Coburn (NSW Department of Planning, Industry and Environment) v Cool-Off Pty Ltd

[2021] NSWLC 6

Local Court

New South Wales

Medium Neutral Citation:

Coburn (NSW Department of Planning, Industry and Environment) v Cool-Off Pty Ltd [2021] NSWLC 6

Hearing dates:

1-5 February 2021,19-23 July 2021, 29 October 2021

Date of orders:

29 October 2021

Decision date:

29 October 2021

Jurisdiction:

Criminal

Before:

Donnelly LCM

Decision:

The defendant is found not guilty and the charge is dismissed.

Catchwords:

Biodiversity Conservation Act 2016, ss 2.5(c), 13.9 offence of procuring an offence of dealing in a protected animal (kangaroo) – whether offence under s 2.5(c) is an offence of absolute or strict liability – whether common law ground of exculpation of honest and reasonable mistake of fact is available to the alleged principal and also secondary participant – CTM v The Queen (2008) 236 CLR 440 applied – s 13.9 – application of common law doctrine of accessorial liability of aid abet, counsel and procure to a charge laid under s 13.9 – ingredients of offence that the prosecution must prove where the offence allegedly committed by principal is a strict liability offence – Giorgianni v The Queen (1985) 156 CLR 473 applied – requirement of prosecution to prove knowledge and intention on part of secondary participant – defendant not guilty on basis that prosecution failed to prove the ingredient of knowledge

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW)

Cases Cited:

Bateman v Evans (1964) 108 Sol Jo 522

Blundell v R [2019] NSWCCA 3

Carter v Mace [1954] 3 All ER 243

Clayton v The Queen [2006] HCA 58

CTM v The Queen (2008) 236 CLR 440

Decision Restricted [2019] NSWCCA 226

De Silva v The Queen [2019] HCA 48

Giorgianni v The Queen (1985) 156 CLR 473

He Kaw Teh v The Queen (1985) 157 CLR 523

Holloway v Gilport Pty Ltd; Holloway v Zygaldo (1995) 79 A Crim R 76

Johnson v Youden [1950] 1 KB 544

Miller v The Queen (2016) 259 CLR 380

Proudman v. Dayman (1941) 67 CLR 536

R v Glennan (1970) 91 WN (NSW) 609

R v Sheehan [1999] QCA 461

R v Tolson (1889) 23 QBD 168

R v Russell (1933) VLR 59

Smith v Jenner (1968) Crim.LR 99

Stokes and Difford v R (1990) 51 A Crim R 25

Thomas v Lindop [1950] 1 All ER 966

Category:

Principal judgment

Parties:

Jennifer Coburn, NSW Department of Planning, Industry and Environment (Prosecutor)
Cool-Off Pty Ltd (Defendant)

Representation:

Counsel:
A Garsia (Prosecutor)
C Ireland SC (Defendant)

Solicitors:
Department of Planning Industry and Environment and Investment Legal Division (Prosecutor)
McCullough Robertson Lawyers (Defendant)

File Number(s):

2019/00395417

Publication restriction:

No

Judgment

1. COOL OFF Pty Ltd (the defendant) is charged with one offence of procuring an offence of dealing in a protected animal (kangaroo) pursuant to ss 2.5(c) and 13.9 of the Biodiversity Conservation Act 2016 (the Act). The prosecution have sought to frame the defendant’s criminal liability on the basis of the doctrine accessorial liability of aid abet, counsel and procure referred to in s 13.9. The common law describes a person charged or convicted on the basis of the doctrine as a secondary participant. The trial was a conducted over 10 days being two 5 day periods in February 2021 and July 2021 the latter being during second wave of the COVID-19 pandemic. Sixteen witnesses were called and 43 Exhibits were tendered.

2. The case is unusual because the alleged principal offender, Mr Rando, was not prosecuted in a court of law and at the time of the trial there was no curial finding that he had committed the crime under s 2.5(c). Mr Rando was given an (Executive) caution by the Department of Planning applying guidelines on the issuing a caution (see Exhibit 34). As the later discussion illustrates one of the ingredients that the prosecution must prove beyond reasonable doubt before the defendant can be found guilty is that the alleged principal, Mr Rando, committed the offence under s 2.5(c). It is not a usual situation for a court to determine whether a principal has committed an offence beyond reasonable doubt in circumstances where the principal is not charged but rather called in the prosecution case against an alleged secondary participant.

3. It is instructive to first set out the key provisions of the Act and then an outline of the prosecution case. At the outset it must be said the case is also unusual in that many of the facts are not in dispute and the prosecution accepted in closing submissions that the alleged principal, Mr Rando, and the Managing Director of the defendant, Mr Staughton, were credible witnesses. However there is a significant dispute between the parties on the question of what precise ingredients the prosecution are required to prove beyond reasonable doubt against the defendant. This includes how the common law doctrine of accessorial liability of aid abet, counsel and procure applies to a charge laid under ss 2.5(c) and 13.9. It requires the court to determine the ingredients of the offence under s 2.5(c) that the prosecution must prove against the alleged principal. This requires the court to determine whether offence under s 2.5(c) is an offence of absolute or strict liability or what is described in the cases as a mens rea offence. That question inevitably raises a statutory construction question of whether the common law ground of exculpation of honest and reasonable mistake of fact has been excluded by the Act or whether it is available to the alleged principal Mr Rando. In this case counsel for the defendant also submitted that the defendant also had available the common law ground of exculpation as an alleged secondary participant. All these questions are significant legal issues in this case. The prosecutor informed the court that this is the first prosecution under the Act.

