Ku-ring-gai Council v John David Chia

Whether the TPO provides for the offence with which the defendant is charged

1. On p 146 and following of its closing written submissions (and addressed orally at Tcpt, 4 December 2018, p 1449(47) - p 1452(2)), the defendant raised a further issue in relation to the TPO for the first time. Given that the argument was raised so late in the proceedings, I granted leave for the prosecutor to provide short written submissions in reply which were received on 8 December 2018.
2. In relation to this submission, the defendant notes the wording of cl 42(2) of the Ordinance, which is extracted above at [10] and which provides: A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority may think fit.
3. The defendant submits that the TPO states that it was made pursuant to s 26(e) of the EPA Act but that s 26(e) in fact only applies to the making of an environmental planning instrument such as the Ordinance, such that the correct source of power for making the TPO should be seen as cl 42 of the Ordinance.
4. I accept that submission. It is abundantly clear from existing case law that a TPO is not an environmental planning instrument (see Hornsby Shire Council v Clyne [1998] NSWLEC 269 at [14]; The Council of the City of Gosford v Tauszik [2003] NSWLEC 354; (2003) 131 LGERA 434 at [25]) and that s 26(e) of the EPA Act therefore did not authorise the making of the TPO directly but rather via cl 42 of the Ordinance.
5. The defendant then submits that because cl 42 of the Ordinance does not authorise the prosecutor to prohibit someone from "causing" or "permitting" a contravention of the TPO, the passage of the TPO which provides "a person who contravenes or causes or permits to be contravened the provisions of this order shall be guilty of an offence" is beyond power insofar as it purports to prohibit the causing or permitting of the TPO's contravention.
6. The defendant submits that this wording is a mere "note" in the TPO which cannot of itself create the offence with which the defendant is charged. It submits that the "note" is, at most, how the prosecutor interprets the Ordinance or the law generally and further submits that such an understanding is incorrect.
7. The defendant therefore submits that the TPO is invalid to the extent that it purports to prohibit the "causing" of a contravention of the TPO and that the only actus reus criminalised is the physical cutting of trees.
8. The prosecutor says that the better view is that cl 42(2) of the Ordinance is expressed in sufficiently broad language to empower the prosecutor to create a TPO which prohibits a person from causing injury to trees. However, it submits that it does not matter in any event because it relies on the principle of vicarious liability to ground the offence rather than the TPO.
9. I accept that the "note" in the TPO cannot independently create an offence which is not authorised by the Ordinance. However, whether it is covered by cl 42 of the Ordinance or not, I consider that the "note" is correct insofar as it is reflective of the common law position articulated by the High Court in Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 ('Giorgianni') that an "aider, abettor, counsellor or procurer" is in the same position as a principal offender. As Wilson, Deane and Dawson JJ said at 500: …The requirement of intention on the part of an aider, abettor, counsellor or procurer or, if we may use the term, a secondary participant in a crime, is a requirement at common law and it is a requirement which is not affected by s. 351 of the Crimes Act. 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…
10. In any event, the prosecutor does not rely upon the provisions of the TPO which relate to causing but rather on the established principles of accessorial liability extracted above at [16]-[17]. In other words, it is not suggested that the fact that the TPO includes the word "causes" is necessary for the Court to find the defendant guilty of the offence.
11. The summons in the present matter articulated the offence pursuant to s 125(1) of the EPA Act in the following way: …An order [is sought] that the Defendant, John David Chia, of [xxx] [xxx] Street, Killara, in the State of New South Wales, appear before a Judge of the Court to answer the charge that between on or about 6 October 2014 to on or about 21 October 2014 at Roseville in the State of New South Wales, he committed an offence against s125(1) of the Environmental Planning and Assessment Act 1979 ("the Act") in that he did the following thing which was forbidden to be done by a Council authorised under the Act to forbid that thing to be done: He did cause injury trees [sic] protected by the Ku ring gai Tree Preservation order ("the TPO") without the consent of the Prosecutor where that consent was required.
12. The summons then gives the particulars of the alleged offence. For present purposes it is sufficient to extract the following: The manner of contravention by the Defendant The Defendant directed contractors to carry out works involving the said injury to 74 trees on the Site without having obtained the consent of the Prosecutor, where such consent was required.
13. The fact that the word "causes" is used may be indicative of a mistaken belief on the part of the prosecutor that criminal liability arises from the "note" in the TPO but I do not consider that anything turns on this. It is clear from the particularisation of the offence in the summons that the manner in which the defendant is said to have caused the offence is by directing contractors to carry out works. This falls comfortably within both the manner in which the prosecutor has submitted the defendant is vicariously liable for the commission of the offence and the notion of procurement discussed by the High Court in Giorgianni.
14. I should note for completeness that I do not consider that there is anything in this reasoning inconsistent with the decision of Talbot J in Hornsby Shire Council v Clyne (1998) 99 LGERA 432 ('Clyne'). In that case, the prosecutor sought to amend a summons which the defendant contended was duplicitous. The summons relevantly provided: …"on or about 1 October 1997, at Dural in the State of New South Wales, the Defendant committed and caused to be committed an offence against the Environmental Planning and Assessment Act, 1979 section 125, whereby the Defendant caused to be pruned, lopped, cut down and/or removed trees contrary to the Council's Tree Preservation Order…"
15. The duplicity issue which arose in Clyne is not relevant to the current proceedings, however of some relevance is the defendant's submission in that case that the charge of causing an offence to be committed against s 125 of the EPA Act is not an offence known to law.
16. At the relevant time, the Land and Environment Court Act 1979 (NSW) ('LEC Act') included s 55 which provided that a person who "aids, abets, counsels or procures" an offence could be charged as if he or she were a principal offender. Consistently with my reasoning in Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 at [90]-[103], I consider that s 55 of the LEC Act was merely declaratory of the common law position in relation to accessorial liability (as the High Court said of s 351 of the Crimes Act 1900 (NSW) in Giorgianni at 500, extracted above at [40]).
17. At 433-434 in Clyne, Talbot J said: Mr Garling contends that the summons is defective by reason of a failure to charge the defendant with any identified offence and the summons cannot now be amended to allege an offence for the first time. Notwithstanding s 55 of the Land and Environment Court Act, there is no offence of causing an offence to be committed under s 125 of the Environmental Planning and Assessment Act 1979 (NSW): see Border v David Brown Corporation of Australia Pty Ltd (1987) 62 LGRA 207.
18. This reasoning is not germane to the current case because the defendant is not charged with the offence of "causing an offence to be committed" under the EPA Act. Rather, as can be seen from [42] and [43] above, he is charged with an offence against s 125 of the EPA Act which is articulated as causing a breach of the TPO and particularised as arising from the defendant directing contractors to carry out certain works. It may have been preferable that the summons used the wording "vicariously cause" or "procure" rather than "causes" but I am not persuaded that this was a mandatory requirement when the offence and the manner in which it is alleged to have been carried out are plainly articulated in the summons.
19. In this respect, I note the decision of Mason P, with whom Dowd and Austin JJ agreed, in Rao. At [22], his Honour said: On appeal, the charges were also said to be defective because they did not state in effect that the development was being carried out in a manner said to contravene the relevant conditions. I do not agree. Each summons is pleaded inelegantly with its reference to causing the development consent to be implemented contrary to the specified conditions in the nominated manner. But the sense of each charge is perfectly clear, namely that conditions of a (necessary) development consent were infringed in the manner stated at the conclusion of each of the charges. (emphasis in original.)
20. The reasoning in Rao is entirely apposite to the flaws alleged by the defendant in the present case. Accordingly, I find that the manner in which the summons was particularised and the hearing carried out was open to the prosecutor and I do not accept that the only relevant criminal conduct in relation to the TPO is the physical carrying out of prohibited tree works. That conclusion would be contrary to established law in relation to vicarious liability and the common law position in relation to accessorial liability.

Evidence

1. I proceed now to give an overview of the evidence relied upon by the parties. The evidence in the case is voluminous and my description of it here is not intended to be exhaustive. I shall return to relevant aspects of the evidence in greater detail throughout the judgment in the course of making findings.
2. The prosecutor tendered an A3 aerial image of the site with cadastral markings and markings made by Mr Edgar; a bundle of four A4 photographs showing trees being lopped; a photograph identified by Mr Edgar as showing one of his trucks; an A4 aerial photograph with markings made by Mr Edgar during his interview with Phillip Myles (who, as will be explained further below, was a private investigator retained by the prosecutor) dated 11 October 2014; a further A4 aerial photograph dated 11 October 2014 with markings made by Mr Edgar in Court including "rock shelf" and "cliff face"; a copy of an aerial photograph of the site with two further markings made by Mr Edgar; an aerial photograph dated 11 September 2014 and marked by Mr McKenzie; a document marked up by Mr McKenzie; a photograph referred to in Mr McKenzie's record of interview dated 19 August 2016; a photograph marked by Mr Draeger; a bundle of documents comprising screenshots of mobile telephone text messages; two lever arch folders of documents comprising exhibits to an affidavit of Wendy Miller; a record of interview between officers from the prosecutor and Ken Hutton; an aerial photograph marked by Mr Hutton; a record of interview between officers from the prosecutor and Matthew Willis; a document styled 'Fire Risk Assessment', dated 3 March 2014; an enlarged survey plan of the Carnarvon Road property marked by Ms Miller; correspondence between Andrew Hyden and Mr Robertson dated 27 November 2014 and 1 December 2014; correspondence between Mr Hyden and Mr Robertson attaching a Bushfire Risk Assessment; a letter to Mr Hyden from Mr Robertson dated 17 December 2014; a lever arch folder comprising an exhibit to the affidavit of Christine Dunand; a letter appointing Mr Hyden as the defendant's agent; a letter of 9 December 2014 from Mr Hyden to Roseville Golf Club; a letter of 23 December 2014 from Mr Hyden to Roseville Golf Club; the audio and transcript of records of interview undertaken by Mr Myles with each of Mr Edgar, Mr Draeger and Mr McKenzie; and a document indicating phone contact between witnesses and identifying phone location data.
3. The defendant tendered an aerial photograph of the site marked by Mr Edgar "Northern"; an affidavit sworn by Mr Edgar for the Edgar proceedings and the transcript of the Edgar proceedings; a photocopy of two mobile telephone text messages between Mr Myles and Mr Edgar dated 5 August 2016; three photocopies of prosecution exhibits marked by Mr McKenzie; a photocopy of a text message dated 23 September 2014; a photocopy of text messages purportedly of 25 and 26 September 2014 and identified by Mr McKenzie; a letter of Ms Miller dated 9 December 2014; a bundle of letters comprising correspondence between Mr McKenzie senior and the prosecutor; a letter from FactProbe Investigations dated 8 August 2016, and addressed to James Aloysius McKenzie and signed by Mr Myles; two letters dated 1 February 2015 and 9 February 2015 each signed, respectively, by J.A. McKenzie and James McKenzie; a copy of an email chain comprising two emails dated 31 January 2017 and 1 February 2017 between James McKenzie and Adam Stipcevic; a further photograph marked by Mr McKenzie; an email dated 29 January 2016 from Mr Merlino (a solicitor who practises at the firm retained by the prosecutor) to Mr Myles; a log prepared by Jacqueline Doran dated 3 February 2016; a photocopy of text message screenshots of 27 July 2016, 1 August 2016, and 4 August 2016; a file note prepared by Mr Myles dated 2 August 2016; a file note prepared by Mr Myles dated 4 August 2016; a screenshot of a text message of 5 August 2016; further pages of screenshots of text messages dated 4 August 2016, 14 August 2016, 19 August 2016, and 22 August 2016; a typed copy of a handwritten file note prepared by Ms Miller dated 21 October 2014; the audio and transcript of a record of interview between officers of the prosecutor and the defendant dated 5 February 2015; an email from Matthew Drago to Greg Piconi dated 17 February 2015; a copy of the Ku-ring-gai Council Flood Data Sheet dated 8 November 1984 and letter dated 10 May 1985; a photograph of the Roseville Golf Club Honour Board; an aerial photograph of the site dated 21 April 2017 and marked by Mr Robertson; a file note prepared by Ms Miller dated 10 November 2015; an email from Tony McCormack to Ms Miller dated 20 July 2015; and a copy of the handwritten note from the prosecutor's conference with Mr Hyden.
4. In addition to that evidence, a number of affidavits were read by the prosecutor in the proceedings (some of which were only read in part), being: 1. An affidavit of Craig Edgar dated 15 February 2017; 2. Two affidavits of Phillip Myles, each dated 26 September 2016; 3. An affidavit of Wendy Miller dated 29 September 2016; 4. An affidavit of Wendy Miller dated 14 February 2017; 5. An affidavit of Wendy Miller dated 20 June 2017; 6. An affidavit of Wendy Miller dated 25 October 2017; 7. An affidavit of Christine Dunand dated 22 June 2017; 8. An affidavit of Douglas McLean dated 19 October 2018; 9. An affidavit of Raymond Rice dated 29 September 2016; 10. An affidavit of John Paul Merlino dated 13 November 2018; and 11. An affidavit of David Gunter dated 13 November 2018.
5. The defendant read one affidavit in the proceedings, being the affidavit of Jodie Wauchope dated 25 October 2018.
6. Oral evidence was given in the proceedings by Mr Edgar, Mr McKenzie, Mr Draeger, Mr Myles, Ms Miller, Mr Hutton, Mr Willis, Mr Robertson, Mr Hyden and Mr Dahtler.

The evidence of Mr Edgar

1. Mr Edgar gave evidence that he had been retained by the defendant to carry out tree removal work on three occasions prior to the alleged offence. He was first retained by the defendant in around 2011. Each of the three jobs he carried out for the defendant prior to the occasion the subject of these proceedings was at the defendant's Killara property.
2. Mr Edgar stated that in September 2014 the defendant contacted him about some clearing work which the defendant wanted carried out at the site. Mr Edgar said there were no boundary markings at the back of the Carnarvon Road property, which slopes away from the rear of the house to the south where it meets the Crown Reserve and the Roseville Golf Club. Mr Edgar's evidence is that the defendant initially wanted three large casuarina trees and the bush and shrubs closest to the property removed.
3. In Mr Edgar's examination-in-chief, in response to questions asked by Mr Howard, senior counsel for the prosecutor, Mr Edgar gave the following description of the work the defendant asked him to carry out (at Tcpt, 16 April 2018, p 36(3-15)): Q. Do you know how far from roughly how far away from the house [the three casuarinas] were? Were they right next to it or a bit further away? A. I'd say roughly 10 metres. Q. Did he tell you at that point in time anything else about the job or just that? A. At that stage it was just that, plus the shrubs closest to the house. Q. When you say in answering that question "at that stage" why did you qualify your answer in that way? A. Because each day we would do work John would meet us at the property and he saw what we actually did and he got us to go further and further down. So every day he got us to do more and more cutting of the shrubs on the southern side of the property and eastern side.
4. Mr Edgar said that he and his crew worked at the site for eight days in total between 3 October 2014 and 21 October 2014. The defendant paid Mr Edgar a daily rate of $2,000, or $16,000 in total, which Mr Edgar said he received in cash.
5. Mr Edgar stated that the day he began work, which he said was 3 October 2014, was around four days after his meeting with the defendant on the site and their discussion as to the work which was to be carried out. He said that he was there with a crew of three, comprising one climber (that is, a person who climbs trees in order to remove branches) and two labourers, and that the work took eight days, each day of which he was present at the site. One of the labourers was Mr Edgar's nephew, Mr Draeger. Once the trees and shrubs were felled, they were taken to a wood chipper at the top of the property and mulched onsite.
6. During the time that he was working on the site, Mr Edgar said that the defendant had also retained Mr McKenzie, a landscape gardener, who had two labourers working for him. Mr Edgar gave evidence that neither Mr McKenzie nor his labourers were involved in the cutting down of trees but that they assisted in carrying material to be mulched to the wood chipper.
7. Of the eight days on which the work was carried out, Mr Edgar stated the defendant was present "almost every afternoon". According to Mr Edgar, the exception was for a period when the defendant travelled to Singapore for a few days.
8. However, under cross-examination by Mr Steirn, senior counsel for the defendant, Mr Edgar admitted that he did not know which days the defendant had attended the site (Tcpt, 17 April 2018, p 90(3-15)): Q. Are you able to tell the Court when that was [that the defendant attended the site]? A. I know it was a couple of days during the week that we were there. Q. During the week that you were there? A. Yes. Q. Can I suggest to you that apart seeing Mr Chia at his home, that is his home at Killara, he did not visit the site after he came back from Singapore, did he? A. I can't recall, but I know he was there for a few days. Q. But you can't say what days, can you? A. Not exactly, no.
9. In relation to the further instructions received from the defendant, Mr Edgar gave evidence as follows (Tcpt, 16 April 2018, p 47(9-50)): Q. You told us earlier on about the initial instructions you got from Mr Chia and you also told us that later on you had some other instructions from him. Can you tell his Honour, if you can, how long after you started the job did you get any instructions from Mr Chia which were different to the initial instructions that you got? A. I'd say it would have been roughly a day or two after starting the initial works. Q. Did he speak with you? A. Yes, he did. Q. What did he say? A. He saw what we actually did and he wanted us to go further down the southern side and eastern side of the property. Q. When you say that he saw what you did, had did at that point in time, what had you done at that point in time? A. We had removed the three large casuarinas. Q. Yes. A. We started clearing the southern side, the bottom southern side. As he saw that he wanted more going down the southern and eastern side of the property. So he wanted to remove more and more. Q. When you say he wanted to remove more and more after he told you to gave you instructions about one or two days into the job did is that the sum total of your instructions from him or did he later, after that, give you further instructions? A. Further instructions, yes. Q. How long after the day two instructions, if I can put it that way, roughly, did you get further instructions from him? A. A day or two after that. Each day he would see what we had progressed and then he wanted to go further down. Q. When you say he wanted to how do you know he wanted to? A. Just asked us to clear more of the land. Q. How did he ask you to do that? A. He just said, "I want all this cut down. I want all this cut." So each day we would clear a section, once he saw that then he actually said, "I want you to go down further."
10. Mr Edgar said that the defendant was not present on the site the day the works were completed and could not recall whether he was present on the penultimate day of works. However, Mr Edgar gave evidence that the work involved the chopping down of trees on each of the eight days and that the defendant never intimated to him that he had cut down too many trees or that the trees had been cleared from an area from which they should not have been cleared.
11. Mr Edgar attested that he told the defendant about the 10/50 Code and that the defendant wanted to use this to clear the trees and shrubs around the site which he was concerned created a fire risk. However Mr Edgar did not accept that the defendant wanted him to "comply" with the 10/50 Code but rather wanted to "use it to remove trees and shrubs" (Tcpt, 17 April 2018, p 101(35-36)).
12. Mr Edgar agreed that he did not measure the distance between the house and any of the trees which were cut down to determine whether they were capable of being lopped in compliance with the 10/50 Code.
13. Mr Edgar was recalled in November 2018 to give further oral evidence, at which time he gave the following evidence regarding the 10/50 Code (at Tcpt, 1 November 2018, p 954(1-19)): Q. And you fabricated that evidence because you knew that the trees that you had chopped down by them were outside the 10 metre limit. You knew that, didn't you? A. No, because there was no boundaries. Q. No, forget the boundaries. I don't want to go through it again, Mr Edgar, I want to close this down if I can. But it may well be the position - did you think it was 10 metres from the boundary? A. We didn't measure it, so-- Q. I know you didn't measure it, but did you believe it was 10 metres from the boundary? A. I believed it, yes. Q. Pardon? A. Yes, I did. Q. And that was your understanding of the 10 metre rule? A. Yes.
14. In relation to the ownership of the site, Mr Edgar gave the following evidence (Tcpt, 16 April 2018, p 50(3-18)): Q. Mr Edgar, when you carried out these works at this site what did you understand about who owned the land on which you were carrying out the works? A. My initial thought it was John Chia's land. And then he said if we were to go onto golf course, because he told me it was Roseville Golf Course, he had permission from Roseville Golf Course. He had done for 20 years. Q. Can you tell his Honour what he said to you that makes you say that? A. "If you were to go on -" HIS HONOUR: Did he say 20 years? HOWARD: He did. WITNESS: Twenty years. If we were to go on golf course land he had permission from Roseville Golf Course to clear any trees or shrub.
15. Mr Edgar attested that Mr Draeger was present on each occasion that the defendant gave him further instructions but could not recall whether Mr McKenzie was also present.
16. On the last day he was working at the site, Mr Edgar said an officer of the prosecutor named Wendy Miller attended the site, accompanied by other officers. Mr Edgar attested that the conversation was brief and casual.
17. During Mr Edgar's cross-examination, Mr Steirn accused Mr Edgar of lying to Ms Miller during their conversation and suggested that it had been more formal than Mr Edgar was attempting to make it appear (Tcpt, 17 April 2018, p 115(35) - p 116(36): Q. You were interviewed in a formal way, weren't you? A. No, I wasn't. Q. She cautioned you as in relation to your right to silence, didn't she? A. I can't really recall her saying that. Q. Pardon? A. It wasn't a long conversation we had, she took down my details, asked me a couple of questions, and that was it. Q. That is a blatant lie, isn't it? A. No, it's not. Q. You see this was put "hello, I'm Wendy Miller, I work with Ku-ring-gai Council as the tree management officer and I am investigating the removal of trees from this property, can you tell me your name," she put that to you, didn't she? A. She put that to me, yes. Q. And there's no doubt by then that she was investigating the removal of trees from the property? A. She was acting on a complaint. Q. Whatever the position was there was no doubt in your mind she was investigating that complaint, correct? A. That's correct. Q. You answer to the name Craig and then she put this to you "thank you Craig, I'd like to ask you some questions about what's happened here. I want you to understand that you do not have to answer and that any questions you give maybe given in evidence" she put that to you to too, didn't she? A. That I can't recall, no. Q. Pardon? A. You know, it was just a conversation Q. She used those words, didn't she? A. I can't recall that, no. Q. And the reason you won't admit to those words, because you knew that you were in trouble, didn't you? A. At the time, no. Q. Pardon? A. No. Q. At the time, no? A. No. Q. Why do you say, "at the time, no"? A. Well I thought what we were doing was just clearing some land. Q. On John Chia's instructions? A. That's right. Q. And that was firm in your mind them, wasn't it? A. Yes. Q. She then asked you a number of questions, including your name and your contact number, remember that? I think you've agreed with that, haven't you? A. I think yes, yeah. Q. It's fair to say as you would see it you weren't in trouble because you had obeyed the 10/50 rule, is that correct? A. Yes.
18. Mr Edgar denied the suggestion that he knew or thought that he was in trouble after his conversation with Ms Miller. Mr Steirn suggested to Mr Edgar that in the course of his interview with Ms Miller he had denied being on the site before that day, the last of the eight days on which the work was carried out (Tcpt, 17 April 2018, p 118(22-36): Q. So, if she said to you "when were you last on the property" what would you have said? A. Probably would have been the Sunday. Q. Pardon? A. It would have been the Sunday. Q. And that would have been a truthful answer? A. Mmm hmm. Q. You lied to her, didn't you? A. No, I didn't lie to her. Q. You see this is what you told her "we started here a week ago but I haven't been to the site before today"? A. That's incorrect.
19. Mr Steirn suggested to Mr Edgar that he had also lied to Ms Miller about whether he was responsible for the lopping of trees to the south of the site (Tcpt, 17 April 2018, p 119(8-35)): Q. Wendy Miller then said this to you. "What about the trees that have been felled down on that lower section of the property, did your guys do that?" A. I can't recall her saying that? Q. Pardon? A. I can't recall her saying that. Q. It was said to you, wasn't it? A. I don't remember. Q. If that question was asked what would have been your answer? A. We felled those Q. Pardon? A. We felled those. Q. Sorry? A. We felled those trees. Q. That would have been your answer? A. If I would have said that. Q. And that would have been a truthful answer? A. That's right. Q. What you did in fact say to Wendy Miller was, "We didn't remove any trees on the lower section at any time, just small shrubs." Recall saying that? A. No.
20. Mr Steirn further pressed Mr Edgar on this point (Tcpt, 17 April 2018, p 119-120(44-30)): Q. This is your answer in relation to the allegation concerning trees being felled lower down on the property. This is what you said to Wendy Miller. "The trees down on the lower section are not from us." That's what you said, wasn't it? A. I don't recall saying that, no. I can't recall saying that. Q. That was a lie, wasn't it? A. Like I said I can't recall Q. Pardon? A. I can't even recall saying that. Q. Let me ask you this. If you did in fact say that that would have been a lie, would it not? Would it not? A. No. Q. It wouldn't have been a lie? You're shrugging your shoulders, Mr Edgar, what does that mean; yes or no? A. Like I said I can't yeah, I don't know. Q. No, please. HIS HONOUR: Ask the question again, Mr Steirn. WITNESS: I don't understand. STEIRN Q. If you had told Wendy Miller that the trees down the lower section are not from us that would have been a lie, wouldn't it? A. If I would have told her. Q. Pardon? A. If I would have told her that. Q. That would have been a lie? A. Yes.
21. Mr Edgar agreed with Mr Steirn that if the questions and answers put to him had taken place he would have been put on notice that he was implicated in a serious allegation of unlawful tree cutting. However Mr Edgar maintained that he could not recall any of those questions being asked. He agreed that he did not tell the defendant about his conversation with Ms Miller and further agreed with Mr Steirn that the defendant, as the owner of the Carnarvon Road property, had a right to know about Ms Miller's attendance.
22. However, Mr Edgar continued to maintain that he was not put on notice that there was any suspicion of wrongdoing by virtue of his conversation with Ms Miller (Tcpt, 17 April 2018, p 125(41-45)): Q. Mr Edgar, I'm going to put this question another way, did you understand from the questions asked of you by Ms Miller in terms of your occupation, in terms of trees being felled, as she puts it, that you were at the very least a suspect for some wrongdoing? A. That I can't recall, but no. Q. Pardon? A. No.
23. If it had been put to him that he was chopping down trees on the lower section unlawfully, Mr Edgar agreed that he would have told Ms Miller that the defendant instructed him to carry out the works. However, Mr Edgar stated that he could not recall the question ever having been put to him by Ms Miller.
24. Mr Edgar said that he was paid for the work a couple of days after it was completed. He was paid in cash by the defendant at the defendant's home in Killara. Mr Edgar stated that he attended the Killara property with Mr McKenzie on that occasion and that the defendant met him with his solicitor (this was, in fact, Mr Hyden). Mr Edgar described their interaction with the defendant as follows (Tcpt, 16 April 2018, p 53(8-32)): WITNESS: Basically, he said if there were any repercussions from council he said for myself and James McKenzie to take the blame, basically. HOWARD Q. Did you say anything to him about that? A. No, I did not, I didn't say a word. Q. Why didn't you say anything to him when he said that? A. Because I, you know, I wasn't going to take the blame for something. James and I, McKenzie looked at each other and said, you know, "this is not our fault." Q. Have you told his Honour what you can remember about that conversation, have you told his Honour everything you can remember about the conversation? A. That's everything I can remember, yes. Q. Now the other person who was present who you described a few moments ago as Mr Chia's solicitor did he say anything to you that you recall during this meeting? A. Yes, solicitor. Q. Yes? A. He wanted my details and that was it and I refused to give it to him.
25. Mr Steirn suggested to Mr Edgar that at that meeting he told the defendant and his solicitor, who Mr Steirn identified as Mr Hyden, that he had only carried out clearing in compliance with the 10/50 Code. Mr Edgar disagreed and said that they did not discuss anything of that nature.
26. Mr Edgar stated that in 2016 he was approached by Phillip Myles, an investigator retained by the prosecutor, who interviewed him about his involvement in the alleged offence. Under cross-examination by Mr Steirn, Mr Edgar did not agree that his memory of the events was clearer at the time he was interviewed by Mr Myles, on 29 July 2016, than it was during the hearing (Tcpt, 16 April 2018, p 55-56(35-20)): Q. Mr Edgar, you were taken to a record of interview that you had with Mr Myles back in 2016 just a moment ago. Is it fair to say that at the time you spoke to Mr Myles the matter was fresher in your mind then than what it is now? A. No. Q. You're saying it's fresher in your mind now A. Like I still Q. No, please, let me finish my question. Are you saying, truthfully, the matter is fresher in your mind now than what it was when you spoke to Mr Myles? A. Yes, it is. Q. Is that what you're saying? A. I'm saying it's still the same. Q. It's still the same? A. Still the same. Q. So whatever your recollect was to Mr Myles you're saying it's the same recollection you have now? A. Yes. Q. But would you agree logically the matter was fresher then than it is now? A. No. Q. For example, you can't recall now what you said to Mr Myles, can you? I withdraw that question. The record of interview went for some hours, did it not? A. Yes, it did. Q. You're not suggesting for a moment now you can recall what you said to Mr Myles, can you? A. Not every word.
27. Mr Edgar did not agree with Mr Steirn that at the time he was interviewed by Mr Myles he was aware that he had done anything wrong (Tcpt, 16 April 2018, p 62(16-22)): Q. Are you saying that at the time of the interview you had with [Mr Myles] you were unaware that you had done anything wrong? A. That's correct. Q. And that's a truthful answer? A. And that's a truthful answer.
28. Mr Edgar did however agree that he was aware that Mr Myles wanted to interview him in relation to the work he had carried out for the defendant at the site. Mr Edgar maintained that he did not believe he was under investigation and did not think that he was in trouble. He also denied having spoken to Mr McKenzie in relation to his interview before meeting Mr Myles.
29. Mr Steirn pressed Mr Edgar on this point as follows (Tcpt, 16 April 2018, p 68(1-26)): Q. You had spoken to Mr McKenzie, hadn't you, about the matter before you spoke to Myles? A. We just spoke on the matter after we got paid, about what John Chia about the letter from council, that was it. Q. You see, you recall in fairness to you, I'll put it again; Mr Myles said to you, just before the interview, "Have you spoken with James McKenzie," and your answer was, "Yeah, he said he's got no problems speaking with you, 'But don't give my phone number out'," that's what you said to Mr Myles, on that day, before the interview, do you understand? A. Yes. Q. And Mr Myles said, "Okay, it would be good to speak with him, he may be able to corroborate what was said," and you said, "If we are in the right, what's going to happen with John, is he going to get fined," do you remember saying that to Mr Myles? A. No, I can't remember saying that, no. Q. You did say that to Mr Myles, didn't you? A. No, I can't remember that, that's incorrect. Q. Pardon? A. That's incorrect. Q. You were concerned that you were in trouble, were you not? A. No, I wasn't concerned one bit.
30. During his interview with Mr Myles, Mr Edgar declined to provide the names of the contractors he had hired to carry out the work. Mr Steirn asked Mr Edgar about this as follows (Tcpt, 16 April 2018, p 71-72(41-13)): Q. Then he asked you these questions; "Can you tell me who the people were who assisted you at the property to clear the trees, the names of the people, so they were all contractors," answer, by you; "They were contractors, yes," do you see that? A. Yes. Q. Mr Miles then said to you, "Can you provide me with those names, Craig," see that? A. Yes. Q. Your answer was, "I don't want to answer that question"? A. Mm hmm. Q. Why did you not want to answer that question? A. Why? Q. Yes, why? A. I didn't want to give anyone's names out. Q. Because you knew that Mr Miles was investigating the matter and the last thing you wanted was for Mr Miles to speak to these people, that's right, isn't it? A. No, that's not right.
31. Later in his cross-examination, Mr Steirn asked Mr Edgar about the manner in which Mr Myles began the interview (Tcpt, 16 April 2018, p 75(22-45): Q. He said this; "I've been authorised by Ku-ring-gai Council under the Environmental Planning and Assessment Act of 1979, under the Act, I can ask you questions and you must answer my questions," he went on to say, "If you fail to answer my questions, it is an offence, if you feel that your answer may incriminate you, you can object to answer the question," do you see that? A. Yes. Q. When he delivered that statement to you, he put you on notice that the matter was pretty serious, didn't he? A. He didn't tell me it was serious but, yeah. Q. Well, you understood it to be serious, didn't you? A. It could have been, yes. Q. And then, you said, "Okay," in other words, you accepted what was said? A. Mm hmm. Q. Mr Miles went on to say this; "You still need to answer my questions but it can't be used in any evidence against you in criminal proceedings," you then said, "Yeah, I just don't want to get dragged into Court or anything like that, this James guy said that if you want any information, you can go to council and get it," you're talking there about James McKenzie, aren't you? A. I can't recall even saying that.
32. Mr Steirn asked Mr Edgar whether, prior to Mr Edgar's interview with Mr Myles, he had communicated with Mr McKenzie for the purposes of preparing their stories (Tcpt, 17 April 2018, p 102-103(44-10)): Q. You see I'm suggesting to you that around about 2016 you and Mr McKenzie got your heads together to blame Mr Chia for what had occurred at Carnarvon Road, hadn't you? A. No, that's incorrect. Q. Pardon? A. That's incorrect. I don't agree with that. Q. Sorry? A. I don't agree with that. Q. But you and Mr McKenzie spoke from time to time, did you not, about the incident? A. We might have spoken once or twice. Q. However many times you spoke you certainly spoke to Mr McKenzie around about the time you were to be interviewed? A. I can't recall exactly.
33. Mr Steirn continued to press Mr Edgar on this point (Tcpt, 17 April 2018, p 104-105(1-1): Q. And one of the first questions he asked of you, before the interview started, was "have you spoken with James McKenzie"? A. No, I don't recall. Q. And you might recall I asked you this yesterday? A. No, I don't recall that. Q. You don't recall that? A. No. Q. It's true though, you did speak with James McKenzie before you spoke to Mr Miles, didn't you? A. I can't recall, no. Q. More to the point, you spoke to Mr James McKenzie about this very matter? A. Once again, I can't recall that. Q. You're not denying you spoke to Mr McKenzie about the matter, are you? A. I'm not denying, no. Q. Recapping for a moment, you knew Mr Miles was interested in interviewing you on behalf of council, correct? A. Correct. Q. You knew that you were the tree lopper on site, correct? A. Correct. Q. You knew Mr McKenzie was always onsite at the same time, correct? A. Correct. Q. You knew there was a problem about the trees being cut down, correct? A. At the time I didn't think there was a major problem Q. Well it was your crew that cut them down on any view, is that right? A. Yes, and that's correct. Q. And there was a problem, that's right isn't it? A. Right. Q. And according to you by then Mr Chia had asked you to take responsibility, hadn't he? A. Correct. Q. That's right and I'll come back to that. But you see what Mr Miles said to you "have you spoken with James McKenzie" and you said, "Yeah, he said he's got no problem speaking with you but don't give my phone number out," and the very next question was this "okay, it will be good to speak with him, he may be able to corroborate what was said," that's what Mr Miles said as an investigator to you, that's right isn't it? A. That's correct.
34. When Mr Edgar gave further evidence in November, he was further pressed about attempts to make contact with Mr McKenzie on the basis of phone records which had been subpoenaed from Telstra. Mr Edgar continued to deny that he had sought to contact Mr McKenzie for the purpose of discussing the evidence they were to give in these proceedings (at Tcpt, 1 November 2018, p 923(26-28)): Q. You're sure it wasn't to try to get together with Mr McKenzie, to get your heads together? A. No, not at all.
35. When Mr Edgar was interviewed by Mr Myles, on 29 July 2016, he was asked to mark the areas he had been instructed by the defendant to clear on an aerial photograph of the Carnarvon Road property. He marked the photo with various lines. He was asked the following questions in relation to those lines during his cross-examination (at Tcpt, 17 April 2018, p 92(4-25)): Q. And I'll take you to the document in a moment and using a red pen you did a number of lines in ever increasing distances from the house to demonstrate that area that Mr Chia wanted cleared? A. That's correct. Q. And there's no doubt about that, is there? A. No. Q. And that's the area you cleared on Mr Chia's instructions? A. That's correct. Q. What you told the Court yesterday was a recap of what you told Mr Myles on the first occasion; is that right? A. That's correct. Q. That is that you were doing no more than demonstrating to the Court on that document that area that Mr Chia wanted cleared, without going through it again? A. Yes. Q. Pursuant to the 10/50 rule? A. Yes.
36. Mr Edgar attested that as a result of the incident the subject of the alleged offence and the prosecutor's investigations, he was charged with a summary offence in the Land and Environment Court to which he pleaded guilty. He was sentenced in the Edgar proceedings.

