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 LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT 50039/01; 50040/01; 50041/01; 50042/01; 50053/01; 50054/01 FILE NUMBER(S) : LOWER COURT Lloyd J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60417/02; 60418/02 SHELLER JA LEVINE J SMART AJ Thursday, 27 February 2003 DIRECTOR-GENERAL OF THE DEPARTMENT OF LAND AND WATER CONSERVATION v GREENTREE & PRIME GRAIN PTY LTD Judgment THE COURT: Nature of Proceedings 1 Ronald Lewis Greentree and Prime Grain Pty Limited (Prime Grain) seek leave to appeal against certain interlocutory directions and declarations made by Lloyd J in the Land and Environment Court in six prosecutions instituted by the Director-General (the prosecutor), four being brought against Mr Greentree and two against the company. The core of the prosecutions centres upon the removal of a great many trees on two large rural properties in north western New South Wales without development consent and not in accordance with a native vegetation code of practice. The declarations and directions challenged are: (1) A direction that the prosecutor need not provide further answers to the defendants' request for particulars. (2) A declaration that mens rea is not an essential element of the offences with which the defendants are charged (3) A declaration that the doctrine of vicarious liability applies to the defendants in relation to the offences with which they are charged. (4) A declaration that the prosecution is not prevented at the trial from relying on either the defendants' "failure to prevent" the offence by a third party, or "permitting" or "acquiescing in" the commission of the offence by a third party. (5) A declaration that the prosecutor be permitted to call the following witnesses to give evidence at the trial (a) Michael Hancock; (b) Jeffory Smith (aka Percy Smith); (c) Euston Blomfield; (d) Chris Hurwood; (e) Anthony Taylor; and (f) Stan Carroll. 2 The prosecutor appeals against the direction that he elect as to whether to prosecute, on the one hand, proceeding Nos 50039 of 2001 and 50040 of 2001 or, on the other hand, Nos 50035 of 2001 and 50054 of 2001 and the order that unless and until the prosecutor so elects these proceedings be stayed. 3 Section 21(2) of the Native Vegetation Conservation Act 1997 (the Act) provides: "A person must not clear native vegetation on any land except in accordance with: (a) a development consent that is in force; or (b) a native vegetation code of practice. Section 17(1) provides that a person who contravenes Part 2 of the Act (within which s21(2) is located) is guilty of an offence. 4 Three summonses relate to three paddocks known as the Lower Middle, Top Middle and Yanott on the property known as Eastwood and three to two paddocks known as the Burr and Dumindi on the property known as Yarrawa. 5 All summonses allege an offence between about 25 March 1999 and about 16 May 2000. The summons in 50039/01 alleged that Mr Greentree contravened a provision of Part 2 of the Act on land (the three paddocks on Eastwood) being land to which no Regional Vegetation Management Plan applied and that was not State protected land, in that he cleared native vegetation on land without the development consent under Part 4 of the Environment Planning and Assessment Act 1979 of the Minister for Land and Water Conservation and not in accordance with a native vegetation code of practice in contravention of s21(2) of the Act. 6 The summons specified the clearing that, it was alleged, had taken place and the species of trees destroyed. 7 Summons 50042/01 alleges an offence in identical terms save that the defendant is Prime Grain. Summons 50054/01 alleges an offence in identical terms by Mr Greentree save that it is alleged that Mr Greentree committed the offence "in that he was a director of Prime Grain Pty Limited …, a company that contravened s21 of the Native Vegetation Conservation Act 1997 and he did thereby contravene section 21 of the Native Vegetation Conservation Act 1997 by operation of s.65(1) of the Native Vegetation Conservation Act 1997". 8 Summons 50040/01 against Mr Greentree is in identical terms to that in 50039/01 save that it relates to clearing native vegetation on Burr and Dumindi paddocks on a property known as Yarrawa. Summons 50041/01 is in identical terms save that the defendant is Prime Grain. Summons 50053/01 alleged an offence in identical terms by Mr Greentree save that it is alleged that he committed the offence as a director of Prime Grain. The Crown Case 9 The properties were owned by Prime Grain as a tenant in common. Mr Greentree was a director of Prime Grain. He was also a partner with Maree Anne Greentree and Merrywinebone Pty Ltd in a partnership known as Greentree Farming which carried on a primary production business on the properties including the five paddocks mentioned. The partnership employed and/or contracted persons to work in that enterprise including Messrs Hurwood, Perry, Hancock, Smith, Blomfield and Taylor. Between 25 March 1999 and 16 March 2000 trees of the varieties specified were cleared from each of these paddocks: (a) 721 trees from the Lower Middle paddock (b) 782 trees from the Top Middle paddock (c) 1191 trees from the Yanott paddock (d) 1219 trees from the Burr paddock (e) 1236 trees from the Dumindi paddock 10 It is alleged that during the specified period Mr Greentree managed the primary production business of Greentree Farming, made regular visits to the properties and gave instructions, including to Mr Hurwood (who relayed them to employees and contractors of Greentree Farming), that Greentree Farming owned bulldozers that were used to clear the native vegetation from the properties, that he was aware of the clearing and claimed that it was being carried out under an exemption to the Act. 11 As against Prime Grain it is alleged that during the specified period, as it owned the properties as a tenant in common, it was in a position to control the activities on the properties and was in a position to know of the clearing due to its large scale. Further, the burning of the vegetation caused smoke visible throughout the district. The company, through its director Mr Greentree, allowed Greentree Farming to carry out its primary production business on the properties and permitted and acquiesced in the clearing. 