The statutory scheme

4. The offence provision s 2.5(c) of the Act relevantly provides:

A person who deals in or attempts to deal in a protected animal or protected plant is guilty of an offence.

Section 2.5(2) defines the expressions “deals in”. It provides:

“A person “deals in” animals or plants if the person— (a) buys or sells the animals or plants, or (b) trades in animals or plants, or (c) imports into, or exports from, New South Wales the animals or plants, or (d) possesses the animals or plants.

Section 2.5(5) further provides a non-exhaustive definition of the expressions “buy”, “sell”, “trade”, “import” or “export”. It provides those expressions can include:

(a) advertise or hold out as being prepared to buy, sell, trade, import or export animals or plants, and (b) deliver or receive animals or plants for the purpose of their purchase, sale, trade, import or export.

Section 2.5(5) further provides that the term “possess” has the same meaning as in section 7 of the Crimes Act 1900.

5. Section 13.9 is headed “Ancillary offences”. For present purposes it is enough to state the text of s 13.9(1)(b) which, as the later discussion shows, enacts as part of the statutory scheme the common law doctrine of accessorial liability. Section 13.9(1)(b) provides:

“ A person who aids, abets, counsels or procures another person to commit an offence under a provision of this Act or the regulations (or of the native vegetation legislation) is guilty of an offence against that provision and is liable, on conviction, to the same penalty applicable to an offence against that provision.

Section 2.10 is headed “Acts authorised by biodiversity conservation licence” and provides for a defence in the following terms:

“It is a defence to a prosecution for an offence under Division 1 if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, a biodiversity conservation licence under Division 3.”

Part 2 Division 3 of the Act makes provisions in respect of biodiversity conservation licences. Section 2.11 is headed “Licences to do acts that would otherwise constitute offence” and provides:

“The Environment Agency Head may grant a licence (a “biodiversity conservation licence”) to a person that authorises the doing of an act that would otherwise constitute an offence under Division 1 or under any other provision of this Act.”

Section 2.15 provides the Environment Agency Head may, by notice served on the holder of a biodiversity conservation licence, suspend or cancel the licence for any reason the Environment Agency Head thinks appropriate.

The agreed facts

6. The charge before the court is alleged against a company. As Hunt CJ at CL said in Holloway v Gilport Pty Ltd; Holloway v Zygaldo (1995) 79 A Crim R 76 at 89 with reference to well established authority:

“A company, of course, is an abstraction; it can only act through an agent who is a living person, so that the act of that person is the very act of the company itself”

7. In this case it was an agreed fact that Mr Edward Staughton was the Managing Director of the defendant and he was responsible for the conduct of the defendant. The prosecution tendered as part of this case a statement of agreed facts as follows:

Cool Off Pty Ltd (Cool Off) is a company. At the time of the alleged offending conduct Mr Edward Staughton was a director of Cool Off. Mr Edward Staughton is currently a Director of Cool Off. At the time of the allegedly offending conduct Mr Staughton was the Managing Director of Cool Off, and a director of Dried and True Pty Ltd and Vet’s All Natural. Cool Off’s principal place of business is in Howlong, NSW. Prior to and during December 2017, Mr Guy Rando owned and operated a Chiller Box based at Blanford near Scone NSW (registration N WS181-CP038) (Chiller Box). Between 16 and 30 December 2017, Mr Rando coordinated a number of licensed NSW Licenced Commercial Fauna Harvesters to shoot Kangaroos, amongst other animals, for consignment into the Chiller Box. The Harvesters shot and consigned a number of kangaroos into the Chiller Box. The harvesters included Craig Taylor, Peter O’Brien, Mason Wicks, Edward Taylor and Albert Walker, all of whom had harvesters licences.

Over the period of 16 –30 December 2017 all of the kangaroos in the Chiller Box were tagged in the leg and rectum, as required by the conditions of each of the harvesters’ licences. On or about 30 December 2017, a number of the tagged kangaroos were transported from the Chiller Box to a processing facility in Helensvale, Queensland. The consignment of the tagged kangaroos from the Chiller Box to the Helensvale facility occurred in by arrangement between Mr Staughton with the General Manager of the Helensvale facility Mr Daniel McGettigan. The Helensvale facility was previously operated by Millennium Pty Ltd (Millennium) and was only licensed to process meat for use in pet food.

As at 30 December 2017 Millennium’s operations were in the process of being, or had been, taken over by another Queensland Meat Processor Barco Qld Pty Ltd (Barco). Barco also operated a Kangaroo Processing Facility in Roma Queensland, which was licensed to process meat for human consumption. When the harvested kangaroos were received at the Helensvale facility, the prime cuts of meat (loin/backstraps ect) were removed from the carcasses and cold vacuum packed (“Cryovaced”). Barco retained some kangaroo meat for sale to Local Councils for use as wild dog baits. The balance of the carcasses was then processed into meat suitable for pet food on site at the Helensvale facility. The Cryovaced cuts were retained by Millennium and/or Barco for the purposes of separate sale.

In or around January 2018 the pet food meat processed from the harvested kangaroos was transported to Cool Off’s facility in Southern NSW for finishing into pet food products. Cool Off, through a related company, Dried and True, was invoiced by Barco for the supply of the processed kangaroo meat from the harvested kangaroos. As part of the invoicing arrangements with Millennium and Barco, Cool Off arranged for payments to be made directly to the harvesters for the harvested kangaroos and directly to Mr Rando. Cool Off made or directed the making of those payments on behalf of Millennium and/or Barco. Cool Off is a sizeable manufacturer with a history in the pet food manufacturing business.

