Garrett v Freeman (No. 2) - [2006] NSWLEC 334

Land and Environment Court

of New South Wales

CITATION: Garrett v Freeman (No. 2) [2006] NSWLEC 334

PARTIES:
PROSECUTOR:
Stephen Garrett
DEFENDANT:
Geoffrey Noel Freeman

FILE NUMBER(S): 50043 of 2005 and 50044 of 2005

CORAM: Lloyd J

KEY ISSUES:
Environmental Offences :- damage to habitat of threatened species - employee acting in good faith for and on behalf of the local government council - section 731 of the Local Government Act 1993 - exemption from liability - does not apply to criminal prosecutions
Words and Phrases:- "any action, liability, claim or demand" - does not apply to criminal prosecutions

LEGISLATION CITED: National Parks and Wildlife Act 1974 s 118D(1) and s 175B(1)
Local Government Act 1993 s 731

CASES CITED: Bankstown City Council v Alamdo Holdings Pty Ltd (2004) 135 LGERA 312;
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 79 ALJR 1511; (2005) 142 LGERA 1;
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105;
Little v The Commonwealth (1947) 75 CLR 94;
Scala v Mammolitti (1965) 114 CLR 153

DATES OF HEARING: 05/06/2006; 06/06/2006; 07/06/2006; 08/06/2006; 09/06/2006; 13/06/2006 and 14/06/06

DATE OF JUDGMENT:
06/15/2006

EX TEMPORE JUDGMENT DATE: 06/15/2006

LEGAL REPRESENTATIVES:
PROSECUTOR:
D A Buchanan SC
SOLICITOR:
Stephen Garrett
Department of Environment and Conservation
DEFENDANT:
I J Hemmings (barrister) and E Y Ozen (barrister)
SOLICITORS:
Donovan Oates Hannaford

JUDGMENT:

- 8 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Thursday, 15 June 2006

LEC Nos. 50043 of 2005 and 50044 of 2005

GARRETT v FREEMAN (No. 2) [2006] NSWLEC 334

EX TEMPORE JUDGMENT (No. 2)

1 HIS HONOUR: The defendant, Geoffrey Noel Freeman, is charged with two offences against s 118D(1) of the National Parks and Wildlife Act 1974 in that, whilst acting in his capacity as a person concerned in the management of Port Macquarie-Hastings Council, by reason of s 175B(1) of the Act he caused damage to the habitat (not being critical habitat) of threatened species knowing that the land concerned was habitat of that kind.

2 The defendant has entered a plea of not guilty. The hearing of the prosecutor’s case has proceeded for the last seven days and at close of prosecutor’s case the defendant’s counsel, Mr I J Hemmings, with him Mr E Y Ozen, submitted that there is no case for the defendant to answer.

3 The evidence adduced by the prosecutor has established the following facts (at least, on a prima facie basis) beyond a reasonable doubt: that the defendant was, at all relevant times, concerned in the management of the council; the council constructed two roads, running through an area owned by the council and known as the Partridge Creek area west of Port Macquarie Airport; the defendant caused the council to construct the roads; the area through which the roads were constructed was habitat of the Eastern Chestnut Mouse and also the Grass Owl, both being threatened species within the meaning of the National Parks and…

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 (No. 2)

Details

AGLC: Garrett v Freeman (No. 2) [2006] NSWLEC 334
Case: [2006] NSWLEC 334
Decision Date: 06/15/2006

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Stephen Garrett prosecuted Geoffrey Noel Freeman on charges of damaging the habitat of threatened species, in contravention of the National Parks and Wildlife Act 1974. Freeman, acting in his capacity as an employee of Port Macquarie-Hastings Council, caused the construction of two roads through a habitat area known as Partridge Creek, which housed threatened species such as the Eastern Chestnut Mouse and Grass Owl. Freeman was aware that the area was a habitat of these species at the time of the road construction. Freeman pleaded not guilty, and the court heard the prosecutor’s case over seven days. The court considered the submissions made by Freeman’s counsel, who argued that Freeman was acting in good faith for the purpose of executing the Local Government Act 1993 on behalf of the council, and therefore should be exempt from any liability under s 731 of the Act.

The court rejected Freeman's argument that the exemption from liability under s 731 of the Local Government Act 1993 applied to criminal prosecutions. The court reasoned that the exemption from liability provision must be strictly construed, and the language used in the provision did not extend to criminal prosecutions. The court referred to the High Court's decision in Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 79 ALJR 1511; (2005) 142 LGERA 1, which emphasised the strict interpretation of exemption from liability provisions. The court also highlighted the policy consideration that there should be no exemption from liability or immunity from prosecution for criminal offences that apply to all citizens generally.

The court held that Freeman's actions, if proven, constituted a criminal offence under the National Parks and Wildlife Act 1974, and therefore the exemption from liability under s 731 of the Local Government Act 1993 did not apply. The court rejected Freeman's submission that there was no case to answer, and the trial proceeded.

Orders