12 The prosecutor seeks to adduce evidence from six persons alleged to have been employees and/or contractors of Greentree Farming. Each of those persons has refused to provide an affidavit or to be interviewed by the prosecutor except Mr Taylor, who participated in a taped interview, a copy of which has been served. The prosecutor has served upon the applicants (the defendants) a letter identifying the six persons as persons whom he would require to give evidence and the matters that it is anticipated their evidence would cover. Particulars 13 It was not in issue that the judge had correctly stated the principles of law applicable to the supply of particulars of the summonses. He applied the often quoted statements of Dixon J in Johnson v Miller (1937) 59 CLR 467 at 486 of "the necessity of specifying the time, place and manner of the defendant's act or omissions" and, from p.489: "For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge." 14 Reliance was also placed on the statement of McHugh J in KRM v The Queen (2001) 118 A Crim R 262 at para 15 that in the context of an adversary system of criminal justice an accused person is entitled to be given as high a degree of particularity of a criminal charge as the subject matter will bear. The defendants' complaint was that the judge erred in applying the settled law to the facts of the case. 15 After the prosecutor had, to the extent that he was able, served on the defendants the evidence he intended to adduce at the trial of the charges, the defendants sought and received extensive particulars. However, they contended that the particulars supplied were inadequate. 16 By letter of 22 October 2001 the defendants sought particulars of the facts, matters and circumstances supporting the allegation that Mr Greentree and Prime Grain cleared native vegetation on the two properties. The prosecutor, by letter of 15 November 2001, replied that employees of Greentree Farming cleared native vegetation in the course of their employment. 17 The prosecutor further particularised that Mr Greentree made regular visits to Eastwood and Yarrawa during the charge period to inspect those properties and gave instructions to Mr Hurwood, who relayed them to employees of Greentree Farming. It was also alleged that bulldozers owned by Greentree Farming were used to clear native vegetation. Furthermore, it was alleged that Mr Greentree was, including by his own admission, aware of the clearing on Eastwood and Yarrawa and that Mr Greentree claimed that clearing on Eastwood and Yarrawa was carried out in accordance with exemptions under the Act. 18 It was alleged in the alternative that the workers who carried out the clearing were as a matter of law independent contractors of Greentree Farming. 19 The letter of 15 November 2001 stated that during the charge period Greentree Farming had employed people who had carried out work at Eastwood and Yarrawa. The letter referred to the six people earlier mentioned. The letter did not state that they had carried out the clearing. 20 In answer to the question: "Is it to be alleged that Mr Greentree performed the acts of clearing by causing another person to clear native vegetation? If so, state where, when, to whom, and in what precise terms he gave any such direction." The prosecutor replied: "Yes, as specified in [previous paragraphs]. No specific directions are relied on." 21 By letter of 22 November 2001 the defendants required the names of the "employees" who cleared native vegetation in the three paddocks of Eastwood and the two paddocks of Yarrawa, the dates upon which they did it, and the number and species of trees each such employee cleared. 22 The defendants also required specification of the instructions referred to (in the letter of 15 November 2001) "that will be relevant to the charge including the terms of any oral conversations, their time and place and a copy of any document containing instructions and specification of the relevant instructions relayed to employees by Mr Hurwood, to whom they were relayed, when and where they were given and their terms. 23 The defendants complained that in response the prosecutor only referred to a summary of the anticipated evidence of six witnesses who had not provided affidavits or statements of evidence and that that summary did not include any reference to the date, place, recipient or terms of any instruction to clear native vegetation given by Mr Greentree or relayed by Mr Hurwood and made no reference to any instructions being given, received or followed. 24 The prosecutor responded that the defendants' request was not a proper request for particulars and that their questions went to matters of evidence. The prosecutor referred the defendants to the letter of 4 December 2001 in which there was set out the matters about which each of the six witnesses was expected to give evidence. Messrs Hancock and Smith were bulldozer drivers whose work involved clearing native vegetation from Eastwood and Yarrawa. Mr Blomfield was a farm hand who worked on both properties and witnessed the clearing of native vegetation by bulldozer. Mr Hurwood was the property manager of both properties and witnessed the acts of clearing by bulldozer. A copy of Mr Taylor's interview setting out what he saw and what happened was served. Mr Carroll is an accountant and a director of Sutherland Reid & Farrar Services Pty Ltd (Sutherland). Mr Carroll and/or Sutherland were the accountants for Mr Greentree, Greentree Farming and Prime Grain Pty Limited during the charge period and held relevant records. 25 The trial Judge held (para 22) that the prosecutor had furnished sufficient particulars. He had identified the persons to whom the instructions were given, the period during which the instructions were given and the general nature of the instructions to clear vegetation; see also paras 40 and 44. In para 38 his Honour held that the prosecutor had alleged that Mr Greentree gave instructions to named persons during the charge period to clear vegetation (which includes trees) from specific paddocks. 26 The defendants complained that Lloyd J's view was at variance with the facts in that the prosecutor had not provided such particularity of the contents of the alleged instructions. The defendants further complained that in the prosecutor's last statement on the subject (in the letter of 15 November 2001) no specific directions were relied upon. 27 It is important that the issue of giving instructions not be unduly elevated. The essence of the offences is clearing native vegetation. We do not accept that the words allegedly used by Mr Greentree are the sine qua non of the offences. Nor do we accept that if there is no instruction then it follows that there is no offence. The prosecutor relies on a wider raft of circumstances which have been particularised. The prosecutor has alleged that native vegetation on Eastwood and Yarrawa was cleared by employees or independent contractors of Greentree Farming, the primary production business that Mr Greentree managed. Considerable detail of the vegetation so removed was given. 