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

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

The defendants failed to show error in the interlocutory directions and declarations because the prosecutor had provided adequate particulars, mens rea was not an element of the s21(2) offences, vicarious liability could apply under the Act, issues of secondary participation should be determined on the facts at trial, and any prejudice from witnesses without statements could be managed. The prosecutor's appeal succeeded because s65 creates a separate offence combining ss65(1), 21(2) and 17(1), with elements different from a personal s21(2) clearing offence, so the paired charges against Mr Greentree did not give rise to a plea in bar for double jeopardy at the prosecution stage.

Jurisdiction
Australia
Judgment Date
27 February 2003
Procedural Posture
Criminal Appeal Concerning Environmental Prosecutions Under the Native Vegetation Conservation Act 1997 / Application for Leave to Appeal by Defendants Against Interlocutory Directions and Declarations in the Land and Environment Court, and Prosecutor's Appeal Against an Election/stay Order
Outcome
The defendants' application for leave to appeal was dismissed; the prosecutor's appeal was allowed; the election order was vacated; and the Court declared that the relevant charges did not give rise to a plea in bar for double jeopardy.
Legal Topics
['particulars of Charges' 'mens Rea and Strict Liability' 'vicarious Liability' 'secondary Participation' 'witness Evidence Where Statements or Affidavits Were Not Provided' 'double Jeopardy' 'unauthorized Clearing of Native Vegetation']
['criminal Law' 'environmental Law' 'criminal Procedure' 'evidence'] ['particulars of Charges' 'mens Rea and Strict Liability' 'vicarious Liability' 'secondary Participation' 'witness Evidence Where Statements or Affidavits Were Not Provided' 'double Jeopardy' 'unauthorized Clearing of Native Vegetation']

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Procedural Posture

Criminal Appeal Concerning Environmental Prosecutions Under the Native Vegetation Conservation Act 1997 / Application for Leave to Appeal by Defendants Against Interlocutory Directions and Declarations in the Land and Environment Court, and Prosecutor's Appeal Against an Election/stay Order

Legal Issues

  1. 1 ['Whether the prosecutor had provided adequate particulars of the alleged clearing offences.' 'Whether mens rea is an essential element of offences under s21(2) of the Native Vegetation Conservation Act 1997.' 'Whether vicarious liability applies to persons or corporations for offences under the Native Vegetation Conservation Act 1997.' 'Whether failure to prevent, permitting or acquiescing in an offence by a third party may be relied on as secondary participation.' 'Whether the prosecutor should be permitted to call six witnesses who had declined to provide statements or affidavits.' 'Whether charging Mr Greentree personally and as a director under s65 gave rise to a plea in bar for double jeopardy at the prosecution stage.']

Ratio Decidendi

The defendants failed to show error in the interlocutory directions and declarations because the prosecutor had provided adequate particulars, mens rea was not an element of the s21(2) offences, vicarious liability could apply under the Act, issues of secondary participation should be determined on the facts at trial, and any prejudice from witnesses without statements could be managed. The prosecutor's appeal succeeded because s65 creates a separate offence combining ss65(1), 21(2) and 17(1), with elements different from a personal s21(2) clearing offence, so the paired charges against Mr Greentree did not give rise to a plea in bar for double jeopardy at the prosecution stage.

Court Disposition

The defendants' application for leave to appeal was dismissed; the prosecutor's appeal was allowed; the election order was vacated; and the Court declared that the relevant charges did not give rise to a plea in bar for double jeopardy.

Orders

  • ["The defendant's application for leave to appeal is dismissed." "The prosecutor's appeal is allowed and the order made requiring the prosecutor to elect vacated." '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...