Director-General of the Department of Land and Water Conservation v... [2002] NSWLEC 102 | Case summary

Land and Environment Court (NSW)|2002-07-01|Before: Lloyd J, Pearlman J

Introduction

There are six prosecutions before the Court. The defendants apply by notice of motion for orders or declarations, which were reformulated in argument as follows: (1) That the prosecutor provide proper answers to the defendants' requests for particulars; (2) That the sets of charges against Ronald Lewis Greentree infringe the rule against double jeopardy and the prosecutor must elect between them; (3) That mens rea is an essential element of the offences with which the defendants are charged; (4) That no doctrine of vicarious liability applies to either defendant in relation to the offences with which they are charged; (5) That the prosecutor may not at the trial rely on any doctrine of criminal liability by reason of: (a) the defendants' failure to prevent an offence by a third party, or (b) the defendants "permitting" or "acquiescing in" the commission of an offence by a third party, where the conduct does not amount to aiding, abetting, counselling or procuring the commission of that offence; and (6) The prosecutor may not at the trial adduce any evidence from witnesses "unless due notice of that evidence has been furnished to the Defendants setting out the date and place at which any relevant conduct allegedly took place, particulars of the alleged conduct and, where the conduct alleged is in the form of speech, the words used by each party and the names of all persons then present".
The prosecutor, on the other hand, applies by notice of motion for an order or direction pursuant to Pt 75 r 11(4) of the Supreme Court Rules 1970 (which applies also to proceedings in the summary criminal jurisdiction of this Court), that the prosecutor be permitted to call certain witnesses to give evidence at the trial notwithstanding that the defendants have not been provided with affidavits sworn by them, nor witnesses statements made by them, nor a summary of the evidence which the prosecutor expects the witnesses will give at the trial. The order or direction sought by the prosecutor is in substance the converse of order (6) sought by the defendants.

[The defendants' solicitors' letter dated 22 November 2001] 1.7 The prosecutor must surely know whether the persons who allegedly cleared native vegetation were employees of Greentree Farming, or were independent contractors. None of the evidence served deals with this issue, and we require that you specify the names of the relevant persons, and the names of their employers. [The prosecutor's solicitors' letter dated 14 December 2001] 1.7 See paragraph 1.5 above. I note that the determination of whether persons are independent contractors or employees is a mixed question of fact and law. 28. The prosecutor has furnished the names of the particular individuals who he alleges to have carried out the clearing on instructions from the defendants. The prosecutor has indicated that such individuals were either employees or independent contractors of the defendants. It is not improper for the prosecutor to allege that the named individuals were either employees, or independent contractors in the alternative. 29. Paragraph 1.8 [The prosecutor's solicitors' letter dated 15 November 2001] 1.8 Mr Greentree exercised control over the workers who carried out the clearing. In this regard, the prosecutor relies on the matters in paragraphs 1.6.1 to 1.6.6 above. 30. The reference to pars 1.6.1 to 1.6.6 is to the following: [The prosecutor's solicitors' letter dated 15 November 2001] 1.6 The employees of Greentree Farming carried out the clearing in the course of their employment. In this regard the prosecutor relies on the following- 1.6.1 Mr Greentree managed the primary production business of Greentree Farming during the Charge Period. 1.6.2 Mr Greentree made regular visits to Eastwood during the Charge Period to inspect the property and give instructions. 1.6.3 Mr Greentree gave instructions to Mr Hurwood who relayed them to employees of Greentree Farming. 1.6.4 Greentree Farming owned bulldozers that were used to clear native vegetation on Eastwood. 1.6.5 Mr Greentree was, including by his own admission, aware of the clearing on Eastwood. 1.6.6 Mr Greentree claimed that clearing on Eastwood was carried out in accordance with exemptions under the Native Vegetation Conservation Act 1997. [The defendants' solicitors' letter dated 22 November 2001] 1.8 Please confirm that the prosecutor has stated all facts, matters and circumstances that will be relied upon at trial to prove beyond reasonable doubt that Mr Greentree "exercised control" over the persons who allegedly carried out the clearing of native vegetation.

[The prosecutor's solicitors' letter dated 14 December 2001]

