Ku-ring-gai Council v John David Chia (No 15)

[2019] NSWLEC 1

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ku-ring-gai Council v John David Chia (No 15) [2019] NSWLEC 1
Hearing dates:	16, 17, 18, 20 and 24 April; 16 and 22 May; 22, 23, 24, 25, 26, 29, 30 and 31 October; 1, 2, 5, 6, 12, 13, 14, 16 and 30 November; 4 December; and further written submissions 8 and 10 December 2018
Date of orders:	31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [534]
Catchwords:	ENVIRONMENTAL OFFENCES – defendant alleged to have procured an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) – defendant alleged to have directed the lopping of trees contrary to tree preservation order   PROSECUTION – criminal trial – defendant pleaded not guilty to environmental offence – whether established beyond reasonable doubt that defendant procured lopping of trees contrary to tree preservation order
Legislation Cited:	Crimes Act 1900 (NSW) s 351 Criminal Procedure Act 1986 (NSW) s 133 Environmental Planning and Assessment Act 1979 (NSW) ss 26, 122, 125 Evidence Act 1995 (NSW) ss 20, 136, 165 Land and Environment Court Act 1979 (NSW) s 55 Rural Fires Act 1997 (NSW) ss 100Q, 100R
Cases Cited:	Anthony Tauszik v Gosford City Council [2006] NSWCCA 193; (2006) 146 LGERA 428 Astill v R (1992) 63 A Crim R 148 Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Canterbury City Council v Saad [2000] NSWLEC 278; (2000) 112 LGERA 107 Coffs Harbour City Council v Hickey [2004] NSWLEC 531 Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 Derbas v R; Rustom v R [2007] NSWCCA 118 Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73 Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43 Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 Hornsby Shire Council v Clyne [1998] NSWLEC 269 Hornsby Shire Council v Clyne (1998) 99 LGERA 432 Houda v The State of New South Wales [2005] NSWSC 1053; (2005) Aust Torts Reports 81-816 Jenkins v The Queen [2004] HCA 57; (2004) 211 ALR 116 Kanaan v R [2006] NSWCCA 109 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Ku-ring-gai Council v John David Chia (No 10) [2018] NSWLEC 176 Ku-ring-gai Council v John David Chia (No 12) [2018] NSWLEC 184 Ku-ring-gai Council v John David Chia (No 4) [2018] NSWLEC 75 Majinski v Western Australia [2013] WASCA 10; (2013) 226 A Crim R 552 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 R v GW (2016) 258 CLR 108; [2016] HCA 6 R v Momodou [2005] 2 All ER 571; [2005] EWCA Crim 177 R v Ncanana [1948] 4 SA 399 R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 Randwick City Council v Kara-Ali [2015] NSWLEC 5 Rao v Canterbury City Council [2000] NSWCCA 471, (2000) 112 LGERA 360 Seven Network Limited v News Limited [2007] FCA 1062 Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59 The Council of the City of Gosford v Tauszik [2003] NSWLEC 354; (2003) 131 LGERA 434 The Council of the City of Gosford v Tauszik [2005] NSWLEC 183 Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Texts Cited:	NSW Rural Fire Service, “10/50 Vegetation Clearing Code of Practice for New South Wales”
Category:	Principal judgment
Parties:	Ku-ring-gai Council (Prosecutor) John David Chia (Defendant)
Representation:	Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with A Djemal (April, May) and D Beaufils (October, November, December) (Defendant)   Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant)
File Number(s):	2016/00293131

Judgment

1. The defendant, John David Chia, is charged with an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). The charge arises from the alleged unlawful cutting down and removal of 74 trees protected by the Ku-ring-gai Council Tree Preservation Order (‘TPO’).

2. Ku-ring-gai Council (‘prosecutor’) alleges that the defendant, between 6 October and 21 October 2014, directed contractors to cut down 74 trees on land which included the defendant’s property at 53 Carnarvon Road, Roseville; a Crown reserve adjacent to his property; and Roseville Golf Club (collectively ‘the site’) in breach of the TPO.

