Plath v O'Neill

Plath v O'Neill - [2007] NSWLEC 553 - NSWLEC 2007 case summary — Zoe

[16]

JUDGMENT Offence 1 HIS HONOUR: The defendants Lisa O'Neill and her husband Timothy Alan O'Neill have entered pleas of guilty in relation to four breaches of the National Parks and Wildlife Act 1974 (NPW Act) as follows: (a) Lisa O'Neill has entered a plea of guilty to an offence under s 90(1) of the NPW Act , in that on or about 27 April 2005 she knowingly caused damage to an Aboriginal object without first obtaining the consent of the Director-General; (b) Lisa O'Neill has entered a plea of guilty to an offence under s 86(b) of the NPW Act , in that on or about 27 April 2005 she aided, abetted, counselled or procured the disturbance on land of an Aboriginal object that is the property of the Crown; (c) Timothy O'Neill has entered a plea of guilty to an offence under s 90(1) of the NPW Act , in that on or about 27 April 2005 he knowingly aided, abetted, counselled or procured damage to an Aboriginal object without first obtaining the consent of the Director-General; (d) Timothy O'Neill has entered a plea of guilty to an offence under s 86(b) of the NPW Act , in that on or about 27 April 2005 he aided, abetted, counselled or procured the disturbance on land of an Aboriginal object that is the property of the Crown. 2 At the time of commission of the offences no permits under s 87 of the NPW Act or consents under s 90 of the NPW Act had been issued to the defendants authorising the disturbance or damage of any Aboriginal objects or places. Aboriginal shell middens 3 Aboriginal shell middens are Aboriginal sites dominated by the remains of Aboriginal meals of shellfish. Aboriginal shell middens vary in size from thin surface shell scatters to dense deposits that have accumulated as a result of the consistent or repeated discard of shell by Aboriginal people over long periods of time. 4 Aboriginal middens are sites of cultural importance and are evidence of historical gatherings of large numbers of Aboriginal people. Aboriginal shell middens commonly contain Aboriginal ancestral remains. The property 5 The offences were committed on the property previously owned and occupied by the defendants and known as Lot 170 in DP 751394, located at Adams Street Woombah, on the New South Wales North Coast (the property). The Aboriginal midden 6 An Aboriginal shell midden is located on the property. Prior to March 2005, the existence of the midden was unrecorded by the relevant authorities and unknown to the defendants. The Aboriginal midden was observed in March and April 2005 in the southern section of the property near a shed (Site A). 7 Site A is located on the western bank of Woolpack Creek. Site A was the defendants' intended house site. The defendants had developed the house site in 2003, so that by April 2005 Site A was an elevated terrace of sand above grassed flats that stretch for around 200 metres to the Clarence River. Site A measured approximately 30 metres long and 30 metres wide and was approximately 900 millimetres higher than the surrounding land. Surrounding Site A was a scattering of shell on the ground around the raised area. On the side of Site A there was a clear layer of compacted shell material about a metre deep. 8 The shells present within the Aboriginal midden at the property are what archaeologists term as being edible, meaning that they were of species typically collected and consumed by Aboriginal people and were of sufficient size to have been a viable food source. These characteristics are amongst some of the features of an Aboriginal shell midden created by human activity rather than being the product of natural processes such as a naturally occurring shell bed. Background 9 The defendants purchased the property on 5 November 2003 for the sum of $320,000. After purchasing the property, the defendants engaged contractors to undertake earthworks at the property, including work on Site A, removing fallen trees, and creating motor bike tracks for their children. 10 Shortly following the purchase of the property, they engaged Barry Alecson, an excavator driver with Mick Corbett Earthmoving Pty Limited to undertake excavation works on the property. Mr Alecson undertook works to create a house pad site at Site A, which involved scraping material onto the Aboriginal midden from the area surrounding Site A to raise the site to an appropriate level. For the purpose of building up the house pad site at Site A, Mr Alecson also scraped material from a site on the eastern boundary of the property (Site B) and placed the material onto the Aboriginal midden. Mr Alecson used a 20 tonne excavator for the purposes of conducting the works at the property. Mr Alecson then drove the excavator over Site A to level it with the excavator's tracks. 22 June 2004 11 On 22 June 2004, the defendants lodged a development application with Clarence Valley Council for the construction of a dwelling and pool on the property. 6 July 2004 12 On 6 July 2004, the defendants obtained development consent from Clarence Valley Council for the construction of a dwelling and pool on the property. The development consent permitted the construction of a house on the midden, the existence of which was still not recognised by any relevant authority or the defendants. 15 March 2005 13 On 15 March 2005, the defendants accepted an offer of $535,000 from Warren and Noelene Cliff to purchase the property.