1.8 This is not a proper request for particulars. No concession is made of the kind you invite. The prosecutor has stated the facts, matters and circumstances upon which it intends to rely. If additional relevant facts, matters and circumstances arise in evidence, the prosecutor is not precluded from relying upon them. 31. In my opinion the prosecutor has provided a sufficient answer. The prosecutor has identified the facts, matters and circumstances upon which he intends to rely. The prosecutor furnished the best particulars known to him to the defendants. If, however, additional facts, matters or circumstances arise in the course of evidence then the prosecutor is clearly reserving the right to seek leave to amend the particulars accordingly, subject to any prejudice to the defendants being met. The Court's power to allow amendments arises from the Land and Environment Court Act 1979 ("the Court Act"), s 68 and the Land and Environment Court Rules 1996, Pt 10, r 1. The particular power to allow amendments in class 5 proceedings arises from the Supreme Court Rules 1970, Pt 75, Div 2, which apply by dint of the Land and Environment Court Rules, Pt 6 r 2. By the Supreme Court Rules, Pt 75 Div 2 r 6, the provisions of Pt 20 of those rules are deemed to apply to summary criminal proceedings. The Supreme Court Rules, Pt 20 r 1 enables the Court to allow amendments and is of a similar effect as the Land and Environment Court Rules, Pt 10, r 1. The court has the power to allow amendments not only of pleadings but also of particulars: see Dare v Pulham (1982) 148 CLR 658. Moreover, amendments may be made at any stage of the proceedings, including after the close of the prosecutor's evidence, and after a submission by the defendant of no case to answer: see Environment Protection Authority v Van Hessen Australia Pty Ltd (NSWLEC, Pearlman J, 27 June 1997, unreported). 32. Paragraph 1.9 [The prosecutor's solicitors' letter dated 15 November 2001] 1.9 Mr Greentree is vicariously liable for the acts of the employees or workers. [The defendants' solicitors' letter dated 22 November 2001] 1.9. We shall challenge (pre-trial) your somewhat startling contention that, in this criminal prosecution the defendant can be held vicariously liable for the acts of other persons. We require that you provide us with the statutory basis for this claim, and the authorities upon which you shall rely to sustain it. [The prosecutor's solicitors' letter dated 14 December 2001] 1.9 I note your contention and refer you to the directions given by the Court on Wednesday 12 December 2001. 33. The reference to the directions given by the Court on Wednesday, 12 December 2001 is to a direction that the defendants file any notice of motion by which they intend to raise any question of law, by 4.00 pm on 31 January 2002. The defendants have done so and raise the issue of vicarious liability in the order or declaration (4) which is now sought. This question is considered under that issue below. 34. Paragraph 1.19 [The defendants' solicitors' letter dated 22 October 2001] (c) Specify with precision the date or dates upon which it will be alleged that the defendant committed the acts of clearing. [The prosecutor's solicitors' letter dated 15 November 2001] 1.19 As particularised in the Summons, the prosecutor alleges that the defendant committed the acts of clearing between about 25 March 1999 and about 16 May 2000. [The defendants' solicitors' letter dated 22 November 2001] 1.19 We note that you fail to specify when Mr Greentree will be alleged to have performed the acts of clearing. Given your particulars at 1.6 - 1.8 (which are to the effect that Mr Greentree counselled or procured the acts of clearing by giving unspecified instructions that were relayed to unnamed persons), we require that you specify the dates on which and places at which Mr Greentree gave the instructions that will be relied upon at trial to prove his guilt. We have already required that you particularise the words he used, and the persons to whom he used them. Please confirm that you are unable to state with precision the date or dates upon which any act of clearing, allegedly counselled or procured by Mr Greentree, took place. [The prosecutor's solicitors' letter dated 14 December 2001] 1.19 This is not a proper request for particulars. 35. The prosecutor has furnished particulars of the dates known to him, namely, the period of 25 March 1999 to 16 May 2000. In Environment Protection Authority v CSR Ltd (1998) 45 NSWLR 357 Hidden J said at 361 (McInerney and Ireland JJ agreeing): I cannot accept that that provision relieves the prosecutor of the obligation later to furnish particulars of the date or dates of an offence, if they are known . (Emphasis added) 36. The prosecutor having given the best particulars known to him, and having not held anything back, need not be required to give further particulars of information which he clearly does not possess. Neither is it necessary for the prosecutor to particularise the form of words used by the defendant. It is sufficient for the prosecutor to allege that the defendant gave instructions (to the named persons) to carry out the proscribed activity. 37. Paragraph 1.20 [The defendants' solicitors' letter dated 22 October 2001] (d) Is it to be alleged that Mr Greentree performed the acts of clearing by causing another person to clear native vegetation? If so, state where, when, to whom, and in what precise terms he gave any such direction. [The prosecutor's solicitors' letter dated 15 November 2001] 1.20 Yes, as specified in paragraphs 1.1 to 1.8. No specific directions are relied upon. [The defendants' solicitors' letter dated 22 November 2001] 1.20 Please confirm that, at the trial of this matter, you will not adduce evidence that on any occasion any instruction was given by Mr Greentree that any tree should be cleared from any paddock at any time. [The prosecutor's solicitors' letter dated 14 December 2001] 1.20 This is not a proper request for particulars. No concession is made of the kind you invite. The prosecutor has made you aware of the evidence that it intends to call. 38. I accept the prosecutor's submission that the further request above is not a proper request for particulars. The prosecutor has clearly alleged, to the contrary of the assumption implied in the defendants' solicitors' letter of 22 November 2001, that the defendant Ronald Lewis Greentree gave instructions (to named persons) during "the charge period" (25 March 1999 to 16 May 2000) to clear vegetation (which includes trees) from specific paddocks. 39. Paragraph 2 [The defendants' solicitors' letter dated 22 October 2001] 2. Charge 50040: The defendant requires provision of the same particulars as in 1, above, in respect of, (i) the Burr paddock; and (ii) the Dumindi paddock. [The prosecutor's solicitors' letter dated 15 November 2001] In respect of each specified paddock, the prosecutor relies upon the following- 2.1 The paddocks Burr and Dumindi are located within the property known as Yarrawa. 2.2 In the period 25 March 1999 to 16 May 2000 ("the Charge Period"), the partnership known as Greentree Farming carried on the business of primary production at Yarrawa, including in the paddocks Burr and Dumindi. 2.3 In the Charge Period, Mr Greentree was a partner in Greentree Farming, together with Ms Maree Anne Greentree and Merrywinebone Pty Ltd ACN 000 937 824. 2.4 In the Charge Period, Greentree Farming employed people who carried out work at Yarrawa, including Mr Christopher Hurwood, Mr Martin Perry, Mr Michael Hancock, Mr Jeffory ("Percy") Smith, Mr Euston Blomfield and Mr Anthony Taylor. 2.5 In the Charge Period, employees of Greentree Farming cleared native vegetation in the paddocks Burr and Dumindi. 2.6 The employees of Greentree Farming carried out the clearing in the course of their employment. In this regard the prosecutor relies on the following- 2.6.1 Mr Greentree managed the primary production business of Greentree Farming during the Charge Period. 2.6.2 Mr Greentree made regular visits to Yarrawa during the Charge period to inspect the property and give instructions. 2.6.3 Mr Greentree gave instructions to Mr Hurwood who relayed them to employees of Greentree Farming. 2.6.4 Greentree Farming owned bulldozers that were used to clear native vegetation on Yarrawa. 2.6.5 Mr Greentree was, including by his own admission, aware of the clearing on Yarrawa. 2.6.6 Mr Greentree claimed that clearing on Yarrawa was carried out in accordance with exemptions under the Native Vegetation Conservation Act 1997. 2.7 Alternatively, the workers who carried out the clearing were as a matter of law independent contractors of Greentree Farming. 2.8 Mr Greentree exercised control over the workers who carried out the clearing. In this regard, the prosecutor relies on the matters in paragraphs 2.6.1 to 2.6.6 above. 2.9 Mr Greentree is vicariously liable for the acts of the employees or workers. (The particulars furnished by the prosecutor's solicitors goes on to describe in detail the number and species of trees which had been cleared). [The defendants' solicitors' letter dated 22 November 2001] 2. We require the same specification, and make the same comments, as are set out above, this time in relation to Charge 50040. [The prosecutor's solicitors' letter dated 14 December 2001] 2. The prosecutor repeats the answers set out above, which apply equally in relation to the charge in proceedings 50040/01. 40. In my opinion the answers furnished by the prosecutor are sufficient particulars of the acts, matters or things alleged as the foundation of charge to enable the defendant to know the case that is sought to be made against him. For the reasons described in relation to the particulars sought in charge No. 50039 of 2001, no further or better particulars in this case are called for. 41. Paragraph 3 [The defendants' solicitors' letter dated 22 October 2001] 3. Charge 50041 (a) Upon what facts, matters and circumstances will the prosecutor rely at trial to prove that Prime Grain Pty Limited cleared native vegetation on, (i) the Burr paddock? (ii) the Dumindi paddock? … [The prosecutor's solicitors' letter dated 15 November 2001]

Charge 50041/01 (a) Upon which facts, matters and circumstances will the prosecutor rely at trial to prove that Prime grain Pty Limited cleared native vegetation on (i) The Burr paddock (ii) The Dumindi paddock?