The prosecution case

8. The prosecution case was in one sense straightforward. The prosecutor described the prosecution case as various times including in the following terms (T1of 4 February 2021):

The prosecution case is that a consignment of 166 kangaroos that had been shot and consigned into a chiller box owned by Mr Rando located in Blandford, New South Wales between 17 December 2017 and 30 December 2017. The harvested kangaroos that had been consigned into the chiller box were then supplied to a meat processing facility in Helensvale, Queensland to turn the kangaroo carcases into meat and the prosecution case is that the kangaroo meat was then supplied to the defendant for the defendant to use in its manufacture of pet food products. Mr Rando was paid a commission for his role in the transaction on or around 15 January 2018.

The prosecutor’s case is that Mr Rando’s conduct in that transaction amounts to him “trading” the kangaroos.

The prosecution’s case is that the defendant took steps to procure the offence by:

(1) entering into an arrangement with Mr Rando whereby Mr Rando would make available harvested kangaroos that could be supplied from his chiller box to accompany the facilities to process the harvested kangaroos into meat that Cool-Off could then turn into pet food products;

(2) Cool-Off and Mr Rando agreed that Mr Rando would supply a consignment of harvested kangaroos in December 2017;

(3) Mr Rando organised the harvesters to consign kangaroos into the chiller box in order to fulfil the supply agreement with Cool-Off in December 2017.

9. It must be emphasised that many of the events described in the agreed facts and in the prosecution case in relation to the harvesting and transporting of the kangaroos were not in dispute. I set out in extensive terms the defendant’s submissions in the course of the reasons.

The nature of the substantive offence

10. A necessary step in ascertaining what the prosecution must prove in this case first requires characterising the substantive offence of deal in protected animal under s 2.5 (c) in terms of the types of criminal liability referred to by the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523. The court referred to three types of offences: absolute liability offences, strict liability offences and what is sometimes described as mens rea offences where the prosecution must prove a state of mind such as intent, knowledge, or recklessness. See discussion of Hunt CJ at CL in Holloway v Gilport Pty Ltd; Holloway v Zygaldo (1995) 79 A Crim R 76 at 79. The accessorial liability of the defendant in this case cannot be understood without defining the kind of offence Parliament has created including the ingredients of the offence. It was not in dispute that the substantive offence was not one where the prosecution was required to prove mens rea on the part of the principal Mr Rando. Section 2.5(c) make no reference to intention, knowledge, or recklessness. The prosecution did not explicitly submit that the substantive offence was one of absolute liability. However it did submit that the offence under s 2.5(c) creates a statutory prohibition subject to the defence in s 2.10. The prosecution did not accept that it had to negative an honest and reasonable mistake of fact. The defendant on the other hand submitted that the offence is one of strict liability and that the common law ground of exculpation of honest and reasonable mistake was available not just for the principal Mr Rando but also for the defendant. I will return to the position of the defendant on this issue later in the judgment.

11. There is a fundamental doctrinal reason why the Court must characterise the offence under s 2.5(c) as a strict liability offence. The submission of the prosecution was made without reference to the High Court decision of CTM v The Queen (2008) 236 CLR 440. Gleeson CJ, Gummow, Crennan and Kiefel JJ in a joint judgment at [5] referred to the common law ground of exculpation of honest and reasonable mistake of fact as a “…a basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law.” The Court affirmed at [1]-[8] the common law ground of exculpation with reference to inter alia Cave J in R v Tolson (1889) 23 QBD 168 at 181. A person is not criminally liable for an act or omission if he or she holds an honest and reasonable belief in a state of facts, which, if true, would make the act or omission innocent. The word “innocent” in this context means not guilty of a criminal offence. The joint Justices held that there were limits to the application of the principle:

Honest and reasonable mistakes of fact do not cover the whole field of risk of criminal liability to which a person may be exposed by making an error. Mistakes of law are not a ground of exculpation: ignorance of the law is no excuse [See, for example, Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30].

12. It is important to emphasise that the High Court was not merely referring to a rule of statutory interpretation but a basic principle of criminal responsibility which the joint Justices said at [5]: “…may be excluded by a sufficiently plain manifestation of legislative intention.” And further at [35]:

“The courts should expect that, if Parliament intends to abrogate that principle, it will make its intention plain by express language or necessary implication.”

13. The Biodiversity Conservation Act 2016 under consideration makes no reference to the common law ground of exculpation being excluded. There is no “express language” or “sufficiently plain manifestation of legislative intention” to exclude this “basic legal principle of criminal responsibility”. And the prosecution did not submit that the common law principle should be excluded by what the High Court described as “necessary implication.” After consideration of the submissions of the parties and the text of the statute I find that the substantive offence under s 2.5(c) is one of strict liability and not one of absolute liability. The common law ground of exculpation of honest and reasonable mistake is available in answer to a charge under s 2.5(c) for the alleged principal Mr Rando. As the High Court affirmed in CTM v The Queen (2008) 236 CLR 440 at [35] the evidential burden of establishing such a belief is first placed upon an accused and if that evidential burden is satisfied then it is for the prosecution to negative it beyond reasonable doubt. Even if the Court had characterised the offence as one of absolute liability (where the common law ground of exculpation is not available) the law of accessorial liability applies whether an offence is one of absolute or strict liability: see Holloway v Gilport Pty Ltd; Holloway v Zygaldo (1995) 79 A Crim R 76 at 79. I now turn to the significant dispute between the parties as to the liability of the defendant as an accessory.

