Rosser v NSW Department of Primary Industries

Clean Waters Act 1970 (NSW) s 16(1) Crimes Act 1914-1916 (Cth) s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) s 20 LEGISLATION CITED: Fisheries Management Act 1994 (NSW) ss 205, 277, 278, 279 Income Tax Assessment Act 1936 (Cth) s 230 Marine Pollution Act 1987 (NSW) ss 8, 27 State Pollution Control Commission Act 1970 (NSW) s 17D(9)

Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 Hamilton v Whitehead (1988) 166 CLR 121 CASES CITED: Hanley v Automotive, Food, Metals, Engineering Printing and Kindred Industries Union (2000) 100 FCR 530 Island Maritime Ltd v Filipowski [2004] NSWCCA 453 Mallan v Lee (1949) 80 CLR 198 Pearce v The Queen (1998) 194 CLR 610

APPLICANT: Mr J F Burn, barrister SOLICITORS: Palmers Solicitors & Attorneys LEGAL REPRESENTATIVES: RESPONDENT: Mr M W Anderson, barrister SOLICITORS Crown Solicitor's Office (NSW)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MICHAEL LEWIS JACK ROSSER v NSW DEPARTMENT OF PRIMARY INDUSTRIES

JUDGMENT 1 HIS HONOUR: This is an appeal against two convictions and sentence imposed on the appellant Michael Lewis Jack Rosser on 12 May 2006 by a Magistrate at the Local Court at Maclean. The notice of appeal, which erroneously purported to be to the District Court, was sent there before being forwarded to this Court. Nothing turns on that.

2 The appellant was convicted of two offences under s 205 of the Fisheries Management Act 1994 (NSW). The offences arose from harm to seagrass in the period 15 July to 26 September 2003 in the Clarence River near Yamba, NSW. The harm was caused by a pipeline, which transported sand from the bed of the river to the shore, travelling over the seagrass beds. The appellant was the holder of an Extractive Industry Licence for dredging the area. He was also the sole director of a corporation, CMT Constructions Pty Ltd, which owned the pipeline. The corporation had a contract to fill land and the dredged sand was to be utilised for this purpose. The appellant arranged for a Mr Albert Pearce to carry out the dredging.

3 Sections 205 and 279 of the Act provide: 205 Marine vegetation - regulation of harm

(1) This section applies to: (a) mangroves, or (b) seagrasses, or (c) any other marine vegetation declared by the regulations to be marine vegetation to which this section applies,

but does not apply to protected marine vegetation under section 204A.

(2) A person must not harm any such marine vegetation in a protected area, except under the authority of a permit issued by the Minister under this Part. Maximum penalty: In the case of a corporation, 2,000 penalty units or, in any other case, 1,000 penalty units.

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention. (2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

4 The appellant was convicted in his personal capacity of an offence under s 205. He was also convicted of an offence under s 205 on the basis that, as a director of the corporate owner of the pipeline, he knowingly authorised or permitted the corporation to contravene s 205 and had therefore himself contravened s 205 by reason of the deeming provisions of s 279. He was sentenced only in relation to the former conviction. He was fined $6,000 plus court costs and ordered to pay professional costs in the sum of $10,000 with a moiety of the fine to be paid to the NSW Department of Primary Industries. GROUNDS OF APPEAL AGAINST CONVICTIONS 5 There are three grounds of appeal against the convictions: (1) both convictions are bad at law because if the appellant acted as an individual he did not act as a director and if he acted as a director he did not act as an individual, yet the Magistrate held that he did both; and two convictions offend the double jeopardy rule; (2) the prosecution is out of time; (3) no adequate evidence links the appellant to the causing of the damage. AGREED FACTS 6 The parties agreed that the following facts were established by the evidence before the Magistrate.