28 The prosecutor has alleged that Mr Greentree gave instructions to Mr Hurwood, who managed Eastwood and Yarrawa and relayed them to employees of Greentree Farming but he has not specified the terms or substance of those instructions. However, the inference is open from the circumstances particularised that the substance of the instructions was to clear the native vegetation from the paddocks specified. 29 The case of the prosecutor is straightforward. Employees or subcontractors of Greentree Farming removed native vegetation from the specified paddocks of Eastwood and Yarrawa during the charge period. The bulldozers used belonged to Greentree Farming and Mr Greentree, a partner in Greentree Farming and who managed its primary production business, exercised control over those who carried out the clearing. By his letter of 4 December 2001 the prosecutor has outlined the role of each of the six employees or subcontractors and the matters on which they are expected to give evidence. Mr Greentree was aware of the clearing of Eastwood and Yarrawa. 30 It is necessary to make clear that the prosecutor has supplied adequate particulars and cannot supply further particulars. 31 As to the reference to the prosecutor's reply, "No specific directions are relied upon", it is necessary to have regard to the context in which that reply was made. That reply was given in answer to the request that the prosecutor specify whether it was to be alleged that Mr Greentree performed the acts of clearing by causing another person to clear native vegetation and, if so, where, when, to whom, and in what precise circumstances he gave any such direction. In response, the Director referred to the matters summarised above and stated that "no specific directions are relied upon." 32 The giving of instructions in respect of the two properties and to Mr Hurwood is a particular of the facts, matters and circumstances relied upon by the prosecutor to prove that Mr Greentree cleared native vegetation. It is true that the inference is open that the instructions involved clearing native vegetation or clearing and preparing the properties for a rural use such as sowing pastures or crops. 33 The confirmation of the absence of a specific direction was in response to the request that the prosecutor identify any direction by which Mr Greentree caused another person to clear native vegetation. The answers are not inconsistent. Specific directions of the kind of which particulars were sought would not be relied upon by the prosecutor. 34 The defendants further complain that the prosecutor has not particularised whether the nominated persons were employees or subcontractors and that these are mutually exclusive states. The defendants submitted that the trial Judge's comment that it was "not improper to allege alternatives" amounted to question begging. The defendants submitted that they were entitled to know whether their liability would be based on the conduct of a servant or an independent person and that this was a question of fact. 35 The prosecutor has identified the persons over whom it is said that the defendants exercised control. The prosecutor alleges that Mr Greentree's liability is based upon a combination of circumstances including his relationship to the land, his relationship to corporations and partnerships with an interest in or in respect of the land and his relationship to certain nominated persons. Whether those persons are employees or independent contractors adds nothing to the case which Mr Greentree has to meet. 36 Error on the part of the trial Judge has not been shown. 37 The defendants complain that the prosecutor has not specified the dates on which native vegetation was cleared and the acts of clearing by each employee. 38 The defendants relied upon S v The Queen (1989) 169 CLR 266 at 275 where Dawson J said: "The occasions upon which the offences alleged took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified he was unable to know how he might have answered them had they been specified." 39 At 281-2 Toohey J, after referring to a passage from the judgment of Dixon J in Johnson v Miller, supra, at 489 said: "…this does not mean that the prosecution must specify a particular date as the occasion on which it relies. But it does mean that as soon as it appears that a count in an indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged." 40 S v The Queen relates to a different situation. S was charged with three counts of carnal knowledge, with each count charging one such act on a date unknown within a specified period of twelve months. The complainant had given evidence of two specific acts of sexual intercourse but there was no evidence to link either act to any specified period. 41 The offence of clearing native vegetation is of its nature likely to occur over days, weeks or months. Unlike the offences in S v The Queen, the presence of native vegetation on one day and its absence on another, is in itself evidence of clearing. 42 The prosecutor relied on the decision of this Court in EPA v CSR Ltd [2000] NSWCCA 373 where it was held that the trial judge had not erred in determining that the particulars provided to CSR of the offence of, without lawful authority, negligently causing a substance to leak in a manner which harmed the environment from 1992 until 1997 or 1998 were adequate in the circumstances. Effluent was pumped into a lagoon. From 1992 it was known that the lagoon was leaking. If it was desired to continue using the lagoon the leak had to be stopped. It was not placing the effluent into the lagoon that constituted the offence. That was only part of the circumstances. 43 What emerges from the cases is the need to have regard to the nature of the offence and the facts, matters and circumstances relied upon by the prosecutor when considering the question of particulars. With some offences, the commission of the offences may be clear, even admitted, but the details of their commission may lie and be expected to lie within the bosom of the defendant. The prosecutor may only be able to specify a period within which the offence occurred. That does not, of itself, usually result in a decision that adequate particulars have not been supplied. 