Reported Decision : 106 LGERA 110 New South Wales Court of Criminal Appeal CITATION : Birdon Dredging Pty Ltd v McDonagh on behalf of Council of Great Lakes [1999] NSWCCA 416 FILE NUMBER(S) : CCA 60625/98 HEARING DATE(S) : 18 October 1999 JUDGMENT DATE : 16 December 1999 PARTIES : Birdon Dredging Pty Limited v Gerrard McDonagh on behalf of Council of Great Lakes JUDGMENT OF : Priestley JA at 1; James J at 1; Kirby J at 1 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 50057/97 LEC 50058/97 LOWER COURT JUDICIAL OFFICER : Bignold J COUNSEL : Appellant - J. Webster Respondent - B. Walker SC, I. Hemmings SOLICITORS : Appellant - Russell C Byrnes, Surry Hills Respondent - Peter Rees, New Lambton Heights CATCHWORDS : Environmental Planning and Assessment Act; charges alleging dredging within specified oyster leases in contravention of Council consent; dredging outside specified leases without Council consent Criminal Appeal Act ss 5AA, 5AB ACTS CITED : Environmental Planning and Assessment Act Land & Environment Court Act s56 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 CASES CITED: Gilson v The Queen (1991) 172 CLR 353 Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL CCA 60625/98 LEC 50057/97 50058/97 PRIESTLEY JA JAMES J KIRBY J Thursday, 16 December 1999 BIRDON DREDGING PTY LTD v G. McDONAGH on behalf of COUNCIL OF GREAT LAKES ENVIRONMENTAL PLANNING AND ASSESSMENT ACT (the Act) - two charges under the Act against the appellant - the first alleged dredging within specified oyster leases in contravention of Council consent - the second alleged dredging outside the specified leases without Council consent - trial judge dismissed the first but convicted on second - basis of conviction was that appellant must have committed one of the offences and as the second was the more probable appellant should be convicted of it - on appeal by way of rehearing. Held : considering the only remaining charge by itself as the court must do, there was no proof beyond reasonable doubt of where the dredging took place and as this was an essential ingredient of the charge the appeal must be upheld and the charge dismissed. ORDERS 1. Appeal upheld. 2. Orders of the court on summons No 50058 below set aside. 3. Summons numbered 50058 dismissed. 4. No order as to costs of the appeal. 5. Birdon to have liberty to apply within seven days of the date of delivery of the court's judgment, should it be so advised, for some different costs order. IN THE COURT OF CRIMINAL APPEAL CCA 60625/98 LEC 50057/97 50058/97 PRIESTLEY JA JAMES J KIRBY J Thursday, 16 December 1999 BIRDON DREDGING PTY LTD v G. McDONAGH on behalf of COUNCIL OF GREAT LAKES 1 THE COURT: By two summonses, numbered 50057 and 50058 of 1997 filed in the Land & Environment Court by Mr McDonagh on behalf of Council of Great Lakes ("the Council") as prosecutor, Birdon Dredging Pty Ltd ("Birdon") was charged as defendant with two offences allegedly committed contrary to the Environmental Planning and Assessment Act. 2 Charge 50057 was that Birdon, on or about 2 December 1996 to 24 January 1997 dredged in excess of 1.5 m below mean high water mark within Oyster Lease 61/77 and Part 2 of Oyster Lease 62/137 at Wallis Lake in contravention of condition 2 of development consent No 241/96 issued by the Council. 3 Charge 50058 was that Birdon on or about 2 December 1996 to 24 January 1997 dredged part of Wallis Lake in the vicinity of, but not within, Oyster Lease 61/77 and Part 2 of Oyster Lease 62/137 without the development consent of the Council. 4 (We will refer to the two Oyster Leases in question as the oyster leases.) 5 The trial of the two charges was before Bignold J. By consent they were heard together. 6 Both charges arose from dredging work done by Birdon pursuant to a contract with Mr N. Larni the lessee of the oyster leases. Local Environment Plan No 28 (LEP 28) operated to make dredging in Wallis Lake unlawful without consent. Mr Larni had obtained consent from the Council to an application to dredge within the area of the oyster leases. The consent was subject to conditions, the second of which was that the dredging was to be to a maximum depth of 1.5 metres below mean high water mark. Thus it was lawful for Birdon to dredge within the area of the oyster leases to that depth. Neither Mr Larni nor Birdon had any consent to dredge in Wallis Lake outside the area of the oyster leases, so that any dredging done by Birdon outside the area of the oyster leases was unlawful. 7 The dredging work done by Birdon for Mr Larni, about which there was no dispute before Bignold J, was a central feature of both charges. One charge alleged that dredging work within the area of the oyster leases went deeper than the limit of 1.5 metres imposed by condition two of the development consent; the other charge alleged dredging work had been done outside the area of the oyster leases, without consent. Another difference between the two charges was that charge 50057 depended on proof of breach of a consent condition but charge 50058 depended upon proof of contravention of a prohibition in LEP 28. Bignold J held that this LEP ceased to operate at the end of 12 December 1996 and that from the beginning of 13 December 1996 a new Local Environmental Plan, LEP 1996, came into operation and that under this later plan Council consent was not required for dredging. (This holding had been in issue before Bignold J, but was accepted as correct in the appeal.) Thus charge 50058 became one of dredging without consent outside the area of the oyster leases from on or about 2 December 1996 until and including 12 December 1996. 