Director-General Department of Land and Water Conservation v Jackson

[2003] NSWLEC 199

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Land and Environment Court

of New South Wales

CITATION:

Director-General Department of Land and Water Conservation v Jackson & Ors [2003] NSWLEC 199

PARTIES:

PROSECUTOR:
Director-General Department of Land and Water Conservation

FIRST DEFENDANT:
Bruce Gordon Jackson

SECOND DEFENDANT:
William Byron Findley

THIRD DEFENDANT:
Budvalt Pty Limited
ACN 003 989 268

FILE NUMBER(S):

50014; 50015; 50016; 50017; 50018; 50019 of 2003

CORAM:

Bignold J

KEY ISSUES:

Question of Law :- Reference to Court of Criminal Appeal

LEGISLATION CITED:

Criminal Appeal Act 1912, s5F(3)(b), s5AE(1)
Native Vegetation Conservation Act 1997, s17

CASES CITED:

Director-General Department Land and Water Conservation v Jackson & Ors (2003) 125 LGERA 304

DATES OF HEARING:

01/09/2003

DATE OF JUDGMENT:

09/02/2003

LEGAL REPRESENTATIVES:

PROSECUTOR:
J Kelly (barrister)
SOLICITORS:
State Crown Solicitor

DEFENDANT:
J Ayling SC (barrister)
SOLICITORS:
Kemp Strang

JUDGMENT:

- 1 -

IN THE LAND AND 50014- 50019 of 2002

ENVIRONMENT COURT Bignold J

OF NEW SOUTH WALES 2 SEPTEMBER 2003

DIRECTOR-GENERAL DEPARTMENT LAND AND WATER CONSERVATION

Prosecutor
v

JACKSON & OTHERS

Defendants

SUPPLEMENTARY JUDGMENT

1 On 31 March 2003 I published reasons for my determinations of two questions of law which the parties jointly had requested be determined in advance of the trial of charges laid against the Defendants of offences against s17 of the Native Vegetation Conservation Act 1997 – see (2003) 125 LGERA 304.

2 In the event the parties each being dissatisfied with my determinations took action pursuant to the Criminal Appeal Act 1912 in respect of those determinations with the consequence that the trial did not proceed on the allocated dates in May 2003.

3 The parties have recently approached me in their mutual attempt to ensure that their respective actions taken pursuant to the Criminal Appeal Act are properly founded in the sense that the jurisdiction of the Court of Criminal Appeal be appropriately invoked. To this end the parties have mutually requested me to take each of the following actions pursuant to the Criminal Appeal Act:-

(i) to issue a certificate pursuant to s5F(3)(b) that my judgment or decision (determining the questions of law ) is a proper one for determination by the Court of Criminal Appeal; and

(ii) to submit to the Court of Criminal Appeal pursuant to s5AE(1) the two questions of law, the subject of my determinations, upon the basis of the agreed statement of facts that was tendered as Exhibit 1 in the proceedings before me.

4 I am of the opinion that I should take the action jointly requested of me by the parties to assist them in their proceedings in the Court of Criminal Appeal. I of course appreciate that the actions requested of me are strictly alternative means of bringing the matter to the Court of Criminal Appeal just as they are alternatives to the grant by the Court of Criminal Appeal of leave to appeal pursuant to s5F(3)(a) (upon which the parties originally founded their actions).

5 The parties’ Counsel have informed me that the case has now been fully argued in the Court of Criminal Appeal. In responding to the parties’ joint request I have done so solely to facilitate the proceedings in the Court of Criminal Appeal.

6 Accordingly I take the respective actions pursuant to s5AE(1) and s5F(3)(b) of the Criminal Appeal Act 1912 as recorded in the documents annexed hereto and marked ‘A’ and ‘B’ respectively.

I HEREBY CERTIFY THAT THE PRECEDING 6 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.

Associate

ANNEXURE ‘A’

Reference of Questions of Law Pursuant to s5AE(1) of the

Criminal Appeal Act 1912

Pursuant to s5AE(1) of the Criminal Appeal Act 1912 I submit to the Court of Criminal Appeal for determination the two questions of law referred to in paragraph 2 of my reasons for judgment dated 31 March 2003 (see (2003) 125 LGERA 304 at 306) upon the basis of the Statement of Agreed Facts (being Exhibit 1 in the proceedings) being the facts fully recited in paragraph 35 of my reasons for judgment.

ANNEXURE ‘B’

Criminal Appeal Act 1912

In the LAND AND ENVIRONMENT COURT held at Sydney on 14 March 2003 and reasons for Judgment delivered on 31 March 2003 as reported in (2003) 125 LGERA 304.

Judge’s Certificate (s 5F(3)(b))

I hereby certify that the abovementioned judgment is a proper one for

determination on appeal by the Court of Criminal Appeal upon the following

grounds:

(i) the judgment determined two preliminary questions of law raised by the parties to pending class 5 proceedings upon which the parties mutually sought determinations in advance of the trial fro reasons of cost and time resource efficiency; and

(ii) the questions of law are important questions in the interpretation of the Native Vegetation Conservation Act 1997 and are apt to have general and broad application.

Judge.

The 2nd day of September 2003