Land and Environment Court (NSW)|1992-03-02|Before: Stein J

Simpson v Gatacre [1992] NSWLEC 9 (2 March 1992)

HIS HONOUR: The defendant, William Michael Gatacre, pleads not guilty to four summonses alleging that he breached s.21C of the Soil Conservation Act, 1938 as amended. Each of the summonses alleges that he caused to be cut down a number of trees on certain protected land. The particulars to each charge specify a breach of a particular condition attached to an Authority granted to the defendant to destroy trees within 20m of the northern bank of the Edward River on "Woorooma" property at Moulamein, some 90km distant from Deniliquin.

The only issue before the Court is whether the prosecutor has established beyond reasonable doubt that the defendant caused the trees to be cut down on the protected land and in breach of the Authority issued under s.21D of the Act.

The Soil Conservation Act provides for a category of "Protected land". This may be land within a catchment area with a slope greater than 18o, land within 20m of the bed or bank of a river or lake or land which is, in the opinion of the Commissioner, environmentally sensitive or affected or liable to be affected by soil erosion, siltation or land degradation. The definition of "Protected land" in s.21AB of the Act is, any land "that is situated within, or within 20 metres of, the bed or bank of any prescribed river...". The River Murray and many of its tributaries, including the Edward River, was so prescribed by publication in the Government Gazette of 9 April 1948. The land adjacent to the Edward River to a distance of 20m on each side of the bank is therefore protected land.

Woorooma station is a large grazing property of some 9,500ha situated at Moulamein. It is owned by Neadoug Pty. Ltd. The Manager of the property is the defendant, William Michael Gatacre. The Edward River runs through part of the property, thus creating a strip of 20m of protected land on its northern bank for the distance it passes through the station - some 10,000m. Apparently Woorooma is, or more accurately was, heavily forested.

On 10 February 1988 David Davis, a district soil conservationist with the Soil Conservation Service, called on Mr. Gatacre at the property at the latter's request. During the visit the defendant handed to him a completed application form seeking authority to destroy or damage trees on protected land on the property pursuant to s.21D of the Act.

"Subject to this section, the Commissioner may issue to any owner or occupier of protected land, or to any holder or grantee of timber rights over protected land an authority authorising the ringbarking, cutting down, felling, poisoning or destruction in any other manner or the topping, lopping or removing of any trees on that land."

"Occupier" is defined in the Act as including "a person having the control or management of the land". I am satisfied beyond reasonable doubt that the defendant comes within this definition.

The purpose of the logging on the property by Loves Haulage Co. was for sleepers and wood chips with milling to take place adjacent to the logging. The exercise was to take around 2 years and the logger was to pay a monthly royalty to the station owner for the timber. According to the defendant the royalty paid to the owner during the logging operation was around $200,000.

The final question in the application for authority to destroy timber under s.21D of the Act asked "What steps do you intend to take to ensure that your proposal will not detrimentally affect the environment?" The defendant completed the answer thus - "Standard conditions will be adhered to".

While Mr. Davis was on the property on 10 February 1988 he also met Graeme Love and his son Rodney. I accept that, as deposed in his affidavit read in Court, Mr. Davis explained to the defendant, and to the Loves, the crucial standard conditions which would be attached to any Authority to take timber from the protected lands. Indeed, he went to great lengths to clearly appraise the three of them of the conditions to the extent of pacing out a distance of 20m from the banks to show how the protected land was to be determined at different locations. The defendant does not dispute this and I accept the evidence of Mr. Davis.

In the course of time (and on 24 June 1988) the Authority to destroy trees under s.21D of the Act was granted to the defendant as Manager of Woorooma station. Conditions and limitations of Authority were included in the permit. These include the following standard conditions:-

3. Trees which are less than 60 cm. in diameter at a height of 1.3 metres above the ground shall be retained.

7. In areas other than tree plantations not more than 50% of trees which are greater than 60 cm. in diameter at a height of 1.3 metres above the ground shall be destroyed. However, a minimum of one such tree, large crowned where possible, shall be retained every 15 metres along each side of the watercourse.

9. In felling, trees which are unable to be directed away from the river or lake may be felled only with the approval of the inspecting officer.

10. Any debris falling into the river or lake shall be removed immediately, without damage to the bank and adjacent trees.

The defendant agrees that Mr. Davis specifically asked him to show the conditions to the feller, Mr. Rodney Love. However, Mr. Gatacre says he did not do this because Rodney Love told him he knew the conditions and had logged protected land before without any problems.

