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Local Court 29 October 2021

Coburn (NSW Department of Planning, Industry and Environment) v Cool-Off Pty Ltd

[2021] NSWLC 6

Other
S 13.9

Citation: Coburn (NSW Department of Planning, Industry and Environment) v Cool-Off Pty Ltd [2021] NSWLC 6
Court: Local Court of New South Wales
Date: 29 October 2021
Judge: Donnelly LCM

Background

The defendant, a company operating in the kangaroo meat supply chain, was charged with procuring an offence of dealing in a protected animal (kangaroo) under sections 2.5(c) and 13.9 of the Biodiversity Conservation Act 2016 (NSW). The prosecution framed its case on the doctrine of accessorial liability, alleging that the defendant's Managing Director had procured a third party (Mr Rando) to deal in kangaroos without lawful authority. The trial ran over ten days, involved sixteen witnesses, and produced forty-three exhibits.

The case presented an unusual procedural feature: Mr Rando, the alleged principal offender, was never prosecuted. He received an executive caution from the Department. He was instead called as a prosecution witness in the trial of the alleged secondary participant, the defendant company, while denying that he had committed any offence.

The prosecution acknowledged in closing submissions that both Mr Rando and the defendant's Managing Director, Mr Staughton, were credible witnesses. The central contest was not primarily factual but legal: what ingredients did the prosecution need to prove beyond reasonable doubt against a secondary participant where the principal's offence carried no mental fault element?

  • Whether the offence under section 2.5(c) of the Biodiversity Conservation Act 2016 is one of absolute liability, strict liability, or requires proof of a mental element (mens rea)
  • Whether the common law defence of honest and reasonable mistake of fact (from Proudman v Dayman) is available to the alleged principal under section 2.5(c)
  • Whether that same common law defence is also available to an alleged secondary participant
  • What ingredients the prosecution must prove beyond reasonable doubt against a secondary participant where the principal's offence is one of strict liability
  • Whether, and how, the common law doctrine of accessorial liability (aid, abet, counsel and procure) applies to a charge laid under section 13.9 of the Act
  • Whether the prosecution proved beyond reasonable doubt that the defendant knew the principal was doing something that amounted to an offence

Decision

The court determined that, regardless of whether the principal's offence under section 2.5(c) is one of strict or absolute liability, the prosecution must still prove additional fault elements against a secondary participant. Applying the High Court's decision in Giorgianni v The Queen (1985) 156 CLR 473, the court held that a person alleged to be a secondary participant must be shown to have had knowledge that the principal was doing something that amounted to an offence, and to have acted with the requisite intention to assist or procure that offence. The absence of any mental element on the principal's side does not reduce or eliminate the fault requirements on the secondary participant's side.

On the facts, the court found that the prosecution had not proved beyond reasonable doubt that the defendant knew Mr Rando lacked legal authority for his conduct. Mr Staughton gave credible and reliable evidence that he believed Millennium was licensed to process the kangaroo consignment. That belief was supported by his having sighted a European Union certificate of registration at Millennium's premises. His evidence was not contested and his credibility was not challenged.

Because the prosecution failed to establish the knowledge ingredient against the defendant as secondary participant, the court did not need to resolve whether Mr Rando had in fact committed the principal offence under section 2.5(c). That determination was left open, including questions about whether any relevant licence authorised his conduct and whether he held an honest and reasonable belief about that authority.

The defendant was found not guilty and the charge was dismissed.

Orders Made

  • The defendant was found not guilty.
  • The charge was dismissed.

Key Takeaways

  • Under Giorgianni v The Queen, a prosecution charging a secondary participant under section 13.9 of the Biodiversity Conservation Act 2016 must prove, beyond reasonable doubt, that the secondary participant had knowledge that the principal was engaging in conduct amounting to an offence, even where the principal's offence carries no mental fault element.
  • Strict liability on the part of the principal does not collapse into strict liability on the part of the secondary participant: the prosecution still bears the burden of proving knowledge and intention against the alleged accessory.
  • This decision is noted as the first prosecution brought under the Biodiversity Conservation Act 2016, meaning several of its statutory construction questions were being resolved without prior curial guidance.
  • A secondary participant can be acquitted without the court resolving whether the alleged principal actually committed the underlying offence, provided an essential ingredient of the secondary liability charge is not proved to the criminal standard.
  • Where an alleged principal is not prosecuted but is called as a witness in the trial of an alleged secondary participant, the court faces the unusual task of assessing whether that principal committed an offence beyond reasonable doubt, a question left unresolved here because it was unnecessary to the acquittal.

Legislation and Cases Referenced

Legislation
- Biodiversity Conservation Act 2016 (NSW), ss 2.5(c), 2.10, 2.11, 2.15, 13.9
- Crimes Act 1900 (NSW), s 7

Cases
- Giorgianni v The Queen (1985) 156 CLR 473
- CTM v The Queen (2008) 236 CLR 440
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Proudman v Dayman (1941) 67 CLR 536
- Holloway v Gilport Pty Ltd; Holloway v Zygaldo (1995) 79 A Crim R 76
- Miller v The Queen (2016) 259 CLR 380
- Clayton v The Queen [2006] HCA 58
- De Silva v The Queen [2019] HCA 48
- Blundell v R [2019] NSWCCA 3
- Decision Restricted [2019] NSWCCA 226
- R v Tolson (1889) 23 QBD 168
- Johnson v Youden [1950] 1 KB 544
- Thomas v Lindop [1950] 1 All ER 966
- Carter v Mace [1954] 3 All ER 243
- R v Glennan (1970) 91 WN (NSW) 609
- Stokes and Difford v R (1990) 51 A Crim R 25
- R v Sheehan [1999] QCA 461
- Bateman v Evans (1964) 108 Sol Jo 522
- Smith v Jenner (1968) Crim LR 99
- R v Russell (1933) VLR 59