7 At all material times the appellant was the sole director of CMT Constructions Pty Ltd. He was the Licence Holder for Extractive Industry Licence Li302868 (the dredging licence for the area in fact dredged) which was to expire on 27 March 2003 but was extended to five days after 26 June 2003. This licence extension was given by Mr Chris Sparks, Lands Officer, Department of Lands. Mr Sparks was cross-examined. A condition of the Extractive Industry Licence was that the dredge and "ancillary equipment" had to be removed on termination of the licence. Mr Sparks was notified on 15 July 2003 that dredging had been completed. However, the pipeline was not removed until November 2003. It ought to have been removed on or about 15 July 2003 at the latest.

8 On 12 September 2003, Marcus Riches, Acting Senior Conservation Manager (North Region) NSW Fisheries and Chris Sparks visited the area to determine whether the dredging operation had impacted upon fish habitat. A bond which had been placed on the issuing of the Crown land occupation licence to permit dredging might not be refunded if the fish habitat (including the seagrass beds) had been damaged contrary to the conditions of the licence. Mr Riches spoke with Mr Mitchell Baker, an oyster farmer, who said that to his observation approximately 2 metres of seagrass either side of the pipeline had been damaged. The pipeline was unable to be properly inspected because it was high tide.

9 On 26 September 2003, Marcus Riches and Max Enklaar, NSW Fisheries Conservation Officer, conducted an inspection with Mr Bob Fish, Regional Manager for the Department of Lands Grafton on the Clarence River adjacent to Dart Island near Yamba, New South Wales. They observed at low tide of 0.31 m a steel pipe, typical of that used for dredging, laying partially buried and dissecting through the length of seagrass beds, crushing them for several hundred metres along the length of the seagrass beds. The pipe was not anchored and the area of seagrass beside the pipe had been worn away from the movement of the pipe. Photographs taken on inspection were tendered in evidence. Both Max Enklaar and Marcus Riches were cross-examined. Mr Enklaar first observed damage on 26 September 2003. The harm occurred between 15 July 2003 and 26 September 2003. Mr Pearce gave evidence that the pipe had moved between 15 July 2003 and November 2003.

10 Natalie Taffs, NSW Fisheries Conservation Management Officer, examined an aerial photograph of the cleared and damaged seagrass bed area, which was clearly visible from that photograph, after the removal of the pipe, and calculated a total area of damage of 3,306.776 square metres using a computer program designed for that purpose. Robert Williams, Senior Research Scientist with the Aquatic Ecosystems Research Unit of NSW Department of Primary Industries, gave evidence that aerial photos taken on 5 November 2003 clearly show the damage to the seagrass bed. Damage was still visible to him through on ground survey in July 2005. In March 2006 he did not observe any obvious damage to the seagrass during field inspection when viewed from the water's surface.

11 The Magistrate accepted the evidence of Mitchell Baker, Marcus Riches, Robert Williams and Natalie Taffs and they were not cross-examined by the appellant.

12 Mr Pearce gave evidence that he laid the pipeline on the seagrass bed and told Mr Rosser that he did so. Mr Pearce said that Mr Rosser told him to leave the pipeline in the water after the dredging had been completed on 15 July 2003. This was contrary to licence conditions, and the verbal instructions from Mr Sparks. Damage to the seagrass bed occurred between 15 July 2003 and its discovery on 26 September 2003. Mr Pearce removed the pipes at the direction of Mr Rosser in November 2003.

13 Mr Pearce was cross-examined by the appellant but ultimately the Magistrate accepted his evidence in preference to the appellant's evidence. The Magistrate found that the evidence given by the appellant was evasive and, on the basis of credit/impression, permissibly preferred the evidence given by Mr Pearce.

FIRST GROUND OF APPEAL 14 The appellant submitted that the two convictions against the appellant are both bad in law because if the appellant acted as an individual he did not act as a director; if he acted as a director he did not act as an individual; yet the Magistrate held that he did both. Also the two convictions offend the double jeopardy rule that someone cannot be convicted twice of the same offence: see Mallan v Lee (1949) 80 CLR 198 at 215 - 216; Hamilton v Whitehead (1988) 166 CLR 121 at 126-127; and Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 at 507.