On 3 March 1989, and following a complaint, Mr. Davis returned to the property with a local grazier, Mr. Neil Arthur. As a result of what he saw he telephoned the defendant and arranged to inspect the property later in March. He requested logging to cease in the 20m protected strip and Mr. Gatacre agreed. The inspection took place on 21 March 1989 and Rodney and Graeme Love attended besides Mr. Gatacre. It was abundantly clear to Mr. Davis that trees had been cut down on the protected land contrary to the Authority as well as other breaches of the conditions. Indeed, the defendant does not now dispute that the alleged breaches in fact occurred.

At the time of the joint inspection however Mr. Gatacre argued about the interpretation to be placed on the conditions. Subsequently, and after due warning, Mr. Davis conducted a formal interview with the defendant on 13 April 1989. On that occasion Mr. Davis also made a further inspection of the 500m area of protected lands along the river where the breaches had been located. He marked stumps and took measurements and noted the apparent breaches of the Authority. Mr. Davis made another visit to the property in March 1990, made further detailed measurements and took a series of photographs which were received in evidence without objection. On that occasion he was told by the defendant that the logging operations on the property had finished "sometime before Christmas 1989".

The transcript of the interview of 13 April 1989 is of considerable importance and was tendered in evidence without objection. The defendant does not dispute the accuracy of the record although he states, for certain reasons which I will mention later, that he told a number of lies to Mr. Davis during the interview.

After it was agreed that the parties were on the portion of the Edward River in question, Mr. Davis asked:-

"DAVIS: Did you or did people in your employ cut down these trees?

DAVIS: How were they employed: wages, contract or licence?

Not on wages, and a contract system, no, on a share farming system.

"DAVIS: Were you aware that a permit to log within 20 metres of the Edward River had been approved by the Catchment Areas Protection Board under Section 21D of the Foil Conservation Act?

DAVIS: Were you aware of the conditions specified by the Catchment Areas Protection Board in their Permit Advice?

GATACRE: Yes. As I interpreted them and as were outlined by you, add(sic) after on site explanation from you.

DAVIS: Did you receive my letter dated 12 July 1988 drawing your attention to the conditions of the Section 21D permit?

GATACRE: Well, I think I did but I can't find it, but I only have one page, not the conditions.

DAVIS: On a previous occasion I asked you had you received that letter and you said 'Yes'.

GATACRE: I did, but I can't find that. Most of the conditions were not outlined or explained by you when Rodney Love, you and me discussed the conditions. The only four conditions that we discussed on site were:

"DAVIS: Could you tell me what your interpretation of the 15 metre gap is?

GATACRE: You measure it from only 60 cm trees, Rodney and I think it applies to any trees. I misunderstood that one completely. You also said all trees of 60 cm are considered even if non-millable. As regard the 20 metre strip that not made clear to us, no we will leave that one to the end. Rodney said he had complete understanding of the 20 metre from previous discussions with Kay Brown and was unaware of other interpretations because he did not receive the attached conditions. He did not know them.

DAVIS: I have identified the following points which indicate that the permit conditions have not been satisfied:

Do you agree that these permit conditions have not been met in the logging operation to date?

GATACRE: No. Not as per my interpretation of the 20 metre strip.

DAVIS: What instructions did you give to the loggers regarding tree selection in the 20 metre strip along the Edward River?

GATACRE: To adhere to the conditions as we understood them.

DAVIS: What discussions had you had with the logger regarding these standard conditions?

GATACRE: We discussed what had been explained by you and he was instructed to comply with these conditions outlined by you. Both he and I were clear in our own mind about what could be cut. Under no circumstances was he to cut trees in breach of these conditions.

DAVIS: What supervision of the logging operation have you made?

GATACRE: To be honest I was not on the property. I was away on holidays and the alleged breaches were outlined to me, on whatever date, you telephone me and when you phoned me on these alleged breaches I was completely surprised and after and(sic) inspection with you my conclusion was that they were not breaches. There was a total disagreement on where the 20 metre section is measured.

DAVIS: During our last inspection that is not what you told me!

GATACRE: That is the case, but in thinking about it I believe I was caught off guard and with Rodney we re-appraised the situation. That is, I would also like to mention that the alleged breaches were considered to be breaches by you because of your lack of understanding and in my opinion, what is the river and river course and our only disagreement is where the 20 metres should be measured from. I must add that I do not think any of the conditions are unreasonable at all and fully intended for myself and the timber cutter to comply. In my opinion none of the conditions have been breached.

"DAVIS: At my request we carried out a joint inspection of the site prior to completion of the Permit Application. At that time I explained the conditions which applied to tree selection. Do you agree that at that time you said you understood the conditions?

GATACRE: Yes, the ones that were explained to me. Certainly, not all 13 that arrived months after.

DAVIS: Did you at any stage show the conditions to the logger?

GATACRE: No, because I did not have them to show him."