3. The defendant has pleaded not guilty to the charge and a trial has been held.

4. During the course of what was a lengthy hearing, a large number of issues were raised, resulting in a regrettably lengthy judgment. However, the core issue upon which the case turns is whether the defendant gave directions for the cutting down of the trees the subject of the charge and is therefore vicariously liable for the commission of the offence. The prosecutor must establish that the defendant directed the cutting down of the trees beyond reasonable doubt.

Background

5. At the time of the alleged offence, the defendant lived with his wife in Killara, but of relevance to the current proceedings, he also owned the property at 53 Carnarvon Road, Roseville (‘Carnarvon Road property’).

6. The prosecutor alleges that the defendant retained Craig Edgar of Expert Tree Solutions to carry out the clearing work the subject of the charge. Mr Edgar gave evidence during the hearing, as did Jesse Draeger, Mr Edgar’s nephew who worked for Mr Edgar on a contract basis, and James McKenzie, who had no business association with Mr Edgar but whom the prosecutor alleges the defendant separately retained to assist Mr Edgar and Mr Draeger remove the trees which they had cut down.

7. A charge was brought against Mr Edgar for his involvement in the same incident. Mr Edgar pleaded guilty to the charge and was sentenced on 1 May 2017: Ku-ring-gai Council v Edgar [2017] NSWLEC 49 (‘Edgar proceedings’).

8. I note that the defendant submitted that each of Mr Edgar, Mr Draeger and Mr McKenzie should be prevented from giving evidence in these proceedings. The basis for that objection and my reasons for rejecting it can be found in Ku-ring-gai Council v John David Chia (No 4) [2018] NSWLEC 75.

The alleged offence

9. At the time of the offence, s 125(1) provided:

125   Offences against this Act and the regulations

(1)   Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

…

10. Clause 42 of the Ku-ring-gai Planning Scheme Ordinance (‘Ordinance’) provided:

Preservation of trees

(1)   Where it appears to the responsible authority that it is expedient for the purpose of securing amenity or of preserving existing amenities it may for that purpose make an order (hereinafter referred to as a "tree preservation order") and may by like resolution rescind or vary any such order.

(2)   A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority may think fit.

(3)   Any such order may relate to any tree or trees or to any specified class, type or description of trees on land described in such order and such land may be described particularly or generally by reference to the municipality or any divisions thereof.

(4)   The responsible authority shall forthwith upon the making of a tree preservation order cause notice of the making of such order to be published in the Gazette and in a newspaper circulating in the area in which the land described in the order is situate [sic].

(5)   In any proceedings under this clause it shall be sufficient defence to prove that the tree or trees ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed, was or were dying or dead or had become dangerous.

(6) The powers conferred upon the responsible authority by this clause shall not extend to any trees within a State Forest or land reserved from sale as a Timber or Forest Reserve under the Forestry Act 1916.

11. The TPO, made pursuant to cl 42 of the Ordinance, relevantly provided:

On what legislative basis has this Order been made?

This order is made pursuant to section 26(e) of the Environmental Planning and Assessment Act 1979, and in accordance with Clause 42(4) of the Ku-ring-gai Planning Scheme Ordinance. This Tree Preservation Order was adopted by Council resolution of 12 December 2006, and advertised in the Government Gazette of 25 January 2007.

…

To what land does this Tree Preservation Order apply?

This order applies to the whole of the local government area of Ku-ring-gai with the exception of those lands dedicated as National Park.

What is a tree under this Order?

A Tree under this Order means a plant with any one or all of the following criteria: A perennial plant with at least one self supporting woody, fibrous stem, whether native or exotic, which is 5 metres or more in height or has a trunk diameter of 150mm or more measured at ground level.

What tree works are prohibited?

This Order prohibits the injury of any tree protected under this Order without the written consent of Council. Injury under this Order means damage to a tree and includes:

removal of a tree

pruning, damaging/tearing of live branches

lopping (height reduction) topping of a tree

…

When is Council’s consent required?

Consent from Council will be required to undertake works to trees protected under this Order.

What is an offence under this Order?

A person who contravenes or causes or permits to be contravened the provisions of this order shall be guilty of an offence.

What are the penalties for an offence under this Order?

A person who contravenes the provisions of this order will be liable to prosecution and penalties in accordance with the Environmental Planning and Assessment Act, 1979.

