Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd ACN 101 059 769 Department of Planning, Industry and Environment (Prosecutor) Austin Giugni Martin (Defendant)

Secretary, Department of Planning, Industry and Environment v Merrywinebone Pty Ltd ACN 000 937 824 Department of Planning, Industry and Environment (Prosecutor) N/A (Defendant)

Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree Department of Planning, Industry and Environment (Prosecutor) Austin Giugni Martin (Defendant)

Secretary, Department of Planning, Industry and Environment v Kenneth Bruce Harris Department of Planning, Industry and Environment (Prosecutor) N/A (Defendant) File Number(s): 19/265264, 19/265265, 19/265266, 19/265267, 19/265268, 19/265269, 19/265270, 19/265271, 19/265272, 19/265273, 19/265274, 19/265275, 19/265276, 19/265277, 19/265278, 19/265279, 19/265280, 19/265281, 19/265282, 19/265283, 19/265284, 19/265285, 19/265286, 19/265287, 19/265288, 19/265289, 19/265290, 19/265291, 19/265292, 19/265293, 19/265294, 19/265295

Judgment

1. The Prosecutor has charged two individuals and two companies with eight offences each (32 charges in total) in relation to eight clearing events allegedly committed between December 2016 and January 2019 on a property known as Boolcarrol. Due to the timing of the eight clearing events, charges have been issued pursuant to the Native Vegetation Act 2003 (NV Act) and the Local Land Services Act 2013 (LLS Act). Most of the alleged clearing took place in 2017.
2. In Secretary, Department of Planning, Industry and Environment v Harris (matter nos 19/265267, 19/265271, 19/265275, 19/265279, 19/265283, 19/265287, 19/265291, 19/265295) and Secretary, Department of Planning, Industry and Environment v Merrywinebone Pty Ltd (19/265265, 19/265269, 19/265273, 19/265277, 19/265281, 19/265285, 19/265289, 19/265293) the defendants pleaded not guilty on 15 November 2019 to all 16 charges. In Secretary, Department of Planning, Industry and Environment v Greentree (matter nos 19/265266, 19/265270, 19/265274, 19/265278, 19/265282, 19/265286, 19/265290, 19/265294) and Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd (19/265264, 19/265268, 19/265272, 19/265276, 19/265280, 19/265284, 19/265288, 19/265292) no plea has yet been entered. The defendants in those matters were directed by Duggan J on 15 November 2019 to advise the Prosecutor of whether a plea of guilty would be entered by 21 November 2019 and have not done so. All the Prosecutor's evidence in relation to all 32 charges has been filed and served.
3. Mr Harris and Merrywinebone Pty Ltd (Merrywinebone) agree their matters should to be heard together and seek an early hearing date. Mr Greentree and Auen Grain Pty Ltd (Auen Grain) agree their matters can be heard together.
4. The Prosecutor filed two notices of motion dated 22 November 2019 seeking orders that all 32 matters be heard together. Mr Harris and Merrywinebone oppose the orders being made. Greentree and Auen Grain do not consent or oppose the orders.

Native Vegetation Act 2003

1. The NV Act provided as at 1 January 2014 to 30 June 2017: Part 3 Clearing native vegetation … Division 1 Control of clearing 12 Clearing requiring approval (1) Native vegetation must not be cleared except in accordance with: (a) a development consent granted in accordance with this Act, or (b) a property vegetation plan. (2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act. (3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4. … Part 5 Enforcement … Division 4 Civil and criminal proceedings 44 Evidentiary provision In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that: (a) the clearing was carried out by another person, and (b) the landholder did not cause or permit the other person to carry out the clearing. This section does not prevent proceedings being taken against the person who actually carried out the clearing.