In respect of each specified paddock, the prosecutor relies upon the following- 3.1 The paddocks Burr and Dumindi are located within the property known as Yarrawa. 3.2 On 17 September 1997, Prime Grain Pty Ltd entered into a contract to purchase Yarrawa as tenant in common with Limthono Pty Ltd. 3.3 On about 14 October 1997, Prime Grain Pty Ltd and Limthono Pty Ltd entered into possession of Yarrawa. 3.4 On about 30 September 1998, Prime Grain Pty Ltd and Limthono Pty Ltd settled on the purchase of Yarrawa. 3.5 No person held a leasehold estate in Yarrawa during the charge period. 3.6 Prime Grain Pty Ltd, with Limthono Pty Ltd, owned, possessed and occupied Yarrawa during the charge period. 3.7 Prime Grain Pty Ltd was in a position to control what could be done and what was done on Yarrawa. 3.8 The clearing the subject of the charge was large in scale in terms of the number of trees cleared, the area cleared and the duration of clearing. 3.9 The smoke form burning of vegetation associated with the clearing was visible throughout the district. 3.10 Prime Grain Pty Ltd had knowledge or the means of knowledge of the clearing the subject of the charge, through its director, Mr Greentree. 3.11 Prime Grain Pty Ltd took no steps to prevent the clearing the subject of the charge. 3.12 By reason of its inaction, Prime Grain Pty Ltd acquiesced in the clearing the subject of the charge. 3.13 Prime Grain Pty Ltd permitted Greentree Farming to carry out the clearing the subject of the charge. 3.14 Prime Grain Pty Ltd allowed Greentree Farming to carry out the business of primary production on Yarrawa. 3.15 As specified in paragraph 3.9 [sic] above, Prime Grain Pty Ltd knew or had the means of knowledge that Greentree Farming was carrying out clearing as part of its business of primary production. 3.16 In the circumstances set out in paragraphs 3.13 and 3.14, Prime Grain Pty Ltd caused the clearing the subject of the charge. 3.17 Mr Ronald Greentree and Ms Maree Greentree were the directors of Prime Grain Pty Ltd during the Charge Period. 3.18 The prosecutor repeats paragraphs 2.1 to 2.8 above. 3.19 In the circumstances set out in paragraphs 3.17 and 3.18, Prime Grain Pty Ltd actively participated in the clearing the subject of the charges. 42. The reference in the prosecutor's answers to pars 2.1 to 2.8 above is a reference to charge No. 50040 of 2001 against Ronald Lewis Greentree. Those answers I have set out in par [39] above. 43. Paragraph 3.7 [The defendants' solicitors' letter dated 22 November 2001] 3.7 Your particulars assert that "Prime Grain Pty Ltd" was in a position to control what could be done and what was done on Yarrawa". Please confirm that the facts, matters and circumstances that will be relied upon at trial are those set out to 3.1 to 3.6, inclusive, and no others. If you do not provide the confirmation requested in the preceding sentence, please provide the further facts, matters and circumstances that will be relied upon at trial to prove that the company was in a position to control what was done on Yarrawa in relation to clearing of native vegetation. [The prosecutor's solicitors' letter dated 14 December 2001] 3.7 This is not a proper request for particulars. No concession is made of the kind you invite. The prosecutor has stated the facts, matters and circumstances upon which it intends to rely. If additional facts, matters and circumstances arise in evidence, the prosecutor is not precluded from relying upon them. 44. The prosecutor has identified the facts, matters and circumstances on which he will rely. The prosecutor has furnished the best particulars known to him at this stage. If, however, additional facts, matters or circumstances arise in the course of evidence then the prosecutor could seek leave to amend the particulars accordingly, subject to any prejudice to the defendant being met. I have noted in par [31] above the power of the Court to allow amendments. 45. Paragraph 3.11 [The defendants' solicitors' letter dated 22 November 2001] 3.11 Is to be alleged that the company was under a duty to prevent the clearing? If so, state the basis upon which this duty will be imputed to the company. Further, state the "steps" the company was under a duty to take in order to prevent the clearing. [The prosecutor's solicitors' letter dated 14 December 2001] 3.11 This is not a proper request for particulars. 46. This request and the answer must be read in context. I have set out above (in par [41]) the whole of the answers to the defendants' request for particulars. As mentioned above (in par [42]), the reference in the prosecutor's answers to pars 2.1 to 2.8 is a reference to charge No. 50040 of 2001 against Ronald Lewis Greentree. Together these answers more than amply alert the defendants to the allegations made against them. It is clear that the prosecutor asserts that the defendant, Prime Grain Pty Ltd, was aware of the clearing the subject of the charge, it was in a position to control what was happening on its land and it took no steps to prevent the alleged unlawful activity thereon. The prosecutor's allegation in par 3.11 is clearly that the defendant, Prime Grain Pty Ltd, was in a position to prevent the clearing and took no steps to do so. The allegation in this paragraph is one of inaction. It is one of a large number of asserted facts, matters and circumstances upon which the prosecutor intends to rely to prove that the defendant, Prime Grain Pty Ltd, cleared native vegetation on its land. The defendant can be left in no doubt about the case which the prosecutor seeks to make against it and, as I have said, the allegation in par 3.11 is one of inaction. It seems to me that the prosecutor does not have to go beyond that allegation. 47. Paragraph 3.12 [The defendants' solicitors' letter dated 22 November 2001] 3.12 This particular is, with respect, entirely erroneous. What doctrine of law will be relied upon to prove at trial that failing to prevent another person's criminal offence amounts to acquiescence and, thus, criminal liability for the offence? If you persist in this contention, it will be another matter challenged pre-trial by the defendant. [The prosecutor's solicitors' letter dated 14 December 2001] 3.12 I note your contention and refer you to the directions given by the Court on Wednesday 12 December 2001. 48. Again the reference to "the direction given by the Court on Wednesday 12 December 2001" is to a Court's direction that the defendants file any notice of motion by which they intend to raise any question of law, by 4.00 pm on 31 January 2002. The defendants have done so and raise this issue in the order or declaration (5) which is now sought. This question is considered under that issue below. 49. Paragraph 3.13 [The defendants' solicitors' letter dated 22 November 2001] 3.13 What facts, matters and circumstances will be relied upon at trial to prove that the company "permitted Greentree Farming to carry out the clearing the subject of the charge"? What doctrine of law will be relied upon at trial to prove that 'permitting' another person to commit an act amounts to criminal responsibility for that act? If you persist in this contention, it will be another matter challenged pre-trial by the defendant. [The prosecutor's solicitors' letter dated 14 December 2001] 3.13 See the facts, matters and circumstances set out in paragraphs 3.1 to 3.11 of my letter dated 15 November 2001. Otherwise, this is not a particular request for particulars. 50. In my opinion the facts, matters and circumstances set out in pars 3.1 to 3.11 of the prosecutor's solicitors letter dated 15 November 2001, which I have set out in par [41] above, fully answer this request for particulars. This is also a matter raised by the defendants in the order or declaration (5) which is now sought and which is considered under that issue below. 51. Paragraph 3.16 [The defendants' solicitors' letter dated 22 November 2001] 3.16 Please confirm that, at trial, the prosecution will rely on its allegation that the defendant "permitted" Greentree Farming to carry out clearing and primary production on Yarrawa to prove the actus reus against the defendant, and no other fact, matter or circumstance. [The prosecutor's solicitors' letter dated 14 December 2001] 3.16 This is not a proper request for particulars. No concession is made of the kind you invite. The prosecutor has stated the facts, matters and circumstances upon which it intends to rely. If additional facts, matters and circumstances arise in evidence, the prosecutor is not precluded from relying upon them. 52. As can be seen from the entirety and the structure of the answers to the question "upon what facts, matters and circumstances will the prosecutor rely at trial to prove that Prime Grain Pty Limited cleared native vegetation on the paddocks Burr and Dumindi?" that par 3.16 is one of the many numbers of sub-pars each of which sets out the facts upon which the prosecutor intends to rely to show that the defendant cleared native vegetation on the particular paddocks. I thus agree with the prosecutor that he is not precluded from relying on each or any of the various facts, matters and circumstances particularised in pars 3.1 to 3.19 inclusive of the answers to the request for particulars. The somewhat complete and thorough answers furnished by the prosecutor leave no reason for doubt, in my opinion, of the case that is sought to be made against the defendant. Again, the prosecutor has reserved its right to apply to amend the particulars as allowed by the rules of court to which reference has previously been made. 53. Paragraph 3.19 [The defendants' solicitors' letter dated 22 November 2001] 3.19 What is meant by the word "actively participated"? Is this intended to indicate the rubric of aided, abetted, counselled or procured? [The prosecutor's solicitors' letter dated 14 December 2001] 3.19 The words refer to participation as a principal. 54. This answer furnished by the prosecutor is clear, unambiguous and does not need further particularisation. 55. Paragraph 4 [The defendants' solicitors' letter dated 22 October 2001] 4. Charge 50042 The defendant requires provision of the same particulars as in 3, in respect of: (a) the Lower Middle paddock, (b) the Top Middle paddock, and (c) the Yanott paddock. [The prosecutor's solicitors letter dated 15 November 2001]

Charge 50042 (a) Upon what facts, matters and circumstances will the prosecutor rely at trial to prove that Prime Grain Pty Limited cleared native vegetation on, (i) the Lower Middle paddock, (ii) the Top Middle paddock, and (iii) the Yanott paddock.

