Coburn (NSW Department of Planning, Industry and Environment) v Cool-Off Pty Ltd [2021] NSWLC 6

Local Court New South Wales

Medium Neutral Citation: Coburn (NSW Department of Planning, Industry and Environment) v Cool-Off Pty Ltd [2021] NSWLC 6 Hearing dates: 1-5 February 2021,19-23 July 2021, 29 October 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Criminal Before: Donnelly LCM Decision: The defendant is found not guilty and the charge is dismissed. Catchwords: Biodiversity Conservation Act 2016, ss 2.5(c), 13.9 offence of procuring an offence of dealing in a protected animal (kangaroo) – whether offence under s 2.5(c) is an offence of absolute or strict liability – whether common law ground of exculpation of honest and reasonable mistake of fact is available to the alleged principal and also secondary participant – CTM v The Queen (2008) 236 CLR 440 applied – s 13.9 – application of common law doctrine of accessorial liability of aid abet, counsel and procure to a charge laid under s 13.9 – ingredients of offence that the prosecution must prove where the offence allegedly committed by principal is a strict liability offence – Giorgianni v The Queen (1985) 156 CLR 473 applied – requirement of prosecution to prove knowledge and intention on part of secondary participant – defendant not guilty on basis that prosecution failed to prove the ingredient of knowledge Legislation Cited: Biodiversity Conservation Act 2016 (NSW) Cases Cited: Bateman v Evans (1964) 108 Sol Jo 522 Blundell v R [2019] NSWCCA 3 Carter v Mace [1954] 3 All ER 243 Clayton v The Queen [2006] HCA 58 CTM v The Queen (2008) 236 CLR 440 Decision Restricted [2019] NSWCCA 226 De Silva v The Queen [2019] HCA 48 Giorgianni v The Queen (1985) 156 CLR 473 He Kaw Teh v The Queen (1985) 157 CLR 523 Holloway v Gilport Pty Ltd; Holloway v Zygaldo (1995) 79 A Crim R 76 Johnson v Youden [1950] 1 KB 544 Miller v The Queen (2016) 259 CLR 380 Proudman v. Dayman (1941) 67 CLR 536 R v Glennan (1970) 91 WN (NSW) 609 R v Sheehan [1999] QCA 461 R v Tolson (1889) 23 QBD 168 R v Russell (1933) VLR 59 Smith v Jenner (1968) Crim.LR 99 Stokes and Difford v R (1990) 51 A Crim R 25 Thomas v Lindop [1950] 1 All ER 966 Category: Principal judgment Parties: Jennifer Coburn, NSW Department of Planning, Industry and Environment (Prosecutor) Cool-Off Pty Ltd (Defendant) Representation: Counsel: A Garsia (Prosecutor) C Ireland SC (Defendant)