Director-General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102

Director-General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102

The Land and Environment Court found double jeopardy arises where two sets of summonses charge the same defendant with identical offences under s 21(2) of the Native Vegetation Conservation Act 1997, based on the same facts and circumstances, and the prosecutor must elect which proceedings to pursue. The Court also held mens rea is not an essential element for these statutory offences, they are strict liability, and vicarious liability applies to both defendants under statutory and common law. Secondary participation includes permitting or acquiescing in offences, subject to factual findings. The prosecutor is not prevented from relying on evidence relating to failure to prevent,...

Jurisdiction
Australia
Judgment Date
28 June 2002
Procedural Posture
Criminal Prosecution / Pre Trial Motions and Orders Regarding Particulars, Liability Principles, and Trial Procedure
Outcome
Directions, declarations, and orders granted: prosecutor not required to provide further particulars; must elect between proceedings to avoid double jeopardy; mens rea not required; vicarious liability applies; secondary participation concepts not excluded; prosecutor permitted to call specified witnesses without...
Legal Topics
['native Vegetation Clearing' 'double Jeopardy' 'mens Rea' 'vicarious Liability' 'secondary Participation' 'summons Particulars' 'development Consent Requirements']
['environmental Law' 'criminal Law' 'practice and Procedure'] ['native Vegetation Clearing' 'double Jeopardy' 'mens Rea' 'vicarious Liability' 'secondary Participation' 'summons Particulars' 'development Consent Requirements']

Case Brief

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Procedural Posture

Criminal Prosecution / Pre Trial Motions and Orders Regarding Particulars, Liability Principles, and Trial Procedure

Legal Issues

  1. 1 ['Adequacy of particulars for the charges' 'Application of double jeopardy rule' 'Requirement of mens rea for offences under s 21(2) Native Vegetation Conservation Act 1997' 'Vicarious liability for environmental offences' 'Scope of secondary participation criminal liability' 'Permissibility of adducing witness evidence without affidavits/statements']

Ratio Decidendi

The Land and Environment Court found double jeopardy arises where two sets of summonses charge the same defendant with identical offences under s 21(2) of the Native Vegetation Conservation Act 1997, based on the same facts and circumstances, and the prosecutor must elect which proceedings to pursue. The Court also held mens rea is not an essential element for these statutory offences, they are strict liability, and vicarious liability applies to both defendants under statutory and common law. Secondary participation includes permitting or acquiescing in offences, subject to factual findings. The prosecutor is not prevented from relying on evidence relating to failure to prevent,...

Court Disposition

Directions, declarations, and orders granted: prosecutor not required to provide further particulars; must elect between proceedings to avoid double jeopardy; mens rea not required; vicarious liability applies; secondary participation concepts not excluded; prosecutor permitted to call specified witnesses without...

Orders

  • ["Prosecutor need not provide further answers to defendants' request for particulars." 'Prosecutor must elect between proceedings Nos. 50039-40 of 2001 and 50053-54 of 2001; proceedings stayed until election.' 'Declaration that mens rea is not an essential element of the offences charged.' 'Declaration that...