by Mr Adrian Hanger who stated that he took everyone who came to the property on 12 October 2007 in his truck to show them the work done. This could include Mr Bennett by implication and is contrary to Mr Bennett's evidence that he alone drove around with Mr Michael Hanger to see the work done. Mr Adrian Hanger could not recall exactly how many people he took around that day and who they were. His answer in re-examination is that he thought he took four. His evidence is general in nature and lacks important details such as the identity and precise number of those he took around with him in his truck. He agreed with Mr Bennett's counsel in cross-examination that it was possible that some people were not there at the time or had gone elsewhere. 463Mr Coomes' evidence about 12 October 2007 was that he went with Mr Adrian Hanger and Mr Bird to see the property in Mr Adrian Hanger's vehicle. This confirms by implication Mr Bennett's evidence that he went with Mr Michael Hanger, and could not therefore have gone with Mr Adrian Hanger. 464The evidence of Mr Damon, employee of Lance Smith Excavations Pty Ltd, is that he was observed pulling snags from the River by three or four people who were visiting Kunanadgee. He was told he was doing a good job by one of those people. He is unable to say who said that and is not able to identify who was watching him or name or describe the people. This evidence does not establish that Mr Bennett said those words to him or observed his work. Mr Bennett's evidence is that he went around the property with Mr Michael Hanger and did not observe workers directly engaged at work pulling logs from the River. He saw a worker working on the track with a machine. Mr Bennett's evidence that he drove around the property with Mr Michael Hanger on 12 October 2007 and had the conversations he attested to should be accepted. 465Mr Bennett's counsel submitted that Mr Bennett had no role in directing Mr Coomes after development consent had been obtained as by that time Mr Bennett was no longer on a monthly retainer from Mato. Mr Bennett's role was the same as any other director of Mato by that stage. The invoices prepared by Mr Coomes (exhibit 2C) were relied on to establish that Mr Coomes spent time with Mr Smit as can be seen from the numerous references to him. The Court was asked to draw the inference that Mr Coomes took direction from Mr Smit contrary to his evidence that he took direction solely from Mr Bennett. It is not really necessary that I draw any such inference in order to exculpate Mr Bennett. On Mr Coomes' evidence there is no suggestion of any discussion between him and Mr Bennett concerning site clearing and snag removal at Kunanadgee or about briefing Mr Michael Hanger about that. The evidence suggests that Mr Smit had contact with Mr Michael Hanger. There is no evidence from Mr Ceman or Mr Coomes that there were any discussions with Mr Bennett and anyone else about a site clean-up beyond what is recorded in the minutes of shareholders' meetings. There is no evidence linking Mr Bennett with Mr Michael Hanger before 12 October 2007. Particularly in the absence of Mr Smit and Mr Hanger, Mr Bennett's evidence should be accepted. 466The Prosecutor sought to rely on Mr Bennett's emails to Mr Parr dated 17 and 18 October at a time when Mr Bennett was aware of the snag removal, yet made no mention of it, as evidence of consciousness of guilt. He also attended a meeting with Mr Parr in the afternoon of 12 October 2007 and did not mention the snag removal then despite knowing this was a potential breach of the development consent. This was suggested to reflect a guilty state of mind on his part. As his counsel submitted, this is not evidence of prior knowledge that Mr Michael Hanger would arrange for the removal of snags. Mr Bennett explained his actions on the basis that he wished to have time to consider what the best response ought to be. Further I accept that there was no attempt to immediately return the snags removed to the River and unnamed creek to cover up the removal of these. 467The Prosecutor has not established one of the necessary elements of the offences of causing damage to habitat in relation to Mr Bennett personally, that he caused the removal of the snags by the contractor Mr Michael Hanger. Mr Bennett is not guilty of the three offences alleging damage to habitat.

