Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4)

[2011] NSWLEC 227

Land and Environment Court

New South Wales

Medium Neutral Citation:	Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227
Hearing dates:	14 March 2011 - 1 April 2011
Decision date:	01 December 2011
Jurisdiction:	Class 5
Before:	Pain J
Decision:	The Prosecutor has not proved beyond reasonable doubt all the necessary elements of the clearing of habitat offences in relation to all of the defendants. It follows that they are not guilty of these offences and these charges should be dismissed. The same finding also applies to the EPA Act charges which should also be dismissed against all defendants. The Prosecutor wishes to have the opportunity to consider whether it wishes to state a case before entry of formal orders and seeks a week to consider its position, which I allow.
Catchwords:	PROSECUTION - offences of damage to habitats of threatened ecological community, threatened fish species - whether presence of fish habitat established - whether damage to fish habitats and ecological community resulting from snag removal established - impact of absence of material witnesses in prosecutor's case - effect of admissions of defendants in records of interview PROSECUTION - breach of development consent condition by removal of snags from river - whether development consent in force during offences period - whether notification of council grant of development consent valid PROSECUTION - whether knowledge of existence of habitat established - statutory presumption of knowledge not available
Legislation Cited:	Corowa Local Environmental Plan 1989 Criminal Code 1995 (Cth) Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 18, s 486F Environmental Planning and Assessment Act 1979 s 76A, s 80, s 81, s 83(1), s 96, s 101, s 125 Environmental Planning and Assessment Regulation 2000 cl 100, cl 102 Evidence Act 1995 s 128, s 136, s 184 Fisheries Management Act 1994 s 4, Pt 7A s 220A, s 220B, s 220C, s 220D, s 220F, s 220FB, s 220FC, s 220ZD, Sch 4, Sch 4A, Sch 5, Sch 6 Fisheries Management Amendment Act 1997 Sch 1 Local Government Act 1993 s 372(1), s 377 National Parks and Wildlife Act 1974 s 118D(1) Native Vegetation Act 2003 s 12(2), s 44
Cases Cited:	ABC Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171; 161 A Crim R 250 Alphacell Ltd v Woodward [1972] AC 824 Carriage v Stockland Development Pty Ltd (No 10) [2005] NSWLEC 272 Coffs Harbour City Council v Hickey [2004] NSWLEC 531 Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366 Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225 Director-General, Department of the Environment and Climate Change v Walker Corporation Pty Ltd (No 2) [2010] NSWLEC 73 Donnelly v Delta Gold Pty Ltd [2001] NSWLEC 55; (2001) 113 LGERA 34 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Limited [2003] NSWLEC 70; (2003) 128 LGERA 240 Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd [2010] NSWLEC 144; (2010) 179 LGERA 386 Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406 Jones v Dunkel (1959) 101 CLR 298 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Krakowski v Eurolynx Properties Limited [1995] HCA 68; (1995) 183 CLR 563 Lennard's Carrying Co Limited v Asiatic Petroleum Co Limited [1915] AC 705 Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 Majury v Sunbeam Corporation Ltd (1974) 1 NSWLR 659 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 168 LGERA 59 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 State Pollution Control Commission v Australian Iron & Steel Ltd (1992) 74 LGRA 387 Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550 Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657
Texts Cited:	Criminal Trial Courts Bench Book, Judicial Commission of New South Wales, Sydney, 2002 Macquarie Dictionary, 5th ed (2009) Macquarie Dictionary Publishers Pty Ltd (electronic resource) S Odgers, Uniform Evidence Law, 9th ed (2010) Thomson Reuters D Ross QC, Ross on Crime, 5th ed (2011) Thomson Reuters ABC of Evidence, LexisNexis Australia (electronic resource)
Category:	Principal judgment
Parties:	Director-General, NSW Department of Industry & Investment (Prosecutor) Mato Investments Pty Ltd (First Defendant) Ian Charles Bennett (Second Defendant) Dzeladin Ceman (Third Defendant) James Lawrence Coomes (Fourth Defendant)
Representation:	Mr I Lloyd QC with Mr T Howard (Prosecutor) Mr J Webster SC with Ms M McMahon (First and Third Defendants) Ms A Pearman (Second Defendant) Mr C Ireland (Fourth Defendant) Crown Solicitor's Office (Prosecutor) Neville & Hourn Legal (First, Second and Third Defendants) Moray & Agnew (Fourth Defendant)
File Number(s):	09/50052-5, 09/50056-9, 09/50060-3, 09/50064-7

Judgment

Introduction

1. The four defendants are all charged with three offences each under the Fisheries Management Act 1994 (the FM Act) relating to destruction of habitat of an endangered species of fish, a vulnerable species of fish and an endangered ecological community. All defendants are also charged with an offence under s 125 of the Environmental Planning and Assessment Act 1979 (the EPA Act) of carrying out development forbidden by s 76A(1)(b) of the EPA Act. The Second Defendant (Mr Bennett) and the Third Defendant (Mr Ceman) are directors of the First Defendant, Mato Investments Pty Ltd (Mato). The Fourth Defendant (Mr Coomes) was an independent consultant employed as a project manager by Mato. The defendants have pleaded not guilty to all of the charges. Mato and Mr Ceman were represented by the same counsel. Mr Bennett and Mr Coomes were each separately represented. All the defendants have been tried together and to the extent that evidence was common to all charges that common evidence applied to each of the defendants.

Cause damage to habitat of ecological community (Mato 09/50052, Bennett 09/50066, Ceman 09/50059, Coomes 09/50062)

1. The defendants are charged with contravening s 220ZD(1) of the FM Act in that they did by an act or omission cause damage to habitat (other than critical habitat) of a threatened ecological community knowing that the area concerned was habitat of that kind. This threatened ecological community was an endangered ecological community listed in Pt 3 of Sch 4 to the FM Act and described as the "Aquatic ecological community in the natural drainage system of the lower Murray River catchment (as described in the recommendation of the Fisheries Scientific Committee to list the ecological community)" (the lower Murray EEC). The waterways in, on or adjacent to the property known as "Kunanadgee" at Lot 4 in DP 753732 including the Murray River, an unnamed creek on the property and the Big River Billabong comprised habitat for the lower Murray EEC and this habitat was damaged by the removal of snags and woody debris during the period 5 October 2007 to 16 October 2007.

1. Mato was at all relevant times the proprietor of Kunanadgee and was constructing an eco-tourist resort on Kunanadgee pursuant to a development consent granted by Corowa Shire Council (the Council) in relation to development application (DA) 2007/56. The summons for Mato states as follows:

The defendant through its directors, Ian Bennett and Dzeladin Ceman and through the Project Manager, Jim Coombs instructed a contractor, Michael Hanger, to carry out works on the land, which included the removal of snags and woody debris from the said waterways. Workers retained by Michael, namely Adrian Hanger, Timothy Root and Jeffrey Damen, removed the snags and woody debris from the said waterways between about 5 October 2007 and 16 October 2007 pursuant to the defendant's instructions.

The removal of the snags and woody debris from the said waterways contravened condition 16 of the Development Consent.

1. Mr Bennett and Mr Ceman are each separately charged as directors of Mato with otherwise identical particulars. Mr Coomes is separately charged as project manager for the eco-tourist resort development who is alleged to have instructed the contractor Mr Michael Hanger to carry out works on the land.

Cause damage to any habitat of threatened fish species (trout cod) (Mato 09/50053, Bennett 09/50065, Ceman 09/50058, Coomes 09/50061)

1. The defendants are charged with contravening s 220ZD(1) of the FM Act in that they did by an act or omission cause damage to any habitat (other than critical habitat) of a threatened species knowing that the area concerned was habitat of that kind. This threatened species, trout cod, is listed as an endangered species under Pt 1 of Sch 4 to the FM Act. The waterways, damage to habitat and the acts (not omissions) alleged in the particulars to this charge, are the same as specified in the first offence above.

Cause damage to any habitat of threatened fish species (silver perch) (Mato 09/50055, Bennett 09/50064, Ceman 09/50056, Coomes 09/50060)

1. The defendants are charged with contravening s 220ZD(1) of the FM Act in that they did by an act or omission cause damage to any habitat (other than critical habitat) of a threatened species knowing that the area concerned was habitat of that kind. This threatened species, silver perch, is listed as a vulnerable species under Pt 1 of Sch 4 of the FM Act. The waterways, damage to habitat and the acts (not omissions) alleged in the particulars to this charge, are the same as specified in the first offence above.

Fisheries Management Act 1994

1. The relevant sections of the FM Act follow.

Section 4 "Definitions" defines habitat as:

any area occupied, or periodically or occasionally occupied, by fish or marine vegetation (or both), and includes any biotic or abiotic component.

1. Part 7A "Threatened species conservation", at s 220A outlines the objects of this part of the FM Act:

(a) to conserve biological diversity of fish and marine vegetation and promote ecologically sustainable development and activities,

(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities of fish and marine vegetation,

(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered,

(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities of fish and marine vegetation,

(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities of fish and marine vegetation is properly assessed,

(f) to encourage the conservation of threatened species, populations and ecological communities of fish and marine vegetation by the adoption of measures involving co-operative management.

1. Section 220B "Definitions" relevantly defines the following terms:

ecological community means an assemblage of species of fish or marine vegetation (or both) occupying a particular area.

endangered ecological community means an ecological community specified in Part 3 of Schedule 4.

endangered species means a species specified in Part 1 of Schedule 4.

endangered species, populations and ecological communities means species, populations and ecological communities specified in Schedule 4 and endangered species, population or ecological community means a species, population or ecological community respectively specified in that Schedule.

key threatening process means a threatening process specified in Schedule 6.

threatened ecological community means an ecological community specified in Part 3 of Schedule 4, Part 2 of Schedule 4A or Part 2 of Schedule 5.

threatened species means a species specified in Part 1 (Endangered species) or 4 (Species presumed extinct) of Schedule 4, Part 1 (Critically endangered species) of Schedule 4A or Part 1 (Vulnerable species) of Schedule 5.

threatened species, populations and ecological communities means species, populations and ecological communities specified in Schedules 4, 4A and 5 and threatened species, population or ecological community means a species, population or ecological community respectively specified in any of those Schedules.

threatening process means a process that threatens, or that may threaten, the survival or evolutionary development of species, populations or ecological communities of fish or marine vegetation.

vulnerable ecological community means an ecological community specified in Part 2 of Schedule 5.

vulnerable species means a species specified in Part 1 of Schedule 5.

1. The definition of threatened species, the subject of eight of the offences, includes endangered and vulnerable species. Part 7A Div 2 s 220C provides for the listing of endangered species and endangered ecological communities and key threatening processes in the schedules to the FM Act. The Fisheries Scientific Committee (the Committee) is constituted under Div 9. It can amend the lists provided for in s 220C under s 220D. "Threatened species, populations and ecological community" is defined in s 220B as those specified in any of Sch 4, 4A and 5. Under s 220F(3) a species is eligible to be listed as endangered if in the Committee's opinion:

(a) it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and

(b) it is not eligible to be listed as a critically endangered species.