The evidence of Mr McKenzie

1. Mr McKenzie gave evidence that he has been a "landscape builder" for around 20 years and that in 2014 he was operating his own business called Force of Nature. His work principally consists of refurbishing, exterior work, repairs, gardening and landscaping (at Tcpt, 22 October 2018, p 288(5-45)).
2. Mr McKenzie attested that in August or September 2014 he was engaged to carry out work for the defendant at the Carnarvon Road property. On that occasion, he said the defendant had asked him to do some work on the front nature strip of the property. He said the defendant gave him instructions at the front of the property and that the work was completed in around a day and a half.
3. After the work was completed, Mr McKenzie stated that he had a conversation with the defendant about further work which the defendant wished to be carried out at the rear of the property. Mr McKenzie said the defendant told him that he wanted the rear of the property cleared and tidied up as he had fire safety concerns whereupon Mr McKenzie explained that such work was beyond the scope of what his business could carry out. Mr McKenzie stated that the defendant paid him for this work via bank transfer.
4. When cross-examined about the description the defendant gave to him about the further work he wanted carried out (by reference to the transcript of Mr McKenzie's interview with Mr Myles), Mr McKenzie gave evidence as follows (at Tcpt, 25 October 2018, p 577(9-31)): Q. I'll take you to page 36, point 5 [of the transcript of Mr McKenzie's interview with Mr Myles], was said, "And he asked you to come back and meet him on the property?" And you said: "Yeah, he said he wants to tidy up through the rear, which I thought was quite weird, sort of thing, because the house hadn't even been worked on, but he wanted to tidy up the garden, that's around the house, here. There's all these shrubs, agapanthus, like agapanthus and kangaroo paw, and things like that, were all overgrown, and that needed cutting back and pulling out, or tidying them up. And that was both in his own garden, and along the eastern perimeter, wasn't it? A. Yes. Q. If there's any doubt about it, Mr Myles says, "That's behind the house," and you say, "That's directly here, under the veranda, and then goes around to this pond, yeah." You then say at 36.8, "Chia asking to sort of looking at tidying that up, because he want to keep it in, if he wants to keep it maintained." And that's, you're really saying again, that's what he wanted done? A. Yep. Q. He wanted it maintained, kept trimmed and tidy, is that correct? A. Yes.
5. Mr McKenzie stated that the next occasion he made contact with the defendant was when the defendant called him to ask him to carry out further work. He gave the following account of that conversation during his examination-in-chief (at Tcpt, 22 October 2018, p 294(19-37)): Q. What occurred that had you contact with Mr Chia at that stage, did he contact you, did you contact him? A. He contacted me. He said that he had people cutting down trees at his place, at Carnarvon Road. And that they needed assistance carrying branches up. From the bottom, up to the street. And he asked if I had any time to help. Help carry the branches up. Q. What did you say to him? A. I said, "Possibly, yes," cause we have, had, Grant Dahtler, his partner, his brothers who could work certain days to help us, or do some labour. So, we said we can potentially do a few days. Q. After you had that conversation with Mr Chia, did you actually attend the property, to do what you told him you could do? A. Yes. Q. Are you able to tell his Honour when that was, referrable to a year, or a month, or both? A. It was, October, 2014.
6. Mr McKenzie was unable to recall the date but stated that he attended the site to carry out this work early in the month of October 2014. He said that he was on the site for three or four consecutive days and then, after approximately four days' break, returned to the site for another two days. He said that the second tranche of days was after the Labour Day long weekend (the Labour Day public holiday fell on 6 October in 2014).
7. Mr McKenzie gave the following description of the work being undertaken on the site at the time of his arrival (at Tcpt, 22 October 2018, p 295(19-29)): Q. And could you tell his Honour, please, what you saw when you first arrived at the property at the rear side of the house? A. There were people cutting down - well, there was trees being cut down - or trees and shrubs - and-- STEIRN: Sorry, more trees and shrubs, or all trees and shrubs? HIS HONOUR Q. You meant trees and shrubs? A. Trees and shrubs, yes.
8. Mr McKenzie explained that the work he carried out was dragging trees and branches that had been cut down by Mr Edgar and his team to the top of the property where they were mulched onsite in the wood chipper.
9. On the first day he attended the site for his second job at the Carnarvon Road property, Mr McKenzie said that he saw Mr Edgar and his team carrying out the following work (at Tcpt, 22 October 2018, p 305(19-38)): Q. Insofar as concerns Mr Edgar and the workers with him, could you tell his Honour what did you see them doing on the first day that you worked there with Mr Dahtler and his two brothers? A. Cutting down, cutting back. There were, also helping us drag branches. Q. When you say cutting down or cutting back, could you tell his Honour, what did you see them cutting down? A. Trees, there were shrubs. There was a lot of clearing, so cutting back the low shrubs, exposing what was there. Q. So you've said well, I'll just ask you, if you wouldn't mind, in a neutral way to clarify. Did you see Mr Edgar or his working team cutting things that you considered to be trees? A. Yes. Q. And in giving that answer, what do you have in mind is a tree, as compared to, say, a shrub? A. A shrub is something that's sort of low, bushy, more multi branched, lower down. A tree is something with a trunk, a bit taller, straighter, as a generalisation of a tree.
10. Mr McKenzie stated that he saw similar work being carried out on the second day he was in attendance at the site but that on that day Mr Edgar and his team cut down some larger trees.
11. Mr McKenzie gave evidence that the defendant was present at the time some of this work was being carried out (at Tcpt, 22 October 2018, 307-8(46-3)): Q. And could you tell his Honour, please, when you first spoke with Mr Chia, what could you see in terms of any activities being carried out at that time in the rear of the property? A. He came in the afternoon, so when most of the work was finished. There may have just been general sort of tidying up, sort of moving branches, tidying the site, packing up. So there wasn't a lot of activity. I don't think I can't actually recall whether he came earlier, during the middle of the day or things like that, but I know it was in the end of the day, there was at least a visit.
12. Mr McKenzie stated that the defendant gave him instructions for what work he wanted carried out in the following terms (Tcpt, 22 October 2018, p 308(50) -309(26)): Q. Just tell his Honour, as best as you can recall, the substance of any discussion you had with Mr Chia at that time? A. Just discussing more so the progress, how long it was going to take us to get these sort of branches up. He was wanting to discuss with me sort of a long term plan he had for his garden that was possibly going to involve us doing actual building design work onto there. I think we sort of discussed sort of more of what he wanted to clear in the yard. Q. And what was that discussion? A. Just I think just sort of pointing and talking about sort of areas. Q. When you say that, could you just give his Honour some more detail, if you're able to, about what he said? A. Just for things like sort of Casuarinas that he could see in sort of the immediate areas, to sort of clear, then those drop areas. Q. So just pausing there, if I may. You say he was referring to certain trees that he could see? A. Yeah. Q. Were they trees that were on the ground or were they trees that were standing at that time? A. Trees that were standing. Q. And what was Mr Chia saying to you about the standing trees? A. That he would like to see those cleared. Not all of them, like, there was just certain ones.
13. Mr McKenzie described the rear of the site as being split into various "drops" or "levels": first, an area near the pond in the backyard (at Tcpt, 22 October 2018, p 297(50)); then a second drop of around two metres (at Tcpt, 22 October 2018, p 298(2)); then a third drop which was a level that continued to run down to a gully (at Tcpt, 22 October 2018, p 299(20)).
14. On the day Mr McKenzie started work on the site, he said that the clearing was taking place in the area below the first drop, being the second level or the level beneath the pond (at Tcpt, 22 October 2018, p 300(8-40)). He stated that he saw Mr Edgar and his team cutting down trees and cutting back trees including large trees. He said they were using chainsaws and tree climbers for the largest of the trees (at Tcpt, 22 October 2018, pp 305(19) - p 307(35)).
15. After this first meeting with the defendant on the site, Mr McKenzie stated that he saw the defendant attend the site on one more occasion. On that occasion, which he described as being towards the end of the first group of days he spent at the site, Mr McKenzie stated that he met the defendant on his backyard veranda. He explained the status of the work at that time as follows (at Tcpt, 22 October 2018, p 311(10-24)): Q. What was the difference in terms of the works that had been done, between the time you first met with Mr Chia up near the clothesline, and the time that you were with him on the veranda? A. I think most of the back areas had been cleared, the drop areas, down to there. They'd started doing a bit more, going further, how to describe it. Sort of, further off towards Little Diggers track, further down. In that direction. Q. So insofar as there had been a change, was it a recognisable progression in any particular direction or directions, as compared to what had been the case when you first met with Mr Chia? A. Yeah, there was, it was more sort of cleared from both areas, and moving more in a consolidated direction. If that makes sense. Sort of, it's, so the two areas which had the most of the drops, were kind of cleared. The area just below from the clothesline, closest to the house, was cleared. And then there was an area going deeper off the two.
16. In his examination-in-chief, Mr McKenzie gave the following account of the conversation he had with the defendant on the veranda (at Tcpt, 22 October 2018, p 319(1-28)): Q. Mr McKenzie, you indicated to his Honour that Mr Chia had pointed to trees and shrubs that he wanted removed that were still standing; do you recall that? A. Yes. Q. Did he describe with words the trees and shrubs that he wanted removed? A. Yes. Q. And how did he describe that in words? A. Some he would identify by name, variety. Others were also saying, "In that area," so that was more directional than words. Q. Insofar as he described some trees by variety, what variety of trees did he describe in that way? A. The Casuarinas. Q. And what did he say? A. He didn't want to see those ones from his place. Q. Whereabouts in relation to the area of the works that you've described to his Honour were the Casuarinas that you say Mr Chia told you he didn't want to see? A. They were all over the property, all down the back. Yeah, so from pretty much all across the back, going up the top. They were growing in amongst the other trees. Q. Do you recall what you said to Mr Chia, if anything, or did you say anything when he told you that he didn't want to see the Casuarinas? A. I probably said, "Okay."
17. Mr McKenzie said that the principal reason the defendant wanted the casuarina trees removed was his concern about the fire risk they presented. Mr McKenzie further said that at no time during the defendant's visit to the site did he hear the defendant intimate that trees had been cut down which he did not want cut down.
18. Mr McKenzie also gave evidence that he reported the progress of work on the site to the defendant as follows (at Tcpt, 26 October 2018, p 657(33) - 658(2)): Q. When was it that you reported progress by phone to Mr Chia as to what was being done? A. The same thing, I'm not sure. It was after the first group of days. It would have been either towards the start of the other couples of days that we were there, after the break between the two jobs ‑ the two blocks of days. Q. And when you agreed that at one stage you would report progress by phone to him as to what was being done, can you tell the Court whether that was on one occasion or more than one occasion that you reported progress by phone to him? A. It would have been one, maybe two. Q. Are you able to remember what you said to him and what he said to you, or to the effect of what you said to him and what he said to you in relation to reporting progress by phone to him? A. It would have been an update on clearing, how far we were getting. Q. And when you say how far you were getting, what do you mean by that? A. With moving the branches, clearing the site. How far we were getting up into that stage.
19. Mr McKenzie said that he was aware that the defendant was seeking to invoke the 10/50 Code but admitted that when he was interviewed by Mr Myles he mistakenly referred to it twice as the "50/10 rule". Mr Steirn asked him questions as to his understanding of the 10/50 Code as follows (at Tcpt, 25 October 2018, p 538(13-49)): Q. In fairness to you, Mr McKenzie, you had an imperfect knowledge of the rule at that time, is that correct? A. Yes. Q. In fairness to you, you weren't quite sure what the actual distance meant in relation to your work, is that correct? A. I knew to move the trees and 50 metres for shrubs. But that's. Q. But from where, the boundary? A. From the property. The first part of the building, the house. Q. Did you really think that at the time, having in mind you call it the 50/10 rule? A. I wasn't clear on the rule. Q. You weren't clear? A. No, no‑‑ Q. That's all I ask? A. Yes, yes. Q. Put it this way, you weren't clear how the rule was to be applied, is that correct? A. Yes. Q. You didn't quite know the meaning of it, and what your obligations were, is that correct? A. Yes. Q. As you said quite fairly, you measured nothing, you left the tape in the car? A. Yes. Q. You didn't see Mr Edgar measure anything, did you? A. No, I didn't see. Q. Or anybody else? A. No.
20. In cross-examination, Mr McKenzie gave evidence about a number of trees on the site which were marked with pink paint. He indicated that the fact that a tree was marked pink indicated that it was intended to be felled and stated that he was responsible for painting them (at Tcpt, 23 October 2018, p 426(33)). He gave the following evidence in relation to instructions to mark the trees (at Tcpt, 23 October 2018, p 427(9-17)): Q. Probably three or four. And do I take it that you painted those trees because you believed they could be cut down? A. No, they were pointed out. Q. By Mr Chia? A. Yes. Q. Did you measure those trees before you painted them? A. No.
21. Mr Steirn asked whether Mr McKenzie was fabricating his evidence in relation to this direction (at Tcpt, 23 October 2018, p 427(27) - 428(1)): Q. See, that's the first time you've mentioned Mr Chia pointing out trees that were painted by you; correct? That's the first time today, isn't it? A. Yes. Today, yes. Q. Because you're making it up to attribute blame to Mr Chia, aren't you? A. No. Q. Because you've got a problem: you were part of what happened on that site in the days leading up to 21 October? A. No. Q. You didn't tell Mr Myles that you were painting trees on Mr Chia's instructions, did you? A. No. Q. Did you discuss with Mr Edgar - I withdraw that. Did you tell - I take it over how many I withdraw all of those questions. Over how many days did you paint trees, Mr McKenzie? A. It would have been just occasion. Q. One occasion? A. Yes. Q. And you can't recall the date, can you? A. I can recall now where the trees are - were. So it's towards the end.
22. Mr McKenzie marked the approximate location of the trees which he marked with pink paint on an aerial image of the site, which became an exhibit in the proceedings.
23. During the second tranche of days that Mr McKenzie spent at the site (the days which he said fell after the Labour Day long weekend), Mr McKenzie stated that the defendant was not on the site whilst he was there and that the work was further progressed.
24. Mr McKenzie stated that the next time he had contact with the defendant was at the defendant's property in Killara to receive payment around two days after he finished the work. He said that the defendant asked to speak in his garage. Also present were Mr Edgar and a friend or associate of the defendant's whose name Mr McKenzie did not know. It has since been established and is uncontroversial that this man was Mr Hyden, the defendant's agent.
25. During the meeting in the garage, Mr McKenzie stated that the defendant told the group that he had received a letter from Ku-ring-gai Council but that he had not yet opened it.
26. In his examination-in-chief, Mr McKenzie described the further conversation during that meeting as follows (at Tcpt, 22 October 2018, p 331-332(31-4)). Q. What makes you say that he was concerned? A. Sorry. John Chia said, to say, that he was concerned that the work somebody had reported the work. He asked if one of us wanted to be responsible, take responsibility for the work that had been done. He would look after the financial side. Q. When you say he would look after it, we're only asking you about what Mr Chia said; do you understand? A. He said if there is a fine, he would cover the fine. Q. Sorry, did you say anything in relation to that matter? A. I was more - no, I was more just taken aback by it, because I didn't - there was no - HIS HONOUR Q. You didn't say anything? A. No.
27. Mr McKenzie stated that after this exchange, the defendant asked to see him and Mr Edgar separately. He said that it was in these separate meetings that each was paid for the work they had carried out. Mr McKenzie stated that he was paid about $1,800 in cash in an envelope.
28. There is some dispute in the case as to the time at which the meeting in the defendant's garage took place. In his examination-in-chief, Mr McKenzie gave the following account of the timing (at Tcpt, 22 October 2018, p 333(29) - 334(10)): Q. After that occasion - sorry - do you know - are you able to tell his Honour what day that meeting occurred on that was in the garage or not? A. It was either on a Sunday or late on a weekday, because it was - I thought it was on a Sunday, but it might have been - it was after hours or a day that we weren't working or in work clothes at the time. Q. Did you ever after that occasion attend the property at 53 Carnarvon Road, East Linfield? A. Yes. Q. In relation to when that meeting took place at the garage of Mr Chia's house, when did you next attend the Carnarvon Road property? A. I think it was the day that council were there. Q. Just in relation to the meeting though that occurred in the garage, how long after that meeting, are you able to say, was the occasion when you returned to 53 Carnarvon Road? A. It might have been one or two days, after that. Q. Why did you return to Carnarvon Road after that meeting? A. We were asked to tidy up, do a last bit of tidying up, on the- Q. Who asked you? A. John Chia. Q. When did he ask you? A. At the meeting in the garage. Q. What did he ask you? A. He said if, he said to me and to Craig Edgar, if you can go there and just tidy the site, remove the rest of the branches that are there. I believe it was that.
29. Mr McKenzie stated that whilst he was on his way to the site, returning pursuant to the further instructions the defendant gave him (it is accepted that he returned on 21 October 2014), he received a call from Mr Edgar (at Tcpt, 24 October 2018, p 463(42-49)): Q. You nonetheless received a phone call from Craig, is that the position? A. Yes. Q. What did Craig tell you on the phone? A. He said there were council were there, and not to come up. Q. Did he tell you why you shouldn't come up? A. He said, there's council all over the site.
30. Notwithstanding this phone call, Mr McKenzie said that he did return to the site and that when he arrived, he was stopped by officers from the prosecutor in the street. He said there were a lot of cars in the cul-de-sac of Carnarvon Road.
31. When he arrived at the site, Mr McKenzie said that a "ranger" from the prosecutor took his name, details and car registration, as well as the name and details of Mr Dahtler who was with him in the car, and then told them to leave (at Tcpt, 22 October 2018, p 334(47-49)). Mr McKenzie said that they then left and did not return to the Carnarvon Road property to complete the work.
32. Mr McKenzie gave evidence that he spoke to Mr Edgar later that day about what had transpired on the site. He said that this happened towards the end of the day and that the discussion was about "what had happened that day with the council there. It was just updating me, of the events that happened" (at Tcpt, 22 October 2018, p 335(26-27)).
33. Mr McKenzie gave evidence about further contact with Mr Edgar as follows (at Tcpt, 22 October 2018, p 335(35) - 336(1)): Q. After that occasion, did you have any further contact with Craig Edgar? A. Yes. Q. When did you have contact with Craig Edgar after that occasion, that is, after you spoke with him on the afternoon of the day that you'd been told to leave the site by the council officer? A. I believe it was probably a couple, a year, about a couple of years later. When he called me up, informed me that there was a private detective, or an investigator, rather, from the council, who wanted to talk to us. He either told me he had been interviewed, or was to be interviewed. And so that was the first, he contacted me and told me. Told me that. Q. Can you remember the substance of the discussion you had with him about that? A. It, it wasn't a huge long conversation. It was basically just about being interviewed, I think them trying to find me. Cause at the moment, I think the Ku-ring-gai council couldn't find me to notify me.
34. Mr Steirn asked Mr McKenzie whether he recalled Mr Edgar telling him that it would be good for him to speak to Mr Myles. Mr McKenzie agreed that he could remember it and described the conversation as follows (at Tcpt, 24 October 2018, p 478(12-35)): Q. What's your recollection of it? A. Yes, he informed me that I should speak to Robert Myles, sorry, Phillip Myles, Phil Myles. And it was important to do so. HIS HONOUR Q. I think the question was‑‑ A. Sorry. Q. ‑‑do you recall that Mr Edgar, coming to see you, and suggesting that it would be good for you to speak to Mr Myles, that was the question you were asked. I wasn't quite sure of your answer? A. I remember speaking to Mr Edgar. When he came to me, was when he came to do a job for me. I'm not sure of the times, the dates. Q. I think the word in the question from Mr Steirn, you said the word "good." That Mr Edgar suggested it would be good for you to call Mr Myles. That was the way it was put to you? A. Yes, your Honour. STEIRN Q. You understood his Honour's question? A. Yes, yes. He said it would be good for me to speak to Phil Myles.
35. In cross-examination, Mr Steirn accused Mr McKenzie of fabricating his account of the instructions Mr McKenzie said he received from the defendant to carry out the further work cleaning up the site at a meeting in the defendant's garage (at Tcpt, 23 October 2018, p 417(7-44)): Q. You see what you are putting to this Court is a fabrication, isn't it, in relation to what happened on the site on 21 October 2014. It's a fabrication, isn't it? A. No. Q. Because you did not attend the meeting with Mr Hyden and Mr Chia until two days later, 23 October? A. That I don't recall. I thought it was before. Q. And you knew when you attended the meeting with Mr Hyden through our conversation with Mr Edgar that the council were involved and looking at your conduct and Mr Edgar's conduct? A. No. Q. Did Mr Edgar in your presence tell Mr Chia that Edgar had already spoken to Wendy Miller? A. No. Q. You see in your record of interview with Mr Myles, you told Mr Myles that it was Wendy Miller who took your details, didn't you? A. Yes. Q. Now which version is true, that the ranger took your details or Wendy Miller took your details? A. I assumed she's the ranger. Q. Pardon? A. I call them all rangers, the council people over there.
36. Mr McKenzie gave evidence that he was not aware of the involvement of the prosecutor until he attended the meeting in the defendant's garage and that he only attended the meeting in order to be paid.
37. The prosecutor proffers as an explanation for the confusion which arises in the evidence at this point that there were in fact two meetings in the defendant's garage, one before the further tidying up which took place on 21 October 2014 and one which occurred afterwards on 23 October 2014 when the prosecutor was known to be investigating the works that had been carried out. This is discussed further below.
38. Ms Miller, on behalf of the prosecutor, sent a letter to Mr McKenzie on 9 December 2014. The letter, which is in evidence, was sent to the property in Lindfield at which the car Mr McKenzie drove to the site was registered. Mr McKenzie's father, a retired solicitor who is also named James, replied to the letter saying that he (Mr McKenzie Sr) had no knowledge of the felling of trees at the Carnarvon Road property.
39. Mr McKenzie gave evidence in respect of the letter of 9 December 2014 as follows (at Tcpt, 23 October 2018, p 432(14-49)): Q. At any stage did you discuss with your father the contents of that letter? A. No. Q. Are you saying on oath that your father at no stage after he received that letter said to you, "Son, what's this all about?" A. No, my mother dealt with it. Q. Pardon? A. My mother dealt with it and with the council. Q. Your mother dealt with it? A. Yes. My father's not well, so‑‑ HIS HONOUR Q. Mr McKenzie, did that letter come to your attention? A. Yes. Q. When? A. It would have been‑‑ Q. In respect of what may have been said by either of your parents, when did you become aware of that letter? A. Yeah. I suppose as soon as we received it in the mail. STEIRN Q. And it having come to your attention, either through your mother or your father, what did you do about it? What did you do about it? A. I sat on it. Q. Pardon? A. I did nothing about the letter. Q. You ignored it? A. Yes.
40. The following day, Mr Steirn showed Mr McKenzie three letters from the prosecutor and asked him which was the one he "sat on" (at Tcpt, 24 October 2018, p 450(23) - 451(37)): Q. It must have been one of them, obviously; correct? A. I made an assumption. Q. Yes. You assumed it was one of the letters you sat on from council? A. No, I made an assumption of what I must have done, because I couldn't remember what happened back in 2014 ‑ 15. Q. And not only did you sit on it, you did nothing about the letter and you ignored it; that's what you said. Which was the letter that you ignored, Mr McKenzie? Which was the letter that you ignored? A. I can't answer that question. Q. Pardon? A. I can't answer that. Q. But it was one of those letters, obviously, wasn't it? The copies which you brought to Court, it was one of those letters, wasn't it? A. These ones? Q. Yes. Any of the three letters from council. It must have been one of those letters, logically. A. (No verbal reply) STEIRN: Might the record show a pause. WITNESS: Okay, so I thought it was a letter that I never received. I assumed what I would have done. STEIRN Q. I will have an answer, Mr McKenzie. It must have been one of those letters of which you kept a copy ‑ in fact, the original ‑ you have the original letters from council? A. Yes. Q. Two of which were sent to your father, one addressed to you. Now, which was the letter that you sat on? A. I can't answer that question. Q. Pardon? A. I can't answer that question. Q. And you sat on it because you were concerned as to what it might have meant as far as you're concerned; correct? A. I can't answer that. Q. Pardon? A. I can't answer. STEIRN: Your Honour, I would ask the witness be directed that he answer. HIS HONOUR Q. To the best of your ability, Mr McKenzie ‑ if your concern is a presumption or an assumption in the question, you're entitled to have that clarified, but you are required to answer the questions. You made some comments earlier in relation to ‑ you used the expression yesterday, "sat on." A. Yes. Q. You may have sought to withdraw that this morning. If that's what you're doing, you say that, but at the moment counsel is assuming that your expression that you sat on it is what you did. He wishes to know which letter you sat on. If that's not your evidence and not what you did, you're entitled to say that. A. I did not sit on that letter ‑ a letter.
41. Mr McKenzie stated that when he gave evidence that he "sat on" the letter he had been making an assumption as to what must have happened. He said that he did not become aware of the letters sent by the prosecutor until he was interviewed by Mr Myles and that his father did not discuss the contents of the letters with him at any time.