44 The trial Judge noted that, if additional facts, matters or circumstances arose (or emerged) in the course of the evidence, the prosecutor had reserved the right to seek leave to amend the particulars accordingly, subject to any prejudice to the defendants being met. As the trial will be by judge alone adjournments could be granted, if desirable or necessary, to enable any prejudice to be met. It can safely be left to the judge to deal with any situation that arises and to grant such amendments and adjournments as are reasonable. It may be that the judge will take the evidence in chief of each of the six employees or subcontractors at an early stage of the proceedings so that any necessary steps to be taken by the defendants can proceed while other evidence for the prosecution is being led. That is just one option and better options may be available. Obviously the judge will endeavour to ensure that the proceedings do not become too protracted. 45 The Crown case that Prime Grain cleared native vegetation at Eastwood and Yarrawa was based on Prime Grain owning, possessing and occupying those lands and being in a position to control what could be and was done on those lands, the clearing being large scale in terms of the number of trees cleared, the area cleared and the duration of the clearing. The smoke from burning of vegetation associated with the clearing was visible throughout the district. Prime Grain had knowledge or the means of knowledge through a director Mr Greentree and took no steps to prevent the clearing. It was alleged that by reason of its inaction Prime Grain acquiesced in the clearing and permitted Greentree Farming to carry out the clearing, knowing or having the means of knowledge that Greentree Farming was carrying out clearing as part of its business of primary production. Thus Prime Grain caused the clearing and actively participated in the clearing. 46 In a further request of 22 November 2001 Prime Grain enquired whether it was to be alleged that the company was under a duty to prevent the clearing and, if so, the basis upon which the duty was imputed to the company. The prosecutor replied that this was not a proper request for particulars. 47 Lloyd J held that the prosecutor's allegation that Prime Grain took no steps to prevent the clearing (although in a position to do so) was one of inaction. His Honour continued: "It is one of a large number of asserted facts, matters and circumstances upon which the prosecutor intends to rely to prove that … Prime Grain … cleared native vegetation on its land. The defendant can be left in no doubt about the case which the prosecutor seeks to make against it. … the prosecutor does not have to go beyond that allegation [of inaction]." 48 The prosecutor disputed Prime Grain's contention that inaction may only be a basis for liability if there is a duty to act. 49 The prosecutor has spelled out in considerable detail the facts, matters and circumstances upon which he proposes to rely in support of the allegation that Prime Grain cleared native vegetation on its land. When all the evidence has been led it will then be a matter of deciding whether the prosecutor has proved that Prime Grain cleared native vegetation in breach of s21(2) of the Act. That is not a matter that can be decided in advance. 50 As earlier mentioned, the prosecutor, in giving particulars of its allegation that Prime Grain cleared native vegetation on the lands, stated that Prime Grain permitted Greentree Farming to carry out the clearing. In the letter of 22 November 2001 the solicitors for Prime Grain wrote: "Please confirm that, at trial, the prosecution will rely on its allegation that the defendant 'permitted' Greentree Farming to carry out clearing and primary production on Yarrawa [and Eastwood] to prove the actus reus against the defendant and no other fact, matter or circumstance." The prosecutor replied: "This is not a proper request for particulars. No concession is made of the kind you invite. The prosecutor has stated the facts, matters and circumstances upon which it intends to rely. If additional facts, matters and circumstances arise in evidence, the prosecutor is not preluded from relying upon them." 51 Lloyd J again pointed out that the allegation that Prime Grain permitted Greentree Farming to carry out the clearing was one of many allegations (or asserted facts) on which the prosecution intended to rely to prove that the defendant cleared native vegetation on the lands and that full particulars had been supplied. 52 Prime Grain contended that the trial Judge had erred in stating that its request had been fully answered. It claimed that it was entitled to particulars of the facts, matters and circumstances to be relied upon at trial to prove that it "permitted" Greentree Farming to carry out the clearing. Prime Grain was seeking particulars of particulars. When Lloyd J stated that the request for particulars had been fully answered he was referring to the request for particulars of the allegation that Prime Grain had cleared native vegetation on the lands. 53 As part of the specification of the facts, matters and circumstances on which the prosecution relied in support of its allegation that Prime Grain had cleared native vegetation the prosecutor stated that in the circumstances listed in certain nominated paragraphs of the letter of 15 November 2001 Prime Grain actively participated in the clearing. In the letter of 22 November 2001 it was written: "What is meant by the words 'actively participated'? Is this intended to indicate the rubric of aided, abetted, counselled or procured?" The prosecutor replied: "The words refer to participation as a principal." 54 The trial Judge held, "The answer furnished by the prosecutor is clear and unambiguous and does not need further particularisation." 55 Prime Grain contended that his Honour had erred and that the expression "participation as a principal" where it is alleged that the defendants were guilty because their servants or agents contravened the Act is ambiguous. Did it mean a principal in the first degree, that is the person actually committing the offence or an accessory before the fact (by instigating the offence) or a principal in the second degree (aiding and abetting). That degree of particularity is not required at this stage of the proceedings. It is sufficient that Prime Grain knows that it is being alleged that it is a principal. Further categorisation must await the completion of the evidence. Prime Grain knows that it must meet the case that it actively participated in clearing native vegetation and did so as a principal. The complaint made of insufficient particularity must be rejected. 