Whether Mr Coomes caused damage to habitats 468The Prosecutor must prove that Mr Coomes caused the snag removal organised by Mr Michael Hanger if it is to succeed in the three FM Act offences. The Prosecutor and the other defendants' counsel sought to discredit Mr Coomes. The Prosecutor described him as the most culpable of all the defendants because of his involvement in the meeting with Mr Michael Hanger on 16 August 2007 in preparing the scope of works document which was produced on subpoena by Fine Line Building Projects Pty Ltd, Mr Michael Hanger's company, and in marking up a plan of the site which identified areas referred to in the scope of works which Mr Coomes denied doing. Mr Ceman's and Mato's counsel sought to prove that he did not meet with Mr Hanger on 16 August 2007 but later in August or September 2007 because Mr Coomes' evidence was that on 16 August 2007 Mr Hanger told him that he had met on site with Mr Smit and Mr Ceman. Mr Ceman also gave oral evidence that Mr Coomes' role included site supervision. Other defendants' counsel sought to attack his credit by putting to him a draft letter of engagement for Mr Michael Hanger including illegal work identified in the scope of works which he sent to Mr Smit on 19 September 2007 and reference to which he removed by altering an invoice dated 1 October 2007. Mr Coomes was also cross-examined by the Prosecutor and the other defendants' counsel about the changes he made at Mr Smit's request to the minutes, according to Mr Coomes. It is necessary to consider the evidence to ascertain Mr Coomes' overall position given his role as an independent consultant working for Mato without a specific job description, whether his evidence was credible in light of the attacks on his credit and whether the Prosecutor has proved that his involvement in events leading up to the snag removal means that he caused that to occur through the actions of Mr Michael Hanger. 469In his ROI Mr Coomes was asked about his engagement by Mato as a consultant, and his duties. There was no formal statement of duties. He received oral instructions from Mr Bennett. He was never advised of any intention to de-snag the Murray River. He was not responsible for instructing Mr Hanger but understood he was to clean up fallen timber from the existing farm tracks. He had a meeting with Mr Hanger and had brief discussions with him about the unnamed creek. He made specific comments about trees that had fallen across the unnamed creek. He did not recall the date of that meeting and thought he had no record of the meeting (later finding that he did in timesheets for 16 August 2007). He did not know what instructions were given by Mato to Mr Hanger and he only knew what Mr Michael Hanger told him, which was that there was to be a general clean-up. He would be surprised if Mr Hanger was told that he was to remove snags from the Murray River. He said he might have inadvertently misled him about removing logs from across the unnamed creek. 470Mr Coomes stated in his oral evidence that in the ROI he did not tell the whole truth as he omitted to state Mr Smit's role in engaging Mr Michael Hanger. He explained why he did this (in chief, in cross-examination and in reply) because at that time he was concerned he would be made the scapegoat for these offences. He stated in the ROI that he met Mr Hanger but could not then recall when he spoke to him about a scope of works. He stated throughout the ROI that he had no role to play in instructing or supervising Mr Michael Hanger at all including in relation to the removal of woody debris and he consistently stated this in his oral evidence. 471At the hearing Mr Coomes gave oral evidence about how he came to be engaged by Mato through Mr Smit as a project manager to work with Mr Bennett on matters such as financing, and not site supervision of works at Kunanadgee for which he had no professional indemnity cover or relevant skills or experience. He confirmed in cross-examination by Mato's counsel that the limit of his role as project manager was to give advice in his areas of expertise. This evidence is consistent with his ROI. Mr Wood's evidence that he had an open-ended role was not based on any knowledge of the day-to-day conduct of Mato's business. Mr Bennett's evidence confirmed Mr Coomes' role as being involved in finance and marketing. 472In his ROI when asked what arrangements were in place for the supervision of Mr Hanger, Mr Ceman stated that Mr Coomes' role included supervision of construction at the site as construction manager (par 229) but he was sick and unable to do so. He is the only witness to give such evidence, all other evidence refers to Mr Coomes' role as project manager. The evidence is at odds with Mr Coomes' evidence about his role. Nor is there evidence from Mr Wood or Mr Bennett suggesting that Mr Coomes was given such a role by the Mato board. In cross-examination by Mr Coomes' counsel Mr Ceman's evidence was that he was not aware of any minute where a resolution had been passed directing Mr Coomes to supervise Mr Hanger. In the context of his responses to the DEWHA statutory notice, Mr Ceman agreed in cross-examination that in several questions concerning knowledge of the scope of works and who was aware of the de-snagging, he had included Mr Coomes with a question mark because he had no independent knowledge of whether Mr Coomes knew about the de-snagging before it occurred and had only included Mr Coomes because Mr Hanger told him to. As Mr Ceman had no role in the day-to-day management of Mato, this being largely undertaken by Mr Coomes with Mr Bennett as confirmed by Mr Coomes, Mr Wood and Mr Bennett, I do not consider Mr Ceman's evidence that Mr Coomes' role would have included site supervision should be given any weight. 473Mr Coomes was extensively cross-examined by the Prosecutor about his answers in the ROI and his evidence in chief. In relation to the unscheduled meeting with Mr Michael Hanger on 16 August 2007 at Mr Coomes' office, Mr Coomes' oral evidence was that he was given a list of tasks by Mr Michael Hanger to type up into a scope of works document, a request of Mr Smit, according to Mr Hanger. Mr Michael Hanger marked up the plan of Kunanadgee on Mr Coomes' desk identifying areas by number which corresponded to numbers on the scope of works (exhibit X). He emailed the scope of works to Mr Smit on 17 August 2007 and advised Mr Smit that the work was not in accordance with the development consent. He was later requested by Mr Smit after 25 October 2007 to delete the email and the attached scope of works which he did. He drove to the site visit with Mr Bennett on 12 October 2007 and drove around with Mr Adrian Hanger and Mr Bird. He did not give any instructions to any workers on site as it was not within his responsibilities. Nor was he asked to do so. After the meeting on site between Mr Potter and various representatives of Mato (including Mr Smit) on 25 October 2007 he was concerned that he was to be made a scapegoat. He heard that Mr Potter was told that the snags were removed because he had been ill and was not there to supervise as project manager. 474In relation to the meeting with Mr Michael Hanger on 16 August 2007 and typing up of the scope of works, Mr Coomes' evidence maintained in cross-examination was that Mr Hanger walked into his office and said he had been on site with Mr Smit and Mr Ceman and had a list of tasks Mr Smit had asked that Mr Coomes type up. He typed up what Mr Hanger provided and sent this to Mr Smit and had no further involvement with it. He stated that Mr Hanger had marked up a plan of the site on his desk with numbers which corresponded to the numbers on the scope of works (exhibit T) but stated he had no involvement in marking it up. He denied that his evidence was untruthful. Mr Coomes said he was concerned that much of the work was more than an agricultural clean-up and that he told Mr Smit this work was not in accordance with the development consent. He does not know what happened with the scope of works after he gave it to Mr Smit. 475Further, the Prosecutor relied on Mr Coomes' answers in the ROI that in the meeting with Mr Hanger Mr Coomes had referred to the desirability of removing fallen logs from across the unnamed creek and said that he might have misled Mr Hanger in that regard. In oral evidence Mr Coomes stated that on reflection he did not think anything he said had any influence on Mr Michael Hanger who clearly considered Mr Smit was providing him with instructions. Given that I have accepted the evidence of Mr Ceman in the ROI concerning the instructions he gave to Mr Hanger in relation to the unnamed creek which occurred before the 16 August 2007 meeting, Mr Coomes' statements about the unnamed creek can have had little influence on Mr Hanger's actions. 476There was different evidence about the length of the meeting. Mr Coomes' oral evidence was that it took no longer than 30 minutes whereas his timesheets suggested two hours were spent, a reasonably substantial difference. Mr Coomes' explanation of time spent was that overall he spent 30 minutes in the meeting, and 30 minutes typing up the document and emailing it to Mr Smit. While there remains a difference between the time period invoiced and Mr Coomes' oral evidence, it is not substantial. In the absence of evidence from Mr Hanger or Mr Smit contradicting Mr Coomes I consider his evidence about the meeting with Mr Michael Hanger on 16 August 2007 should be accepted. 477The Prosecutor submitted that by virtue of typing up the scope of works Mr Coomes was instrumental in this going to Mr Hanger either directly or via Mr Smit. Mr Coomes gave evidence that he gave it to Mr Smit and did not see it again for at least twelve months. His evidence is also that he told Mr Smit the removal of trees from the waterways was not in accordance with the development consent. Neither Mr Smit nor Mr Michael Hanger have given evidence about how or if they communicated about the scope of works document. Mr Hanger's company produced the document on subpoena so the inference arises that it was received by him from Mr Smit. Given the uncontested evidence of Mr Coomes, this important fact linking Mr Coomes to the causation of Mr Hanger's actions has not been established beyond reasonable doubt by the Prosecutor. That the work done by the workers under instruction from Mr Michael Hanger accords with the scope of works including the illegal removal of woody debris from the River and unnamed creek does not on its own establish that Mr Coomes gave the scope of works document to Mr Hanger. 478Mr Coomes was cross-examined by the Prosecutor about how he came to take the minutes for Mato. His practice of note-taking at the meeting, running a draft past Mr Smit, making changes if requested and circulating a draft before the next meeting at which the draft would be approved, is entirely orthodox. Mr Coomes agreed that once minutes for the previous meeting were approved at the following meeting they should not be further changed. This did occur so the Prosecutor and other defendants' counsel sought to discredit Mr Coomes in relation to the changing of minutes for three shareholders' meetings (on 3 and 21 August and 5 September 2007) after these had already been approved by the next meeting. After the snag removal, Mr Coomes removed references to Mr Smit and the preparation of a scope of works and said this was done at Mr Smit's request after 25 October 2007. In Mr Coomes' email to Mr Bennett dated 1 November 2007 (exhibit 5A) he suggested deleting the reference in the 21 August 2007 minutes to "and J Coomes prepared a scope of works to be undertaken". This evidence is potentially incriminating in that the deletion of these words means that his role in relation to preparation of the scope of works does not appear in the 5 September 2007 minutes. When cross-examined by the Prosecutor (par 304 - 5), Mr Coomes' evidence was that this statement in the minutes was not accurate as he did not prepare the scope of works, rather he typed up what Mr Hanger told him to. 479I note for completeness that Mr Coomes' evidence to the Prosecutor was that Mr Bennett asked him to amend the minutes after the snag removal but he later agreed with Mr Bennett's counsel that Mr Bennett's request for modified minutes was in response to Mr Coomes' email of 1 November 2007 (exhibit 5A) suggesting the minutes be modified (par 337 above). He acknowledged that as none of the directors knew that a scope of works had been prepared, it was not surprising that Mr Bennett would be keen to see the minutes corrected (par 337). Mr Coomes also accepted that as Mr Bennett was not at the meeting on 21 August 2007, he could not have asked for changes to the minutes of that meeting (par 336). Mr Coomes was aware Mr Bennett urgently needed the modified minutes when he requested them by email on 8 November 2007 (exhibit V) because his ROI was scheduled for 12 November 2007 (par 337). 480The changes made in the minutes removed reference to Mr Coomes' role in appearing to have prepared a scope of works document by 5 September 2007. The primary beneficiary of the changes was Mr Smit whose significant role in relation to the identification and engagement of the contractor was removed. There is no evidence to contradict Mr Coomes' evidence that he was acting under instructions from those in control of the joint venture and the minutes had no official standing. His explanation for why he did so are not contradicted and cannot be in the absence of Mr Smit. This evidence provides no basis for attacking his overall credit. 481A further matter used to discredit Mr Coomes was the draft letter of engagement of Mr Michael Hanger emailed on 19 September 2007 to Mr Smit based on the scope of works which Mr Coomes knew contained unauthorised work. Although he gave evidence that he made clear to Mr Smit after his meeting with Mr Michael Hanger and after his preparation of the scope of works document that the work could not be carried out because it was contrary to the conditions of consent, Mr Coomes nonetheless prepared the draft letter of appointment in almost identical terms a month later. Mr Coomes explained in evidence that he did this to try to get clarification of what Mr Michael Hanger had been engaged to do given the large quote for the work (over $200,000) he had provided. He stated that he would commonly draft documents he knew to be incorrect in order to get a response. Mr Smit has not given evidence to contradict what Mr Coomes stated, namely that Mr Smit told him to delete the draft letter, which Mr Coomes did. There is no evidence the letter went further. The same observation applies to Mr Coomes' altered invoice which removed reference to the preparation of the draft letter of engagement sent to Mr Smit and later deleted. This was also done according to Mr Coomes' uncontradicted evidence at Mr Smit's request. 482On the site visit on 12 October 2007 Mr Coomes' evidence is that he was driven around by Mr Adrian Hanger, made no comment about the work to any of the workers, and felt increasingly unwell. That he was unwell is confirmed by the medical report of Dr Ingram and Mr Bennett's evidence. He considered the work went beyond an agricultural clean up and that Mr Smit had clearly ignored his advice. I accept that evidence in the absence of any evidence from Mr Smit on the matter. 483While the Prosecutor urged me to find Mr Coomes' evidence lacked credibility, it is not apparent why that is the case when Mr Coomes' overall position and oral evidence is considered. The evidence of the nature of Mr Coomes' engagement by Mato is accepted. There was no written or oral job description and he worked on finance and marketing with Mr Bennett virtually exclusively. There is no evidence anyone on behalf of Mato asked him to have any role in relation to Mr Michael Hanger other than a reference in the minutes for the meeting on 21 August 2007 to the preparation of a scope of works document. Mr Coomes' uncontradicted evidence is that he was not asked to prepare a scope of works by anyone including Mr Smit, rather Mr Hanger appeared in his office with a list of tasks on 16 August 2007 which he typed up after the meeting. Mr Bennett's counsel sought to distance Mr Coomes' dealings with Mr Smit in relation to Mr Hanger as the pursuit of their own agenda unrelated to Mr Bennett. As I have already found, there is no evidence connecting Mr Bennett with these matters. There is also no evidence contradicting Mr Coomes' evidence about his dealings with Mr Smit so that any agenda for the clean-up Mr Smit may have had has not been proven to be shared by Mr Coomes. Mr Coomes described Mr Smit's role as akin to a de facto director of Mato. 484I agree with Mr Coomes' counsel's submission that there can be no Jones v Dunkel inference as against Mr Coomes in the failure of Mr Michael Hanger and Mr Smit to give evidence. 485As confirmed by the four character witnesses prepared to testify on his behalf in the knowledge of these charges against him, Mr Coomes has a substantial professional reputation established over more than 20 years to protect. His skills as a town planner and organiser were recognised in the evidence of Mr Wood and Mr Bennett. He was aware that the development consent conditions prohibited snag removal from the waterways and gave evidence that it was not in the interests of the project for that to be done. He stood to make no financial gain from the eco-tourist resort and there was no other financial incentive for him to engage in behaviour which resulted in the illegal removal of snags from the specified waterways. He was employed as a consultant by Mato and had no particular authority to act on behalf of the company conferred on him by Mato in that capacity. 486Mr Coomes gave evidence several times of his concern about being made a scapegoat for the offences. This resulted in his less than exemplary behaviour after the snag removal in not referring to Mr Smit's role in relation to Mr Michael Hanger in the ROI, changing parts of three records of minutes at Mr Smit's instruction and of his own volition in one respect, deleting at the instruction of Mr Smit the email and scope of works document sent to Mr Smit on 17 August 2007 so that it was not sent to Mr Potter, deleting the draft letter of engagement of Mr Michael Hanger sent to Mr Smit and altering the invoice to remove reference to it at Mr Smit's request. Certainly the Prosecutor and other defendants' counsel sought to place him in an unfavourable light as a result. The Prosecutor has not called Mr Smit or Mr Hanger and the difficulties that poses for its case have been referred to already. In the absence of Mr Smit, and further in light of Mr Coomes' character evidence and demeanour as a witness (referred to below) I accept this explanation for his moderately incriminating behaviour after the offences period. I accept his evidence that he sought to have an off the record discussion with Mr Potter on the basis he was concerned that he was going to be made the scapegoat for the offences (par 295) despite Mr Potter not recalling that request (par 47). Mr Coomes was concerned that his taped ROI would be circulated to other people such as Mr Smit. 487Finally, in my view Mr Coomes gave comprehensive and frank oral evidence about his actions both good and bad. The absence of Mr Michael Hanger and Mr Smit means that Mr Coomes' evidence of key conversations and meetings with both persons is not contradicted. The different versions of the shareholders' minutes were supplied by Mr Coomes to DEWHA in 2008 as part of its investigations demonstrating that he was open to investigating authorities after he left Mato. I do not consider the attacks on his credit are sustained. I accept his evidence of his dealings with Mr Michael Hanger on 16 August 2007 and that he sent the scope of works document to Mr Smit and played no further role in relation to it. I accept his evidence of the conversation with Mr Smit on 17 August 2007 in which he told Mr Smit that the scope of works included unauthorised removal of woody debris from the River and the unnamed creek. I accept his evidence of the conversation on 20 September 2007 when Mr Smit told Mr Coomes to destroy the draft letter of engagement Mr Coomes had deliberately prepared to include work he knew to be prohibited by the development consent. Mr Coomes' evidence that he gave Mr Hanger no instructions to proceed with the scope of works proposed by Mr Hanger in the meeting on 16 August 2007 is also accepted. 488In light of my acceptance of Mr Coomes' evidence, the Prosecutor has not proved beyond reasonable doubt that Mr Coomes caused Mr Michael Hanger to carry out the removal of snags. This element of the offences has not been established so that the three damage to habitat offences cannot succeed against Mr Coomes.