[17]

22 March 2005 14 On 22 March 2005, Dell Gorring, Department of Environment and Climate Change (DECC) Ranger and Steve Hodgson, DECC Senior Field Officer attended the property in response to a report received from Yaegl Local Aboriginal Land Council (Yaegl LALC) of possible disturbance to an Aboriginal shell midden located at the property. Mrs O'Neill was present at the property at the time of the inspection. 15 Ms Gorring and Mr Hodgson did not observe any work being carried out on the property. However, they observed a raised mound of earth located on the property. Suspecting that the raised mound was an Aboriginal midden, Ms Gorring and Mr Hodgson advised Mrs O'Neill that they would take some photos of the mound, and refer the matter to an Aboriginal sites officer to determine if the mound was an Aboriginal midden. During the inspection Ms Gorring and Mr Hodgson took a number of photographs described as follows: · Photo 1 shows the raised mound with shell midden material clearly visible; · Photo 2 shows shell material in the foreground and Site B in the north-eastern portion of the property. It shows Site B as an undisturbed flat even-grassed area with a number of dirt mounds used as part of a motorcycle track by the defendants' children; · Photo 3 shows the raised mound with shell midden material clearly visible in the background; and · Photo 4 shows a close-up of the raised mound with what is now known to be shell midden material clearly visible as at 2005. 24 March 2005 16 On 24 March 2005, Rebecca Edwards-Booth, DECC archaeologist, and Claude McDermott, DECC Acting Manager, Northern Aboriginal Heritage Section attended the property for the purpose of determining whether the shell material located on the property comprised an Aboriginal midden. Mrs O'Neill was present at the property during the time of the inspection. 17 During the inspection, Ms Edwards-Booth and Mr McDermott examined Site A, the area that Mrs O'Neill described as the "house pad site" on the southern portion of the property. The earth at Site A was raised approximately 900 mm above the surrounding ground. The raised area had a large amount of shell material, mostly oyster shell, both on the surface of the mound and eroding from the sides of the mound. Ms Edwards-Booth and Mr McDermott also observed a number of stone artefacts, consisting of flaked pieces and cores. As a result of the inspection, Ms Edwards-Booth and Mr McDermott were of the opinion that the shell material at the property constituted an in situ Aboriginal midden. 18 During the inspection, Ms Edwards-Booth and Mr McDermott showed Mrs O'Neill some stone artefacts and shells which they placed on an A4 folder and had a conversation in words to the following effect: Mrs O'Neill said: How can we tell it's not shell grit? Ms Edwards-Booth said: A trained observer can tell the difference. We look for things like shell species of a type and size eaten by Aboriginal people. We also look for the presence of cultural materials such as stone artefacts or hearths where they had campfires and fish and mammal bones. Mrs O'Neill said: We just levelled it off to make a house site. Ms Edwards-Booth said: These are stone artefacts which Aboriginal people would have made and used at this site.