"DAVIS: With your knowledge of river conditions have you helped the logger locate the 20 metre strip?

GATACRE: Yes. No, I won't say helped but assisted with his interpretation."

Mr. Gatacre gave evidence in his defence. Essentially he maintains that he did not cause any trees to be cut down on the protected land. He was satisfied that the Loves knew their business and were competent. He told them that if there were any problems they would be 'terminated'. In particular he advised them that there was to be no illegal cutting of timber. He agrees that Mr. Davis comprehensively outlined the conditions to himself and the Loves on 10 February 1988 and gave them practical examples of how to measure girths and the 20m strip.

Mr. Gatacre says that the area in question was cut by Mr. Rodney Love while he was away on holidays in January 1989. Subsequently, Mr. Davis came out and inspected and later formally interviewed him on 13 April 1989. The defendant accepts the record as accurate.

In cross-examination the defendant claimed that he reiterated on a dozen or even more occasions to the Loves that they were not to do anything illegal and were to adhere to the conditions in the Authority. He says that he dismissed the Loves after receiving the complaint from Mr. Davis but reinstated them a short time later because he felt sorry for them. It seems clear that the Loves continued to log the property until November or December 1989.

Mr. Gatacre denied he had any input into the cutting down of the timber or into the interpretation of the conditions. He denied helping the feller locate the 20m strip. A little later in evidence however the defendant agreed that he helped the logger with interpretation of the conditions before logging of protected lands commenced because Rodney Love was having difficulty with them. However, once he started work on the protected land, the feller was very clear on the conditions. This evidence stands in contrast to his statement that the Loves were retained because they had logged protected land for 20 years without trouble and did not need to see the conditions because they were very clearly understood. Mr. Gatacre also stated that he brought the conditions to the attention of the feller from his own memory of them. Mr. Gatacre then embroidered his evidence by stating that every time he saw the feller he told him to abide by the conditions. He also said that he pointed to the spot shown to them by Davis to reiterate to the feller the location of the 20m strip.

The defendant has sworn that a number of statements he made to Mr. Davis in the interview of 13 April were untrue. This was done, so he says, because he was irrational at the time, upset and annoyed with Mr. Davis. He claims that he was trying to play down the issue and confuse and mislead Davis since Davis was apparently determined to prosecute. It is clear that a good deal of the portions of the statement quoted earlier in the Judgment are, according to the defendant, lies which he intentionally told Mr. Davis.

The defendant finished his cross-examination by stating that he transferred the responsibility to comply with the Authority to the timber cutters and the day to day operation was under their control and not his control.

I say without hesitation that I cannot place reliance on much of Mr. Gatacre's oral evidence. In my opinion a good deal of it is untrue. I gained the distinct impression that he was willing to say almost anything that came into his head in order to deflect liability and responsibility from himself. His evidence is riddled with inconsistencies and stands in stark contrast to much of his above statement. With respect to the making of the statement I do not accept that he was upset, irrational or illogical at the time of this interview. In my opinion it is likely that the answers given to Mr. Davis on 13 April 1989, and recorded in the interview, are much closer to the truth than his oral evidence in Court.

I am satisfied beyond reasonable doubt that the defendant had the management and control of the property, including the protected land adjacent to the Edward River. I am satisfied beyond reasonable doubt that he engaged the fellers to take timber from the station including its protected lands. The defendant made the contact with the Soil Conservation Service in order to obtain an Authority to allow him to destroy trees on the protected lands. Subsequently, he completed the application for such an Authority. He attended Mr. Davis' inspection of the land when the conditions were explained. Indeed, he was at pains to say that they were thoroughly and comprehensively explained and understood.

I have no doubt that Mr. Gatacre participated in the decision as to what trees were to be cut by the feller. In that regard I do not mean to imply that he supervised the felling or marked out the trees. Rather I mean that he told the feller of his interpretation of the conditions and accordingly what trees could be felled and their location. This was because his interpretation of the conditions varied from that of Mr. Davis as he repeatedly stated in the 13 April interview. Of course it is now clear that his interpretation was incorrect and he does not now suggest that there were no breaches, only that he did not cause the breach.

There is one other contested issue of fact. The defendant alleges that before the incidents of January 1989 Mr. Davis came to the property to inspect the first 1,000m of logging of protected land. Mr. Davis was, according to Mr. Gatacre, well satisfied with the logging and compliance with the Authority. Mr. Davis denies any such inspection took place. Mr. Gatacre's account receives some, albeit slight, corroboration from the feller, Mr. Rodney Love. However, I discount Mr. Love's evidence on this issue. His evidence was generally extremely vague and his dates and times were close to non-existent. He could easily have inspections mixed up in his mind after 3 years have passed.