The criminal liability of the defendant

14. The prosecution allege the defendant is criminally liable on the basis of accessorial liability. Section 13.9 of the Act like s 351 of the Crimes Act is declaratory of the common law and merely restates the common law. It does not create a substantive offence. Gibbs CJ observed in Giorgianni v The Queen (1985) 156 CLR 473 at 480 that s 351 in this respect was similar to s 8 of the Accessories and Abettors Act, 1861 (U.K.). Section 13.9 includes the common law concept of secondary participation as an additional basis of criminal liability. Parliament has not defined what is meant by the terms “aid, abet, counsel and procure”. The answer to those questions is found not in the meaning of the words but in the common law.

15. For conceptual clarity it is important to note that the accessorial liability doctrine is to be distinguished from joint criminal enterprise/extended joint criminal enterprise doctrine. The High Court in both Clayton v The Queen [2006] HCA 58 and Miller v The Queen (2016) 259 CLR 380 at [33]-[34] made explicit that the related joint criminal enterprise/ extended joint criminal enterprise doctrine is a stand-alone doctrine and different from the accessorial liability doctrine. The leading case which explains the doctrine is Giorgianni v The Queen (1985) 156 CLR 473. That much was accepted by the parties.

Accessorial liability and strict liability offences

16. It is no easy task identifying what precisely the prosecution must prove in a case where it relies upon the accessorial liability doctrine and the substantive offence is one of strict liability. The Court of Criminal Appeal decision of R v Glennan (1970) 91 WN (NSW) 609 is good starting point in any discussion of accessorial liability and strict liability offences. I hasten to add that there were important parts of the decision which were disapproved by all members of the High Court in Giorgianni v The Queen (1985) 156 CLR 473 particularly on the question of what the prosecution must prove in a case against a secondary participant of a strict liability offence. However in R v Glennan the appellant had been convicted of aiding and abetting, counselling and procuring the strict liability offence of drive with more than the prescribed content of alcohol under s 4E(1) of the Motor Traffic Act 1909 (NSW). The appellant had been drinking for several hours in a hotel with a person called O’Rourke. Later he sat in the passenger’s seat when O’ Rourke drove home. The Court provided a helpful historical analysis. Chief Justice Herron said at 612:

The application of the doctrine of aiding and abetting to statutory offences involving no element of intention is not without difficulty, for that doctrine, as we have said, had its origin in common-law offences involving mens rea. Its purpose was to identify participants, other than the actual perpetrator, with the commission of the common law offence, so as to convict them of that offence. As the offence involved an element of intention it was necessary to show that they were participants and that, as such, they were parties to the intention which was an element in the offence. In the application of the doctrine to a statutory offence which does not involve an element of intention, it is necessary to establish participation by the defendant in the offence, but in circumstances in which the existence of an intention on the part of the perpetrator is immaterial to guilt.

17. The High Court in Giorgianni v The Queen disapproved of the decision of R v Glennan 15 years later in so far as it held that the law does not require actual knowledge on the part of the aider and abettor of all the essential facts of the offence. Further, the High Court rejected the proposition that a secondary participant can be liable if they are merely reckless as to whether certain facts existed which would constitute the commission of the offence. Part of the disapproved passage in R v Glennon at 614 is where Herron CJ said:

"It may, therefore, be concluded that, in the case of statutory offences in which intention is not a necessary element, the law does not require actual knowledge on the part of the aider and abettor of all the essential facts of the offence. The element of knowledge or intention required of an aider and abettor might perhaps be more accurately expressed by saying that it must be shown that he either knew or suspected the existence of facts which would constitute the commission of the offence or, perhaps, that he acted recklessly, not caring whether the facts existed or not.

18. The joint judgment of Wilson, Deane and Dawson JJ in Giorgianni v The Queen at 504 quoted a lengthier passage which included the above passage and strongly disapproved the approach taken by the Court of Criminal Appeal on the question of criminal liability of a secondary participant for a strict liability offence. The judgment sets out in clear terms what must be proved by the prosecution with reference to the English decisions of Johnson v Youden [1950] 1 KB 544 and Thomas v Lindop [1950] 1 All ER 966 in the following terms:

“…there is no basis upon which it can be said that where a statutory offence requires no proof of intent, it is unnecessary in order to establish secondary participation in the commission of that offence to prove actual knowledge of all the essential facts of the offence. Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of a criminal intent. Secondly, although it may be a proper inference from the fact that a person has deliberately abstained from making an inquiry about some matter that he knew of it and, perhaps, that he refrained from inquiry so that he could deny knowledge, it is nevertheless actual knowledge which must be proved and not knowledge which is imputed or presumed.

The third question raised by the passage which we have cited from Reg. v. Glennan is whether it is possible to aid, abet, counsel or procure the commission of an offence by acting recklessly. Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence. We have already referred to Johnson v. Youden and the other cases in which this point is made clearly. The same point was expressed differently but with equal clarity by Lord Goddard C.J. in Thomas v. Lindop (1950) 1 All ER 966, at p 968, where he said:

"More than once this court has pointed out that it is impossible to convict persons of aiding and abetting the commission of an offence unless they know the facts which must be proved to show that an offence has been committed ... It is, of course, not necessary to show that the person knew that it was an offence, because he cannot plead ignorance of the law, but where anyone is charged with aiding and abetting a person to commit an offence, it must, at least, be shown that he knew what that person was doing. A person who does not know of the acts which another person is doing cannot be charged with aiding and abetting him because he does not know that he is doing acts which amount to an offence."

19. Later in the joint judgment it is again made clear that recklessness on the part of the secondary participant has no place in the doctrine and further that the prosecution must prove intent based upon knowledge or belief of the necessary facts the basis of the charge. Their Honours said at p 506:

There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another.  And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. To the extent that Reg. v. Glennan suggests the contrary, it is not, in our view, in accordance with principle and does not correctly state the law.