15 In Mallan v Lee (1949) 80 CLR 198, a complaint was laid in a court of summary jurisdiction against a limited company and Mallan, its public officer. The company was charged with having contravened s 230 of the Income Tax Assessment Act 1936 (Cth) in that Mallan, as its public officer, had knowingly and wilfully understated, in the company's income tax return, the amount of the company's income for the relevant year. Mallan was charged on the basis that he was directly knowingly concerned in the commission of the offence of the company and reference was made to s 5 of the Crimes Act 1914-1916 (Cth). Section 230(1) of the Income Tax Assessment Act provided "Any person who, or any company on whose behalf the public officer, or a director, servant or agent of the company in any return knowingly and wilfully understates the amount of any income or makes any misstatement affecting the liability of any person to tax or the amount of tax shall be guilty of an offence".

16 The High Court held that the complaint against Mallan wrongly relied on s 5 of the Crimes Act for the reason that s 230 made him directly liable as a principal for the offence of knowing and wilful understatement of the amount of any income in a return. The offence of the company consisted only in its vicarious responsibility for the act of Mallan undertaken on its behalf. After construing the section in this way, Dixon J continued at 215-216: On the interpretation I have given to s 230(1), for more than one reason s 5 of the Crimes Act cannot apply to a public officer so as to make him an accessory to the offence of the company. In the first place, the public officer's act on behalf of the company making it an offender ipso facto amounts to a substantive offence on his part under s 230(1). In the second place, the sub-section makes him the actor, the principal, for whose guilty conduct the company is responsible vicariously. It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.

17 The statutory provision considered in Hamilton v Whitehead (1988) 166 CLR 121 imposed direct liability upon a corporation. The Court in Hamilton at 126-127 distinguished such a statutory provision from that under consideration in Mallan. This was because the statutory provision in Hamilton spoke directly to the company (per Mason CJ, Wilson and Toohey JJ at 127), whereas that in Mallan made the company only vicariously liable. Consequently, and in contrast to Mallan, the Court held that there was no conceptual difficulty in making the managing director liable as an accessory. The distinction between the statutory provisions in Mallan and Hamilton was noted in Hanley v Automotive, Food, Metals. Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at [52] (Full Court) and Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 at [25] (Mansfield J).

18 Similarly to the statutory provision in Hamilton and in contrast to the statutory provision in Mallan, s 205 of the Fisheries Management Act speaks directly to the corporate owner of the pipeline as well as to Mr Rosser as the Extractive Industry Licensee. Section 205 does not make the corporation liable for an act performed by a servant on its behalf. The liability imposed on the corporation is direct, not vicarious.

19 In Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 three prosecutions were commenced. One alleged a contravention of s 16(1) of the Clean Waters Act 1970 (NSW). The other two alleged the contravention of s 17D(9) of the State Pollution Control Commission Act 1970 (NSW). Each arose from the same factual act of pollutions. All were heard by this Court. Cripps CJ was satisfied that there had been a contravention of s 16(1) of the Clean Waters Act and decided to impose a fine. His Honour was then confronted with the submission that it was not open to him also to convict of the other two offences because they were really only one offence or, alternatively it was not permissible to punish three times for substantially the same conduct. On a stated case, the Court of Criminal Appeal (Gleeson CJ, Carruthers and Smart JJ agreeing) held that the other two charges had to be dismissed because the offences were in substance the same or the rule against double jeopardy applied: at 510. That case is distinguishable because in the present case the two offences have different elements.

20 There is no breach of the double jeopardy rule if one offence requires proof of a fact which the other does not: Pearce v The Queen (1998) 194 CLR 610 at [25] - [28] per McHugh, Hayne and Callinan JJ. However, to the extent to which two offences of which the offender stands convicted contain common elements, it would be wrong to punish the offender twice for the commission of the elements that are common. That is because punishment should reflect what the offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn: ibid at [40].

21 Section 20 of the Crimes (Sentencing Procedure) Act 1999 (NSW) acknowledges that an act or omission may constitute (a) an offence under a law of New South Wales and (b) an offence under a law of the Commonwealth or another State or Territory. Section 20 provides that if a penalty is imposed in respect of the offence referred to in (b), the offender is not liable for a penalty in respect of the offence referred to in (a).