56 The defendants contended that they sought particulars of the assertion (implicit in the charge) that development consent was necessary for the clearing work conducted, as opposed to its being exempt under SEPP 46. The request was as follows: "8. State the facts, matters and circumstances that will be relied upon at trial to negative the contention that the clearing in each of the named paddocks was in conformity with the (a) two hectares a year exemption (b) … (n) … " The prosecutor replied: "8.00 As a matter of law, the onus is on the defendants to establish on the balance of probabilities that the clearing comes within one or more of the exclusions from the development consent requirements of Part 2 of the NVCA, including those in Schedule 3 to the former SEPP 46. However, insofar as the prosecutor is able to anticipate the defence in relation to the exemptions in Schedule 3 the prosecutor relies upon the following (a) two hectares a year exemption 8.1 The prosecutor refers to paragraph 7.4.1 above …" Paragraph 7.4.1 reads: "The area cleared on each of Yarrawa and Eastwood exceeds two hectares." 57 By letter of 22 November 2001 the defendants' solicitors wrote: "8.1 What construction will the prosecution assert at trial that the court should put on the 'two hectares a year' exemption, and upon what law or authority is that contention based." 58 The prosecutor's solicitor replied by letter of 14 December 2001: "8.1 This is not a proper request for particulars" 59 Lloyd J, after stating that he did not understand the defendants' request, continued: "The relevant exemption as appears from the instrument, a copy of which was furnished to the defendants in answer to par 7.4.16 above is as follows: '… Minimal clearing. The clearing of up to 2 hectares per annum for any contiguous land holding in the same ownership. This exemption allows clearing up to two hectares per annum, on each land holding that is contiguous land in the same ownership [State Environmental Planning Policy No 46 – Protection and Management of Native Vegetation, Amendment No. 2]' … the words of this exemption are plain and unambiguous; they require no exemplification or explanation. They simply say what they mean and mean what they say. No further particularisation is necessary." 60 The defendants submitted that his Honour erred. The document served was not the planning instrument at all but the prosecutor's own self-serving document – described by the prosecutor as "a DLWC publication" – making comments in relation to the interpretation of the statutory exemptions. The defendants complained that they had sought particulars of why these values were contended to apply but the Lloyd J held that this request need not be further answered. 61 The defendants further submitted that, by way of example, the prosecutor's document illustrates the defendants' difficulty in formulating a defence that no development consent was required for the clearing because it was in compliance with the statutory exemptions (on which the defendants bear the onus). As earlier mentioned SEPP 46 exempts: "Minimal Clearing: the clearing of up to 2 hectares per annum for any contiguous land holding in the same ownership" As mentioned, the document furnished by the prosecutor states: "The area of up to two (2) hectares is comprised of one two (2) hectare area only, i.e. the area cannot be subdivided as the exemption applies to only one area which may be up to two (2) hectares in size." The defendants' point was that the explanation in the prosecutor's document is more restrictive than the exemption itself and that the explanation differs from the terms of the exemption. 62 The defendants pressed for a "proper answer" to their request in paragraph 8.1 of their solicitors' letter of 22 November 2001 (see above). 63 The document furnished by the prosecutor is one issued by the NSW Department of Land and Water Conservation and described as Definitions and Exemptions, State Environmental Planning Policy No 46 – Protection and Management of Native Vegetation – Amendment No 2. It stated that the aim of SEPP 46 "is to prevent inappropriate native vegetation clearance." The document was divided into two Parts. In Part 2 the exemptions listed in Schedule 3 of SEPP 46 were explained. 64 The exemptions listed in Schedule 3 cover some nine different areas (paras (a) to (i)). The land owner has the responsibility of ensuring that any clearing of native vegetations falls within the limits of the exemptions. An interpretation of the exemptions should be adopted which best meets the aims and objectives stated in SEPP 46. So far as we can tell the document issued by the NSW Department of Land and Water Conservation represents its views of what the exemptions in SEPP 46 means. Put another way, the prosecutor has advanced its construction of exemption (a) specified earlier. The exact status of the document issued by the Department may be a matter of debate at the hearing. 65 However, the prosecutor has made its approach clear and no further particularisation is necessary. As counsel for the prosecutor pointed out, rather than disclosing any inadequacy in the particulars provided by the prosecutor, the material identified discloses more information than the prosecutor would be required to provide. And, as further pointed out by the prosecutor, how the prosecutor calculated an area in a statutory exemption on which the defendants bear the onus is not a particular of the offence charged. 66 Lloyd J correctly refused the further particularisation sought. Mens Rea 67 This Court agrees with the judge that mens rea is not an element of the offences and with the reasons which he gave. However, in deference to the submissions put to this Court, we should deal with them and with the question of whether in any event the Court should grant leave to appeal on any of the grounds raised. 68 In He Kaw Teh v The Queen (1985) 157 CLR 523 at 528 Gibbs CJ referred to the relevant common law principle which governs criminal responsibility stated in Sherras v De Rutzen [1895] 1 QB 918 at 921. "There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered." 69 The Chief Justice went on to say that there had in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes; Proudman v Dayman (1941) 67 CLR 536 at 540; Bergin v Stack (1953) 88 CLR 248 at 261. At 532-3 reference was made to Dixon J's statement in Proudman v Dayman at 540-1 that even where the statute excludes the necessity for positive knowledge on the part of the accused, honest and reasonable mistake of fact will still be a ground of exculpation. The Chief Justice observed at 533 that the cases established that if it was held that guilty knowledge was not an ingredient of an offence, it did not follow that the offence was an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, was to hold that an accused will not be guilty if he acted upon an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent. 70 In R v Wampfler (1987) 11 NSWLR 541 at 546 Street CJ, in a judgment with which Hunt and McInerney JJ agreed, said: "He Kaw Teh is authority for the proposition that for the purpose of considering criminal intent, statutory offences fall into three categories: (1) Those in which there is an original obligation on the prosecution to prove mens rea (2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt. (3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence." 71 It was not suggested that in the present case the statutory offences charged fell into the third category of absolute liability. It was suggested they fell into the second category of strict liability and not into the first category. 