[23]

Ms Edwards-Booth said: You have three options in relation to the management of the property and the Aboriginal site. You could choose to proceed with the sale of the property and sell the property as is, in which case there would be no requirement for licensing at this stage, as there would be no proposal on the land; you could proceed with plans to build on the midden site, which would require an archaeological test excavation and assessment as well as consultation with the Aboriginal community and DECC regarding retention of some areas of the midden; or you could conduct a surface archaeological survey of the balance of the property and move the house to another location which doesn't have the same Aboriginal heritage constraints. Mrs O'Neill said: It's our land and we should be allowed to do what we want and we have spoken to the Aboriginal community and they said that it is not important to them. Ms Naden said: The National Parks and Wildlife Act exists to protect Aboriginal objects and places. Aboriginal communities' views are important and will be considered following the current requirement for further assessment on the site should you wish to pursue with building a house on this section where the Aboriginal midden has been identified. Mr O'Neill said: How do we know it is an Aboriginal midden? We were told by our geotec engineer that did his study here that the materials are shell grit from the river bed, not an Aboriginal midden. Ms Edwards-Booth said: Both Maxine and I have been involved in the identification and management of Aboriginal cultural heritage for a number of years now. To identify an Aboriginal midden or site requires an experienced and knowledgeable person in the field to perform and clearly identify such sites. Ms Naden said: Rebecca is a qualified archaeologist and I, as an Aboriginal person, have worked in the Aboriginal cultural heritage field for a number of years. This is definitely an Aboriginal midden site, and should you destroy, deface and/or damage the Aboriginal midden in any way, as the Aboriginal midden is protected by law, you may be in breach of the National Parks and Wildlife Act. One of the issues that needs to be considered is the fact that there may be Aboriginal burials that include remains, located in the midden. It is a known fact that Aboriginal remains have been identified and can be located in middens. Therefore, in this instance it is highly important that the future management of this area take into consideration, as it has been stated that one in three aboriginal middens contains ancestral remains. Mr O'Neill said: What assessment would we be required to do and what will it achieve, and where will we get the money to do these assessments that you say we have to do? Ms Donges said: Clarence Valley Shire Council will be happy to discuss this further and we believe this can be sorted out. There is no need to be concerned as these issues have a way of working out in the end. Ms Edwards-Booth said: An initial assessment is required to determine if the aboriginal midden is in-situ and the extent of the site. This will involve excavations on this section and further assessment to determine the significance of the midden. As the property owners, you are required to cover the costs associated with such assessment, however, there may be possibilities through funding sources, through DECC and other departments, that we can check and clarify and provide information back to you.

[30]

33A On the same day, Mrs O'Neill contacted Mick Corbett of Corbett Earthmoving Pty Limited. Mrs O'Neill contacted Mr Corbett requesting the use of a truck for the purpose of shifting the Aboriginal midden on her property. Following the telephone call, Mr Corbett organised for Gary Cowling, an employee of Corbett Earthmoving Pty Limited, to attend the property on 27 April 2005 with an excavator. 27 April 2005 34 On the morning of 27 April 2007, Mr Skinner and Mr Cowling attended the property with a 23 tonne excavator and a pickup truck. Mrs O'Neill was present at the property at the time and gave directions to Mr Skinner and Mr Cowling of what work was to be done. 35 During the time that Mrs O'Neill gave initial instructions to Mr Skinner, she showed Mr Skinner the test holes dug in the Aboriginal midden and the level of oyster shells in the test holes. Mrs O'Neill advised Mr Skinner that she wanted the top layer containing the oyster shells removed from Site A and instructed them that she wanted to "strip off the layer of oyster shells and put it back" on to the eastern end of the property at Site B. 36 Under Mrs O'Neill's direction, Mr Skinner used the excavator to excavate the Aboriginal midden and load it onto the tip truck. Mr Skinner excavated the Aboriginal midden by stripping sections of the top layer of the Aboriginal midden, consisting of oyster shells, down to a layer of sand that Mrs O'Neill believed to be below the midden. Mr Skinner then loaded the sections of the top layer onto the tip truck being driven by Mr Cowling. Under Mrs O'Neill's direction, Mr Cowling then drove the tip truck to a location approximately 100 metres away towards the eastern end of the property at Site B. Over the course of approximately four and a half hours Mr Skinner and Mr Cowling loaded sections of the Aboriginal midden onto the pick up truck approximately 12 times and unloaded the material at Site B. Following completion of the job, Mr Skinner levelled off the material at Site B using the excavator.