20. Later at p 507 with reference to the English case of Carter v Mace [1954] 3 All ER 243 the Joint Justices said in relation to a scenario where the secondary participant “shuts his eyes to the obvious or refrains from making an enquiry”:

The fact of exposure to the obvious may warrant the inference of knowledge. The shutting of one's eyes to the obvious is not, however, an alternative to the actual knowledge which is required as the basis of intent to aid, abet, counsel or procure.

21. The joint judgment approved the English decision of Bateman v Evans (1964) 108 Sol Jo 522 where the defendant was convicted of aiding and abetting the commission of the offence of driving while disqualified. The defendant believed the driver's assurance that the latter had lodged an appeal against his disqualification and was permitted to drive. It was held that the conviction should be quashed upon the basis that the defendant had a bona fide belief that the driver was entitled to drive.

22. The other two Justices in Giorgianni v The Queen Gibbs CJ and Mason J took a similar approach to the joint judgment. Chief Justice Gibbs in Giorgianni v The Queen at p 487 held:

“…it is not correct to say that a person may be convicted of aiding, abetting, counselling or procuring the commission of an offence simply because he has acted recklessly.”

23. As mentioned earlier Gibbs CJ held that s 351 of the Crimes Act is declaratory of the common law doctrine. His Honour said that:

“the very words used in s.351, and the synonyms which express their meanings – eg. help, encourage, advise, persuade, induce, bring about by effort – indicate that a particular state of mind is essential before a person can become liable as a secondary party for the commission of the offence, even if the offence is one of strict liability.”[emphasis added]

And further at 484 “…the person charged as a secondary party should in some way be "linked in purpose with the person actually committing the crime ...": R v. Russell [1933] Vic Law Rp 7; (1933) VLR 59, at p 67, per Cussen ACJ.”

24. As to wilful blindness Gibbs CJ said at 482:

“One qualification that must be accepted is that wilful blindness, the deliberate shutting of one’s eyes to what is going on, is equivalent to knowledge.”

25. His Honour framed the liability of a secondary participant liability in the following terms:

“…the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. In other words, both knowledge of the circumstances and intention to aid, abet, counsel or procure are necessary to render a person liable as a secondary party…”

26. Gibbs CJ concluded at 488 :

“No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.”

27. Mason J, as he then was, in a separate judgment also followed the decision of Johnson v Youden: see p 494. In the context of a discussion concerning the liability of secondary participants for statutory offences with no mental element His Honour said at 494:

“In general, the absence of intention as an element of the substantive offence has not been regarded as obviating the necessity for knowledge on the part of the secondary party of the essential facts constituting the offence. The ‘link in purpose’ between the secondary party and the principal offender is not established where a person does something to bring about, or render more likely, the commission of an offence by another in circumstances in which, through ignorance of the facts, it appears to him to be an innocent act.”

28. In Giorgianni v The Queen the High Court made clear that the appellant could only be held liable if the prosecution proved, inter alia, that he knew the brakes of the truck driven by the principal were defective. A new trial was ordered because of the misdirection in relation to recklessness.

29. Other cases have dealt with the issue of the liability of an aider and abettor such as Holloway v Gilport Pty Ltd; Holloway v Zygaldo (1995) 79 A Crim R 76. Mr Zygaldo was charged with aid and abet, counsel and procure the company to commit the offence of engaging in conduct liable to mislead persons seeking employment. Hunt CJ at CL sitting alone in the summary jurisdiction of the Supreme Court held that the prosecution had to prove Mr Zygaldo was aware that the advertisements were liable to mislead the persons to which they were directed: Holloway v Gilport Pty Ltd; Holloway v Zygaldo at 90. This was in a context where the court had earlier held that the offence was one of absolute liability: Holloway v Gilport Pty Ltd; Holloway v Zygaldo at 79.

Knowledge of the defendant

30. During the course of closing submissions there was a discussion in relation to the defendant’s knowledge as it pertained to Mr Rando’s licence and conduct. The prosecutor made clear in submissions that it took the view that it was not necessary for the prosecution to prove that the defendant was aware of the limits of Mr Rando’s licence (T294 of 23 July 2021) and with the knowledge that what Mr Rando was doing amounted to an offence then intentionally assisted or encouraged him to commit the crime. The prosecutor submitted that all that was required to be proved was the facts which constituted the ingredients of the offence in s 2.5(c). The prosecutor accepted that there was “quite a bit of evidence about the licencing that was in place”. And it was not in dispute that the case concerns an industry where there is trading in kangaroos from time to time as part of the pet food industry.

31. The prosecution submission cannot be accepted. It must prove more than what is stated at [8]. The submission is directly inconsistent with the High Court decision of Giorgianni v The Queen and the decision of Holloway v Gilport Pty Ltd; Holloway v Zygaldo (1995) 79 A Crim R 76 cited earlier. It is necessary for the prosecution to prove to the criminal standard that the defendant knew that what the principal Mr Rando was doing was illegal and further with that knowledge procured the commission of the offence. It is enough to quote the joint Justices in Giorgianni v The Queen that “The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence It is also worth repeating Lord Goddard CJ in Thomas v. Lindop (1950) 1 All ER 966 at 968:

“…where anyone is charged with aiding and abetting a person to commit an offence, it must, at least, be shown that he knew what that person was doing. A person who does not know of the acts which another person is doing cannot be charged with aiding and abetting him because he does not know that he is doing acts which amount to an offence”

The relevance of the defence in s 2.10 to the defendant

32. Section 2.10 provides that it is a defence to a prosecution for an offence under Div 1 if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, a biodiversity conservation licence under Division 3. It is the position of the prosecution that s 2.5(c) creates a prohibition and s 2.10 is not an element of the offence. That is, it is not for the prosecution to prove there was no licence. Section 2.10 requires the person charged to establish “that the act that constitutes the offence was authorised.” In this case it submits that if Mr Rando was mistaken as to whether he was permitted to do what he did in relation to the substantive offence it was a mistake of law. Mr Rando could not establish what is referred to in s 2.10. The prosecutor submitted that all that was needed to be shown was at the secondary participant knew the facts and circumstances surrounding the dealing in the protected fauna. The defendant on the other hand submits that Mr Rando had an honest and reasonable belief that he could arrange the harvest of the kangaroos under his licence with Macro.