8 Bignold J held that he was satisfied beyond reasonable doubt that there had been "relevantly sand dredging activity". However, he continued, the evidence left him in doubt as to the precise location or place where the dredging was undertaken. He went on that "to the extent that the dredging occurred within the area sanctioned by the development consent" he was satisfied beyond reasonable doubt that it was in breach of the condition prescribing a maximum depth of 1.5 metres below mean high water mark. After stating his reasons for that, he went on that, "conversely, to the extent that the dredging occurred entirely outside the area sanctioned by the development consent" he was satisfied beyond reasonable doubt that it was undertaken without development consent from the Council. 9 The significance of Bignold J's use of the expression "to the extent that the dredging occurred" within the area of the leases and outside that area was underlined by the next step in his reasoning in which he expressed his conclusion, of which he was satisfied beyond reasonable doubt, that the dredging done by Birdon before 13 December 1996 involved an offence by virtue of either (Bignold J's emphasis) dredging below the maximum permitted depth within the area of the oyster leases or (again Bignold J's emphasis) dredging outside that area without consent. He also mentioned that it was possible that the dredging was both beyond the maximum depth within the oyster lease areas and without consent outside those areas, that is, that Birdon had committed both offences. However, he did not explore this possibility further. His conclusion remained that he was satisfied beyond reasonable doubt that either charge 50057 or charge 50058 had been proved. 10 This caused him to consider next the question whether he could find Birdon guilty of one charge but not of the other. Relying on a passage in Gilson v The Queen (1991) 172 CLR 353 in which Mason CJ and Deane, Dawson and Toohey JJ in joint reasons said that "the law must ... be brought into disrepute if ... an accused ... clearly guilty of one offence or the other The two offences referred to in this passage in Gilson were stealing and receiving. is allowed to escape conviction altogether" (At 363). he concluded that it was open to him to find Birdon guilty of charge 50058. He chose this of the two charges because he was of the view that, as a matter of probability, the dredging undertaken by Birdon before 13 December 1996 occurred entirely outside the area of the oyster leases. He made it clear that he was satisfied of this as a matter of probability and not beyond reasonable doubt. One consideration leading him to his conclusion was "the extreme uncertainty in the present case of the precise boundaries (Bignold J's emphasis) of the land to which the development consent related". 11 By this means Bignold J arrived at his decision that he was satisfied beyond reasonable doubt that charge 50058 had been established but not 50057. He accordingly dismissed charge 50057. He convicted Birdon of charge No 50058 and imposed a penalty of $10,000 to be paid to the Council. He ordered Birdon to pay 80% of the Council's costs. 12 Birdon appealed against its conviction on charge 50058. The appeal, by the interaction of s 56 of the Land & Environment Court Act and ss 5AA and 5 AB of the Criminal Appeal Act was an appeal by way of rehearing. What the Court of Criminal Appeal should do in hearing such an appeal was stated by Kirby P (with whom Campbell and James JJ agreed) in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 as follows: " This Court must therefore proceed to consider the appellant's culpability upon the basis of the evidence which was tendered before the trial court and any additional or substituted evidence admitted by this Court. Ultimately, it is for this Court, having considered all of the evidence then finally before it, to resolve for itself, afresh, the ultimate issue for decision. " (at 692) The position was more recently again examined in Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661, to substantially similar effect. The parties to the present appeal agreed that what was said by Kirby P remains the law and the appeal was conducted on that basis. There was no additional or substituted evidence sought to be put before the court. 13 Birdon's notice of appeal contained nine grounds. In our opinion the third of these should be upheld. It raises a point basic to the conviction and its being upheld means that the appeal must be upheld, the conviction set aside and the charge dismissed. Its being upheld also means there is no need to deal with the other grounds of appeal and we will confine ourselves to it. 14 The third ground of appeal is that the trial judge erred " in applying a test of probability in relation to whether or not dredging took place prior to 13 December, 1996 outside the area sanctioned by the development consent. Having been left in doubt as to the precise location or place where dredging was undertaken prior to 13 December 1996, his Honour erred in finding that the charge of carrying out development without development consent [had been] established. " 15 An important aspect of this appeal by way of rehearing in this court is that it