Holroyd City Council v El Baysari SM & Anor [2005] NSWLEC 179

Holroyd City Council v El Baysari SM & Anor [2005] NSWLEC 179

The evidence did not establish beyond reasonable doubt that the defendants, or either of them, carried out the acts that caused injury to the tree during the relevant period, nor did it exclude reasonable alternative explanations for the tree's decline and death. Since criminal liability must be established to the requisite standard, and as there remained a hypothesis consistent with innocence, the defendants were entitled to acquittal.

Parties
Prosecutor: Holroyd City Council; Defendant: Samia - Marie El-Baysari; Defendant: Al - Badoui El-Baysari
Jurisdiction
Australia
Judgment Date
19 April 2005
Procedural Posture
Prosecution (summary Criminal/environmental) / Final Judgment After Contested Hearing
Outcome
Acquittal; summons dismissed; costs to defendants.
Legal Topics
Tree Preservation Order, Construction of Delegated Legislation, Proof by Circumstantial Evidence, Accessorial Liability, Costs in Criminal Proceedings
Environmental Law Planning Law Criminal Law Tree Preservation Order Construction of Delegated Legislation Proof by Circumstantial Evidence Accessorial Liability Costs in Criminal Proceedings

Case Brief

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Parties

Holroyd City Council

Prosecutor

Samia - Marie El-Baysari

Defendant

Al - Badoui El-Baysari

Defendant

Procedural Posture

Prosecution (summary Criminal/environmental) / Final Judgment After Contested Hearing

Legal Issues

  1. 1 Whether the defendants injured a tree contrary to a valid prohibition under a tree management order thereby committing an offence under s 125 of the Environmental Planning and Assessment Act 1979
  2. 2 Whether the tree management order (TMO) was valid or ultra vires the Council's powers under the Local Environmental Plan
  3. 3 Whether the injury to the tree was proved to the required criminal standard by circumstantial evidence

Ratio Decidendi

The evidence did not establish beyond reasonable doubt that the defendants, or either of them, carried out the acts that caused injury to the tree during the relevant period, nor did it exclude reasonable alternative explanations for the tree's decline and death. Since criminal liability must be established to the requisite standard, and as there remained a hypothesis consistent with innocence, the defendants were entitled to acquittal.

Court Disposition

Acquittal; summons dismissed; costs to defendants.

Orders

  • In each of the matters the defendants are found not guilty of the charge in the summons.
  • The summons in each case is dismissed.