The licence of the principal permitted the conduct

33. The defendant submits that it cannot be found guilty on the basis that the prosecution cannot prove beyond reasonable doubt that the alleged principal Mr Rando committed an offence under s 2.5(c). This is because section 2.10 provides that a person has not committed an offence if the conduct comes within terms of the licence. And if that argument fails it was submitted that Mr Rando had an honest and reasonable belief that he could do what is alleged to be illegal.

34. In order to understand the first submission it is necessary to set out the precise terms of the licence question. Exhibit 9 in the proceedings contained a copy of the biodiversity conservation licence issued by the Office of Environment and Heritage NSW held by the alleged principal Mr Rando. The licence was issued under the National Parks and Wildlife Act 1974 and it was accepted by the parties that it was later incorporated into the provisions of the Biodiversity Conservation Act. The document names the alleged principal Mr Guy Rando followed by the text “Certificate of Registration of Premise (Chiller) of FAUNA Dealer (KANGAROO) WHOLESALER.” Below these headings the following text appears:

This is to certify the premises situated at 1 Surrey Street (Property No: 4800350) operated by Mr Guy Anthony Rando for and on behalf of MACRO INVESTMENTS PTY LTD are hereby registered as the premises of a licensed Fauna Dealer (Kangaroo) to deal as a FAUNA dealer (KANGAROO) WHOLESALER in accordance with the provisions of the above Act. [Emphasis added]

35. The licence was issued 1 January 2017 and has an expiry date of 31^st of December 2017. The licence is duly signed by an authorised officer Mr Wolter. The document contains seven Conditions of Registration. I have underlined the expression “for and on behalf of” because this was a point of contention between the parties. It is the prosecution case that Mr Rando in his dealings with the defendant was not acting for and on behalf of Macro Investments. And if he honestly thought he could that was a mistake of law for which there is no defence. For that reason he cannot rely upon section 2.10 in answer to a charge under s 2.5(c).

36. The defendant submitted that there was an alternative construction of the licence which exculpated Mr Rando. It was submitted that in the charge period from 17 December 2017 to 24^th of January 2018 the alleged principal Mr Rando was personally authorised to do what he did in relation to the consignment of the kangaroo carcasses subject of the charge because he held a biodiversity conservation licence in the form of Exhibit 9 to operate his chiller box which allowed him to receive carcasses into it and dispatch them from it. It was submitted that the expression used in the licence of “for and on behalf of Macro Investments” did not limit Mr Rando to providing carcasses to Macro. The submission was that the expression “for and on behalf” should be understood to mean that the actions of Mr Rando in the use of the chiller box are deemed to be for and on behalf of Macro Investments. This interpretation placed the onus on Macro Investments to ensure its chiller boxes complied with applicable standards and that it was the head licence holder deemed to be ultimately responsible for any breach. In short Macro Investments was responsible for the chiller box and its operations. The defendant relies upon the evidence of Mr Stephen Walter who was a former senior officer of the Office of Environment and Heritage when he was asked what he understood the expression “for and on behalf of”. Mr Wolter testified:

..the fauna dealer is a fauna dealer wholesaler who’s licensed that premise is responsible for what occurs at that premise. The manager… Of the box is just a person who manages the box and its consignments in and consignments out. Well, for responsibility of what happens that side is the responsibility of the fauna dealer (T37 of 5 February 2021)

37. The defendant also relies upon the evidence of Garth Coe an authorised officer with the Department of Planning, Industry and environment, Compliance Unit. Mr Coe testified that quite apart from Mr Rando being held responsible for his conduct :

“…when every single Harvester as well is Mr Rando is acting as a unlicensed animal dealer because it’s a Macro registered chiller box, Macro Meats commits an offence. Not Mr Rando.”

38. It was submitted that the use of the Chiller Box by Mr Rando to supply the defendant was deemed by the licence to be for and on behalf of Macro whilst the licence was in force. The defendant submitted that the authority to do so was only revoked after the events in question that subsequent conduct of Macro cannot remove the fact that Mr Rando had authority to deal with the carcasses and dispatch them to Millennium.

The principal’s honest and reasonable belief

39. The defendant also submits that Mr Rando had an honest reasonable belief that he had a licence authorising him to deal with the kangaroo carcasses alleged particularly dispatching the carcasses to Emerald Logistics and then to Millennium Pet Foods. The defendant relies upon the evidence of Mr Rando that when he discovered the consignment was to be sent to Millennium pet foods instead of a processor in NSW Vasik he was unperturbed and simply confirmed that Millennium was licensed and made a contemporaneous note (see Exhibit 12) when he asked for the licence details of Millennium. And he also recorded the National Parks Licence number provided to him by Millennium on his Kangaroo Management National Parks and Wildlife Return (Exhibit 7). In short Mr Rando had a honest reasonable belief that Millennium had a licence and the mistake as to the existence of a licence authorising Mr Rando to give the carcasses was a mistake of fact or at least one of mixed fact and law. The defendant relies on the Queensland decision of R v Sheehan [1999] QCA 461.