In respect of each specified paddock, the prosecutor relies upon the following- 4.1 The paddocks Lower Middle, Top Middle and Yanott are located within the property known as Eastwood. 4.2 On 17 September 1997, Prime Grain Pty Ltd entered into a contract to purchase Eastwood as tenant in common with Limthono Pty Ltd. 4.3 On about 14 October 1997, Prime Grain Pty Ltd and Limthono Pty Ltd entered into possession of Eastwood. 4.4 On about 30 September 1998, Prime Grain Pty Ltd and Limthono Pty Ltd settled on the purchase of Eastwood. 4.5 No person held a leasehold estate in Eastwood during the charge period. 4.6 Prime Grain Pty Ltd, with Limthono Pty Ltd, owned, possessed and occupied Eastwood during the charge period. 4.7 Prime Grain Pty Ltd was in a position to control what could be done and what was done on Eastwood. 4.8 The clearing the subject of the charge was large in scale in terms of the number of trees cleared, the area cleared and the duration of clearing. 4.9 The smoke form burning of vegetation associated with the clearing was visible throughout the district. 4.10 Prime Grain Pty Ltd had knowledge or the means of knowledge of the clearing the subject of the charge, through its director, Mr Greentree. 4.11 Prime Grain Pty Ltd took no steps to prevent the clearing the subject of the charge. 4.12 By reason of its inaction, prime Grain Pty Ltd acquiesced in the clearing the subject of the charge. 4.13 Prime Grain Pty Ltd permitted Greentree Farming to carry out the clearing the subject of the charge. 4.14 Prime Grain Pty Ltd allowed Greentree Farming to carry out the business of primary production on Yarrawa [sic]. 4.15 As specified in paragraph 4.10 above, Prime Grain Pty Ltd knew or had the means of knowledge that Greentree Farming was carrying out clearing as part of its business of primary production. 4.16 In the circumstances set out in paragraphs 4.13 and 4.14, Prime Grain Pty Ltd caused the clearing the subject of the charge. 4.17 Mr Ronald Greentree and Ms Maree Greentree were the directors of Prime Grain Pty Ltd during the Charge period. 4.18 The prosecutor repeats paragraphs 1.1 to 1.8 above. 4.19 In the circumstances set out in paragraphs 4.17 and 4.18, Prime Grain Pty Ltd actively participated in the clearing the subject of the charges. [The defendants' solicitors' letter dated 22 November 2001] 4. We require the same specification, and make the same comments, as are set out above in relation to charge 50041. [The prosecutor's solicitors' letter dated 14 December 2001] 4. The answers set out above in paragraphs 3.7 to 3.21 apply equally to the charge in proceedings 50042/01. 56. As noted above, no further particularisation by the prosecutor is required. The full and complete particulars set out in pars 4.1 to 4.19 clearly specify the facts, matters and circumstances upon which the prosecutor relies and which can leave the defendant in no doubt over what is alleged against it. 57. Paragraph 7 [The defendants' solicitors' letter dated 22 October 2001] 7. Upon what facts, matters and circumstances will the prosecutor rely at trial to prove that development consent was required for the particular acts of clearing of native vegetation that are alleged to have taken place on the named land between 25 March 1999 and 16 May 2000, as opposed to their having been done for a purpose or to an extent described in Schedule 3 to SPP 46 [sic, State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation]? [The prosecutor's solicitors' letters 15 November 2001] 7. Upon what facts, matters and circumstances will the prosecutor rely at trial to prove that development consent was required fro the particular acts of clearing of native vegetation that are alleged to have taken place on the named land between 25 March 1999 and 16 May 2000, as opposed to their having been done for a purpose to an extent described in Schedule 3 to SEPP 46. The prosecutor relies upon the following facts matters and circumstances: … 7.4.1 The area cleared on each of Yarrawa and Eastwood exceeds two hectares. … 7.4.16 In determining the number of trees cleared and the area of trees cleared, the prosecutor has excluded the following- 7.4.16.1 The land within 20 metres of any fence or fenceline. 7.4.16.2 The land within 10 metres of the centre line of any road or track. [The defendants' solicitors' letter dated 22 November 2001] 7.4.16 On what basis has the prosecution deemed that: 1. Land within 20 metres of any fence/fenceline; and 2. Land within 10 metres of any road/track centreline; is within the exemptions? Please provide us with any documents relevant to this construction of the exemptions. [The prosecutor's solicitors' letter dated 14 December 2001] 7.4.16 This is not a proper request for particulars. However, I enclose for your information a Department of Land and Water Conservation publication entitled "Definitions and Exemptions: State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation. Amendment No 2". 58. The prosecutor has set out the facts, matters and circumstances upon which he intends to rely in his answer to the question asked on behalf of the defendants. Although no further particularisation is required the prosecutor has nevertheless furnished a copy of the relevant environmental planning instrument which sets out the basis for excluding or exempting land from the operation of that instrument. This request need not be further answered. 59. Paragraph 8.1 [The defendants' solicitors' letter dated 22 October 2001] 8. State the facts, matters and circumstances that will be relied upon at trial to negative the contention that the clearing in each of the named paddocks was in conformity with the, (a) two hectares a year exemption. … [The prosecutor's solicitors' letter dated 15 November 2001] 8. As a matter of law, the onus is on the defendants to establish on the balance of probabilities that the clearing comes within one or more of the exclusions from the development consent requirements of Part 2 of the NVCA, including those in Schedule 3 to the former SEPP 46. However, insofar as the prosecutor is able to anticipate the defence in relation to the exemptions in Schedule 3, the prosecutor relies upon the following- … 8.1 The prosecutor refers to paragraph 7.4.1 above. [The defendants' solicitors' letter dated 22 November 2001] 8.1 What construction will the prosecution assert at trial that the court should put on the "two hectares a year" exemption, and upon what law or authority is that contention based? [The prosecutor's solicitors' letter dated 14 December 2001] 8.1 This is not a proper request for particulars. 60. I confess that I do not understand the defendants' request. The relevant exemption, as appears from the instrument, a copy of which was furnished to the defendants in answer to par 7.4.16 above, is as follows: … Minimal clearing. The clearing of up to 2 hectares per annum for any contiguous land holding in the same ownership.