12. A contravention of a tree preservation order falls within the ambit of a thing “forbidden to be done” under the EPA Act such that it attracts the operation of s 125(1): The Council of the City of Gosford v Tauszik [2005] NSWLEC 183 at [23]; Anthony Tauszik v Gosford City Council [2006] NSWCCA 193; (2006) 146 LGERA 428 at [49].

13. An offence against s 125(1) is an offence of strict liability: Rao v Canterbury City Council [2000] NSWCCA 471; (2000) 112 LGERA 360 (‘Rao’) at [53]; Canterbury City Council v Saad [2000] NSWLEC 278; (2000) 112 LGERA 107 at [33].

14. The prosecutor submits that the elements of the offence with which the defendant is charged are as follows:

1. The prosecutor was authorised under the EPA Act to forbid persons from injuring or causing injury to trees (noting that injury is defined in the TPO to include lopping and removal);

2. The prosecutor did in fact forbid trees of a specified class or description, which included the subject trees, from being injured except with its written consent; and

3. The defendant engaged in that forbidden conduct by causing the trees in question to be lopped and removed without the consent of the prosecutor.

15. In Randwick City Council v Kara-Ali [2015] NSWLEC 5 (‘Kara-Ali’), which similarly involved the alleged contravention of a tree preservation order, Sheahan J said at [4]:

To succeed in this prosecution, it seems to me that the Council has to satisfy the Court, beyond reasonable doubt, of the following elements of the offence charged:

(a)   Council had authority to forbid the cutting down of the subject trees;

(b)   A TPO was in force and applied to the subject trees;

(c)   None of the exceptions to the prohibition in the TPO is/are enlivened;

(d)   The Council did not consent to the removal of the trees; and

(e)   The defendant caused or authorized the removal of the trees.

16. In the present proceedings, the prosecutor says that the defendant is guilty by reason of vicarious liability. It relies upon an exception to the general principle that an accused is not vicariously liable for the conduct of contractors. As Preston CJ of LEC said in North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 at [114]:

… Generally, an accused will not be vicariously liable for the conduct of an independent contractor: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 58-59 [277]. There are exceptions to this general principle. An accused may be vicariously liable where the accused has directly authorised the doing of the actus reus by the independent contractor: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [104] – 263 [106]. An accused may be vicariously liable where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [280], 61-62 [290]. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [102], Pearlman J described the content of the control test as follows:

“That test involves a right to direct and control a course of action, in circumstances where the right is capable of exercise and is, or is likely to be, effective. It relates to the manner in which the independent contractor undertakes the course of action, that is, the way in which the tasks are to be performed or how they are to be carried out”.

17. Similarly, Preston J explained in Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 (‘Walker No 2’) at [116]:

One exception is that an accused may be vicariously liable where the accused has directly authorised the doing of the actus reus by the independent contractor: see Environment Protection Authority v Multiplex Constructions Pty Ltd at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262-263 [104]-[106]. An act constituting the actus reus of an offence will be the act of the accused if the accused orders the contractor to do the act which constitutes the offence, to do some act which comprises that act, or to do some act which leads by all physical necessity to the offence: Stoneman v Lyons (1975) 133 CLR 550 at 573-574; Coffs Harbour City Council v Hickey [2004] NSWLEC 531 at [52]. Another exception is that an accused may be vicariously liable where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work: see Environment Protection Authority v Multiplex Constructions Pty Ltd at 59 [280], 61-62 [290] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd at 262 [102].

18. This standard was held to be met in respect of the removal of native vegetation by Pepper J in   Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73 at [317], where her Honour said:

In the present case, I find that the instructions given by Mr Fife to ELC were sufficient to amount to a direction to do an act that would lead by all physical necessity to the clearing of native vegetation. Mr Fife directed ELC to remove the “undergrowth” or “small regrowth”. While what this constituted was left up to ELC, given the absence of instruction by Mr Fife as to what could be removed, the execution of Mr Fife’s instructions led by all physical necessity to the clearing of native vegetation. The clearing of “undergrowth” and/or “small regrowth” constituted the work that ELC was directed by the defendant to perform, which included the removal of native vegetation. The instructions, framed as they were, led to much more than a mere risk that the consequential event of unlawful clearing of native vegetation would occur; they led inexorably and inevitably to this end (McConnell Dowell at [119]). I make this finding in light of the earlier findings made by me concerning the reliance placed by the defendant on ELC’s specialist knowledge and expertise. For this reason I am therefore satisfied beyond reasonable doubt that the defendant is vicariously liable for the clearing carried out by ELC.

