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Court of Criminal Appeal 20 August 2021

Chia v Ku-ring-gai Council

[2021] NSWCCA 189

Other
ENVIRONMENTAL OFFENCES APPEAL APPEAL AGAINST CONVICTION CONVICTION QUASHED NEW TRIAL ORDERED

Citation: Chia v Ku-ring-gai Council [2021] NSWCCA 189
Court: Court of Criminal Appeal (NSW)
Date: 20 August 2021
Judges: Hoeben CJ at CL, Harrison J, Wilson J

Background

The appellant was convicted in the Land and Environment Court of causing injury to 74 protected trees without consent, contrary to s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW). The trees were subject to the Ku-ring-gai Council Tree Preservation Order. The incident occurred in October 2014, shortly after the introduction of the "10/50 Vegetation Clearing Code of Practice" (the 10/50 Code), which permitted landowners to clear vegetation within specified distances from dwellings in designated areas without further consent.

The prosecution case rested on the appellant's alleged vicarious liability. The appellant had engaged an independent contractor (Mr Edgar) and his subcontractors to carry out works on the site. The prosecution contended that the appellant directed the contractors to cut down all the trees that were ultimately removed.

The appellant was sentenced to a fine of $40,000 and ordered to pay the prosecutor's costs. He appealed his conviction on eight grounds, the most significant of which concerned whether the trial judge properly addressed his defence that he had instructed the contractor to comply with all relevant regulations and legislation, including the 10/50 Code.

  • Whether the appellant could be held vicariously liable for the tree removal carried out by an independent contractor and his subcontractors.
  • What the terms of the appellant's instruction to the contractor actually were, and whether those terms included a qualification requiring compliance with the 10/50 Code.
  • Whether a direction to comply with the 10/50 Code would limit or qualify the scope of any general instruction to carry out works, such that the offending tree removal could not be attributed to the appellant.
  • Whether the trial judge failed to address the defence case that the appellant instructed the contractor to comply with all relevant legislation, including the 10/50 Code.

Decision

The Court of Criminal Appeal allowed the appeal on Ground 2, making it unnecessary to consider the remaining seven grounds. The central issue was whether the trial judge had properly resolved the appellant's defence that he instructed Mr Edgar to comply with all relevant regulations and legislation, including the 10/50 Code. The prosecutor accepted during the hearing before the Court of Criminal Appeal that Mr Edgar had agreed in cross-examination that the appellant wanted him to follow the 10/50 rule.

Harrison J traced the applicable legal principles governing vicarious liability in criminal law. The general rule is that there is no vicarious liability for the acts of an independent contractor. The relevant exception here was "direct authorisation": an accused is vicariously liable only if they ordered the contractor to do the act constituting the offence, or an act that necessarily comprised or led to that offence. A general command is not sufficient; the offending act must be the necessary result of the instruction given.

Critical to the application of those principles is the precise nature of the direction given and any qualifications attached to it. Harrison J held that an instruction to comply with the 10/50 Code, if given, would operate as a constraint upon the width of any general instructions. In effect, it would constitute a direction not to fell trees outside the 10/50 zone. A principal could not be vicariously liable if they did not direct the offending work to be performed.

The trial judge's reasons did not make a clear finding on whether the appellant directed the contractors to comply with all relevant regulations and legislation, including the 10/50 Code. That issue was central to the defence. Because the trial judge failed to address it, the conviction could not stand.

Orders Made

  • Appeal against conviction allowed.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • A conviction for directing independent contractors to injure protected trees requires the prosecution to establish that the offending act was the necessary result of the specific instruction given, not merely a possible consequence of a general direction.
  • Where a defendant instructs a contractor to comply with relevant legislation (such as the 10/50 Code), that instruction can qualify or constrain the scope of any broader work direction, potentially defeating a finding of vicarious liability under the direct authorisation exception.
  • The Court of Criminal Appeal confirmed that a trial judge must make a clear, express finding on the precise terms of the direction given to a contractor, including any qualifications, before concluding that vicarious liability is established.
  • Failing to address a central plank of the defence case constitutes an error capable of vitiating a conviction, even where the trial was otherwise extensive and detailed.
  • Earlier Land and Environment Court authority (including Coffs Harbour City Council v Hickey [2004] NSWLEC 531 and EPA v McConnell Dowell [2003] NSWLEC 70) reinforces that instructions to comply with legislation, or to perform work with particular care, will not found vicarious liability when a contractor departs from those instructions.

Legislation and Cases Referenced

Legislation:
- Environmental Planning and Assessment Act 1979 (NSW) s 125
- Rural Fires Act 1997 (NSW)
- Rural Fires Amendment (Vegetation Clearing) Act 2014 (NSW)
- Native Vegetation Act 2003 (NSW)
- 10/50 Vegetation Clearing Code of Practice for NSW

Cases:
- Ku-ring-gai Council v John David Chia (No 15) [2019] NSWLEC 1
- Ku-ring-gai Council v John David Chia (No 16) [2019] NSWLEC 184
- Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59
- Darling Island Stevedoring and Lighterage Company Ltd v Long (1957) 97 CLR 36; [1957] HCA 26
- Environmental Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240; [2003] NSWLEC 70
- Coffs Harbour City Council v Hickey [2004] NSWLEC 531
- Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
- North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169
- Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73