I accept Mr. Davis' evidence unequivocally. It was given clearly and carefully. Furthermore, there is no real reason why he should falsify his evidence to deny such an inspection. On the other hand the existence of such an inspection could, according to his Counsel, assist the defendant's case. I do not believe that the inspection took place. The allegation is but one further example of the defendant's preparedness to concoct evidence in order to assist his position as he sees it.

It is the submission of Mr. Donaldson, on behalf of the defendant, that it has not been established beyond reasonable doubt that his client caused the trees to be cut down in the sense required by O'Sullivan v. Truth and Sportsman ((1956-57) [1957] HCA 8; 96 CLR 220). In particular, he relies upon the statement in the joint Judgment at p.228:-

"It [the provision] should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensure."

Reliance is also placed on the Judgment of Kitto J. at p.231. Mr. Donaldson notes that this Court has applied O'Sullivan's case in two Tree Preservation Order cases - Byron Shire Council v. Bond (Unreported, 13 March 1986) and Fry v. Patterson (Unreported 24 August 1990). Accordingly, he submits that it must be established that the defendant was in a position of dominance and control over the feller and gave a direction to carry out the unlawful act. In Mr. Donaldson's submission the defendant was not in any position of dominance or control over the feller and gave no direction that the trees should be destroyed contrary to the Authority. All that the defendant did was to represent his employer, the owner of the station, in entering into a licence with the haulage company to take timber from the property in consideration of a royalty to be paid to the owner.

Recently the New South Wales Court of Criminal Appeal had occasion to consider the offence of causing waters to be polluted under the Clean Waters Act, 1970, Tiger Nominees Pty. Ltd. v. State Pollution Control Commission (Unreported, 17 February 1992). The Court affirmed Cooper v. Australian Oil Refining ((1987) 64 LGRA 58) and Majury v. Sunbeam Corporation ((1974) 1 NSWLR 659) holding that offences under s.16(1) should continue to be construed as offences of strict liability. One of the questions for the Court was whether, as a result of amendments in 1987, the principle of strict liability in s.16(1) was restricted or s.16(3) "set the outer limits" to the offence of "causing". Gleeson CJ rejected this contention. In his Judgment he noted that in Alphacell v. Woodward ([1972] AC 824) the word "cause" was held to include something which occurred intentionally, negligently, inadvertently, without negligence or without intention. Alphacell has repeatedly been followed in New South Wales.

In my opinion, taking account of the context and objects of the Soil Conservation Act, the creation of the statutory offence in s.21C and its wording, it is clear that the offence is one of strict liability. One of the principal objects of the statute is to prevent erosion and degredation of land - the protection of socially beneficial interests. Section 21C is a provision which is not criminal in any real sense but rather is prohibited under penalty in the public interest. It is what has sometimes been referred to as a "public welfare offence".

Having found that the offence is one of strict liability it is appropriate, in my opinion, to apply Alphacell and the discussion of the meaning of "cause" by the House of Lords. The common-sense and ordinary meaning of 'cause' is to be adopted. When this meaning is applied to the facts I have no doubt that the defendant desired to secure a particular result, viz., the removal of timber from the property including its protected lands adjacent to the Edward River. To secure this end he did a number of things. He arranged for a timber company to be given a licence by his employer for the payment of a royalty to it for the timber removed. Knowing that an Authority to remove timber from the protected lands was required he applied to the Soil Conservation Service for such permit which was subsequently granted to him. I am further satisfied beyond reasonable doubt that the defendant actively encouraged the feller to take timber from the subject 500m of protected land on the basis of his interpretation of the conditions knowing that this was contrary to the clear explanation given by Mr. Davis. In doing these things the defendant acted to bring about the result. It is not necessary that he intended the result, however I am quite satisfied that he did so intend.

Even if the test enunciated in O'Sullivan's case is rigidly applied, and I have some doubt as to its complete appropriateness to an offence of this nature, nonetheless the evidence and available inferences satisfies me beyond reasonable doubt that the defendant had the necessary dominance and control over the feller and communicated his desire to Mr. Love to have trees destroyed in accordance with his particular view of the conditions. The defendant, by his Counsel, no longer suggests that his client's interpretation is sustainable. I am satisfied that it has been established beyond reasonable doubt that the defendant caused the trees to be cut down on protected lands contrary to s.21C of the Soil Conservation Act.

I am satisfied beyond reasonable doubt that the ingredients in each of the four offences have been established and find the offences proved. Before proceeding to record convictions I will hear any evidence and submissions in mitigation.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 14 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE PAUL STEIN.

Simpson v Gatacre [1992] NSWLEC 9

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Simpson v Gatacre [1992] NSWLEC 9 (2 March 1992)

Parties