Local Land Services Act 2013

1. Section 60N of the LLS Act provides: Part 5A Land management (native vegetation) … Division 3 Regulation of clearing of native vegetation in regulated rural areas 60N Unauthorised clearing of native vegetation in regulated rural areas - offence (1) A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences - (a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A, (b) that the clearing is authorised by a land management (native vegetation) code under Division 5, (c) that the clearing is authorised by an approval of the Panel under Division 6, (d) that the clearing is authorised under section 60O (Clearing authorised under other legislation etc), …

Criminal Procedure Act 1986

1. Section 29 of the Criminal Procedure Act 1986 (CP Act) provides: Chapter 2 General provisions … Part 3 Criminal proceedings generally … 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances - (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

Prosecutor's evidence and submissions

1. The affidavit of Mr Walls solicitor for the Prosecutor dated 22 November 2019 was read. This outlined the nature of the eight clearing events the subject of six charges under the NV Act and two charges under the LLS Act. Mr Greentree and Mr Harris are the registered owners as tenants in common of Boolcarrol. The clearing is alleged to have occurred at different times between 29 December 2016 and 18 January 2019. During this period, Boolcarrol was farmed by the partnership known as "Greentree Farming". A copy of the partnership agreement was annexed to Mr Walls' affidavit. Each of the defendants was responsible for the overall management and control of Boolcarrol and as such were landholders for the purposes of the NV Act and the LLS Act.
2. The proceedings are identical in nature and arise from the same facts and circumstances as those alleged in each of the 32 proceedings. The expert and lay evidence relied on for all defendants is identical for all 32 offences. The Prosecutor intends to rely on the reports of an aerial photographic interpretation expert and an ecologist. Two of the lay witnesses are not employed by the Prosecutor. Mr Walls stated that in addition to the commonality of the witnesses, he anticipates there will be commonality of evidence and that subject to certain exceptions; the evidence in each of the proceedings will be admissible in the proceedings against the other defendants. As the proceedings all arise out of the same set of circumstances, if the proceedings are heard separately the Prosecutor will need to call each of the witnesses relied on multiple times.
3. Section 29(2) of the CP Act allows a court to hear and determine proceedings in relation to offences alleged to have been committed by two or more accused persons where the offences arise out of the same set of circumstances (subs (b)) and where the offences form or are part of a series of offences of the same character (subs (c)). The commonality of witnesses suggests that most of the evidence will be admitted as against all the defendants. The efficient conduct of the proceedings to avoid the same evidence having to be given twice suggests there is strong utility in all the matters being heard together in the interests of justice, see Roach v R [2019] NSWCCA 160 at [80]-[83], [87] and Symss v The Queen [2003] NSWCCA 77 at [68] and [72] in the context of cut-throat defences. It is highly likely that Mr Harris will argue that he did not carry out the clearing and was not responsible for permitting the clearing events to occur.

Harris and Merrywinebone's evidence and submissions

1. The affidavit of Mr Harrison solicitor for Mr Harris and Merrywinebone dated 28 November 2019 was read. Mr Harris is the sole director of Merrywinebone and Mr Greentree is the sole director of Auen Grain. Between about 2005 to November 2019, Boolcarrol was farmed by the Greentree Farming partnership in which Mr Harris and Merrywinebone owned 49 percent and Mr Greentree and Auen Grain owned 51 percent. Mr Greentree is the managing partner and has the final say in the conduct of the business under the partnership agreement. Between early 2017 to August 2019, there was a dispute between Mr Harris and Merrywinebone, and Mr Greentree and Auen Grain. Mr Harris and Merrywinebone, and Mr Greentree and Auen Grain were represented separately by separate legal firms and counsel. From the time that Mr Harris retained lawyers to represent him in relation to the partnership dispute, there were few communications between Mr Harris and Mr Greentree. Between December 2016 and January 2019 (the period in which the offences were alleged to have occurred), Mr Harris attended Boolcarrol no more than six times.
2. Mr Harris and Mr Greentree received stop work orders issued under the Biodiversity Conservation Act 2016 (BC Act) by the Office of Environment and Heritage (OEH) between 1 September 2017 and 13 March 2018. Notices to provide information and/or records were issued by the OEH in February and March 2018 pursuant to the BC Act. Mr Harris had no contact with the OEH between March 2018 and March 2019. A further notice was issued on 20 March 2019. A notice to attend and answer questions was issued on 28 June 2019 pursuant to the BC Act. Mr Harris and Merrywinebone were served with summonses in these proceedings on 2 September 2019. By the time the alleged offences are heard by their Court, three and a half years will have passed since it is alleged that the first offence took place in December 2016. Mr Harris wishes to have these proceedings resolved as soon as possible due to the impacts they are having on him and his family.
3. The investigation by the Prosecutor was lengthy with proceedings just commenced within time. The protracted time taken to commence proceedings and the impact of the charges overall have had a deleterious effect on Mr Harris.
4. The Defendants object to the orders sought because these are likely to cause further delay in obtaining a hearing date. Further these defendants are likely to have a quite different defence to the defendants Mr Greentree and Auen Grain who have more direct knowledge of the matters the subject of the charges, given that they were responsible for the management of the business at the time the clearing the subject of the charges occurred. Their defence will rely on s 44 of the NV Act, to the effect that at the time of the alleged offences the partnership relationship had broken down and they had no day-to-day management and control of Boolcarrol. If a joint hearing is held they will have to incur the expense of a longer hearing.

