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Garrett v Freeman

Garrett v Freeman

Case [2006] NSWCCA 278 6 September 2006

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Reported Decision:
147 LGERA 96

New South Wales

Court of Criminal Appeal

CITATION: Garrett v Freeman [2006] NSWCCA 278

HEARING DATE(S): 17 August 2006

JUDGMENT DATE:
6 September 2006

JUDGMENT OF: McColl JA at 1; Grove J at 14; James J at 20

DECISION: The questions in the stated case are as follows:
1. No
2. Yes
3. Yes
4. Yes
5. No
6. No
7. No.

CATCHWORDS: CRIMINAL LAW - stated case pursuant to s 5AE Criminal Appeal Act 1912 - prosecutions pursuant to ss 118D and 175B of the National Parks and Wildlife Act 1974 - whether proceedings taken by person authorised in that behalf - PRACTICE AND PROCEDURE - defect in substance or form - whether capable of cure by s 16(2) Criminal Procedure Act 1986 - LOCAL GOVERNMENT - statutory protection to employee of council if acts in good faith - s 731 Local Government Act 1993 - whether s 731 applies to criminal prosecutions

LEGISLATION CITED: Clean Waters Act 1970
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Justices Act 1902
Local Government Act 1993
Milk Act 1931
National Parks and Wildlife Act 1974
Workers Compensation Act 1987
Victorian Health Act 1928
Income Tax and Social Security Contribution Assessment Act 1936 (Cth)
Supreme Court Rules 1970

CASES CITED: Bankstown City Council v Alamdo Holdings Pty Ltd (2004) 135 LGERA 312
Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105
Boral Gas (NSW) Pty Ltd v Magill & Anor (1993) 32 NSWLR 501
Corporate Affairs Commission v Bain (1991) 55 A Crim R 73
Crothers v Sheil [1933] HCA 42; (1933) 49 CLR 399
Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153
Fairfield City Council v Colorpak Products (NSW) Pty Ltd (1988) 78 LGERA 144
Fowler v Taylor [1957] VR 593
London City Council v Agricultural Food Products Ltd [1955] 2QB 218
McRae v Coulton (1986) 7 NSWLR 644
New South Wales Bar Association v Muirhead (1998) 14 NSWLR 173
O’Reilly v Commissioners of State Bank of Victoria [1982] HCA 74; (1983) 153 CLR 1
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322.
Stuckey v Iliff [1960] HCA 57; (1960) 105 CLR 164

PARTIES: Stephen Garrett - Prosecutor/Respondent
Geoffrey Noel Freeman - Defendant/Appellant

FILE NUMBER(S): CCA 2006/1663

COUNSEL: T A Game SC - Prosecutor/Respondent
M G Craig QC with E Y Ozen - Defendant/Appellant

SOLICITORS: Stephen Garrett, Solicitor, Department of Environment and Conservation - Prosecutor/Respondent
Donovan Oates Hannaford - Defendant/Appellant

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 05/50043; 05/50044

LOWER COURT JUDICIAL OFFICER: Lloyd J

LOWER COURT DATE OF DECISION: 8 June 2006; 15 June 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006]NSWLEC 322; [2006]NSWLEC 334

- 1 -

CCA 2006/1663
LEC 05/50043
LEC 05/50044

McCOLL JA
GROVE J
JAMES J

Wednesday…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garrett v Freeman

Details

AGLC: Garrett v Freeman [2006] NSWCCA 278
Case: [2006] NSWCCA 278
Decision Date: 6 September 2006

CaseChat Overview and Summary

In the case of Garrett v Freeman, the defendant was prosecuted under sections 118D and 175B of the National Parks and Wildlife Act 1974. The defendant challenged the authority of the prosecutor, the identity of the prosecuting authority, and the applicability of section 731 of the Local Government Act 1993. The Supreme Court of New South Wales considered these arguments and determined the legal issues presented. The court addressed whether the prosecution was taken by a person authorised under the Act and whether the defects in the proceedings could be cured under section 16(2) of the Criminal Procedure Act 1986. Additionally, the court examined whether section 731 of the Local Government Act 1993 provided protection to council employees acting in good faith in criminal prosecutions.

The court found that the prosecutor was authorised to bring the proceedings as they were acting on behalf of the Director of National Parks. The court further determined that the defects in the proceedings were not of a fundamental nature and could be remedied under section 16(2) of the Criminal Procedure Act 1986. Regarding section 731 of the Local Government Act 1993, the court held that this provision did not extend to criminal prosecutions. The court reasoned that the provision was intended to provide protection in civil proceedings and did not apply to criminal matters. Consequently, the defendant's challenges to the proceedings were unsuccessful.

The court upheld the validity of the prosecution and rejected the defendant's claims regarding the authority of the prosecutor, the identity of the prosecuting authority, and the applicability of section 731 of the Local Government Act 1993. The court's decision ensured that the prosecution could proceed, and the defendant faced the consequences of the alleged offences under the National Parks and Wildlife Act 1974. The final orders of the court confirmed the rejection of the defendant's challenges and allowed the proceedings to continue as authorised.

Orders