DIRECTOR-GENERAL OF THE DEPARTMENT OF LAND AND WATER CONSERVATION v GREENTREE & ANOR [2003] NSWCCA 31

Reported Decision : 131 LGERA 234 140 A Crim R 25

New South Wales Court of Criminal Appeal

CITATION : DIRECTOR-GENERAL OF THE DEPARTMENT OF LAND AND WATER CONSERVATION v GREENTREE & ANOR [2003] NSWCCA 31 HEARING DATE(S) : 22 October 2002 JUDGMENT DATE : 27 February 2003

JUDGMENT OF : Sheller JA; Levine J; Smart AJ DECISION : 1 The defendant's application for leave to appeal dismissed; 2 The prosecutor's appeal is allowed and the order made requiring the prosecutor to elect vacated; 3 The Court declares that the charging of offences in the Land and Environment Court in proceedings Nos. 50039 of 2001 and 50054 of 2001 and 50040 of 2001 and 50053 of 2001 does not give rise to any plea in bar for infringement of the rule against double jeopardy.

CATCHWORDS : CRIMINAL LAW - Criminal Procedure - Particularisation of facts, matters, and circumstances - Whether adequate particulars provided - CRIMINAL LAW - Liability and capacity - Mens rea - Mens rea not an element of offences - Native Vegetation Conservation Act 1997 - s65 - ENVIRONMENT- General - Unauthorised clearing of trees - whether vicarious liability applies - CRIMINAL LAW - Parties - Liability - Secondary participation - Whether a failure to prevent or permitting or acquiescing in the commission of an offence may be within the concept of secondary participation - EVIDENCE - Witnesses - Where prospective witnesses had declined to provide statements or affidavits - Whether prosecution should be allowed to adduce evidence despite prejudice occasioned by absence of statements or affidavits - CRIMINAL LAW - Double jeopardy - Where issue of double punishment could arise if it were held that double jeopardy does not arise at the prosecution stage - Where overlap of offences - ENVIRONMENT - General - Native Vegetation Conservation Act 1997 - Whether s21(2) and s65 create two distinct offences - Double jeopardy - Likelihood of double jeopardy arising at punishment or conviction stages Environment Offences and Penalties Act 1989 Environmental Planning and Assessment Act 1979 LEGISLATION CITED : Evidence Act 1995 Interpretation Act 1987 Native Vegetation Conservation Act 1997 Protection of the Environment Operations Act 1997 Bergin v Stack (1953) 88 CLR 248 Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 267 EPA v Australian Iron & Steel Pty Limited (1992) 28 NSWLR 502 EPA v CSR Ltd [2000] NSWCCA 373 Giorgianni (1985) 156 CLR 473 He Kaw Teh v The Queen (1985) 157 CLR 523 CASES CITED : Johnson v Miller (1937) 59 CLR 467 Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659 Mousell Bros Ltd v London Northwestern Railway Co [1917] 2 KB 836 Proudman v Dayman (1941) 67 CLR 536 R v Wampfler (1987) 11 NSWLR 541 S v The Queen (1989) 169 CLR 266 The King v Australasian Films Ltd (1921) 29 CLR 195 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 PARTIES : Director-General of the Department of Land and Water Conservation Ronald Greentree and Prime Grain Pty Limited FILE NUMBER(S) : CCA 60417/02; 60418/02 COUNSEL : G A Flick SC/J Jagot - Director-General of the Dept of Land and Water Conservation S M Littlemore SC/T Molomby - Greentree and Prime Grain Pty Ltd SOLICITORS : I V Knight - Crown Solicitor Tress Cocks & Maddox