This exemption allows clearing of up to two hectares per annum, on each land holding that is contiguous land in the same ownership . [State Environmental Planning Policy No. 46 - Protection and Management of Native Vegetation, Amendment No. 2] 61. It seems to me that the words of this exemption are plain and unambiguous; they require no examplification or explanation. They simply say what they mean and mean what they say. No further particularisation is necessary. Double jeopardy 62. In proceedings Nos. 50039 of 2001 and 50040 of 2001 the defendant, Ronald Lewis Greentree, is charged with the offence that "he cleared native vegetation on land" without development consent under Pt 4 of the Environmental Planning and Assessment Act 1979 ("EP&A Act") in contravention of s 21(2) of the Native Vegetation Conservation Act. 63. In proceedings Nos. 50053 of 2001 and 50054 of 2001 the defendant, Ronald Lewis Greentree, is charged with the offence that "he was a director of Prime Grain Pty Ltd, a company that contravened section 21 of the Native Vegetation Conservation Act 1997, and he did thereby contravene section 21 of the Native Vegetation Conservation Act 1997 by operation of section 65(1) of [that Act]". 64. The land said to be have been unlawfully cleared in proceeding No. 50039 of 2001 is the same as the land in proceeding No. 50054 of 2001. The land also said to have been unlawfully cleared in proceeding No. 50040 of 2001 is the same as the land in proceeding No. 50053 of 2001. 65. Section 21 of the Native Vegetation Conservation Act provides, with certain exceptions, that a person must not clear native vegetation on any land except in accordance with (a) a development consent that is in force, or (b) a native vegetation code of practice. 66. Section 65(1) of the Native Vegetation Conservation Act provides: (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) the corporation contravened the provision without the actual, imputed or constructive knowledge of the person, or (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. 67. It is submitted on behalf of the defendant that the two charges against Ronald Lewis Greentree in his personal capacity and the two charges against him in his capacity as a director of Prime Grain Pty Ltd are for the same offences, against the same provision (s 21(2) of the Native Vegetation Conservation Act), and the particulars show that they involve the same facts. In these circumstances it is submitted that the prosecutor must elect as to whether to prosecute summons No. 50039 of 2001 or summons No. 50054 of 2001; and must elect as to whether to prosecute summons No. 50040 of 2001 or summons No. 50053 of 2001. (Although the defendant asserts that the charges are "duplicitous", it is clear that they are not. What the defendant in truth asserts is that the charges infringe the rule against double jeopardy.) 68. The principal authority on which the defendant relies is Pearce v The Queen (1998) 194 CLR 610; 72 ALJR 1416. In that case the appellant was charged with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm in contravention of s 33 of the Crimes Act 1900 and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him in contravention of s 110 of the Crimes Act 1900. The two charges arose out of a single episode. The appellant broke into the victim's house and beat him. The appellant applied to the primary judge for an order staying one or the other of the two proceedings. It was submitted that the appellant was placed in double jeopardy by the preferring of the two counts. The primary judge dismissed the application. The appellant then pleaded guilty to eight counts including the two disputed counts and was sentenced. An appeal to the Court of the Criminal Appeal was also dismissed. 69. The High Court held that the primary judge was right in concluding that the proceedings should not be stayed. This was because each of the two offences contained an element that the other does not: a specific intent to do grievous bodily harm in s 33 which is absent from s 110 and a breaking and entering in s 110 which is absent from s 33. Neither offence was wholly included in the other. There was no abuse of process in charging the appellant with both counts because the offences are different (and different in important respects). 70. The decision of the High Court nevertheless contains a useful discussion of the nature of double jeopardy. The judgments contain references to the expression of the double jeopardy rule in constitutional guarantees such as the Fifth Amendment to the United States Constitution: [N]or shall any person be subject for the same offence or to be twice put in jeopardy of life or limb . 71. In the joint judgment of McHugh, Hayne and Callinan JJ their Honours accepted (at 620) United States authorities in which the test for determining whether the Fifth Amendment is infringed is to look at the elements of the offences concerned. Their Honours said (at 623): To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 72. The principle behind the concept of double jeopardy was further explained in Pearce's case by Gummow J (at 625) as follows: The maxim, nemo debet bis vexari pro una et eadem causa (it is the rule of law that a man shall not be twice vexed for one and the same cause), appears in Sparry's Case [ (1589) 5 Co Rep 61a [77 ER 148] ] . The maxim applies not only to res judicata doctrines but also to vexatious litigation and abuse of process [ Kersley, Broom's Legal Maxims , 10th ed (1969), p 220 ]. In its application to criminal proceedings, it "has become known as the rule against double jeopardy" [Rogers v The Queen (1994) 181 CLR 251 at 277 ]. 73. To this maxim, I would add nemo debet bis puniri pro uno delicto (no one should be punished twice for one fault). 74. Gummow J further said (at 629), however, that double jeopardy is a "concept" rather than "a definitive legal principal according to its own terms" (citing David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378 and Hill v Van Erp (1997) 188 CLR 159 at 239). 75. Importantly for the present case, the joint judgment of McHugh, Hayne and Callinan JJ includes the following statement (at 614): Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment. 76. The Court is thus required to look at the question of whether or not the principle of double jeopardy is infringed at the prosecution stage and is not restricted to examining the question only at the stages of conviction and punishment. 77. In the case of Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 the Court of Criminal Appeal provided an illustration of the operation of the double jeopardy rule (or concept). The defendant had been charged with an offence of polluting waters contrary to s 16 of the Clean Waters Act 1979 and with an offence of breaching the conditions of a licence granted under s 17D(9) of the State Pollution Control Commission Act 1970. The latter permitted the pollution of waters subject to certain terms and conditions, which conditions the defendant had breached. Gleeson CJ (Carruthers and Smart JJ agreeing) noted (at 505) that it was clear enough that the conduct of the defendant which was the immediate occasion for the charges was the same. It consisted of discharging polluting substances into a named creek. Gleeson CJ said (at 509) that the nature of the offences against s 16(1) of the Clean Waters Act and s 17D of the State Pollution Control Commission Act alleged by the prosecutor to have been committed by defendant is, when examined in the light of the particulars of the charges, such that the defendant cannot be convicted of and punished for both; and further (at 510) the offence against s 16(1) is in substance the same as the offence against s 17D. Gleeson CJ held (at 510) that the rule against double jeopardy, in its ordinary application, applies in relation to two or more statutory offences. 78. In the present case both the summonses against Ronald Lewis Greentree in his personal capacity and the summonses against Ronald Lewis Greentree in his capacity as a director charge him with the same offence, namely an offence against s 21(2) of the Native Vegetation Conservation Act, which offences are said to have occurred at the same time, on the same properties, and arise out of the same facts and circumstances. The particulars furnished by the prosecutor in support of each charge are in substance the same. Whether the defendant has in his own right cleared native vegetation in breach of s 21(2) of the Act or whether he has done so in his capacity as a director makes no difference to the fact that in each case it is the same offence with which he has been charged. The deeming provision in s 65(1) of the Act does not change either the substance or the nature of the offence under s 21(2). Moreover, this is not a case where the defendant, Ronald Lewis Greentree, has been charged with two different statutory offences arising out of the same facts, as was in the case in Environment Protection Authority v Australian Iron and Steel Pty Ltd. If the rule against double jeopardy applies in relation to two or more different statutory offences, then it applies with even more force to two or more charges for precisely the same statutory offence. 79. In my opinion, the bringing of two sets of summonses against Ronald Lewis Greentree in the present case infringes the rule against double jeopardy. In so finding I am bound by the majority judgment in Pearce v The Queen that double jeopardy is employed at the prosecution stage of the criminal justice system, as well as at conviction and punishment. The prosecutor must make an election over which of the two sets of summonses against Ronald Lewis Greentree are to be prosecuted. If he does not do so then the proceedings against Ronald Lewis Greentree must be permanently stayed. Mens rea 80. The defendants submit that the offence with which they are charged in each case is one in which mens rea is an essential ingredient. (Reference was made to R v Wampfler (1987) 11 NSWLR 541). The submission was developed by reference to sub-s (4) of s 65 of the Native Vegetation Conservation Act. That sub-section provides: ( 4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention. 81. According to the defendants' submission, as I understand it, sub-s (4) of s 65 imports the relevance of intention; if the offence was one which did not have a requirement of intention, then sub-s (4) would have no work to do. In another way, if the offence is one of strict liability, there would be no need for this provision. It is further submitted that whilst there are statutory provisions creating offences of strict liability in relation to public safety and public health, this Act is not concerned with such matters. 82. I am inclined to agree with the prosecutor's submission, however, that sub-s (4) of s 65 is merely an evidentiary provision. A similar provision to sub-s (4) existed in the Environmental Offences and Penalties Act 1989 (s 10(4)), but many provisions which created offences against that Act and associated legislation have been held to be strict liability offences (see for example, Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 at 719). 83. In R v Wampfler the Court of Criminal Appeal applied the High Court' s decision of He Kaw Teh v The Queen (1985) 157 CLR 523 in holding that the offence of publishing an indecent article contrary to the provisions of the Indecent Articles and Classified Publication Act 1975, does not require guilty knowledge on the part of the accused person. The Court nevertheless accepted the availability in that case of the defence of an honest and reasonable belief that the act was innocent. 84. As noted by Street CJ in R v Wampfler (at 596), He Kaw Teh is authority for the proposition that for the purpose of considering criminal intent, statutory offences fall into the three categories identified by Gibbs CJ in that case: (1) Those in which there is an original obligation on the prosecution to prove mens rea. (2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal. (3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence. 85. In Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745, Gleeson CJ, after referring to the three categories of statutory offences defined by Gibbs CJ in He Kaw Teh, said (at 749-750): The formulation of the second of these categories is open to possible misunderstanding. When his Honour referred to a "belief that the conduct in question is not criminal" his Honour was obviously not intending to refer to ignorance or mistake of law. As Handley JA pointed out in Von Lieven v Stewart (1990) 21 NSWLR 52 at 66-67: "It is beyond argument that a reasonable but mistaken belief can only furnish an excuse where the mistake is one of fact: see He Kaw Teh v The Queen (at 532-533, 550-551, 572-574, 576 and 593). Otherwise the general principle applies that ignorance of the law is no excuse: see R v Turnbull (1943) 44 SR (NSW) 1087 at 109; 61 WN (NSW) 70 at 71 per Jordan CJ. Accordingly, a belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this. Nor can inadvertence excuse either. The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent: see Proudman v Dayman (1941) 67 CLR 536 at 541, and He Kaw Teh v The Queen (at 575)." 86. In He Kaw Teh, Gibbs CJ (Mason J agreeing) formulated three tests to decide whether the presumption of mens rea has been displaced by a statutory provision (at 529-520). The first is that one must have regard to the words of the statute creating the offence. The second matter to be considered is the subject matter with which the statute deals. The third consideration is whether putting the defendant under strict liability will assist in the enforcement of the particular statutory provision. 87. The words of the statute in the present case are: "A person must not clear native vegetation on any land except in accordance with (a) a development consent that is in force, …". The words themselves contain no clear indication as to whether the presumption of mens rea has been displaced. The provision does not, for example, use such phrases as "must not knowingly clear…", which would otherwise provide an indication of the parliamentary intention. Nevertheless, the object of sub-s (4) is to prevent clearing of native vegetation unless there is a development consent in force. 88. The subject matter with which the statute deals does, however, suggest that the offence is inconsistent with the existence of an obligation on the prosecutor to prove mens rea. The objects of the Act (set out in s 3) clearly show that it was the intention of the Parliament to vigorously prevent the uncontrolled clearing of native vegetation in the social, economic and environmental interests of the State. The offence deals with acts which, in the public interest, are prohibited with penalty. In the case of offences in pari materia it has been held that they are strict liability offences. For example, in Power v Penthill House Pty Ltd (1993) 80 LGERA 247, Stein J held (at 252-253) that an offence of removing trees contrary to a condition of a development consent under the EP&A Act was an offence of strict liability. In my opinion, in the case of the present charges the introduction of an element of mens rea would run counter to the overall legislative intention in this field. As I have noted, the object is to prevent clearing (unless otherwise expressly permitted). Persons who undertake the clearing of native vegetation do so at their own risk unless they ensure that they take proper steps to ascertain the lawfulness of their proposed conduct. 89. The third consideration identified by Gibbs CJ in He Kaw Teh reinforces the view which I have expressed above. All of these considerations lead me to the firm view that mens rea is not an essential ingredient of the offence. 90. It seems to me, however, that the offence is one which falls within the second category of offences described by Gibbs CJ in the He Kaw Teh. It is thus open to a defendant to raise the defence of an honest and reasonable belief in such state of facts which would make his or her acts in question innocent in the sense described by Gleeson CJ in Strathfield Municipal Council v Elvy (noted in par [85] above). Vicarious liability 91. The concept of vicarious liability is a development of the law of torts, in that one person becomes liable for something that someone else has done, so that employers will be held liable for the acts or omissions of their employees. Vicarious liability is a form of strict liability, whereby the person held to be vicariously liable for the acts or omissions of the employee need not have been personally at fault. Vicarious liability may arise even if the act or omission of the other person is unknown to the party found to be vicariously liable (Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36). Historically, an employer or master is responsible to third persons for the acts or omissions of employees or servants which have occurred in the course of employment or service. In Bartonshill Coal Co v McGuire (1858) 3 Macq 300, Lord Chelmsford LC said (at 306): Every act which is done by a servant in the course of his duty is regarded as done by his master's orders and consequently is the same as if it were his master's own act. The offence of vicarious liability is thus direct liability. The acts of the servants or agents are taken to be the acts of the employer. 92. The cases draw a distinction between the acts of employees and acts of independent contractors. The basic principle is that a head contractor will not usually be vicariously liable to a third party for acts or omissions of an independent contractor or subcontractor (Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41, per Dixon J at 48). There are, however, two exceptions to this principle: (i) where the principal has directly authorised the doing of the relevant act (Stoneman v Lyons (1975) 133 CLR 550); and (ii) where the principal engages the independent contractor to exercise a duty of the principal and the independent contractor fails to do so (Smith v Lewis (1945) 70 CLR 256, P. Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342, Home Office v Dorset Yacht Co. Ltd [1970] AC 1004, and Kondis v State Transport Authority (1984) 154 CLR 672). As to the first exception, liability for the acts and omissions of an independent contractor may arise if the work was done "subject to the control and direction of the employer in the actual execution of the work" (Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 396). Thus, vicarious liability of a principal for the acts of an independent contractor may arise through direct authorisation of the act in question (Kondis v State Transport Authority, per Brennan J at 698). 93. The question of whether vicarious liability exists ultimately depends upon the circumstances of the case and a proper construction of the relevant statutory provision (Mount Albert Borough Council v Johnson [1979] 2 NZLR 234, Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279). 94. The concept of vicarious liability has been applied to criminal offences of strict liability. In Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715, Gleeson CJ (Mahoney JA and Campbell J concurring) held that s 16(1) of the Clean Waters Act 1970 (which provides: "A person shall not pollute any waters") may operate to make a master vicariously responsible for the activities of an employee. Glesson CJ said (at 720): Having regard to the language employed in the Act the object of the legislature was to prohibit "pollution" of the waters. To convict a servant/principal is one step towards achieving that object, and is provided for in the Act. However, in my view the effective fulfilment of the statutory purpose requires that employers be regarded as potentially vicariously responsible for acts of their employees. 95. In Gatacre v Soil Conservation Service of New South Wales (1992) 78 LGERA 379, the Court of Criminal Appeal held that s 21C of the Soil Conservation Act 1938 may operate to make a master vicariously responsible for the conduct of an employee. That section relevantly provided: (1) A person shall not: (a) ringbark, cut down, fell, poison or otherwise destroy, or cause to be ringbarked, cut down, felled, poisoned or otherwise destroyed; or (b) top, lop, remove or injure, or cause to be topped, lopped, removed or injured, any tree on any protected land, except in accordance with an authority issued under s 21D in relation to the land. 96. Cripps JA (Gleeson CJ and Slattery AJ agreeing) said (at 384-385): However, as a matter of statutory construction, in my opinion, s 21C of the Soil Conservation Act 1938 may operate to make a master vicariously responsible for the conduct of an employee: see Tiger Nominees Pty Ltd v State Pollution Control Commission . In Mousell Brothers Ltd v London & North-Western Railways Co [1917] 2 KB 836 at 845, Aitken J said: "I think that the authorities cited by my Lord make it plain that while prima facia a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed." Mousell was approved by the High Court in R v Australasian Films Ltd (1921) 29 CLR 195 at 214. The object or purpose of Soil Conservation legislation is, inter alia, to mitigate erosion. Trees may not be destroyed on certain land otherwise than in accordance with authorities granted. In ordinary circumstances, the duty of ensuring that trees are not unlawfully removed is on the owner or occupier of land. Not infrequently owners of land are large corporations. People who own properties frequently employ labour. These features persuade me that the doctrine of vicarious responsibility applies to prosecutions under the Soil Conservation Act 1938 in the same manner as it applies to prosecutions under the Clean waters Act 1970. It would follow, therefore, that an employer would be liable for acts or persons acting within the scope of their employment or agency. 97. In Gatacre, the offence was similar to the offences with which the present defendants are charged. The objects of the Native Vegetation Conservation Act are set out in s 3, as follows: 3 Objects of Act The objects of this Act are: (a) to provide for the conservation and management of native vegetation on a regional basis, and (b) to encourage and promote native vegetation management in the social, economic and environmental interests of the State, and (c) to protect native vegetation of high conservation value, and (d) to improve the condition of existing native vegetation, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, and' (f) to prevent the inappropriate clearing of vegetation, and (g) to promote the significance of native vegetation, in accordance with the principles of ecologically sustainable development. 98. The objects of the Native Vegetation Conservation Act are clear enough and s 21(2) is clearly directed to achieving those objects. The same considerations explained by Cripps JA in Gatacre, which I have set out above and which led his Honour to conclude that the doctrine of vicarious liability applies to prosecutions under the Soil Conservation Act, apply equally to prosecutions under the Native Vegetation Conservation Act. 99. The defendants nevertheless submit that no doctrine of vicarious liability applies to either of them in relation to the offences with which they are charged. Support for this submission is said to be found in s 65 of the Native Vegetation Conservation Act. As previously noted, sub-s (1) of that section provides: (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) the corporation contravened the provision without the actual, imputed or constructive knowledge of the person, or (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. 100. It is submitted that the legislature has chosen to proceed by way of s 65 and has thus displaced the general application of the principle of vicarious liability. In my opinion, however, the general application of the principle of vicarious liability is preserved by sub-s (3) of s 65 of the Act. That sub-section provides: (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations. 101. The whole of s 65 is about of an extension of liability, not a removal or limitation of liability. I thus reject the defendants' submission. I find that the principle of vicarious liability applies to s 21(2) of the Native Vegetation Conservation Act. Secondary participation 102. The defendants challenge the extent to which the prosecutor may rely upon the doctrine of secondary participation. The defendants submit that the prosecutor may not, at the trial, rely on any doctrine of criminal liability by reason of either the defendants' "failure to prevent" an offence by a third party, or by the defendants' "permitting" or "acquiescing in" the commission of an offence by a third party, where the conduct relied upon does not amount to aiding, abetting, counselling or procuring the commission of that offence. 103. In Giorgianni v The Queen (1985) 156 CLR 473 the High Court held that statutory provisions such as s 351 of the Crimes Act 1900 were declaratory of the common law. Section 351 of the Crimes Act is to the same effect as s 55 of the Land and Environment Court Act 1979, which is as follows: 55 Aiding, abetting, counselling or procuring the commission of offences

