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Court of Criminal Appeal 27 February 2003

DIRECTOR-GENERAL OF THE DEPARTMENT OF LAND AND WATER CONSERVATION v GREENTREE & ANOR

[2003] NSWCCA 31

Also reported as (2003) 140 A Crim R 25
Other
CRIMINAL LAW CRIMINAL PROCEDURE WHETHER ADEQUATE PARTICULARS PROVIDED CRIMINAL LAW LIABILITY AND CAPACITY MENS REA

Citation: Director-General of the Department of Land and Water Conservation v Greentree & Anor [2003] NSWCCA 31
Court: Court of Criminal Appeal, New South Wales
Date: 27 February 2003
Judge(s): Sheller JA; Levine J; Smart AJ

Background

The Director-General of the Department of Land and Water Conservation commenced six prosecutions in the Land and Environment Court arising from the clearing of thousands of native trees across two rural properties in north-western New South Wales. The clearing occurred across five paddocks between March 1999 and May 2000, with a total of over 5,000 trees destroyed without development consent and not in accordance with any native vegetation code of practice.

The prosecutions named both an individual defendant, a director of the company that owned the properties, and the company itself. The individual faced charges both in his personal capacity (for directly clearing native vegetation) and in his capacity as a company director under the director liability provisions of the Native Vegetation Conservation Act 1997 (the Act). The company faced separate charges for the same clearing events.

At first instance, Lloyd J in the Land and Environment Court made a series of interlocutory declarations and directions dealing with procedural and substantive questions arising from the prosecutions. Both defendants sought leave to appeal against certain of those declarations, while the prosecutor appealed against an order requiring it to elect between overlapping sets of proceedings.

  • Whether adequate particulars of the charges had been provided to the defendants
  • Whether mens rea (a guilty mind) is an element of the offences under the Act
  • Whether the doctrine of vicarious liability applies to the defendants in relation to the offences charged
  • Whether the prosecution could rely on the defendants' failure to prevent, permission of, or acquiescence in the clearing carried out by third parties
  • Whether the prosecution should be permitted to call witnesses who had declined to provide prior statements or affidavits
  • Whether charging the individual defendant both personally and as a director in relation to the same clearing events gave rise to a plea in bar based on double jeopardy (that is, whether the rule against being tried twice for the same offence was triggered at the prosecution stage)
  • Whether sections 21(2) and 65 of the Act create two distinct offences

Decision

The Court of Criminal Appeal dismissed the defendants' application for leave to appeal, finding that the trial judge had not erred in any of the interlocutory declarations and orders adverse to the defendants. The Court confirmed that the existing particulars were adequate, that mens rea is not an element of the relevant offences under the Act, and that vicarious liability applies. The prosecution was also entitled to rely on the defendants' failure to prevent, permission of, or acquiescence in the commission of the offences by third parties.

On the question of witness evidence, the Court upheld the direction permitting the prosecution to call witnesses who had declined to provide prior statements or affidavits. The absence of those statements caused some prejudice, but did not warrant excluding the evidence.

Regarding double jeopardy, the Court found that sections 21(2) and 65 of the Act create two distinct offences. Charging the individual defendant both in his personal capacity and as a director in relation to the same clearing events did not give rise to a plea in bar at the prosecution stage. The Court noted, however, that if the prosecution proved its case on all counts beyond reasonable doubt, double jeopardy considerations were likely to arise at the sentencing stage. The Court declined to express a concluded view on whether double jeopardy could arise at the conviction stage, observing that unanticipated factual scenarios might yet emerge at trial.

The prosecutor's appeal was allowed. The order requiring the prosecutor to elect between parallel sets of proceedings was vacated, as the charging of those overlapping proceedings did not constitute an infringement of the rule against double jeopardy at this stage.

Orders Made

  • The defendants' application for leave to appeal was dismissed.
  • The prosecutor's appeal was allowed and the order requiring the prosecutor to elect between proceedings was vacated.
  • The Court declared that the charging of offences in Land and Environment Court proceedings Nos 50039/01, 50054/01, 50040/01, and 50053/01 does not give rise to any plea in bar for infringement of the rule against double jeopardy.

Key Takeaways

  • Under the Native Vegetation Conservation Act 1997, mens rea is not an element of the offences created by section 21(2) read with section 17(1), confirming the strict liability nature of those provisions.
  • The Court of Criminal Appeal confirmed that vicarious liability applies to defendants charged under the Act, and that the prosecution may rely on a defendant's failure to prevent, permission of, or acquiescence in the clearing conduct of third parties as a basis for liability.
  • Sections 21(2) and 65 of the Act create two distinct offences: one directed at the person who carries out the clearing, and one at directors of corporations that contravene the Act. Charging an individual under both does not, at the prosecution stage, infringe the rule against double jeopardy.
  • Double jeopardy may become a live issue at the sentencing stage where multiple overlapping counts are proven, even if no plea in bar is available earlier in proceedings. The Court expressly left open whether it could arise at the conviction stage.
  • In dismissing the leave application, the Court affirmed that summonses alleging an offence under both section 21 and section 65 are not deficient merely because they could have been framed differently, provided all ingredients of the relevant offence are alleged.

Legislation and Cases Referenced

Legislation:
- Native Vegetation Conservation Act 1997 (NSW), ss 17, 21(2), 65
- Environmental Planning and Assessment Act 1979 (NSW)
- Environment Offences and Penalties Act 1989 (NSW)
- Protection of the Environment Operations Act 1997 (NSW)
- Evidence Act 1995 (NSW)
- Interpretation Act 1987 (NSW)

Cases:
- Bergin v Stack (1953) 88 CLR 248
- Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 267
- EPA v Australian Iron & Steel Pty Limited (1992) 28 NSWLR 502
- EPA v CSR Ltd [2000] NSWCCA 373
- Giorgianni (1985) 156 CLR 473
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Johnson v Miller (1937) 59 CLR 467
- Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659
- Mousell Bros Ltd v London Northwestern Railway Co [1917] 2 KB 836
- Proudman v Dayman (1941) 67 CLR 536
- R v Wampfler (1987) 11 NSWLR 541
- S v The Queen (1989) 169 CLR 266
- The King v Australasian Films Ltd (1921) 29 CLR 195
- Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715