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Court of Criminal Appeal 5 December 2003

Director General Department of Land and Water Conservation v Bailey

[2003] NSWCCA 361

Other
CASE STATED STATUTORY CONSTRUCTION QUESTIONS OF LAW OR FACT

Citation: Director General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361
Court: Court of Criminal Appeal, New South Wales
Date: 5 December 2003
Judge(s): Mason P, Hidden J, Shaw J (Shaw J delivered the principal judgment; Mason P and Hidden J agreed)

Background

The defendant was a landowner at a rural property known as "Hazeldene" in the Moree Plains. The Director General of the Department of Land and Water Conservation charged him with two counts of clearing native vegetation without development consent, contrary to s 21(2) of the Native Vegetation Conservation Act 1997 (NVC Act). The alleged clearing covered areas of approximately 64 hectares and 20.4 hectares, occurring across two periods between early 2000 and mid-2002.

The defendant did not dispute that the clearing had taken place. Instead, he raised two statutory exemptions as defences. The matter was heard in the Land and Environment Court before Talbot J, who acquitted the defendant on the first exemption and also considered the second exemption.

Talbot J stated two questions of law for determination by the Court of Criminal Appeal under s 5BA of the Criminal Appeal Act 1912. The Director General sought review of the acquittal on the first question; the defendant sought review of Talbot J's construction of the second exemption.

  • Whether Talbot J erred in finding that the defendant was entitled to an acquittal under the "rural structures" exemption in Schedule 3, clause (e) of State Environmental Planning Policy 46 (SEPP 46), applied through the transitional provisions of the NVC Act.
  • Whether Talbot J erred in finding that s 12(f) of the NVC Act applied, and if so, whether that provision exempts clearing that is "designated development" under the Environmental Planning and Assessment Act 1979 (EPA Act) without any additional requirement that the development be authorised or lawful.

Decision

First question (SEPP 46 rural structures exemption): The Court answered "No" to the first question, finding that Talbot J did not err. His Honour had found as a factual matter that the clearing was carried out for the purpose of constructing a large water storage reservoir, and that this constituted a "rural structure" or "farm structure" within the meaning of Schedule 3, clause (e) of SEPP 46. The Court of Criminal Appeal declined to disturb that finding.

Second question (s 12(f) NVC Act): The Court answered "Yes, in the way that s 12(f) was construed," indicating that Talbot J's underlying approach to the provision was erroneous in one respect. Shaw J held that s 12(f) should be applied according to its ordinary meaning: clearing that is, or forms part of, "designated development" under the EPA Act falls outside the NVC Act's prohibition, without any superadded requirement that the development be authorised or otherwise lawful.

Shaw J acknowledged that this result may appear incongruous. Unlike every other exemption in s 12, s 12(f) does not require that the activity be "authorised" or otherwise permitted. The Court declined to read in such a requirement, observing that the result flowed from the drafting of the legislation rather than from any purposive interpretation. Courts are not warranted in rewriting legislation to correct what might appear to be drafting anomalies, and that restraint is especially important in criminal law where a strained construction would expose a defendant to greater liability.

The Court also invoked the principle that ambiguity in criminal legislation should be resolved in favour of the defendant, as explained by the High Court in R v Adams (1935) 53 CLR 563. On that basis, a previous decision of Bignold J in Jackson that had imported an additional requirement of consent or lawfulness into s 12(f) was found to be erroneous, notwithstanding that Talbot J had been prepared to follow it as a matter of judicial comity.

Orders Made

• The first question on the stated case be answered 'No'
• The second question on the stated case be answered 'Yes, in the way that s 12(f) was construed'

Key Takeaways

  • The Court of Criminal Appeal confirmed that whether clearing is for the purpose of constructing a "rural structure" under Schedule 3, clause (e) of SEPP 46 is a question of fact, and a finding that a large water storage reservoir qualifies as a farm structure will not readily be disturbed on a stated case.
  • Section 12(f) of the NVC Act exempts clearing that constitutes "designated development" under the EPA Act from the general prohibition in s 21, without any requirement that the development be authorised or lawfully approved. The Court declined to read in such a requirement.
  • Where statutory language in a criminal provision is ambiguous, the principle confirmed in R v Adams requires that the ambiguity be resolved in favour of the defendant, not in a manner that increases exposure to conviction or penalty.
  • Courts are not permitted to use purposive interpretation as a tool to rewrite legislation, particularly in criminal law. Apparent incongruities that flow from statutory drafting are a matter for the legislature to correct.
  • In dismissing the first question, the Court drew a clear distinction between questions of law (susceptible to review on a stated case) and factual findings made by the trial court, reinforcing the limited scope of review available in stated case proceedings.

Legislation and Cases Referenced

Legislation:
- Native Vegetation Conservation Act 1997 (NSW), ss 12, 17, 21
- Criminal Appeal Act 1912 (NSW), s 5BA
- Environmental Planning and Assessment Act 1979 (NSW), s 77A
- State Environmental Planning Policy 46, Schedule 3 clause (e), Schedule 4
- Water Act 1912 (NSW), Part 8
- Interpretation Act 1987 (NSW), s 33

Cases:
- Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
- Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
- Director General Department of Land and Water Conservation v Jackson [2003] NSWLEC 81; (2003) 125 LGERA 304
- Director General of Land and Water Conservation v Greentree [2003] NSWCCA 31
- Director General Department of Land and Water Conservation v Pye [1998] NSWLEC 292
- Hope v Bathurst City Council (1980) 144 CLR 1
- R v Adams (1935) 53 CLR 563
- Woolmington v DPP [1935] AC 482