[32]

6 May 2005 42 On 6 May 2005, Ms Edwards-Booth and Scott Beaumont, DECC Specialist Investigator, visited the property to inspect the disturbance of the Aboriginal midden. Ms Edwards-Booth observed that the midden had been moved from its original position (Site A) to a new position located approximately 60 to 70 metres away near the eastern boundary of the property (Site B). Ms Edwards-Booth observed heavy machinery tracks leading from the previous position of the midden at Site A to Site B, with shell material visible in the tracks. 43 Ms Edwards-Booth and Mr Beaumont then conducted an examination of Site A, and measured the site to be 29 metres along the eastern boundary, 29.9 metres in a crescent shape along the southern boundary, 32 metres along the western boundary and 16.2 metres along the northern boundary. There was a scatter of shell material across Site A and a collection of exposed shell material and artefacts. During the inspection Ms Edwards-Booth took a number of photographs described as follows: · Photo 5 shows Site A, the previous location of the Aboriginal shell midden; · Photo 6 shows Site A, the previous location of the Aboriginal shell midden; · Photo 7 shows Site A, the previous location of the Aboriginal shell midden; · Photo 8 shows a close-up of Site A, the previous location of the Aboriginal shell midden; · Photo 9 shows a close-up of Site A, the previous location of the Aboriginal shell midden; · Photo 10 shows a close-up of exposed shell material present at Site A; and · Photo 11 shows a close-up of exposed shell material present at Site A. 44 Ms Edwards-Booth recovered a number of specimens from the previous location of the Aboriginal midden at Site A as follows: · One resealable plastic bag containing shell specimens (Sample 1); · One resealable plastic bag containing stone artefacts (Sample 2); · One resealable plastic bag containing a clump of soil/shell matrix (Sample 3). 45 Ms Edwards-Booth took photographs of Sample 1 and Sample 2 described as follows: · Photo 12 shows the shell specimens comprising Sample 1; and · Photo 13 shows the stone artefacts comprising Sample 2. 46 Ms Edwards-Booth and Mr Beaumont then conducted an examination of Site B and measured the perimeter of Site B to be 27 metres, 8.5 metres and 27 metres. The earth located at Site B was approximately 1.5 metres in height. The earth located at Site B had been subject to significant disturbance. The material located at Site B was not compacted, had not settled and had heavy vehicle tracks along the edges of the site. The shell material within Site B also appeared in some areas to be highly crushed. 47 There was a scatter of shell material across Site B. 48 During the inspection Ms Edwards-Booth took a number of photographs described as follows:

[33]