22 In Island Maritime Ltd v Filipowski [2004] NSWCCA 453 the appellant unsuccessfully sought stays of prosecutions for breaches of s 8 of the Marine Pollution Act 1987 (NSW) on the ground that they constituted a breach of the rule against double jeopardy. The appellants had earlier been acquitted of a charge of committing an offence against s 27 arising out of the same conduct. The elements of the charge under s 8 were (a) a discharge (b) of oil or a oily mixture (c) from a ship (d) into state waters. The elements of the charge under s 27 were the same with the additional element (e) in, or in connection with, a transfer operation. The Court of Appeal held at [20]: It follows that the elements of the two charges are not the same and the elements of the charges in respect of which the applicants have been acquitted are not all included in the elements of the second or current charges, and so pleas of autrefois acquit are not available. 23 In the present case, the elements of the two charges are not the same. The elements of the charge under s 205 against the appellant in his personal capacity were (a) he harmed (b) seagrasses (c) in a protected area (d) without authority of the Minister's permit. The elements of the charge under s 205 against the appellant by reason of s 279 were that (a) the corporate owner of the pipeline (b) harmed (c) seagrasses (d) without authority of the Minister's permit and (e) the appellant knowingly authorised or permitted that conduct by the corporation. Therefore the double jeopardy rule is not offended.

24 Apart from authority the matter may be tested in this way. If the sole director of the corporate owner of the pipeline had been X, then both the appellant and X could have been charged and convicted if both had been found to have done what the appellant did in this case. It is difficult to see why the coincidence that the appellant happened to be not only the Extractive Industry Licensee but the sole director of the corporate owner of the pipeline should lead to a different result.

25 Accordingly, I do not accept this ground of appeal.

SECOND GROUND OF APPEAL AGAINST CONVICTION 26 The second ground of appeal against the conviction is that the proceedings were commenced outside the time prescribed by s 278 of the Fisheries Management Act 1994 which provides:

Despite the Criminal Procedure Act 1986 or any other Act, proceedings for an offence under this Act or the regulations may be commenced not later than 2 years after the date alleged to be the date on which the offence was committed. 27 The proceedings were commenced on 11 July 2005. The appellant submits that the only direct evidence of damage actually occurring to the seagrasses was that of Mr Mitchell Baker, who said that while fishing in March 2003 he saw the seagrasses being damaged by the pipeline. Therefore, according to the submissions, the offence was committed in March 2003 and so the proceedings were commenced outside the two year limit.

28 The two charges against the appellant alleged that the offences occurred between about 15 July 2003 and 26 September 2003. In my view, the appellant's submission fails to have regard to the following evidence which established that the offences were committed during that period and, therefore, that the proceedings were commenced within the two year limitation period: (a) Marcus Riches, the Acting Senior Conservation Manager (North Region) with the NSW Fisheries Office of Conservation made a written statement which was received into evidence. He stated that on 26 September 2003 he inspected the pipeline laying on the seagrass bed in one location in approximately a north-south direction, and that damage had been caused to the seagrass to the extent of approximately 500 mm either side of the pipeline plus the pipeline width of 300 mm. The average width of damage to seagrass was estimated at approximately 1 - 1.5 metres. The length of damage was approximately 500 metres. He continued his assessment until he reached another seagrass bed located on the eastern side of Pelican Island where he again observed the pipeline directly on top of seagrass beds. It was evident that the pipeline was not secure. There were a number of depressions indicating that the pipeline had shifted position and that it had moved across the seagrass bed causing damage to the seagrass; (b) Mr Sparks gave evidence that he was notified on 15 July 2003 that dredging had been completed. The pipeline was not removed until November 2003; (c) statements of Albert Neil Pearce which were admitted into evidence. He was paid by the appellant to help him dredge sand. He stated in his first statement dated 10 June 2004 that when he left the job in May 2003 the pipe was only on the southern portion of the seagrass bed and not really affecting things at all. When asked by the appellant in November 2003, he returned to the site to remove the pipe. He noticed that the pipe had shifted right through the middle of the main seagrass bed. In his second statement dated 25 January 2005, Mr Pearce testified that over the period between May and July 2003 he had several contacts with Mr Sparks who ultimately told him in late June or early July 2003 that there would be no further extensions to the lease agreement and that he must remove all the dredge equipment from the site including the pipeline. Mr Pearce reported this conversation to Mr Rosser who told him that was fine but that he had better leave the pipe where it was because the appellant had nowhere else to put it. An aerial photograph in evidence indicates that the seagrass beds to which Mr Pearce was referring are roughly of the order of 100 metres or more in width. Consequently the harm to the seagrasses in this period, due to the movement of the pipe, occurred over a substantial area; (d) the appellant gave evidence that the pipe was not removed by Mr Pearce in July and that the appellant's intention was to utilise it in the next project. The Magistrate found that the appellant was instructing Mr Pearce what to do; otherwise Mr Pearce would have pulled up the pipe when he pulled up other things. 29 For these reasons, I do not accept the second ground of appeal against the convictions.