Consideration

1. The power in s 29(2) of the CP Act is discretionary provided that one of the circumstances in subs (a), (b) or (c) exist. There is no dispute that the multiple offences arise from the same set of circumstances and also that the offences form part of a series of offences with the same character. That is clear from Mr Walls' affidavit summarised above in [9]. The necessary circumstances in s 29(2)(b) and (c) exist. It is otherwise necessary to consider whether an order as sought in the Prosecutor's notices of motion ought be made in the interests of justice, as referred to in s 29(3).
2. The Court of Criminal Appeal in Roach v R (Bathurst CJ, Bell P and Johnson J) at [80] identified that s 29(1) (in that case) is an important provision designed to promote and facilitate the fair and efficient disposal of criminal proceedings, affording a court a broad power to hear related offences together. In considering s 29(3) the interests of justice extend beyond the accused person, citing Osman v R [2006] NSWCCA 196 at [22]. The interests of the Crown, witnesses and the public should also be considered. The High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (McHugh, Gummow and Hayne JJ) at 620 identified that ordinarily prosecuting authorities will seek to ensure that all offences that are to be charged arising out of one event or series of events are preferably dealt with at the one time.
3. The same considerations identified in Roach v R apply for s 29(2)(b) and (c) and subs (3).
4. The Court of Criminal Appeal in Symss v The Queen (Sheller JA, James J and Smart AJ) at [68]-[76] identified that usually those charged with essentially the same offences will be tried together. Relevant considerations include conserving costs, avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts, at [68]. Findings by Hunt J in R v Middis (Supreme Court (NSW), 27 March 1991, unrep) to the effect that an applicant for a separate trial must show that particular prejudice if it arises would result in positive injustice in a joint trial, were cited at [70]. In Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 (Webb and Hay) at 88-89 the High Court (Toohey J, Mason CJ and McHugh J agreeing) stated that an appeal court must consider whether there had been a substantial miscarriage of justice to an accused if a joint trial proceeds cited at [71]. Symss v The Queen stated at [73]: Dealing with cut-throat defences Kirby J referred to the decision of Hunt CJ in Ignjatic (1993) 68 A Crim R 333 and to Webb and Hay. In Ignjatic Hunt CJ at CL, after referring to earlier decisions, said at 339: Obviously, there will be cases in which cut-throat defences are raised where it may be appropriate to order separate trials, but they would not in my view arise frequently. In a proper summing up, the jury will be directed separately in relation to the evidence admissible against each accused; Masters (1992) 26 NSWLR 450 at 455. The undoubted prejudice created by such an unsworn statement by a co-accused in a joint trial is usually considerably lessened in such circumstance, and thus it would not amount to the positive injustice required to warrant separate trials. (emphasis added)
5. The matters which may inform the exercise of discretion under s 29(3) are identified in the above authorities. Mr Walls identifies in his affidavit above at [9] the Prosecutor's extensive evidence, including expert evidence, which it will seek to rely on in relation to all defendants. The authorities above suggest that the matters should proceed together unless Mr Harris and Merrywinebone can point to particular prejudice.
6. One circumstance discussed in Symss v The Queen where a separate trial might be ordered is if a cut-throat defence is to be run. Their counsel advised they were not intending to run a cut-throat defence, in that they do not intend to positively assert that a particular person cleared unlawfully. According to their counsel the defendants will be submitting that they did not cause the clearing events the subject of the charges.
7. Effectively the only prejudice pointed to is the extra costs likely to be incurred by participation in a longer trial. While of course a highly material matter for these defendants, given the substantial inconvenience to the Prosecutor, the witnesses and the Court in having the same evidence presented twice in separate trials, that prejudice does not suggest that it is in the interests of justice that separate trials take place.
8. The interests of justice in terms of the competing inconvenience to Mr Harris and Merrywinebone must be weighed up with the inconvenience including substantial cost to the Crown in presenting the same case twice to the Court. The Prosecutor's witnesses include two who are not employed by the Prosecutor and are likely to be substantially inconvenienced as will their respective employers by having to potentially appear twice.
9. Part of the affidavit of Mr Harrison dealt with the lengthy investigation and time taken to commence proceedings as summarised in [12] above, supporting a submission about the need for an early hearing date. In the course of submissions on 29 November 2019 Mr Greentree and Auen Grain confirmed they were not intending to plead guilty to the charges. They have yet to enter a plea formally. As advised at the mention on 29 November 2019 in relation to Mr Greentree and Auen Grain, the Court will expect matters to proceed on the assumption that these parties are pleading not guilty. Given that all the Prosecutor's evidence has been filed and served the matter can be referred to a hearing promptly, in my view, with appropriate directions concerning the filing of the necessary notices under the CP Act. The concern about an early hearing date is therefore able to be managed.
10. I will make the orders sought in the Prosecutor's notices of motion dated 22 November 2019.