· Photo 14 shows Site B, the location of the relocated Aboriginal shell midden at the eastern boundary of the property; · Photo 15 shows Site B, the location of the relocated Aboriginal shell midden at the eastern boundary of the property; · Photo 16 shows Site B, the location of the relocated Aboriginal shell midden at the eastern boundary of the property; · Photo 17 shows a close-up of Site B, the location of the relocated Aboriginal shell midden at the eastern boundary of the property. · Photo 18 shows a close-up of large machinery tracks with shell material present in the tracks, near the previous location of the Aboriginal shell midden at Site B; · Photo 19 shows a close-up of large machinery tracks with shell material present in the tracks, near the previous location of the Aboriginal shell midden at Site B; · Photo 20 shows a close-up of exposed bones present at Site B; · Photo 21 shows a close-up of exposed bones present at Site B; · Photo 22 shows a close-up of exposed bones present at Site B; · Photo 23 shows a close-up of exposed bones present at Site B; · Photo 24 shows a close-up of Site B and yellow pegs marking the location of exposed bones at Site B; and · Photo 25 shows a close-up of Site B and yellow pegs marking the location of exposed bones at Site B; 49 Ms Edwards-Booth recovered a number of specimens from the relocated Aboriginal midden at Site B as follows: · One resealable plastic bag containing shell specimens (Sample 4); · One resealable plastic bag containing a large shell (Sample 5); · One resealable plastic bag containing two artefacts (Sample 6); · One resealable plastic bag containing a human tooth (Woombah 1); · One resealable plastic bag containing a portion of a human femur (Woombah 2); · One resealable plastic bag containing a portion of a human radius (Woombah 3); · One resealable plastic bag containing a portion of a human ulna (Woombah 4); · One resealable plastic bag containing an unidentified fragment of bone (Woombah 5); · One resealable plastic bag containing an unidentified fragment of bone (Woombah 6); and · One resealable plastic bag containing an unidentified fragment of bone (Woombah 7) 50 Ms Edwards-Booth took a number of photographs of Sample 5, Sample 6 and Woombah 1 to Woombah 7 described as follows: · Photo 26 shows the large shell specimen and artefacts comprising Sample 5 and Sample 6; · Photo 27 shows the human tooth comprising Woombah 1; · Photo 28 shows the human femur comprising Woombah 2; · Photo 29 shows the human radius comprising Woombah 3; · Photo 30 shows the human ulna comprising Woombah 4; · Photo 31 shows the unidentified fragment of bone comprising Woombah 5; · Photo 32 shows the unidentified fragment of bone comprising Woombah 6; and · Photo 33 shows the unidentified fragment of bone comprising Woombah 7. 4 August 2005 51 On 4 August 2005 the defendants sold the property to Warren and Noelene Cliffe for the sum of $490,000. Remediation works and reburial ceremony 52 After August 2005, remediation works were undertaken by the new owners of the property at the expense of the DECC. The remediation works consisted of placing clean fill material over Site B, installing weed matting and the planting of native trees and shrubs on the site by Aboriginal community representatives. Environmental Harm 53 As a result of moving the midden from Site A to Site B, the Aboriginal midden has been significantly disturbed and damaged in the following ways: · The Aboriginal midden has been disturbed in the sense that it has been removed from its prior location on the property and has been redeposited to another location on the property; · The Aboriginal midden has been damaged in the sense that it has been excavated, and removed from its prior location on the property and has been redeposited to another location on the property; · A considerable quantity of Aboriginal objects located within the Aboriginal midden have been disturbed in the sense of being removed from their prior location within the Aboriginal midden and being redeposited to another location on the property; and · A considerable quantity of Aboriginal objects located within the Aboriginal midden, including a large amount of shell material have been damaged in the sense that they have been broken or heavily crushed as a result of the disturbance to the Aboriginal midden. The significance of in situ Aboriginal midden deposits 54 Aboriginal midden deposits once formed an almost continuous belt stretching for around 13 kilometres from Woombah to the coast at Woody Head. Many of these middens have been destroyed to supply lime for mortar, road base material, shell grit and fertile garden additives. 55 The above suggests that any remaining in situ Aboriginal middens in the Woombah area are likely to represent only a small sample of those originally present. Such sites therefore have a potentially high level of archaeological significance due to their representative and rarity value. 56 The excavation undertaken by McBryde near the eastern bank of Woolpack Creek represents the only subsurface Aboriginal midden investigation so far conducted on the lower Clarence. Radiocarbon dates were obtained from shell material excavated by McBryde, which indicated that the age of the materials located in the midden ranged from 1400 - 3300 years before present. The investigation of other, in situ middens in the Woombah area would-be useful in testing McBryde's results and in determining whether her investigation site is representative of the Woombah midden sites as a whole. If, as McBryde suggests, the middens between Woombah and Woody Head formed a continuous belt rather than a number of individual entities, the investigation of further in situ deposits would offer valuable information on the connectedness of this site complex.

[35]