40. The defendant also relies upon the testimony of Mr Rando to support a conclusion that Mr Rando honestly reasonably believed he was authorised to do what he did. Mr Rando gave evidence that he was a prominent local business person who valued his reputation and would not knowingly breach the law. (Transcript 19 July 2021). He testified that he believed he was operating his chiller box premises in accordance with the biodiversity conservation licence referred to in Exhibit 9. Mr Rando was open and honest about the consignment. This is confirmed by the evidence of Ms Feltus. In addition Mr Edward Staughton of the defendant gave evidence that Mr Rando told him that he thought he was operating under Macro’s licence. The conclusion that Mr Rando had an honest and reasonable belief that his actions being authorised by his licence is also supported by his decision to record explicitly in his records described as National Parks and Wildlife Chiller Returns in regard to the consignment dated 30 December 2017 to Millennium Pet Foods. This is said to be evidence that he had nothing to hide when submitting his returns.

41. The defendant also relies upon the evidence of Mr Farr that Mr Rando had not ever done anything underhand or contrary to the law that he was an excellent chiller box operator with an impeccable reputation in the industry as an experienced chiller box operator. (Transcript 20 July 2021).

The defendant and the common law ground of exculpation

42. The defendant submitted that the common law ground of exculpation was available not just to the principal but also available to the defendant in answer to the allegation that the defendant was a secondary participant to a crime committed by the principal Mr Rando. The defendant submits at paragraph [80]-[81] of the written submissions that it should be found not guilty on the basis of an honest and reasonable mistake of fact. Mr Staughton, it was submitted, was the directing mind of the defendant and he honestly believed that Mr Rando had a co-extensive licence which permitted the consignment of the kangaroos. The defendant further submitted that it had met its evidentiary onus by the evidence of Mr Staughton and therefore in accordance with the High Court decision of CTM v The Queen (2008) 236 CLR 440 the prosecution had to negative this ground of exculpation to the criminal standard of proof.

43. No authority was cited in support of the legal proposition that a secondary participant can rely upon a Proudman v Dayman defence. The recent Court of Criminal Appeal decisions of Decision Restricted [2019] NSWCCA 226 and Blundell v R [2019] NSWCCA 3 which contain elaborate discussions of the doctrine of accessorial liability do not make any reference to such a proposition. It is accepted that each of those decisions involved consideration of the liability of a secondary participant where the prosecution was also seeking to prove the principal had committed a mens rea offence. In the Giorgianni v The Queen decision itself only Chief Justice Gibbs made reference to the decision of Proudman v Dayman at 484 where His Honour said:

It is necessary to refer to two other lines of cases, which may cause confusion unless it is recognized that they are not concerned with the liability of persons who have aided, abetted, counselled or procured the commission of a crime. First, there are cases in which the court has considered the effect of statutes which make it an offence to permit a particular state of things, e.g. to permit any person not being the holder of a licence to drive a motor vehicle, or to permit a person to use a vehicle which is uninsured. It has been held that knowledge is not an ingredient of such offences, although honest and reasonable mistake of fact will exculpate the accused: see, e.g., Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536; cf. Bateman v. Evans (1964) 108 Sol Jo 522. A second class of case is that in which the statute in question casts an absolute duty upon a principal who is accordingly made responsible for the acts of his servants. Quality Dairies (York) Ltd. v. Pedley (1952) 1 KB 275 is such a case. Decisions that fall within either of those classes have no bearing on the present question. [Emphasis added]

44. The last statement suggests that in this case the court should focus only on whether the prosecution have proved the ingredients of criminal liability for a secondary participant. Some of the cases referred to by Gibbs CJ were about licences or erroneous certificates held by the principal. But there was no reference to Proudman v Dayman in terms of the liability of the secondary participant. The issue was cast not in terms of an honest and reasonable belief but rather in terms of whether the prosecution had proved particular knowledge of the secondary participant about the licence. For example Gibbs CJ referred with approval to the case of Smith v Jenner (1968) Crim.LR 99 where a driving instructor supervised the driving of a learner whose provisional licence had expired. The instructor was not aware that the licence had expired. As Gibbs CJ described the result of the case:

The instructor was convicted of aiding and abetting the learner to drive a car without a licence. A Divisional Court which allowed his appeal held that aiding and abetting involved knowledge of the facts.

45. In this case the court will apply the High Court decision of Giorgianni v The Queen on its terms as set out in the extensive discussion above. It will not approach the position of the defendant on the basis that it had an available defence of honest and reasonable belief that the principal Mr Rando was licenced to do what was alleged. Where the prosecution rely upon the common law accessorial doctrine a different and higher threshold of proof must be met. It is a distraction to ask the prosecutor to negative an honest and reasonable mistake of fact. The law requires the prosecutor to do much more than that. This conclusion does not mean that the evidence of Mr Staughton’s state of mind as the Managing Director of the defendant at the time of the offence alleged is irrelevant. There is no question that it is relevant to the issue of intention and knowledge as referred to by the High Court in Giorgianni v The Queen.

46. From the foregoing analysis of Giorgianni v The Queen and with reference to Stokes and Difford v R (1990) 51 A Crim R 25 at 37 (notwithstanding that case involved an offence of mens rea) in order to prove that the defendant procured the commission of the offence of deal in a protected animal the prosecution must prove beyond reasonable doubt each of the following three things:

• Mr Rando as principal committed the offence of deal in a protected animal. The prosecution must negative any honest and reasonable mistake of fact raised by Mr Rando in his evidence beyond reasonable doubt.