Orders

1. The Court makes the following orders: 1. Pursuant to s 29(2) of the Criminal Procedure Act 1986 (NSW), the following matters involving the defendants (Ronald Lewis Greentree and Auen Grain Pty Ltd (ACN 101 059 769) being matters 19/265266, 19/265270, 19/265274, 19/265278, 19/265282, 19/265286, 19/265290, 19/265294, 19/265264, 19/265268, 19/265272, 19/265276, 19/265280, 19/265284, 19/265288 and 19/265292 be heard and determined together with proceedings: * In relation to the defendant, Kenneth Bruce Harris being matters 19/265267, 19/265271, 19/265275, 19/265279, 19/265283, 19/265287, 19/265291, 19/265295. * In relation to the defendant, Merrywinebone Ply Ltd (ACN 000 937 824) being matters 19/265265, 19/265269, 19/265273, 19/265277, 19/265281, 19/265285, 19/265289, 19/265293. 1. Pursuant to s 29(2) of the Criminal Procedure Act 1986 (NSW), the following matters involving the defendants (Kenneth Bruce Harris and Merrywinebone Ply Ltd (ACN 000 937 824)), being matters 19/265267, 19/265271, 19/265275, 19/265279, 19/265283, 19/265287, 19/265291, 19/265295, 19/265265, 19/265269, 19/265273, 19/265277, 19/265281, 19/265285, 19/265289 and 19/265293 be heard and determined together with proceedings: * In relation to the defendant, Ronald Lewis Greentree being matters 19/265266, 19/265270, 19/265274, 19/265278, 19/265282, 19/265286, 19/265290, 19/265294. * In relation to the defendant, Auen Grain Pty Ltd (ACN 101 059 769) being matters 19/265264, 19/265268, 19/265272, 19/265276, 19/265280, 19/265284, 19/265288, 19/265292.

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