72 In Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 at 719 this Court considered s.16(1) of the Clean Waters Act 1970 which made it an offence to "pollute any waters". Gleeson CJ at 719 described the offence as one of strict liability and referred to Cooper v ICI Australia Operations Pty Ltd (1987) 31 A Crim R 267 and Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659. 73 Section 3 of the Act sets out the objects of the Act as follows: "The objects of this Act are: (a) to provide for the conservation and management of native vegetation on a regional basis, and (b) to encourage and promote native vegetation management in the social, economic and environmental interests of the State, and (c) to protect native vegetation of high conservation value, and (d) to improve the condition of existing native vegetation, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, and (f) to prevent the inappropriate clearing of vegetation, and (g) to promote the significance of native vegetation. In accordance with the principles of ecologically sustainable development." 74 The focus of these objects is the protection, maintenance and enhancement of native vegetation. The Act is intended to prevent activities that destroy or harm native vegetation and to promote activities that enhance it. Such objects suggest that sections like s21(2) which are included to achieve those objects should be read, in the absence of language to contrary effect, as imposing strict liability. The defendants' submission was that the Act itself by s65(4) required the conclusion that the prosecutor of an offender against s21(2) must establish mens rea. 75 Section 65 is a puzzling section. It is headed "Offences by corporations" and in subss (1) - (3) provides for the prosecution of any person "who is a director of [a] corporation or is concerned in the management of [a] corporation" that has contravened any provision of the Act unless the person satisfies the court that: "(a) the corporation contravened the provision without the actual, imputed or constructive knowledge of the person, or (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation." 76 The person may be proceeded against and convicted whether or not the corporation has been proceeded against or convicted (subs (2)) and nothing in the section affects any liability imposed on a corporation for an offence committed by the corporation against the Act or the regulations (subs (3)). In these three subsections the only relevance of an offence by the corporation is that contravention by the corporation of any provision of the Act or the regulations is a condition precedent to the person being taken to have contravened the same provision. 77 Subsection (4) is unrelated to anything in the first three subsections. It provides: "(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention." 78 The defendants submitted that this subsection could only have an application or work to do in the Act if the corporation's intention to contravene the Act was a material matter. This submission has force because it is difficult to see any other work that the subsection has to do. Section 65(1) is concerned with the knowledge of the person but not the mind of the corporation. The most that otherwise can be said is that s50(4) of the Act which is headed "Power to obtain information" provides that a person must not, in purported compliance with a notice under that section, give an authorised officer information or produce to an authorised office a document: "(b) … knowing that it is false or misleading in a material particular." In that subsection the knowledge of a person and hence the corporation is material. But this does not in any exact way explain the language of s65(4). 79 Section 65 is expressed in the same terms as s10 of the Environment Offences and Penalties Act 1989 which was repealed on 1 July 1999 by the Protection of the Environment Operations Act 1997. The presence of s10(4) in the 1989 Act is explained by offences described in ss5, 6 and 6A of that Act and introduced in the phrase "wilfully or negligently". Such phraseology is omitted by the Act. 80 In the context of the objects of the Act and in the absence of any language in the Act that suggests any requirement that mens rea is an ingredient of an offence under s21(2), we are not persuaded that a different conclusion is required by s65(4). As Lloyd J pointed out, s65(4) is concerned only to equate the intention of an officer, employee, or agent of a corporation with the intention of the corporation. The subsection is not aptly included in s65. Its presence is almost certainly explained by a method of drafting which has taken the terms of the section word for word from an earlier repealed Act in which, as a matter of language, the equivalent subsection had work to do. The Act omits the phrases which explained the earlier subsection. There is, in our opinion, no reason to alter the clear meaning of words in other sections for no other purpose than to provide such work for s65(4). Vicarious Liability 81 Similar considerations require the conclusion that a corporation or person may be vicariously liable for offences committed under the Act. In Mousell Bros Ltd v London & Northwestern Railway Co [1917] 2 KB 836 Atkin J at 845 said that the authorities made it plain that "While prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the legislature may prohibit an act or enforce a duty in such words as to make the prohibition or duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed." 82 In Tiger Nominees Gleeson CJ remarked at 720 that in this passage nothing turned upon any distinction between "absolute" liability and "strict" liability. 