New South Wales Supreme Court CITATION : Jaggers v McMillan & 1 Ors [2007] NSWSC 90 HEARING DATE(S) : 15/02/2007 JUDGMENT DATE : 16 February 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The order of dismissal and the order as to costs is set aside. The matter is remitted back to the Local Court for determination according to law. The defendant is to pay the plaintiff's costs of these proceedings. No order is made as to costs concerning the Attorney-General. CATCHWORDS : Appeal from Local Court - logging operations - offence of failure to comply with request - structure of Regulation - proviso - individual request - costs LEGISLATION CITED : Forestry Regulation 1999 Interpretation Act 1987 (NSW) James Jaggers PARTIES : Jennifer McMillan Magistrate David Heilpern FILE NUMBER(S) : SC 14070/05 Mr M. W. Anderson (Pl) COUNSEL : Ms A. D. Gibbons (Def) Ms R. A. Pepper (Intervenor) Griffiths Tierney (Pl) SOLICITORS : Clark Rideaux Solicitors (Def) Crown Solicitor's Office (Intervenor) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : Q2145 09/05 BKB-E LOWER COURT JUDICIAL OFFICER : Magistrate Heilpern LOWER COURT DATE OF DECISION : 12/08/2005 LOWER COURT MEDIUM NEUTRAL CITATION : Forestry Commission NSW v McMillan - 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 16 FEBRUARY 2007 14070/05 James JAGGERS V Jennifer MCMILLAN & ANOR JUDGMENT 1 HIS HONOUR: The plaintiff is, and at all relevant times has been, an employee of State Forests of New South Wales (as a sales manager). 2 On 24 March 2004, logging operations (the operations) were in progress in an area of Yambulla State Forest (the area). The operations attracted a number of protesters (a group of some seven or eight people). The defendant was one of the persons in the area. 3 The plaintiff issued a number of penalty infringement notices pursuant to the then Forestry Regulation 1999 NSW (the Regulation). Three of them were issued to the defendant (each in the sum of $100). 4 It has been said that her motor vehicle was blocking a bridge/crossing. It was further alleged that she approached the operations within a distance of 100 metres on two separate occasions. It was also alleged that she failed to leave the area after being requested to do so pursuant to Clause 15 of the Regulation. The Clause has since been repealed. 5 At the time, the relevant clause was as follows:- "(1) An authorised officer may request a person to leave a forestry area if: (a) in the area: (i) logging operations or other forest activities are in progress, or (ii) a bushfire is burning, or (iii) in the opinion of the Commission or the officer, conditions of high fire danger exist, or (iv) the Commission, the officer or another authorised officer is undertaking deliberate or controlled burning of any kind, or (v) very wet or windy conditions exist, or (vi) a way has been damaged, or (vii) a way needs maintenance or protection as a result of adverse weather, and (b) the Commission or officer believes that: (i) those activities or conditions constitute a danger or potential danger to the safety of persons or property, or (ii) there is likely to be conflict with other uses of the area by other persons, or (iii) there is a risk of a significant adverse impact on the area. (2) The Commission may erect or cause to be erected such enclosures, gates or ramps as it considers necessary for the purpose of preventing or restricting the entry of persons into the forestry area concerned. (3) A person who fails to comply with a request under this clause is guilty of an offence. Maximum penalty: 20 penalty units. (4) Subclause (3) applies to a person irrespective of any provisions of a lease, licence or permit that the person holds in relation to the forestry area concerned. (5) A person is guilty of an offence under this clause only if the authorised officer when making the request: (a) discloses to the person that he or she is an authorised officer, and (b) informs the person that failure to comply with the request is an offence under this Regulation. (6) In this clause and in clause 16: way includes a road, track, trail, bridge and causeway." 6 Two of the penalty infringement notices concerned the approaches to the operations. The third related to the failure to leave the area. 7 The defendant did not pay the penalty infringement notices. Subsequently, court attendance notices were issued to her. A court hearing took place before the Local Court (Mr Heilpern LCM). The proceedings were defended. 8 The defendant, at the relevant time, was a documentary maker and engaged in filming and recording what was taking place. The Magistrate appears to have seen her as presenting herself "in the broadest sense of the word" as a member of the media. 9 The plaintiff was an "authorised officer" of his employer. He requested the group to leave the forestry area. He disclosed to the group that he was such an authorised officer. He also informed the group that failure to comply with his request was an offence under the Regulation. These matters were not in dispute. The matter put in issue by the defendant was whether sub-clause (5)(b) had been satisfied in respect of her. 10 What happened was recorded by both the plaintiff and the defendant. The respective video-tapes (together with a transcription) were placed before the Magistrate. 11 The Magistrate dismissed all of the three matters. Of present concern, is the third matter only (which relates to the failure to comply with the request). He did so by determining what he regarded as a "preliminary matter" which he said involved a matter of interpreting the Regulation. 