THIRD GROUND OF APPEAL AGAINST CONVICTIONS 30 The third ground of appeal against the convictions is that there was no adequate evidence linking the appellant to the causing of harm to the seagrasses. It was submitted that in this respect the convictions were against the weight of the evidence. The appellant's submission focussed heavily on the fact that Mr Pearce's written pre-trial statement indicated that the pipeline was not on the seagrasses at the outset of dredging but that it moved onto the seagrasses thereafter; whereas in oral evidence he said that it was touching the southern edge of the seagrasses from the outset and that he told the appellant this.

31 The Magistrate accepted Mr Pearce's oral evidence. Mr Pearce's written and oral evidence was consistent that after the pipe was placed, it moved. It is common ground that the evidence before the Magistrate established that the appellant directed Mr Pearce to leave the pipeline in the water after the dredging finished on 15 July 2003 and that damage occurred thereafter. In addition to Mr Pearce's evidence, there was other evidence which linked the appellant to the harm caused to the seagrasses: see [28] of these reasons.

32 It was open to the Magistrate to accept Mr Pearce's oral evidence and, in my view, the shift in his evidence to which I have referred is insufficient to lead to the conclusion that there was no adequate evidence linking the appellant to the causing of the harm to the seagrasses.

APPEAL AGAINST SENTENCE 33 The Magistrate fined the appellant $6,000 on the conviction for breaching s 205 in his personal capacity and imposed no sentence in respect of the other conviction. This is explained by the principle that to the extent that the appellant stood convicted of two offences which contained common elements it would be wrong to punish him twice for the commission of elements that are common: Pearce v The Queen at [40] discussed at [20] of these reasons.

34 The appellant appeals against the sentence and submits as follows: (a) $6,000 is an excessive proportion of the maximum fine of $10,000 which the Local Court was able to impose; (b) the prosecutor's department received $10,000 in costs plus one half of the $6,000; (c) there was no evidence of prior convictions; and (d) there was evidence that there had been some recovery of seagrasses by March 2006.

The appellant also submitted that the conviction affects the appellant's standing for dredging and EPA licences. The respondent did not agree that this was so and there was no evidence on the point. Even if it is the case, it does not affect my conclusion stated below. 35 The maximum penalty for a contravention of s 205 of the Fisheries Management Act 1994 is $110,000 in the case of an individual and $220,000 in the case of a corporation. The fine imposed in the present case is therefore almost at the bottom of the range for an individual. It is not to the point, in my view, that under s 277 of the Fisheries Management Act 1994 the maximum monetary penalty that the Local Court may impose for an offence under that Act happens to be $10,000. It is to be expected that minor offences are prosecuted in the Local Court and more serious offences are prosecuted in this Court where the maximum sentence can be applied. In my opinion, this ground of appeal should be dismissed. CONCLUSION 36 The Court makes the following orders

(a) Appeal dismissed. (b) The appellant is to pay the respondent's costs of the appeal.

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