83 In The King v Australasian Films Ltd (1921) 29 CLR 195 the High Court applied this principle in the case of a corporation prosecuted under s234 of the Customs Act 1901. At 215 Knox CJ, Gavan Duffy and Rich JJ said: "The general object of the statute is to establish machinery for the collection of customs duties in aid of the revenue, and the particular object of Part III (ss 228-243) is to protect the revenue by imposing penalties upon persons doing acts calculated to lead to evasion of payment of the duties imposed. It is apparent that the effective protection of the revenue requires that the same precautions should be taken whether a company or an individual be the owner of goods imported, the fact being that companies are engaged to a greater extent in the importation of goods. Consequently the object of the statute affords no reason for the exclusion of companies from liability under this part of the Act." 84 There is no reason to suppose that the clearing of native vegetation contrary to s21(2) of the Act should be any the less of an activity of a company than of a person. But as has been pointed out in many cases a company can only act through the agency of persons whether those persons be regarded as effectively the mind of the company or, alternatively, the agents of the company in performing the act. To make the Act effective against companies, companies must be vicariously responsible for the acts of their agents. In our opinion, s21(2) imposes a vicarious liability on a person, whether that person be a company (see s21(1) of the Interpretation Act 1987) or an individual. In order to deal with this ground of appeal it is unnecessary to say anything about whether that vicarious responsibility in the particular case depends on a relationship of employer and employee, agency, or a contractual relationship. Secondary Participation 85 The defendants submitted that the prosecutor should not be permitted at the trial to rely on any doctrine of criminal liability by reason of either defendant's failure to prevent an offence by a third party or either defendant "permitting" or "acquiescing in" the commission of an offence by a third party where the conduct relied upon did not amount to aiding, abetting, counselling or procuring the commission of the offence. Lloyd J held that it was not appropriate "at this stage" that the Director-General be prevented from relying upon "general conduct amounting to secondary participation on the part of the defendants". His Honour said: "The question of whether conduct on the part of the defendants amounts to secondary participation must, however, depend upon all facts to be adduced in due course." 86 The trial Judge's approach was sound and arrived at after carefully considering the authorities He applied Giorgianni (1985) 156 CLR 473, holding that the four terms of aid, abet, counsel or procure were merely declaratory of the common law and that it was to the common law concept of secondary participation and not to the ordinary meaning of the words aids, abets, counsels or procures that regard must be had in the present case. Lloyd J quoted this passage from the judgment of Mason J in Giorgianni at 493, citation omitted: "In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen, ACJ in R v Russell, as being applicable to secondary participation in misdemeanour. Having listed various words, including 'aiding' and 'abetting' which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed: 'All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.'" 87 Lloyd J applied that passage correctly. His Honour thought that "a failure to prevent" or "permitting" or "acquiescing in" the commission of an offence may be within the concept of secondary participation as described. 88 The point at issue must be determined in the light of all the facts found by the trial Judge. It should not be determined as an interlocutory matter in the absence of full findings of fact. The trial Judge was correct to so rule. Witness Statements 89 The reasons given by Lloyd J for allowing the prosecutor to adduce evidence at the trial from the six nominated witnesses were correct and we would respectfully adopt them. 90 The prosecution had endeavoured to obtain statements or affidavits from the six witnesses but they had declined to provide statements or affidavits. All six witnesses appear to have had a relationship with the defendants and to have received at least part of their income from Greentree Farming. All six witnesses should be able to give material evidence as to what happened in the five paddocks in question and as to their employment or engagement. 91 While it is critical that each of the defendants receive a fair trial, any prejudice occasioned by them not having the statements or affidavits from the six witnesses can be overcome either by the grant of adjournments as required or by the holding of a Basha style inquiry immediately before or during the trial. If a witness proves unfavourable the trial judge may, under s38 of the Evidence Act 1995, in the exercise of his discretion permit cross-examination by the Crown. 92 As the defendants submitted, these are serious offences. There is a strong public interest in offenders being prosecuted and all relevant evidence being placed before the Court. 93 Lloyd J's decision was correct. Crown Appeal 94 The rule against double jeopardy applies to two or more statutory offences. EPA v Australian Iron & Steel Pty Limited (1992) 28 NSWLR 502. The judgment of the High Court in Pearce v The Queen (1998) 194 CLR 610 contains an authoritative statement of the principles of double jeopardy. The joint judgment of McHugh, Hayne and Callinan JJ points out that double jeopardy is spoken of at the stages of prosecution, conviction and punishment and that a single series of events can give rise to several different criminal offences to which different penalties attach (pp 614-615). 95 The joint judgment held that double jeopardy in the form of a plea in bar was not available unless the elements of each offence alleged are identical. It also pointed out that there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process. 96 As to double punishment the Justices said: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 97 This is a case where the issue of double punishment could arise if it were held that double jeopardy does not arise at the prosecution stage. 