The evidence of Mr Draeger

1. Mr Draeger is Mr Edgar's nephew and works with his uncle as a contractor on a frequent basis. He first worked with Mr Edgar in around 2007. He stated that he was not present at the site for the entirety of the work and estimated that he was present around 50% of the time.
2. Mr Draeger described the work that was undertaken in the following terms (at Tcpt, 26 October 2018, p 672(17-28)): Q. I want to ask you please, Mr Draeger, to describe to the Court what works you did while you were there on that site? A. On the property. Excuse me. From the start of the job it was started off as pruning some trees just on that side bit where the stairs were, as I've pointed out there. I do remember there were some trees that got pruned there. Q. You're pointing as you say that to where you've marked the line of stairs? A. Yeah. Just up there - Q. All right? A - and then the work just started to gradually get more and more with smaller removals and then started to work its way down to that bottom section.
3. In relation to the nature of the work, Mr Draeger said there was a lot of cutting and removing of trees approximately 30cm in diameter. He stated that trees were cut from the base as close to the ground as possible. He said that they were then stacked and dragged to the top of the property where they were mulched in the wood chipper.
4. Mr Draeger gave evidence that he saw the defendant on the site whilst he was working (at Tcpt, 29 October 2018, p 691(37-50)): Q. Did you ever see anyone who you understood to be the owner or occupier of the property while you were there? A. I did. Q. Do you know that person's name? A. Yes. Q. What is that person's name? A. Mr John Chia. Q. Could you tell the Court, where did you see him? A. Generally while we were doing the work, he would come down and kept on what we were doing. You know, just sort of, inform how much more he wanted done, and.
5. In the course of his examination-in-chief, Mr Draeger gave evidence in relation to instructions received from the defendant as follows (at Tcpt, 29 October 2019, p 692(26-48)): Q. When you were carrying out the works in the area that you've marked this morning as "completely cleared." Are you able to say whether you were present during any conversation between Mr Chia and Mr Edgar in that area? A. Not the majority of the time. I only heard conversations as such as, keep working, I want my money's worth, basically. Q. Who said that? A. Mr Chia. Q. Where was he when he said that? A. It's a bit hard to try and describe where he was kind of standing, at the point. Q. Doing the best you can, approximately where was he when he said that? A. He would come down, as we were working, mainly dragging the stuff up, and he'd come down and check on the work, what we were doing. He'd come down while we were sitting down, and sort of question why we were sitting down. Q. Do you recall when you first attended the subject property, the occasion? I'm not asking about a date, but do you recall the occasion when you first started working there? A. I can't recall that, to be honest with you.
6. In relation to the frequency of the defendant's attendances at the site, Mr Draeger said (at Tcpt, 29 October 2018, p 693(4-17)): Q. Are you able to tell his Honour how often Mr Chia attended the site while you were there? A. It could have been four times a week. Q. When you say, "four times a week," when you said that, did you have in mind how long the period was, when you were attending the site? A. Well, if I was working there for three days of the week, and working with someone else, he would be there the three days of me being there. Mr Edgar would tell me he's been down here, you know, approximately most of the time. Q. When Mr Chia was present, as you've described, on the site in the areas where you were working, what work had you carried out when he was present at the site? A. Pretty much all the work that was involved.
7. When asked about what, if anything, he heard the defendant say while he was at the site, Mr Draeger gave the following evidence (at Tcpt, 29 October 2018, p 693(36) - p 694(26)): Q. While you were present working on the site, did you hear Mr Chia say anything about the work? A. It was more, you know, I want more work done, I kept cutting. I didn't hear every single conversation because I was actually sort of either having a break or, you know, maintaining our equipment that we were using, chainsaws, et cetera, or filling up the chainsaws or whatever we were using with, you know, petrol, et cetera. But I just saw a lot of conversations happening, a lot of hand pointing type thing, and when I did hear conversations going on it was, "I want that cut over there. I want that cut over there," just, you know, pointing. Q. And who said that? A. Mr Chia. Q. When you were present on the site on the occasions that you could hear Mr Chia saying anything, did you ever hear him say anything to the effect of, you've cut things down that I didn't want cut down? A. No, I didn't hear that? Q. When you were present on occasions when Mr Chia was there, did you hear him say anything to the effect of, you've gone beyond what I asked you to do? A. No. Q. When Mr Chia was present on the site, down the back, are you able to tell his Honour whether you were working when he was present there? A. Yes. Q. And can you tell his Honour what you were doing when Mr Chia was present down in that back area of the site? A. Doing the land clearing out the back. Q. Do you have any idea of how many trees you cut down during that exercise? A. I couldn't give you an exact, precise number. There was quite a few, but like I said, some of the trees were the width of my finger, so very small trees. There could have been 500 of them; maybe ten at the most sort of bigger trees. Q. And when you say ten at the most bigger trees, what do you mean when you say bigger trees, when you gave that answer? A. Could have been 30 to 50 centimetres in diameter.
8. In cross-examination, Mr Steirn asked Mr Draeger about his relationship with Mr Edgar (at Tcpt, 29 October 2018, p 706(28) - p 707(9)): Q. Your evidence is that you were subcontracting for Mr Edgar? A. That is correct. Q. Who is your uncle? A. Yes. Q. How long do you say you've been working with him? A. Since 2007. Q. You still work up until today? A. That is correct. Q. You continue to get work from him on a business basis? A. Correct. Q. He gives you, what, 60% of your work? A. 60, 50, but, it could change, cause, you know, sometimes he might, might not have work for, you know, two weeks or something. So I've got work with other people. Q. I think you told Mr Myles, at that stage he was giving you - A. Yes. Q. - 50% of the work? A. Yes. Q. And you're working for him today, and up until today you're getting at least 50%? A. At least 50, yeah. Q. Possibly more? A. Yeah.
9. Mr Draeger was also asked about his understanding of the 10/50 Code. Mr Draeger stated that his understanding was that anything within 10m of your property you didn't need approval to clear but that anything within 50m "I assume that you sort of need approval" (at Tcpt, 29 October 2018, p 709(41)).
10. He gave further evidence in relation to the 10/50 Code as follows (at Tcpt, 29 October 2018, p 711(1-22)): Q. You see, I don't understand in any of your evidence that you personally measured the distances of any trees, did you? A. No. Q. Is there any reason why that never happened? A. At the end of the day I was just there to do the work, go home and get paid, really. Q. Yes, fair enough. And did you see anybody else use a tape measure to measure the distance of the trees from any particular spot or the boundary or house? A. No, nothing of that sort. Q. That wasn't done? A. No. Q. And do I take it the reason for that was you never found out about the 10‑50 rule until after council became involved? A. Pretty much, yes. Q. Is that right? A. That's correct.
11. Mr Draeger estimated that he was on the site for approximately 60% of the job, which he characterised as a "rough estimate" (at Tcpt, 29 October 2018, p 750(31)). He said that he was not sure how long the job took but that he thought "it was three months or something like that, it could have been two months" (at Tcpt, 29 October 2018, p 750(31-33)). He said that he was not present at the site for three weeks before officers from the prosecutor attended (at Tcpt, 29 October 2018, p 750(40) - 751(1)).

The evidence of Mr Dahtler

1. Grant Dahtler is Mr McKenzie's partner and gave evidence that he drove Mr McKenzie to the meeting at the defendant's Killara property. He said that he did so "once, maybe twice" (at Tcpt, 13 November 2018, p 1297(42)).
2. In cross-examination, Mr Dahtler said that the reason he was not sure about the number of times he attended the Killara property was because of the amount of time that has passed since 2014 (at Tcpt, 13 November 2018, p 1298(1-8)).

The evidence of Mr Myles

1. Mr Myles is a private investigator who was retained by the prosecutor to investigate the offences the subject of these proceedings. Prior to becoming a private investigator, Mr Myles worked for 13 years as a detective with NSW Police.
2. Two affidavits sworn by Mr Myles were read in the proceedings. The first relates to his investigations concerning Mr Edgar and Mr Draeger and the other relates to his investigations concerning Mr McKenzie.
3. On 29 July 2016, Mr Myles interviewed Mr Edgar and Mr Draeger. They were working together on that day and Mr Myles conducted separate interviews with each of them in his car. The audio recordings and transcripts of those interviews became evidence in the proceedings (albeit the use to which they could be put was limited under s 136 of the Evidence Act 1995 (NSW) ('Evidence Act'): see Ku-ring-gai Council v John David Chia (No 12) [2018] NSWLEC 184 ('Chia No 12') at [44]).
4. On 19 August 2016, Mr Myles interviewed Mr McKenzie. Mr Dahtler was also present during the interview. The audio recording and transcript of the evidence became evidence in the proceedings for a limited purpose pursuant to s 136 of the Evidence Act (see Chia No 12 at [44]).
5. In cross-examination, Mr Myles was asked by Mr Steirn about investigative techniques and approaches and agreed to the following propositions: 1. It is important to keep an open mind during investigations (at Tcpt, 29 October 2019, p 760(28-40)); 2. It is important to keep witnesses separate (at Tcpt, 29 October 2019, p 760(48)); 3. Witnesses should never be interviewed together because there is a chance of contamination and the witness with the stronger personality may overbear the witness with the weaker personality (at Tcpt, 29 October 2019, p 760(50) - p 761(6)); 4. Witnesses should be put in separate rooms so they cannot talk to each other to ensure that they give their version of events and not an amalgamated version (at Tcpt, 29 October 2019, p 761(18-30)); 5. It is important not to suggest material to witnesses as to do so may influence what they say and deprive the investigator of the ability to check what the witnesses actually know (at Tcpt, 29 October 2019, p 761(28-40)); 6. By imparting information to a witness, he or she is put on notice in relation to specific issues which may mean that a complete and independent version of what occurred cannot be obtained (at Tcpt, 29 October 2019, p 761(38) - p 762(4)); 7. He would not allow Witness A to "infect" Witness B with a different version of events (at Tcpt, 29 October 2019, p 762(10-15)); 8. Where it is within his control, he would not allow Witness A to come into contact with Witness B unless he had an independent version of facts from each of them (at Tcpt, 29 October 2019, p 762(25-41)); 9. He would interview witnesses separately "so I don't contaminate what each other says. So I get individual information from each person. Their record of events" (at Tcpt, 30 October 2019, p 810(13-14)); and 10. If he ever became aware during an interview that multiple witnesses were present, he would separate them straight away (at Tcpt, 30 October 2019, p 810(48-49)).
6. Mr Myles agreed that when he was retained by the prosecutor in January 2016, the prosecutor was experiencing difficulty in locating each of Mr Edgar and Mr McKenzie. As noted above, the prosecutor's attempts to contact Mr McKenzie had resulted in a letter being sent by Mr McKenzie's father, a retired solicitor also named James McKenzie. Mr McKenzie Sr informed the prosecutor that he had no knowledge of the commission of the offence.
7. On 15 July 2016, Mr Myles had a phone conversation with Mr Edgar in which Mr Edgar asked Mr Myles if he had made contact with Mr McKenzie. Mr Myles was cross-examined about this conversation, by reference to one of his affidavits, as follows (at Tcpt, 30 October 2018, p 808(16-39)): Q. Page 3 at the top of the page, the last sentence in the first paragraph, you said, "Do you have some time next week for me to speak with you?" Do you see that? A. Yes. Q. And Craig says, "Yes, I have some time. Have you spoken with James?" Do you see that? A. Yes. Q. And you said, "No, not yet, but I would like to speak with James as well." And then Craig says, "We can both speak with you at the same time." Do you see that? A. Yes. Q. That's a bit odd, isn't it, for a potential witness to say that to you? A. Not ‑ but I clarified that below by saying, "We can, but I still need to speak with you separately," so you know, that's ‑ if they both‑‑ Q. In fact‑‑ A. Yes? Q. I'm going to take you to that now. Your answer was, "We can, but I will still need to speak with each of you separately." A. Yes.
8. On 29 July 2016, in the course of interviewing Mr Edgar, Mr Myles asked Mr Edgar whether he had contacted Mr McKenzie, whom Mr Myles was still experiencing some difficulty in locating. He was asked about this in cross-examination (at Tcpt, 30 October 2018, p 783(22-45)): Q. If I can continue with paragraph 10. You'll see there, Mr Edgar says to you, "He says he's got no problems speaking with you, but don't give him my phone number out." You then said, "Okay, it would be good to speak with him. He may be able to corroborate what was said." Do you see that? A. Yeah. Q. You meant by that, that he, Mr McKenzie, could corroborate Mr Edgar as to what was said at a material time? A. That's correct. Q. Mr Edgar replied, "If we are in the right, what's going to happen with John?" Do you see that answer? A. Yes. Q. You agreed that when he says, "If we are in the right," he's talking about he and Mr McKenzie? A. I could assume that that's what he may have meant. Q. Given the previous question by you? A. Yes, yes. Q. Then he went on to say, "What's going to happen with John," and you understood him to mean Mr John Chia? A. That's correct.
9. Mr Steirn asked Mr Myles whether, with the benefit of hindsight, it would have been better not to use the word "corroborate" (at Tcpt, 30 October 2018, p 797(26-50)): Q. Mr Myles, I'm putting this question to you: you knew the effect it would have on both Mr Edgar and Mr McKenzie, using those words in getting their heads together? A. No. Q. You knew that, didn't you? A. No. Q. Yes. Do you agree, at the very least, it might be taken by Mr Edgar as an encouragement to get Mr McKenzie to corroborate him? A. No. Q. Do you agree, with the benefit of hindsight, it would have been wise not to have used those words in the context of attempting to interview Mr McKenzie, with the benefit of hindsight? A. It may have been a better choice of words could have been used. Q. Why? A. Well, because you're saying ‑ you're saying that‑‑ Q. Now I'm asking you why. A. Yes, but you're saying that it appears that the words ‑ that from those words that McKenzie and Edgar might have got their heads together, when I say corroborate what was said. So maybe for the Court's purposes it might have been better to use a different word.
10. On 1 August 2018, Mr Myles texted Mr Edgar noting that Mr McKenzie had not contacted him. He was cross-examined on this point as follows (at Tcpt, 30 October 2018, p 784(1-23)): Q. On 1 August 2016, you were still looking for Mr McKenzie, it would appear, that's some two days later, because you text Craig Edgar, and said, "Hello Craig, James has not contacted me. It would be helpful if I could speak with him. Thanks, regards, Phil." Do you see that? A. Yes. Q. I take it you still did not have Mr McKenzie's number? A. No, Mr McKenzie's number was there, cause it was on his website, back in February. Q. Why didn't you ring it yourself? A. I, I - Q. What prevented you from ringing it yourself? A. Well, nothing, really. Q. Don't you understand, and having interviewed Mr Edgar, and then using Mr Edgar as a conduit to Mr McKenzie, Mr Edgar and Mr McKenzie may talk about what happened? A. That's a possibility, yes. Q. And there's a danger of contamination, if they get their heads together? A. That is a possibility.
11. On 2 August 2016, Mr Myles received a phone call from Mr Edgar. Mr Myles made a contemporaneous file note of the conversation which he read onto the transcript (at Tcpt, 30 October 2018, p 788(28-36)): "Received phone call from Craig Edgar. I spoke with James McKenzie. He told me that he was too busy to contact you yesterday. I told him that he needs to speak with you to get the whole thing resolved as soon as possible. John Chia is trying to blame us. I told him all he has to do is to tell Phil your side of the story, that's all he wants. I said, yes, I would like to speak with James as soon as I can and arrange an interview with him. Craig: James told me that he will contact you. I said, that's good. I will contact you tomorrow afternoon if I don't hear from you."
12. Mr Steirn asked Mr Myles about this phone conversation whereupon Mr Myles gave evidence as follows (at Tcpt, 30 October 2018, p 789(12-40)): Q. And as an investigator of some 15 years, there are two things which you would be concerned about, would you not: first of all, he and McKenzie have obviously discussed the matter for Mr Edgar to tell you that Chia was trying to blame both of them; do you agree with that as a matter of logic? A. That could be a possibility, yes. Q. And it's also a possibility for contamination, isn't it, both of them getting their heads together before McKenzie speaks to you? A. That could be a possibility. Q. Yes. And he goes on to say, "I told him all he has to do is to tell Phil your side of the story, that's all he wants." Now, you could read into that as an investigator that he and Edgar have discussed what McKenzie might say to you? A. No, I wouldn't say that. Q. What else could it mean, given the context and tenor of what you've just read out? A. Well, to tell me what his version of events are. That's not‑‑ Q. Yes, after ‑ after‑‑ HOWARD: Sorry, he hadn't finished his answer. STEIRN Q. I'm sorry, I didn't mean to cut you off. I apologise, Mr Myles. A. Yes. To tell me his version of events, that was all. I don't read anything into that at all.
13. Mr Myles texted Mr Edgar again on 4 August 2016 saying that Mr McKenzie had still not contacted him. Mr Steirn asked what prevented Mr Myles from contacting Mr McKenzie directly (at Tcpt, 30 October 2016, p 786(10-31)): Q. What prevented you from doing it? A. I think, vaguely now ‑ and I can't say this is correct ‑ I know that when council contacted ‑ or attempted to contact him earlier in regard to an interview, his father had sent back a message, he was a retired solicitor, a fairly strongly worded message, so I think I might have been concerned about trying to do it in a way where McKenzie was comfortable with speaking with me, so ‑ and the conduit to that would have been Craig Edgar, so I went through him. Q. I understand your point about the letter by McKenzie's father, but what I don't understand is why you did not phone him directly on the number you already had. That's what I don't understand. A. Look, I can't recall. Q. Pardon? A. I can't recall. Q. That would have been the better approach, wouldn't it? A. Well, I did speak with him later by phone. Q. No, I understand that. A. But, look, I can't recall.
14. At around 10:00am on 4 August 2016, Mr McKenzie called Mr Myles. Mr Myles gave evidence of that conversation as follows (at Tcpt, 30 October 2018, p 791(1-33)): Q. Could you read out your note of the conversation between yourself and he in relation to the first phone call, if you will? A. Yes. So, "James McKenzie contacted me on his mobile phone. He said, 'Hello, it's James McKenzie.' I said, 'Hello, James, thank you for contacting me. I want to speak‑‑ Q. Slowly, please? A. "'I want to speak with you about work at 53 Carnarvon Road Roseville, in late September, early October, where trees were removed from that property. Either side of the property, and rear on Roseville golf course. I want to do a record of interview which will be electronically recorded. I'll provide you with a copy of the record of interview.' McKenzie said, 'I probably can't tell you much.' I said, 'I just want the facts about the work.'" Q. I'll stop you there. Would you agree, given what you already knew, and given your interview with Mr Edgar, at the very least, Mr McKenzie was pretending not to know much? A. To be, I don't think I'm in a position to answer that question, because I don't know what was on his mind at the time, so I don't know. And‑‑ Q. You accepted Mr Edgar's version, who implicates Mr McKenzie in being on the site at material times. The fact that Mr McKenzie's saying "I can't tell you much" is inconsistent with Mr Edgar's version, is it not? A. Well, yes, with Edgar's version, it is inconsistent, yes. Q. Then he rang you back at 10.37, did he not? A. That's correct. He didn't ring me back, it was a text message. Q. Would you read out the text? A. "Hi Phil, I'm unable to assist you in this matter, James."
15. On 5 August 2016, Mr Myles sent another text message to Mr Edgar. He gave evidence in relation to that message as follows (Tcpt, 30 October 2018, p 792(11-35)): Q. Can I now show you a further text message by you to Mr Edgar? A. Yes. Q. Dated Friday, 5 August, at 3.06pm. Would you read out your text message to Mr Edgar on Friday, 5 August at 3.06pm? A. "Hello Craig, James rang me yesterday, I spoke about doing an interview. He told me that he would contact me later in the afternoon, once he'd planned his work he has. He sent me a text a little over half an hour later, informing me that he cannot assist me. However I will still need to speak with James. I thought he may have been a little more obliging. Regards, Phil." Q. Again, you reverted to using Mr Edgar as a conduit, do you agree with that? A. Yes. Q. Why did you use Mr Edgar as a conduit, given you'd already spoken to him yourself? A. Look, I don't know whether, I don't know. I can't recall. Q. You're really facilitating for McKenzie to get on side with Edgar, by using Edgar as a conduit, aren't you? A. No, not really.
16. Mr Myles confirmed that he had a copy of the file note Ms Miller prepared in respect of her conversation with Mr Edgar when she first attended the site. Mr Myles agreed that he had not asked Mr Edgar about any of the things he said to Ms Miller on that occasion and further agreed that the account Mr Edgar gave Ms Miller could not stand with the answers he gave in his interview with Mr Myles.
17. Mr Myles gave evidence that, during the course of his interview with Mr Edgar on 29 July 2016, which took place in Mr Myles' car adjacent to a property in Woollahra where Mr Edgar and Mr Draeger were working, he showed Mr Edgar an aerial photograph of the site after it had been cleared and asked Mr Edgar to mark the areas which he had cleared. He showed the same photograph including the markings which Mr Edgar had made to Mr Draeger during his interview with the latter which Mr Myles conducted immediately after his interview with Mr Edgar. Mr Steirn cross-examined Mr Myles about the propriety of this approach as follows (at Tcpt, 20 November 2018, p 823(48) - p 824(33)): Q. Then you go on and say, "So that's where it's already marked by Craig. So there is red biro there marked by Craig and blue biro marked by Craig as well where he said that the area was cleared." Then you say, "Is that the area that was cleared?"; do you see that? A. Yes. Q. Asking for his answer? A. Yes. Q. You've already given him Craig's answer? A. Yes. Q. Do you think that might lead to contamination? A. I thought he might have showed me whether there were additional areas, that's all. Q. Pardon? A. I thought he may have showed me any additional areas that have been cleared. Q. Yes. But you've already assisted him by putting to Mr Draeger Mr Edgar's version, had you not? A. That's correct. Q. And don't you think that might amount to contamination in relation to a material issue? A. It may do. Q. Yes. In relation to how much was cleared or how little was cleared? A. It could do, yes. Q. Yes. And with the benefit of hindsight, do you agree that should not have been done? I'm not sure why you're smiling, Mr Myles, it's a serious question. A. Well, because, Mr Steirn, I showed him a map that was marked by Mr Edgar.
18. When pressed why he did not use a clean copy of the aerial photograph when interviewing Mr Draeger, Mr Myles gave the following evidence (at Tcpt, 30 October 2018, p 826(7-29)): Q. Given the importance of the issue in relation to what was cleared, what prevented you from using another copy, a clean copy, when showing Mr Draeger? A. I don't think I had another copy of the map at the time. I don't recall having another map. Q. But you knew you were going to interview Mr Draeger? A. Yes. Q. Yes? A. No, I didn't. No, I didn't. Q. All right. But it would have been easy enough to obtain another copy given your position as an inquiry agent? A. Well, not at the time. I was out in the field. I was out at a location where Mr Draeger was clearing trees from a property at Woollahra. I wasn't aware where Mr Edgar was. I wasn't aware that Draeger had been to the property at 53 Carnarvon Road until that morning, until I spoke to Edgar on the side of the road. Q. So I take it from that answer, if you had a clean copy you would have used it? A. If I had a clean copy I could have used it, yes.
19. Mr Steirn asked Mr Myles why he allowed Mr Dahtler to be present whilst he interviewed Mr McKenzie. Mr Myles agreed that he knew that Mr Dahtler was a work colleague of Mr McKenzie but said he did not know that Mr Dahtler had been at the site at material times.
20. The fact that Mr Dahtler had been at the site emerged during Mr Myles' interview with Messrs McKenzie and Dahtler. Mr Steirn asked Mr Myles about that as follows (at Tcpt, 30 October 2018, p 841(1-12)): Q. By that stage, it was abundantly clear that Dahtler was also present at material times, do you agree with that? A. Yes. Q. What prevented you from terminating the interview until such time as Mr Dahtler removed himself from the interview room? A. Nothing. Q. Do you understand that by allowing him to remain, he could possible contaminate the interview by answering questions in front of, or in the hearing of, Mr McKenzie? A. That could be a possibility.
21. Mr Myles agreed that he showed Mr McKenzie and Mr Dahtler a copy of the aerial photograph which had been marked by Mr Edgar in the course of Mr McKenzie's interview and agreed that certain contributions made by Mr Dahtler "could be" contamination of Mr McKenzie's evidence (at Tcpt, 30 October 2018, p 860(38)) and that Mr Dahtler was "peppering" the interview "with salient points at different times" (at Tcpt, 30 October 2018, p 861(40-42)).
22. In re-examination, Mr Howard asked Mr Myles his perception as to whether collusion had taken place in respect of his interview with Mr Edgar (at Tcpt, 31 October 2018, p 901(5-10)): Q. I'd like you to read as much of that interview of Mr Edgar, the transcript of which you have as MFI 7, as you need to, to tell his Honour whether anything of what Mr Edgar said to you, was suggestive in your mind of him having colluded with Mr McKenzie? A. There is nothing in there, your Honour, that would cause me to think that there has been collusion between McKenzie and Edgar.

The evidence of Ms Miller

1. Ms Miller is a tree management officer employed by the prosecutor and the officer at the prosecutor in charge of the investigation of the offences. In her affidavit of 29 September 2016, she deposed that she first became aware of the tree clearing at the site when she received a complaint from a local resident, Mr Rice, on 13 October 2014. She attended the site on 16 October 2014 and observed that trees had been felled. Later that day, after checking that there had been no approvals granted for the works at the site, she issued a "stop work" order which she hand-delivered to the defendant's home address in Killara.
2. She attended the site again on 21 October 2014 accompanied by a number of other officers from the prosecutor who assisted her to tag and photograph the stumps of all of the trees that had been felled. Ms Miller recorded in her affidavit that when she attended the site on that occasion the trees appeared to have been felled recently as evidenced by fresh wood shavings, sap staining and the colour of the timber stumps.
3. The trees the subject of the charge in these proceedings are those which had a diameter of over 150mm and were therefore protected by the TPO. Ms Miller said that 10 of the 74 tree stumps were marked with pink paint.
4. Ms Miller said that she instructed a surveying firm, Degotardi, Smith & Partners, to prepare a survey which showed the location of each tree stump tagged by officers from the prosecutor. In Court, Ms Miller marked on the map each of the 10 tree stumps which according to her observations on the site were marked with pink paint.
5. After the preparation of the survey, Ms Miller returned to the site and measured the distance between each of the trees that had been removed closest to the house and the external wall of the house. The trees she measured were trees numbered 63, 75, 101, 102 and 104 on the survey. She stated that none of these trees was situated within 10m of an external wall of the residence at the Carnarvon Road property.
6. Ms Miller gave evidence that she spoke to Mr Edgar on 21 October 2014 when she attended the site. She gave evidence of this conversation in cross-examination as follows (at Tcpt, 5 November 2018, p 1047(23) - 1048(5)): Q. Do you see there you caution him as to his right to be silent - I understand that - then you went on to say, "Can you tell me what you're doing here?" and Mr Edgar said, "I'm waiting for the owner to arrive," and you said, "Who are you waiting for?" and he said, "John." A. Yes. Q. Can I suggest to you that on 21 October 2014 at no stage whilst you were there did Mr Chia arrive at the property, did he? A. I did not see Mr Chia. Q. You then asked him his full name, his contact number? A. Yes. Q. And other details, and then at paragraph 26 you said, "Who do you work for, Craig?" and he said, "Expert Trees, it's my business," and then you asked him this question, "Thank you, Craig, so can you tell me what's happening here, how long have you been working at this property?" and he said, "We started here a week ago but I haven't been to the site before today." Do you see that? A. Yes. Q. And he then went on to say, "We're felling a Casuarina within 10 metres of the house, which is okay." Is it fair to say that when you did your own investigation there was no Casuarinas cut down within 10 metres of the house, were there? A. No. Q. Pardon? A. Not within the dwelling - no, not within 10 metres of the dwelling.
7. She gave further evidence of her conversation with Mr Edgar as follows (at Tcpt, 5 November 2018, p 1060(19-35)): Q. Just on that point, Ms Miller, Mr Edgar said, "We didn't remove any trees on the lower section at any time, just small shrubs. The trees down the lower section are not from us." See that? A. Yes. Q. And then you said okay to that and then he said, "I'm not going to give any more information about this. We were here Saturday and no‑one asked us to stop working." Do I take it you would have asked him further questions but for that statement by him? I mean, you were interested in getting information so obviously you would have asked him further questions, correct? A. It was ‑ I think from the interview that I had with Craig I was getting this amount of information and he was ‑ my opinion of him was starting to get a little unsettled or just maybe uncomfortable perhaps, so I was just trying to get as much as I could in what was, I thought could be‑‑ Q. Achieved? A. At that time.
8. While she was at the site on 21 October 2014, Ms Miller stated that she saw a person talking to Mr Edgar upon her arrival. This evidence is discussed later in the judgment in the context of a submission made by the defendant about the credibility of each of Mr Edgar and Mr McKenzie. Ms Miller gave the following evidence in cross-examination (at Tcpt, 5 November 2018, p 1067(36) - 1068(24)): Q. And your observation was that you saw Mr Edgar walking around the property of sorry, you saw the driver of the Nissan Navarra walking around the property of 53 Carnarvon Road with Mr Craig Edgar? A. Yes. Q. And that was the truth, wasn't it? A. I was referring to the top section of the property, yes. Q. I'm not suggesting where he was, but he was walking around with him, wasn't he? A. He was at the top of the property with him, yes. Q. Walking around with Mr Edgar? A. Yes. Q. Now, did you speak to Mr McKenzie at the time you saw him walking around with Mr Edgar, whether he was at the top of the property or down on the property? A. No. Q. Did any other council member speak to Mr McKenzie? A. I'm not aware of that. Q. Who was in charge of the group of council officers who came to the property? A. I don't believe that there was anybody in charge specifically, but I was managing what was occurring on the property. Q. And you asked these people from council to come with you? A. Yes. Q. Yes. You spoke to Mr Edgar; correct? A. Yes. Q. Do you recall personally ever speaking to Mr McKenzie? A. No. Q. Do you recall any member of your group speaking to Mr McKenzie? A. No.
9. Later in Ms Miller's cross-examination, she identified the person who was speaking to Mr Edgar at the top of the property as Mr McKenzie in the following exchange (at Tcpt, 6 November 2018, p 1132(4-23)): Q. Yes. The only person you spoke to was Mr Edgar? A. Yes. Q. Do you know where that other person went whilst you were speaking to Mr Edgar? Did he leave? What did he do, can you recall? Just think for a moment. A. Mr Steirn, I'm not sure. Q. We're talking about‑‑ A. Are we talking about the man with the‑‑ Q. ‑‑Mr McKenzie, who was in the car ‑ in the other car? A. I was talking to Mr Edgar down at the ‑ down further behind the house and I saw Mr Edgar talking to‑‑ Q. Mr McKenzie? A. ‑‑Mr McKenzie at the top.
10. However, in re-examination, Ms Miller gave the following account of this person (at Tcpt, 6 November 2018, p 1159(17-31)): Q. As recorded in the transcript at 1047 lines 10 and following you told the Court that there was a man using some sort of blower who was smoking a cigarette with a face mask on his head? A. Yes. Q. And I think you cleared up what you meant by that that it was one of those dust masks which the guy had moved from his face up to his head? A. Yes. Q. You've told the Court, I understand today, that you didn't speak with that man, is that right? A. No. Q. Do you know who he is? A. No.
11. Mr Howard asked her further questions on this point as follows (at Tcpt, 6 November 2018, p 1169(33) - 1170(6)): Q. When you agreed that to the best of your recollection this was the driver of the Nissan Navara, on what basis did you recall he was the driver of the Nissan Navara; how did you know that? A. Because he was sitting in the vehicle when we came up; he was sitting in the vehicle. Q. Whereabouts was the vehicle? A. The vehicle was facing towards Little Diggers track. Q. On the street? A. On the street. Q. As you sit here now, have you ever seen James McKenzie? A. Not that I recall, no. Q. Do you know what he looks like? A. Roughly, yes. Q. Do you know whether the person that you saw that you saw in the driver's seat of the black Navara is or is not James McKenzie? A. No. Q. When you say no? A. No, I don't know that that is James McKenzie.
12. Finally, Mr Howard asked her the following questions in relation to this point (at Tcpt, 6 November 2018, p 1170(37-45)): Q. You remember being asked this question, "Do you recall any member of your group speaking to Mr McKenzie?" and you said no, do you remember that? A. Yes. Q. What I'm asking you is this, is it possible that a member of your group may have spoken to a person you're referring to in that answer as Mr McKenzie while you were doing something somewhere else on the site? A. Possibly.
13. After her attendances at the site, Ms Miller experienced difficulties in locating each of Mr Edgar and Mr McKenzie. She had taken Mr Edgar's address from his licence only to find that he no longer lived there. From Mr McKenzie's licence plate she obtained the address at which his vehicle was registered but this also proved fruitless (as noted above, Mr McKenzie's father replied to a letter sent by the prosecutor saying he had no knowledge of the tree clearing). Subsequently, in January 2016, Ms Miller retained Mr Myles to locate Mr Edgar and Mr McKenzie.

