Garrett v Freeman (No 3)

[2007] NSWLEC 139

Land and Environment Court

of New South Wales

CITATION:

Garrett v Freeman (No. 3) [2007] NSWLEC 139
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

PROSECUTOR:
Stephen Garrett

DEFENDANT:
Geoffrey Noel Freeman

FILE NUMBER(S):

50043 of 2005 and 50044 of 2005

CORAM:

Lloyd J

KEY ISSUES:

Bias :- criminal prosecution - apprehension of bias - prejudgment - no case to answer - waiver - misleading answers to statutory notice - fair-minded hypothetical observer - application dismissed

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 Pt 5
National Parks and Wildlife Act 1974 s 118D, s 169, s 175B
Protection of the Environment Operations Act 1997 s 193

CASES CITED:

Antoun v The Queen (2006) 80 ALJR 497;
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 231 ALR 663; 81 ALJR 352;
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
Garrett v Freeman (No. 2) [2006] NSWLEC 334;
Johnson v Johnson (2000) 201 CLR 485;
Re JRL; Ex parte CJL (1986) 161 CLR 324;
Re Lusink; Ex parte Shaw (1980) 32 ALR 47;
Vakauta v Kelly (1989) 167 CLR 568

DATES OF HEARING:

05/06/2006; 06/06/2006; 07/06/2006; 08/06/2006; 09/06/2006; 13/06/2006; 14/06/2006; 15/06/2006; 11/07/2006; 12/03/2007; 13/03/2007; 14/03/2007; 15/03/2007; 16/03/2007

 
DATE OF JUDGMENT: 

19 March 2007

LEGAL REPRESENTATIVES:

PROSECUTOR:
D A Buchanan SC
SOLICITOR:
Stephen Garrett

DEFENDANT:
I J Hemmings (barrister) and E Y Ozen (barrister)
SOLICITORS:
Donovan Oates Hannaford

JUDGMENT:

- 19 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Monday, 19 March 2007

LEC Nos. 50043 of 2005 & 50044 of 2005

GARRETT v FREEMAN (No. 3) [2007] NSWLEC 139

JUDGMENT

The Application

1 HIS HONOUR: The defendant by his counsel applies by way of a notice of motion for an order that I disqualify myself from further hearing this case.

2 The application was made in the morning of the fourteenth day of the hearing of two prosecutions of the defendant, Geoffrey Noel Freeman for offences against s 118 D(1) of the National Parks and Wildlife Act 1974 (“the NP&W Act”), by s 175B(1) of that Act, in that he was a person concerned in the management of a corporation, Port Macquarie – Hastings Council, which caused damage to the habitat of threatened species, knowing that the land concerned was habitat of that kind. The threatened species identified by the prosecutor are the Eastern Chestnut Mouse and the Grass Owl.

3 Mr I J Hemmings and Mr E Y Ozen appearing for the defendant, rely upon the settled principle of apprehended bias, that is, that the trial judge must be disqualified if he has conducted himself in such a way that a fair-minded observer might reasonably apprehended that he might not bring an impartial and unprejudiced mind to the resolution of the question whether the defendant ought to be convicted: Antoun v The Queen (2006) 80 ALJR 497 at…