1. Under s 220FB(3) an ecological community is eligible to be listed as an endangered ecological community if in the Committee's opinion:

(a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and

(b) it is not eligible to be listed as an endangered or critically endangered ecological community.

Schedule 4 "Endangered species, populations and ecological communities" relevantly identifies the following:

Part 1 Endangered species

...

Maccullochella macquariensis (Cuvier) trout cod

Part 3 Endangered ecological communities

Aquatic ecological community in the natural drainage system of the lower Murray River catchment (as described in the recommendation of the Fisheries Scientific Committee to list the ecological community)

...

1. Under s 220F(4) a species can be listed as vulnerable if in the Committee's opinion:

(a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and

(b) it is not eligible to be listed as an endangered or critically endangered species.

Schedule 5 "Vulnerable species and ecological communities" relevantly identifies the following:

Part 1 Vulnerable species

...

Fish

Bidyanus bidyanus (Mitchell, 1838) silver perch

1. Under s 220FC the Committee can list a key threatening process if in the Committee's opinion it adversely affects threatened species, populations or ecological communities, or it could cause species, populations or ecological communities to become threatened.

1. Schedule 6 "Key threatening processes" relevantly identifies:

Removal of large woody debris from New South Wales rivers and streams

1. Part 7A Div 4 "Offences" includes s 220ZD "Damage to habitat of threatened species, population or ecological community" which provides:

(1) A person must not, by an act or omission, do anything that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community if the person knows that the area concerned is habitat of that kind.

Maximum penalty: 1,000 penalty units or imprisonment for 1 year, or both.

(2) In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community, it is to be conclusively presumed that the person knew that the land concerned was habitat of that kind if it is established that:

(a) the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979 , or an approval to which Part 5 of that Act applies, was required but not obtained, or

(b) the act or omission constituted a failure to comply with any such development consent or approval.

1. Part 7A Div 4 "Offences" includes s 220ZD "Damage to habitat of threatened species, population or ecological community" which provides:

(1) A person must not, by an act or omission, do anything that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community if the person knows that the area concerned is habitat of that kind.

Maximum penalty: 1,000 penalty units or imprisonment for 1 year, or both.

(2) In proceedings for an offence under this section in respect of an act or an omission of a person that causes damage to any habitat (other than critical habitat) of a threatened species, population or ecological community, it is to be conclusively presumed that the person knew that the land concerned was habitat of that kind if it is established that:

(a) the act or omission occurred in the course of the carrying out of development or an activity for which development consent under Part 4 of the Environmental Planning and Assessment Act 1979 , or an approval to which Part 5 of that Act applies, was required but not obtained, or

(b) the act or omission constituted a failure to comply with any such development consent or approval.

1. The particulars of the FM Act offences refer to the removal of snags and woody debris from the waterways. There is no definition of snag in the FM Act. The recommendation of the Committee to list removal of large woody debris from rivers and streams as a key threatening process under Sch 6 of the Act states in par 2 that large woody debris has been considered as a hazard to river navigation giving rise to the name "snags". The terms are interchangeable and there is no suggestion to the contrary from the parties. I refer to snag removal for much of the judgment on the understanding that includes large woody debris.

Elements of Fisheries Management Act offences

1. According to the case particularised in the summonses, the Prosecutor must prove beyond reasonable doubt that each defendant did the acts particularised which caused or resulted in damage to any habitat of the lower Murray EEC or of trout cod or of silver perch knowing that the area concerned is habitat of these kinds. The elements of the offences which the Prosecutor must prove are firstly, that snags were removed in the offences period (Part A), secondly, damage to specified habitats was caused by snag removal (Part B), thirdly, that the defendants did acts which caused that damage (Part C) and fourthly, the defendants caused the damage knowing that the area was habitat when the damage was caused (Part D).

A. Element of offences - snag removal occurred during offences period

Evidence of snag removal at Kunanadgee

1. The Prosecutor read the following affidavits: affidavit of Mr Potter, Fisheries Officer, dated 22 September 2009; affidavit of Mr Tilbrook, Fisheries Officer, dated 22 September 2009; affidavit of Mr McBurnie, Recreational Fisheries Manager, dated 22 September 2009; affidavit of Mr McHugh, Health and Building Surveyor of the Council, dated 10 November 2009; and affidavit of Mr Lee, the complainant, dated 30 September 2009, as evidence establishing that snag removal occurred in the offences period.

Mr Lee

1. The complainant, Mr Lee, is familiar with the stretch of the Murray River between river chainage markers 2042km and 2046km and that the property fronting onto the River along this stretch is known as Kunanadgee. He has fished in this stretch about 15 times over the past five years and frequently caught juvenile fish. On 16 October 2007 after receiving a call from a fellow Southern Riverina Hunting Club member, Mr Lee called the Department of Industry & Investment (the DII) information hotline and had a conversation with a woman. On 17 October 2007 Mr Lee received a phone call from Mr Potter and provided details of the section of the Murray River where the de-snagging took place. On 18 October 2007 Mr Lee and his wife travelled by boat between river chainage markers 2040km and 2046km and took approximately 94 photographs of piles of timber on top of the riverbank, marks on the riverbank and scrape marks on nearby trees. These photographs were exhibited to his affidavit. Mr Lee saw heavy machinery working on Kunanadgee and large piles of logs and timber lying along the banks. Logs which had previously been in the water and vegetation that had been on the banks along this stretch were no longer there.

Mr Potter

1. Mr Potter is a fisheries officer who has been employed by the DII for a period of nine years. He is the principal investigator in this matter. On 16 October 2007 Mr Potter received an internal information report stating that logs were being removed from the Murray River at a lagoon adjacent to Kunanadgee. On 17 October 2007 Mr Potter conducted a vehicle patrol of the Big River Billabong adjacent to Collandina State Forest and saw two stockpiles of large woody debris on Kunanadgee about 100m from the Kunanadgee/Collandina State Forest boundary fence. He saw watermarks, clay and silt consistent with large woody debris, commonly known as snags, that had been recently submerged by water. On 19 October 2007 Mr Potter telephoned Mr Parr and subsequently received by email a copy of a notice of determination of a development application (notice of determination) for DA 2007/56 which related to the development of an eco-tourist resort at Kunanadgee and had been applied for by Mr Bennett.

1. Mr Potter conducted a vessel patrol of the Murray River adjacent to Kunanadgee on 23 October 2007. Between river chainage markers 2042km and 2046km he saw drag marks, small pieces of woody debris and upturned riverbank clay on the riverbank. On the top of the riverbank he saw stockpiles of snags located on Kunanadgee. When inspecting a wetland located on the northeastern portion of Kunanadgee on foot Mr Potter saw snag stockpiles next to a track. He walked the banks of an unnamed creek which passes through the southern portion of Kunanadgee and saw numerous stockpiles on both sides of the creek.

1. On 24 October 2007 Mr Potter conducted another vessel patrol of the Murray River adjacent to Kunanadgee in the company of Mr McBurnie and Mr Clipperton, conservation manager of the DII. They inspected on foot a very large stockpile consisting of farm woody debris and snags located in the middle of a paddock on Kunanadgee. It was about 200m north of the middle section of the unnamed creek. On the woody debris he saw varying degrees of silt, clay, bio-film, watermarks, fragmites, mussels and old fishing line, which identifying factors are consistent with snags having been recently submerged by water. He saw grab marks along the trunks of the snags which appeared to have been made by a log-grabbing excavator, and vehicle and excavator tracks leading to and away from the stockpile. From the vessel Mr Potter conducted a video recording of riverbank disturbance adjacent to the Murray River on Kunanadgee (exhibit B). He saw a total of 32 sites of riverbank disturbance between river chainage markers 2042km and 2046km and recorded a conservative estimate of the width of riverbank disturbance at each site. He saw drag marks on the riverbank, upturned riverbank clay and small pieces of woody debris located at each site. Mr Potter inspected the top of the riverbank from river chainage marker 2046km and saw ten snag stockpiles consisting of either one snag or many together. He measured the snags exceeding 3m in length and from 0.30m in diameter located in each stockpile. Each site had varying identifying factors consistent with snags which had recently been submerged by water. Mr McBurnie took photographs throughout the patrol and recorded the sites on a Global Positioning System (GPS) unit.

1. Mr Potter attended the Kunanadgee homestead on 25 October 2007 accompanied by Mr McBurnie and Department of Environment and Climate Change investigators, Mr Robinson and Mr Whitehead. They met with Mr Bennett, Mr Ceman, Mr Smit and Mr Hanger. Mr Bennett gave Mr Potter a copy of the development application and environmental impact statement submitted for the eco-tourist resort. Mr Potter officially cautioned him and recorded Mr Bennett saying that they wanted to "re-open the tracks as walking tracks", "the tracks were cleared, and a log on the bank was fair game", "the boys went a bit feral" and "it appears as if we have stuffed up". Accompanied by Mr Bennett and Mr McBurnie, Mr Potter conducted a vehicle inspection. Mr Robinson, Mr Whitehead, Mr Ceman, Mr Smit, and Mr Hanger followed in separate vehicles. Mr Potter stopped at various sites adjacent to the Big River Billabong, Murray River and unnamed creek where snags had been stockpiled. During the inspection Mr Bennett said, "I feel sorry for Michael, he conducted the works here. At the end of the day the company takes full responsibility". At the completion of the inspection, Mr Potter spoke to Mr Hanger who said "this wouldn't have happened if I had seen the permit conditions."

1. The next day, 26 October 2007, Mr Potter faxed a copy of a stop work order issued by the DII to Mr Bennett who confirmed receipt by return email. On 30 October 2007 Mr Potter conducted a vessel and foot patrol of Kunanadgee in the company of Mr Tilbrook.

1. On 2 November 2007 Mr Potter conducted a vehicle patrol of Kunanadgee with Mr McBurnie and inspected the snag stockpiles from about 1km downstream from river chainage marker 2046 to 2042km. He saw two snags in the Murray River with grab marks on the trunks that appeared to have been re-aligned. He saw 27 snag stockpiles consisting either of one or many snags. At each site he measured the snags exceeding 3m in length and 0.30m in diameter located in each stockpile. Each site had varying identifying factors consistent with snags that had been recently submerged by water. Mr McBurnie took photographs throughout the patrol and recorded the sites on a GPS unit.

1. On 6 November 2007 Mr Potter conducted a vehicle patrol with Mr Tilbrook and inspected various sites along the Big River Billabong and the unnamed creek. On 8 November 2007 Mr Potter conducted a further vehicle patrol of Kunanadgee with Mr McBurnie and inspected the Big River Billabong about 200m downstream from its off-take from the Murray River. He saw four sites of riverbed disturbance. Mr Potter also inspected the unnamed creek and saw 47 snag stockpiles on the top of the bank on the northern and southern side of the creek. Each stockpile was comprised of either one or many snags. He saw five sites of creek bank and creek bed disturbance. Mr Potter measured the snags exceeding 3m in length and 0.30m in diameter located in each stockpile. Each site had varying identifying factors consistent with snags which had recently been submerged by water. Mr McBurnie took photographs throughout the patrol and recorded the sites on a GPS unit. Mr Potter conducted a vehicle patrol of the wetland located on the northeastern portion of Kunanadgee on 11 November 2007. He took nine photographs of a track through the wetland and an area of at the end of the track adjacent to the Murray River.