(i) during the inspection of the property on 6 May 2005 by Ms Edwards-Booth and Mr Beaumont, they observed and recovered a number of exposed bones present at the relocated Aboriginal midden; (ii) during the inspection, Ms Edwards-Booth formed the opinion that one of the exposed bones was a human femur; (iii) during the inspection, Ms Edwards-Booth formed the opinion that one of the exposed bones was a human tooth; (iv) during the inspection, Ms Edwards-Booth consulted with local detectives who agreed that the bones were human; and (v) during the inspection, Ms Edwards-Booth formed the opinion that the exposed bones were consistent with what has been found at other burial sites within middens on the coast, particularly the human tooth. The tooth showed wear patterns that were consistent with what Ms Edwards-Booth understood resulted from traditional Aboriginal diets. 61 At a later date the exposed bones recovered by Ms Edwards-Booth were submitted for examination by Dr Denise Donlon, Consultant Anthropologist of the University of Sydney. The analysis revealed the following: (i) Woombah 1 was a single human molar. The wear on the tooth suggested that it belonged to an individual eating a harsh diet with lots of abrasive material, and is very typical of that of an Aboriginal person. The degree of occlusal wear is typical of that of a young adult. (ii) Woombah 2 was a portion of a right human femur. Unstained breaks to the femur, the absence of plastic deformity (in other words, no signs that the bone was fresh and elastic when broken) and the unweathered condition of broken areas suggests that damage to the femur occurred very recently. The physical condition of the bone suggests that it is likely to be of some antiquity and thus probably Aboriginal. (iii) Woombah 3 was a portion of the shaft of a human right radius containing two breaks. Both breaks show a lack of plastic deformity indicating that they occurred post-mortem. The break at the lower end is stained brown suggesting that it may have occurred some time ago, however, the light staining on the upper break indicated that it occurred more recently. (iv) Woombah 4 was a portion of the upper to mid-shaft of a human right ulna containing two breaks. Both breaks show the absence of plastic deformity indicating that they occurred post-mortem. The break at the lower end is stained brown suggesting that it may have occurred some time ago, however, the absence of staining on the upper break indicated that it occurred more recently. (v) Woombah 5 was an object measuring 20 x 12 mm which did not have the appearance of bone. (vi) Woombah 6 contains two bone fragments. One fragment is probably a cervical vertebra, however, it is not possible to say whether or not it is human. The first fragment has two unweathered broken sections which appear to be recent breaks. The second fragment appears to be the unfused end of a fetal or young juvenile long bone, however, it is not possible to say whether or not it is human. The second fragment has one break that appears to be a recent break. (vii) Woombah 7 contains a portion of a beef rib. (viii) Dr Donlon concludes that in her opinion Woombah 1, 2, 3 and 4 are probably Aboriginal. 62 The prosecutor submits that on the basis of the above evidence, the Court would be satisfied beyond reasonable doubt that there were Aboriginal ancestral remains which were present in the Aboriginal midden and that there was disturbance and damage caused to Aboriginal ancestral remains found within the Aboriginal midden. On this basis, the prosecutor submits that the offences ought to be treated as very serious by the Court.

[37]

(i) On the side of Site A there was a clear layer of compacted shell material about a metre deep; (ii) After November 2003, Mr Alecson undertook works to create a house pad site at Site A, which involved scraping material onto the Aboriginal midden from the area surrounding Site A to raise the site to an appropriate level. For the purpose of building up the house pad site at Site A, Mr Alecson also scraped material from Site B and placed the material onto the Aboriginal midden; (iii) In the record of interview attached to Mr Alecson's affidavit sworn 2 March 2006, Mr Alecson describes the site prior to the works as follows: "The whole lot was levelled"; (iv) In the record of interview attached to Mr Alecson's affidavit sworn 2 March 2006, Mr Alecson describes the works conducted at the site as follows: (a) " just levelled the house pad" (b) " There were four sticks already in the ground, I don't know if surveyors or council or whoever put them in there, anyway he said he just wanted that level, bring the sand up from down in front, level it off " (c) " All I do is go in and just flatten out what's there, you can't shift it " (d) " I just took, as I say, there were four pegs. It was too high in one corner, and it was just really wide at one corner. This one was a bit low and that one was real low, and I just went from that side and pulled it over level and then, you know ."; ( v ) In the record of interview attached to Mr Alecson's affidavit sworn 2 March 2006, Mr Alecson states that prior to the works the house pad area was already raised on the site stating that: (a) " Yeah, that was in - we didn't actually lift anything. We lifted a bit in one corner, but we probably lowered the other side of if " (b) " Like I don't know who done the dozing originally, but it had been, you know like, you know, to know when something's level, like you could say the whole block. So something has been - and it was all level. "; (vi) In the record of interview attached to Mr Alecson's affidavit sworn 2 March 2006, Mr Alecson states that he was the only worker on the site; (vii) In the record of interview attached to Mr Alecson's affidavit sworn 2 March 2006, Mr Alecson states that his job on the day was to work on the house pad site to level it out by moving from one corner, filling up one corner that was too low; (viii) In the record of interview attached to Mr Alecson's affidavit sworn 2 March 2006, Mr Alecson states that he did not bring any material from any other location on the property to lay across the house pad site; (ix) In the record of interview attached to Mr Alecson's affidavit sworn 2 March 2006, Mr Alecson states that he did not bring any material from the back corner of the property because to travel a distance of 50 - 60 metres would wear out the treads of the excavator; (x) In his statement dated 20 June 2007, Mr Alecson amends his recollection set out in (vii) and (viii) above to add that there was not enough fill to level the house pad and put some scrapings from the eastern area to fill the house pad. 66 The prosecutor submits that on the basis of the above evidence, the Court would be satisfied beyond reasonable doubt that the material at Site A was comprised predominantly of Aboriginal midden material which was present at Site A and in the vicinity of Site A. The prosecutor submits that the Court would also be satisfied beyond reasonable doubt that given that only a relatively small amount of material comprising the house pad site was originally from Site B it would not be possible for the midden to have been originally located at Site B.