The evidence of Mr Hutton

1. Mr Hutton is a builder who was engaged by the defendant to carry out remedial work at the Carnarvon Road property after it had been damaged by fire some time before the incident the subject of these proceedings. He gave evidence that the works with which he was involved included the installation of a heavy structural beam in two parts.
2. When at the site to carry out the work, Mr Hutton described the Carnarvon Road property in the following terms (at Tcpt, 2 November 2018, p 1015(41 - 1016(10)): Q. And you were concerned that for jobs to go ahead from your point of view from a building safety point of view the area had to be cleared? A. Some sort of brush vegetation, yeah, there was, it had sort of been maintained, it looked like it had been maintained fairly regularly so it wasn't overly bushy, but yeah, there was shrubs and things Q. Did it look like it was ready to be cleaned up again? A. Not, no not particularly, we would have needed to clear a couple of things to get access to get the beam around. Q. What sort of things can you remember? A. Just off hand as I said, more, more to be like a shrubs rather than anything large, I mean there wasn't any large gum trees or anything like that in the road, it was more to do with sort of you know bushy type stuff that would get in the road of getting through. Q. And from your point of view did you tell Mr Chia you were concerned about trip hazards? A. Well when you're carrying that sort of weight with that many people manhandling you need to have it reasonably clear.
3. Mr Hutton gave evidence that the defendant had considered building an extension to the dwelling at one stage which would have been an addition on the courtyard side of the house. An inquiry was made of a town planner as to whether a development application would be required for that work. Mr Hutton said that if it were the case that a development application would be required, the defendant would not have pursued the idea of an extension, but if it had been complying development he may have considered it.
4. Mr Steirn asked Mr Hutton about the defendant's reluctance to go ahead with the development application process (at Tcpt, 2 November 2018, p 1017(29-37)): Q. Eventually for reasons I think you might have indicated, John did not go ahead with a DA did he? A. No, because I think because of the bushfire rating it was about or was a flame, what they call flame area I think it's is, bale(?) 40 [sic], something like that or frame. Q. And what is your understanding as to why Mr Chia did not go ahead? A. Because it would have incurred a lot of cost to build to that fire rating standard is a fair bit of extra cost involved.
5. In early 2014, Mr Hutton called Mr Willis, a bushfire expert with whom he had worked previously, to ask if Mr Willis would be interested in carrying out a bushfire assessment of the Carnarvon Road property.
6. Mr Steirn asked some questions about Mr Hutton's impression of the defendant. Mr Hutton gave evidence as follows (at Tcpt, 2 November 2018, p 1016(9-43)): Q. How long did you do work for him? A. Well pretty much from the time we came on site to look at the initial damage, we started probably six or eight weeks after that to start to do some remedial. Q. And how did you find him to deal with, firstly on a business basis? A. I have no problems John is a very astute, very reasonable and fair man. Q. Yes. And when you say reasonable and fair why do you say that? A. He's generally very thorough in what he does like if he's looking at something he generally looks at all aspects. Q. Was that your impression of him, was it? A. Yeah. Q. When you say, "generally very thorough," what do you mean by that, in what respects? A. Well, we had meetings to look to, planning meetings to try to get the project perspective accurate, and how it should be, or how we wanted it to be. Q. When you say, "how he wanted it to be," did he leave it to you to make sure what was to be done? A. I think there was a number of people involved, because some of the stuff, I don't have the expertise on all things. So, if we needed some input, I think we looked in the places where we could get the right advice. Q. Was it your understanding that Mr Chia expected you to obey the regulations, obey the rules? A. Well, that's part of my profession, to go by the BCA, the Building Code of Australia. I've got to have a fairly good knowledge of it, but not every aspect do we have a, you know, an intimate knowledge of it. Q. Was it your understanding that Mr Chia left it to you to follow the rules and regulations in your profession? A. In my profession, yeah.
7. Mr Hutton gave further evidence about this in re-examination, saying (at Tcpt, 2 November 2018, p 1022(1-15)): Q. Do you remember answering a question Mr Steirn asked you by saying that Mr Chia was thorough in what he did? A. I won't ‑ I won't ‑ I can't say about everything in life but I mean in building possibly not because it's not his profession. But I found he generally asked a lot of questions, he generally would look for information, he did research, yeah. It wasn't just something he sort of took off the top of his head normally. Q. And you said at one stage in the same context that you would have planning meetings, is that right? A. Well for the things that we were planning to do, yeah, we'd sit down and we might do a four hour meeting where we said, okay, all the elements that we were looking at doing and what are the best options, who do we get ‑ if we don't have the information or answer who do we get it from, yeah. So generally, you know, thorough in the way he went about trying to do what he did.

The evidence of Mr Willis

1. Mr Willis was the bushfire expert engaged in early 2014 to prepare a bushfire risk hazard assessment for the Carnarvon Road property which was to be submitted as part of a development application to repair the part of the house which had been damaged by fire.
2. Mr Willis prepared two reports. The first report was prepared on 3 March 2014 and concluded that the house on the Carnarvon Road property was in a "high risk flame zone" and that clearing to a 25m setback to the south of the property was required in order to comply with the Building Code of Australia and the relevant Australian Standard and Planning for Bushfire Protection 2009.
3. In Mr Willis' second report, which was prepared on 7 November 2014 (after the clearing the subject of the charge had been carried out), Mr Willis concluded that, notwithstanding the clearing which had been carried out, the dwelling was still within the flame zone and recommended that 39m to the south of the Carnarvon Road property be cleared, including 25m within the defendant's property and 14m outside the property.

The evidence of Mr Robertson

1. Mr Robertson is the general manager of Roseville Golf Club, a position which he has held since February 2012. He gave evidence that he was contacted by the prosecutor on 20 October 2014 in relation to the unlawful clearing of land belonging to the golf club.
2. Mr Robertson said that he never gave the defendant consent to remove any trees from the golf club land and that, to the best of his knowledge, the defendant did not receive consent or approval from any other members of the golf club.
3. He attended the site with his course superintendent and described the clearing as follows (at Tcpt, 5 November 2018, p 1085(35-39)): Q. What did you see when you say there was a clearing, what did you actually see? A. We saw freshly cut down trees, we saw a bundling together of those offcuts, we saw many of those offcuts pushed into a creek that runs through our property and it was a very, very extensive clearing of land.
4. On 21 October 2014, Mr Robertson said he received a phone call from the defendant. He said that the conversation took place at approximately 4:30pm and that he made a file note of it at about 5:00pm on the same day. He described the conversation in the following terms (at Tcpt, 5 November 2018, p 1088(20-25)): A. Mr Chia introduced himself as a concerned resident of Carnarvon Avenue. He was concerned about the need to clear property at the rear of his property for bushfire reasons. I asked Mr Chia which was his property. He explained that it was 53 Carnarvon Avenue. I told him that we were very concerned about the clearing of land that had already occurred there. He did not answer that and I don't recall how the conversation finished.
5. Mr Steirn asked Mr Robertson the following questions about his phone conversation with the defendant in cross-examination (at Tcpt, 6 November 2018, p 1114(46) - 1115(47)): Q. Yes. And you said a number of things, but in particular, he said this to you and this is what you told the council officers "He went on to say that he had an arrangement in place with certain board members that goes back to the mid 80s which allowed for regular clearing of bush fire hazard," and you go on to say, "I can't recall if he mentioned any particular board members and it wouldn't have been relevant anyway as I could not determine whether the conversation took place." But the point of all this, he did speak to you and explain to you that he had permission from certain board members; do you see that? A. Yes, I do. Q. Do you recall him giving you any name, or names, of board members? A. No, I don't.
6. Mr Robertson agreed that an "HJ Sykes" appears on the Roseville Golf Club honour board as club captain between 1987 and 1994 and as president from 1995 to 1998. He stated that the honour board is accurate and that there is no reason to doubt its authenticity.
7. Mr Steirn asked the following questions about the defendant's account which he gave in the phone conversation of 21 October 2014 as to how the clearing took place (at Tcpt, 6 November 2018, p 1121(45) - 1122(5)): Q. And according to your interview, you say this, "Mr Hyden and Mr Chia were not acknowledging that works were undertaken by him," then he goes on to say that, "It was a contractor who exceeded his instructions." I take it by that, Mr Chia told you that the contractors had exceeded his directions? I'm only reading what you've got there. A. Yes, if I've said that at that point in time, then that would be correct, yes. Q. Yes. And that's what he told you at the time? A. Yes. Q. On 21 October 2014? A. Correct.
8. There was some confusion as to whether this explanation had been proffered to Mr Robertson by the defendant or Mr Hyden. This was clarified as follows (at Tcpt, 6 November 2018, p 1127(29-32)): Q. Is it your best recollection that [the defendant] said [in the telephone conversation on 21 October 2014] words to the effect that he had left verbal instructions with his contractor which had gone awry with the amount of clearing? A. Yes.
9. Mr Robertson gave evidence that all the golf club's neighbours along Carnarvon Road had extended their backyards onto land owned by the golf club to varying extents, including extending their lawn areas from between five and 15 to 30m onto the golf club's land. Mr Robertson described the procedures of the golf club in relation to such requests as follows (at Tcpt, 6 November 2018, p 1129(46) - 1130(2)): Q. Tell his Honour please what the process or procedure is? A. A neighbour would contact me at the golf club, we would discuss what the neighbour wants to do, we would determine the impact on our property and if we could see little or no impact on our property we would agree with the neighbour proceeding.
10. Mr Robertson stated that he never received such a request in relation to the clearing of land at the rear of the Carnarvon Road property.

The evidence of Mr Hyden

1. Mr Hyden acted as an agent of the defendant in relation to the matters the subject of the proceedings. He has known the defendant since their sons went to school together some 25 years ago and Mr Hyden, who worked as an engineer, was involved in some small construction projects at the Carnarvon Road property in the intervening period.
2. Mr Hyden was appointed as the defendant's agent on 23 October 2014. The defendant phoned him that morning at around 8:00am and explained to him that the prosecutor was investigating works at the Carnarvon Road property (at Tcpt, 12 November 2018, p 1182(39) - 1183(10)): Q. Could you tell his Honour please what were the circumstances in which you were appointed by Mr Chia as his agent in the terms of that letter of 23 October 2014? A. Well, Mr Chia rang me in the morning of that day and explained that he had it'd come to his attention that some clearing works that he'd had some ..(not transcribable).. works that he'd commissioned contractors to do and I guess come to the attention of the council. He explained that he'd received a phone call on the 21st. STEIRN: Could Mr Hyden keep his voice up please. WITNESS: Sorry. He'd received a telephone call on 21 October from one of the contractors advising him that they'd been at the site and the council had come around and asked them to stop what they were doing and leave the area. So that was the reason for the call, and he had used my advice before and this was another occasion where - albeit infrequently - that he wanted me to assist him particularly as he had been recently overseas and intended to be overseas in the very near future again for business and felt that I could be assisting him on the spot, responding to telephone calls and correspondence that ..(not transcribable).. thought it was likely to be engaged with council ..(not transcribable).. John had also, on the same day, called the golf course general manager so that there was a second concerned party to be contacted.
3. Mr Hyden said that, later on 23 October 2014, he attended a meeting in the garage of the defendant's property at Killara. The defendant showed him a letter which was marked with the prosecutor's logo and which was unopened. It transpired that this letter was the "stop work" letter dated 16 October 2014 which had been delivered by Ms Miller. Mr Hyden said that the defendant told him he did not know when it had been received. Mr Hyden opened the letter at about 3:00pm or 4:00pm on 23 October 2014.
4. In cross-examination, Mr Hyden gave the following evidence about opening the letter from the prosecutor (at Tcpt, 12 November 2018, p 1212(23) - 1213(16)): Q. What your understanding was, he told you he believed it might have been a rate notice? A. He, as all residents have that frequently are receiving letters from the council, he‑‑ Q. I understand why but is that what he told you? A. He didn't ‑ he didn't have a ‑ a mind that it was anything untoward. Q. Yes, because it was, as you say, another letter from council? A. Yeah. Q. And you told Mr Howard that you in fact opened the letter? A. Correct. Q. And you understood the import and seriousness of it yourself? A. Correct. Q. And you explained that to Mr Chia? A. I did. HIS HONOUR Q. Can I just understand, is it your evidence, based upon what you might have told prosecution lawyers, that your best recollection, Mr Chia thought it might have been a rate notice? A. No, I ‑ I don't believe, no. That was ‑ I think that was a suggestion maybe that I or somebody else had made, but no, he'd‑‑ Q. I understand your evidence as being that invited or asked you to open the letter? A. He did. Q. Because he had some concern about it? A. Yes, he had some concern about it and it had come to his attention that he had a letter from the council and juxtaposed with the phone call from McKenzie or Edgar on the two days previously.
5. After his initial meeting with the defendant on 23 October 2014, Mr Hyden said that he attended the Carnarvon Road property and paced out the distance between the trees that had been removed and the nearest corner of the dwelling in order to determine whether any of the trees which had been felled were permitted to be removed pursuant to the 10/50 Code.
6. Although he had no qualifications as an arborist, Mr Hyden said that he had knowledge of the 10/50 Code because he was a property owner in the Ku-ring-gai area (at Tcpt, 12 November 2018, p 1208(32-48)). He described that he was the one who told the defendant about the 10/50 Code (at Tcpt, 12 November 2018, p 1217(30-45)): Q. You were asked a specific question by Mr Howard. You were asked this: "What made you think there was a major problem?" and you said, "Exceeded the purview of the 10/50 rule." Do you see that? A. Yes. Q. And you were able to tell Mr Howard that you knew about the 10/50 rule because you're also a property owner in Ku‑ring‑gai? A. Correct. Q. And in relation to the 10/50 rule, your recollection is that John didn't say anything about the 10/50 rule to you; is that right? A. That's correct, yes. Q. Is that because you told him about the 10/50 rule? A. That's correct. He made ‑ I don't believe he ever prior to that knew about it. He certainly never said that he knew about it.
7. After inspecting the Carnarvon Road property, Mr Hyden said that he returned to the defendant's Killara property to attend a meeting with the defendant, Mr Edgar and Mr McKenzie. He described the meeting in the following terms (at Tcpt, 12 November 2018, p 1194(19-33)): Q. Could you tell his Honour please what occurred at the meeting between yourself, Mr Chia and Mr Edgar and Mr McKenzie? A. Well, we ‑ Mr Chia and I met the two gentlemen at the front door of their residence ‑ an outer door, I think it's better described, so a courtyard door; met them. We went together to meet them whence they'd rung the bell and we went immediately inside to the garage which opens out ‑ the entry is attained immediately inside the courtyard door. So in terms of what transpired, Mr Chia asked them what had occurred on 21 October when they were on site and the members of the council staff had come there when it was all ‑ referred back to the phone call that he'd received from one of those two gentlemen. Q. Yes. A. Yes, that's ‑ so he asked them what had happened and they gave sort of a description of ‑ I don't think they'd spent long on the site after the council arrived and asked them to leave, so there was not a lot to say.
8. Mr Hyden said that he asked the contractors whether they believed that the work they carried out complied with the 10/50 Code. Based upon his inspection of the site, Mr Hyden had formed the view that the work did not comply. He gave the following evidence of asking the contractors this question (at Tcpt, 12 November 2018, p 1195(9-13)): Q. Can you tell his Honour who said what in relation to that matter at this meeting? A. My recollection is that Mr Edgar responded to that question and said that he was very experienced in these matters and had worked within several council areas and that in his experience the rules were quite flexible.
9. Mr Hyden elaborated on this answer in cross-examination (at Tcpt, 12 November 2018, p 1219(5-30)): Q. Now, if I can just take you to the very next point. According to this note [of Mr Hyden's conference with the prosecutor's lawyers], you said, "I put to them at the end in a question, 'You think this is covered by the 10/50 rule,'" then there's another little cryptic note, "Somewhat disbelieve." Now, was that a rhetorical question by you, or what was the reason that you asked that specific question? A. Well, I thought it was a fair question. I wasn't disbelieving of them, but it seemed important to me to understand if they felt that the work that had been done was covered by the 10/50 rule. Q. And according to the note here, it was Mr Edgar who answered? A. Yes, correct. Q. And Edgar said to you, "I have had experience and rules are flexible." A. He said a bit more than that, but that's the guts of it. Q. Right. Will you tell us what else he said, if you can recall? A. Well, just that he's worked on the north shore in other councils ‑ Warringah, Ku‑ring‑gai, Hornsby ‑ and the rules are flexible. Q. According to him? A. Yeah, according to him, the rules are ‑ I think what he meant was he interprets the rules flexibly. Q. Yes, go on? A. But, yes, it was sort of ‑ so I guess by saying that he was actually answering my question, that it was within the 10/50 rule as he saw it.
10. Mr Hyden said that he was not initially aware that Mr Edgar and Mr McKenzie had been retained as separate contractors (at Tcpt, 12 November 2018, p 1218(26) - 1219(3)): A. Well, I was a little confused because it wasn't clear to me at the point at that time that they were ‑ I actually didn't know at the time that they were separate contractors. Q. Right. A. I thought they had been engaged as a team. Q. Yes. A. And they were supporting each other's answers to ‑ or interposing to sort of‑‑ Q. I'll ask you about that. What do you mean, they were interposing? Between each other, is that what you mean? A. Well, sorry, not contradicting each other, but sort of adding to the other answer. So it was a conversation from two people. Q. You're not suggesting they were contradicting. They were supporting one another? A. Yes, in response to saying what happened on the 21st, so there was sort of‑‑ Q. Can you recall now what they said about what happened on the 21st, doing the best you can now? A. Well, that they were ‑ yes, they were both on site and the work at that stage only consisted of bringing cut material up the slope to the ‑ up to the street, where they ‑ there was a shredder. So that was all they were doing, there was no other work had been done, and they just explained that the council came on site and shortly told them to stop what they were doing and leave.
11. Mr Howard asked Mr Hyden about whether the issue of blame for what had occurred at the Carnarvon Road property came up in that meeting (at Tcpt, 12 November 2018, p 1198(12-16)): Q. Just taking you back to the meeting on 23 October 2014 at the Chia house in Killara, in fact, in the double garage, do you have any recollection of Mr Chia saying to Mr Edgar or Mr McKenzie anything in respect of taking the blame for what had occurred? A. Definitely not.
12. Mr Steirn asked further questions in relation to this during cross-examination (at Tcpt, 12 November 2018, p 1219(46) - 1220(8)): Q. Understood, okay. Now, there was a question there [in Mr Hyden's conference with the prosecutor's lawyers], "Was there anything said by Mr Chia about paying for liability?" and your answer was pretty definite, "Ridiculous. Absolutely not." A. Correct. Q. And Mr Howard then asked you, "Was there any talk about apportionment of liability, in other words, who might be to blame?" Do you see that? A. Yes, I do. Q. And you've given a rather cryptic answer, "Lie wherever it lay." What did you mean by that, sir? A. Well, that the liability would - this is my words - the liability would be distributed wherever it properly lay.
13. Mr Hyden gave evidence that earlier in 2014 he had assisted the defendant in relation to fire damage that had been sustained to the Carnarvon Road property. He described his involvement in that matter in the following way (at Tcpt, 12 November 2018, p 1196(41-47)): I attended the insurance company's site visit with potential contractors that the insurance company had called along to prepare quotations for the repair, which presumably would have been submitted to the insurers and then subsequently Mr Chia asked me to look at the correspondence from the insurers basically to ‑ including anything from the potential building contractors to see whether I felt it was inclusive, sufficiently inclusive, to cover the work that would be necessary.
14. Mr Hyden did not meet Mr Hutton at that time but said that he understood Mr Hutton had been engaged to carry out works in relation to the fire damage at the Carnarvon Road property. Mr Hyden said that he was also aware that the defendant had retained architects in early 2014 to explore opportunities for renovating the Carnarvon Road property but that their services were terminated in around March 2014.
15. Mr Hyden said that at some time on around 23 October 2014, he was provided with a copy of Mr Willis' bushfire risk assessment report of 3 March 2014. He spoke to Mr Willis several times on the phone and asked him to prepare a follow-up report. He said that he understood that Mr Willis had been retained by Mr Hutton at the request of the defendant to prepare a bushfire report. This was responsive to the advice of the architects that such a report would be required if a development application were to be lodged in respect of the Carnarvon Road property.
16. In response to the reports of Mr Willis, Mr Hyden stated that he contacted the NSW Rural Fire Service in the hope that they could assist in conveying to the prosecutor the nature of the fire risk at the Carnarvon Road property (at Tcpt, 12 November 2018, p 1206(41-48)): Q. What was the nature of your correspondence to the Rural Fire Service? A. The nature was that the advice that I was working on was the ‑ taken together, the two reports from Mr Willis ‑ that the property was still subject to, or being in, the fire zone and seeking or putting a matter to the Rural Fire people to engage them with a view to ‑ if they concurred, that this would enable us to deal with the golf course because they clearly felt there was no threat, so that was the process that was explained to me by one of the appropriate officers at the council.
17. Mr Hyden said that in around January 2015, he prepared a summary of all of the work he had done as the defendant's agent, attaching copies of all relevant documents. He sent this summary to the defendant's solicitors. After that, he ceased to be involved in the matter and his agency in relation to the work at Carnarvon Road ended "by common assent" (at Tcpt, 12 November 2018, p 1207(21)).
18. In the course of his cross-examination, Mr Hyden gave the following evidence about the defendant's character (at Tcpt, 12 November 2018, p 1235(5-27)): Q. You gave evidence to my friend that you've known him for 25 years. You've always known him as a family man? A. Correct, yes. Q. And that remains the position? A. Yes. Q. And as a good citizen? A. Yes. Q. Can you just elaborate as to how you see him personally as a citizen? A. Well, yes, I'm happy to. He's somebody who is punctilious in, you know, observing the requirements. You won't see anything ‑ you know, the building work that we've done over time with him, not major things, but significant enough in their own right, were always ‑ they were always done with not only a very ‑ well ‑ they were done well, but that's not the point. But they were always done with his observing all the necessary approvals and such things as that. In the fire claim situation or fire effort there, that he point out to the insurers that they hadn't provided adequately for some of the repairs that were necessary and that was ‑ okay, that's him wanting his result ‑ sorry, his rights to be observed but it applied both ways. He didn't want anything that he wasn't entitled to and he wanted to make sure that there was never a question that he hadn't met all the requirements.
19. In relation to his role as the defendant's agent, Mr Hyden gave the following evidence (at Tcpt, 12 November 2018, p 1235(42) - 1236(8)): HIS HONOUR Q. Did he remain hands‑on, so to speak? A. Well, only to the extent of I would discuss, to the extent necessary, contents of a letter I was drafting. Q. What about in relation to the earlier building works that you'd done for him that had always been done well? A. Well, Mr Chia did have an incredibly particular knowledge of all the work that had been done including even the original construction and he took a great interest in specifications and the like. STEIRN Q. But consistent with what his Honour just put to you and consistent with the previous answer, he would leave it to the experts to do their job properly? A. That's right, yes.
20. Mr Steirn asked Mr Hyden further questions about the defendant's character and he gave evidence as follows (at Tcpt, 12 November 2018, p 1236(14-44)): Q. With that in mind, would you consider him civic minded in every sense of the word, as far as the council, the community, his neighbours? A. Yes, absolutely, possibly to a fault. I mean, maintaining neighbourly good relations has been obviously very important to him, so when we did building work down beside his house where the neighbour was ‑ there was a neighbour adjoining‑‑ Q. On the neighbour's side? A. Yeah, there was an open area which we landscaped and paved and did a number of things, not in a building sense but in a landscaping sense, so there were issues of noise and dust and all of those things which he wanted to make sure that we, you know, didn't create them to be drawn ‑ to be a matter of concern to the neighbours. Q. He was concerned about they being accommodated? A. He had good relations, maintaining good relations with them. Q. That included a consultation where necessary? A. Well, I made it a point of consulting or informing the neighbours about what we were doing in advance and all these sort of things and making sure that they knew‑‑ Q. Tell us about that. How did that come about that you made it a point when you were consulting with neighbours? How did that come about? A. Well, the neighbour was ‑ I think at that stage she'd lost her husband and she was someone who'd been there since before, I think, they built and she was particular about such things as noise and disturbance, which is not unreasonable, so Mr Chia said that, "The first thing you need to do before you make a start is see her and explain what's going to be going on and even to the extent of, within reason, changing what we were going to be done, like the way we were going to be doing something if it would make her happier.

The evidence of Ms Dunand

1. Ms Dunand is the "Team Leader Governance" at the prosecutor. In her affidavit sworn on 22 June 2017, she deposed that she carried out an extensive search of the prosecutor's records and could not locate any approval or authorisation for the tree removal the subject of these proceedings. This evidence is not challenged by the defendant.

The evidence of Mr Rice

1. Mr Rice was the resident who brought the tree works taking place at the Carnarvon Road property to the attention of the prosecutor. He said that towards the middle of the week commencing 6 October 2014, he observed works being carried out towards the top of the property.
2. On Monday 13 October 2014, Mr Rice observed works being carried out at the site and noted "many felled and pruned large trees". He said that there were a number of felled trees adjacent to the Little Diggers Track and one large log in the process of being cut up. On this day he said that the "view from the track towards the lower side of 53 Carnarvon Rd, East Lindfield to be much clearer".