Whether Mato caused damage to habitats 489The admission of illegal clearing of snags in the undertaking given by Mato to the Environment Protection Authority dated 11 July 2008 signed by Mr Bennett and Mr Ceman on behalf of Mato should not be given any weight as an admission of guilt by the company. Both defendants gave evidence that they believed there would be no prosecutions if this undertaking was signed and that was the reason they did so (see Mr Ceman's evidence par 213, Mr Bennett at par 246, 256). The statement that Mato removed a large number of snags is not a formal admission, as already discussed in relation to the admissions in the ROI. The Prosecutor must establish Mato's guilt on another basis. 490Whether Mato caused damage to habitat depends on whether it can be found to have caused the snag removal undertaken by Mr Michael Hanger an independent contractor. As a company Mato can be guilty of an offence committed by an independent contractor through the actions of its directors, employees or agents in exercising control over the work carried out by the contractor or otherwise causing the actions giving rise to an offence. As identified in Issa at [79]: A company can only act through living persons. In determining whether criminal liability should be attributed to a company for the conduct of a person, a distinction has been drawn between, on the one hand, a person who is the embodiment of the company because, often, he is its relevant "directing mind and will" and, on the other hand, an agent or servant for whom the company is vicariously liable. The former represents an organic theory of liability, the latter an agency theory of liability. The distinction is particularly significant for offences in which mens rea is an element where prima facie (absent a contrary legislative intention) a principal is not vicariously responsible for the acts of agents: The King v Australasian Films Ltd [1921] HCA 11, 29 CLR 195 at 214-215. That inhibition is absent in strict liability offences because mens rea is not an element: Presidential Security Services Pty Ltd v Brilley [2008] NSWCA 204, 73 NSWLR 241 at [150]. 491The Prosecutor submitted that applying common sense to the facts suggested causation was established as held in March and Empress Car Co . March concerned a civil action claiming damages arising from negligence and its application in a criminal context is less apparent given the onus the Prosecutor bears of establishing each element beyond reasonable doubt. In Empress Car Co the House of Lords considered the meaning of causation in an offence of causing pollution of water where a third party's actions resulted in pollution and Lord Hoffman (Lords Browne-Wilkinson, Lloyd of Berwick, and Nolan agreeing) found at 36 that the defendant's accumulation of diesel oil caused the pollution. At 35 his Honour observed that: ... some deliberate acts of third parties will not negative causal connection ... the distinction between ordinary and extraordinary is the only commonsense criterion by which one can distinguish those acts which will negative causal connection from those which will not. Lord Hoffman stated at 36: If the defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape was also the act of a third party or natural event, a court needs to consider whether the act or event was a normal fact of life or something extraordinary ... The distinction between ordinary and extraordinary is one of fact and degree to which the Court must apply common sense and knowledge of what happens in the relevant area. The facts of that case did not concern the actions of an independent contractor. In applying common sense to the facts of this case I note that the removal of snags was not in the interests of Mato given the eco-tourist development it was established to develop was not enhanced by such action. 492In Olmwood at [351] - [355] I considered the meaning of cause in relation to an offence under the Native Vegetation Act in light of a particular evidentiary provision in s 44 of that Act whereby a defendant had to show it did not cause another person to commit an offence where clearing of native vegetation was carried out by a third party. I referred at [352] - [353] to Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 referring in turn to Alphacell Ltd v Woodward [1972] AC 824 and Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659 in relation to the meaning of cause and concluded in that statutory context that where the clearing of land by a third party arises as a natural consequence of the landholder's conduct that landholder can be said to have caused the clearing. A similar finding of causation in relation to offences under the FM Act can also apply. 493Vicarious liability of a company for the acts of an independent contractor, a separate basis of liability, requires that the Prosecutor establish that a defendant company exercised sufficient control over the conduct or act of the independent contractor per McConnell Dowell at [90]; Multiplex at [280]; Olmwood at [339] - [346]. The Prosecutor correctly identified (par 360) the recognised circumstances where a principal will be liable for an independent contractor such as ordering a contractor to do an act constituting the offence or to do an act which results in the offence inter alia, identified also in Walker (No 2) at [312] referring in turn to Moline . 494There must be action of relevant principals or agents attributable to Mato to give rise to one of these bases of causation in relation to Mato. Mato's counsel submitted that the Prosecutor had to establish that a person representing the mind, will or beliefs of Mato gave instructions to Mr Hanger, referring to Lennard's and Krakowski . In Lennard's the House of Lords identified the need to consider whether a person is the directing mind and will of the company so that his or her actions are those of the company; see Viscount Haldane LC at 713. In Krakowski the High Court held at 583 that knowledge of different officers of a transaction did not relieve the company of responsibility for the transaction by reference to the knowledge of each of them. The Prosecutor's case in relation to the liability of Mato relies on several actions by the different individual defendants which it argues are attributable to Mato. As outlined in the Prosecutor's submissions relying on Issa , there are several rules of attribution (termed primary, general and special) developed in relation to the attribution of officers' or agents' actions to a company. Because of gaps in the Prosecutor's evidence it is not necessary to fully explore these rules of attribution for each action the Prosecutor relies on. 495An important part of the Prosecutor's case is the content of the minutes of shareholders' meetings on 3 and 21 August 2007 and 21 September 2007 when a site clean-up was discussed. These are set out above at par 202 being the unamended form of the minutes (exhibit P). Mr Coomes prepared the minutes from his notes and they were confirmed at the next shareholders' meeting. All the defendants were cross-examined about the preparation and content of the minutes, as identified above in relation to Mr Ceman and Mr Bennett. The decision of the Mato shareholders to undertake a general site clean-up using a contractor, as evidenced in the shareholders' minutes of 3 August 2007 and subsequently, is relied on by the Prosecutor. This was submitted to be analogous to the general unqualified instructions considered in Walker (No 2) to have caused the clearing of native vegetation and the commission of an offence by the corporate defendant. The shareholders' minutes of 3 August 2007 refer to Mr Smit recommending the clean up of the site particularly around the river and creek area and the preparation of a scope of works by Mr Coomes for the contractor. 496According to the evidence of Mr Ceman (par 207) and Mr Bennett (par 241, 250 - 251, 254) no specific instruction was given or intended to be given by Mato to anyone to remove logs from the River and the unnamed creek, rather the discussion was about cleaning up the site generally. This is confirmed by the evidence of Mr Wood that he definitely could not recall any reference to the removal of snags from the Murray River. He recalled general discussion of clearing fire trails and hazard reduction. The minutes of 21 August 2007 state that "J Coomes prepared a scope of works to be undertaken" and that a quotation should be obtained. The minutes of 5 September 2007 state that Mr Smit had met the contractor he was proposing to engage to carry out the site clean-up work in order to quantify the scope of works to be carried out. From the minutes it appears the shareholders were aware that some work was commencing on site shortly after 5 October 2007 as the minutes of 5 October 2007 state the site clean-up works had not commenced but soon would. Work in fact started on that day. Mr Bennett and others went on a site visit on 12 October 2007 in part to see what work had been carried out. There is no evidence in the minutes or in the oral evidence of Mr Bennett and Mr Ceman of an express instruction from the board to remove snags from any waterways. The scope of works typed up by Mr Coomes was not shown to the board and did not accord with their general intentions of conducting a site clean up as recorded in the minutes. There is no credible evidence that a scope of works was provided to the board for its approval. Nor did the board specifically ask for that to occur according to the minutes. Mr Wood stated that he expected that such a document would be put to the board. The evidence of Mr Bennett and Mr Ceman was that no scope of works was presented to the board. Mr Coomes' evidence was that he gave the scope of works he typed up to Mr Smit only. 497In the absence of any evidence from Mr Hanger of what his precise instructions were, from whom they came and how he came to arrange for the snag removal, there is an important gap in the evidence linking the general resolutions of Mato's shareholders including directors as recorded in the minutes with the snag removal undertaken at the direction of Mr Hanger. No such significant gap in evidence occurred in Walker (No 2) . The Prosecutor has not proved Mato caused the snag removal by Mr Hanger on the basis of the shareholders' agreement as reflected in the unamended minutes on a "commonsense" causation or natural consequence of conduct or vicarious liability through the exercise of control over Mr Hanger. 498Another action relied on by the Prosecutor is that of Mr Ceman giving instructions to Mr Hanger during the site visit with Mr Smit in August 2007 to clear trees from around the unnamed creek and the top of the River bank. The element of causing Mr Hanger to remove trees from the unnamed creek has been established in relation to Mr Ceman personally. The issue arises of whether Mr Ceman's actions should be attributed to Mato given his position as a director. His actions can be attributed on a primary basis under cl 22 "Powers and duties of directors" of Mato's constitution (exhibit K) if this clause is demonstrated to apply. That is a general provision stating that the business of the company shall be managed by the directors who may exercise all powers not required to be exercised by the company in a general meeting. There is no evidence that Mato authorised Mr Ceman in accordance with cl 22.1 of its constitution so that primary attribution does not arise. 499The Prosecutor also submitted that the actions of its directors, here Mr Ceman, were attributable under general rules of attribution such as acting as the mind and will of Mato or on the basis of vicarious liability. There is no evidence that anyone exercised any control over Mr Hanger's actions on behalf of Mato at the time of the snag removal or that Mr Ceman had any role in supervising Mr Hanger beyond discussions during the site visit with Mr Hanger and Mr Smit. He had no role in the preparation of the scope of works document which identified the removal of trees and logs from the creek and major dead trees from the River or providing it to Mr Hanger, but that document does refer to the removal of trees from the unnamed creek which I have found he identified to Mr Hanger during the site visit. These circumstances suggest that Mato is liable on the basis of Mr Ceman's actions for causing Mr Hanger to clear some snags from the unnamed creek the subject of the offences, applying the principle of commonsense causation in Empress Car Co or as a natural consequence of Mr Ceman's conduct per Multiplex and Olmwood . 500The Prosecutor also urged a finding of special attribution based on a finding to that effect by Biscoe J in Issa in relation to the Native Vegetation Act. In a comprehensive judgment Biscoe J identified the relevant principles to be considered in relation to whether special attribution rules apply at [89] - [96]. In determining whether these exist the statute must be considered, and the nature of the offence and the nature and language of the statute, at [95] Biscoe J cited ABC Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171; 161 A Crim R 250 at [11] - [14] which referred in turn to Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 . He identified the question as whose act is intended to count as the act of the defendant under s 44(b) and s 12(2) of the Native Vegetation Act, a strict liability offence. He took into account the high maximum penalties provided under the Native Vegetation Act and the objects of that Act. There are parallels with the FM Act given that its objectives include the conservation of threatened fish species. The offences of damage to habitat are not strict liability in that an element of the offences is that the area damaged was known to be habitat protected under the FM Act. There is a mental element in the commission of the offences which must be proved, unlike in the case of a strict liability offence. 501There is no utility in further exploring the extent to which special rules of attribution ought apply in relation to Mr Ceman's actions given my finding of causation on different bases above. Further, while the Prosecutor has established that Mr Ceman caused some clearing of the unnamed creek by Mr Michael Hanger, I find later in the judgment that the Prosecutor cannot establish the element of the offences of knowledge of habitats in relation to Mr Ceman. That element of the offences is therefore not established in relation to Mato in the context of Mr Ceman's conduct. 502Finally, the preparation of the scope of works by Mr Coomes is relied on in the Prosecutor's case against Mato. I have found that Mr Coomes did not cause Mr Michael Hanger to remove the snags as I did not find that he was responsible for the content of the scope of works and did not give the scope of works to Mr Hanger. There is no basis to attribute any actions of Mr Coomes to Mato in light of this finding. As emphasised by Mr Coomes' counsel, the evidence discloses the extensive involvement of Mr Smit in relation to the circumstances leading up to the offences. According to the unamended shareholders' meeting minutes Mr Smit was closely involved in identifying the contractor, suggested that clean-up work be done at the River when water levels were low, and visited the site with Mr Michael Hanger and Mr Ceman to discuss the work to be undertaken. The evidence of Mr Coomes is that he gave the scope of works document prepared according to what Mr Hanger told him of those discussions to Mr Smit on 17 August 2007. Its possession by Fineline Constructions Pty Ltd and the carrying out of the work identified by the contractor's employee and contracted workers gives rise to the inference that Mr Smit gave the scope of works to Mr Michael Hanger. 503The significance of Mr Smit's role raises the question of whether for these offences Mr Smit's actions can be attributed to Mato as these appear potentially instrumental in having the scope of works, which included the removal of snags from the specified waterways, carried out by Mr Hanger through his employees and contracted workers. There are at least two reasons why Mato should not be found liable on the basis of attribution of Mr Smit's actions. Firstly, in terms of the evidence, as submitted by Mato's counsel, there is no evidence that Mr Smit had any authority from Mato's shareholders' meetings to instruct Mr Hanger in relation to works other than the site clean up agreed and there was no agreement for work involving the removal of snags from any waterways. Also, according to Mr Coomes, Mr Smit told him not to show the scope of works document to other Mato directors. As Mr Bennett and Mr Ceman did not see the scope of works document they were not apparently shown it by Mr Smit. The directors of Mato were not therefore aware that a document in those terms had been sent to Mr Hanger, by inference, by Mr Smit. Secondly, the Prosecutor did not particularise the FM Act offences in reliance on Mr Smit's actions, simply submitting in closing that the inference arose that either Mr Coomes or Mr Smit gave the scope of works to Mr Hanger. As already noted Mr Smit was not formally interviewed by Mr Potter. As Mr Smit's role did not form part of the case against Mato that defendant could not craft its defence to respond to such a case and it should not be found liable for one of the elements of the offence on this basis. 504The Prosecutor has not proved beyond reasonable doubt that Mato caused Mr Hanger to engage in the snag removal the subject of these offences.