19. In so doing, Pepper J distinguished the facts in that case from those in Coffs Harbour City Council v Hickey [2004] NSWLEC 531. In that case, at [63], Lloyd J found:

The instructions given by Mr Michael Hickey are the only positive act by which the defendants could be said to have caused the felling of the trees. Those instructions were to clear weeds, lantana and regrowth. I am not satisfied beyond a reasonable doubt that those terms of engagement were intended to include the particular trees that were felled. As I mentioned earlier (at [54] above), there was no express instruction to interfere with any trees per se. While there is no doubt that Mr Hickey intended to convey the instructions he gave, it is not clear that those instructions would ordinarily and naturally lead to the felling of trees. This is particularly so given that Mr Perkins did not clarify his understanding of the instructions and Mr Hickey was relying on the expertise of the contractors. Mr Marcus Hickey gave no instructions to Mr Temoana. As such there is a reasonable doubt as to whether Mr Marcus Hickey issued any instructions at all which could constitute a positive act that caused the trees to be felled. Taking into account the whole of the circumstances I am not satisfied beyond a reasonable doubt that either defendant caused the trees to be felled by the contractors.

20. Accordingly, I am satisfied that the legal position is that the defendant will be guilty of the offence if it is established beyond reasonable doubt that he ordered the contractors to do the act which constitutes the offence; to do some act which comprises that act; or to do some act which leads by all physical necessity to the commission of the offence: Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59 (‘Stoneman v Lyons’) at 573-574.

21. Further, the TPO provides a number of exemptions which, if applicable, will provide a defence to the offence:

When is Council’s consent not required?

Works that do not require consent are called exemptions. The following exemptions to the order apply:

1. Dead trees and branches

Removal of completely dead trees and dead branches.

2. Tree branches directly over roof lines

Removal of tree branches which directly overhang the roof of a residence or commercial building, may be pruned back to the nearest branch junction or collar to clear the roofline, provided the owner of the tree is in agreement. Pruning must be consistent with the relevant Australian Standard for Pruning of Amenity Trees, and must not result in a detrimental impact to the future health or stability of the tree or compromise the form of the tree. Detached Garages, all carports and ancillary buildings are not included in this exemption.

3. Trees within 3.0 metres of an existing dwelling.

Removal of trees within 3.0m of an approved, existing residential building. This distance is measured from the centre of the trunk of the tree at ground level to the external wall of the building. The trunk of the tree must be located on the same property. Verandas, all carports, detached garages, and ancillary buildings, cantilevered and pier supported structures such as balconies and decks are not included within this exemption.

4. Branches and trees near electrical wires.

Works consistent with the provisions of section 48 of the Electricity Supply Act 1995. For electrical service lines to properties, this would apply to branches within 0.5m of these lines. This exemption applies to tree branches not trunks.

5. Trees on Council land

Tree works undertaken by Council or Council’s authorised agents, on Council owned land, providing these works are consistent with Council’s policies and internal guidelines. The removal or trimming of trees in accordance with the Roads Act 1993, when undertaken by Council or Council’s authorised agents, Council owned or managed parks or bushland, providing these works are consistent with Council’s policies and internal guidelines.

6. Trees approved for removal under development consent

Trees works for which consent has been granted in accordance with a valid development consent upon release of a Construction Certificate.

7. Exempt tree species

All of the following species are exempt:

[none of the species exemptions are relevant to the alleged offence]

…

8. Rural Fires Act 1997

Tree works for which an order or permit has been issued under the Rural Fires Act 1997.

22. The prosecutor contends that none of the exemptions provided in the TPO, which would provide a defence to the offence with which the defendant has been charged, apply in the circumstances.