1. On 12 November 2007 Mr Potter saw Mr McBurnie download a series of waypoints from a GPS unit onto an aerial photograph of Kunanadgee (exhibit A p 724). On that day Mr Potter also conducted a taped record of interview (ROI) with Mr Bennett at the Albury Fisheries office. Mr Tilbrook and Mr Coomes were also present.

1. On 4 December 2007 Mr Potter attended Kunanadgee and met with persons from the Commonwealth Department of Environment, Water, Heritage and the Arts (DEWHA) (as it was then known). That day he also conducted a vessel patrol of the River adjacent to Kunanadgee with Dr Harris who was engaged by the DII and the DEWHA.

1. On 12 December 2007 and 16 December 2007 Mr Potter conducted taped ROIs with Mr Coomes and Mr Ceman respectively, at the Albury Fisheries office, in the company of Mr Tilbrook.

1. On 13 May 2008 Mr Potter compiled a spreadsheet detailing 131 sites of wood stockpiles and/or areas of disturbance along the riverbank including the Big River Billabong and the unnamed creek as identified by numbered sites on the aerial photograph prepared by Mr McBurnie (exhibit A p 724) between chainage markers 2042km and 2046km (identified in Mr McBurnie's evidence below). The spreadsheet includes a detailed description of what each stockpile contained in terms of amount and nature of wood and referred to the state of the ground around the stockpile. Areas of disturbance were also described, identified on the aerial map separately from snag piles. A large number of stockpiles are recorded as having nearby drag marks at the top of the riverbank and at the water's edge. A large number is also recorded as including snags.

1. On 5 August 2008 Mr Potter attended Kunanadgee in the company of another Fisheries Officer and measured a snag stockpile located in the middle of a paddock on the property. It was 95m in length and 32m and 30m in width on the southern and northern ends, respectively. It was 3m in height at the highest point.

1. Copies of the ROIs (exhibit A tabs 19, 23 and 24), the aerial photograph of Kunanadgee with river chainage markers and indicating the location of snag stockpiles (exhibit A p 724) and the spreadsheet (exhibit A p 1073) were exhibited to Mr Potter's affidavit. The video recording taken by Mr Potter of riverbank disturbance was of the northern bank of the Murray River, commencing roughly at 2042km to 2046km upstream.

1. Mr Potter gave oral evidence in chief that it was the Prosecutor's intention to call Mr Michael Hanger as a witness. He was not aware whether Mr Michael Hanger was served with a subpoena and last spoke to him two weeks ago whilst he was overseas, in an unidentified location. At that time Mr Michael Hanger said he was "aware of the subpoena and that he was going to be back in a week's time". Mr Potter has unsuccessfully attempted to contact Mr Michael Hanger on a daily basis for two weeks prior to the hearing. It was his understanding that Mr Michael Hanger was unable to be contacted and would not attend Court.

Cross-examination

1. Counsel for Mr Bennett asked whether Mr Potter considered Mr Michael Hanger a major witness in these proceedings because he had conducted two ROIs with him and provided an affidavit from him. Mr Potter replied "Yes" and agreed with counsel's suggestion that Mr Michael Hanger had immunity from prosecution if he became a witness in the proceedings for the Prosecutor.

1. Counsel suggested that one of the things Mr Michael Hanger said to Mr Potter during their last telephone conversation was that he would not be appearing in Court and that he indicated to Mr Potter that he was nervous about appearing. Mr Potter said both of those propositions were incorrect. Mr Potter also disagreed with the suggestion that he formed a view that Mr Hanger was reluctant to appear. He agreed with counsel that the two year statute of limitations had passed so that it was too late to charge Mr Michael Hanger.

1. In relation to the video recording, Mr Potter agreed that it did not show a comparison with either east or west of the river chainage markers or the other side of the Murray River.

1. In relation to an onsite meeting of 25 October 2007 referred to in his affidavit, Mr Potter denied that it lasted two and a quarter hours as suggested by counsel and said it took about an hour, after which they drove around the property. Counsel asked whether Mr Bennett's statements as recorded by Mr Potter were made during the site visit. Mr Potter said to the best of his recollection, they were made at the meeting in the homestead. Counsel took Mr Potter to his one page notes of the meeting (exhibit 6A) which records Mr Bennett saying "tracks cleared were existing and a log on the bank was fair game", "the boys went a bit feral" and "appears as if we have stuffed up". She then compared these with the three and a half page notes taken by Mr Whitehead of the Department of Environment Climate Change (DECC) (as it was then known) (exhibit 7A) and asked Mr Potter to indicate where Mr Whitehead had referred to any of the statements he had recorded during the meeting. Mr Potter was not able to see his comments on Mr Whitehead's record. Counsel suggested that since Mr Whitehead, who took detailed notes of the meeting had not recorded these statements, that Mr Potter was mistaken about anything along these lines might have been said. Mr Potter disagreed because the statements were surprising to him at the time. Mr Potter was surprised that Mr Whitehead had not recorded these statements but he had not discussed it with him.

1. Counsel queried why he did not see fit to make a full record of what took place. Mr Potter answered that he was there to investigate matters from his department including to ascertain details and addresses of those in attendance to be able to contact them later for interviews. Mr Robinson and Mr Whitehead were there on behalf of their own departments. Mr Potter wrote down the statements that alarmed him, and names and addresses. He could not recall a lot of details of the day including Mr Bennett making the following statements which had been recorded by Mr Whitehead: "Our intention at the outset was to make this the best eco resort we possibly could", "That's been our brief to Michael. One of the things was to remove dead logs from the tracks" and "There were thousands of dead logs all over the tracks". Mr Potter agreed with counsel that he recalled Mr Bennett having a concern about the clean-up of the site, and preliminary works on the site prior to actually constructing the cabins. Mr Potter disagreed with counsel that Mr Potter's notes were not an accurate record of what was said at the homestead but agreed it was not a full account. Mr Potter also agreed that Mr Bennett had been cooperative with his inquiries throughout the time they have been in contact.

1. Counsel put to Mr Potter that it was probable no decision would have been made by the DII to prosecute Mr Coomes without relying significantly on Mr Hanger's evidence. Mr Potter said it was also based on Mr Coomes' and Mr Bennett's ROIs.

1. Mr Potter said he had not inspected Kunanadgee or the unnamed creek prior to 17 October 2007. Whilst he had regularly patrolled the Murray River frontage, he could not recall when he last inspected it prior to 17 October 2007.

1. Referring to par 6 of Mr Potter's affidavit, counsel suggested that there could be other causes for logs, fallen trees, and woody debris on the property showing indications as having been affected by water damage such as during times of flood. Mr Potter disagreed because there had not been a flood since 2000 and what he saw on the snag stockpile was "reasonably fresh". Counsel said this was an assumption. Mr Potter countered that if the snag stockpiles had been lying there for some time "the rain would have washed it away". He agreed with counsel that he was not suggesting the rain would have washed watermarks away. Mr Potter acknowledged it was possible that the kind of watermarks he saw on the logs on occasions could have resulted from a fallen log having lain in a boggy area or in a pond on the property or having been inundated by flood. Mr Potter did not recall seeing naturally occurring ponds in an area to the north west of the middle snag stockpiles (marked with a gold medallion starting with site 533 on the aerial photograph) but had inspected that area on 17 October 2007.

1. Mr Potter did not accept that there were other causes that would result in the watermarking of woody debris and logs lying on the ground particularly in that area because some of the stockpiles were a lot taller than he was and they had watermarks on them whilst the surrounding trees did not. He acknowledged it was a possibility that the mud on the bottom of a log on photograph 547 (exhibit A p 607) could have resulted from it having been buried or embedded in the ground (such as a fence post or a pier) and not necessarily in any waterway on Kunanadgee. He agreed with counsel that he could not identify the origin on the aerial photograph (exhibit A p 724) of that log, any of the logs in photograph 548 (exhibit A p 607) or on p 608. Mr Potter similarly agreed that he could not identify the point source location of any of the logs in the middle snag stockpiles designated at sites 533 to 544, which he opined in his affidavit as being from the unnamed creek (par 17 - 18) and that they could have been from the unnamed creek or the Murray River. Mr Potter accepted that in terms of tracks leading away from the middle stockpile sites 533 to 544 (mentioned in his affidavit at par 17 - 18), there were tracks not only heading towards or from the unnamed creek, but from other areas and other waterways on the property. Given that Mr Potter had not inspected Kunanadgee prior to 5 October 2007, counsel challenged that he could not rule out the possibility that there were significant stockpiles of farm debris and collected wood at that location in stockpiles prior to 5 October 2007. Mr Potter responded that from his experience he has a good idea of the difference between farm debris, woody debris and submerged woody debris and he did not believe that what he has identified as snags were located there before that time.

1. In relation to par 17 of his affidavit Mr Potter was asked whether he counted the number of logs or root boles in that middle snag stockpiles (sites 533 to 544). Mr Potter said he was "asked to give a conservative estimate and ... go to the property to count them for a remediation for something that the company Mato was working with in another part of my department". He engaged in a counting exercise but could not recall the number. He said there were too many logs that he would classify as farm woody debris in the middle snag stockpiles to count.

1. Referring to the photograph at the bottom of p 601, photograph 536, depicting a log with a lighter orange coloured mark which Mr Potter suggested in his affidavit (at par 18) had been made by a "log-grabbing excavator implement", counsel asked whether Mr Potter had subjected the mark to any kind of scientific testing. Mr Potter said he could only refer to his experience of a similar work-nature as an employee of Murray Irrigation Pty Ltd. He acknowledged that it was an allegation and he could neither identify which particular piece of machinery inflicted the mark nor when it was inflicted. These responses, Mr Potter agreed, applied to every alleged grab mark or damage mark on the logs shown in the photographs (exhibit A p 600 - p 609).

Mr Potter's consideration of whom to charge (Mr Smit)

1. Mr Potter met Mr Smit at Kunanadgee on 25 October 2007. He recorded Mr Smit's presence in his notes of the meeting and as part owner of Kunanadgee. Mr Potter knew Mr Smit was a guarantor of Mato and the partner of Mr Ceman's daughter. He also acknowledged that at least by 16 December 2007 he knew Mr Smit had attended and inspected the property with a key person of interest, Mr Michael Hanger, in August or September 2007. Mr Potter did not conduct an ROI with Mr Smit as he was led to believe, through his further interviews with Mr Michael Hanger and Mr Ceman, that Mr Smit was not a person of interest. In hindsight he accepted counsel's proposition that it would have been preferable to interview Mr Smit in order to ensure that his investigation obtained all relevant facts concerning the alleged incidents at Kunanadgee. In the course of making the decision not to interview Mr Smit, Mr Potter did not conduct any background searches or enquiries or speak to anyone. He was confident coming out of the interview with Mr Ceman on 16 December 2007 that Mr Smit was not a person of interest.

