Land and Environment Court of New South Wales CITATION : Director-General Department of Land and Water Conservation v Greentree and Anor. [2004] NSWLEC 584 PROSECUTOR: Director-General Department of Land and Water Conservation PARTIES : DEFENDANTS: Greentree and Anor. FILE NUMBER(S) : 50039-40; 50041-42; 50053-54 of 2001 CORAM: Bignold J KEY ISSUES: Environmental Offences :- unlawful clearing of native vegetation-no case to answer submission upheld-costs. LEGISLATION CITED: Native Vegetation Conservation Act 1997, s 21 Criminal Procedure Act 1986, s 253 CASES CITED: DATES OF HEARING: 13/09-12/10/2004 EX TEMPORE 10/12/2004 JUDGMENT DATE : PROSECUTOR: Mr B Preston SC with Ms J Jagot, Barrister SOLICITORS The NSW Crown Solicitor LEGAL REPRESENTATIVES: DEFENDANTS: Mr S Littlemore QC with Ms P Lane, Barrister SOLICITORS PriceWaterhouseCoopers Legal JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 12 October 2004 50039-40 of 2001 DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION -v- RONALD LEWIS GREENTREE 50041-42 of 2001 DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CONSERVATION –v- PRIME GRAIN PTY LIMITED 50053-54 of 2001 DIRECTOR GENERAL DEPARTMENT OF LAND AND WATER CNSERVATION –v- RONALD LEWIS GREENTREE JUDGMENT HIS HONOUR: 1 Following the announcement at the end of the Prosecution evidence of the Prosecutor's considered position in these prosecutions (which was to the effect that there was no, or no sufficient, evidence to support the charges of the several offences as particularised, as a result of the Prosecutor's decision not to seek to tender the prosecution evidence that had been received on the voire dire), Senior Counsel for each Defendant has applied for a no case to answer ruling with a direction for the entry of a verdict of an acquittal of each defendant of each of the charges of an offence against the Native Vegetation Conservation Act 1997. Senior Counsel for the Prosecution makes no additional submission in relation to the defence submissions. 2 In the circumstances, I am satisfied that the no case submission should be upheld and that there be entered a verdict of an acquittal of each of the Defendants of each of the charges laid against each of them. I so rule and so order. COUNSEL ADDRESSED ON COSTS EXHIBIT #A LETTER DATED 27 SEPTEMBER TENDERED, ADMITTED WITHOUT OBJECTION 3 Following the pronouncement of the Court's decision upholding the no case to answer submissions made by the Defendants and ordering the entry of the verdict of acquittal of each of the Defendants in respect of each of the charges brought against each of them, Senior Counsel for the Defendants made an application for costs in the proceedings including, in respect of the last two weeks of the Court hearing, costs on an indemnity basis, for reasons outlined in the letter from the Defendant's Solicitors to the Prosecutor's Solicitor, being Exhibit A,. 4 Senior Counsel for the Defendants identified three possible sources of power to make the costs order as sought. Senior Counsel for the Prosecutor has submitted that the appropriate source of power is that now conferred by the Criminal Procedure Act 1986, s 253 which in recent years has replaced a similarly formulated costs power vested in the Court in relation to criminal proceedings brought in the Court by the Land and Environment Court Act 1979, s 52 as originally enacted. It is that statutory source of power that has been commonly (if not universally) employed by the Court in making costs orders in criminal proceedings brought in this Court. 5 Senior Counsel for the Prosecutor informed the Court that he had instructions not to oppose an appropriate costs order made pursuant to the Criminal Procedure Act 1986, s 253, other than to oppose any part of the costs order ordering costs on the indemnity basis. 6 In all of the circumstances, I am satisfied that the acquitted Defendants should receive the benefit of the usual costs order made in favour of acquitted Defendants in criminal proceedings in this Court but I am not persuaded (notwithstanding the content of Exhibit A) that any part of that order should reflect costs on an indemnity basis. Rather, the order should be made in accordance with the section of the Criminal Procedure Act that I have identified which, in effect, will deliver to the Defendants the sum of costs as agreed between the parties, but in the event of disagreement as to the amounts relevantly involved in the amount to be assessed in accordance with the section (meaning by that s 253 (2)). 7 For those reasons, I make the following orders in each of the separate proceedings: 1. The Defendant's "No case to Answer" submission is upheld. 2. Direct that the Defendant be acquitted of the offence charged. 3. The summons be dismissed. 4. Order the Prosecutor to pay the Defendant's legal costs in the sum determined in accordance with s 253(2) of the Criminal Procedure Act 1986. 5. The Exhibits be returned. LITTLEMORE: May I ask your Honour to place with the papers, as opposed to with the exhibits, this document which were our written submissions on the voir dire and the evidentiary matter supporting them. I will give a copy to my learned friend. To be frank, the reason we want them with the papers, in the case of assessment, the assessor knows that that work was done. That is the only reason. I certainly don't ask your Honour to read them. That is the last thing I would do. HIS HONOUR: No objection to these being placed on the Court file on the basis that they might be of use in the case of any required assessment? PRESTON: On that basis, no. HIS HONOUR: On that basis I direct that those submissions be placed on the Court file for that limited purpose. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.