23. At the time of the alleged offence, the NSW Rural Fire Service had recently promulgated the “10/50 Vegetation Clearing Code of Practice for New South Wales” (‘10/50 Code’) which was given force under s 100Q of the Rural Fires Act 1997 (NSW) (‘Rural Fires Act’) which relevantly provides:

100Q   The 10/50 Vegetation Clearing Code of Practice

(1)   The Commissioner is to prepare a 10/50 Vegetation Clearing Code of Practice for the carrying out of vegetation clearing work on land situated within a 10/50 vegetation clearing entitlement area pursuant to section 100R...

...

24. Section 100R of the Rural Fires Act relevantly provides:

100R   Carrying out vegetation clearing work

(1)   This section applies to the following buildings only:

(a)   a building containing habitable rooms that comprises or is part of residential accommodation or a high-risk facility (but not if there is no lawful authority for the use of those rooms as habitable rooms),

(b)   a building that is a farm shed (but not if there is no lawful authority for the use of the building as a farm shed).

(2)   The owner of land in a 10/50 vegetation clearing entitlement area may carry out any of the following vegetation clearing work on the land if the work is carried out in accordance with the requirements of this section:

(a)   the removal, destruction (by means other than by fire) or pruning of any vegetation (including trees or parts of trees) within 10 metres of an external wall of a building,

(b)   the removal, destruction (by means other than by fire) or pruning of any vegetation, except trees or parts of trees, within 50 metres of an external wall of a building.

(3)   Vegetation clearing work may be carried out under this section despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003 or the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act.

(4)   A tree must not be removed or destroyed under subsection (2) (a) unless part of a trunk of that tree, having a circumference at a height of 1.3 metres above the ground of more than 0.3 metres, is within 10 metres of the external wall of the building.

(5)   If there is no external wall of a building on land owned by a person that authorises particular vegetation clearing work under this section, the person may rely on an external wall of a building on adjoining land to authorise the clearing. However, the person must not carry out the work unless he or she has obtained the written consent to the particular vegetation clearing work of each owner of adjoining land on which there is an external wall of a building that could be used to authorise the work.

Note. For example, a tree on a person’s land that is more than 10 metres away from the person’s home but that is within 10 metres of the homes of 2 neighbours could be removed under this section only if both of those neighbours provide written consent.

(6)   Vegetation clearing work is not authorised to be carried out under this section on land unless it is carried out by or with the authority of the owner of the land.

(7)   Vegetation clearing work is not authorised to be carried out under this section unless it is carried out in accordance with the 10/50 Vegetation Clearing Code of Practice.

(8)   The Commissioner may prescribe in the 10/50 Vegetation Clearing Code of Practice whether, for the purposes of this section, particular rooms of a building are or are not habitable and what is or is not an external wall of a building.

(9)   A person is not guilty of an offence under any of the following Acts merely because of the carrying out of vegetation clearing work in accordance with this section:

…

(b) Environmental Planning and Assessment Act 1979,

…

(10)   In this section:

lawful authority means development consent or other lawful authority under the Environmental Planning and Assessment Act 1979.

25. The key provision of the 10/50 Code is contained in section 7, which relevantly provides:

7   Vegetation clearing provisions

7.1   Clearing distance

A landowner may carry out the following vegetation clearing work on their own land:

>   the removal, destruction (by means other than fire) or pruning of any vegetation (including trees) within 10 metres; and

>   the removal, destruction (by means other than fire) or pruning of any vegetation, (except for trees) within 50 metres

of an external wall of a building containing habitable rooms that comprises or is part of residential accommodation or a high-risk facility.

It does not matter whether the residential accommodation or high-risk facility is located on the owner’s land or adjoining land. The allowable distances apply irrespective of whose land the residential accommodation or high-risk facility occurs on.

Trees may only be removed where the trunk is within 10 metres of the residential accommodation or high-risk facility.

Note: a person may not clear adjoining land or any other land without the approval of the landowner.

7.2   The type of vegetation that can and cannot be cleared, including the types of trees

All types of vegetation may be cleared other than mangroves and salt marsh on public land.