12 The plaintiff brings an appeal to this Court against the decision concerning the third matter and an order made in respect of costs (to be payable by the Forestry Commission of NSW). He now proceeds on an Amended Summons. The defendant has filed a Notice of Contention. She seeks to raise a constitutional question (of invalidity of relevant provisions of the clause by reason that they impugn a constitutionally implied freedom of political communication). 13 An appeal as of right lies from a decision of the Local Court where there has been error in point of law. There appears to be no dispute that what is contended by the plaintiff would, if upheld, be regarded as error in point of law. 14 The appeal was heard on 15 February 2007. Both the plaintiff and the defendant were represented by Counsel. Counsel relied on written submissions which were supplemented by oral argument. 15 The Attorney-General for New South Wales sought to intervene on the constitutional issue. He was represented by Counsel, who also provided the Court with written submissions. 16 During the course of the hearing, the procedure was adopted of treating the appeal issues as threshold matters and deferring the constitutional issue until the appeal issues had been first determined. It was common ground that in the event that the appeal was upheld, it was not necessary for me to address the constitutional issue. 17 It was also established that the Attorney-General was not seeking an order for costs against either of the plaintiff or the defendant and that neither of those parties were seeking costs against the Attorney-General. 18 I now return to the provisions of the clause, the judgment of the Magistrate and what was argued by the parties. 19 The clause has a clear structure. Sub-clause(1) enables the making of a request by an authorised officer to a person to leave a forestry area if the requirements set forth in (a) and (b) thereof are satisfied. Sub-clause(3) renders a person who fails to comply with a request made under sub-clause(1) guilty of an offence. Sub-clause(5) contains what might be described as a proviso. A person is guilty of an offence under sub-clause(3) only if the authorised officer when making the request does what he is required to do pursuant to (a) and (b) thereof. 20 The Magistrate correctly approached the matter on the basis that the prosecution had the onus to demonstrate that there had been an offence proved beyond reasonable doubt. He observed that the prosecution had to make out all elements of the alleged offence. 21 I shall now refer to certain observations that may be found in his judgment (which was delivered on 12 August 2005). He expressed the view that it was obvious that only an individual could be charged with the offence. He came to the view that it was not sufficient to make a disclosure to a group. He further observed that even if he was wrong in that matter that in the specific circumstances of this case "more was required". What he had in mind when he made that observation is unclear (the judgment contains confusing and conflicting material). 22 His judgment includes the following:- "Even if I'm wrong in that as a general proposition and as a general interpretation of the legislation then in the specific circumstances of this case more was required. The defendant was clearly a person who was engaged in a filming activity and did not do, from anything that I have seen in this case, did not do anything overtly as part of the protest action, she was not carrying banners, she was not assisting people to lock in or on, she was interviewing people and doing what those who make films do, filming. She was in the vicinity of protesters and close proximity to the protesters at the time the warning was given and in those specific circumstances if sub cl 5 is to apply to that person then much more needs to be done. So that it is perfectly clear my preliminary view is that as a general rule there must be disclosure to a person. If I'm wrong in that and if that is going too far then the (sic) in specific circumstances where we have a person filming, where we have a person with headphones on, where we have a person who has disclosed to the Forestry – to the individual and who is giving the warning that she is a person who is engaged in that activity where there she's interviewing somebody at the time portions of the warning are being given then in my view I'm not satisfied beyond a reasonable doubt that sub cl 5 is met in the circumstances where there is a general disclosure and a general information to a group of which this person is present, near or with. For those reasons I am not satisfied beyond a reasonable doubt that sub cl 5 has been met and given that it is a requirement that that sub clause be met before a person – sorry, a person is only guilty of an offence if that sub clause is met then the charge must be dismissed. THE PAPERS ARE MARKED DISMISSED." 23 These observations, at least initially, appear to be presented as being predicated on the basis of error in the view that he had earlier expressed as to the proper construction of provisions contained in the proviso (this view is initially presented as a clear one, but later is expressed to be a preliminary one). However, contents of the ultimate paragraph (including "where there is a general disclosure and a general information to a group of which this person is present, near or with") give a different impression. The end result seems to be equivocal. 24 In one paragraph, it may seem that he was saying that this case had specific circumstances (inter alia, the defendant was not a protester but a media person who was engaged in other activities) and that those circumstances required more to be done by the prosecution to obtain a conviction. If that be the case, it seems to me that he has misconceived the purport of the Regulation. 