is a rehearing of only one of the two charges, charge 50058. The way in which Bignold J reasoned towards his satisfaction beyond reasonable doubt that charge 50058 was established against Birdon involved as a critical step, consequent upon his hearing the two charges together, that he was satisfied beyond reasonable doubt that Birdon had committed one or other of the offences charged. Then, by reliance upon what he called "the principle (or its analogy)" in Gilson v The Queen, about what the court should do when convinced beyond reasonable doubt that an accused was guilty of either one offence or another, he decided as a matter of probability which of the two offences, one of which, in his view, must beyond reasonable doubt have been committed, he would convict Birdon of. 16 We need not express any final opinion whether that crucial step was or was not a valid one in the circumstances where the two charges were being heard together, though we have misgivings in respect of it, as set out below. However, whatever the situation may be about that matter, it seems to be quite clear that such a step is not available in the present rehearing when it is only charge 50058 which is before the court. It was an ingredient of that charge, essential for the prosecution to prove, that Birdon dredged "part of Wallis Lake ... in the vicinity of, but not within, Oyster Lease 61/77 and Part 2 of Oyster Lease 62/137 ...". 17 We referred earlier to Bignold J's finding of "the extreme uncertainty ... of the precise boundaries of the land to which the development consent related". After making that observation he continued: " The survey evidence is unanimous in revealing that the actual location in the bed of Wallis Lake of those oyster leases is not the location of the leases as plotted in the plans of those leases issued by the fisheries Department in 1961 and 1962. (As so plotted the location of the leases is some 200 metres removed in a northerly direction.) " (Bignold J's emphasis) 18 It seems to follow from this observation that the "extreme uncertainty" of which Bignold J spoke was not merely of the "precise" boundaries of the leases (which might mean uncertainty within very narrow limits) but uncertainty of a major kind as to whereabouts in general terms in Wallis Lake the oyster leases were situated. 19 From this it further seems to follow that on the facts found by Bignold J and looking to the ingredients of charge 50058 which the prosecution had to prove, in isolation from and without taking account of the ingredients the prosecution had to prove in charge 50057, he was bound to find that an essential element of the charge had not been proved beyond reasonable doubt. If this court were to adopt his findings then the appeal would have to be upheld. 20 However, for the prosecution it was submitted that in accordance with the approach this court must adopt in appeals of this kind, as stated in Camilleri's Stock Feeds, this court must consider the evidence in the case for itself, and, in the light of its own consideration of that evidence, decide whether the case against Birdon on charge 50058 is established beyond reasonable doubt. Counsel for the prosecution then directed the court's attention to a number of matters the subject of evidence in the materials before this court and submitted that it was open to this court to find, and this court should find, that notwithstanding the uncertainty of the location of the areas of the oyster leases, it was clear beyond reasonable doubt that at least some of the dredging work had been done by Birdon outside those areas, wherever they were in Wallis Lake, before 13 December 1996. 21 For the Crown, which conducted its case in this court thoroughly, objectively and fairly, it was recognised that there was one piece of evidence which did arguably give rise to a more than theoretical possibility that Birdon's dredging before 13 December 1996 was wholly within Oyster Lease 62/137. This had been given by Mr Allen, who had been Birdon's manager in charge of the dredging in Wallis Lake. Counsel proceeded to argue that the particular evidence did not, on examination, have the result contended for by Birdon. Whether or not the Crown could persuade the court of that became, according to the Crown, a basic issue in the appeal. 22 However, before coming to deal with that evidence, counsel first sought to show that the surveying evidence of Mr Lidbury supported a finding beyond reasonable doubt of the actual location of the Oyster Leases. Mr Lidbury explained the method by which he arrived at his conclusion of the actual location of the Oyster Leases. The Fisheries Department in 1961 and 1962 had issued plans of the leases which showed their location as some 200 metres northerly from physical indications (posts) of what had actually been used as the Oyster Lease areas. The assumption was made that the old plans correctly showed the shape of the leases and the length of their boundaries. Applying the shape and the lengths to the physical indications of where oyster farming had been carried out, in order to reach what was the "best fit" (apparently surveying words of art) of the documents and the survey information, a conclusion was reached of the actual location of the leases. From Mr Lidbury's evidence it appears that the physical indications at the site which were used for the best fit hypothesis were three "lease posts that was virtually the only thing remaining ..." (AB 1/14, lines 35-39). 