D. Element of offences - knowledge that area "habitat of that kind" 505Given my finding that the causation element of the offences has not been established in relation to Mr Bennett or Mr Coomes it is not necessary to consider this element of the offences in relation to them. It is only now relevant to Mr Ceman and therefore potentially to Mato. 506Causing damage knowing that the area is "habitat of that kind" is an element of the offences. A conclusive presumption of knowledge that the area was habitat of that kind arises under s 220ZD(2)(b) as relied on by the Prosecutor in this case if it is established that the act causing damage constituted a failure to comply with a development consent. The offences are particularised as the removal of snags and woody debris from the specified waterways in contravention of condition 16 of the development consent. 507For the Prosecutor to succeed it must prove that Mr Ceman and therefore Mato had knowledge about the presence of the relevant habitats. If the conclusive presumption in s 220ZD(2)(b) does not operate, there is no evidence that Mr Ceman had the requisite knowledge. His oral evidence is that he was not involved in the development application process, and otherwise had no knowledge about fish habitat. The Prosecutor relies on the statutory presumption of knowledge in s 220ZD(2)(b) in relation to Mr Ceman. 508In relation to Mato having knowledge of habitat, its counsel submitted that Mr Ceman had no such knowledge. Mato accepts that Mr Bennett had knowledge of the presence of habitat but his knowledge cannot be attributed to Mato as he had no knowledge that works were being carried out. 509Before resolving whether the element of the offences that a defendant had knowledge of habitats has been satisfied, it is necessary to consider the EPA Act charges. If these charges fail because there was no development consent in force arguably the presumption of knowledge in s 220ZD(2)(b) also does not operate in relation to the FM Act offences.