1. Counsel suggested Mr Potter refused to have an unrecorded discussion with his client, Mr Coomes. Mr Potter could not recall Mr Coomes telephoning him prior to the interview on 13 December 2007 indicating he had information that he was prepared to give in an unrecorded interview.

1. Counsel queried whether Mr Potter was confident that in the course of his investigation, every step was taken to ensure that he ascertained all the relevant facts about the alleged incidents before making a decision as to whom to charge. Mr Potter replied he was because he asked each person during their ROIs to answer truthfully and to name all the persons involved in the alleged offence. However, he would have liked to interview Mr Smit.

Re-examination

1. Counsel asked what Mr Potter meant during cross-examination (in relation to par 6 of his affidavit) when he said that the area had not flooded since 2000 and the watermarks, clay, and silt he saw on the snag stockpiles were "reasonably fresh". Mr Potter was of that opinion because the silt and the clay were still present on the snag stockpiles, and in some cases, "the silt still had a moist texture or look about it".

1. Counsel asked Mr Potter to go through the original photographs (exhibit C) and those in exhibit A and show the tracks that he was referring to as leading from the unnamed creek to areas in a snag stockpile. Mr Potter identified photograph 533 on p 600 of exhibit A, photograph 537 on p 602 of exhibit A, and photograph 547 on p 606 of exhibit A. Mr Potter said the rest of the photographs detail the snag stockpiles more than any tracks on the ground. Mr Potter said he saw the tracks and followed them to the unnamed creek and that they seemed fresh as the grass had been flattened.

1. Counsel questioned what Mr Potter meant when he said that from his experience, he thought the snag stockpiles along the unnamed creek were "recent debris". Mr Potter clarified he meant within a two-week period.

1. With regard to his observation that the marks on logs in photographs 535, 536 and at the bottom of p 601 in exhibit A were caused by a bulldozer, counsel asked whether Mr Potter had any familiarity with the use of heavy machinery. Mr Potter responded that he worked on his in-law's dairy farm where he used heavy machinery such as backhoes to remove obstacles from irrigation channels to ensure free flow of water onto the dairy farm. He was also employed by Murray Irrigation Pty Ltd as a labourer where he assisted the excavator operator to remove large woody debris that had become stuck on weirs and other irrigation structures.

Mr Tilbrook

1. Mr Tilbrook, a fisheries officer, has been employed by the DII for over 25 years. On 30 October 2007 Mr Tilbrook conducted an inspection by vessel of the Murray River adjacent to Kunanadgee with Mr Potter. He saw stockpiles of large woody debris, known as snags, on the Kunanadgee bank of the Murray River between river chainage markers 2046km and 2042km. On a foot patrol he saw numerous other sites of large woody debris consisting of either one or many snags stockpiled adjacent to an unnamed creek running through Kunanadgee. He also saw sites of significant disturbance within and adjacent to the Big River Billabong. Each snag site contained large woody debris with identifying factors consistent with woody debris that had been recently submerged by water including silt, clay, bio-film and watermarks.

1. During another site inspection on foot with Mr Potter on 6 November 2007, Mr Tilbrook saw the same piles of snags as he had seen on the previous inspection. He inspected various sites along the Big River Billabong and unnamed creek. He saw a very large site of large woody debris consisting of numerous snags in a paddock adjacent to the unnamed creek. Each site contained large woody debris with identifying factors of silt, clay, bio-film and watermarks, consistent with woody debris that had recently been submerged by water. Mr Tilbrook assisted Mr Potter with the collection and recording of statistical information and photography of some of these sites. The aerial photograph (exhibit A p 724) identifies the individual snag stockpiles on Kunanadgee.

1. Mr Tilbrook was present when Mr Potter conducted taped ROIs with Mr Bennett on 12 November 2007, Mr Coomes on 12 December 2007, and Mr Ceman on 16 December 2007. On 15 February 2008, in the company of Mr Andrews, Manager Special Operations of the DII, Mr Tilbrook conducted a vehicle inspection of Kunanadgee. He saw the same stockpiles of large woody debris or snags on the bank of the Murray River between river chainage marker 2046km and river chainage marker 2042km. He saw the same sites of large woody debris consisting of either one snag or many snags stockpiled together adjacent to an unnamed creek running through Kunanadgee that he had seen on his previous inspections. He also saw the same sites of significant disturbance within and adjacent to the Big River Billabong that he had seen on his previous inspections. He saw the same very large site of large woody debris consisting of numerous snags in a paddock adjacent to the unnamed creek that he had seen on his previous inspections. He saw that each site contained large woody debris with identifying factors of silt, clay, bio-film and watermarks, consistent with woody debris that had recently been submerged by water that I had seen on his previous inspections. [A summary of Mr Tilbrook's oral evidence including cross-examination is not necessary.]

Mr McBurnie

1. Mr McBurnie has been employed as Recreational Fisheries Manager of the DII for three years. On 24 October 2007 he accompanied Mr Potter and another on a vessel patrol of the Murray River. Between river chainage markers 2042km and 2046km, he saw a number of locations of riverbank disturbance as indicated by small broken pieces of woody debris and drag marks from the water's surface up to the top of the riverbank. He also saw large stockpiles of woody debris on the top of the riverbank in some of these locations. Mr McBurnie photographed the locations (exhibit C, exhibit A tab 13) and recorded the general area of each location as a waypoint on a GPS unit. On the same day, on a foot patrol of a large stockpile of woody debris in the middle of a paddock on Kunanadgee, Mr McBurnie saw that the majority of timber at this location had varying degrees of watermarks, clay, silt, bio-film and rub marks along them. He took photographs of this stockpile (exhibit C, exhibit A tab 13) and recorded its general location as a waypoint on his GPS. Along Hans Creek (that is the old course of the Murray River from river chainage marker 2046km to a point about 1km downstream) Mr McBurnie saw numerous stockpiles of woody debris. The majority of timber had varying degrees of watermarks, clay, silt, bio-film, mussels, fragmites and rub marks along them. He took photographs of these stockpiles (exhibit C, exhibit A tab 13) and recorded the general area of each location as a waypoint on his GPS.

1. On 25 October 2007 Mr McBurnie was present during a meeting held in the Kunanadgee homestead between Mr Potter, Mr Bennett, Mr Ceman, Mr Smit and Mr Michael Hanger. Mr Robinson and Mr Whitehead of DECC were also present. He accompanied Mr Potter and Mr Bennett on a site inspection of stockpiles of woody debris adjacent to the waters of Kunanadgee.

1. On 2 November 2007, Mr McBurnie and Mr Potter conducted a site inspection of Kunanadgee. He took photographs of stockpiles of woody debris adjacent to the Murray River (exhibit C, exhibit A tab 13) and recorded the general area of each photographed location as a waypoint on his GPS. On 8 November 2007, Mr McBurnie accompanied Mr Potter on a site inspection of Kunanadgee and photographed disturbed riverbed locations and stockpiles of woody debris adjacent to the Big River Billabong and the unnamed creek (exhibit C, exhibit A tab 13). He recorded the general area of the locations on his GPS.

1. On 12 November 2007 Mr McBurnie downloaded the photographs taken on Kunanadgee onto compact discs and imported the GPS waypoints to the aerial photograph (exhibit A p 724). [A summary of Mr McBurnie's oral evidence including cross-examination is not necessary.]

Oral statements of contracted workers

Mr Adrian Hanger

1. Mr Adrian Hanger gave oral evidence in chief that he has been a labourer for Fine Line Building Projects Pty Ltd, which is owned by his brother, Mr Michael Hanger, for 22 - 23 years. As a labourer he conducts a variety of duties including laying tiles, using chainsaws and driving a truck to pick up, clean up and transport items. The company's office is in Boronia, near Melbourne, Victoria.

1. Counsel asked Mr Adrian Hanger whether he had spoken to his brother. Mr Adrian Hanger said he had not spoken to his brother for about a week. When he spoke to Mr Michael Hanger he received "the international roaming call" and figured that his brother was "over in the Philippines or in Asia somewhere".

1. Counsel asked Mr Adrian Hanger to explain how he came to do work at Kunanadgee during October 2007. Mr Adrian Hanger replied, "One afternoon I was sitting in Michael's office and he was telling me that we had a job to clean up a property up in ... Corowa, I think it is, and that we were going to clean up around the property and all the dead wood and just make it more presentable. That's the first time I've heard about it but I had no idea where it was, and then a couple of months or so later I was there, at Kunanadgee". Mr Adrian Hanger could not recall the exact date this occurred but said it was in either 2007 or 2008. He went up to Kunanadgee alone and once he arrived drove around the property to become familiar with it.

1. Mr Adrian Hanger saw "[l]ogs everywhere ... a lot of debris, a lot of dead wood around under the trees ... and a lot of logs in the river". In the vicinity of the unnamed creek he saw "lots of logs in the creek, along the edge of it, lots of ... small sticks and stuff that needed to be cleaned up". Mr Adrian Hanger understood from what Mr Michael Hanger told him to do in relation to logs in that creek and on the banks "was to remove them out of the creek". Mr Adrian Hanger also saw the logs on the banks of the Murray River and into the water and in relation to those he recalled his brother asked him to pull out from the Murray River whatever they could reach as best they could.

1. After his drive around the property Mr Adrian Hanger "Went back to the homestead and waited for the machines to arrive." Two persons Mr Adrian Hanger had never met before employed by a company that hauls big machinery arrived with "a rather large swamp dozer and a rather large excavator". The swamp dozer was operated by a person named Tim and Jeff operated the excavator. (That is, Mr Timothy Root and Mr Jeffrey Damon.) Afterward Mr Adrian Hanger drove them "around the property as well to show them what we were supposedly about to venture in doing." He said, " I told them that I had been told by my boss, Michael, that we were going to pull out the logs through the unnamed creek around the edge and remove all the debris in the paddocks and everywhere else. " In relation to the logs in the Murray River he told them "the same thing, to remove the logs, what [they could] reach with [their] machine." Counsel queried what the reach of that machine was into the Murray River. Mr Adrian Hanger replied, " On the banks that were high he could fairly reach everything that was on the bank, when the banks were low he could reach ... 5 or 6 metres out."

1. The following day Mr Adrian Hanger and the two workers, Mr Root and Mr Damon, went to the "dam wall which is built over the top of this unnamed creek" and began working "on the bank, the side closest to the house, which would be the northern side." After a couple of hours they "went around the other side and started removing the logs on that side and generally worked along the creek." (The "dam wall" was in the vicinity of gold medallion number 711/712 and they started work around gold medallion number 714 marked on the aerial photograph (exhibit A p 724).) They worked "along the creek towards the east, so it would have been heading towards ... the Murray on the furthest distance away." (That is, toward the left on the aerial photograph (exhibit A p 724).) Mr Adrian Hanger, Mr Root and Mr Damon "worked up the creek on one side for a while and then ... moved around to the other side and did the same thing because he couldn't reach everything from one side." It took them "three or four days to get all the way up the creek." When they got to the end of the creek on the left hand side they "came back and started going ... along the Murray." To the best of his recollection, they started in "the marshland ... and worked [their] way from ... the top of [the aerial photograph] down towards the bottom ... and then worked [their] way around ... the Murray to ... the left again." They could not get right near river chainage marker 2046km because there were too many trees so they started around river chainage marker 592km and "worked down the page [of the aerial photograph]." Mr Hanger continued, "we went through - that heavily treed area is the lower area which is the swamp and we worked towards the open area which is the paddock and then kept going down and around the tree-line down to the bottom." Counsel asked how many days it took to work from in the area of that river chainage marker down around the Murray River to river chainage marker 2042km. Mr Adrian Hanger replied "That was fairly quick a lot of that and it's probably another two or three days to get down towards ... the bottom anyway. The machine was very quick at pulling the [logs] out."