[38]

67 The defendants' evidence was that a majority of the fill originated from site B, and in April 2005 they decided it would be moved back approximately from where it came. Mrs O'Neill was present when it was moved back and her evidence was that it was moved back to where she believed it had come from (Site B). The defendants submitted that Mr Alecson was unreliable because he said one thing in his record of interview but volunteered changes when asked by the defendants to state what happened. 68 It is an agreed fact that when Mr Alecson did the initial job he did not have a truck, only an excavator. His unchallenged evidence was that the excavator carried one metre in the bucket and that if he had wanted to move material from Site B he would have needed a truck. In the unchallenged statement that he subsequently gave to the defendants and tendered in the defendants' case he said that on that occasion he only took some scrapings from the area of Site B. It is an agreed fact that in April 2005 Mr Skinner and Mr Cowling transported 12 truckloads of the top layer of the midden to Site B. 69 Having regard to the agreed facts and unchallenged evidence of Mr Alecson, I am satisfied beyond reasonable doubt that most of the midden did not come from Site B but, rather, came from or near Site A. However, my impression was that the defendants gave their contrary evidence sincerely. I have concluded that when they decided to remove the midden to Site B they somehow had it in their minds that it had mostly come from Site B. They were mistaken. Aboriginal Consultation 70 The evidence indicates that council informed Mrs O'Neill that before council agreed to subdivide and rezone the defendants' land, council checked with Michael Randall, an Aboriginal who worked for the Yaegal Land Council, who advised council that it was okay. OBJECTIVE CIRCUMSTANCES OF THE OFFENCES Maximum Penalty for the Offences 71 The first objective circumstance relevant to determining the seriousness of the offence is the maximum statutory penalty. It reflects the public expression by Parliament of the seriousness of the offence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P. The penalty that is appropriate in each case should be determined by reference to the maximum penalty for each of the offences. 72 The maximum penalty for an offence under s 90(1) of the NPW Act is $5,500 or six months imprisonment or both, in the case of an individual. The prosecutor submits, and I accept, that the fact that Parliament has provided for a term of imprisonment as an alternative to, as well as in addition to, the imposition of a fine should be taken to reflect the gravity of the offence and the legitimate public interest in the protection and preservation of Aboriginal objects. The maximum penalty for an offence under s 86(b) of the NPW Act is $11,000 in the case of an individual (see s 175(2) of the NPW Act). These maximum penalties apply to persons convicted for aiding, abetting, counselling or procuring offences under the NPW Act. On conviction, any such person is liable to the penalty and punishment to which a principal offender is liable (see s 351B(2) of the Crimes Act 1900).