Environmental Planning and Assessment Act charges (Mato 09/50054, Bennett 09/50067, Ceman 09/50057, Coomes 09/50063) 510Each defendant is charged with an offence under s 76A(1)(b) of the EPA Act in that he/it carried out development in the offences period otherwise than in accordance with a development consent in force, being condition 16 of DA 2007/56. Condition 16 states: No snags (large woody debris on the bank or in the water) are to be moved, relocated or removed either at the time of construction or in the future without consultation with DPI. 511The essential elements of the offences are that each defendant carried out unauthorised development, being the removal of snags and woody debris from the waterways on or adjacent to Kunanadgee without consent and in breach of condition 16. The formal elements of the charge that the land was subject to an environmental planning instrument and was development which may not be carried out except with development consent are not in dispute. The Corowa Local Environmental Plan 1989 specifies that Zone No 7(a) (Environment Protection Zone) applies to the land and requires development consent for a tourist facility.

Whether a development consent was in force in the offences period 512The Prosecutor bears the onus of proving that a development consent was in force during the offences period and that condition 16 was breached. The first issue that arises is whether a development consent was in force during the offences period. The Prosecutor's case was opened on the basis, and is particularised in the summonses as being, that DA 2007/56 was in force in relation to the development. As was revealed in the course of the hearing there are two different versions of the development consent for DA 2007/56 on the Council files both dated 30 May 2007. 513The relevant sections of the EPA Act and clauses of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) dealing with the granting and commencement of development consents follow. Section 80 provides: (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.... Section 81(1) provides: The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and (b) ... and (c) such other persons as are required by the regulations to be notified of the determination of the development application. Section 83 provides: (1) Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from: (a) except as provided in paragraph (b)-the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82D (4), or... [not applicable] (b) not applicable (2) and (3) not applicable 514The EPA Regulation cl 100 "Notice of Determination" relevantly states: (1) For the purposes of section 81 (1) of the Act, a notice of the determination of a development application must contain the following information: (a) whether the application has been granted or refused, (b) if the application has been granted, the terms of any conditions (including conditions prescribed under section 80A (11) of the Act) on which it has been granted, (c) if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 80A (11) of the Act), the consent authority's reasons for the refusal or for the imposition of those conditions, (c1) whether the applicant has the right to request a review of the determination under section 82A of the Act, ... (d) the date on which the determination was made, (e) the date from which any development consent that is granted operates, ... (2) The notice of determination must clearly identify the relevant development application by reference to its registered number. ... (4) In the case of a development consent granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition: (a) the date from which the consent operates must not be endorsed on the notice of determination, and (b) if the applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the applicant of the date from which the consent operates. (5) (Repealed) (6) If the determination is one for which concurrence was required under section 79B (3) of the Act, a copy of the notice of determination: (a) except as provided by paragraph (b): (i) must be given to the Director-General of National Parks and Wildlife, and (ii) must be available for public inspection, during ordinary office hours, at the head office of the National Parks and Wildlife Service, or (b) if the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation or their habitats: (i) must be given to the Director of NSW Fisheries, and (ii) must be available for public inspection, during ordinary office hours, at the head office of NSW Fisheries.... 515Clause 102 "How soon must a notice of determination be sent" provides: (1) A notice under section 81 (1) of the Act must be sent to each person to whom it is required by that subsection to be sent within 14 days after the date of the determination of the applicant's development application. (2) For the purposes of section 81 (1) (c) of the Act, any person who made a submission under the Act in relation to a development application (whether or not involving designated development) is required to be notified of the consent authority's determination of the application. (3) Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates.

Evidence 516The documents tendered in evidence establish that the Council resolved to grant development consent subject to 65 specified conditions on 29 May 2007. None of the conditions in the Council resolution are expressed as deferred commencement conditions provided for under s 80(3) of the EPA Act. Public notification of the grant of development consent was given on 6 June 2007 in a local newspaper (exhibit O). Two notices of determination of development consent (s 81(1)) in different terms both dated 30 May 2007 were tendered. Both state erroneously that the Council determination was on 21 May 2007, the evidence of the Council resolution being 29 May 2007. 517Notice was sent to other government authorities as required by s 81(1)(c) as evidenced by a facsimile Mr Parr sent to NSW Maritime on 22 October 2007 with the words "DA 2007/56" on the facsimile transmission sheet and attaching the deferred development consent (exhibit 7). Public notice of the Council approval was notified in the local newspaper. A letter dated 10 October 2008 addressed to Mr Dunstan of GHD, environmental project consultants acting for Bankwest the financiers of the Kunanadgee project (exhibit 1C) signed by Mr Parr on behalf of the Council's General Manager, Mr Corcoran, advised that the deferred commencement conditions of the development consent had been complied with to the Council's satisfaction. 518A version of the notice of determination signed by Mr Corcoran (the Corcoran consent) was attached to the affidavit of Mr Potter (exhibit A p 584) as the version of the development consent sent to him by Mr Parr. It contains no deferred commencement conditions and the address for Mr Bennett is unchanged and incorrect. This was the version shown to Mr Bennett (at par 172 above), Mr Ceman (at par 194) and Mr Coomes (at par 185) in the ROI. 519The other version of the notice of determination is signed by Mr Parr on behalf of the General Manager (the Parr consent). It includes deferred commencement conditions whereby the consent cannot come into force until two preconditions are met relating to the provision of electricity and telecommunications services to the site. It also has handwritten changes to the address for the applicant Mr Bennett. This version of the consent was tendered by Mr Bennett's counsel (exhibit 1A).

Oral evidence of Mr Potter 520In relation to the Corcoran consent (exhibit A p 584), Mr Potter gave oral evidence that it was identical to the copy he had been given by Mr Parr and that he was not aware of any other version. Mr Potter agreed with counsel that he took a statement from Mr Parr, based on which Mr Parr's affidavit was settled and sworn. Mr Potter said the development consent referred to in that affidavit is the Corcoran consent as it was the only one he was aware of. Mr Bennett's counsel showed Mr Potter the Parr consent (exhibit 1A). Mr Potter said he had not seen that document before and was not aware that two development consents were granted by different Council officers on 30 May 2007. In response to the question whether he had ever had any discussions with Mr Parr or any Council officers about deferred commencement conditions, Mr Potter said he had not as his duties do not involve dealing with development consents or permit applications. Mr Potter did not recommend that any charges for the development consents were to be undertaken by reference to the FM Act.

