John Raymond Burrell v Nick Jacenko

[1998] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION:	John Raymond Burrell v. Nick Jacenko [1998] NSWLEC 131
PARTIES:	PROSECUTOR John Raymond Burrell DEFENDENT Nick Jacenko
FILE NUMBER(S):	50130 of 1997
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:	Heritage Act s 57(g)
CASES CITED:	The Queen v Chin (1984-1985) 157 CLR 671 at 691; Doney v The Queen (1990) 171 CLR 207 at 214-5:-; Giorgianni v The Queen (1985) 156 CLR 473).; Johnson v Youden [1950] 1 KB 544 at 546 ; Cooper v Coffs Harbour C.C. (1997) 97 LGERA 125 at 134).; Tiger Nominees Pty Ltd v SPCC (1992) 25 NSWLR 715).
DATES OF HEARING:	30/11/98, 01/12/98
DATE OF JUDGMENT:	12/04/1998
LEGAL REPRESENTATIVES:	PROSECUTOR Mr I S Lloyd QC Kearns & Garside Solicitors DEFENDANT Mr T F Robertson (Barrister) Ms F T D De L Davis (Barrister) Woolf & Associates Solicitors

JUDGMENT:

1. The defendant is charged in accordance with a summons amended pursuant to leave granted by Lloyd J on 23 July 1998 that he did remove trees and other vegetation from premises known as Rosemont at 14 Rosemont Avenue, Woollahra in contravention of s 57 and s 156 of the Heritage Act 1977.

2. The relevant provisions of s 57 are:-

(1) A person shall not, in respect of a building, work, relic or place to which an interim conservation order or a permanent conservation order applies or any land (other than such a place) which is subject to an interim conservation order or a permanent conservation order:

(g) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from that place or land,

except in pursuance of an approval granted by the Heritage Council under Subdivision 1 of Division 3.

3. The particulars provided in the summons are important.

(i) Between 16 June and 27 June 1997 the Defendant by his servants or agents entered upon the premises known as Rosemont.

(ii) Whilst upon the premises the Defendant by his servants or agents removed two trees and a large Bougainvillea and other general vegetation.

(iii) On or about 30 March 1994 the said premises were made subject to a Permanent Conservation Order under the Act which is still applicable to the land.

(iv) No approval pursuant to Subdivision 1 of Division 3 of the Heritage Act was granted to the Defendant to remove the trees or vegetation.

4. According to Mr Robertson, who appears for the defendant, the particulars make it clear that the defendant is charged as a secondary participant in the offence. The prosecutor, on the other hand, claims the defendant is vicariously liable for the actions of his servants or agents.

5. At the close of the prosecution's case, Mr Robertson made a no case submission on behalf of the defendant.

6. During the course of cross examination of a witness for the prosecutor, the defendant tendered a planting design in respect of the premises prepared by the witness, Angela Gay Stanton, in May 1983 in order to give her the opportunity to change her evidence already given.

Whether Defendant entitled to argue no Case to answer

7. Mr Lloyd QC contends that, because the defendant has gone into evidence by the tender of the planting design, it is too late to make a no case submission.

8. It is incontestable that oral admissions, which constitute evidence in support of a defendant's case, may be elicited in cross examination without opening the case for the defendant. Dawson J observed in The Queen v Chin (1984-1985) 157 CLR 671 at 691 that it would be inconsistent to adopt a different procedure in relation to documents proved during cross examination.

9. With great respect to his Honour, the logic of that observation is irresistible. Although he noted the contrary practice in New South Wales at that time, he suggested tendering the document during cross examination may be justified simply on the grounds of practicality and convenience.

10. Moreover in my opinion, if it were otherwise, the operation of s 45(3) of the Evidence Act could have an unintended detrimental consequence for the conduct of a defendant's case.

11. The question whether there is a case to answer arises at the end of the prosecutor's evidence in chief. The tender of a document in the course of cross examination of a prosecution witness does not change that temporal context. The question of law to be answered after all is whether the defendant could lawfully be convicted on the evidence as it stands at that time.

12. The Court is not satisfied that the defendant has lost the opportunity to make a no case submission by the tender of the planting design.

The No Case Submission

13. If there is no evidence that supports the proof of the offence charged then there can be no difficulty in reaching a finding that there is no case to answer.