• The defendant knew all of the essential facts or circumstances which must be established in order to show that the crime was committed by Mr Rando as principal. More particularly, that the defendant knew that what the principal Mr Rando was doing was illegal. As the joint Justices put it in Giorgianni v The Queen: “the shutting of one's eyes to the obvious is not…an alternative to the actual knowledge”. It is not enough if the prosecution prove that the defendant was merely reckless. And “Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent.”

• The defendant with that knowledge of what the principal Mr Rando was doing intentionally assisted or encouraged him to commit the crime. In this case the prosecution must prove the defendant did this by procuring the offence of deal in protected animal.

47. There are important additional directions that must be applied and referred to in De Silva v The Queen [2019] HCA 48. In this case Mr Staughton as the Managing Director of the defendant gave two recorded interviews with investigators and also gave evidence in court. If the Court believes the evidence and the account in his interviews - or if court considers that it might be true - it must find the defendant not guilty. Even if the court does not believe his account the court should put it to one side. The question will remain whether the prosecution, upon the basis of evidence that the court does accept, proved the defendant’s guilt beyond reasonable doubt.

Evidence of Mr Staughton on 22 July 2021

48. Mr Staughton testified the defendant commenced operations 40 years ago as a raw ingredient collector and supplier of pet food. At the time of the alleged offence the defendant had numerous principal suppliers which included Macro Meats, Game Meat processing and Millennium. The company was purchasing the processed manufactured meat from the kangaroo processing plants. As to the arrangement with Mr Rando Mr Staughton testified that it was Mr Rando who suggested the trial and as the licensed box operator and he was to coordinate the harvesters to bring the animals into the chiller. This would involve Mr Rando using his chiller box processes of temperature control, cleaning, and to load the product to the transport company. Mr Staughton testified that:

“Mr Rando’s role and responsibility ended once the animals were loaded into the transport truck and it was Millennium that organised the delivery of the product down to Cool‑Off.”

49. In examination in chief Mr Staughton was emphatic that he would not have gone ahead with the trial proposed by Mr Rando if there had been any legal issues. Below are some passages from the evidence of Mr Staughton. At page 250 of the transcript he testified:

From my understanding of Mr Rando, he was very open and said he owned and operated his own chiller box and he paid all the rent and paid all the power.  He was operating on a fauna dealer licence under Macro's licence and his registered box, with all the registered harvesters.

50. And later he elaborated:

I understood Guy Rando to run a very high integrity and a very good operation and at no time did he give any indication that he was concerned about the proposed trial that he was proposing, in terms of a regulatory - any issues.

Q.  If you had have had any concerns about such matters, what would have been your attitude in response to that?

A.  We absolutely would not have gone ahead with the trial if there had been any regulatory issues, and that's any regulatory issues with Guy Rando's regulatory position or if we had any idea that there was any issues with the Millennium licensing arrangement.  We relied on Millennium's - on Daniel McGettigan's statements, and when we requested could they process this product that we'd identified, and they said, "yes," and then organised everything, we took it at their word that they had licences to do so.  If we'd had any indication that either Guy Rando's operation or Millennium's operation wasn't fit to do this in a legal manner, there was - we wouldn't have proceeded with the trial in the manner that it proceeded.  We had a reputation to uphold.

Our position in the industry has been one of raising the bar of expectations of the pet food industry, of our quality systems, of our regulatory engagement with all the different authorities, being it food authority, being it EPA, be it all the departments.  We really tried to raise the bar, and if we'd had any indication that this was not a fully honest and open transaction, we would not have been a part of it.  And on that note, I had no indication or reason to believe at all that Guy Rando had any reason to think there was anything wrong with conducting the trial at any time either.

51. Mr Staughton testified at the time of the alleged offence he believed that Millennium was licenced to process the consignment of kangaroo. He had visited Millennium’s premises in January 2018 and he had sighted a European Union certificate of registration. That evidence was not contested.

52. As was stated from the outset the prosecution accepted that Mr Staughton was a credible witness. The court accepts that he gave truthful answers about the defendant company, what it knew about Mr Rando and also its dealings with Mr Rando including the trial arrangement. I found Mr Staughton to be a reliable witness and his credibility was not impugned. The evidence relied upon by the prosecution fails to prove to the criminal standard that the defendant knew that Mr Rando did not have legal authority to do what he did and with that knowledge proceeded to procure the forbidden result. The court accepts Mr Staughton’s account of the defendant’s knowledge of Mr Rando’s conduct at the relevant time. This is a case where the prosecution was not required to prove any mental state on the part of the principal under s 2.5(c) but the prosecution has not met its burden of proving intention on the part of a secondary participant. Adopting the words of the High Court in Giorgianni v The Queen the person alleged to be a secondary participant lacked knowledge that the principal offender was doing something which amounts to an offence.

53. Given that the court has found that an essential ingredient of the charge has not been proved beyond reasonable doubt it is not necessary for the court to determine whether Mr Rando as principal committed an offence under s 2.5(c). As has been stated repeatedly this is a necessary ingredient the prosecution must prove to the criminal standard of proof. It is not necessary for the court to determine whether the Macro licence permitted him to do what he did or whether the prosecution have negatived to the criminal standard of proof that he made an honest and reasonable mistake of fact. Again it is a novel situation for a court to determine whether a principal has committed an offence beyond reasonable doubt in circumstances where the principal is not charged, the principal is called in the prosecution case and denies the charge in the trial of the alleged secondary participant.

54. For these reasons I find the defendant not guilty and I dismiss the charge.

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Decision last updated: 29 November 2021