The defendant's record of interview

1. On 5 February 2015, the defendant undertook a compulsory interview pursuant to the EPA Act. The interviewers from the prosecutor were Ms Miller and Mr McCormack and also present was the defendant's solicitor, Jodie Wauchope and Emily Fowler, who attended as a typist.
2. The defendant formally objected to the interview on the grounds that he might incriminate himself pursuant to what was then s 122U(3) of the EPA Act. Pursuant to s 122T(2) of the EPA Act as was then in force, the defendant was under an obligation not to provide any answers which he knew were "false or misleading in a material respect".
3. The defendant tendered his own record of interview which was admitted into evidence in both audio recording and transcript form: Ku-ring-gai Council v John David Chia (No 10) [2018] NSWLEC 176 ('Chia No 10'). The audio of the interview was also played in Court.
4. At [46]-[47] of Chia No 10, I indicated that although I was determining to allow the interview into evidence, I was not making a finding as to its weight or probative value. I note in that regard at the outset (as I did in Chia No 10 at [46]) that the prosecutor did not have the opportunity to cross-examine the defendant about the answers he gave in the interview, which is a matter that I consider goes to the weight of the evidence.
5. The defendant gave the following account of the tree lopping works at the site in his record of interview (as it appears in the transcript tendered in the proceedings, noting that interjections appear using the initials JC for the defendant, TM for Mr McCormack and WM for Ms Miller): Tony McCormack: On 21 October (JC: 21st October) 2014, (JC: right) Council officers observed tree lopping staff, so contractors, doing tree lopping works (JC: right) on your property of 53 Carnarvon Road, Roseville. (JC: right) Can you please tell us about those activities? John Chia: No I can't. Tony McCormack: Did you engage any persons to do tree works on your property at 53 Carnarvon Road Roseville on or around 21 October 2014? John Chia: Before then, I engaged ah… landscapers. I think that's… It seems to me to be very different. I actually haven't been to the property since well before that so I can't answer the question because I don't know. (TM: Okay.) Sorry I can't answer your question because I'm trying to give the background… (WM: No, that's fine). Wendy Miller: Could I ask Mr Chia a question? Um… When, um, I visited your property on 21 October 2014, um, I, when I was at your property, um, there was a gentleman by the name of ah… Craig Martin who informed me that he had removed um… some trees under umm… a request by the owner of the property. I asked him who the owner of the property was and he said it was John… John had asked him to do some ah… tree works to… to remove trees for um, 10/50, under the 10/50 legislation. John Chia: It's not true. Wendy Miller: Ok, so, um… You didn't engage any tree contractors to do any tree removal on your property? Or… John Chia: No. That's not… um… I need to get you to ask… Jodie Wauchope: Just ask a simple question. (WM: Okay, Sorry, sorry,…) It just might help. John Chia: I can answer "no" to the other one… which I did. Wendy Miller: Okay. All right, so my question is: Did you ah,… request any tree contractors to do any tree removal on your property? John Chia: [Breathing out, pause] I'm still finding difficulty answering that because if I say yes, um, that's not true (TM: Okay..) and if I say no then… (TM: In your previous answer…) so I can't really say yes or no. Tony McCormack: That's all right. In your previous answer you said you engaged landscapers to do works, what did the works entail that you engaged these staff for? John Chia: Without giving background which would take forever and anyway is probably not relevant… The landscaping, ah was to maintain the property as it always has been. Um… It's something …, I don't do the gardening and um… from time to time obviously you have maintain, just to clear up and so forth. You asked me what did I instruct them or what did I engage them to do. There were things like.. there's a lot of mess around that needed to be cleared away … that had to be taken … Tony McCormack: Sorry, before we go any further, Can you clarify mess? John Chia: Well, there were ,,, Again working from what I had been told rather than necessarily my own observations or being there, I understood and I believed that there were tree fronds, there was um.. weeds throughout the whole garden, um… there were bushes that had grown taller and messy, I mean, y'know, to the point where it had completely changed. That is the sort of mess that I am talking about. It is cleaning up. Um… But it is also clearly um… um… and I have to be careful because I don't remember exactly who told me all of these things. But there was what other people refer to as fuel load which I understand and understood to mean a fire hazard there. (TM: Just to clarify … ) That's the sort of thing.
6. The defendant said that another reason for asking the contractors to carry out work at the Carnarvon Road property was that Mr Hutton had told him that there were trip hazards at the site and the defendant was desirous of having those removed.
7. The defendant gave the following further description of what the works entailed: John Chia: Cleaning up to remove trip hazard and fuel load, they said, and things like that. To me that was the stuff that had,… that was in the garden.
8. Mr McCormack asked the defendant if he had obtained any quotes for the work which was carried out, to which he gave the following response: John Chia: No,… because they said they didn't know how long it would take and I said we had a very limited amount of money. I have not worked for a long time. We didn't have a lot of money. And um… if it's a couple of days then that's fine. That's basically Tony McCormack: Sorry, I'll clarify this, that "it is going to take a couple of days to clear the mess on 53 Carnarvon Road Roseville"? John Chia: That's what was in my head. Yes. That's what I said to them.
9. The defendant said that he knew Mr Edgar because he had carried out previous work for him at his property in Killara when a tree had fallen over from a neighbour's property. He said that he called Mr Edgar, whose business card or pamphlet had been left at his home some time earlier, and that Mr Edgar "carried away some of the branches and so forth from our property".
10. The defendant gave the following account of asking Mr Edgar to carry out work at the Carnarvon Road property: John Chia: I rang him up, um… (WM: at 53 Carnarvon? JC: Yes, Yes.)… um and on the phone I said we need um… to clean up the place because the builder, … that's why I was telling you before, so that's the… and that's what I've said to him. He said ah.. I'll go and have a look at it and um.. I said, "Okay that's fine" "You need to tell me how much because I'm not … we're not very well off in that sense". Um… And, he ah… ah… said well I'll meet you on site. I drove down there and I went to the front of the garage on the concrete (WM: Yep) and he was there. And I said "Oh, … so have you seen it" and he said "I know what to do". And I said "Well, hang on, so how long will it take?" Because that's the thing that was important to me. Tony McCormack: Do you recall the date of that conversation / meeting? John Chia: Um … I was going overseas… I was always going overseas at that point, um,.. so that day or the next day. No, the next day. And, er, um, anyway, ahh.. I have been overseas at that period, or not overseas necessarily, er,.. away from home probably every week or every two weeks, something like that. So it was constant. And therefore I can't remember which time that was.
11. The defendant said that he could not recall the exact date of his conversation with Mr Edgar but said that it was likely to have been in August or September 2014. When asked if he and Mr Edgar looked at the property together, the defendant gave the following answer: John Chia: No. (WM: No.) (JC:) I did not move from that apron of the front and I said "but hang on what are you going to do" y'know I don't know if I said that actually, but I tried to get that across y'know that that I wanted to know how much. He said, well, it was very hard to take stuff up the slope and all that sort of thing, so I said okay, well, are we talking a couple of days? And, um … and he said "Yes". It gave me a picture of what he was intending to do. But I did say a lot of other things which maybe I should say now because you asked me what did I specifically say, or how did I engage him? And I need to … This is very important to me that the whole of what I said is stated. And that is I said firstly, I don't… as always, and I say this to every contractor by the way, it doesn't matter if it is a plumber or an electrician, a builder, it doesn't matter, "you have to stay within the law, you have to um… ah… stick with the guidelines and regulations of whatever's involved.". And it is your responsibility to get approvals, um… all approvals that are necessary. And I don't know what the rules are and I am asking you 'do you know what to do with the rules' etcetera.. 'You are licenced, insured…, fully insured', you're this, that, and everything else. 'Yes,' so that is the conversation. Then I went on as I don't stop there and that is everything has to be safe. So you don't endanger other people and that you do things according to proper work practices. The second point is that as you leave, whatever you do has to be aesthetic, I used that word specifically which means to me it has got to look good, as the way it is meant to be. It's pretty obvious to me, that we… in every place we have ever lived or done anything, that I am always conscious of … the way it looks to other people. Because I don't believe in making it anything other than good for other people. That is what is very important to me. And the third thing … I am shortening it but will go on. The third thing is that you have to talk to all neighbours, … first … you have to make sure they are happy. And then all the way through, wherever you are, you're not allowed to leave trucks on the road, you are not allowed to leave anything, any debris there, you mustn't make unreasonable noise, you've got to not work too early, too late. I worry about all those things as far as neighbours are concerned and obviously at that particular site the Golf Course is a neighbour so that is very important to me. And if I can say that, this and I am sorry to for adding all that but it gives you some background and helps you perhaps to understand what is in my head when I am instructing somebody and if I am going to pay them any money at all. Umm… Since we bought that block of land I have tried to be as good a neighbour as possible to everyone and it breaks my heart that umm… anybody is upset with me or Amanda for that matter. Because throughout the whole of our lives we have just tried really hard to live in the society in which, you know, our parents were not natives and so forth. We try to assimilate
12. At this point in the interview, the defendant became emotional and Mr McCormack indicated that they would take a short break to allow him time to compose himself. When the interview resumed, the defendant stated that he had not looked at the property with Mr Edgar and gave instructions as per his answer above. He stated that he had left the site probably within five minutes.
13. Ms Miller asked the defendant what Mr Edgar quoted to do the job at the Carnarvon Road property. The defendant said that Mr Edgar told him that his usual daily rate was about $4,000. The defendant said that he thought that this was a high amount for the work he wanted carried out but said that Mr Edgar said he would not charge the defendant that amount.
14. Ms Miller asked the defendant whether he thought $8,000 was a lot of money for "tidying up a little bit of mess on his property", to which the defendant replied: John Chia: No. Umm … (WM: for 2 days work) Well, I think that is a fairly high rate. But it's not a little bit of mess … you know, in my estimation of what probably had to be - don't know what had to be done he did describe that there was a lot of mess. And, In the past every year or two or three I have had to engage people to do the same task which has always cost me a lot. Wendy Miller: Is that to tidy up mess within 53 Carnarvon Road? John Chia: Yes that's correct. Wendy Miller: Have you paid Craig his money? John Chia: He demanded some money and I paid him. Umm .. I'm not going to stand there and …
15. The defendant confirmed that he had appointed Mr Hyden as his agent to deal with, inter alia, matters relating to the clearing of trees at the Carnarvon Road property. He said that he did so because he was often away and he "wanted to make it good with everybody as much as possible". He said that he knew that Mr Hyden had spoken to Mr Edgar.
16. The defendant was asked whether he had an agreement with Roseville Golf Club to conduct maintenance on its property. He said that he did not have such an arrangement at that time (that is, at the date of the interview) but that he had had such an arrangement previously.
17. In relation to the Roseville Golf Club, the defendant said that he met with three members of the club in around 1979 or 1980 including a "Harry Sykes", who he identified as the club captain of the golf club. The other two members were the president of the golf club, who the defendant thought was named "Merl", and the club secretary, whose name the defendant could not recall. The defendant said he was told that he would be doing the golf club a favour by looking after the land. He said that the agreement was a "gentlemen's agreement" accompanied by a handshake, whereby he was given access to an "...area beside our property, down the side" on the undertaking that he maintain some land owned by the golf club. The defendant said that he believed the agreement would exist in perpetuity.
18. Mr McCormack then asked the following question about the work he had engaged the contractors to do: Tony McCormack: You have established that in 1979/1980 there was an agreement (JC: Yes) to do certain works outside, (JC: Oh, Okay …) Was part of the scopes of the work engaged by your contractor to do works in that area that you thought you had approval for? John Chia: Yes, for instance, the grasses that are tall should be made .. to take away the trip hazard or or make it so that if you are carrying a beam you're not going to fall over. And I explained to him not only in the phone call but on site, I was going to say on site as well but I was pretty sure in the phone call and on site that the only reason for doing this at the time - otherwise we would wait - y'know was because the building works were going to require access. Tony McCormack: So there was conversation in relation to works outside of 53 Carnarvon Road Roseville? John Chia: No I didn't say that and I didn't mean that there was not a conversation about works outside of Carnarvon Road but I did say that the builders are going to have access so I guess that there may be some sort of inference or implication of that but I don't believe I said that.
19. The defendant said that he thought it was best to hire landscapers "who would appreciate what's there, I can't direct people what to do as I'm not going to be there and I have no idea what's got to be done, it's too hard". He thought that the "better way is to get someone who would take that responsibility entirely and that is why I put all those caveats over it as well so the responsibility goes with those people".
20. Ms Miller asked the defendant whether he had an ongoing landscaper, to which the defendant replied: John Chia: I have a gardener. And, after I received the letter, well sorry I didn't receive the letter, but I have to correct that too, that after I understand that Council sent the letter I cancelled that because I did not want anybody touching anything anymore. It is far easier in my head to say let's sort out things, stop y'know, I know life goes but on the other hand… Tony McCormack: Do you have details of your gardener? John Chia: Gardeners have changed because of people over the years. Umm… I have a current gardener who does our place at [xxx] [xxx] Street Killara. I don't know his number off the top of my head or anything like that, but at home, … he comes every week, so… I would have that.
21. The defendant said that he had paid in the past for people to maintain the area around his clothes line. He said that he wanted to ensure that it was safe for children as there was no boundary fence at the Carnarvon Road property.

Warnings and directions

1. The defendant submits that I should give myself certain warnings and directions in relation to eight specific matters, being: 1. A direction in respect of the good character of the defendant; 2. A direction in respect of the failure of the prosecutor to call material witnesses; 3. A warning that it is dangerous to convict based upon accomplice evidence; 4. A warning in respect of a witness who might reasonably be supposed to have been criminally concerned with the events giving rise to the proceedings; 5. A direction in respect of accomplices corroborating each other's evidence; 6. A warning in respect of prior inconsistent statements; 7. A direction in respect of a motive to lie; and 8. A direction in respect of an accused who provides exculpatory evidence relevant to a critical element in the prosecution case.
2. The prosecutor's initial position is that a warning under s 165 of the Evidence Act would only apply if there was a jury or, alternatively, if a judge is sitting alone in a trial of an indictable offence, by application of s 133(3) of the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act'). As this is a trial of a summary offence, not an indictable offence, s 133(3) of the Criminal Procedure Act does not apply. It follows, according to the prosecutor, that the presumptive obligation to give a warning under s 165(2) of the Evidence Act does not apply.
3. The prosecution further says that the question of whether the Court should warn itself turns upon the application of the common law which, briefly stated, requires a warning to be given by a judge to a jury whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. Such a perceptible risk arises when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury (R v GW (2016) 258 CLR 108; [2016] HCA 6 at [50]).
4. Thus, on the assumption that the common law principles are applied where a judge is sitting alone, the prosecutor submits that there is no perceptible risk of miscarriage of justice arising from the circumstances to precipitate the need for any such warning.
5. However, in the light of the defendant's further submissions, the prosecutor submits that the "conservative" premise the Court should apply is that, if any of the directions that are sought by the defendant would properly be given to a jury, then the Court should give that direction to itself notwithstanding that s 133 of the Criminal Procedure Act does not apply to a judge alone presiding in the trial of a summary offence.
6. The defendant cites the following comment of Gleeson CJ in Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 where his Honour said: [1] These two cases concern instructions given to juries at criminal trials in New South Wales as to the significance that may properly be attached to the failure of an accused person to deny or explain inculpatory evidence relied upon by the prosecution. It is for the jury to evaluate the evidence at a trial. But juries often require, and sometimes expressly seek, guidance as to the significance of an accused's failure to give evidence, or failure, when giving evidence, to deal with some matter. In deciding what guidance is proper, a trial judge, or an appellate court reviewing a trial judge's summing-up, must have regard both to general principles and to relevant statutory provisions. Here, the general principles concern the onus of proof, the presumption of innocence, and the evaluation of evidence. The relevant statutory provision is s 20 of the Evidence Act 1995 (NSW). [2] The operation of the general principles have a significance which goes beyond trial by jury. In New South Wales, and other Australian jurisdictions, trials for indictable offences are not infrequently conducted by a judge sitting without a jury. Summary offences are tried by magistrates sitting without a jury. In such cases, the reasoning of the judge, or magistrate, is constrained by the same principles as govern the deliberations of a jury. Similarly, an appellate court when considering an argument that a jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of an appellant, or which is considering the application of the proviso in a case where there has been a misdirection, may need to form a view as to the significance of an accused's silence, either generally, or upon some particular topic (citations omitted).
7. In these circumstances, I consider it appropriate to adopt what the prosecutor refers to as the "conservative" approach and deal with the suggested warnings and/or directions discretely. I consider that some of the directions and warnings sought (as per [247] above) involve overlapping considerations and I have considered the requests accordingly.

Direction in respect of good character

1. It is agreed between the prosecutor and the defendant that I should direct myself as to the defendant's good character. I accept the fact that the defendant is a person of good character is relevant to the likelihood of he having committed the offence, and that is a factor for me to take into account. I take the defendant's good character into account.

Direction in respect of the failure of the prosecutor to call material witnesses

1. Both the prosecutor and the defendant accept that the principles concerning responsibility of a prosecutor to call witnesses in criminal trials are well-established and rely upon the statement of Deane J in Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 ('Whitehorn') at 664: ...all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point.
2. In R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, the Court said at 575: We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia: 1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. 2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. 4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge. 5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
3. In Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186, Price J said at [66]: The general principles concerning the responsibility of prosecutors to call witnesses in criminal trials are well established and were enunciated by the High Court in Apostilides at 575. These principles are not confined to Crown prosecutors but apply to those who prosecute criminal offences on behalf of Councils or other authorities…
4. To support its submission that the prosecutor failed to call material witnesses, the defendant points to the fact that when Mr Edgar was questioned about who was present onsite at the time of the offence, Mr Edgar refused to provide the prosecutor's investigator, Mr Myles, with details of the other people working with him "...in case it will incriminate [him] or other people" (Tcpt 16 April 2018, p 72(32-43)).
5. Despite this, in the course of his cross-examination, Mr Edgar revealed that a Kane Ferguson and a "Peter" had worked with him on the site and the defendant submits that the earlier refusal (during his interview with Mr Myles on 29 July 2016) to give names to Mr Myles must be contrasted with Mr Edgar's then eagerness to volunteer his nephew (Mr Draeger) to answer questions. The defendant also notes that despite the prosecutor (through Mr Myles as investigator) having had the power at the time to compel Mr Edgar to answer, Mr Myles chose not to obtain the names of those people at a time when Mr Edgar would have been more likely to have recalled their names and their contact details.
6. Further, the defendant submits that the prosecutor cannot now "hide behind" the fact that it did not have specific details of these witnesses (that is, the other sub-contractors) because Mr Myles did not ask relevant questions to extract this information as he was entitled to do. Thus, this "failure" has deprived the Court of the ability to have that material tested and those witnesses called. In these circumstances, the defendant submits that the failure to call a number of witnesses including Mr Dahtler's brothers, who the evidence reveals were at the site at relevant times (see, for example, [98] above), and Kane Ferguson, the Court should entertain a reasonable doubt about the guilt of the defendant.
7. The defendant notes in this regard the suggested direction in the Criminal Trial Courts Bench Book - Trial Instructions ('Bench Book') in relation to "witnesses - not called", which provides: You have heard that [name of witness] has not been called by the Crown to give evidence. You can take the fact that there was no evidence from that witness into account when you decide whether the Crown has proved the guilt of the accused. I am not inviting you to guess what [name of witness] would have said if [he/she] had been called. You must not do that at all. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, a jury is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused's guilt … [refer to the submissions of the defence and Crown on the issue].
8. The defendant also submits that, despite the fact that they gave evidence in the proceedings, there had been a "constructive failure" to call Mr Hyden and Mr Dahtler on the basis that the prosecutor had not intended to call them as witnesses until the defendant insisted upon it.
9. The prosecutor submits that there is no proper basis for the Court to direct itself in respect of witnesses not called as the prosecutor has not failed to call any material witness. The prosecutor maintained, in accordance with the principle articulated by Deane J in Whitehorn (noted above), that there is no requirement for the prosecutor to call all witnesses, only material witnesses and in the circumstances, there is no basis for the suggestion that the Dahtler brothers and Kane Ferguson were in fact material witnesses. The prosecutor submits that these individuals only played a peripheral role in respect to the conduct the subject of the charge.
10. In addition, the prosecutor says that there is no evidence that the Dahtler brothers or Kane Ferguson were present when the defendant directed the contractors to cut down the trees. The prosecutor also submits that there is no "constructive failure" on the part of the prosecutor to call Mr Hyden or Mr Dahtler as each of those witnesses was called.
11. I accept the principle, as stated in Whitehorn, is that all witnesses whose testimony is necessary "for the presentation of the whole of the picture" should be called. However, I do not consider the prosecutor has failed to call any material witnesses and I accept that there is no evidence that the Dahtler brothers or Kane Ferguson were present when the defendant was alleged to have directed the contractors to cut down the trees and there is no evidence that leads me to the view that they would materially add any relevant testimony.
12. I also note, but do not place weight upon, the fact that prior to making the submission that the Court should give itself a direction in relation to the prosecutor's alleged failure to call material witnesses, the defendant had not previously contended that any of those three (the Dahtler brothers or Kane Ferguson) was a material witness. I further note that when the defendant earlier in the proceedings contended that the prosecutor had proposed not to call other persons whom the defendant suggested were material witnesses (being Mr Willis, Mr Hutton, Mr Hyden and Mr Dahtler), the prosecutor thereafter called each of those four persons. Further, I do not accept that there was a "constructive failure" on the part of the prosecutor to call either Mr Hyden or Mr Dahtler as each was called.
13. In the above circumstances, I do not consider that there is any basis for a direction in respect of witnesses not called by the prosecution.

Warning that it is dangerous to convict based upon accomplice evidence and warning in relation to the evidence of the criminally concerned

1. As the common law has long recognised that there is danger in accepting evidence of an accomplice or person who could be criminally liable, the defendant submits that the Court should direct itself that it would be dangerous to convict the defendant based upon the evidence of Messrs Edgar, McKenzie and Draeger. It puts this submission on the basis that each is an accomplice because each played a part in the unlawful removal of trees as principals.
2. In support of the application for these requested warnings and directions, the defendant relies upon a number of facts. First, each of Mr Edgar and Mr Draeger took part in the chopping down of trees and Mr McKenzie aided and abetted Mr Edgar and Mr Draeger (noting that Mr McKenzie admitted to identifying trees for Mr Edgar and others to remove); second, Mr Edgar had lied when first spoken to and made no attempt at that time to implicate the defendant; third, Mr Edgar's warning to Mr McKenzie not to come to the site (which, according to Mr McKenzie, was because Council officers were present); fourth, Mr Edgar's plea of guilty and the fact that in being sentenced in the Edgar proceedings, he received a benefit for his assistance to the prosecution; fifth, an acceptance that at common law accomplices collude; sixth, a real possibility of fabrication; seventh, the opportunity for collusion having arisen on a number of occasions; and eighth, the contamination of Mr Draeger and Mr McKenzie's evidence through delivery of Mr Edgar's evidence to them during their records of interview.
3. In addition to the common law warning, the defendant says that the Court should warn itself pursuant to s 165 of the Evidence Act regarding what is said to be accomplice evidence. The defendant relies upon the Bench Book concerning s 165(1)(d) of the Evidence Act and directs the Court to the manner in which courts have previously dealt with this type of unreliable evidence including Kanaan v R [2006] NSWCCA 109 ('Kanaan') at [165], R v Ncanana [1948] 4 SA 399 at 405, and Jenkins v The Queen [2004] HCA 57; (2004) 211 ALR 116 at [30].
4. The prosecutor accepts that the Court should give itself a warning pursuant to s 165(1)(d) of the Evidence Act in respect of Mr Edgar and in doing so should be guided by the Bench Book. However, the prosecutor maintains that in relation to Mr McKenzie and Mr Draeger, the Court should not give itself a warning. In relation to Mr McKenzie, the prosecutor submits first, that he did not cut the trees down (his role only to drag branches up to the road) and, second, whilst he "marked" some trees with pink paint at the direction of the defendant, that is not sufficient to warrant any warning given in relation to his evidence. In relation to Mr Draeger, the prosecution reminds the Court that he is a labourer and had no belief that he was in any trouble.
5. I accept that the common law has long recognised the danger in accepting evidence of an accomplice or a person who could be criminally concerned in events which give rise to the proceedings and, that it is dangerous to convict on the testimony of an accomplice. I consider that while s 165 of the Evidence Act has codified the law in relation to warnings, I also accept that s 165(5) provides that s 165 does not affect any other power to give a warning in relation to unreliable evidence.
6. Further, I consider that in Kanaan at [217] (whilst noting comments of the High Court in Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2), it was accepted that directions similar to the common law accomplice warnings should generally be used when considering matters which may cause the evidence of a witness to be unreliable. As such, I am conscious that it may be dangerous to convict on the uncorroborated evidence of a witness who could be criminally concerned.
7. Whilst there has been some concern expressed about the use of the term "accomplice" (and noting that it is not used in s 165), (R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 at [125]-[130]), I accept that the matters considered by the common law as rendering certain evidence suspect include that persons otherwise implicated may have reason to implicate others and may exaggerate the role of another.
8. I note the suggested direction in the Bench Book, which begins: The Crown relies upon the evidence of [the witness]. The Crown also asserts that [the witness] is a person who was, or might have been, involved in the alleged crime. The law requires me to give you certain warnings and directions concerning this evidence. They are given in every case in which the Crown relies upon the evidence of a witness who was, or might have been, involved in the alleged crime. They are not given in this case because of any view which I have formed concerning the evidence of [the witness]. The need to give such directions arises because the courts have, over the years, a great deal of experience concerning the reliability of evidence given by a witness who was, or might have been, involved in the alleged crime. That experience has shown that the evidence given by such a witness may be unreliable. I do not intend to suggest, however, that such evidence is always unreliable…
9. The suggested direction contains a number of reasons, which were adopted by the defendant, why such evidence may be considered reliable: • It is only natural, you may think, that a witness who was, or might have been, involved in the alleged crime, may want to shift the blame from himself or herself onto others, and to justify his or her own conduct. In the process, the witness may construct untruthful stories, which tend to play down his or her own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people. • Persons who are, or might have been, involved in an alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility. • Such a person may be motivated to give false evidence in order to qualify for a reduction in his or her own sentence. [Where a discount has already been granted, as is the normal case, the jury should be specifically directed as to the precise extent of the discount and the consequences of failing to give evidence in accordance with his or her undertaking - see bracketed note below.] • There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be. Remember that the Crown has to prove the essential aspects of its case and the accused does not have to prove anything. • Experience has shown that once such a witness has given a version to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.
10. I accept that these are matters which, in a general sense, may affect my assessment of Mr Edgar's reliability. More specifically, I note that, in his judgment in the Edgar proceedings, Moore J recorded the following as a mitigating factor in relation to Mr Edgar's sentence at [28]: The Prosecutor accepts that Mr Edgar has cooperated, fully and appropriately, with the Prosecutor. This cooperation has not merely been in the making of admissions and settlement of a Statement of Agreed Facts, but also in the providing of a statement of the evidence that Mr Edgar would propose to give in the prosecution of Mr Chia for the activities that Mr Edgar has undertaken on Mr Chia's behalf and at his direction.
11. Having regard to the nature of the instinctive synthesis approach to sentencing, it is not possible in the case of the Edgar proceedings to identify with precision the benefit that Mr Edgar received for cooperating with authorities in relation to the sentence which might otherwise have been imposed. Obviously, Mr Edgar did not receive (and could not have received, whether he cooperated with the prosecutor or not) a prison sentence in relation to the offence that he committed.
12. I also note that Mr Edgar did not accept the proposition that he was treated more leniently by the Court because he was prepared to give evidence against the defendant. When that was put to him in cross-examination, he denied it and said that he was treated more leniently because he pleaded guilty (at Tcpt, 17 April 2018, p 127(36)). Clearly, if he was unaware that he was being treated more leniently by reason of his cooperation in the defendant's prosecution, it would not have served as a motivation to fabricate evidence against the defendant.
13. However, it is clearly the case that Mr Edgar's cooperation with authorities was properly taken into account as a mitigating factor in the Edgar proceedings and I accept that this is one further reason why I may find Mr Edgar's evidence less reliable.
14. Adopting s 165(1)(d) as a guide, I consider the evidence of Mr Edgar is of the kind that may be unreliable because he is a witness who might reasonably be supposed to have been (and indeed was) criminally concerned in the events giving rise to the proceedings. As such, I consider that I should approach Mr Edgar's evidence with caution in that he may have desired to shift the blame from himself to others and in the process may give evidence which may tend to play down his role and may construct an untruthful version of events. Further, he may have been motivated by the fact that he received a penalty which took into account assistance he may have given to authorities.
15. In relation to Mr McKenzie and Mr Draeger, I do not consider that it is appropriate for a warning to be given. I do not consider that either Mr McKenzie or Mr Draeger is an accomplice or that either Mr McKenzie or Mr Draeger was criminally implicated.
16. In relation to Mr McKenzie, although I deal with his evidence in detail elsewhere in this judgment, for present purposes, the evidence is and I find that, whilst he admits to identifying certain trees, he did not cut the trees down; his role was to drag the branches up to the road; and whilst he marked some trees in pink paint for removal (he says at the direction of Mr Chia), that conduct is not sufficient to warrant a warning being given in relation to his evidence.
17. Furthermore, I consider that the circumstances in which he came to give evidence did not raise any prospect of him being at any risk of criminal liability and I accept the prosecutor's submission that there is no evidence that he saw himself to be at any such risk.
18. In relation to Mr Draeger, again, although I deal further with his evidence elsewhere in this judgment, for present purposes, I find that he did not give evidence while under any genuine apprehension of being punished for his involvement in the commission of the offence, so did not have any motive to deflect blame. He maintained, and I accept, he was a labourer or a sub-contractor to Mr Edgar.

Warning in respect of accomplices corroborating each other's evidence

1. Although the defendant separately submits that the Court should not consider the evidence of Messrs, Edgar, Draeger and McKenzie capable of amounting to corroboration because of the real possibility they have jointly fabricated, it also discretely asks that I warn myself in respect of the danger of accomplices corroborating each other's evidence.
2. Noting that I deal with the evidence in relation to collusion separately later in this judgment, I consider that although the common law warnings can apply, I find in fact that Messrs Draeger and McKenzie do not fall within this type of category of a co-accused in circumstances that might trigger the need for a warning either under s 165 or the common law. This is because I find that they did not give evidence while under any genuine apprehension of being punished for their involvement, and so do not necessarily have any motive to deflect the blame from themselves. As such, I find that a discrete warning is not warranted. In making this finding, I am conscious of the comments of the Court of Criminal Appeal in Derbas v R; Rustom v R [2007] NSWCCA 118 at [28]: It is important to appreciate that although evidence may fall within one of the categories identified in s 165(1) it does not follow that a warning is necessarily required. The evidence must be of a kind that may be unreliable...
3. In the above circumstances, I do not consider that there is a requirement to warn myself that the evidence of Messrs Draeger and McKenzie may be unreliable. I emphasise that this does not mean that I accept all of their evidence. Rather, I discretely consider matters of weight and allegations of collusion and contamination later in the judgment.

Warning in respect of prior inconsistent statements

1. The defendant submits that a warning is appropriate because Mr Edgar has given a prior inconsistent statement in his conversation with Ms Miller on 21 October 2014 where he made no mention of the defendant. In that circumstance, where Mr Edgar later gave evidence to the Court which was to the contrary and, according to the defendant's submission, was self-evidently more damaging to the defendant than the statement he made to Ms Miller, the defendant submits that a warning should be given. Given the significance of Mr Edgar's omission to make reference to the defendant giving him "directions" at a material time where, according to the defendant, it would have been expected of him to have given that information if it were true, the defendant says the omission should cause the Court to have serious doubt as to Mr Edgar's credibility.
2. In Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43 ('Driscoll'), Gibbs J, with whom Barwick CJ, Mason, Jacobs and Murphy JJ agreed, said at 536: In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable.
3. I accept the prosecutor's submission that a warning in these circumstances is not required and that I am able to take into account what Mr Edgar said in his conversation with Ms Miller when assessing his evidence as a whole.
4. Noting what Gibbs J said in Driscoll, I do not consider that there is any general proposition that such a warning is required. Nor do I think that making such a warning explicitly assists my consideration of Mr Edgar's evidence as a whole.

Direction in respect of a motive to lie

1. The defendant submits that I should give myself a direction that a motive to lie can affect the assessment of the credibility of a witness and that each of Messrs Draeger, Edgar and McKenzie has a motive to lie in the sense that each has something to gain by lying about the instructions given by the defendant and their involvement in the removal of the trees. Further, that the Court must consider the evidence of their motive to lie and determine whether their evidence is nevertheless truthful.
2. Whilst I accept that there was a possibility that Messrs Draeger, Edgar and McKenzie may have had a motive to lie, this is a matter that I take into account in assessing their credibility in other parts of this judgment and I have taken this into account in considering the totality of each of the witnesses' evidence. I also note that the suggested direction in the Bench Book, extracted above at [275]-[276] provides direction in relation to witnesses who may have a motive to lie. This is reflective of the overlap between an allegation that evidence is unreliable because it is given by an accomplice (or someone otherwise criminally concerned), and an allegation that a witness has a motive to lie.
3. In those circumstances, having already considered the defendant's submissions in relation to the unreliability of accomplice evidence and the evidence of the criminally concerned, I do not consider a discrete direction in respect of the witnesses having a motive to lie is necessary.

Direction regarding the defendant not giving evidence

1. The defendant submits that as a matter of law I should direct myself in respect to the evidence given by the defendant in his recorded interview. The prosecutor accepts that I may so direct myself, and that the terms of such a direction is a matter for the Court.
2. I accept, as agreed between the parties, that in this respect guidance can be taken from the Bench Book. I accept that the defendant has given a version of events in the recorded interview which I have separately considered in this judgment and that he is entitled to rely upon that account. Moreover, I accept the fundamental principle that he is not required to prove that his account is true and that the prosecutor, in discharging its obligation to prove the defendant's guilt, must satisfy the Court that it is a version of events that could not reasonably be true.
3. As such, the defendant does not have to prove anything and the fundamental onus upon the prosecution to prove the guilt of the defendant beyond reasonable doubt does not, and cannot, shift by reason of the defendant's statements in his record of interview.