98 In the present case Lloyd J stated that he was required to look at the question whether the principle of double jeopardy was infringed at the prosecution stage. The crux of his Honour's reasoning is to be found in this passage: "In the present case both the summonses against Ronald Lewis Greentree in his personal capacity and the summonses against Ronald Lewis Greentree in his capacity as a director charge him with the same offence, namely an offence against s21(2) of the Native Vegetation Conservation Act, which offences are said to have occurred at the same time, on the same properties, and arise out of the same facts and circumstances. The particulars furnished by the prosecutor in support of each charge are in substance the same. Whether the defendant has in his own right cleared native vegetation in breach of s21(2) of the Act or whether he has done so in his capacity as a director makes no difference to the fact that in each case it is the same offence with which he has been charged. The deeming provision in s65(1) of the Act does not change either the substance or the nature of the offence under s21(2). Moreover, this is not a case where the defendant, Ronald Lewis Greentree, has been charged with two different statutory offences arising out of the same facts, as was in the case in Environment Protection Authority v Australian Iron and Steel Pty Ltd. If the rule against double jeopardy applies in relation to two or more different statutory offences, then it applies with even more force to two or more charges for precisely the same statutory offence." 99 Lloyd J consequently held that the bringing of two sets of summonses against Mr Greentree infringed the principle of double jeopardy. 100 The prosecutor submitted that his Honour's analysis was faulty in that: (a) contravention of s21(2) is an offence by operation of s17(1); (b) section 65 itself creates an offence that is different from that under s21(2). There are two offences not one; (c) each of the offences contained an element that the other does not; (d) the evidence necessary to support a charge under s65 would not have been sufficient to procure a legal conviction upon the first charge. 101 The prosecutor contended that the trial Judge, while recognizing that he was required to consider double jeopardy at the prosecution stage, applied the test that operates at the stage of sentence, not prosecution. Pearce establishes that on sentence where the elements of two offences overlap the defendant must not be punished twice on the common elements. 102 The prosecutor submitted that the trial Judge erred in concluding that the offence charged in Mr Greentree's personal capacity and that charged in his capacity as a director were the same offence. The correct test at the prosecution stage was whether the offences were different even though they arose at the same time on the same properties and out of the same events or series of events. Minor differences of language may be ignored. 103 The effect of s65 of the Act has been summarised earlier. 104 The defendants contended that Pearce was of limited application in the present case because of the markedly different factual situation. They contended that the facts constituting the actual event alleged are identical in the present case whereas in Pearce they were different and that the additional factor in the present case is that there Is an extra element as to liability – being a director of the corporation. However, the liability is, in terms and substance, for the same offence. What is achieved by s65 is a statutory vicarious liability. The defendants pointed out that the director is deemed to have contravened the same provision, stressing the word "same". 105 Section 65 creates a separate offence. Where a corporation contravenes s21(2) of the Act, and it would do so by the acts of its servants or agents or both, each director of the corporation is taken to have contravened the same provision unless the person satisfies the Court that he falls within one of the specified exceptions. 106 The situation could arise where the prosecutor could not prove that a personal defendant cleared the land or participated in clearing the land, but could prove that the defendant was a director of the corporation that cleared the land. The director may not be able to bring himself within one of the specific exemptions 107 Where a person is charged in his capacity as a director of a corporation the elements of the offence are to be found in a combination of ss65(1), 21(2) and 17(1). 108 There are substantial common elements in the counts against Mr Greentree personally and those against him as a director. The differences are that in the count against Mr Greentree personally it is alleged that he cleared the native vegetation, whereas in the counts against him in his capacity as a director it is alleged that the corporation cleared the native vegetation and that he was a director of the corporation. 109 Despite the significant similarities, the offences charged are different, having the differences previously mentioned. Double jeopardy has not been established at the prosecution stage. If the prosecution proves its case beyond reasonable doubt on all the counts, double jeopardy is likely to loom large at the punishment stage. As presently advised, it is difficult to see double jeopardy arising at the conviction stage. However, that is not a matter on which the Court would wish to express a concluded view. Factual scenarios may arise which have not been envisaged by this Court. 110 While we have dealt with the position which exists under the legislation we return to the form of the summonses against Mr Greentree in his capacity as a director. It is alleged: "he contravened a provision of Part 2 of the Native Vegetation Act … in that he was a director of Prime Grain Pty Limited a company that contravened section 21 of the … Act and he did thereby contravene section 21 of the … Act by operation of s.65(1) of the … Act." 111 On their face the two summonses may be thought to be primarily alleging a breach of s21 of the Act rather than a breach of s65 which creates the additional and separate offence. However, the two summonses allege all the ingredients of the offence under s65 which incorporates or utilises ss17 and 21. While the summonses could have been couched in somewhat different terms they are not deficient. Nor do they render inapplicable the principles earlier discussed. 112 The defendants have not made out a case for leave to appeal. They have not shown that the trial Judge erred in the declarations and orders made which were adverse to them. Orders 1. The defendant's application for leave to appeal is 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 50039/01, 50054/01, 50040/01 and 50053/01 do not give rise to any plea in bar for infringement of the rule against double jeopardy. ********** Last Modified: 02/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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