Oral evidence of Mr Parr 521In examination in chief Mr Parr was shown the Corcoran consent on which he identified the signature of Mr Corcoran (exhibit A at p 584 - 590). He was also shown documents which Mr Parr identified as being the minutes of a special meeting of the Council held in chambers on Tuesday 29 May 2007 which he attended (exhibit D). At the meeting consent was granted to DA 2007/56 to permit construction and development of the eco-tourist resort subject to 65 conditions. It was resolved that the project be approved subject to those conditions. 522In cross-examination, Mr Coomes' counsel asked Mr Parr whether he had delegated authority as Director of Environmental Services relating to development applications and consents including issuing notices of determination. Mr Parr responded that he did but that his delegated authority only permitted him to process notices of determination which are signed by the General Manager. 523Mr Parr was shown the Parr consent (exhibit 1A). On that document the original address for Mr Bennett of Hamilton, Victoria was crossed out and an address for Hampton, Victoria was handwritten on it, that being the correct address for Mr Bennett at the time. Mr Parr was handed a facsimile he sent to NSW Maritime on 22 October 2007 attaching the Parr consent (exhibit 7). Mr Parr was handed another document dated 13 January 2009 signed by Mr Corcoran advising Mr Bennett that condition 35 of the development consent had been amended (exhibit 8). The amendment related to the change in the minimum distance of 100m from the bed of a creek to 75m. Mr Parr was handed a further document dated 30 May 2007 with his signature adjacent to amended condition 35 (exhibit 9). (That document is a marked up copy of the Parr consent (exhibit 1A) with ticks next to conditions 3 and 4 and a handwritten amendment to condition 35 signed by Mr Parr on 13 January 2009). Mr Parr confirmed he was the Council officer who made the decision to amend that condition pursuant to his delegated authority. He also confirmed that exhibit 9 was the same as the Parr consent (exhibit 1A). 524Mr Coomes' counsel gave Mr Parr a letter dated 10 October 2008 addressed to Mr Dunstan of GHD, environmental project consultants acting for Bankwest who were the financiers of the Kunanadgee project (exhibit 1C). That letter was signed by Mr Parr on behalf of the General Manager and advised that the deferred commencement conditions of the development consent had at that time been complied with to the Council's satisfaction. 525With regard to the notices of determination, counsel asked whether Mr Parr had a copy of any notice of determination issued to Mr Bennett attaching a consent precisely in the form of the Corcoran consent (exhibit A p 584). Mr Parr said he did not have such a document in the files he had in Court. Counsel asked whether the notice of determination sent out to Mr Bennett was in the form of the Parr consent (exhibit 1A). Mr Parr replied, "That's what I believe to be the document". 526Mr Parr was asked in re-examination whether the copy of the Corcoran consent (exhibit A p 584) matches what the Council voted on. Mr Parr replied, "It does". With regard to the instrument of delegation (exhibit E) Mr Parr said he was the Director of Environmental Services at the time of the alleged offences and that the document portrayed his delegated authority at that time. 527Counsel for Mato and Mr Ceman questioned whether Mr Parr signed the consent conditions after changing the development consent to include deferred commencement conditions. Mr Parr replied "Yes". When asked whether he signed it with the authority of the General Manager, Mr Parr said he "signed it as the Acting General Manager at that point in time". 528Mr Potter was recalled at the request of the Prosecutor later in the hearing to give oral evidence. Mr Parr confirmed that the proposed development was advertised in the same terms in the Yarrawonga Chronicle and the Corowa Free Press on 21 March 2007, 23 March 2007, 4 April 2007, 11 April 2007 and 18 April 2007 (exhibit N - copy of advertisement in the Yarrawonga Chronicle on 23 March 2007). He also confirmed that public notice of the granting of consent was given pursuant to s 101 of the EPA Act on 6 June 2007 and appeared in both of those publications (exhibit O). 529In relation to the Corcoran consent (exhibit A p 584) and the Parr consent (exhibit 1A) Mr Parr did not know when the former was signed and was not able to attest whether he had signed the latter document on 30 May 2007. He confirmed that he had not received any application from the proponent to vary the development or modify the development consent as voted on by the Council. 530Counsel for Mato and Mr Ceman asked in cross-examination whether the document in exhibit 1A was signed around 30 May 2007. Mr Parr said it would have been. When counsel asked whether the document was sent pursuant to s 81 of the EPA Act to Mato, care of Mr Bennett, Mr Parr said that he believed it was and it was the document he worked with. Counsel enquired whether it was also the document, according to the EPA Act, that was notified to all the public authorities that made submissions in regard to the application. Mr Parr said that that was his belief. He agreed with counsel that it was not until sometime later that there was satisfaction in regard to the deferred commencement conditions so that the consent then became valid. Mr Parr also agreed with counsel that when the Council advertises approval of development applications, it does not indicate whether they have deferred commencement conditions. Mr Parr concurred with counsel that when he signed the document as Acting General Manager, he had a belief that he had authority to sign the consent on behalf of the Council and that it is a general practice at the Council that the General Manager signs all stand-alone development consents. 531Counsel posed that the Corcoran consent was not the document, to Mr Parr's knowledge, that had been notified to any of the parties involved in the particular development application. Mr Parr replied, "I'm not aware of which document was served on ... Mr Bennett. I can only say that the document signed by me is the document I have been utilising in the progressing of the application". When counsel suggested that it was the document he directed to be forwarded for service to all the authorities, Mr Parr said that that was his belief but he could not swear on it; he did not see the documents associated with his direction. Counsel asked whether it was Mr Parr's opinion that the advertisement on 6 June 2007 was for the development consent that he signed and granted consent for. Mr Parr replied, "Prior to attending this case, yes". He could not confirm whether it was the Parr consent or the Corcoran consent. 532Mr Parr confirmed that from when the development application was advertised to when consent was granted, there was no change in the development application and that it was his decision to impose the deferred commencement conditions. Mr Parr agreed with counsel that at the time it was his belief that there was no necessity for any application to be changed in order for a deferred commencement to be imposed. Counsel questioned whether Mr Parr had reason to change his opinion. Mr Parr responded, "I guess from the last ... few days, suggesting that, because I added that deferred commencement after there had been resolution of council, there's been suggestions that that was outside of my authority to do so." Counsel asked whether in the normal circumstances, when Mr Parr is dealing with a development application and Mr Parr, as an officer of the Council or the Council itself determined that the only way the consent could be granted was with a deferred commencement condition, Mr Parr would handle it through delegated authority, without going to a Council meeting. Mr Parr said "Yes" and that the development application did not need to be changed to add a deferred commencement condition. Mr Parr had no personal knowledge of when the Corcoran consent (exhibit 9) dated 30 May 2007 was actually signed.

533Mr Coomes' counsel asked whether Mr Parr's earlier oral evidence that the notice of determination (exhibit 9) was the same as that marked exhibit 1A, which document was sent to Mr Bennett at his correct address as amended, was true. Mr Parr responded that that remained his belief. 534In re-examination, the Prosecutor's counsel asked whether Mr Parr knew which notice of determination was in fact sent to Mr Bennett. Mr Parr said he did not. Referring to par 6 of Mr Parr's affidavit which mentions the Corcoran consent and Mr Potter's evidence that he obtained that document from Mr Parr, counsel questioned where Mr Parr obtained the Corcoran consent from. Mr Parr was unable to provide an answer. Mr Parr stated that the two files he showed to Mr Potter were the property file and the development consent, so all the information that he forwarded to Mr Potter came from the files he had with him in Court.

Ms Houlihan 535Ms Houlihan, secretary of Mr Corcoran, swore an affidavit dated 18 March 2011. She is responsible for the custody of the Council's Minute Book which records the minutes of Council meetings. Ms Houlihan has searched the Minute Book for the period from 30 May 2007 up to 1 November 2007 (inclusive). She did not find any minutes recording any resolutions of the Council during that period which either rescinded the resolution of 29 May 2007 granting development consent in relation to DA 2007/56 or which varied the conditions of the development consent set out in the resolution. The Prosecutor relied on this evidence to establish that there was no change to the Council's decision on 29 May 2007 to grant development consent subject to specified conditions. 536The Prosecutor tendered an instrument of delegation of the General Manager's authority (exhibit E) which provides for the delegation to the Director Environmental Services of certain planning functions. In relation to development control the power to approve development applications was able to be delegated in specified circumstances. At the time Mr Parr signed the Parr consent he described himself as the Acting General Manager (and did not therefore exercise the power of delegation).

Mr Bennett 537In his evidence in chief Mr Bennett said that it took about two years to obtain the development consent which he identified as the Parr consent (exhibit 1A). He recognised it because it shows a corrected address, having been sent to the wrong address in Hamilton, not Hampton. He thinks he received this a week or two after 30 May 2007. 538In cross-examination by the Prosecutor Mr Bennett was asked about an email dated 17 October 2007 which sent a copy of the Corcoran consent to various people seeking comment on the conditions of consent. That notice of determination has the wrong address. Mr Bennett recalled receiving a notice of determination with the wrong address because he rang Mr Parr about it in early June as a document was sent to Hamilton not Hampton. He recalls receiving two documents. He was not sure that the version shown to him by Mr Potter in the ROI was the one he received a few days after 30 May 2007. He agreed that the version he was sending on 18 October 2007 was the version he received in the mail a few days after 30 May with the wrong address. 539In cross-examination by Mr Ceman's counsel about when he received the consent signed by Mr Parr he could not remember the exact date but thinks it was about the same time. He recalls getting the Parr consent because he had to satisfy two conditions relating to obtaining access to high security water and connection to the electricity grid before works could be carried out pursuant to the development consent. He agreed it was probably true that he got a copy of the Corcoran consent later on when speaking to Mr Parr. He spoke to Mr Parr on numerous occasions about satisfying the two conditions. He was referred to the minutes of the Mato shareholders' meeting on 5 October 2007 which refer to a meeting with Mr Coomes and Mr Parr on 7 September 2007 at which compliance with the deferred commencement conditions was discussed (part of exhibit P). 540In cross-examination by Mr Coomes' counsel, Mr Bennett was shown a letter addressed to GHD from the Council dated 10 October 2008 which refers to a deferred commencement consent and that deferred commencement conditions 3 and 4 had been complied with to the Council's satisfaction. The letter states the consent is now valid and operates in accordance with its conditions. Mr Bennett was not surprised to receive the letter as he knew there were preconditions in the consent.