Allegations of collusion and contamination

1. One of the principal submissions of the defendant is that the Court should not accept the evidence of Mr Edgar, Mr McKenzie and Mr Draeger because it is fabricated, is the product of collusion, and was contaminated at an early stage by Mr Myles. There are several strands to this position.
2. I proceed to consider each of the submissions made by the defendant discretely and then jointly. Unfortunately, this approach necessitates some repetition. At the outset, I note that the prosecutor submitted in respect of all of these allegations generally that they are without merit, and that the frequency with which they were articulated in the course of the hearing does not give them credence.
3. Before dealing with the specific allegations made by the defendant, by way of background and principle, I note the discussion of collusion and contamination in the English case of R v Momodou [2005] 2 All ER 571; [2005] EWCA Crim 177 ('Momodou'). At [61], Judge LJ, with whom Dobbs J and Sir Michael Wright agreed, said: There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. (See R v Richardson [1971] 2 All ER 773, [1971] 2 QB 484; R v Arif (1993) Times, 17 June); R v Skinner [1994] 99 Cr App R 212; and R v Shaw [2002] EWCA Crim 3004, [2002] All ER (D) 79 (Dec).) The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be 'improved'. These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other witnesses to the same events, the dangers dramatically increase. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited.
4. The principles discussed in Momodou were also considered in Majinski v Western Australia [2013] WASCA 10; (2013) 226 A Crim R 552 ('Majinski'). At [32], Martin CJ, with whom Buss and Mazza JJA agreed, said: Questioning of a witness moves beyond "proofing" to impermissible "coaching" when the witness' true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness: HKSAR v Tse Tat-Fung; R v Momodou. A solicitor or counsel should not advise a witness as to how to answer a question: Re Equiticorp Finance Ltd; Ex parte Brock. By way of example, in Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 the defendant's solicitors prepared an extensive document for the defendant outlining "possible areas of questioning, (to be passed on to the respective witnesses)" and included suggestions as to appropriate responses which would be in line with the defendant's case [22]. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and "tainted" the defendant's case [182].
5. Relevantly to the allegations of collusion, Cooper AJ said in Houda v The State of New South Wales [2005] NSWSC 1053; (2005) Aust Torts Reports 81-816 ('Houda') at [246]-[248]: [246] All of the police officers said that they saw nothing wrong with using the notebook or statement of another police officer in order to assist them in preparing their own statements. They emphasised that it was merely to help them refresh their memory and if something was said with which they did not agree they would not have adopted it as part of their own statement. [247] The fact, however, is that what each of the officers was doing was not writing down something that was his/her own independent recollection. What they were doing was accepting the recollection and statements of Constable Stebbing as their own recollection. This practice overlooks the fact that in relying upon another officer's statement as to the details of conversations there is a real danger of it being accepted as correct even though the personal recollection of the writer of the statement may be unclear or slightly different. [248] Furthermore, the value of evidence as corroboration is seriously diminished when that evidence is all based upon a statement of the witness sought to be corroborated.
6. The defendant submits that in the present case the witnesses are not only dishonest but are accomplices, which "exponentially diminishes the evidence that they may give". I proceed to consider each of the specific allegations of collusion and contamination raised by the defendant.

Alleged collusion prior to Mr McKenzie's arrival at the site

1. The defendant refers to the evidence given by Mr McKenzie that Mr Edgar told him not to attend the site on the final occasion because there were officers from the prosecutor present. The defendant submits that Mr Edgar took this course so as to ensure that no one else could be interviewed by the officers present that day and that it represented the first opportunity that Mr Edgar and Mr McKenzie had to "get their heads together".
2. The defendant notes that the phone records before the Court indicate that the call referred to by Mr McKenzie was made, notwithstanding that Mr Edgar said he did not recall having made the call, did not think that he did so and said he would have had no reason to call Mr McKenzie at that time (at Tcpt, 1 November 2018, p 938(46-50)). Mr Edgar said that it was not true that he called Mr McKenzie to tell him to stay away from the site (at Tcpt, 1 November 2018, p 939(4-19)). The defendant submits that the fact that Mr Edgar was attempting to collude with Mr McKenzie is the reason why he denied the phone call taking place.
3. The defendant further submits that when officers from the prosecutor arrived at the site, Mr Edgar could have simply called the defendant and asked him to come to the site, but that he chose not to do so because he knew that the defendant would not have supported the lies that he told Ms Miller.
4. The prosecutor submits that in respect of all allegations of collusion between Mr Edgar and Mr McKenzie, the fact that they may have had an opportunity to contact each other does not mean that they colluded and that there is no evidence of collusion at all.
5. In this regard, the prosecutor submits: 1. No evidence of collusion emerged from what Mr Edgar and Mr McKenzie said when they answered questions when they were interviewed by Mr Myles or when they gave evidence. The prosecutor submits that there were differences in the details of their accounts of events in line with what one would expect from different people who had broadly shared a common experience; 2. Both Mr Edgar and Mr McKenzie exhibited a natural and fairly spontaneous demeanour that is not consistent with them having colluded. The prosecutor says that Mr McKenzie in particular maintained a degree of spontaneity in his evidence in the face of cross-examination over a period of days and that his demeanour had no ring of collusion to it; and 3. The mobile phone records which were produced by subpoena were presented by the defendant as being probative of collusion when they suggest the opposite. The prosecutor says that the records show intermittent and infrequent communication between Mr Edgar and Mr McKenzie in the period after the job was finished and before they were interviewed by Mr Myles which is explicable in large measure by reason of the fact that they worked together on some other jobs. More importantly, the prosecutor says that the evidence shows no contact between Mr Edgar and Mr McKenzie in the lead up to the hearing of the matter in April 2018 or the resumption of the hearing on 22 October 2018.
6. I consider that the intercourse between Mr Edgar and Mr McKenzie prior to attending the site on the final occasion is neither indicative nor decisive of collusion between them. Whilst I accept that the phone records before the Court are unclear, the mere fact that there may have been a phone call from Mr Edgar to Mr McKenzie cannot without more be indicative of an attempt to collude. At its highest, it demonstrates an opportunity to collude.
7. Further, the fact, as was submitted by the defendant, that Mr Edgar "could have simply called the defendant and asked him to come down to the site" is nugatory and would have been liable to expose Mr Edgar's false claim made to Ms Miller that he bore no responsibility for the felling of the trees at all. Even if it was, as submitted by the defendant, "the first opportunity that Mr Edgar and McKenzie had to get their heads together", I find this fact, on its own and considered with the whole of the evidence of the contact between Mr Edgar and Mr McKenzie, of little relevance.

Alleged collusion at the site

1. The defendant refers to the evidence of Ms Miller that she observed Mr McKenzie and Mr Edgar walking around the site together after officers from the prosecutor arrived on 21 October 2014 and after she had spoken to Mr Edgar. In an email on 17 February 2015, Ms Miller wrote: During my assessment of the site Mr Craig Edgar (contractor) was speaking with the driver of a Black Nissan Narvara [sic]. The driver of the Nissan Navara was walking around the property of 53 Carnarvon Road with Mr Edgar.
2. As noted above at [124], Mr McKenzie gave evidence that he drove to the site with Mr Dahtler on 21 October 2014, was stopped by someone he referred to as a "ranger", who took his particulars and that he then drove away and did not return to the Carnarvon Road property thereafter.
3. The defendant submits that a fair interpretation of the evidence is that Mr McKenzie was the one driving the black Nissan Navara, which is the car that was photographed at the scene and registered in his name. Each of Mr McKenzie and Mr Edgar denied speaking to each other on the site on that day and Mr Edgar suggested that Mr McKenzie did not come to the site at all. The defendant submits that this is because they knew that it "would not be a good look" if they were seen talking at the site and that the evidence of Ms Miller should be preferred as she has no motive to lie.
4. I consider that the difficulty is that the evidence of Ms Miller on this point was somewhat equivocal. In the course of her re-examination she confirmed that she has never met Mr McKenzie and does not know whether the man she saw speaking to Mr Edgar was Mr McKenzie or not. She said that she formed the view that he was the driver of the black Nissan Navara on the basis that he was sitting in the car which was parked near the Little Diggers Track when she arrived at the site. She also said that one of the other officers accompanying her on that day may have spoken to Mr McKenzie.
5. The defendant says that it is unbelievable that an officer from the prosecutor took down Mr McKenzie's details and did not incorporate them into the prosecutor's records. The prosecutor accepts that there is no record of Mr McKenzie's details other than the registration of his car. The defendant submits that Mr McKenzie must have been lying about giving his details to an officer in order to make himself look compliant and cooperative.
6. On the uncontested evidence of Mr McKenzie, Mr Dahtler was also in his car on 21 October 2014, so it does not necessarily follow that the person Ms Miller saw in the car was Mr McKenzie. In any event, I consider this to be of relatively little moment. Whether Mr McKenzie and Mr Edgar spoke together on the site at 21 October 2014 or not, there were certainly opportunities for them to speak after they became aware of the prosecutor's investigation. There is no evidence as to what they may have said on 21 October 2014 with the consequence that I find their appearance together there or otherwise of little significance to the case.

Alleged collusion at the defendant's Killara property

1. The defendant submits that the evidence about the meeting in the defendant's garage at his Killara property on 23 October 2014 between the defendant, Mr Hyden, Mr Edgar and Mr McKenzie is a "clear example of Mr McKenzie and Mr Edgar colluding to blame the defendant". The defendant says that when "their version is compared against that which Mr Hyden gave it is clear that they both have no problem twisting the truth to suit their needs".
2. The defendant submits that the evidence of Mr Hyden as to what happened at the meeting should be preferred as he had no motive to lie and moreover that the prosecutor has accepted that Mr Hyden is a witness of truth by calling evidence-in-chief from him in the proceedings.
3. Mr Hyden's account of the meeting differs from that of Mr Edgar and Mr McKenzie in three material respects: 1. Mr Hyden said that he asked Mr Edgar about the 10/50 Code and that Mr Edgar said it was "flexible", which Mr Edgar denies; 2. That in relation to their stories about what occurred at the site on 21 October 2014, Mr Edgar and Mr McKenzie were interjecting to support each other's account; and 3. That the defendant did not ask Mr Edgar and Mr McKenzie to take the blame for what had occurred and did not offer to take care of any fines or financial issues which might arise.
4. The defendant submits that Mr McKenzie is twisting the timeline of the garage meeting to avoid any suggestion that he colluded with Mr Edgar prior to his arrival at the meeting.
5. This submission does not take account of (or else implicitly rejects) the prosecutor's suggestion that there were two meetings in the garage at the defendant's Killara property; one prior to 21 October 2014, at which the defendant asked Mr McKenzie to go back to the site to clear up fallen branches; and the second on 23 October 2014, after the prosecutor was known to be investigating the felling of trees at the site.
6. I also note that it was the evidence of each of Mr Edgar and Mr McKenzie that they were taken aside by the defendant to be paid. Mr Hyden said that he did not see payment at those meetings and was not present when either man was paid (at Tcpt, 12 November 2018, p 1245(42-46)). There is therefore at least a theoretical possibility that the defendant separately told Mr Edgar and Mr McKenzie that he wished them to take the blame and that he was prepared to pay for any financial consequences and that Mr Hyden did not witness it.
7. The defendant notes that the phone records show that there were two more occasions where "communication was at least attempted" between Mr Edgar and Mr McKenzie prior to the meeting in the defendant's garage. The defendant submits that there is an inference available to the Court that after seeing officers from the prosecutor on the site and prior to the meeting on 23 October 2014, Mr Edgar and Mr McKenzie hatched a plan to deny all responsibility and blame the defendant for what had occurred. The defendant says that the timing of the conversations (or attempted conversations) supports an inference that they were colluding because it is unlikely that they would have been talking about anything else.
8. The prosecutor submits, contrary to this position, that the brevity and infrequency of the phone contact between Mr Edgar and Mr McKenzie supports the opposite inference.
9. I do not accept that there is evidence suggestive of collusion between Mr Edgar and Mr McKenzie in relation to the meeting with the defendant (and Mr Hyden) at the defendant's house at Killara. Whilst there was clearly opportunity for Mr Edgar and Mr McKenzie to speak together before attending the Killara property, I consider that no evidence of collusion emerged from what each of Mr Edgar and Mr McKenzie said in their respective answers in the recorded interviews. Further, I accept, as the prosecutor submits, that there were differences in details in their respective accounts which are understandable.
10. In addition, in relation to each of the defendant's submissions regarding discrete opportunities for collusion, I note that each was cross-examined at length, and in the case of Mr McKenzie, over a period of days, during which he maintained a degree of spontaneity in giving evidence, which in my observation is not indicative, and certainly not decisive of collusion particularly in relation to the meeting (or meetings) at the defendant's Killara property.
11. Further, again, the mobile phone records show relatively infrequent communication between them at any relevant time and in particular showed infrequent communication in the period after the incident and before their respective interviews. I accept the prosecutor's submission that the frequency of contact was explicable where the evidence was that they worked together on other jobs. In the circumstances, I do not consider that there was collusion at or in relation to having attendance (or attendances) at the Killara property, with the defendant.

Alleged collusion facilitated by Mr Myles

1. I have noted above at [152] that the defendant in cross-examination put to Mr Myles a number of propositions in relation to investigative techniques and approaches, with which he agreed. The defendant submits that in spite of giving that evidence, Mr Myles broke all of the rules about proper investigative techniques with which he had agreed. He defendant submits that this must give the Court serious doubt as to his objectivity and that it is unbelievable that a person with his experience would negligently or inadvertently make so many errors.
2. The defendant submits that Mr Myles' awareness of the dangers of contamination and collusion leave the only reasonable inference as to the reason why he used Mr Edgar as a conduit to contact Mr McKenzie is that he "deliberately contrived to create the opportunity for collusion". The defendant submits that this inference is supported by the fact that Mr Myles gave evidence that he told Mr Edgar it would be "good" to have Mr McKenzie corroborate him (see above at [155]).
3. The defendant submits that Mr Myles deliberately facilitated the cross-contamination and collusion between a number of material witnesses by failing to abide by the principles set out above at [152]. The defendant makes the same submission in relation to Mr Myles allowing Mr Dahtler to be present when he interviewed Mr McKenzie.
4. The defendant gives the following examples of what it says are Mr Myles' orchestrations of the collusion between Mr Edgar and Mr McKenzie: 1. On 15 July 2016, Mr Myles asked Mr Edgar whether he had spoken to Mr McKenzie (see above at [154]). The defendant submits that by failing to set Mr Edgar straight about the possibility of being interviewed together he has accepted that the witnesses could speak with each other about their evidence; 2. On 29 July 2016, Mr Myles said to Mr Edgar that it would be "good" to speak to Mr McKenzie and that Mr McKenzie might be able to "corroborate" what was said (see above at [155]). The defendant submits that the use of the word "corroborate" in this circumstance is significant; 3. On 1 August 2016, Mr Myles texted Mr Edgar saying that Mr McKenzie had not yet contacted him (see above at [157]); 4. On 2 August 2016, Mr Myles spoke with Mr Edgar over the phone (see above at [158]). The defendant submits that by encouraging Mr Edgar to speak to Mr McKenzie, Mr Myles was allowing Mr Edgar to tell Mr McKenzie that the defendant was blaming them for what had occurred and that this created the possibility for contamination; 5. On 4 August 2016, Mr Myles sent Mr Edgar a further text message saying that Mr McKenzie had still not contacted him (see above at [160]); and 6. On 5 August 2016, Mr Myles sent Mr Edgar a further text message (see above at [162]).
5. The defendant submits that Mr Edgar sought to tell Mr McKenzie that the defendant was trying to blame them and that this affected the evidence given by Mr McKenzie in the proceedings. The defendant also refers to the evidence noted above at [86] and [155] that Mr Myles told Mr Edgar it would be "good" if he could speak to Mr McKenzie. The defendant submits that it is clear that the only "good" thing Mr McKenzie could do from Mr Edgar's perspective is corroborate his version.
6. The defendant refers to the phone records and states that between 15 July 2016 and 22 July 2016, "there were at least 10 attempts by Mr McKenzie and Mr Edgar to communicate with each other". The defendant notes that some of these calls went "for at least a minute".
7. Mr Edgar and Mr McKenzie spoke over the phone while Mr Edgar was in Malaysia and the calls continued when Mr Edgar arrived back in Australia on 8 June 2016. The defendant submits "the frequency and duration of the calls is indicative of these two parties getting their stories straight before either party is interviewed by Mr Myles".
8. Of particular significance according to the defendant is a phone call between Mr Edgar and Mr McKenzie that took place on 29 July 2016, immediately after Mr Edgar's interview with Mr Myles. Mr Edgar was on the phone to Mr McKenzie for 190 seconds. Mr Edgar gave evidence about this call in cross-examination as follows (at Tcpt, 1 November 2018, p 925(24-44)): Q. After you were interviewed by Mr Myles, at 10.22 ‑ according to the record of interview with Mr Myles finished at 9.51am that day, the 29th. Do you understand? A. Yes. Q. By 22 minutes past ten, you were on the phone to Mr McKenzie. Just a coincidence, was it? A. That's it, could have been a coincidence. Q. And you spoke? A. Well, we'd gone back to work then. Q. And you spoke for over three minutes. That was just a coincidence? A. Yes, because I was back at the job. And he's got gardening experience, so. Q. Pardon? A. He has gardening experience. Q. You wanted to find out something about that particular job? A. Yeah.
9. The defendant submits that Mr Edgar's evidence on this point is "a complete fabrication and a lie".
10. The defendant further notes the evidence of Mr Myles (noted above at [157]) that in using Mr Edgar "as a conduit" to contact Mr McKenzie there was a danger of contamination. Mr Myles justified this approach by reference to the fact that Mr McKenzie had been difficult to locate, but the defendant submits that in taking this approach Mr Myles gave the witnesses an opportunity to collude and placed his own convenience above the integrity of the evidence. In those circumstances, the defendant submits that the Court could not be satisfied that Mr Edgar and Mr McKenzie gave a truthful account of what occurred as opposed to a concocted story to place blame on the defendant.
11. As I have noted above at [308]-[309], the prosecutor answers these submissions in a general way by saying that the mere fact that Mr Edgar and Mr McKenzie had the opportunity to contact each other does not mean that they colluded and that the evidence is inconsistent with them having done so. Moreover, the prosecutor submits that the phone records do not support an allegation of collusion but rather provide evidence to the opposite effect.
12. I do not repeat my findings and consideration at [310]-[311], [317] and [326]-[328] above but take those matters into account in considering the alleged collusion "facilitated by Mr Myles".
13. Whilst, as the prosecutor accepts, there were aspects of Mr Myles' investigation which were "less than ideal", I do not consider that the evidence given by Mr Edgar and Mr McKenzie was cross-contaminated because Mr Myles had conducted himself in a manner that deliberately facilitated either contamination or collusion. Although I consider that the use of the word "corroborate" was less than ideal, again, I do not consider it determinative that Mr Myles was deliberately facilitating collusion.
14. Accepting as I do that Mr Myles was an experienced investigator, his explanation as to why he sought to contact Mr McKenzie through Mr Edgar was understandable and plausible (which is not to say desirable). As noted above, there is no doubt that Mr McKenzie was, at least, reluctant to participate when Mr Myles first became involved in the investigation. However, I again consider that the mere opportunity to collude (even if "facilitated" by Mr Myles) is not sufficient to suggest that collusion took place.
15. As noted above, the viva voce evidence of both Mr Edgar and Mr McKenzie was given before the Court in circumstances where each was extensively cross-examined and each was able to deal with the suggestion of collusion by denial. Furthermore, the accounts given by Mr Edgar and Mr McKenzie in the recorded interviews, again as noted above, contain sufficient differences from each other which I find are explicable given the effluxion of time between the recorded interviews and the incident and indeed the time between the incident and the Court hearing.
16. The defendant's examples of Mr Myles' "orchestrations of the collusion" (noted above at [331]) considered both individually and together, do no more than provide a background where an opportunity for collusion may have been enabled however are equally suggestive of the type of intercourse that is likely to have taken place between Mr Edgar and Mr McKenzie given their working relationship. Moreover, whilst it would have been preferable if Mr Myles had not contacted Mr McKenzie through Mr Edgar, I consider that he was doing so because Mr McKenzie had been difficult to contact and do not accept the defendant's submission that Mr Myles was deliberately facilitating collusion between the witnesses.
17. Additionally, I do not accept that the phone records display a "frequency and duration" that is indicative that they are "getting their stories straight" before either party is interviewed by Mr Myles, as submitted by the defendant.

Alleged collusion over the phone generally

1. The defendant notes the following about the phone records as they relate to communication between Mr Edgar and Mr McKenzie: 1. Between 21 October 2014 and 4 August 2016, there were at least 48 attempts of communication between Mr Edgar and Mr McKenzie; 2. 23 of the "attempts" had a duration of over 16 seconds, the longest being 5 minutes and 15 seconds; 3. Some of the communication occurred while Mr Edgar was overseas; 4. Eight attempts at communication were made on 21 October 2014, after officers from the prosecutor arrived at the site. Three of those attempts lasted for more than 90 seconds; 5. Mr McKenzie sent Mr Edgar a text message on 23 October 2014 prior to meeting Mr Hyden and the defendant at the defendant's Killara property; 6. After Mr Myles contacted Mr Edgar on 15 July 2016, there were a number of attempts made by Mr Edgar to communicate with Mr McKenzie. Mr Edgar attempted to call Mr McKenzie three times and sent him a text message before finally contacting Mr McKenzie on 16 July 2016. The first of the calls on 16 July 2016 lasted for 129 seconds. A further call on 18 July 2016 lasted for 179 seconds. On 22 July 2017, Mr McKenzie spoke to Mr Edgar for 97 seconds; 7. After Mr Myles interviewed Mr Edgar, Mr Edgar called Mr McKenzie for 190 seconds; and 8. Mr Myles sent Mr Edgar a text message on 4 October 2016, after which Mr Edgar attempted to contact Mr McKenzie.
2. The defendant submits that the phone records demonstrate clear opportunities for Mr McKenzie and Mr Edgar to get their heads together and clear up their story over the phone. The defendant also says logically there may have been opportunities for collusion face to face. The defendant submits that the evidence of contact after Mr Myles had begun investigating the matter was of particular significance as it showed both Mr Edgar and Mr McKenzie speaking before they were formally interviewed.
3. A number of matters about this evidence should be noted at the outset. First, of the 48 "attempts" at communication between Mr McKenzie and Mr Edgar, many are properly characterised as attempts only as the duration shown in the data is inconsistent with phone contact having been successfully effected.
4. Secondly, the duration of even the longer calls is inconsistent with lengthy discourse. Obviously the possibility of Mr Edgar and Mr McKenzie meeting to speak in person cannot be excluded on the basis of the phone records, but these phone records do not establish the fact of a conversation between Mr Edgar and Mr McKenzie of a duration of over five minutes and 15 seconds.
5. Thirdly, there is evidence before the Court as to the possible contents of a number of the phone calls: 1. Mr McKenzie said that Mr Edgar called him on the morning of 21 October 2014 asking him not to come to the site because officers from the prosecutor were there (see above at [122]); 2. Mr McKenzie further said that Mr Edgar called him later that day to fill him in on the attendance of the prosecutor at the site (see above at [125]); 3. It is agreed that Mr Myles sought to have Mr Edgar contact Mr McKenzie to check his availability for an interview. Putting to one side the question of the desirability of that approach on the part of Mr Myles, a number of the "attempts" at communication are explicable on this basis, including the phone call between Mr Edgar and Mr McKenzie that took place on 29 July 2016 immediately after Mr Edgar's interview with Mr Myles; and 4. It was suggested by each of Mr McKenzie and Mr Edgar that they referred work to each other after meeting at the site in 2014.
6. Fourthly, and like all of the evidence about collusion in the proceedings, I find that none of the evidence about the possible contents of the phone calls suggests evidence of actual collusion as distinct from evidence of communication from which it might be inferred that collusion could have taken place.
7. As a result of the above, I consider that the phone records do not suggest anything more than opportunities for collusion. I have considered these opportunities in my evaluation of the whole of the evidence, however I find that on their own, or considered collectively, the defendant's complaints fail to establish that the evidence of Mr Edgar and/or Mr McKenzie was the result of collusion or contamination (even if Mr Myles had inadvertently facilitated the opportunity for collusion by his conduct).

Alleged collusion between Mr Edgar and Mr Draeger

1. The defendant notes that, at the time Mr Draeger was interviewed by Mr Myles, Mr Edgar had told him that the defendant was trying to deflect the blame for what had happened to Mr Edgar (at Tcpt, 29 October 2018, p 715(14-16)): Q. By the way, earlier, prior to the Myles interview, Mr Edgar had told you that John Chia was blaming Mr Edgar, for what happened? A. That is correct.
2. The defendant also notes that Mr Draeger had discussed the matter with Mr Edgar before being interviewed with Mr Myles (at Tcpt, 29 October 2018, p 715(31-49)): Q. [Mr Edgar] told you about it, over the years leading up to the interview? A. Well, whenever we discussed it, sort of thing. Q. Which was often enough, I suppose? A. Not a great deal. Q. But certainly you discussed it before Mr Myles came on the scene, didn't you? A. We had discussed about it, yeah. Q. What had you discussed, Mr Draeger? A. To be honest, I don't recall. I can't give you a proper answer on that. Q. You've already agreed that your uncle told you that John Chia was blaming your uncle for it. Do you agree with that? A. Yeah, I agree with that. Q. You've agreed that your uncle was quite concerned? A. Yes.
3. The defendant submits that Mr Edgar was "desperate" for Mr Draeger to support his account of the events that transpired at the site to the extent that he wanted Mr Draeger present that day despite him being sick. Mr Draeger gave evidence about this as follows (at Tcpt, 29 October 2018, p 722(2-8)): A. But, to be honest with you, like I said, I was sick that day. Having that interview, all I wanted to do was hurry up the conversation. I didn't even want to work that day but Mr Edgar was desperate for a worker that day. Q. Yes. And he knew that was the day that Mr Myles was going to interview him; correct? A. I think it just sprung up, basically.
4. The prosecutor submits that the defendant's contention that Mr Edgar colluded with Mr Draeger is "risible". The prosecutor submits that whilst Mr Draeger is Mr Edgar's nephew, they evidently had little contact including in the run-up to the resumed hearing. Moreover, the prosecutor submits that any allegation that Mr Draeger was colluding with Mr Edgar faces the hurdle that Mr Edgar expressed his recollection that the work at the site lasted eight days, whereas Mr Draeger thought that it lasted for two or three months.
5. Again I accept that there was an opportunity for collusion between Mr Edgar and Mr Draeger. However, despite this, considered separately, the oral evidence of each is sufficiently different to militate against any reasonable suggestion that there was collusion. There is no doubt there had been contact between Mr Edgar and Mr Draeger however I accept the fact that Mr Draeger was working with Mr Edgar on the day that Mr Myles conducted the interviews is understandable in the circumstances. Again, for the reasons noted above, the mere fact that there was an opportunity is not evidence of collusion absent more.
6. In the circumstances, where no evidence of collusion emerged from what each had said during the recorded interviews, the fact that there were differences in the details in respect of certain events (such differences not being unexpected) and having observed each giving oral evidence (and being subjected to extensive intense cross-examination) I accept that each of Mr Edgar and Mr Draeger displayed a demeanour and gave evidence in a manner which is not consistent with collusion having occurred. Again, each of the discrete submissions regarding the opportunities (over the phone and otherwise) both individually and together do not in my view, amount to persuasive evidence that collusion took place.

The red and blue contamination allegedly caused by Mr Myles

1. The defendant complains about the use to which Mr Myles put the aerial photograph of the site marked in red and blue by Mr Edgar during his record of interview. As noted above, Mr Myles used the same aerial photograph with Mr Edgar's markings when he interviewed Mr Draeger immediately afterwards (Mr Myles stated that he did not have a clean copy of the aerial photograph with him on that occasion and that he had not expected to interview both Mr Edgar and Mr Draeger on that day) and used the same photograph when he later interviewed Mr McKenzie.
2. The defendant further complains that the aerial photograph was one of the site taken after the clearing took place and although Mr Myles gave evidence that he did not have an aerial photograph of the site in its uncleared state, the defendant says that it "defies belief" that Mr Myles could not have obtained one if he attempted to do so.
3. The defendant submits that Mr Myles' evidence that in using the photograph marked by Mr Edgar he was attempting to elicit from Mr Draeger whether any further areas had been cleared (see above at [164]-[165]) should cause the Court to have concerns not only about Mr Myles' evidence but about his approach to the investigation generally. The defendant submits that Mr Myles appears to have approached the interview with Mr Draeger with the intention of having him expand the areas given to him already by Mr Edgar with a view to building the largest possible case against the defendant.
4. Further to my comment at [341] above in relation to Mr Myles' approach to the investigation, whilst I accept that the use of the same copy of the aerial photograph was less than ideal, it was understandable in the circumstances and I draw no adverse inference from Mr Myles' conduct. Whilst the markings made by Mr Edgar may have influenced the memory of Mr Draeger and Mr McKenzie, the circumstances (leading to the provision of the marked aerial photograph as explained by Mr Myles), are understandable. Again, the fact that Mr Myles did not have (or did not obtain) a second copy of the aerial photograph is, in my view, nugatory.

Dahtler contamination allegedly caused by Mr Myles

1. The prosecutor accepts that there were aspects of Mr Myles' investigation that were "less than ideal, including the fact that he allowed Mr Dahtler to participate in the interview with Mr McKenzie".
2. The defendant submits that Mr Myles, in allowing Mr McKenzie and Mr Dahtler to be interviewed together, acted contrary to what he agreed was best practice investigative technique (see above at [152]) and contaminated the evidence of Mr McKenzie.
3. The defendant points to evidence that Mr McKenzie gave in relation to Mr Dahtler's presence at his interview with Mr Myles (at Tcpt, 24 October 2014, p 461(1-9)): Q. But it's fair to say Grant [Dahtler] helped you with matters that you couldn't recollect? A. Yes. Q. And on a number of occasions, when you couldn't recall something, Grant would say what his position was; is that right? A. Yes. Q. Yes. And sometimes he was right and you changed your view? A. Yes.
4. Further, Mr McKenzie agreed that he was happy that Mr Dahtler was present and that he was happy that Mr Dahtler could assist him with things that he had forgotten or had got wrong (at Tcpt, 24 October 2018, p 461(22-27)).
5. The defendant also points to the following comments of Mr Myles (at Tcpt, 30 October 2018, p 849(14-22)): Q. Go to page 12 [of the transcript of Mr Myles' interview with Mr McKenzie]. Before I take you to page 12, did you at that stage consider having Mr Dahtler removed from the interview? A. No. Q. Did it ever cross your mind at all, given all the answers he was volunteering or giving? A. The, it was too far into the interview, and he'd been, he'd listened to quite a bit of the information that was provided. So I thought that he's probably already, the information may already be contaminated.
6. Mr Myles agreed that, in hindsight, he should have removed Mr Dahtler from the room (at Tcpt, 30 October 2018, p 851(32-34)).
7. Again, these further criticisms of Mr Myles' conduct do not, either on their own or when considered with the other criticisms, detract significantly from the weight which I attribute to the evidence of Mr McKenzie. I find that the fact that Mr Myles permitted Mr Dahtler to be present during the evidence of Mr McKenzie does not necessarily amount to the contamination of Mr McKenzie's evidence. I find this even though Mr McKenzie gave evidence that having Mr Dahtler present may have "helped" him in relation to some matters that he could not recollect.
8. Again, better practice, as accepted by Mr Myles, would have been to have separated the witnesses. In the circumstances, whilst this is a matter I take into account in my consideration of the overall reliability and credibility of Mr McKenzie, having considered the contributions made by Mr Dahtler in Mr McKenzie's record of interview and the extensive cross-examination and re-examination in relation to those matters, I do not consider that it is a matter of significance especially when regard is had to the precise details that were contributed by Mr Dahtler in Mr McKenzie's recorded interview.