A person who aids, abets, counsels or procures the commission by another person of an offence punishable in the summary jurisdiction of the Court is guilty of the like offence and may be tried at the same time as or before or after the trial of the principal offender. 104. It is submitted on behalf of the defendants that the terms "aids, abets, counsels or procures" require some positive act on the part of a defendant. The aider, abetter, counsellor or procurer must do something to bring about the acts which amount to an offence. It is submitted that there is no duty to prevent the commission of an offence and no inference can be drawn from a person's non-intervention. (Reference was made to Von Snarski (2001) 121 A Crim R 205 and R v Sharrock [1994] QB 279). 105. Von Snarski was a case in which the defendant was charged with an offence that he "did permit" premises occupied by him to be used for the commission of a crime, namely the production therein of a prohibited drug. It seems that "permitting" premises to be so used was an independent offence, so that this case is of little assistance. The Court of Appeal of Queensland nevertheless held that the question of whether "permitting" can be established by mere inactivity, or whether it requires some specific activity, is "a question of fact in which degree and circumstance may affect the conclusion" (at 210). 106. In Sharrock the defendant was charged with the offence of causing a public nuisance. The defendant had granted a licence for the use of his field over a weekend. Between 3,000 and 5,000 people attended an event held there by the licensees at which loud music was played, causing noise and disturbance to local residents. The defendant was not present during the event. In rejecting the defendant's appeal against his conviction, the Court of Appeal did not accept a submission on behalf of the defendant that the prosecutor had to show "actual knowledge". It was sufficient if the defendant either knew or ought to have known that there was a real risk and that the consequences of the licence granted by him would be to create the sort of nuisance that in fact occurred. 107. Both of these cases suggest that some positive act on the part of the defendant to bring about the offence is not necessarily required and that it is not appropriate to exclude any evidence of the kind now sought to be excluded, since all the facts and circumstances may have to be considered in order to determine the culpability of the defendants either as principal offenders or as secondary participants. 108. As noted above, in Giorgianni it was held that s 351 of the Crimes Act was only declaratory of the common law position on the subject. Gibbs CJ described (at 480-481) the effect of the common law on secondary participation as follows: No similar distinction was drawn in the case of misdemeanours, and at common law, in cases of misdemeanour, anyone who, in the case of a felony, would have been a principal in the second degree, or an accessory, was a principal offender and was treated as if he had taken the same part as the active perpetrator on the facts constituting the offence: Gould & Co. v Houghton [ [1921] 1 K.B. 509, at p. 516 ] . 109. In Giorgianni Wilson, Deane and Dawson JJ, speaking about s 351 of the Crimes Act, said (at 500): That section merely restates the common law by providing, in effect, that in proceeding against a secondary participant in a misdemeanour, no distinction is to be drawn between the principal offender and the secondary participant:… 110. The common law doctrine of secondary participation means that a secondary party to a misdemeanour may be convicted on an information or indictment as if it committed the offence as principal: Giorgianni at 491, per Mason J. 111. Mason J, then examined (at 492-493) the four terms "aid, abet, counsel or procure" in s 352 of the Crimes Act (which are the same four terms employed in s 55 of the Land and Environment Court Act): Once it is acknowledged that those terms are merely declaratory of the common law, it is to the common law concept of secondary participation, and not to the ordinary meaning of the words themselves, that regard must be had. In felony at common law the terms "aid" and "abet" are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms "counsel" or "procure" are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence: 4 Bl. Comm. 34-36; Ferguson v. Weaving [ (1951) 1 K.B. 814, at pp. 818-819 ] . In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen A.C.J. in R v. Russell [ [1933] V.L.R. 59, at p. 67 ] , as being applicable to secondary participation in misdemeanour. Having listed various words, including "aiding" and "abetting" which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed: "All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission." 112. Mason J further observed that whilst one term may be more descriptive of the conduct of a secondary party than another, it is important that this is not allowed to obscure the substantial overlap of the terms at common law and the general concept which they embody. 113. In applying Giorgianni, it is to the common law general concept of secondary participation and not to the meaning of the words "aids, abets, counsels or procures" that regard must be had in this case. The terms themselves are descriptive of one general idea: the person charged must be linked in purpose with the person actually committing the crime by doing something to bring about, or rendering more likely such commission. 114. In my opinion a "failure to prevent", or "permitting", or "acquiescing in" the commission of an offence may be within the concept of secondary participation as described in Giorgianni. For example, a defendant may have "aided" the commission of the offence if he permits his land to be used for the prohibited activity. 115. I do not accept the defendants' submission that no guilty inference can be drawn from a person's non-intervention in the commission of an offence, particularly where the person is the owner or occupier of the land in question. By "permitting" his land to be used for the commission of the crime, a defendant may be "doing something to bring about, or rendering more likely, such commission". 116. The defendants also rely upon the principle explained in Halsbury's Laws of England (4th ed), Vol 11(1) at par [45]: Mere presence at the commission of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist a principal should assistance be required. 117. Similarly the defendants rely upon the principle that the non-accidental presence of an accused and his acquiescence or assent to the commission of the offence is not enough: there must also be proof that the principal in the second degree was linked in purpose with the person actually committing the crime, by doing something to bring it about or rendering its commission more likely through encouragement and assistance (referring to R N Howie and P A Johnson: Criminal Practice and Procedure NSW (1998) Butterworths, at [110,016]). The same authors, however, make the following comments at 110,016 [6-005]: Mere acquiescence in the crime does not make a person an aider unless there is some special relationship such as where the owner of a car permits another to drive it : R v Balldessare (1930) 22 Cr App R 70, or where a driving instructor permitted a learner driver to drive negligently: Rubie v Faulkner [1940] 1 KB 571; [1940] 1 All ER 285. The non-accidental presence of a person at the scene of a crime, who witnesses it and offers no objection to it, can be evidence that the person is present wilfully encouraging the commission of the offence so as to render the person guilty as a principal in the second degree: R v Clarkson [1971] WLR 1402. Intentional encouragement may be inferred from expressions, gestures and actions signifying approval: R v Beck [[1990] 1 Qd R 30]. 118. In my opinion these considerations support the view to which I have come, that evidence of the defendants' "failure to prevent", or "permitting", or "acquiescence in" the commission of an offence may, together with all the facts and circumstances, be sufficient to make a finding of culpability on the part of the defendants. 119. The terms which the defendants seek to exclude may overlap and be descriptive of general conduct amounting to secondary participation on the part of the defendants. It is not appropriate, therefore, that the prosecutor be prevented from relying upon such concept at this stage. The question of whether conduct on the part of the defendants amounts to secondary participation must, however, depend upon all facts to be adduced in due course. Witness statements 120. By letter dated 4 December 2001, the prosecutor's solicitors informed the defendants' solicitors as follows: The prosecutor intends to adduce evidence at trial from six witnesses who have not sworn affidavits or provided the prosecutor with statements of evidence in these proceedings. I set out below a list of the witnesses, together with a summary of the evidence that the prosecutor anticipates each witness be called upon to give at trial. 1. Michael Hancock Mr Hancock declined to meet with the prosecutor to discuss his evidence. The prosecutor believes from the Department's investigations that during the charge period: Greetree Farming employed Mr Hancock; Mr Hancock worked on Yarrawa and Eastwood; and Mr Hancock's duties included driving a bulldozer and clearing native vegetation. The prosecutor expects Mr Hancock's evidence will go to those subjects. 2. Jeffory Smith (aka Percy Smith) Mr Smith declined to meet with the prosecutor to discuss his evidence. The prosecutor believes from the Department's investigations that during the charge period: Greentree Farming employed Mr Smith; Mr Smith worked on Yarrawa and Eastwood; and Mr Smith's duties included driving a bulldozer and clearing native vegetation. The prosecutor expects Mr Smith's evidence will go to those subjects. 3. Euston Blomfield Mr Blomfield declined to meet with the prosecutor to discuss his evidence. The prosecutor believes from the Department's investigations that during the charge period: Greentree Farming employed Mr Blomfield; Mr Blomfield worked on Yarrawa and Eastwood; Mr Blomfield's duties were those of a farmhand; and Mr Blomfield was witness to acts of clearing native vegetation by bulldozer. The prosecutor expects Mr Smith's [sic] evidence will go to those subjects. 4. Mr Chris Hurwood Mr Hurwood has declined to participate in an interview with the prosecutor or to prepare an affidavit for the prosecutor. The prosecutor believes from the Department's investigations that during the charge period: Greentree Farming employed Mr Hurwood as property manager; Mr Hurwood managed both Yarrawa and Eastwood; Mr Hurwood resided on Yarrawa; Mr Hurwood was witness to acts of clearing by bulldozer. The prosecutor expects Mr Hurwood's evidence will go to those subjects. 5. Mr Anthony Taylor Mr Taylor participated in a taped interview with the Department, but declined either to swear an affidavit or to provide a signed statement of his evidence. I enclose a transcript of Mr Taylor's interview upon which Mr Taylor has made some handwritten correction. The prosecutor expects Mr Taylor's evidence will go to subjects dealt with in the interview. 6. Mr Stan Carroll Mr Carroll has declined either to swear an affidavit or to provide a signed statement of his evidence in these proceedings. The prosecutor believes from the Department's investigations that: Mr Carroll is a chartered accountant; Mr Carroll is a director of Sutherland Reid & Farrar Services Pty Ltd ("Sutherland"); Mr Carroll and/or Sutherland were the accountants for Mr Greentree, Greentree Farming and Prime Grain Pty Ltd during the Charge Period; and Mr Carroll and/or Sutherland are in possession of information and documents relating to the affairs of Mr Greentree, Greentree Farming and Prime Grain Pty Ltd during the charge period, including employment records, asset descriptions, business structures and management information. The prosecutor expects that Mr Carroll's evidence will go to those subjects. The prosecutor notes that Sutherland has produced documents on subpoena in these proceedings. It may be appropriate for the Court to make directions under Part 75, rule 11(4)(b)(ii) and 11(4)(b)(iii) of the Supreme Court Rules 1970 when these proceedings are next before the Court. … 121. The prosecutor now seeks a direction pursuant to Pt 75 r 11(4) of the Supreme Court Rules 1970 that he be permitted to call the above-mentioned witnesses to give evidence at the trial, notwithstanding that the prosecutor has not provided to the defendants an affidavit or witness statement or a summary of the evidence which the prosecutor expects the witnesses will give at the trial. The reason for this course is explained in the above letter: the witnesses have refused to co-operate with the prosecutor. 122. Conversely, the defendants move the Court for an order that the prosecutor may not at the trial adduce any evidence from witnesses unless due notice of that evidence has been furnished to the defendants setting out the date and place at which any conduct allegedly took place, particulars of the alleged conduct and, where the conduct alleged is in the form of speech, the words used by each party and the names of all persons then present. 123. Mr T Molomby, appearing for the defendants, relies upon the judgment of Bignold J in Environment Protection Authority v Gilmour (2000) 109 LGERA 228. In that case Bignold J reaffirmed the practice which requires a prosecutor in summary proceedings to serve upon a defendant a brief of evidence of those persons whom the prosecutor proposes to call. 124. The judgment in Environment Protection Authority v Gilmour must be approached with caution, however, because Bignold J relied upon (and extensively referred to) the judgment of Pearlman J in Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd [1999] NSWLEC 111, in which her Honour held that the affidavits accompanying the summons must establish prima facie proof of the offence. The decision of Pearlman J on that question, however, was reversed by the Court of Appeal (McConnell Dowell Constructors (Australia) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127). 125. The prosecutor submits that there will be no prejudice to the defendants in not having either affidavits, or witness statements, from the witnesses identified in the prosecutor's letter of 4 December 2001. Sections 43 and 44 of the Land and Environment Court Act 1979 provide for the adjournment of the hearing on an application by the defendant if any variance between any application or order and the evidence adduced in respect of the offence and charges is such that the defendant has been misled by the variance. It is submitted that these provisions provide an opportunity for the defendants to meet any evidence which causes them embarrassment, or to be misled, or to be otherwise prejudiced. The prosecutor also relies upon the need to balance, on the one hand, the public interest in convicting a wrongdoer and, on the other hand, ensuring that there will be no unfairness to a defendant in meeting the case made against him. (Reference was made in this context to Ridgeway v The Queen (1995) 184 CLR 19). 126. In my opinion the prosecutor should be permitted to call the witnesses identified in his letter of 4 December 2001 to give evidence. I have come to this view for the following reasons: (a) The substance of the evidence which the prosecutor expects the witnesses to give has been stated in the letter of 4 December 2001. (By its particulars the prosecutor has separately identified the relevant dates when the conduct took place as the charge period - 25 March 1999 to 16 May 2000). (b) Rule 11(4) of Pt 75 of the Supreme Court Rules provides that the Judge may "make orders and give directions for the just and efficient disposal of the proceedings". (Emphasis added) (c) In Ridgeway v The Queen, Mason CJ, Deane and Dawson JJ in referring to the discretions of a court to exclude evidence said (at 38): The relative weight to be given to them will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved . Mason CJ, Deane and Dawson JJ further said (at 38): Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance. In my opinion the balancing of the legitimate public interest in the conviction of a crime and punishment of those who may be guilty against ensuring that the defendants are able to meet the case sought to be made against them, requires that greater weight should be given to the former. The latter can be met by the next consideration below. (d) The sections 43 and 44 of the Land and Environment Court Act upon which the prosecutor relies, allow for the adjournment of summary criminal proceedings on the application by the defendant if the evidence adduced against it is at variance with the application or order and the defendant has been misled by the variance. (e) There is, moreover, a duty on the part of a prosecutor to call all of the witnesses who can give relevant evidence, whether or not these witnesses may assist the prosecutor's case. This duty is recognised by the New South Wales Barristers' Rules, as follows: 62. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, …