Prosecutor's submissions 541The Council's resolution to grant conditional development consent on 29 May 2007 has not been altered or rescinded subsequently, as confirmed in the affidavit of Ms Houlihan. The Corcoran consent accurately reflects the resolution of the Council on 29 May 2007. It specifies that that consent was to operate from 30 May 2007 in accordance with cl 100 of the EPA Regulation. It should be inferred that Mr Corcoran signed the document on or around that date. Sometime after 30 May 2007 Mr Parr prepared and signed a different version of the notice of determination which included two deferred commencement conditions. Mr Parr's evidence is that he made handwritten changes to the address, the suburb and postcode following a telephone call from Mr Bennett who had not received the notice of determination. The Parr consent in adding deferred commencement conditions does not accurately reflect the Council's resolution as minuted on 29 May 2007. Under s 372(1) of the Local Government Act 1993 (the LG Act) a resolution of a council cannot be altered or rescinded except by a motion put to a council meeting with due notice. Mr Parr did not therefore have the power to alter the resolution of the Council to grant conditional development consent whether exercising delegated authority as Director of Environmental Services or as Acting General Manager. No application to modify the consent under s 96 of the EPA Act was received from the applicant for development, Mr Bennett, to found a power to alter the resolution of the Council. Accordingly the changes made to the consent conditions by Mr Parr were beyond power. 542Mr Bennett's evidence suggests that he received both versions of the development consent after 29 May 2007. He stated that he received the Parr consent in mid-June 2007. When cross-examined about the Corcoran consent which he was shown by Mr Potter in the ROI Mr Bennett said he was confused and mistaken and had received the Parr consent. However it is clear that he received the Corcoran consent a few days after 29 May 2007 because he was shown an email of his dated 18 October 2007 sent to Mr Coomes, Mr Smit and Mr Ceman, inter alia, which attached a derivative version of that notice of determination which he used for the purpose of facilitating input from the recipients of the email about proposed changes to some consent conditions. The base document was the Corcoran consent. He also said that he had received both documents and agreed that the Corcoran consent was the one he received in the mail a few days after 30 May 2007. When cross-examined by Mato's counsel he said he did not get the Corcoran version at that time in June 2007 but later when speaking to Mr Parr. This was a self-serving and unconvincing retraction of his earlier evidence that he received the version with the wrong address in early June 2007. Only the Corcoran consent has the wrong address. 543It is the determination of the consent authority that constitutes the consent see Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 168 LGERA 59 per Tobias JA at [47] - [48]. The notice of determination does not constitute the consent but is evidence of it, Pselletes . If a notice of determination does not reflect the determination of the consent authority, it is the latter not the former to which regard must be had in order to determine the development to which the consent relates, Pselletes at [49] - [50]. The Corcoran version reflects the determination of the Council, whereas the Parr version does not. The deferred commencement conditions imposed by Mr Parr were invalid and a nullity. 544The issue then arises of whether the Council's decision to grant consent was notified as required by s 81(1) of the EPA Act so that the consent was in force during the offences period. Notification of the consent was published in the local papers on 6 June 2007. The Corcoran version was provided to Mr Bennett prior to the offences period, almost certainly a few days after the determination of the Council on 29 May 2007. Pursuant to s 83(1)(a) of the EPA Act, the consent became effective and operated from the date in the Corcoran version, 30 May 2007 so that the consent was in force during the offences period. Under s 83(1)(a) of the EPA Act a development consent becomes effective and operates from the date that is endorsed on the notice given to the applicant in accordance with s 81(1) of the Act, being 30 May 2007 in this case. 545If the Court finds that the Parr version was the relevant consent, it also states that the consent is to operate from 30 May 2007, the operative date as provided for in s 83(1)(a). To the extent that the deferred commencement notation conflicts with the expressly endorsed date, it cannot displace the effect of the endorsed commencement date given the terms of s 83(1)(a) of the Act. The deferred commencement notation was invalid as Mr Parr had no authority to make those changes. Further, the insertion of the deferred commencement conditions does not mean that the consent did not come into force. This is not a case like Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406.

Mato's/Mr Ceman's submissions 546The Parr consent was the one notified to Mr Bennett pursuant to s 81 of the EPA Act. That consent has been advertised under s 101 and is beyond challenge in these proceedings. Pselletes is irrelevant, as also is Hopkins . The Corcoran consent was not notified under s 81 to Mato or any other government department and did not come into force. If the Parr consent is not valid then condition 16 did not apply at the offences period. 547The instrument of delegation tendered by the Prosecutor is not conclusive of the powers of delegation granted to a general manager. The power of delegation under s 377 of the LG Act does not have to be in writing. Mr Parr believed that he had power to approve development applications when Acting General Manager, explainable by such oral delegation. The Prosecutor has not established that such a delegation was not in force and therefore Mr Parr did not have authority to make the deferred commencement consent.

Mr Bennett's submissions 548The Corcoran consent relied on by the Prosecutor was not in force during the offences period in October 2007. The evidence does not show conclusively that Mr Bennett received the incorrectly addressed Corcoran consent by post, see the affidavit of Ms Houlihan dated 18 March 2011 at annexure A. The evidence of Mr Parr is that he signed the deferred consent as Acting General Manager. This was the notice of determination forwarded to the applicant for development care of Mr Bennett by mail. It was the consent publicly notified by the Council on 6 June 2007 (exhibit O). Mr Parr acted at all times in accordance with the consent being a deferred commencement consent as did Mr Bennett. 549Mr Bennett gave oral evidence that he recalled receiving the Parr consent because the address was wrong referring to Hamilton not Hampton and had the wrong postcode. The notice of determination was very important to the defendants as evidence that development consent had been granted. He also gave evidence that he noticed on the face of the determination that the Hamilton address had been crossed through and corrected by hand to Hampton. This is consistent with his answers in cross-examination that he recalled getting a determination with the wrong address as he rang Mr Parr about that. The correct inference to draw is not that he received the Corcoran version but that he was aware that the consent had been notified on 6 June 2007 but no copy had yet been received by him. Mr Parr gave evidence that Mr Bennett rang him to get a copy of the consent. Contrary to the Prosecutor's submissions, Mr Bennett was not definite that he had received the incorrectly addressed consent by post. Mr Bennett acted at all times after receipt of the consent in accordance with a deferred commencement consent, as demonstrated in the Mato shareholders' meetings minutes regarding a meeting with the Council's planner Mr Parr on 7 September 2007 concerning deferred commencement conditions 3 and 4 (exhibit P). He agreed he could have picked up the Corcoran consent in one of his many dealings with Mr Parr after 30 May 2007. In response to an email asking for a copy of the consent on 17 October 2007, Mr Parr sent the Corcoran consent which still had the incorrect address on it, suggesting it was not sent by post at any stage to Mr Bennett. 550The inference arises that the document at exhibit Q is a manipulated copy of this electronic version forwarded by Mr Parr to Mr Bennett which he sent on to other parties requesting changes or suggestions to any of the conditions of consent. The inference arises that he did not notice the document was different from the Parr consent received earlier. Mr Bennett was never formally notified in accordance with the EPA Act of the Corcoran consent. If a s 81 notice does not correctly reflect a council's decision the notice is invalid and as a consequence the consent does not become operative for the purposes of s 83(1) of the EPA Act: Pselletes at [44] and Hopkins at [27]. The Corcoran consent cannot be in force in the offences period. No consent was then in force.

Mr Coomes' submissions 551There is reasonable doubt whether the development consent was a consent that was operative from 5 - 16 October 2007 or was a deferred commencement consent that had not become operative at that time. Documentary evidence and the oral testimonies of Mr Parr and Mr Bennett confirm that a deferred commencement consent was notified by a s 81 notice of determination on 30 May 2007. That means that no operative consent was in force for the offences period. Consequently there could be no breach of condition 16 and the s 125 charge must fail. 552The Council's resolution was not a development consent; it was a resolution that development consent be granted to DA 2007/56. The Parr consent is not invalid as inconsistent with the resolution, as it "reflects" the resolution, which is the required test: Pselletes at [44]. Identity between the resolution and the issued consent the subject of the notice of determination is not required by Tobias JA, presumably because it is commonplace for the details of such Council resolutions and conditions to be amended by Council officers as here, while remaining reflective of the original resolution. Mr Parr did not purport to alter any Council resolution. 553The Parr consent is protected by s 101 of the EPA Act in the absence of jurisdictional error: Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531.