The approach to the assessment of credibility

1. As much of the present case turns upon the extent to which I accept or do not accept the evidence of the witnesses called for the prosecution, it is appropriate to give a brief overview of the approach courts take to the assessment of credibility.
2. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 ('Fox v Percy'), Gleeson CJ, Gummow and Kirby JJ at [23] described the evidentiary advantage of a trial judge over an appellate court as follows: …On the one hand, the appellate court is obliged to ''give the judgment which in its opinion ought to have been given in the first instance''. On the other, it must, of necessity, observe the ''natural limitations'' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the ''feeling'' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole (citations omitted).
3. However, at [30]-[31], they sounded a cautionary note as to the reliance which should be placed on findings of credibility: [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The ''Palitana''): ''…I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.'' [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical (some citations omitted).
4. The relevance of the High Court's comments in Fox v Percy to the task of a trial judge was examined by Sackville J in Seven Network Limited v News Limited [2007] FCA 1062 at [373] where his Honour said: The present judgment follows a trial at which a great deal of evidence was given by many witnesses. It is not an appellate judgment. Nonetheless, the observations in Fox v Percy are pertinent to the fact-finding process a trial judge is required to undertake. It is not inconsistent with those observations to observe that the importance of 'demeanour' as an indicator of the reliability of a witness may vary according to the circumstances. It may be quite inappropriate, to take an example not relevant to this case, to regard an indigenous person's apparent unwillingness to make eye contact and hesitancy in answering questions as demonstrating untruthfulness. But if a confident and articulate witness becomes hesitant and defensive when confronted with documentary evidence apparently at odds with his or her own account of events, the witness' hesitancy might well suggest a lack of candour: see McLellan, at 662.

The credibility of Mr Edgar

1. The defendant submits that the Court would not accept the evidence of Mr Edgar. The defendant makes this submission having regard to the fact that his evidence is unreliable (see the warnings and directions above at [247]) and what the defendant says are examples of specific lies by Mr Edgar in the proceedings. I shall consider those below.
2. The prosecutor says that the Court should accept Mr Edgar as a witness of truth having regard to what it says was his sincere and honest demeanour when he gave evidence in these proceedings.
3. Conversely, the defendant submits that each of Mr Edgar and Mr McKenzie was evasive, had a very selective recall, used the phrase "couldn't recall" on many occasions, avoided eye contract, had poor body language and took a number of long pauses whilst giving evidence. The defendant also submits that Mr Edgar would change his evidence when confronted with irrefutable facts.
4. I shall consider the examples raised by the defendant and submissions made by each of the parties, and will make overall findings taking into account those examples as well as the warnings and directions which I have considered at [247]-[298].

Mr Edgar's alleged lies to Ms Miller

1. The prosecutor accepts that Mr Edgar, when initially confronted on the site by Ms Miller on 21 October 2014, denied having cut down the trees in the lower part of the site. However the prosecutor says that merely because someone initially denies something when confronted by an authority figure, this does not automatically mean that what they later say should be considered untrue.
2. In this regard, the prosecutor says that Mr Edgar "came clean", admitted what he had done, and accepted responsibility and punishment for it. It submits that he told the truth against his own interest.
3. Conversely, the defendant submits that Mr Edgar's memory was selective when he gave evidence about his conversation with Ms Miller. The defendant notes that Mr Edgar could recall the beginning of the conversation but could not recall the information he gave Ms Miller (see above at [73]-[80]). The defendant further notes that Mr Edgar said that he did not believe that he was in trouble at that time, which is contradicted by the fact that he felt it was necessary to lie about whether he had carried out the work that the prosecutor was investigating.
4. Moreover, the defendant notes that Mr Edgar accepted that it would have been a lie if he said that his crew was not responsible for felling trees at the bottom of the property and further that he denied that he would have lied to Ms Miller, noting his comments as follows (at Tcpt, 17 April 2018, p 121(7-12)): Q. If you did say it was there a reason why you weren't giving any further information? A. I wouldn't have said that. Q. Pardon? A. Not to a council officer.
5. Self-evidently, this answer is given on a contingent basis. In answer to that question, Mr Edgar does not purport to give a blanket assurance that he did not say but merely says that he would not. Arguably more relevant in this regard, but not specifically relied upon by the defendant, were Mr Edgar's comments extracted above at [75] (at Tcpt, 17 April 2018, p 118(31-36)): Q. You lied to her, didn't you? A. No, I didn't lie to her. Q. You see this is what you told her "we started here a week ago but I haven't been to the site before today"? A. That's incorrect.
6. In fairness to Mr Edgar, all of these comments must be seen in the light that he stated he could not remember the details of his conversation with Ms Miller on 21 October 2014. However, the proposition that he would not have said these things is contrary to the contemporary note of the conversation prepared by Ms Miller. Having regard to Ms Miller's evidence, the fact that she took a contemporaneous note of the conversation, and the fact that Mr Edgar on his own account could not recall the details of the conversation, leads me to the view that Mr Edgar did lie to Ms Miller in his initial conversation with her about his responsibility for the felling of trees at the bottom of the site.
7. On one view, not a great deal turns on this. As the prosecutor submits, the fact that Mr Edgar was untruthful to Ms Miller (and noting that it is unclear whether Mr Edgar was interviewed formally on that occasion), does not necessarily impugn his later evidence. However, the fact that he lied on that occasion does make it difficult to accept his evidence that he was subsequently unaware that he may have been in trouble in relation to the commission of the offence. It is difficult to understand his motivation for lying to Ms Miller if he did not believe there was the spectre of punishment awaiting him for the felling of trees at the site.

Mr Edgar's alleged lies about the pink paint

1. In cross-examination, Mr Edgar accepted as a general proposition that paint is sometimes used in his profession to mark trees that are to be cut down (at Tcpt, 16 April 2018, p 73(50)). However, he denied that any trees had been marked with paint at the site (at Tcpt, 16 April 2018, p 74(1-5)): Q. And did you or Mr McKenzie paint any trees? A. No. Q. Did you paint any trees? A. No.
2. He continued to deny that any trees were marked with paint (at Tcpt, 16 April 2018, p 74(38-47)): Q. And, can I suggest to you that some of those trees were marked with paint? A. No, they weren't. Q. Pardon? A. No. Q. Are you saying none of the trees that you cut down were marked with any paint? A. I can't recall any trees being marked or anything like that, no.
3. The defendant submits that Mr Edgar's denial that there was pink paint on any of the trees must cast serious doubt over his ability to give credible and reliable evidence. The defendant says that the use of the pink paint is a material piece of evidence which one would expect Mr Edgar to remember.
4. Contrary to the position of the defendant, I am not persuaded that one would expect Mr Edgar to remember the use of pink paint almost four years after the event. It is worth remembering in that regard that only 10 of the 74 trees the subject of the charge in these proceedings were marked with pink paint. In those circumstances, and noting that Mr Edgar did not gain any advantage by stating that none of the trees were marked with pink paint, I consider that in all likelihood Mr Edgar simply forgot that any trees had been marked with pink paint at the site. This might cause one to draw an adverse inference about his recall, but not his honesty (I note, however, that imperfect recollection is a matter which goes to the credibility of a witness, as that term is defined in the Evidence Act: Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328 at [265]. The characterisation of evidence as "credibility evidence" or otherwise is principally relevant to admissibility, but the accuracy of Mr Edgar's recollection is a matter I consider below when determining whether to accept his evidence).

Mr Edgar's alleged lies about the casuarinas

1. Mr Edgar gave evidence that the defendant initially wanted "three large casuarina trees" and the shrub closest to the house at the Carnarvon Road property removed (see above at [59]). The defendant submits that this evidence is a lie.
2. The defendant submits the following in relation to Mr Edgar's evidence about the three casuarinas: 1. Mr Edgar gave evidence that he attended the Carnarvon Road property and walked around it with the defendant (see above at [59]). Mr Edgar said that the defendant instructed him to remove the three closest casuarinas which were on the eastern side of the property within 10m. The defendant submits that this evidence is completely fabricated, unsupported by any other evidence, and inconsistent with objective evidence presented as part of the prosecution case. (I note, however, that the defendant did not identify the pieces of objective evidence with which it says this account is inconsistent); 2. Mr Edgar gave evidence that the conversation on that occasion involved the removal of three casuarinas close to the house (see above at [59]). The defendant again submits that this conversation is not supported by any other witnesses, is uncorroborated by any independent evidence, is completely fabricated, and is inconsistent with the objective evidence about which trees were removed; 3. Mr Edgar stated that the casuarinas were removed at the start of the job whereupon the defendant gave him further instructions (see above at [60]). The defendant submits that Mr Edgar is "piggy backing one lie off another to make his story sound credible"; 4. The survey evidence can be considered incontrovertible evidence which suggests that Mr Edgar was lying about this conversation and the directions he purportedly received. The survey evidence does not show three large casuarinas close to the house having been removed. The evidence shows the following trees close to the house: 1. Tree label 102 is approximately 13m from the house and near the concrete drain; 2. Tree label 65 is approximately 18m from the house; 3. Tree label 67 is approximately 30m from the house; 4. Tree label 52 is approximately 36m from the house; 5. Tree label 100 is approximately 38m from the house; and 6. Tree label 51 is approximately 40m from the house. 1. The defendant notes that the closest casuarina to the house is tree 102, but that this tree was marked as "fresh" by Ms Miller on 21 October 2014, indicating that it had been removed in the last three to four days. The defendant says that it cannot have been removed at the beginning of the job and further is near the concrete drain in an area which Mr Edgar said "wasn't us".
3. Having regard to those matters, the defendant says that the Court would commit an error by finding that Mr Edgar was telling the truth in relation to this evidence. The defendant submits that if the Court accepts the incontrovertible evidence that there were not three large casuarinas within 10m of the house at the Carnarvon Road property, Mr Edgar's evidence that he received such instructions cannot be accepted.
4. Further, the defendant notes that Mr Edgar did not tell Ms Miller about these instructions and did not mention them in his recorded interview with Mr Myles. The defendant submits that having regard to the significance of the evidence, one would expect Mr Edgar to have told the prosecutor about it prior to giving evidence in these proceedings in April 2018.
5. It is clear that the Degotardi, Smith & Partners survey (see above at [173]) does not show three casuarinas having been removed within 10m of the house at the Carnarvon Road property. However, it is also clear from the affidavit evidence of Ms Miller that the majority of the trees removed from the site were casuarinas. Moreover, Mr Edgar gave evidence that he did not measure the distance between the house and any of the trees felled (see above at [69]).
6. Further, the evidence which Mr Edgar gave in the proceedings was that the three casuarinas were "roughly 10 metres" from the house (at Tcpt, 16 April 2018, p 36 (5)), not necessarily that the trees were "within 10 metres". This was almost four years after the event, in circumstances where Mr Edgar had never taken measurements of the trees at the site. I acknowledge that the trees recorded on the Degotardi, Smith & Partners survey indicate the trees must have been between (at least) 18m to 36m away, but I am not persuaded that this is evidence capable of proving Mr Edgar's account was fabricated as opposed to being affected by Mr Edgar's memory and perhaps his failure to measure trees at the time the site was cleared.

Mr Edgar's alleged lies about contractors

1. The defendant notes that, during the course of his interview with Mr Myles, Mr Draeger "let slip" that one of Mr Edgar's cousins was present at the site. After the break in the interview, Mr Draeger said that he only knew the people at the site as labourers. Mr Draeger also gave evidence that, when he was not at the site, Mr Edgar's brother-in-law was there in his stead. Mr Draeger also gave evidence that he worked with two different backpackers from Avalon.
2. The defendant submits that Mr Edgar was not forthcoming with any of this information and that his omissions in that regard were "clearly an attempt to cover up the identity of the other workers who were on the site". The defendant says one possible explanation for this is that it was against his business interests to name those he was working with at the site as it would damage his reputation in the industry. The defendant also says that the omissions allowed Mr Edgar's lies to go unchallenged throughout the investigation which diminished his role in the commission of the crime.
3. The defendant notes that Mr Edgar agreed that the other climber was an itinerant climber who travelled all the states and further notes that Mr Edgar denied having a cousin or his brother-in-law at the site. The defendant submits that Mr Edgar clearly knew who else he had working on the site on the basis of his answer to Mr Myles' question (that he did not wish to give out names as he might incriminate himself or others), and further submits that adding to the evidence of a cover up is the lack of a paper trail which one would expect to exist for tax purposes.
4. I do not consider that it is affirmatively established that Mr Edgar was untruthful about the contractors who worked on the site. The fact that, when interviewed by Mr Myles, Mr Edgar was reluctant to give him the names of people who were with him on the site is a matter which gives me further cause to doubt his evidence that he did not consider that he might have been in trouble for the commission of the offence, but I do not consider that it is a matter which otherwise adversely affects his credit.
5. Whilst there are some discrepancies between the account Mr Draeger gave to Mr Myles with respect to the workers who were present for the work at the site and the account Mr Edgar gave in these proceedings, Mr Draeger's recall of the events was not especially good and it is certainly possible that he was interpolating the presence of Mr Edgar's cousin and brother-in-law from a different job. Moreover, even if it were established definitively that Mr Edgar's cousin and brother-in-law were present at the site whilst the works were carried out, which I do not consider is the case, Mr Edgar had a motive for protecting them from investigation which has no bearing on the truthfulness of his other evidence. It is not a matter which, even if established, I consider would necessarily detract from the reliability of the rest of Mr Edgar's account.

Assessment of Mr Edgar's credibility

1. In considering Mr Edgar's evidence, I have taken into account the judicial observations noted at [372]-[374]. I am entitled to accept part of a witness' evidence and reject other parts. I have watched Mr Edgar closely and considered both what he has said in his evidence and his demeanour. As I am conscious of the "scientific research that has cast doubt on the ability of judges (or anyone else) to tell the truth from falsehood accurately on the basis of such appearances" (Fox v Percy at [31]), I do not rely solely upon demeanour and I accept that it is important to look at the objective established facts, contemporaneous materials and, importantly, the apparent logic of events.
2. Moreover, as I considered above at [247]-[253] and [268]-[281] in relation to directions and warnings requested by the defendant, I repeat that I approach Mr Edgar's evidence with caution in that he may have desired to shift the blame from himself to the defendant and may have constructed an untruthful version of events. Further, he may have been motivated by the fact that he received a penalty which took into account as a mitigating factor the assistance he was to give in the prosecution of the defendant.
3. In my assessment of Mr Edgar's evidence, I am also conscious of the direction in the Bench Book (noted at [275] and [276] above) and the careful submissions of the defendant in this regard. I take into account the warnings that his evidence may be unreliable and, as I have noted above, I consider the evidence of Mr Edgar is of the kind that may be unreliable because he is a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. Accordingly, I approach his evidence with caution in that regard.
4. As I have found above (at [288]), I do not consider a warning is warranted in relation to the suggested prior inconsistent statement (as suggested by the defendant) however I take into account the evidence that Mr Edgar in his conversation with Ms Miller of 21 October 2014 denied having cut down the trees at the south of the site and made no mention of the defendant. In each respect, his comments when speaking to Ms Miller were contrary to his evidence given in the course of these proceedings.
5. However, consistently with my consideration at [384]-[385] above, I do not find that this is a determinative matter although it does lead me to treat Mr Edgar's claims that he did not suspect that he was in trouble with caution. I do not consider that anything turns on the fact that Mr Edgar failed to identify the defendant in his conversation with Ms Miller because, in that conversation, Mr Edgar denied having cut down the trees at all. It does not necessarily follow that the reason he did not identify the defendant at that time is because the defendant had not instructed him to cut down the trees. Rather, Mr Edgar appears to have wished to avoid liability entirely. Receiving instructions from the defendant would not have inoculated Mr Edgar from legal responsibility in respect of actually having cut down the trees. Indeed, as much is illustrated by the fact that he was sentenced in the Edgar proceedings despite it being an agreed fact for the purpose of those proceedings that he was acting under instruction.
6. Whilst again attempting to avoid repetition, I have dealt with above the defendant's allegations of collusion and contamination in relation to Mr Edgar (and Mr McKenzie and Mr Draeger) in the various instances as submitted by the defendant (at [305]-[328]), and in relation to the alleged collusion "facilitated" by Mr Myles (at [329]-[345]). I have also dealt with the alleged collusion over the phone generally (at [346]-[352]) and the further alleged collusion between Mr Edgar and Mr Draeger (at [353]-[358]). I do not repeat my earlier consideration and my findings but take those matters into account in assessing Mr Edgar's credibility especially in regard to the further circumstances raised by the defendant (noted and considered at [375]-[400] above).
7. The defendant made a significant and sustained attack upon Mr Edgar's credibility particularly that he fabricated his evidence and answers given to Mr Myles; that he fabricated evidence about instructions he was given by the defendant to clear trees (specifically in relation to the casuarina trees); that he and Mr McKenzie "got their heads together" to blame the defendant; that by the time he had his interview with Mr Myles he "had his story straight with Mr McKenzie"; that he was anxious for Mr McKenzie to corroborate his version; that he used the defendant as a scapegoat; that he was prepared to give evidence against the defendant because it would assist his own matter before the Court; and that the trees had been cut down at his own "initiative" (at Tcpt, 16 April 2018, p 85(24-26)).
8. The nature and extent of Mr Edgar's evidence has been summarised above at [58]-[93].
9. My overall impression is that Mr Edgar is a witness of truth. Whilst I had some concern in relation to his initial communications with Ms Miller, I consider that he displayed an appropriately sincere and honest demeanour when he gave evidence including sustained and forceful cross-examination much of which went directly to his credit.
10. I accept that his initial dealing with Ms Miller sat uncomfortably with his later evidence however I accept the submission of the prosecutor and I find that the lack of detail given to Ms Miller, particularly in relation to the defendant, in the initial attendance (which I have considered at [383]-[385] above), does not significantly affect my consideration of his later evidence.
11. In relation to the alleged lies about the pink paint, I have dealt with this at [389] above; in relation to the alleged lies about the casuarinas, I have dealt with this at [394]-[395] above; and, in relation to the alleged lies about the contractors, I have dealt with this at [399]-[400] above.
12. There are a number of aspects of Mr Edgar's evidence about which I do harbour some concern. In particular, I find his evidence that he did not believe he was in trouble at material times difficult to accept and I also consider that his recollection of various events is imperfect.
13. Despite this, in all of the circumstances, I accept Mr Edgar as a witness of truth in relation to the matters which I consider are of significance. These relate particularly to his evidence regarding the conduct of the work on the site in October 2014; the time he was on the site; and the nature and extent of the work involving removal of trees, shrubs and bushland.
14. I also accept Mr Edgar's evidence that the work was done in stages, the first stage being the removal of casuarinas on the eastern-side of the property at the defendant's direction, together with the removal of some shrubs close to the house; and thereafter, the second stage being the progressive removal south of the property.
15. I accept, with some caution, the bulk of Mr Edgar's evidence in relation to the work undertaken which he marked on the aerial photograph, however I find that the area which he marked in the interview with Mr Myles was an understatement or under-recording of that which was cleared at the site. The general shape of the clearing on the map is broadly consistent with the pattern that was undertaken but it is clear, having regard to the other evidence before the Court, and in particular the survey map prepared by Degotardi, Smith & Partners, Mr Edgar understated the extent of clearing. He may have done so to minimise his own involvement in the offence or he may have done so because he was confused by the nature of the aerial photograph which showed some areas completely free of trees and others which were merely thinned. I find that Mr Edgar's evidence was understated in this regard in the context of the evidence in the proceedings including the evidence of the other witnesses regarding the trees that were cut down.
16. Importantly, I accept Mr Edgar's evidence in relation to the defendant's attendances upon the site and the instructions and/or directions given. As I shall explain below, although I treat it with caution, this evidence is corroborated by the accounts given by Mr McKenzie and Mr Draeger. Whilst I note that the defendant submitted that the contractors are unable to corroborate one another because they are accomplices, for the reasons given above at [282]-[285], I do not accept this submission. Moreover, I find that the evidence given by Mr Edgar in this regard is consistent with the "apparent logic of events" (Fox v Percy at [31]). This is a consideration I return to later in the judgment.

The credibility of Mr McKenzie

1. The prosecutor submits that, whilst it would be fair to conclude that Mr McKenzie was initially uncooperative when the prosecutor first attempted to arrange an interview, the evidence does not establish that he fabricated any aspect of his evidence, and that the defendant has failed to make a persuasive argument to the contrary.
2. The prosecutor notes that Mr McKenzie was in the witness box for a number of days and was the subject of "searching and robust" cross-examination. The prosecutor submits that, in giving his evidence, Mr McKenzie was open, prepared to make concessions, and candid about what he could and could not remember. The prosecutor submits that he should be accepted as a witness of truth.
3. As noted at [377] above, the defendant submits that Mr McKenzie was evasive, had a very selective recall, used the phrase "couldn't recall" on many occasions, avoided eye contact, had poor body language, and took a number of long pauses whilst giving evidence. The defendant also submits that Mr McKenzie had "the audacity to claim that he was confused when he said he 'sat' on a letter". The defendant says that the Court will recall the way Mr McKenzie tried to "distance his father from the run around until he was confronted by the letter that his father had signed".
4. The defendant makes one specific claim that Mr McKenzie lied while giving evidence which is that he fabricated his account of the defendant instructing him to mark certain trees with pink paint (see above at [114]). The defendant notes that prior to giving evidence in these proceedings, Mr McKenzie never mentioned that he was directed to mark certain trees with paint and submits that this is a recent invention which amounts to fabrication on a material issue.
5. The defendant further submits that Mr McKenzie's evidence about the defendant pointing out specific trees from the locations identified by Mr McKenzie is a nonsense and inconsistent with his own evidence that the defendant identified areas rather than "what tree to chop out" (at Tcpt, 25 October 2018, p 535(10-12)). The defendant says that it is "inconceivable that the defendant from the clothesline or veranda could have singled out 3 or 4 specific trees, 45 to 60 metres away, amongst so many others".
6. Moreover, the defendant submits that Mr McKenzie could only have been concealing the information that he marked trees with pink paint because it would have put him in a position of control over the tree loppers. The defendant says there is no other explanation for Mr McKenzie leaving out a material piece of information in the case.
7. I have taken into account the judicial observations noted above at [372]-[374]. I refer to my consideration of Mr McKenzie's evidence both by way of summaries at [94]-[134] above and further, in relation to directions and warnings requested at [282]-[284], [288] and [294]-[295]. I have also dealt with the defendant's specific allegations in relation to collusion and contamination involving Mr McKenzie at [305]-[352].
8. Having watched Mr McKenzie closely and considering both his evidence and his demeanour in the witness box, and conscious of the limited utility of demeanour as an indicator of truthfulness when considered in isolation, my overall impression is that Mr McKenzie is a witness of truth. For abundant caution, although not in my view relevant, no criticism of Mr McKenzie could be made that Mr Dahtler was present during his interview.
9. The fact that Mr McKenzie was initially uncooperative in relation to the attempts by the prosecutor to arrange an interview is not conduct which I consider affects his credibility. His explanation and conduct regarding his receipt (or otherwise knowledge) of the initial letter requesting an interview from the prosecutor is of some concern, however in all the circumstances, I consider that it is not a significant concern and somewhat understandable. Whilst the defendant seeks to make much of this initial conduct, I do not consider that it is of significance in relation to his credibility.
10. He was subject to significant testing in lengthy cross-examination over a number of days. In total, he was in the witness box for five days, from Monday 22 October 2018 to Friday 26 October 2018. A good deal of his evidence is not in dispute and parts are corroborated by independent evidence such as phone records, as I consider below. It was not in dispute for example, that he had been retained by the defendant and there is evidence in the phone records to suggest that he was honest and reliable when he gave evidence that he had been in phone contact with the defendant. Further, his account of the defendant telling him that he wished to carry out building works at the site is consistent with the evidence of Mr Hyden and Mr Hutton. I consider that he was candid in his evidence about that which he could remember and that which he could not. I also consider that he was able to make concessions and his inability to recall certain matters is not indicative of evasiveness.
11. In relation to the defendant's other submission that Mr McKenzie fabricated his evidence regarding the defendant's instructions to mark certain trees with pink paint, and in particular that it was not "raised earlier" (as per [420] above), I am not persuaded that the defendant has established that this evidence was fabricated. I accept his evidence that he was directed to mark trees with pink paint by the defendant is not corroborated or mentioned by any other witness, but the evidence of Ms Miller demonstrates that 10 trees on the site were marked with pink paint, and the location of the trees so marked was broadly consistent with the area in which Mr McKenzie stated he marked trees on the defendant's instruction.

The credibility of Mr Draeger

1. The prosecutor submits that, whilst Mr Draeger "did not have a very good recall of the relevant events", he exhibited an untroubled and open demeanour in giving his evidence and that he too should be regarded as a witness of truth.
2. The defendant did not make any specific allegation that Mr Draeger told untruths in the course of his evidence, but submitted, as noted above at [268]-[288] and [293]-[295], that various warnings and directions should be given about the dangers of accepting his evidence.
3. In relation to Mr Draeger's credibility, I initially note my findings above. At [285], I found that as Mr Draeger did not give evidence while under any genuine apprehension of being punished for his involvement in the commission of the offence, so did not have any motive to deflect blame, and I did not consider that a warning or direction was appropriate in relation to either accomplice evidence (or being criminally concerned) or in relation to Mr Draeger having a motive to lie. At [357], I found that whilst there was an opportunity for collusion between Mr Draeger and Mr Edgar, there was no evidence of collusion. I consider that, although Mr Draeger had some difficulty with his recollection of events, this was understandable given the effluxion of time. Finally, having observed his demeanour in the witness box, he appeared on the whole to be responding to the questions as well as he could. In all, I find that he is a witness of truth.

Matters said to corroborate the account of the defendant

1. The defendant submits that the credibility of his account given in his record of interview is bolstered by the fact that the following matters are corroborated in the evidence: 1. Mr Edgar accepted that he did landscaping work; 2. Mr Edgar's full name was Craig Edgar, not Craig Martin; 3. Mr Edgar did do work for the defendant in the past; 4. Mr Edgar did charge $4,000 for one day's work previously; 5. Mr Edgar did not charge $4,000 a day on this occasion but a daily rate of $2,000; 6. The defendant has never come to the attention of the prosecutor or any other law enforcement agency before; 7. The defendant was out of the country from 10 to 14 October 2014, on 30 October 2014, 11 November 2014, and also left the country on 17 November 2014; 8. Mr Hutton gave evidence that there was "bushy stuff" that might get in the road when they were going to bring a beam in and he wanted to have a clear pathway; 9. The Roseville Golf Club honour board has an "HJ Sykes" listed upon it at a time when the defendant says he spoke with Mr Sykes; and 10. Mr Robertson gave evidence that other land owners have informal agreements with Roseville Golf Club to maintain green spaces on the land which is consistent with the defendant's evidence that he had an informal agreement, albeit many years earlier, with the golf club.
2. I accept each of these matters. I also note Mr Steirn's oral submission (at Tcpt, 4 November 2018, p 1420(33-37)): I made the point during the trial, your Honour, that if [the defendant in his record of interview] trots out matters which are lies, and the lies can be proved, then, of course, that counts against him. If, however, he tells the truth, then that supports his version that he's giving a consistent account.
3. On this basis, the defendant submits that the fact that Mr Sykes' name appears on the honour board at Roseville Golf Club (a photograph of which was admitted into evidence) is a significant matter that goes to the defendant's credit. I accept that the honour board provides support for the account the defendant gave of having made an agreement in respect of the Roseville Golf Club. However given that this relates to an agreement made many years earlier than the events in these proceedings, I do not consider that the fact the defendant gave an accurate account of Mr Sykes' name has significant bearing on the other evidence he gave in his record of interview. Indeed, the defendant's evidence in this regard might equally be said to provide support for the accounts of Mr Edgar and Mr McKenzie each of whom gave evidence that the defendant told them about the existence of an arrangement between the defendant and Roseville Golf Club.
4. The defendant further submits that Ms Miller, in giving evidence that she was aware of the existence of Mr Sykes but saying that she never investigated further or included this in her affidavit, demonstrated an "example of avoiding exculpatory evidence that would assist the defendant".
5. I find this submission difficult to understand. The existence of an agreement between Roseville Golf Club and the defendant to clear land, even if it had existed at the time of the alleged offence (and the defendant himself admitted that it did not in his record of interview), could not have been exculpatory. That is because, even if the defendant had the permission of the golf club to remove trees, he would still have required development consent to remove them. He could not have taken advantage of the 10/50 Code because none of the trees removed from the Roseville Golf Club land were within 10m of an exterior wall of the house at the Carnarvon Road property.
6. However, I do accept that the matters identified by the defendant at [431] are matters which aid his credit, at least insofar as they corroborate the account he gave in his record of interview. However, it is clear that none of the corroborated matters are matters which go to the core issue of the case, being whether he instructed the contractors to remove the trees the subject of the charge.

The defendant's claimed assumption that the contractors would obey the law

1. The defendant refers to the comments of Mason CJ, Brennan, Deane and Dawson JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 ('Neat Holdings') at 450: Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct (citations omitted).
2. The defendant says that this principle applies a fortiori in a criminal trial and submits that when the defendant gave Mr Edgar instructions, he was entitled to assume that Mr Edgar would follow them and not break the law. The defendant says that this assumption is supported by the defendant's prior engagement of each of Mr Edgar and Mr McKenzie.
3. It is difficult to see how Neat Holdings can have any bearing on the present case. Leaving aside the fact that the Court is not, on any view, being asked to make a finding that a party to civil litigation was guilty of criminal conduct and leaving aside also that the principle in Neat Holdings might be thought to have less applicability where there is, as in this case, incontrovertible evidence that criminal conduct has taken place, the principle does not assist my consideration.
4. Whilst it can be accepted that there is a presumption that members of society do not ordinarily engage in criminal conduct, a direction to commit criminal conduct would surely dislodge such a presumption. It is clear from the principles relating to accessorial liability that, in order to be criminally liable, the defendant must have ordered the contractor to do the act which constitutes the offence, to do some act which comprises that act, or to do some act which leads by all physical necessity to the offence (see Walker No 2 at [116]; Stoneman v Lyons at 573-574). If the Court is satisfied beyond reasonable doubt that the defendant has ordered criminal conduct to be carried out, it can hardly be thought that the defendant can rely upon an assumption in civil law that people do not ordinarily carry out criminal offences.
5. Accordingly, I do not consider that Neat Holdings assists the defendant, nor do I consider that it is relevant to the present proceedings.