[39]

73 The maximum penalties for many other environmental offences are very much higher than for the subject offences. For example, under s 119 of the Protection of the Environment Operations Act 1997 (NSW), penalties for individuals range up to $1 million and seven years imprisonment and for planning and development offences under s 126 of the Environmental Planning and Assessment Act 1979 (NSW), the maximum penalty for strict liability offences is $1,100,000 for any offender. By reference to those measures, the subject offences have not been placed by the legislature at the top end of the spectrum. Objectives of NPW Act and legislative scheme for preservation of Aboriginal objects. 74 The objective seriousness of the offence must also be determined by reference to the objectives of the NPW Act. Section 2A(1)(b)(i) states that an objective of the NPW Act is: … (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and ... 75 Part 6 of the NPW Act provides a scheme under which permits and consents are required to be obtained to disturb and damage Aboriginal objects. Under the legislative scheme, a person is required to obtain a permit under s 87 or a consent under s 90 prior to disturbing an Aboriginal object or causing destruction or damage to an Aboriginal object. 76 Undertaking works that disturb Aboriginal objects, or causes destruction or damage to Aboriginal objects, without first obtaining consent undermines the objects of the NPW Act and the integrity of the legislative scheme for the preservation of Aboriginal cultural heritage under Part 6 of the NPW Act: Garrett v Williams (2007) 151 LGERA 92 at [67] - [69] per Preston CJ. No permits under s 87 of the NPW Act or consents under s 90 of the NPW Act had been issued to the defendants authorising the disturbance or damage of any Aboriginal objects. Environmental harm caused as a result of the offences 77 The evidence establishes that as a result of moving the Aboriginal midden from Site A to Site B, the Aboriginal midden has been significantly disturbed and damaged and this has diminished the potential for it to contribute to the benefits gained from archaeological study of the midden. This is an aggravating factor: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

[64]

Costs 104 The defendants submitted that no costs order should be made against them or that the amount should be fixed at a minimal figure for the following reasons: (a) It was almost two years between the relevant events and the serving of a summons. In that time, the DECC compiled an expansive and extensive brief of evidence. Given the way that the O'Neills have conducted themselves, it is highly likely that had the O'Neills simply been asked at an early point what their position was, much of that work could have been avoided. The fact that cannot be said with certainty is not due to the conduct of the O'Neills but due to the conduct of the prosecutor. I do not accept the submission. The O'Neills did not give evidence on this aspect. I am not prepared to draw the invited conclusion nor do I consider that the prosecutor acted unreasonably. (b) Costs have been incurred since the issuing of the summons dealing with modifying the proposed facts as well as the proposed charges of the DECC. There have been concessions fairly made by the DECC and there have been modifications made to the charges at the suggestion of the O'Neills. It would be perverse if the cost of the prosecutor modifying its case in this way was something that was paid for by the defendants. In my view, the process of agreeing facts and reaching a measure of agreement as to charges is not, on the material before me, a reason for denying the prosecutor his costs. (c) There is a need to keep costs proportional to the amount in dispute. The figure nominated as the likely costs of the prosecutor are disproportionate to this dispute. I accept that the proportionality of costs is a factor to be taken into consideration as a matter of principle. In the present case, I consider that it should be taken into consideration when fixing the amount of fines. Conclusions 105 In my opinion, the defendants should be fined. I reject the prosecutor's submission that they should be imprisoned. In considering the quantum of the fines, there should be taken into consideration, in addition to the facts and circumstances discussed earlier, that I propose to order them to pay the prosecutor's costs which have been estimated to be approximately $40,000, and that they have lost $45,000 on the sale of the subject land as a result of the midden being discovered thereon after they had innocently purchased the land and obtained development consent. These two sums are well in excess of the total maximum fines which could be imposed for the subject four offences. There should also be taken into consideration the level of fines imposed in Garett v Williams (discussed earlier) while making due allowance for the different circumstances in that case. Orders 106 For these reasons, the Court makes the following orders:

At a glance

Court

Decision date

Before

Source

Judgment (66 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (2)