1. Counsel queried whether there was anyone else present apart from the three workers. Mr Adrian Hanger said, "No, there was another truck driver came in later ... to move the dirt." In relation to his brother, Mr Michael Hanger, the witness said that he probably came around three to four times during the time they worked on the property, and that the first time was on the day they started the work. Mr Adrian Hanger said, "He arrived ... towards the afternoon, and he then took us all for a drive around the property and basically everything I had told the two operators was exactly what he told them as well." When not present his brother was still giving instructions to the workers, Mr Root and Mr Damon, through Mr Adrian Hanger and if the workers asked him a question he would ring his brother.

1. With regard to logs from the unnamed creek area, Mr Adrian Hanger said that once they were pulled out of the creek and from the bank, they were placed in piles along the side of the creek. Counsel enquired whether Mr Adrian Hanger and the workers had any part in putting the woody debris near the area where the words "unnamed creek" appear on the aerial photograph (exhibit A p 724) which has a gold medallion indicating photographs on p 600 to p 609 of exhibit A. Mr Adrian Hanger replied, "Yes. We ... were told from the unnamed creek where the name or the unnamed creek side which I'll call the paddock, everything in that paddock that was dead was to be put into ... a pile in the middle." The woody debris "came from the paddock side of the unnamed creek and from along the - the Big River Billabong area ... Under all the trees, all the way up right up to the front fence and then down the other side. Anything that was ... needed to be cleaned up, which was partially what I was doing as well as the other guys". Mr Adrian Hanger "had a light truck which [they] were putting a lot of the debris in and then [he would] ... go ... and ... tip it in that pile". He clarified that logs and dead stumps that were lying around near where the words the "Big River Billabong" and blue medallions appear on the aerial photograph were taken to the centre medallion. The centre medallion also contained woody debris from the banks and the paddock side of the unnamed creek. Mr Adrian Hanger did not know what was going to happen to the woody debris after they were put in piles. The wood that was taken from the banks or from the Murray River "was just taken out of the river and left in piles down there."

1. Mr Adrian Hanger said that he and the workers would commence work around 7:00am - 7:30am and finish around 6pm. They stayed overnight at Kunanadgee. Mr Adrian Hanger said he would keep his brother informed of the progress by calling him every night after work and recalls that owing to difficulties with mobile phone reception, he had to "drive up to the front gate".

Owners

1. Mr Adrian Hanger said that the persons whom he was told were the owners also visited Kunanadgee on a Friday and he believed they stayed for a weekend. Mr Michael Hanger also stayed that weekend. Mr Adrian Hanger returned home on Friday night and when he arrived the next week the owners were no longer there. He spoke to his brother before he went home and was told that these persons were the owners. The witness described them as persons who were well-dressed with fancy cars but could not recall their names. When counsel asked whether Mr Adrian Hanger was working when they arrived, he responded that they were pulling logs out of the Murray River. Mr Adrian Hanger said, "their cars weren't suited for the dirt tracks ... so ... I drove them around showing them ... we got to an area which I called "The Beach" at the time. It was just ... a sandbar and that's approximately where [Mr Damon] was, pulling logs out of the water at the time, and he was down there. They saw him pulling logs out of the water there, and then I kept showing them the track that was all the way around the property; taking them back to the house at the end of that." When counsel asked whether those persons said anything when Mr Damon was taking logs out of the Murray River, Mr Adrian Hanger replied "No". He said they were there for approximately 15 minutes because Mr Adrian Hanger "stopped the truck and ... they ... got out, walked around, then climbed back in again." Mr Adrian Hanger continued, "I took them everywhere. ... I drove them straight down, around the Murray [River], and then we came back along the unnamed creek. So they would have seen everything." He said the owners were with him for about half an hour and that his brother was not there.

1. Mr Adrian Hanger recalled speaking to Mr McHugh (Council officer) on 16 October 2007 and confirmed that work was still being conducted at that time but most of the work had been done because it was about three weeks after he, Mr Damon and Mr Root had commenced work. They continued to work for approximately a week after Mr McHugh's visit. Council asked whether any cables were being used at that time. Mr Adrian Hanger said, "Very large ones ... there was one log in particular that we just couldn't get out of the unnamed creek... It ended up ... snapping and ... still around the tree ." The witness confirmed that it was the cable depicted in photograph 695 (exhibit A p 679).

Cross-examination

1. In cross-examination by counsel for Mato and Mr Ceman, Mr Adrian Hanger confirmed his brother employed him directly, that to his knowledge, his brother was acting as the contractor to carry out the works on the site, and that his brother engaged Lance Smith Excavations Pty Ltd to do the work. He also confirmed that Mr Michael Hanger paid him directly and did not know whether it was his brother, on behalf of the company, who paid Lance Smith Excavations Pty Ltd but imagined the company was paying them. Mr Adrian Hanger added that he had seen Lance Smith Excavation Pty Ltd dockets because once filled out they had to be signed by someone and as he was there, he had probably signed most of those dockets. The workers gave the signed dockets to their boss who would have sent them to Mr Michael Hanger.

1. There were circumstances when Mr Adrian Hanger would have to ring his brother, who would, on every occasion that they spoke on the telephone, give directions as to what to do and that when he was at the site he was the one who would determine if something additional had to be done. Mr Adrian Hanger said sometimes his brother would say what he wanted to do and at other times he would say, "I'll get back to you" which Mr Adrian Hanger took to mean that he possibly had to ring someone else or was thinking about it. When asked whether his brother ever said "the owner said to do this or the owner said to do that" with regard to the inquiries Mr Adrian Hanger made, he replied, "No. When he would ring me - he's always busy so it would always be the very shortest answer he can give, so he wouldn't go into detail." Mr Adrian Hanger agreed with counsel that from his knowledge and experience in working with his brother this way, he seemed to have authority to carry out the works on the site. Mr Adrian Hanger said, "I don't get involved in the office side of the business, so he doesn't tell me where the information comes from, he just gives me a scope of works and I go and do it."

1. Counsel showed the witness a draft response to a notice under s 486F of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) dated 1 April 2009 issued to Mr Ceman by the DEWHA (DEWHA statutory notice) that was allegedly filled out by Mr Michael Hanger (exhibit 4) and asked him whether he recognised the writing as his brother's writing. Mr Adrian Hanger answered that it was a possibility.

1. In cross-examination by Mr Bennett's counsel, Mr Adrian Hanger acknowledged that he was given immunity from prosecution because he was aware that at the time of his ROI, around 17 January 2008, that charges could have been laid against him. He was concerned about that. He accepted that his memory for names has been bad all his life, that the events occurred a long time ago, and that the ROI was about three months after the events.

1. With regard to the weekend up at the site when the owners visited, Mr Adrian Hanger remembered that in his ROI he unequivocally said, "Yes" in response to the question "Had the snags been removed by that time?". He agreed with counsel that it was only once he had been given the opportunity to be granted immunity from prosecution that he told in Court that, in fact, the snags had not been removed by the time other people came to the site. Mr Adrian Hanger said that his responses at the time of the ROI may not have been accurate because he was very nervous, did not know what to expect and was "answering questions on adrenalin". He clarified that "most of the snags had been removed, but not all of them because Mr Damon was still pulling snags ... out of the river when they were there. It was basically on the last days or day of pulling snags." He added, "[T]hey still witnessed the machine pulling logs out of the river." Counsel gave him another opportunity to answer the question, emphasising that he had difficulty remembering names of people, could not remember the name of the property, has difficulty with dates, and that he was not comfortable placing the events in a particular year, let alone a particular month. Mr Adrian Hanger again accepted that he had difficulty with names and dates but he had a good memory for other things.

1. Returning to the weekend of the site visit, Mr Adrian Hanger acknowledged that he went home on Friday night and was not on Kunanadgee during the weekend, that he did not actually know whether the people who visited were the owners, and that he did not recall for certain how many people visited. Mr Adrian Hanger did recall that he drove some of those people around in his truck. He disagreed with counsel's suggestion that he did not drive all the people around who turned up on that day but he accepted that it was a possibility some of them were not there at that time or had gone elsewhere.

1. In re-examination, Mr Adrian Hanger identified that he would have driven around four people.

Mr Damon

1. Mr Damon told the Court that he is a Transport Manager and Civil Works Foreman who is employed by Lance Smith Excavations Pty Ltd. He has worked with the owner of that company, Mr Cliff Smith, for approximately 17 years. He knows a person by the name of Tim Root who has worked for Lance Smith Excavations Pty Ltd for about five or six years. At the time of the events, his boss' office was located in Bayswater, Victoria.

1. Mr Damon confirmed he worked on Kunanadgee in October 2007. His boss called him into the office, said they have a job in Corowa and asked him if he wanted to do it. He agreed to do the job. He and Mr Root took an excavator with a log grabber and a D6 bulldozer. As the machines are oversize on the roads Mr Damon piloted them up there in his pilot car when they were on the trucks. Mr Root followed. When they arrived at Kunanadgee they "unloaded the machines, helped pack the trucks up and sent them home". He and Mr Root commenced work the next morning. Mr Damon confirmed that Mr Michael Hanger was not at Kunanadgee when they arrived. They received instructions from Mr Adrian Hanger, whom he had never met before. Mr Damon worked on the excavator. Mr Adrian Hanger told him to "start cleaning up the property, pulling logs out of the ... Murray River, out of the unnamed creek" with the log grabber. Mr Damon could not recall how many days this took. He said that it was usual practice when working away from home that they work around 11 - 12 hour days. He recalls one day when they worked until midnight. He picked up the logs with the excavator which has an arm that reaches out to grab the logs and then pulled them out and put them on the bank. Mr Damon estimated that the reach of the log grabber was about 30 feet. If he was not able to pull out a log out of the Murray River he left it there. There were logs that he could not get out of the unnamed creek. Counsel showed him photographs in exhibit A p 679 depicting a snapped cable around a log in the unnamed creek and asked Mr Damon whether he remembers that incident. Mr Damon answered, "We put a cable round that log to pull it out because it was too big for me to handle and I went to start pulling on it to lift it out and it just - the cable snapped."

1. Mr Damon could not remember how long he was at Kunanadgee but over the entire period he received instructions from Mr Adrian Hanger and Mr Michael Hanger. Most mornings they were told what to do that day or told to continue with what they were doing the previous day. He also could not recall how long after he arrived at Kunanadgee that he first saw Mr Michael Hanger or how often he visited but recalls that Mr Michael Hanger visited about three times. Mr Damon had not met Mr Michael Hanger before that contract. When he was there Mr Michael Hanger appeared to observe the work that the workers had done or were doing.