…

26. The prosecutor submits that the 10/50 Code does not assist the defendant because none of the 74 removed trees was within 10m of an external wall of a building containing habitable rooms. Even if this requirement was satisfied, the prosecutor submits that the defendant did not have owner’s consent to remove the trees on the Roseville Golf Club or the Crown reserve as required by section 5 of the 10/50 Code and s 100R(6) of the Rural Fires Act.

27. Furthermore, the prosecutor notes that the exemption under the TPO which refers to the Rural Fires Act (exemption no 8, extracted above at [21]) states that it is an exemption to the TPO to carry out tree works “for which an order or permit had been issued under the Rural Fires Act”.

28. Whilst it acknowledges that the words “order” and “permit” are not defined under the TPO, the prosecutor notes that the 10/50 Code is dealt with in Division 9 of the Rural Fires Act in which there is no use of the terminology “order” or “permit”. Therefore, the prosecutor says that the 10/50 Code is not, strictly speaking, an “exemption” to the TPO.

29. As noted above, s 100R(3) of the Rural Fires Act relevantly provides that clearing work may be carried out pursuant to s 100R “despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003 or the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act”. The TPO is an instrument made under the EPA Act such that s 100R(3) provides that it is displaced by the 10/50 Code.

30. Consequently, the prosecutor accepts that it bears the onus of proving that the tree clearing works with which the defendant is charged do not fall within the 10/50 Code. It does not rely upon the line of authority in this Court that the defendant has the onus of establishing that the tree works fall within an exemption to the TPO on the balance of probabilities, because the 10/50 Code is not an exemption to the TPO but rather displaces it to the extent that it applies by virtue of s 100R(3) of the Rural Fires Act.

31. I note the prosecutor’s concession in this regard but consider that it is of relatively little moment on the basis that it is not contended by the defendant that the 10/50 Code exempts the relevant trees from the operation of the TPO. In any event, to the extent that it is necessary, I am satisfied beyond reasonable doubt, and the parties agree, that the 10/50 Code does not apply to any of the 74 trees as none of them was within 10m of an external wall of a building containing habitable rooms and that the majority were on land not owned by the defendant and were felled in the absence of owners’ consent.

Whether the TPO provides for the offence with which the defendant is charged

32. On p 146 and following of its closing written submissions (and addressed orally at Tcpt, 4 December 2018, p 1449(47) – p 1452(2)), the defendant raised a further issue in relation to the TPO for the first time. Given that the argument was raised so late in the proceedings, I granted leave for the prosecutor to provide short written submissions in reply which were received on 8 December 2018.

33. In relation to this submission, the defendant notes the wording of cl 42(2) of the Ordinance, which is extracted above at [10] and which provides:

A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority may think fit.

34. The defendant submits that the TPO states that it was made pursuant to s 26(e) of the EPA Act but that s 26(e) in fact only applies to the making of an environmental planning instrument such as the Ordinance, such that the correct source of power for making the TPO should be seen as cl 42 of the Ordinance.

35. I accept that submission. It is abundantly clear from existing case law that a TPO is not an environmental planning instrument (see Hornsby Shire Council v Clyne [1998] NSWLEC 269 at [14]; The Council of the City of Gosford v Tauszik [2003] NSWLEC 354; (2003) 131 LGERA 434 at [25]) and that s 26(e) of the EPA Act therefore did not authorise the making of the TPO directly but rather via cl 42 of the Ordinance.

36. The defendant then submits that because cl 42 of the Ordinance does not authorise the prosecutor to prohibit someone from “causing” or “permitting” a contravention of the TPO, the passage of the TPO which provides “a person who contravenes or causes or permits to be contravened the provisions of this order shall be guilty of an offence” is beyond power insofar as it purports to prohibit the causing or permitting of the TPO’s contravention.

37. The defendant submits that this wording is a mere “note” in the TPO which cannot of itself create the offence with which the defendant is charged. It submits that the “note” is, at most, how the prosecutor interprets the Ordinance or the law generally and further submits that such an understanding is incorrect.

38. The defendant therefore submits that the TPO is invalid to the extent that it purports to prohibit the “causing” of a contravention of the TPO and that the only actus reus criminalised is the physical cutting of trees.