14. The test for the success of a no case submission is found in ) Lord Goddard stated the position in relation to the aiders and abetters as follows:-

Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence.

17. The failure to make inquiries is not enough to render a person liable as a secondary party. Further, acting recklessly is not enough, except where it amounted to wilful blindness.

18. Gibbs CJ summed up his view of the law in Giorgianni at p 487 as follows:-

No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.

19. Wilson, Deane and Dawson JJ, in a joint judgment, said at p 506-7:-

... we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are

such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.

20. Actual knowledge may be established as a matter of inference from the facts and circumstances surrounding the commission of the offence (Margaret Anne Pereira (1988) 35 A Crim R 382 at 385).

21. Mr Robertson asserts that in the present case the following are the factual ingredients of the offence:-

a. the land was subject to a PCO;

b. the principal offender removed two trees, a bougainvillea vine and other general vegetation from that land;

c. no approval was granted to do so by the Heritage Council.

22. Although the prosecutor has presented evidence which supports a finding that b. occurred and that the defendant had knowledge of b., there is no evidence by inference or otherwise that he had actual knowledge of a. or c..

23. The prosecutor has established that a PCO was published in respect of the building known as Rosemont, No. 14 Rosemont Avenue, Woollahra and that it applied to the curtilage or site of the building being the land in Lot 2 DP 554201.

24. There is evidence which suggests that no approval was granted to the removal of the trees, vine or other general vegetation.

25. Mr Robertson relies for his submission on the total lack of evidence of knowledge (or even a suspicion of knowledge) by the defendant (or the principal offender) of the existence of the PCO or the absence of an approval under the Heritage Act.

26. According to Mr Robertson, the prosecutor has to prove not only that there was no reasonable possibility that the Heritage Council had given approval to remove any tree or other vegetation from the land, but also that the defendant, as the secondary party, knew that there was no such reasonable possibility (Cooper v Coffs Harbour C.C. (1997) 97 LGERA 125 at 134).

27. I am not satisfied that the prosecutor is required to prove knowledge of the absence of the approval having regard to the statement of obligation comprised in s 57(1)(g). If the act complained of is done in pursuance of an approval, compliance with the approval amounts to an exception as an exculpation or excuse. The absence of approval is not clearly specified as an ingredient of the offence (EPA v ADI Ltd unreported No. 50075 of 1998 6 November 1998). If that is correct it follows that the onus to prove on the balance of probabilities the trees and other vegetation were removed in pursuance of an approval lies with the defendant.

28. However, that would not dispose of the submission based upon the absence of evidence of the fact that the defendant knew that the PCO had been made and applied to the curtilage or site of the building known as Rosemont. If the defendant is to be regarded as a secondary participant, then the prosecutor has failed to prove actual knowledge of an essential element of the offence, namely that he knew a PCO had been made. Further, there is no evidence to sustain an inference that the defendant, in circumstances surrounding the commission of the alleged offence, wilfully failed to make any inquiry regarding the existence of a PCO. There is nothing to suggest that it can almost be said that the defendant actually knew, by suspecting the fact, and then refrained from obtaining final confirmation in order to avoid the consequences of knowing that the PCO existed.

29. However, on the basis that the statute creates an offence of strict liability which does not require the proof of a guilty mind, Mr Lloyd replied to Mr Robertson's submission based on Giorgianni that the defendant can be vicariously liable as a principal offender for the acts of the persons who actually did the work under his direction and control (Tiger Nominees Pty Ltd v SPCC (1992) 25 NSWLR 715).

30. There is direct evidence to support the prospect that the actions which it is alleged constitute the offence were being undertaken at the relevant time under the direction and personal supervision of the defendant.

31. It cannot be said therefore, in that respect, there is a defect in the evidence which must inevitably lead to the dismissal of the charge.

32. Mr Robertson was at pains to point out that the defendant does not accept, as a matter of construction, there can be vicarious liability under s 57. Even if there can be, the defendant does not accept, as a matter of fact, there was a vicarious relationship between his client and the workmen.

33. Nevertheless I am satisfied that in regard to the issue of vicarious liability, there is a case which the defendant is required to meet.

34. At the very least it is incumbent upon the defendant to distinguish the decision in Tiger Nominees beyond the assertions already made that there is no authoritative decision that applies the principles of strict liability and vicarious liability to words of action such as "remove" in the way they are used in the present context.