23 As a matter of everyday practice, it seems to us the method adopted by Mr Lidbury was perfectly sensible and would produce a result that could be used, for example, for fixing the location of the Oyster Leases for future commercial and leasing purposes. However, we feel considerable reserve about whether it provides a satisfactory foundation for a finding beyond reasonable doubt of the location of the leases in 1996. 24 Our reservation on this score is increased by some of the matters appearing in the cross-examination of Mr Lidbury. One is that another plan had been made which was "a best fix from a cadastral fix by survey". This plan did not coincide with the "best fit, where the oyster lease fencing appeared to be" (AB 1/16, lines 36-55). Further passages in the cross-examination at AB 1/17, 18, 19 and 20 again increased our reservations. This is not said in criticism of Mr Lidbury's professional competence or expertise, but is a comment made based on the features already mentioned and the fact that Mr Lidbury was quite frank that he was working from some information that was clearly faulty and physical evidence which was scanty. Our impression from reading the whole of his evidence is that he himself was not asserting that the conclusions he reached on the materials available were reached with certainty. 25 Counsel for the Crown, having made his submission that the court would be satisfied beyond reasonable doubt about the location of the Oyster Leases then went to the evidence of Mr Allen which counsel had acknowledged might arguably give rise to a more than theoretical possibility that Birdon's dredging before 13 December 1996 was wholly within Oyster Lease 62/137. Mr Allen had been called as a witness in the prosecution case. The substance of the evidence in question was that Mr Larni, to enable Birdon's dredger to get to the area where it would do its dredging, had used a smaller dredger to dredge a channel from the shore of the lake to the area where Birdon was going to dredge, that Birdon's dredger had used that channel to get to its own dredging site before doing any dredging and that it commenced dredging within an area bounded in part by two of the posts used by Mr Lidbury in his attempts to fix the boundaries of the Oyster Leases. Counsel for the Crown made it clear the Crown was not contending that Mr Allen was not to be believed in what he said in that evidence, but then endeavoured to show that some of the dredging done under Mr Allen's supervision must have been outside the locations of the oyster leases that had been fixed by Mr Lidbury's evidence. 26 By reference to plans based on Mr Lidbury's survey conclusions it was submitted for the Crown that it was not possible as a reasonable possibility more than a theoretical one to suppose that the dredging Mr Allen was talking about when he gave evidence about manoeuvring his dredge to start operations must have been wholly, on all days before 13 December, within Oyster Lease 62/137. 27 Two difficulties with this are that it is premised on acceptance of Mr Lidbury's conclusions beyond reasonable doubt and it does not, so far as we can see, overcome what we think is the reasonable doubt raised by Mr Allen's statement (AB 1/88 lines 10-14) that the channel dredged by Mr Larni went approximately 25 to 30 metres into the donor site, which on the available evidence and Mr Allen's description may well have been within Mr Lidbury's survey location of Oyster Lease 62/137. 28 The result therefore is that we are not persuaded by the Crown's submissions to conclude, on the basis of the evidence and considerations relied on, that it was proved beyond reasonable doubt that the dredging done by Birdon before 13 December 1996 was outside the oyster leases. 29 Because we can not either, as earlier indicated, reach that conclusion beyond reasonable doubt, based on the facts found by Bignold J, it follows that, in our opinion, the Crown has failed to establish an essential element of charge 50058. The appeal should therefore be upheld, the conviction below set aside, and charge 50058 dismissed. 30 We referred earlier to misgivings about the applicability of the Gilson principle or its analogue. While we do not express a final view on the matter, we note that there are significant differences between the charges in Gilson, and those before Bignold J. These differences may suggest that the application of the Gilson principle is inappropriate, and that it was an element of each charge that the prosecution establish (at least within defined limits) the boundaries of the lease. The prosecution was plainly unable to do so beyond reasonable doubt. We are inclined to think (although we express no concluded view) that the deficiency in proof could not be remedied by resort to the principle in Gilson or one akin to it. 31 Counsel for Birdon informed the court that in his submission the court had no power to make an order as to the costs of the appeal. In light of that, the court makes no order as to costs of the appeal, but we reserve liberty to Birdon to apply within seven days of the date of delivery of the court's judgment, should it be so advised, for some different costs order. 32 In our view the appeal should be upheld, the orders of the court below set aside and summons numbered 50058 dismissed and we so order. ********** 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.