1. Mr Damon said Mr Root used the bulldozer mostly pushing tracks, forming tracks for vehicles to travel on and cleaning up farm tracks. In relation to the logs in the unnamed creek and in the Murray River it was Mr Damon mainly doing the work. Mr Damon was told he had removed 133 logs from the unnamed creek and the Murray River.

1. In relation to visitors, Mr Damon said he thought three or four other gentlemen came up on a weekend, stayed for a night and wandered around the property having a look at what they were doing. They said to him that he was doing a good job and left. He was pulling logs out of the Murray River when they visited. Mr Damon could not recall their names or describe them.

1. Mr Damon confirmed the Lance Smith Excavations Pty Ltd document (exhibit F) for work done at Corowa in relation to an excavator conducted by an operator named "Jeff" charged to Mr Michael Hanger was his worksheet. It records that from 5 October 2007 to 13 October 2007 Mr Damon was lifting logs from the Murray River, from 15 October to 17 October he was digging a dam at the front of Kunanadgee and on 18 October 2007 he was digging a dam and "loading logs from creek". These entries were written by Mr Damon and accorded with his recollection of the work he did. By "loading logs from creek" Mr Damon meant to convey that he put the logs taken from the unnamed creek into a dump truck and tipped them on to the middle of the paddock, that is, where medallion numbers 533 and 534 are marked on the aerial photograph (exhibit A p 724).

1. When counsel questioned whether anyone had shown him any development consent or conditions whilst he was doing the work, Mr Damon replied, "No".

Mr Root

1. Mr Root is an earthmoving contractor/operator who works for Lance Smith Excavations Pty Ltd and has been with that company for approximately seven years. Mr Root identified that the Lance Smith Excavations Pty Ltd timesheet for work at Corowa in relation to a bulldozer in October of 2007 on a job charged to Mr Michael Hanger was for work conducted by him (exhibit G).

1. Mr Root said the entry "cleaning logs from the river" probably meant he assisted the excavator, Mr Damon, with pulling logs out of the Murray River when he could not manage because something was too large or too heavy. In those instances Mr Root connected the bulldozer and pulled while Mr Damon lifted and pulled. He used a chain to help him pull. They pulled out logs on the edge of the bank or leaning from the bank into the Murray River. Mr Root confirmed that the photographs depicting a snapped cable around a log in the unnamed creek (exhibit A p 679) was the type of thing he was talking about. He remembered that that particular log could not be removed.

1. He said day-to-day instructions came from Mr Adrian Hanger who received them from Mr Michael Hanger. Mr Root confirmed that the former was there for the entire time he worked at Kunanadgee. He had never met Mr Adrian Hanger before his involvement with that job. Mr Root recalls Mr Michael Hanger visited Kunanadgee on a weekend and appeared another time during the day but could not recall exactly when. Mr Root said Mr Michael Hanger observed what was going on.

1. In relation to visitors, Mr Root said that on one occasion people who he believed were the directors visited the property, stayed a weekend and watched the workers. He knew they were directors because he met them the night they arrived. Mr Root believed it was Mr Adrian Hanger who told him they were the directors. He recalled that the name of one of them was "Dean or ... Deano" and said he recalled the name "Mr Coomes" which counsel had mentioned to him earlier that day before giving his oral evidence. He did not recall anyone else's names.

1. In cross-examination by counsel for Mr Ceman queried whether Mr Root recalled that the person named "Dino" arrived late on the Friday night. Mr Root said "yes". When counsel probed whether it was around 9:00pm or 10:00pm, Mr Root replied that he did not think it was that late but it was possible.

1. Mr Coomes' counsel suggested that prior to the Prosecutor's counsel mentioning his client's name, Mr Root had no recollection that Mr Coomes was one of the persons he met on site. Mr Root responded that it was hard to say but that was possibly correct. After dinner on the Friday night (12 October 2007) Mr Root said he "watched a bit of television and went to bed" and recalled speaking to one of the directors who visited but did not know which one and said it might have been Mr Ceman. Mr Root did not recall any conversation after dinner on Saturday 13 October 2007.

Mr Michael Hanger

1. Mr Michael Hanger, the independent contractor employed to undertake the work, did not give evidence. The Prosecutor had intended to call him according to Mr Potter's evidence in chief. Mr Potter understood he was overseas where he had tried to contact him in the lead up to the hearing. Mr Hanger was given indemnity from prosecution by the Prosecutor. Mr Potter was cross-examined about his whereabouts and whether he was an important witness (par 35). The Court was told Mr Hanger was not served with a subpoena to appear before going overseas.

Mr McHugh (Council officer)

1. Mr McHugh has been employed as a health and building surveyor by the Council for approximately nine and a half years and swore an affidavit filed on 11 November 2009. In response to a request to inspect works that were being conducted at the time, Mr McHugh attended Kunanadgee on 16 October 2007. From the entrance to the property he saw a person on foot collecting wood and another driving a bobcat loader and moving wood with its bucket. In the general vicinity he saw a dump truck and an excavator adjacent to a dam which was under construction. He had a conversation with a person who identified himself the site manager, Mr Adrian Hanger. Mr McHugh informed Mr Adrian Hanger that the development consent for the site contained many conditions including the requirement of a construction certificate prior to the commencement of works. To the best of his recollection Mr McHugh said to Mr Adrian Hanger, "Do not continue any further works until a construction certificate is obtained". He requested Mr Adrian Hanger to have his supervisor call Mr McHugh as soon as possible. Later that day he received a telephone call from Mr Michael Hanger who stated that he was in charge of the works being conducted on Kunanadgee and that the works being undertaken were not in conjunction with the development application for the proposed eco-tourist resort. Mr Michael Hanger said that he was just moving some soil from the front paddock to fill some dips around the house and repairing the road. Mr McHugh informed Mr Michael Hanger that he would pass this information to Mr Parr. On 17 October 2007 after recording the notes of his inspection and conversations with Mr Adrian Hanger and Mr Michael Hanger onto a file record, Mr McHugh passed this file record to Mr Parr. [A summary of Mr McHugh's oral evidence including cross-examination is not necessary.]

Prosecutor's submissions on element of offences that snags removed in offences period

1. The evidence that workers retained by Mr Michael Hanger, his brother Mr Adrian Hanger, Mr Root and Mr Damon removed snags and woody debris from the waterways in the offences period is not disputed. Their evidence in time sheets of the number of hours worked and the activities undertaken discloses the extensive work undertaken using an excavator with a 30 foot reach in removing snags from the identified waterways. There is no dispute about the nature of the works undertaken by them. Mr Damon spent most of his working time from 5 to 13 October 2007 pulling logs out the River and the unnamed creek. The number of snags removed from the banks and waters cannot be identified with certainty but the scale of operation is evident from the workers' evidence. The work resulted from instructions given by Mr Adrian Hanger to the workers who was instructed in turn by Mr Michael Hanger. There is no dispute about these instructions.

1. During the hearing, attempts were made in cross-examination to cast doubt on Mr Potter's, and Mr Tilbrook's estimates that the majority of snags in the numerous stockpiles along the Murray River appeared to have been removed recently from the River. In final submissions the defendants' counsel did not dispute the Prosecutor's evidence about the fact and extent of snag removal in the offences period.

Element of offences that snags removed established

1. That snag removal took place at Kunanadgee in the offences period (5 - 16 October 2007) is confirmed by the extensive evidence outlined above. This includes the evidence of Mr Lee who first reported the removal to the DII hotline on 16 October 2007 and observed from the Murray River a large number of snags on the bank at Kunanadgee on 18 October 2007. The evidence of the investigations of departmental officers Mr Tilbrook, Mr Potter and Mr McBurnie from 17 October 2007 is summarised extensively above and identifies the extent of the snag removal undertaken including in the video evidence viewed by the Court. The number of piles of cleared timber and disturbed areas, represented as gold medallions on the aerial photograph p 724 at exhibit, A is substantiated by their evidence. The aerial photograph (exhibit A p 724) prepared by Mr McBurnie using GPS software identifies 131 snag stockpiles and areas of disturbance along the Murray River and unnamed creek and was not seriously challenged. Nor was the spreadsheet describing these 131 sites of riverbank disturbance and snag stockpiles prepared by Mr Potter on 13 May 2008 successfully challenged.

1. Mr Potter inspected the Big River Billabong area by vehicle on 17 October 2007 with other officers such as Mr Tilbrook. He inspected Kunanadgee from the Murray River on 23 October 2007 between 2042km and 2046km and on 29 October 2007 when he identified that a number of snags appeared to have been recently submerged. Further inspections were carried out on 30 October 2007, and 2, 6 and 8 November 2007. A video recording was taken and shown during the hearing which shows the site from the Murray River and the evidence of dragging and disturbance on the bank. Mr Potter was extensively cross-examined about his conclusions about the numbers of snags removed and that the snags were recently removed from the waterways (par 42 - 45). His evidence based on relevant personal and work experience, also confirmed in re-examination, was unshaken in that regard.

1. That the work occurred during the offences period is further confirmed by the evidence of the workers. Mr Adrian Hanger explained that he was told to remove logs from the Murray River and the unnamed creek by his brother Mr Michael Hanger (par 62 - 63). The only person he received instructions from was his brother. He stated that several days were spent removing snags from the river and the unnamed creek at his direction by the other workers Mr Damon and Mr Root. His detailed evidence in par 65 identifies by the aerial photograph (exhibit A p 724), including reference to chainage markers, where work along the River was carried out. He gave similarly detailed evidence in relation to the unnamed creek (par 67). The evidence and timesheets of Mr Damon and Mr Root confirm the substantial number of long days (seven) spent removing logs from the Murray River and the unnamed creek. Snag removal work commenced on 5 October 2007 according to Mr Damon's timesheet and took place on 5, 8, 9, and 10 - 13 October 2007. The evidence of the workers Mr Damon and Mr Root is not contested and confirms the extensive work carried out over the number of days in the offences period with an excavator used to remove logs from the waterways specified in the various summonses.

1. The Prosecutor has firmly established that a very large quantity of snags was removed in the offences period from the Murray River, including the Big River Billabong, and from the unnamed creek.

B. Element of offences - snag removal caused damage to habitats

1. The recommendation of the Fisheries Scientific Committee to list the lower Murray EEC as a threatened ecological community and its listing under Sch 4 Pt 3 of the FM Act is in evidence.

1. Mr Parr confirmed that from when the development application was advertised to when consent was granted, there was no change in the development application and that it was his decision to impose the deferred commencement conditions. Mr Parr agreed with counsel that at the time it was his belief that there was no necessity for any application to be changed in order for a deferred commencement to be imposed. Counsel questioned whether Mr Parr had reason to change his opinion. Mr Parr responded, "I guess from the last ... few days, suggesting that, because I added that deferred commencement after there had been resolution of council, there's been suggestions that that was outside of my authority to do so." Counsel asked whether in the normal circumstances, when Mr Parr is dealing with a development application and Mr Parr, as an officer of the Council or the Council itself determined that the only way the consent could be granted was with a deferred commencement condition, Mr Parr would handle it through delegated authority, without going to a Council meeting. Mr Parr said "Yes" and that the development application did not need to be changed to add a deferred commencement condition. Mr Parr had no personal knowledge of when the Corcoran consent (exhibit 9) dated 30 May 2007 was actually signed.

