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Court of Criminal Appeal 16 December 1999

Birdon Dredging Pty Ltd v McDonagh on behalf of Council of Great Lakes

[1999] NSWCCA 416

Other

Citation: Birdon Dredging Pty Ltd v McDonagh on behalf of Council of Great Lakes [1999] NSWCCA 416
Court: NSW Court of Criminal Appeal
Date: 16 December 1999
Judges: Priestley JA, James J, Kirby J

Background

A dredging company (the appellant) was engaged by the lessee of two oyster leases at Wallis Lake to carry out dredging work. The lessee held development consent from the Great Lakes Council permitting dredging within the lease areas to a maximum depth of 1.5 metres below mean high water mark. No consent existed for dredging outside those lease boundaries.

The Council brought two charges under the Environmental Planning and Assessment Act. The first alleged the appellant had dredged within the lease areas in breach of the depth condition. The second alleged the appellant had dredged outside the lease areas entirely without consent.

At trial in the Land and Environment Court, Bignold J was satisfied beyond reasonable doubt that dredging had occurred, but could not determine its precise location. He dismissed the first charge and convicted the appellant on the second, reasoning that the dredging was more probably outside the lease areas and that it would bring the law into disrepute to acquit when guilt of one charge or the other was clear. The appellant appealed that conviction to the Court of Criminal Appeal.

  • Whether a conviction on one of two alternative charges could be sustained where the trial judge was not satisfied beyond reasonable doubt as to the facts establishing that specific charge.
  • Whether the principle from Gilson v The Queen (1991) 172 CLR 353, permitting conviction where an accused is clearly guilty of one offence or another, applied in the circumstances of this case.
  • Whether the prosecution had proved beyond reasonable doubt an essential element of the second charge, namely that the dredging occurred outside the oyster lease areas.

Decision

The Court of Criminal Appeal held that the second charge had to be assessed on its own merits, independently of the dismissed first charge. Considered in isolation, the evidence did not establish beyond reasonable doubt that the dredging had occurred outside the oyster lease areas. Because location was an essential element of the charge, the prosecution's failure to prove it was fatal to the conviction.

The court found that contradictions in the evidence, including expert survey conclusions and witness statements about the extent of the dredged channel, raised a reasonable doubt as to whether the dredging was outside the leases. The probabilities-based reasoning employed by Bignold J could not substitute for proof beyond reasonable doubt on this essential element.

The court expressed reservations, without reaching a concluded view, about whether the Gilson principle was appropriately applied in this case. The court noted that the charges here involved a positional element requiring proof of where the dredging occurred within defined boundaries, which may distinguish them meaningfully from the stealing and receiving charges considered in Gilson. The deficiency in proof of location could not, the court was inclined to think, be cured by resort to that principle.

Orders Made

  • Appeal upheld.
  • Orders of the Land and Environment Court on summons No 50058 set aside.
  • Summons No 50058 dismissed.
  • No order as to costs of the appeal.
  • The appellant granted liberty to apply within seven days for a different costs order.

Key Takeaways

  • A conviction cannot be sustained on a criminal charge where prosecution has failed to prove an essential element of that specific charge beyond reasonable doubt, even if the accused appears guilty of one of two alternative charges.
  • The Court of Criminal Appeal declined to apply the Gilson principle (that an accused clearly guilty of one offence or another should not escape conviction altogether) without reservation, signalling that the principle may not extend to cases where each charge has a distinct positional or boundary element requiring independent proof.
  • Where two charges are heard together but one is dismissed, the remaining charge must stand or fall entirely on its own evidence; the finding of probable guilt assessed across both charges does not carry over.
  • Proof of the location of conduct can constitute an essential element of an environmental offence, such that uncertainty about where the relevant act occurred will be fatal to the prosecution case if that uncertainty creates a reasonable doubt.
  • The court left open the question of costs by granting the appellant liberty to apply, reflecting that the position on appellate costs jurisdiction was itself in dispute.

Legislation and Cases Referenced

Legislation:
- Environmental Planning and Assessment Act (NSW)
- Criminal Appeal Act (NSW), ss 5AA, 5AB
- Land and Environment Court Act (NSW), s 56

Cases:
- Gilson v The Queen (1991) 172 CLR 353
- Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
- Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661