No development consent in force for offences period 554The Prosecutor bears the onus of establishing that the Corcoran consent was in force during the offences period and, if it was, that condition 16 was breached by one or more defendants charged with that offence. At the commencement of the hearing the version of the development consent relied on by the Prosecutor was that attached to the affidavit of Mr Potter, being the Corcoran consent. The Prosecutor further submitted that the Corcoran consent is in accordance with the Council's resolution to grant conditional development consent, which submission is correct. Equally clear from the evidence of Mr Parr is that he considered he had power to amend the conditions of development consent to issue a deferred commencement consent to Mr Bennett and he issued the Parr consent with deferred commencement conditions. Mr Parr was cross-examined about the consent he issued to the effect that this was notified to Mr Bennett, after a telephone call from Mr Bennett asking where it was. This resulted in a handwritten change to the postal address which can be seen on the Parr consent. No change of address is noted on the Corcoran consent giving rise to the inference that it was not sent by post at any stage including shortly after 30 May 2007. Mr Parr was not able to state definitively which version of the consent was sent to Mr Bennett shortly after 30 May 2007. The inference is that it was the Parr consent, given he made handwritten changes to the address suggesting these were made after the telephone call from Mr Bennett. Further evidence supports this conclusion. 555While neither Mr Parr nor Mr Bennett could be completely definite that only the Parr consent was notified to Mr Bennett, both have acted in a way consistent with a deferred commencement consent being issued. The Parr consent was the one Mr Parr arranged to have publicly notified and the version he sent to other government departments as required under s 81. Mr Parr acted at all times as if the deferred commencement consent was to be given effect. That he considered the notice of determination was a deferred commencement consent is confirmed by a letter from the Council's General Manager to GHD, consultants, dated 10 October 2008 stating the deferred commencement conditions (conditions 3 and 4) had been completed to the Council's satisfaction and that the consent was now operational. Mr Parr is named as the contact for the Council. Mr Parr also amended condition 35 of the Parr consent on 13 January 2009 as can be seen in exhibit 9. This was notified by letter from the Council dated the same day. Mr Bennett believed at all times that the consent was subject to deferred commencement conditions and behaved accordingly, suggesting he received the Parr consent. For example, the minutes of the shareholders' meeting on 5 October 2007 refer to a meeting on 7 September 2007 where deferred commencement conditions were discussed by Mr Bennett and others with Mr Parr. 556Mr Bennett told the Prosecutor's counsel in cross-examination that he thought he may have also received the Corcoran consent shortly after 30 May 2007 but in later cross-examination by Mato's counsel he stated that he probably received the Corcoran consent later. That the Corcoran consent was used by Mr Bennett as an attachment to the 18 October 2007 email sent to Mr Ceman, Mr Coomes, and Mr Smit, among others, does not establish the Corcoran consent was received by Mr Bennett shortly after 29 May 2007 as the notice of determination notified under s 81(1). I agree with Mr Bennett's counsel's submission that the more likely inference is that the Corcoran consent was provided to Mr Bennett following his request for a copy of the consent in an email to Mr Parr dated 17 October 2007. The evidence of Mr Parr and Mr Bennett supports the inference that the Parr consent was notified to Mr Bennett and raises reasonable doubt that the Corcoran consent was the notice of determination sent to Mr Bennett by email as the applicant for development following the decision of the Council on 29 May 2007 to approve the development application. 557In light of the conclusion that the Parr consent was notified to Mr Bennett in purported but unsuccessful compliance with s 81(1), it is irrelevant that the Corcoran consent was sent to Mr Potter by Mr Parr after the telephone call by Mr Potter on 19 October 2007. It is also immaterial that this was the consent shown to the three individual defendants in the ROIs conducted by Mr Potter where they all agreed it was the development consent issued by the Council. 558The Parr consent has some irregularities on its face. It refers to the commencement date of 30 May 2007 yet also states that it is not to operate until two deferred commencement conditions have been complied with to the Council's satisfaction. Under cl 100(4)(a) of the EPA Regulation, where the consent is not to operate until the applicant satisfies the consent authority of a specified matter, then no date from which the consent operates must be endorsed on a notice of determination. That notice did not comply with this clause in the EPA Regulation in that a commencement date is specified but it otherwise appears to be notification of a deferred commencement consent which cannot operate until the deferred commencement conditions are complied with. The Prosecutor submitted that the notice included the commencement date of 30 May 2007 as provided for in s 83(1)(a) as the date endorsed on the notice given to the applicant in accordance with s 81(1). The result is that although a commencement date was endorsed on the notice as required in s 83(1) this was not done in accordance with the notification under s 81(1) and the time for commencement of a deferred consent in s 80(3). Further, being a deferred commencement consent, it could not and did not commence on 30 May 2007. The Corcoran consent reflects the Council's resolution approving the development consent. I have found that version was not the consent notified under s 81(1) of the EPA Act to Mr Bennett. 559I will address Pselletes and Hopkins . The parties made conflicting submissions about the application of Pselletes and Hopkins in the circumstances of this case. In Pselletes the issue that arose for determination before the Court of Appeal was whether the terms of a development consent were those in the notice of determination issued under s 81(1) of the EPA Act or the consent as determined by resolution of the council. In that case there was conflict between the two. Tobias JA (Ipp and Sackville JJA agreeing) held at [44] that the actual determination of the relevant consent authority under s 80(1) of the EPA Act is distinct from the notification of that determination under s 81, referring to Hopkins . Where the s 81 notice does not correctly reflect the council's decision then the notice is invalid so that the consent does not become operative for the purposes of s 83(1) of the EPA Act. 560In Hopkins , referred to in Pselletes , the council resolved to grant consent to an extractive industry on certain land. The letter of notification described the proposed development as earthworks. Earthworks were a prohibited use. Because a prohibited development was notified under s 81(1)(b) of the EPA Act Talbot J held at [27] that the notice was not in accordance with s 81 and did not reflect the determination of the council. He considered there was no effective development consent in operation as the consent only operates and becomes effective from 28 days after the date endorsed on the notification which must be in accordance with s 81. He therefore held there was no date from which the consent could be held to operate. 561The findings in Pselletes and Hopkins appear to be directly applicable to the circumstances here and that results in a finding that no valid notification of the Council's resolution of 29 May 2007 was issued under s 81. I do not agree with Mr Coomes' counsel's submission that the Parr consent reflects the Council's grant of development consent. That has the possible consequence that the consent granted by the Council has never commenced in accordance with the provisions of the EPA Act as the commencement date of 30 May 2007 is in an invalid notice of determination. That there is a commencement date in the notice as provided for in s 83(1) cannot overcome the difficulty that it was not a valid notice under s 81(1) as it does not otherwise reflect the Council's determination of the conditional development consent. For present purposes the essential finding is that no development consent was in force during the offences period. There cannot therefore be a breach of condition 16 giving rise to a breach of the EPA Act in the offences period. It is unnecessary to consider whether there was a breach of condition 16 as a result of the snag removal carried out at Kunanadgee. 562I do not need to consider further the powers of delegation of Mr Parr when he signed and issued the notice of determination as whether he did properly exercise a power of delegation held by him in doing so does not alter my finding. Whether he signed the deferred commencement consent within his powers as Acting General Manager or as Director of Environmental Services using powers delegated to him, the Parr consent was the subject of the s 81(1) notice with the consequence identified above that no development consent was in force during the offences period. There could not therefore be a breach of the EPA Act during the offences period. The four prosecutions in relation to the EPA Act charges must fail.

Presumption in s 220ZD(2)(b) FM Act does not operate 563The finding that there was no operative development consent during the offences period means that the conclusive presumption in s 220ZD(2)(b) that a person knew the land concerned was habitat of the kind protected if it is established that the act or omission was a failure to comply with a development consent cannot apply. 564The Prosecutor submitted in closing submissions that it was not necessary that a development consent be in force as subsection (a) refers to the consent being obtained by early June 2007 before the offences period in this case. That is not the Prosecutor's case particularised in the summonses for the FM Act offences which refer to a development consent in force. It also seeks to interpret subsection (b) in light of subsection (a). Subsection (b) refers to "a failure to comply with any development consent". If a development consent is not in force regardless of whether it has been obtained, no act can constitute a failure to comply with the development consent in the offences period. The terms of s 220ZD(2)(b) are clear and there is no reason to interpret subsection (b) in light of subsection (a). 565The Prosecutor further submitted in closing submissions that if s 220ZD(2)(b) does not apply then subsection (a) must as that is part of the statutory framework. This subsection was not considered by the parties in the hearing, arising only at the end of the Prosecutor's final submissions. It raises additional factual and legal issues which fall outside the offences particularised by the Prosecutor and cannot be considered in these prosecutions. 566Returning to the FM Act and the element of the damage to habitat offences of knowledge of habitat, my finding that no development consent was in force in the offences period means that the presumption of knowledge of habitat in s 220ZD(2)(b) in relation to Mr Ceman cannot operate. This essential element of the offence has not been established in relation to Mr Ceman by the Prosecutor. Consequently he is not guilty of the three clearing of habitats offences. Nor can Mato be guilty on the basis of Mr Ceman's actions as the requisite knowledge has not been established in relation to Mato. The Prosecutor has not proved the necessary element of knowledge of the offences.

Conclusion 567The Prosecutor has not proved beyond reasonable doubt all the necessary elements of the clearing of habitat offences in relation to all of the defendants. It follows that they are not guilty of these offences and these charges should be dismissed. The same finding also applies to the EPA Act charges which should also be dismissed against all defendants. The Prosecutor wishes to have the opportunity to consider whether it wishes to state a case before entry of formal orders and seeks a week to consider its position, which I allow. 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: 05 December 2011