1. Mr Coomes' counsel asked whether Mr Parr's earlier oral evidence that the notice of determination (exhibit 9) was the same as that marked exhibit 1A, which document was sent to Mr Bennett at his correct address as amended, was true. Mr Parr responded that that remained his belief.

1. In re-examination, the Prosecutor's counsel asked whether Mr Parr knew which notice of determination was in fact sent to Mr Bennett. Mr Parr said he did not. Referring to par 6 of Mr Parr's affidavit which mentions the Corcoran consent and Mr Potter's evidence that he obtained that document from Mr Parr, counsel questioned where Mr Parr obtained the Corcoran consent from. Mr Parr was unable to provide an answer. Mr Parr stated that the two files he showed to Mr Potter were the property file and the development consent, so all the information that he forwarded to Mr Potter came from the files he had with him in Court.

Ms Houlihan

1. Ms Houlihan, secretary of Mr Corcoran, swore an affidavit dated 18 March 2011. She is responsible for the custody of the Council's Minute Book which records the minutes of Council meetings. Ms Houlihan has searched the Minute Book for the period from 30 May 2007 up to 1 November 2007 (inclusive). She did not find any minutes recording any resolutions of the Council during that period which either rescinded the resolution of 29 May 2007 granting development consent in relation to DA 2007/56 or which varied the conditions of the development consent set out in the resolution. The Prosecutor relied on this evidence to establish that there was no change to the Council's decision on 29 May 2007 to grant development consent subject to specified conditions.

1. The Prosecutor tendered an instrument of delegation of the General Manager's authority (exhibit E) which provides for the delegation to the Director Environmental Services of certain planning functions. In relation to development control the power to approve development applications was able to be delegated in specified circumstances. At the time Mr Parr signed the Parr consent he described himself as the Acting General Manager (and did not therefore exercise the power of delegation).

Mr Bennett

1. In his evidence in chief Mr Bennett said that it took about two years to obtain the development consent which he identified as the Parr consent (exhibit 1A). He recognised it because it shows a corrected address, having been sent to the wrong address in Hamilton, not Hampton. He thinks he received this a week or two after 30 May 2007.

1. In cross-examination by the Prosecutor Mr Bennett was asked about an email dated 17 October 2007 which sent a copy of the Corcoran consent to various people seeking comment on the conditions of consent. That notice of determination has the wrong address. Mr Bennett recalled receiving a notice of determination with the wrong address because he rang Mr Parr about it in early June as a document was sent to Hamilton not Hampton. He recalls receiving two documents. He was not sure that the version shown to him by Mr Potter in the ROI was the one he received a few days after 30 May 2007. He agreed that the version he was sending on 18 October 2007 was the version he received in the mail a few days after 30 May with the wrong address.

1. In cross-examination by Mr Ceman's counsel about when he received the consent signed by Mr Parr he could not remember the exact date but thinks it was about the same time. He recalls getting the Parr consent because he had to satisfy two conditions relating to obtaining access to high security water and connection to the electricity grid before works could be carried out pursuant to the development consent. He agreed it was probably true that he got a copy of the Corcoran consent later on when speaking to Mr Parr. He spoke to Mr Parr on numerous occasions about satisfying the two conditions. He was referred to the minutes of the Mato shareholders' meeting on 5 October 2007 which refer to a meeting with Mr Coomes and Mr Parr on 7 September 2007 at which compliance with the deferred commencement conditions was discussed (part of exhibit P).

1. In cross-examination by Mr Coomes' counsel, Mr Bennett was shown a letter addressed to GHD from the Council dated 10 October 2008 which refers to a deferred commencement consent and that deferred commencement conditions 3 and 4 had been complied with to the Council's satisfaction. The letter states the consent is now valid and operates in accordance with its conditions. Mr Bennett was not surprised to receive the letter as he knew there were preconditions in the consent.

Prosecutor's submissions

1. The Council's resolution to grant conditional development consent on 29 May 2007 has not been altered or rescinded subsequently, as confirmed in the affidavit of Ms Houlihan. The Corcoran consent accurately reflects the resolution of the Council on 29 May 2007. It specifies that that consent was to operate from 30 May 2007 in accordance with cl 100 of the EPA Regulation. It should be inferred that Mr Corcoran signed the document on or around that date. Sometime after 30 May 2007 Mr Parr prepared and signed a different version of the notice of determination which included two deferred commencement conditions. Mr Parr's evidence is that he made handwritten changes to the address, the suburb and postcode following a telephone call from Mr Bennett who had not received the notice of determination. The Parr consent in adding deferred commencement conditions does not accurately reflect the Council's resolution as minuted on 29 May 2007. Under s 372(1) of the Local Government Act 1993 (the LG Act) a resolution of a council cannot be altered or rescinded except by a motion put to a council meeting with due notice. Mr Parr did not therefore have the power to alter the resolution of the Council to grant conditional development consent whether exercising delegated authority as Director of Environmental Services or as Acting General Manager. No application to modify the consent under s 96 of the EPA Act was received from the applicant for development, Mr Bennett, to found a power to alter the resolution of the Council. Accordingly the changes made to the consent conditions by Mr Parr were beyond power.

1. Mr Bennett's evidence suggests that he received both versions of the development consent after 29 May 2007. He stated that he received the Parr consent in mid-June 2007. When cross-examined about the Corcoran consent which he was shown by Mr Potter in the ROI Mr Bennett said he was confused and mistaken and had received the Parr consent. However it is clear that he received the Corcoran consent a few days after 29 May 2007 because he was shown an email of his dated 18 October 2007 sent to Mr Coomes, Mr Smit and Mr Ceman, inter alia, which attached a derivative version of that notice of determination which he used for the purpose of facilitating input from the recipients of the email about proposed changes to some consent conditions. The base document was the Corcoran consent. He also said that he had received both documents and agreed that the Corcoran consent was the one he received in the mail a few days after 30 May 2007. When cross-examined by Mato's counsel he said he did not get the Corcoran version at that time in June 2007 but later when speaking to Mr Parr. This was a self-serving and unconvincing retraction of his earlier evidence that he received the version with the wrong address in early June 2007. Only the Corcoran consent has the wrong address.

1. It is the determination of the consent authority that constitutes the consent see Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 168 LGERA 59 per Tobias JA at [47] - [48]. The notice of determination does not constitute the consent but is evidence of it, Pselletes . If a notice of determination does not reflect the determination of the consent authority, it is the latter not the former to which regard must be had in order to determine the development to which the consent relates, Pselletes at [49] - [50]. The Corcoran version reflects the determination of the Council, whereas the Parr version does not. The deferred commencement conditions imposed by Mr Parr were invalid and a nullity.

1. The issue then arises of whether the Council's decision to grant consent was notified as required by s 81(1) of the EPA Act so that the consent was in force during the offences period. Notification of the consent was published in the local papers on 6 June 2007. The Corcoran version was provided to Mr Bennett prior to the offences period, almost certainly a few days after the determination of the Council on 29 May 2007. Pursuant to s 83(1)(a) of the EPA Act, the consent became effective and operated from the date in the Corcoran version, 30 May 2007 so that the consent was in force during the offences period. Under s 83(1)(a) of the EPA Act a development consent becomes effective and operates from the date that is endorsed on the notice given to the applicant in accordance with s 81(1) of the Act, being 30 May 2007 in this case.

1. If the Court finds that the Parr version was the relevant consent, it also states that the consent is to operate from 30 May 2007, the operative date as provided for in s 83(1)(a). To the extent that the deferred commencement notation conflicts with the expressly endorsed date, it cannot displace the effect of the endorsed commencement date given the terms of s 83(1)(a) of the Act. The deferred commencement notation was invalid as Mr Parr had no authority to make those changes. Further, the insertion of the deferred commencement conditions does not mean that the consent did not come into force. This is not a case like Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406.

Mato's/Mr Ceman's submissions

1. The Parr consent was the one notified to Mr Bennett pursuant to s 81 of the EPA Act. That consent has been advertised under s 101 and is beyond challenge in these proceedings. Pselletes is irrelevant, as also is Hopkins . The Corcoran consent was not notified under s 81 to Mato or any other government department and did not come into force. If the Parr consent is not valid then condition 16 did not apply at the offences period.

1. The instrument of delegation tendered by the Prosecutor is not conclusive of the powers of delegation granted to a general manager. The power of delegation under s 377 of the LG Act does not have to be in writing. Mr Parr believed that he had power to approve development applications when Acting General Manager, explainable by such oral delegation. The Prosecutor has not established that such a delegation was not in force and therefore Mr Parr did not have authority to make the deferred commencement consent.

Mr Bennett's submissions

1. The Corcoran consent relied on by the Prosecutor was not in force during the offences period in October 2007. The evidence does not show conclusively that Mr Bennett received the incorrectly addressed Corcoran consent by post, see the affidavit of Ms Houlihan dated 18 March 2011 at annexure A. The evidence of Mr Parr is that he signed the deferred consent as Acting General Manager. This was the notice of determination forwarded to the applicant for development care of Mr Bennett by mail. It was the consent publicly notified by the Council on 6 June 2007 (exhibit O). Mr Parr acted at all times in accordance with the consent being a deferred commencement consent as did Mr Bennett.

1. Mr Bennett gave oral evidence that he recalled receiving the Parr consent because the address was wrong referring to Hamilton not Hampton and had the wrong postcode. The notice of determination was very important to the defendants as evidence that development consent had been granted. He also gave evidence that he noticed on the face of the determination that the Hamilton address had been crossed through and corrected by hand to Hampton. This is consistent with his answers in cross-examination that he recalled getting a determination with the wrong address as he rang Mr Parr about that. The correct inference to draw is not that he received the Corcoran version but that he was aware that the consent had been notified on 6 June 2007 but no copy had yet been received by him. Mr Parr gave evidence that Mr Bennett rang him to get a copy of the consent. Contrary to the Prosecutor's submissions, Mr Bennett was not definite that he had received the incorrectly addressed consent by post. Mr Bennett acted at all times after receipt of the consent in accordance with a deferred commencement consent, as demonstrated in the Mato shareholders' meetings minutes regarding a meeting with the Council's planner Mr Parr on 7 September 2007 concerning deferred commencement conditions 3 and 4 (exhibit P). He agreed he could have picked up the Corcoran consent in one of his many dealings with Mr Parr after 30 May 2007. In response to an email asking for a copy of the consent on 17 October 2007, Mr Parr sent the Corcoran consent which still had the incorrect address on it, suggesting it was not sent by post at any stage to Mr Bennett.