66B. A prosecutor must call as part of the prosecution's case all witnesses: (a) whose testimony is admissible and necessary for the presentation of the whole picture; (b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue; … 127. The New South Wales Barristers' Rules made under s 57A of the Legal Profession Act 1987 and were published in the New South Wales Government Gazette No. 67 on 12 April 2001 pursuant to s 57J of that Act. Such rules are binding (s 57D) and thus have the force of law. These rules, however, restate the common law duties of a prosecutor. In other words, the prosecutor has the duty to call the witnesses it has identified, whose evidence is admissible and necessary for presentation of the whole picture, whose evidence the prosecutor believes could provide admissible evidence relevant to any matter in issue, and to fairly assist the Court to arrive at the truth. Orders 128. For the various reasons stated above I make the following directions, orders and declarations. There is no doubt that the Court may grant declaratory relief in criminal proceedings: see for example, Bacon v Rose [1972] 2 NSWLR 793; Willesee v Willesee [1974] 2 NSWLR 275; Bourke v Hamilton [1977] 1 NSWLR 470; Haley v Commissioner of Corrective Services [1975] 1 NSWLR 118; Sankey v Leurs (1978) 142 CLR 1; Barton v Csidei [1979] 1 NSWLR 524, and Anderson v Attorney-General (New South Wales) (1987) 10 NSWLR 198. 129. I make the following directions, declarations and order: (1) A direction that the prosecutor need not provide further answers to the defendants' request for particulars. (2) A direction that the prosecutor elect as to whether to prosecute, on the one hand, proceedings Nos. 50039 of 2001 and 50040 of 2001, or on the other hand, proceedings Nos. 50053 of 2001 and 50054 of 2001; and unless and until the prosecutor so elects these proceedings be stayed. (3) A declaration that mens rea is not an essential element of the offences with which the defendants are charged. (4) A declaration that the doctrine of vicarious liability applies to the defendants in relation to the offences with which they are charged. (5) A direction that the prosecutor is not prevented at the trial from relying on either the defendants' "failure to prevent" the offence by a third party, or "permitting", or "acquiescing in" the commission of the offence by a third party. (6) A direction that prosecutor be permitted to call the following witnesses to give evidence at the trial: (a) Michael Hancock; (b) Jeffory Smith (aka Percy Smith); (c) Euston Blomfield; (d) Chris Hurwood; (e) Anthony Taylor; (f) Stan Carroll. (7) Costs reserved. I hereby certify that the preceding 129 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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.