The defendant's claimed reliance on expertise

1. The defendant submits that, in addition to the fact that the defendant was entitled to assume that Mr Edgar, Mr McKenzie and Mr Draeger would not break the law, he was entitled to rely upon their expertise in relation to their ability to stick to the rules.
2. Mr Edgar gave evidence about being contacted by the defendant as follows (at Tcpt, 16 April 2018, p 34(18-21)): Q. When Mr Chia rang you would you tell his Honour what did he say about what he wanted you to do when he first rang you? A. He was worried about bushfires, and he wanted me to come along and have a look at his property and see what we can do about clearing it.
3. The defendant submits that "the defendant relied upon Mr Edgar's expertise to work out whether or not the trees could be removed under the 10/50 rule. It was Mr Edgar's error in his judgment which caused the trees to be removed not the defendant's".
4. The defendant further submits: …the idea that an independent contractor, who runs a company called Expert Tree Solutions, who markets themselves as "the tree solution experts" being established in 1995, with twelve years' specific experience in his industry, who knows that it is a serious offence to chop down trees unlawfully, would blindly follow the illegal instructions of a 66 years old retiree who had no experience in his industry, without questioning him, or exercising his own professional experience, or asking his co-workers who also have experience for advice, and ignore his own independent judgment is ridiculous.
5. It is fair to conclude that each of Mr Edgar, Mr McKenzie and Mr Draeger had an inaccurate understanding of the 10/50 Code both at the time they carried out work for the defendant and when they gave evidence in these proceedings. It may well be that if they had had more detailed knowledge of the rules surrounding tree removal the commission of the offence would have been avoided. However, this does not alter the fact that the offence is one of strict liability.
6. The defendant submits that expecting a lay person to supervise and second-guess the work of a professional is a "nonsense" and that it is unfair to place the defendant at the top of the hierarchy in terms of the instruction and direction which led to the trees being unlawfully removed.
7. I do not consider that these matters are capable of assisting the defendant. The only outstanding issue in these proceedings is whether the defendant instructed the contractors to carry out the work which constitutes the offence such that he is vicariously liable. If the Court is satisfied beyond a reasonable doubt that he did so, the defendant cannot rely upon the expertise of the contractors who carried out the clearing.

The defendant's motive to clear the site

1. Although the offence with which the defendant is charged is one of strict liability such that the prosecutor does not have to establish any particular mental element, the prosecutor submits that it is axiomatic that people do things for a reason and that the defendant had a reason to order the clearing of the land at the site.
2. The prosecutor submits that the evidence given by Mr Hutton (see above at [185]-[186]) and Mr Hyden (see above at [216]-[217]) establishes that the defendant wanted to carry out fire hazard reduction on his land and neighbouring land and that this would enable him to carry out works on the house at the Carnarvon Road property, including the possibility of an extension.
3. Further, the prosecutor notes that Mr Hyden's subsequent correspondence with the prosecutor and Roseville Golf Club establishes that fire hazard reduction was the defendant's key concern. The prosecutor submits that the clearing which took place is consistent with that motive. When he was appointed as the defendant's agent, Mr Hyden asked Mr Willis to prepare a further report, which stated that despite the clearing which had already been carried out, the Carnarvon Road property was still at risk and further clearing was required. Mr Hyden sought the support of the prosecutor, the NSW Rural Fire Service, and Roseville Golf Club to carry out further clearing but no such support was forthcoming.
4. Mr McKenzie (see above at [96] and [110]) also gave evidence that the defendant wanted the land at the site cleared for the reduction of fire hazards. In his record of interview, the defendant said that he was concerned about "what other people refer to as fuel load which I understand and understood to mean a fire hazard" in relation to the Carnarvon Road property. He also said that he was concerned about trip hazards at the site.
5. I consider that the defendant did have a motive to carry out the clearing the subject of the charge. He was, on his own account, concerned about the risk of fire at the Carnarvon Road property and there is also evidence that he was considering carrying out building work.

The motive of the contractors

1. I note that in contradistinction to the motive of the defendant, it is difficult to see what motive the contractors could have had for clearing the site independently.
2. However, the defendant did submit, as noted above at [445], that the idea that experts retained by the defendant to carry out work would blindly follow his instructions without determining whether it was lawful or exercising their own judgment is "ridiculous".
3. I consider that the difficulty with this submission is that the defendant asks the Court to accept that it is ridiculous that the contractors would rely upon the instructions of the defendant whilst simultaneously asking the Court to accept that the contractors carried out the clearing without any instructions at all. If it is ridiculous that the contractors followed the defendant's instructions, it can hardly be thought to be less ridiculous that they did so in the absence of any instructions.
4. It might have been suggested, although it was not, that because the contractors were being paid a daily rate they exceeded their instructions so as to be paid more. The logical difficulty with this proposition is that it assumes that the contractors expected to be paid for work they had not been asked to carry out.
5. In his record of interview (see above at [233]), the defendant said that he told Mr Edgar that he had "a very limited amount of money" and that if the work took "a couple of days then that's fine". It might be thought that, in those circumstances, it is particularly unlikely that the contractors would have expected to be paid for working longer than "a couple of days" or outside the instructions they had received.
6. I do note, however, that the defendant also said that, in answer to a question about whether he had paid Mr Edgar, Mr Edgar had "demanded some money and I paid him. Umm... I'm not going to stand there and…" I understand this to mean that the defendant is stating that he paid Mr Edgar money for work in excess of that which he had asked to be carried out.
7. In the circumstances, I find that the contractors had no motive to clear land beyond that which they were instructed to carry out and consider that it is highly unlikely they would have expected to be paid for work in excess of their instructions.

Character traits of the defendant

1. The prosecutor submits that the defendant's account of the commission of the alleged offence is contrary to evidence of the defendant's character given by Mr Hutton and Mr Hyden. The prosecutor notes that Mr Hutton gave evidence (see above at [188]-[189]) that the defendant was thorough in what he does and generally looks at all aspects and that they had planning meetings including one which lasted for four hours. Mr Hutton said that the defendant asked a lot of questions, that he would generally look for information, and that he did his own research. The prosecutor also notes that Mr Hyden gave evidence (see above at [221]) that the defendant had an incredibly particular knowledge of all the work that had been done at the Carnarvon Road property and that he took a great interest in specifications and the like.
2. The prosecutor submits that the evidence is consistent with the defendant being a person intent on keeping control and that the weight of the evidence is consistent with the contractors' version of events. That is, the prosecutor says that the evidence is consistent with the defendant having been present on the site whilst the contractors were working, closely supervising their work, and directing them as to what trees he wanted them to cut down.
3. The defendant submits that, in making this submission, the prosecutor has overlooked important evidence about the defendant's character including that Mr Hyden gave evidence that the defendant would leave it to the experts to do their job properly (see above at [221]) and that Mr Hutton gave evidence that the defendant would leave it to him to follow the rules and regulations in his profession (see above at [188]).
4. I consider that the evidence of both Mr Hyden and Mr Hutton, considered as a whole, portrays the defendant as a person who takes an active and close interest in the projects and endeavours in which he is involved and this was particularly so in relation to the Carnarvon Road property. This is so, even when he retains others with specific skills and qualifications. This is illustrated, for example, by his dealings with both Mr Hutton and Mr Hyden in relation to various matters relating to the Carnarvon Road property both before and after the matter the subject of these proceedings, such as building and proposed building works, design matters, attendances with and correspondence to the prosecutor, Roseville Golf Club, and various authorities (such as NSW Rural Fire Service, whom Mr Hyden contacted on the defendant's behalf).
5. Whilst I accept (as noted at [254]) that the defendant is a person of good character, I find that this is not inconsistent with an active involvement with matters in which he has an interest.
6. I consider that this evidence, when considered with the rest of the evidence as a whole, is consistent with the defendant being onsite on a number of occasions during the works undertaken by the contractors and actively directing (or giving instructions) in relation to the works he wanted undertaken.

Timeline of events

1. It is helpful to set out some of the most relevant matters in a timeline. It is clear that sometime in September 2014, the defendant asked Mr Edgar to carry out certain works.
2. It appears that the works commenced in either late September or early October 2014. It was Mr Edgar's evidence that they began on 3 October 2014, which he said was around four days after he first received instructions. In any event, the works commenced around late September or early October 2014.
3. I note that the defendant submits, contrary to this position, that the work started in mid-September and that Mr Edgar erroneously gave the date of 3 October 2014 on the basis that a photograph, which is in evidence, was taken on this date and he thought that he took it "roughly at the start of the job" (at Tcpt, 16 April 2018, p 37(38-40)).
4. The defendant submits that, when one looks at all of the evidence and having regard to the fact that Mr Draeger said pruning occurred at the start of the job followed by small removals, the work must have started earlier than 3 October 2014. The defendant says that if Mr Draeger's evidence that he was absent from the site three weeks before the arrival of officers from the prosecutor is correct, he would have finished working on the site on the week ending 3 October 2014.
5. I do not consider that a great deal turns on this, but having regard to the prosecutor's concession that Mr Draeger did not have a particularly good recall of events as well as the fact that he thought the job took between two to three months, I would not place great reliance on the fact that Mr Draeger thought he was not present at the site for three weeks before officers from the prosecutor arrived, and I consider the better view on the whole of the evidence is that the works commenced around the end of September 2014.
6. This is consistent with the evidence of Mr McKenzie who stated that he was on the site for three or four consecutive days in early October 2014 (the work had already begun by then, see above at [99]) and then, after approximately four days' break, returned to the site for another two days. He said that the second tranche of days was after the Labour Day long weekend, which was 6 October 2014. This would put Mr McKenzie's initial arrival at the site on 29 or 30 September 2014.
7. The defendant's flight records show that he flew to Singapore on 10 October 2014 and arrived back in Sydney on 14 October 2014.
8. On 16 October 2014, Ms Miller hand-delivered a "stop work" letter to the defendant's Killara property.
9. Both Mr Edgar and Mr McKenzie gave evidence that they attended a meeting in the garage at the defendant's Killara property to get paid. It is the evidence of Mr McKenzie that he attended the defendant's Killara property prior to 21 October 2014 because the defendant asked him to return to the site to clear up (see above at [121]). It is not agreed that any meeting took place before 21 October 2014.
10. On 21 October 2014, Ms Miller and other officers from the prosecutor attended the site. Ms Miller interviewed Mr Edgar and took Mr McKenzie's licence details.
11. At approximately 4:30pm on 21 October 2014, the defendant called Mr Robertson at Roseville Golf Club. Mr Robertson gave evidence that the defendant was seeking the golf club's permission to carry out clearing on land owned by Roseville Golf Club and to the rear of the Carnarvon Road property (see above at [196]).
12. On 23 October 2014, Mr Hyden was appointed the defendant's agent. Mr Hyden gave evidence that he attended the defendant's Killara property at around 3:00pm and that he opened the letter from the prosecutor (this was the "stop work" letter hand-delivered by Ms Miller on 16 October 2014). Later that day, there was a meeting in the defendant's garage at his Killara property which Mr Hyden, Mr Edgar, Mr McKenzie, and the defendant attended.

The alleged directions

1. Against that background, it is convenient to address the prosecutor's submissions in respect of the key issue in the proceedings: whether the defendant directed that the clearing be carried out.
2. The prosecutor submits that the Court need not be satisfied that the defendant directed every tree the subject of the charge be removed and that the offence will be proved if that direction is only established with respect to some of the trees the subject of the charge. The prosecutor refers in that regard to the decision of Pain J in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 ('Johnson').
3. In Johnson, each defendant was charged with the clearing of trees, being the felling and/or clearing of 13 eucalyptus tereticorins (forest red gums) and approximately 200 acacia parramattensis (black wattles). At [162], her Honour found: The direct evidence is sufficient to establish that there was direct authorisation of conduct giving rise to the removal of the black wattle trees but not the forest red gums. It is supported by the inferential evidence and the evidence of admissions made.
4. At [195], her Honour concluded: For the reasons explained above, I find each of the offences with which Mr Johnson and Johnson Property Group Pty Ltd are charged to be proved beyond reasonable doubt. I note that while the elements of the offences have been proved the Prosecutor has not established all the particulars relied on in relation to the offences. The proceedings should be re-listed for further hearing and submissions on penalty and costs.
5. The prosecutor submits that the Court would be satisfied that there was a direction to cut down all of the trees that were removed and that the clearing was a direct response to the defendant's directions for three reasons: 1. The defendant admits to directing the removal of those trees located within the areas marked by blue and red lines by Mr Edgar; 2. There is uncontested evidence that the defendant directed Mr McKenzie to remove 10 trees that had been painted with pink paint; and 3. With respect to trees cleared beyond those areas, the Court would find that the prosecutor has proved beyond reasonable doubt that the defendant directed the clearing of those trees during his visits to the site on days subsequent to the first day. The prosecutor submits that the contractors' evidence in that regard would be accepted because the Court should accept them as witnesses of truth.
6. I note that, as canvassed above, the fact that Mr McKenzie was directed by the defendant to remove the 10 trees marked with pink paint is no longer uncontested; if, indeed, it was ever uncontested. The defendant's position, as noted above at [114] and [420], is that Mr McKenzie fabricated this evidence. The defendant calls in aid the fact that Mr McKenzie did not mention it during his recorded interview with Mr Myles or on any occasion prior to giving evidence in these proceedings.
7. In respect of the first reason submitted by the prosecutor, that there is agreement that the defendant directed the clearing of the area marked by blue and red lines by Mr Edgar, I note that Mr Steirn said the following during the hearing (at Tcpt, 17 April 2018, p 139(9-15)): Your Honour, our case is, so there's no doubt about it, that our instructions to Mr Edgar are confined to the blue and red lines of which Mr Edgar has given evidence of in‑chief and in cross‑examination. It is open ended and ambiguous to say the least to talk about what he cleared in terms of what Mr Chia had to say. It has to be circumscribed by the evidence involving the blue and red lines. To put it any other way is a misleading question to put in re‑examination.
8. To similar effect, Mr Steirn also said the following in answer to a question I asked about the status of the blue and red lines (at Tcpt, 17 April 2018, p 139(45-48)): Correct, your Honour. We are saying, in essence, that the blue and red lines on our case in cross‑examination circumscribes that area of the property in a general sense which Mr Chia gave instructions to be cleared and not further.
9. In written submissions, the defendant says that the prosecutor is trying to deal with the fact that "the red and blue lines cannot be linked with any of the trees the subject of this charge". The defendant submits that there is no evidence that any of the trees removed were within the red and blue lines marked by Mr Edgar. Moreover, the defendant submits that none of Mr Steirn's comments above constitute an admission that the defendant gave instructions that trees within the red and blue lines be removed.
10. When the map marked with red and blue lines is compared to the survey plan prepared by Degotardi, Smith & Partners which identifies the location of the trees which were removed, it appears to me that at least some of the trees (indeed, quite a number) the subject of the charge are located in the area demarcated by Mr Edgar's red and blue lines.
11. However, this is not necessarily determinative if the defendant has not conceded that he instructed the contractors to clear trees in that area.
12. Without intending to be needlessly repetitive, it is worth setting out some of the evidence given by each of the contractors as to the instructions they received.
13. Mr Edgar gave evidence (see above at [60]) that "each day we would do work John would meet us at the property and he saw what we actually did and he got us to go further and further down. So every day he got us to do more and more cutting of the shrubs on the southern side of the property and eastern side". He said (see above at [66]) that the defendant gave instructions in the following terms: "'I want all this cut down. I want all this cut.'" He also said (see above at [71]) that the defendant told him that if "we were to go on golf course land he had permission from Roseville Golf Course to clear any trees or shrub".
14. Mr McKenzie agreed (see above at [97]) that the defendant had initially asked that the site be "maintained, kept trimmed and tidy". However, Mr McKenzie gave evidence that the instructions evolved when he went on to say (see above at [105]) that when the defendant returned to the site, the defendant "was wanting to discuss with me sort of a long term plan he had for his garden that was possibly going to involve us doing actual building design work onto there. I think we sort of discussed sort of more of what he wanted to clear in the yard". In particular, Mr McKenzie said that the defendant said, in respect of certain casuarinas, that he "would like to see those cleared. Not all of them, like, there was just certain ones". Mr McKenzie also gave evidence (see above at [109]) that the defendant, after identifying the casuarinas on the site by name, said that he "didn't want to see those ones from his place".
15. Mr Draeger did not give evidence that he was personally given instructions by the defendant, but stated that "I did hear conversations going on it was, 'I want that cut over there. I want that cut over there,' just, you know, pointing" (see above at [141]). Mr Draeger also gave evidence that the defendant wanted to get his "money's worth" (see above at [139]).
16. The phone records of Mr McKenzie indicate that the defendant was in communication with Mr McKenzie on the following days: 1. 3 October 2014; 2. 6 October 2014; 3. 7 October 2014; 4. 8 October 2014; 5. 9 October 2014; 6. 10 October 2014 at 8:33am; and 7. 14 October 2014 at 11:00am.
17. The location data attached to the phone records establishes that on each of those days, the defendant's phone was in Sydney. The overwhelming inference, which I draw on the evidence, is that the defendant was in Sydney and in contact with the contractors on those days. This evidence also establishes that the defendant was in contact with Mr McKenzie immediately prior to departing for Singapore and immediately upon his return.
18. The first thing to note about the totality of the evidence in relation to the alleged directions is that, whilst the accounts given by each of the contractors about the instructions they received from the defendant exhibit certain similarities, they are not so similar as to give rise to a concern that they are contrived. In other words, and accepting that this is not on its own a determinative consideration, if one looks at the accounts given by each of the witnesses together, they are not redolent of the contractors having colluded.
19. The second thing that is worth noting is that Mr McKenzie's reference to the defendant wanting to carry out "actual building design work" finds some support in the evidence given by Mr Hutton and Mr Hyden. Mr Hyden said that architects had been retained to investigate options at the Carnarvon Road property but that their services were terminated in about March 2014. Mr Willis' fire assessment of the Carnarvon Road property was dated 3 March 2014, and, according to Mr Hyden, the risk of fire and difficulties this would create for any development application process was one of the principal reasons that options for further building work were not further investigated.
20. The third thing to note is that Mr McKenzie gave evidence (see above at [111]) that he reported progress to the defendant over the phone. Mr McKenzie stated that this took place "after the first group of days", which means after Mr McKenzie returned to the site following the Labour Day public holiday (which was 6 October 2014). As can be seen from the phone records, he and the defendant were in communication (or attempted communication) on 3 October, 6 October, 7 October, 8 October, 9 October, 10 October and 14 October 2014.
21. Mr McKenzie's evidence in these proceedings was that he reported to the defendant over the phone "one, maybe two" times and that it would have been "an update on clearing, how far we were getting". Most of the phone records indicate brief calls being made between Mr McKenzie and the defendant (a length consistent with either very brief conversations or perhaps messages being left) as well as text messages on 3 October, 7 October and 14 October 2014. However, one call on 8 October 2014 lasted for 604 seconds, or just over 10 minutes. The duration and date of this call adds credence to the account given by Mr McKenzie.
22. I note that it is submitted on behalf of the defendant that there is no evidence about the contents of the phone calls and that "the contents of any phone call made was never put to any witness" and that, in those circumstances, the prosecutor cannot ask the Court to draw an inference that the defendant was taking a controlling interest in the work being carried out at the site. The defendant submits that the prosecutor could have asked the witnesses in re-examination what they spoke to the defendant about but did not do so, and that the phone calls could have been about any number of things.
23. I do not accept the proposition that there is no evidence about the contents of any phone call having regard to the fact that Mr McKenzie did give evidence about reporting the progress of the clearing to the defendant by phone. Moreover, even in the absence of that evidence, I consider that it would be illogical to assume that the phone contact was not made in respect of the work at the site, at least in a general sense. It is not disputed that the defendant retained Mr McKenzie to carry out work at the Carnarvon Road property or that when the phone records show that communication between them took place in early October 2014 he was doing so. There was no other reason for the defendant and Mr McKenzie to contact each other. I cannot accept the proposition that they were not speaking about the work being undertaken at the site.

Whether there is a reasonable hypothesis consistent with the defendant's innocence

1. It is axiomatic that in order to prove the defendant's guilt, the prosecutor must negate all reasonable hypotheses consistent with the defendant's innocence beyond a reasonable doubt.
2. In Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 at 605-606, Windeyer J said: The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt - that they cannot be so satisfied if there be still open some reasonable hypothesis compatible with innocence.
3. If there is a rational hypothesis which the prosecutor has not negatived, the defendant is entitled to an acquittal. In the present case, the defendant has tendered his own record of interview which presents a version of events said to be consistent with his innocence. He does not have to prove that his account is true. If I consider it a reasonable hypothesis, the prosecutor will have failed to discharge its onus.
4. Although I do not need to make a finding about the defendant's account save for whether it is "reasonable" as opposed to believable, I note that a number of matters cause me concern.
5. First, the defendant stated that he hired "landscapers". Whilst I accept that Mr Edgar does landscaping work, Mr McKenzie is also a landscaper, or "landscape builder", and gave evidence that the works he was initially asked to do by the defendant were outside the scope of what he was able to carry out. Mr Edgar's business at that time was called "Expert Tree Solutions" and the defendant had previously retained him to cut up a tree which had fallen at his property in Killara. He retained Mr Edgar again in respect of the work at the Carnarvon Road property. This is indicative, though I accept not decisive, that the defendant sought to carry out tree works at the site.
6. Secondly, when asked in his record of interview whether he hired tree contractors to conduct tree removal at the Carnarvon Road property, the defendant gave an answer which can only be described as equivocal: "I'm still finding difficulty answering that because if I say yes, um, that's not true… and if I say no then… so I can't really say yes or no."
7. Thirdly, the defendant agreed with the proposition that Mr Edgar told him that it was "going to take a couple of days to clear the mess" at the Carnarvon Road property and said "…that's what was in my head. Yes. That's what I said to them". It is difficult to reconcile that evidence with the work that actually took place at the site or to conceive of why, if those were the agreed instructions, work was carried out to such a scale over a period of at least eight days.
8. Fourthly, the record of interview was conducted on 5 February 2015, several months after the clearing work was carried out at the site. In Astill v R (1992) 63 A Crim R 148 ('Astill'), Kirby P (as his Honour then was) made the following comments about the admissibility of out-of-court statements at 156: There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: '…reliance on the greater trustworthiness of statements made at once and without reflection…' The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten (at 389f): "The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded…"
9. Whilst I acknowledge that Kirby P's comments in Astill were directed at the admissibility of out-of-court statements, I consider that they provide some guidance when considering the weight that such statements should be afforded. Given the time that elapsed before the defendant's record of interview, it cannot be said that, in the terminology of Lord Wilberforce, "the possibility of concoction can be disregarded".
10. Fifthly, and similarly, I have some concern about the lengthy statement the defendant gave during his record of interview (extracted above at [235]). It raises matters that are not entirely responsive to any question that he was asked and gives the appearance of having been carefully considered beforehand. I harbour a concern that it is a statement which is far from "spontaneous" in the sense considered in Astill.
11. Sixthly, the defendant appeared to give inconsistent answers when he was asked whether there was a conversation with the contractors in relation to works outside the Carnarvon Road property. He initially appeared to agree that there were, saying "Yes, for instance, the grasses that are tall should be made... to take away the trip hazard or or make it so that if you are carrying a beam you're not going to fall over", but when Mr McCormack asked whether this meant that there was a conversation in relation to works outside the Carnarvon Road property, the defendant said "No I didn't say that and I didn't mean that. There was not a conversation about works outside of 53 Carnarvon Road but I did say that the builders are going to have access so I guess that there may be some sort of inference or implication of that but I don't believe I said that".
12. To the extent that the defendant denied instructing the contractors to carry out work outside the Carnarvon Road property, this is difficult to accept having regard to the totality of the evidence. Mr Edgar gave evidence that he knew the defendant had a long-standing arrangement with Roseville Golf Club, similar to the account the defendant himself gave in his record of interview. It is difficult to see how Mr Edgar could have known that the defendant had an arrangement with Roseville Golf Club going back "20 years" unless the defendant told him about it, or why the defendant would have told him about it, except in the context of asking him to carry out works that might have been on land owned by the golf club.
13. These concerns that arise from the face of the defendant's record of interview are heightened when regard is had to the totality of the evidence and the apparent logic of events. Each of Mr Edgar, Mr McKenzie and Mr Draeger gave evidence that the defendant directed clearing at the site, and the phone records establish that the defendant was in contact with Mr McKenzie from early to mid-October 2014.
14. Moreover, the location data attached to the phone records establishes that in early October 2014, and prior to his departure for Singapore on 14 October 2014, the defendant was in Sydney. Even if one leaves aside the evidence of his phone contact with Mr McKenzie and the evidence about the defendant's "character traits" which point to him having been a person who took an interest in the minutiae of work undertaken at his property, it would be surprising if he did not attend the site or check the progress of work during this time, particularly given his comments in his record of interview that he was concerned about how much the work would cost and the fact that he was paying a daily rate.

Beyond reasonable doubt

1. The fundamental principle applicable to a criminal trial is that the prosecutor must establish each element of the offence with which the defendant is charged beyond a reasonable doubt. In the present case, the only element of the offence in dispute is whether the defendant directed the contractors to carry out the clearing the subject of the charge.
2. Although, for the reasons given above at [506]-[515], I do not accept the account of the circumstances which gave rise to the clearing given by the defendant in his record of interview, the defendant is not obliged to provide an account consistent with his innocence. Rather, the prosecutor bears the onus of establishing beyond reasonable doubt that he directed the contractors to carry out the clearing. This onus is a very high bar.
3. However, for the following reasons I find that, in the present case, the prosecutor has discharged its onus and I find that the defendant is guilty of the offence charged beyond reasonable doubt.
4. First, having regard to the apparent logic of events that transpired at the site, it is not plausible that the contractors would have cleared such a large area without instructions and with no apparent motive to do so. Indeed, as extracted above at [445], the defendant submitted that it was "ridiculous" that the contractors would have cleared the site "blindly" following the directions of the defendant. For the reasons already set out, I consider that it is more unlikely that the contractors would have done so in the absence of instructions.
5. Secondly, I consider that the defendant had a motive to carry out the clearing, and that the contractors did not.
6. Thirdly, each of Mr Edgar, Mr Draeger and Mr McKenzie gave evidence that the defendant instructed the contractors to carry out the cutting of trees on the site. I accept this evidence on the basis of the findings I have already made in respect of the credibility of each, and, importantly, because their account is believable in that it provides a logical account of the commission of the offence.
7. Fourthly, I consider that Mr McKenzie's evidence, in particular, is consistent with the evidence considered as a whole, notably the evidence concerning the defendant's plans to carry out building works at the Carnarvon Road property and the phone records.
8. Fifthly, I consider that the phone records which indicate communication between Mr McKenzie and the defendant not only provide support to Mr McKenzie's account of events but that they are indicative that the defendant took a continuing interest in the work that was being carried out at the site, consistent with him having directed the clearing work to be carried out.
9. Sixthly, while not independently a consideration of great weight, I consider that this is consistent with the evidence given about the defendant's character given by Mr Hyden and Mr Hutton that he took an interest in the minutiae of work which he asked contractors to carry out.
10. Seventhly, as I have noted above and for the reasons at [506]-[515], the version of the events given by the defendant in his record of interview is very difficult to accept having regard to the totality of the evidence.
11. Eighthly, I consider that the evidence that 10 trees were marked with pink paint is indicative that there were directions given to cut and remove trees at the site. It is not consistent with the haphazard or undirected nature of the work on the site, which the defendant asks me to accept, for specific trees to have been marked for removal.
12. Ninthly, though not independently of great significance, I consider that the phone call the defendant made to Mr Robertson at Roseville Golf Club at approximately 4:30pm on 21 October 2014, the day on which the defendant was informed by the contractors that officers from the prosecutor were investigating the clearing at the site, is indicative that the defendant was seeking Roseville Golf Club's permission or approval for the clearing works that had already been carried out. Although this is also not of great moment, when considered with the rest of the evidence, the fact of the call appears logically consistent with the defendant having instructed that the clearing be carried out.
13. Accordingly and for the above reasons, I am satisfied beyond reasonable doubt that the defendant directed Mr Edgar, Mr McKenzie and the other contractors to carry out the work which comprised the offence such that he is vicariously liable for the commission of the offence (Stoneman v Lyons at 573-574). Further, and having regard to the comments of Sheahan J in Kara-Ali at [4], I am also satisfied beyond reasonable doubt that the trees the subject of the charge were protected by the TPO, that the TPO was validly made, that no exception applied in relation to the trees that were felled, and that no consent was issued in relation to the trees' removal.
14. Whilst I accept, in accordance with the approach taken by Pain J in Johnston, that it is not necessary for each particular to be proved in order for the offence to be made out, I consider that it is established beyond reasonable doubt that each of the 74 trees was removed by Mr Edgar and his team at the defendant's direction.
15. I did harbour some slight concern about the trees (it appears from the survey prepared by Degotardi, Smith & Partners that there may be three or four such trees) in the area surrounding a concrete drain towards the north-east of the site. My concern in relation to those trees arose on the basis that when he was asked whether he cleared the area around the concrete drain in cross-examination, Mr Edgar replied "[n]o, we didn't do ‑ no, that wasn't us" (at Tcpt, 16 April 2018, p 65(2)). However, Mr Edgar did give evidence that he removed three casuarinas to the east of the Carnarvon Road property and the trees and shrubs closest to the house (at Tcpt, 16 April 2018, p 36(1-19)). It appears that the trees near the concrete drain, at least one of which was a casuarina, may fall within this description as they were the felled trees closest to the house on the Carnarvon Road property.
16. In any event, I have already found that Mr Edgar understated the area which his team cleared (see above at [415]) and I am satisfied on the basis of the objective evidence in the form of the Degotardi, Smith & Partners survey that the trees near the concrete drain were removed and further, having regard to Ms Miller's evidence based on her training and expertise, that those trees had been freshly removed as at 21 October 2014. Moreover, I note that Mr Edgar admitted to having removed 74 trees without consent in the Edgar proceedings.
17. In the circumstances, I am satisfied that each of the 74 trees removed without consent was removed at the direction of the defendant.

Conclusion

1. As I have found the defendant guilty of the offence as charged, the appropriate orders are that the defendant is found guilty of the offence and that the matter be stood over to a date to be fixed for submissions on penalty.

Orders

1. The Court orders that: 1. The defendant is guilty of the offence as charged. 2. The matter is stood over to a date to be fixed for submissions on penalty.

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