1. The inference arises that the document at exhibit Q is a manipulated copy of this electronic version forwarded by Mr Parr to Mr Bennett which he sent on to other parties requesting changes or suggestions to any of the conditions of consent. The inference arises that he did not notice the document was different from the Parr consent received earlier. Mr Bennett was never formally notified in accordance with the EPA Act of the Corcoran consent. If a s 81 notice does not correctly reflect a council's decision the notice is invalid and as a consequence the consent does not become operative for the purposes of s 83(1) of the EPA Act: Pselletes at [44] and Hopkins at [27]. The Corcoran consent cannot be in force in the offences period. No consent was then in force.

Mr Coomes' submissions

1. There is reasonable doubt whether the development consent was a consent that was operative from 5 - 16 October 2007 or was a deferred commencement consent that had not become operative at that time. Documentary evidence and the oral testimonies of Mr Parr and Mr Bennett confirm that a deferred commencement consent was notified by a s 81 notice of determination on 30 May 2007. That means that no operative consent was in force for the offences period. Consequently there could be no breach of condition 16 and the s 125 charge must fail.

1. The Council's resolution was not a development consent; it was a resolution that development consent be granted to DA 2007/56. The Parr consent is not invalid as inconsistent with the resolution, as it "reflects" the resolution, which is the required test: Pselletes at [44]. Identity between the resolution and the issued consent the subject of the notice of determination is not required by Tobias JA, presumably because it is commonplace for the details of such Council resolutions and conditions to be amended by Council officers as here, while remaining reflective of the original resolution. Mr Parr did not purport to alter any Council resolution.

1. The Parr consent is protected by s 101 of the EPA Act in the absence of jurisdictional error: Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531.

No development consent in force for offences period

1. The Prosecutor bears the onus of establishing that the Corcoran consent was in force during the offences period and, if it was, that condition 16 was breached by one or more defendants charged with that offence. At the commencement of the hearing the version of the development consent relied on by the Prosecutor was that attached to the affidavit of Mr Potter, being the Corcoran consent. The Prosecutor further submitted that the Corcoran consent is in accordance with the Council's resolution to grant conditional development consent, which submission is correct. Equally clear from the evidence of Mr Parr is that he considered he had power to amend the conditions of development consent to issue a deferred commencement consent to Mr Bennett and he issued the Parr consent with deferred commencement conditions. Mr Parr was cross-examined about the consent he issued to the effect that this was notified to Mr Bennett, after a telephone call from Mr Bennett asking where it was. This resulted in a handwritten change to the postal address which can be seen on the Parr consent. No change of address is noted on the Corcoran consent giving rise to the inference that it was not sent by post at any stage including shortly after 30 May 2007. Mr Parr was not able to state definitively which version of the consent was sent to Mr Bennett shortly after 30 May 2007. The inference is that it was the Parr consent, given he made handwritten changes to the address suggesting these were made after the telephone call from Mr Bennett. Further evidence supports this conclusion.

1. While neither Mr Parr nor Mr Bennett could be completely definite that only the Parr consent was notified to Mr Bennett, both have acted in a way consistent with a deferred commencement consent being issued. The Parr consent was the one Mr Parr arranged to have publicly notified and the version he sent to other government departments as required under s 81. Mr Parr acted at all times as if the deferred commencement consent was to be given effect. That he considered the notice of determination was a deferred commencement consent is confirmed by a letter from the Council's General Manager to GHD, consultants, dated 10 October 2008 stating the deferred commencement conditions (conditions 3 and 4) had been completed to the Council's satisfaction and that the consent was now operational. Mr Parr is named as the contact for the Council. Mr Parr also amended condition 35 of the Parr consent on 13 January 2009 as can be seen in exhibit 9. This was notified by letter from the Council dated the same day. Mr Bennett believed at all times that the consent was subject to deferred commencement conditions and behaved accordingly, suggesting he received the Parr consent. For example, the minutes of the shareholders' meeting on 5 October 2007 refer to a meeting on 7 September 2007 where deferred commencement conditions were discussed by Mr Bennett and others with Mr Parr.

1. Mr Bennett told the Prosecutor's counsel in cross-examination that he thought he may have also received the Corcoran consent shortly after 30 May 2007 but in later cross-examination by Mato's counsel he stated that he probably received the Corcoran consent later. That the Corcoran consent was used by Mr Bennett as an attachment to the 18 October 2007 email sent to Mr Ceman, Mr Coomes, and Mr Smit, among others, does not establish the Corcoran consent was received by Mr Bennett shortly after 29 May 2007 as the notice of determination notified under s 81(1). I agree with Mr Bennett's counsel's submission that the more likely inference is that the Corcoran consent was provided to Mr Bennett following his request for a copy of the consent in an email to Mr Parr dated 17 October 2007. The evidence of Mr Parr and Mr Bennett supports the inference that the Parr consent was notified to Mr Bennett and raises reasonable doubt that the Corcoran consent was the notice of determination sent to Mr Bennett by email as the applicant for development following the decision of the Council on 29 May 2007 to approve the development application.

1. In light of the conclusion that the Parr consent was notified to Mr Bennett in purported but unsuccessful compliance with s 81(1), it is irrelevant that the Corcoran consent was sent to Mr Potter by Mr Parr after the telephone call by Mr Potter on 19 October 2007. It is also immaterial that this was the consent shown to the three individual defendants in the ROIs conducted by Mr Potter where they all agreed it was the development consent issued by the Council.

1. The Parr consent has some irregularities on its face. It refers to the commencement date of 30 May 2007 yet also states that it is not to operate until two deferred commencement conditions have been complied with to the Council's satisfaction. Under cl 100(4)(a) of the EPA Regulation, where the consent is not to operate until the applicant satisfies the consent authority of a specified matter, then no date from which the consent operates must be endorsed on a notice of determination. That notice did not comply with this clause in the EPA Regulation in that a commencement date is specified but it otherwise appears to be notification of a deferred commencement consent which cannot operate until the deferred commencement conditions are complied with. The Prosecutor submitted that the notice included the commencement date of 30 May 2007 as provided for in s 83(1)(a) as the date endorsed on the notice given to the applicant in accordance with s 81(1). The result is that although a commencement date was endorsed on the notice as required in s 83(1) this was not done in accordance with the notification under s 81(1) and the time for commencement of a deferred consent in s 80(3). Further, being a deferred commencement consent, it could not and did not commence on 30 May 2007. The Corcoran consent reflects the Council's resolution approving the development consent. I have found that version was not the consent notified under s 81(1) of the EPA Act to Mr Bennett.

1. I will address Pselletes and Hopkins . The parties made conflicting submissions about the application of Pselletes and Hopkins in the circumstances of this case. In Pselletes the issue that arose for determination before the Court of Appeal was whether the terms of a development consent were those in the notice of determination issued under s 81(1) of the EPA Act or the consent as determined by resolution of the council. In that case there was conflict between the two. Tobias JA (Ipp and Sackville JJA agreeing) held at [44] that the actual determination of the relevant consent authority under s 80(1) of the EPA Act is distinct from the notification of that determination under s 81, referring to Hopkins . Where the s 81 notice does not correctly reflect the council's decision then the notice is invalid so that the consent does not become operative for the purposes of s 83(1) of the EPA Act.

1. In Hopkins , referred to in Pselletes , the council resolved to grant consent to an extractive industry on certain land. The letter of notification described the proposed development as earthworks. Earthworks were a prohibited use. Because a prohibited development was notified under s 81(1)(b) of the EPA Act Talbot J held at [27] that the notice was not in accordance with s 81 and did not reflect the determination of the council. He considered there was no effective development consent in operation as the consent only operates and becomes effective from 28 days after the date endorsed on the notification which must be in accordance with s 81. He therefore held there was no date from which the consent could be held to operate.

1. The findings in Pselletes and Hopkins appear to be directly applicable to the circumstances here and that results in a finding that no valid notification of the Council's resolution of 29 May 2007 was issued under s 81. I do not agree with Mr Coomes' counsel's submission that the Parr consent reflects the Council's grant of development consent. That has the possible consequence that the consent granted by the Council has never commenced in accordance with the provisions of the EPA Act as the commencement date of 30 May 2007 is in an invalid notice of determination. That there is a commencement date in the notice as provided for in s 83(1) cannot overcome the difficulty that it was not a valid notice under s 81(1) as it does not otherwise reflect the Council's determination of the conditional development consent. For present purposes the essential finding is that no development consent was in force during the offences period. There cannot therefore be a breach of condition 16 giving rise to a breach of the EPA Act in the offences period. It is unnecessary to consider whether there was a breach of condition 16 as a result of the snag removal carried out at Kunanadgee.

1. I do not need to consider further the powers of delegation of Mr Parr when he signed and issued the notice of determination as whether he did properly exercise a power of delegation held by him in doing so does not alter my finding. Whether he signed the deferred commencement consent within his powers as Acting General Manager or as Director of Environmental Services using powers delegated to him, the Parr consent was the subject of the s 81(1) notice with the consequence identified above that no development consent was in force during the offences period. There could not therefore be a breach of the EPA Act during the offences period. The four prosecutions in relation to the EPA Act charges must fail.

Presumption in s 220ZD(2)(b) FM Act does not operate

1. The finding that there was no operative development consent during the offences period means that the conclusive presumption in s 220ZD(2)(b) that a person knew the land concerned was habitat of the kind protected if it is established that the act or omission was a failure to comply with a development consent cannot apply.

1. The Prosecutor submitted in closing submissions that it was not necessary that a development consent be in force as subsection (a) refers to the consent being obtained by early June 2007 before the offences period in this case. That is not the Prosecutor's case particularised in the summonses for the FM Act offences which refer to a development consent in force. It also seeks to interpret subsection (b) in light of subsection (a). Subsection (b) refers to "a failure to comply with any development consent". If a development consent is not in force regardless of whether it has been obtained, no act can constitute a failure to comply with the development consent in the offences period. The terms of s 220ZD(2)(b) are clear and there is no reason to interpret subsection (b) in light of subsection (a).

1. The Prosecutor further submitted in closing submissions that if s 220ZD(2)(b) does not apply then subsection (a) must as that is part of the statutory framework. This subsection was not considered by the parties in the hearing, arising only at the end of the Prosecutor's final submissions. It raises additional factual and legal issues which fall outside the offences particularised by the Prosecutor and cannot be considered in these prosecutions.

1. Returning to the FM Act and the element of the damage to habitat offences of knowledge of habitat, my finding that no development consent was in force in the offences period means that the presumption of knowledge of habitat in s 220ZD(2)(b) in relation to Mr Ceman cannot operate. This essential element of the offence has not been established in relation to Mr Ceman by the Prosecutor. Consequently he is not guilty of the three clearing of habitats offences. Nor can Mato be guilty on the basis of Mr Ceman's actions as the requisite knowledge has not been established in relation to Mato. The Prosecutor has not proved the necessary element of knowledge of the offences.

Conclusion

1. The Prosecutor has not proved beyond reasonable doubt all the necessary elements of the clearing of habitat offences in relation to all of the defendants. It follows that they are not guilty of these offences and these charges should be dismissed. The same finding also applies to the EPA Act charges which should also be dismissed against all defendants. The Prosecutor wishes to have the opportunity to consider whether it wishes to state a case before entry of formal orders and seeks a week to consider its position, which I allow.

Decision last updated: 05 December 2011