CITATION : Director-General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102 Nos. 50039-40 of 2001 and 50053-54 of 2001

FILE NUMBER(S) : 50039 of 2001; 50040 of 2001; 50041 of 2001; 50042 of 2001; 50053 of 2001 and 50054 of of 2001 CORAM: Lloyd J KEY ISSUES: Practice and Procedure :- particulars - adequacy Environmental Offences: - native vegetation - double jeopardy - mens rea - vicarious liability - secondary participation Environmental Planning and Assessment Act 1979 Pt 4 Land and Environment Court Act 1979 s 43, s 44, s 55 and s 68 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 2, Pt 10 r 1 Legal Profession Act 1987 s 57A, s 57D and 57J Native Vegetation and Conservation Act 1997 s 3, s 21 and s 65 New South Wales Barristers' Rules cl 62 and cl 66B Supreme Court Rules 1970 Pt 20 r 1, Pt 75 Div 2 r 6 and r 11(4) Anderson v Attorney-General (New South Wales) (1987) 10 NSWLR 198; Bacon v Rose [1972] 2 NSWLR 793; Barton v Csidei [1979] 1 NSWLR 524; Bartonshill Coal Co v McGuire (1858) 3 Macq 300; Bourke v Hamilton [1977] 1 NSWLR 470; Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; Dare v Pulham (1982) 148 CLR 658; Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502; Environment Protection Authority v CSR Ltd (t/as CSR Woodpanels) (1998) 45 NSWLR 357; Environment Protection Authority v Gilmour (2000) 109 LGERA 228; Environment Protection Authority v McConnell Dowell Constructors (Australia) Pty Ltd [1999] NSWLEC 111; Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279; Environment Protection Authority v Van Hessen Australia Pty Ltd (NSWLEC, Pearlman J, 27 June 1997, unreported); Gatacre v Soil Conservation Service of New South Wales (1992) 78 LGERA 379; Giorgianni v The Queen (1985) 156 CLR 473; Haley v Commissioner of Corrective Services [1975] 1 NSWLR 118; He Kaw Teh v The Queen (1985)157 CLR 523; CASES CITED: Home Office v Dorset Yacht Co Ltd [1970] AC 1004; Humberstone v Northern Timber Mills (1949) 79 CLR 389; Johnson v Miller (1937) 59 CLR 467; Kondis v State Transport Authority (1984) 154 CLR 672; KRM v The Queen (2001) 118 A Crim R 262; McConnell Dowell Constructors (Australia) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127; Mount Albert Borough Council v Johnson [1979] 2 NZLR 234; P. Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342; Pearce v The Queen (1998) 194 CLR 610; 72 ALJR 1416; Power v Penthill House Pty Ltd (1993) 80 LGERA 247; R v Shorrock [1994] QB 279; R v Wampfler (1987) 11 NSWLR 541; Ridgeway v The Queen (1995) 184 CLR 19; Sankey v Leurs (1978) 142 CLR 1; Smith v Lewis (1945) 70 CLR 256; Stoneman v Lyons (1975) 133 CLR 550; Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745; Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715; Von Snarski (2001) 121 A Crim R 205; Willesee v Willesee [1974] 2 NSWLR 275 DATES OF HEARING: 20/05/2002 DATE OF JUDGMENT: 06/28/2002

(2000) 109 LGERA 228

Director-General of the Department of Land and Water Conservation v Greentree & Anor

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