Director-General, Department of Natural Resources v Gleeson; Director-General, Department of Natural Resources v Epacris Pty Ltd [2007] NSWLEC 749

Director-General, Department of Natural Resources v Gleeson; Director-General, Department of Natural Resources v Epacris Pty Ltd [2007] NSWLEC 749

The proposed questions on the burden of proof for statutory exceptions did not arise ‘at or in reference to the proceedings’ because they depended upon speculative future forensic decisions of the prosecution and were framed in general, hypothetical terms. As such, s 5AE of the Criminal Appeal Act 1912 was not enlivened, and even if it were, the discretion should not be exercised to state the case because it would serve only to provide the prosecutor with advisory assistance on evidence rather than assist the trial judge in determining an actual legal controversy.

Jurisdiction
Australia
Judgment Date
19 November 2007
Procedural Posture
Criminal Prosecution / Interlocutory Application (notice of Motion) for Case Stated Procedure
Outcome
notice of motion dismissed
Legal Topics
['burden of Proof' 'case Stated Procedure' 'native Vegetation Offences' 'exemptions and Exclusions From Statutory Offences' 'questions of Law']
['criminal Law' 'environmental Law'] ['burden of Proof' 'case Stated Procedure' 'native Vegetation Offences' 'exemptions and Exclusions From Statutory Offences' 'questions of Law']

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Procedural Posture

Criminal Prosecution / Interlocutory Application (notice of Motion) for Case Stated Procedure

Legal Issues

  1. 1 ['Whether questions of law regarding the burden of proof on statutory exclusions and exemptions under the Native Vegetation Conservation Act 1997 are ‘arising at or in reference to the proceedings’ within s 5AE of the Criminal Appeal Act 1912 and may be referred to the Court of Criminal Appeal at this stage.' 'Whether the Director-General or the defendants carry the burden of proof for various statutory exceptions, exemptions, and exclusions in the context of a prosecution under s 21(2) of the Native Vegetation Conservation Act 1997.']

Ratio Decidendi

The proposed questions on the burden of proof for statutory exceptions did not arise ‘at or in reference to the proceedings’ because they depended upon speculative future forensic decisions of the prosecution and were framed in general, hypothetical terms. As such, s 5AE of the Criminal Appeal Act 1912 was not enlivened, and even if it were, the discretion should not be exercised to state the case because it would serve only to provide the prosecutor with advisory assistance on evidence rather than assist the trial judge in determining an actual legal controversy.

Court Disposition

notice of motion dismissed

Orders

  • ['Notice of motion seeking to refer questions of law to Court of Criminal Appeal dismissed.']