25 There is a lack of clarity as to whether his observations were directed, inter alia, to matters of construction of the proviso or merely observations concerning the facts of the case. 26 If the former was intended, it seems to me that he was labouring under misconception as to what the prosecution had to prove. If the latter was intended, it seems to me that he was applying an erroneous test in his assessment of the facts. 27 The proviso draws a distinction between "discloses" and "informs". A dictionary meaning of "inform" includes "to tell". Whilst I have not had the benefit of full argument on the question, I am presently inclined to the view that what sub-clause (5)(b) requires is that the authorised officer tell those addressed that failure to comply with the request is an offence under the Regulation. 28 The defendant gave evidence before the Magistrate. It was not her case that she did not hear what was said by the authorised officer. It was not her case that she could not hear what was said by the authorised officer (although there was material which was used to suggest that there may have been impediments to her hearing all of what was said). At the relevant times, she was in close proximity. The evidence that was accepted by the Magistrate was that of lack of recollection as to whether or not she heard what was said. 29 The submissions made on behalf of the defendant on this question include the following:- "13 I respectfully submit that this requirement to do more is no greater than if in circumstances where it was known to the authorised Officer that a person or persons were disabled in some way that prohibited or inhibited their ability to have the information revealed or made known to them or be informed or instructed as to the consequences. 14 I respectfully submit that His Honour has not added an extra element to the offence under clause 15(3) of the Regulation; rather he has on the evidence expressed his assessment of the facts that he was not persuaded beyond a reasonable doubt that the Defendant actually heard or somehow perceived the warning because of her particular circumstances and that the officer was aware of those circumstances." 30 I have some difficulty in understanding what is said in paragraph 13. There is material that would indicate that the defendant was aware of what was going on (inter alia, she was filming and recording it). The Regulation only required the plaintiff to inform of the matter specified in sub-clause 5(b). 31 If what is said in paragraph 14 reflects what was done by the Magistrate (and this is a matter of some uncertainty), it seems to me that, in his assessment of the facts, he has applied the wrong test. I do not consider that the proviso requires the prosecution to prove beyond a reasonable doubt that the defendant actually heard or somehow perceived "the warning". 32 In my view, the word "informs" is to be given one meaning which is to be applied in the particular circumstances of the case before the Court. If it is being said that a different test is to be applied depending on the circumstances of the case (such as in "specific circumstances"), I reject that contention. 33 A person may choose to ignore or pay scant attention to the information that is being given by the authorised officer (inter alia, because the person is more interested in focusing attention on something else). This may be what happened in this case. In such circumstances, the authorised officer may be seen as having complied with the proviso. 34 What was said by the Magistrate concerning who could be charged with an offence ("only an individual") is not material to his decision. It is not necessary for me to dwell on this matter and it can be left for another day. 35 I do not agree with his view that the proviso requires that what is to be done thereunder has to be made individually (to one person only) and cannot be done in respect of a number of persons at the one time (to a group or collectively). This approach is not supported by either the language of the provision or its context. It ignores provisions of the Interpretation Act 1987 (NSW) (including s8(b) which provides, inter alia, that a reference to a word in singular form includes a reference to the word in plural form). Indeed, it seems to me that such an approach may render the provision unworkable. The clause is part of the control and management provisions of the Regulation. Its object is to provide to the authorised person a means to enable him to disperse persons from the forestry area (inter alia, where, in the belief of the officer, the forest activities constitute a danger or potential danger to the safety of persons or property). In my view, it would be intended to be a means that may have to be employed where a large number of people may be present. In such circumstances, the making of individual requests would be unfeasible. 36 Little needs to be said concerning the order made in respect of costs. The judgment delivered in respect of that order recites that it was prepared on the basis that the defendant's acquittal stands. Clearly, the acquittal was a material consideration. Leaving that matter aside, there would seem to be other problems. The order was made against the Forestry Commission of NSW. It was not a party to the proceedings and was not heard in respect of that matter. In the circumstances, there is no need to look at other matters that were taken into account in the making of the order (which may be the subject of error in the exercise of the power to award costs). 37 In the circumstances, I am satisfied that there has been error in point of law that is material to the decision of the Magistrate. In my view, his order of dismissal and his order as to costs should be set aside and I so order. The matter is remitted back to the Local Court for determination according to law. The defendant is to pay the plaintiff's costs of these proceedings. 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