39. The prosecutor says that the better view is that cl 42(2) of the Ordinance is expressed in sufficiently broad language to empower the prosecutor to create a TPO which prohibits a person from causing injury to trees. However, it submits that it does not matter in any event because it relies on the principle of vicarious liability to ground the offence rather than the TPO.

40. I accept that the “note” in the TPO cannot independently create an offence which is not authorised by the Ordinance. However, whether it is covered by cl 42 of the Ordinance or not, I consider that the “note” is correct insofar as it is reflective of the common law position articulated by the High Court in Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 (‘Giorgianni’) that an “aider, abettor, counsellor or procurer” is in the same position as a principal offender. As Wilson, Deane and Dawson JJ said at 500:

…The requirement of intention on the part of an aider, abettor, counsellor or procurer or, if we may use the term, a secondary participant in a crime, is a requirement at common law and it is a requirement which is not affected by s. 351 of the Crimes Act. That section merely restates the common law by providing, in effect, that in proceeding against a secondary participant in a misdemeanour, no distinction is to be drawn between the principal offender and the secondary participant…

41. In any event, the prosecutor does not rely upon the provisions of the TPO which relate to causing but rather on the established principles of accessorial liability extracted above at [16]-[17]. In other words, it is not suggested that the fact that the TPO includes the word “causes” is necessary for the Court to find the defendant guilty of the offence.

42. The summons in the present matter articulated the offence pursuant to s 125(1) of the EPA Act in the following way:

…An order [is sought] that the Defendant, John David Chia, of [xxx] [xxx] Street, Killara, in the State of New South Wales, appear before a Judge of the Court to answer the charge that between on or about 6 October 2014 to on or about 21 October 2014 at Roseville in the State of New South Wales, he committed an offence against s125(1) of the Environmental Planning and Assessment Act 1979 (“the Act”) in that he did the following thing which was forbidden to be done by a Council authorised under the Act to forbid that thing to be done:

He did cause injury trees [sic] protected by the Ku ring gai Tree Preservation order (“the TPO”) without the consent of the Prosecutor where that consent was required.

43. The summons then gives the particulars of the alleged offence. For present purposes it is sufficient to extract the following:

The manner of contravention by the Defendant

The Defendant directed contractors to carry out works involving the said injury to 74 trees on the Site without having obtained the consent of the Prosecutor, where such consent was required.

44. The fact that the word “causes” is used may be indicative of a mistaken belief on the part of the prosecutor that criminal liability arises from the “note” in the TPO but I do not consider that anything turns on this. It is clear from the particularisation of the offence in the summons that the manner in which the defendant is said to have caused the offence is by directing contractors to carry out works. This falls comfortably within both the manner in which the prosecutor has submitted the defendant is vicariously liable for the commission of the offence and the notion of procurement discussed by the High Court in Giorgianni.

45. I should note for completeness that I do not consider that there is anything in this reasoning inconsistent with the decision of Talbot J in Hornsby Shire Council v Clyne (1998) 99 LGERA 432 (‘Clyne’). In that case, the prosecutor sought to amend a summons which the defendant contended was duplicitous. The summons relevantly provided:

…“on or about 1 October 1997, at Dural in the State of New South Wales, the Defendant committed and caused to be committed an offence against the Environmental Planning and Assessment Act, 1979 section 125, whereby the Defendant caused to be pruned, lopped, cut down and/or removed trees contrary to the Council’s Tree Preservation Order…”

46. The duplicity issue which arose in Clyne is not relevant to the current proceedings, however of some relevance is the defendant’s submission in that case that the charge of causing an offence to be committed against s 125 of the EPA Act is not an offence known to law.

47. At the relevant time, the Land and Environment Court Act 1979 (NSW) (‘LEC Act’) included s 55 which provided that a person who “aids, abets, counsels or procures” an offence could be charged as if he or she were a principal offender. Consistently with my reasoning in Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 at [90]-[103], I consider that s 55 of the LEC Act was merely declaratory of the common law position in relation to accessorial liability (as the High Court said of s 351 of the Crimes Act 1900 (NSW) in Giorgianni at 500, extracted above at [40]).

48. At 433-434 in Clyne, Talbot J said:

Mr Garling contends that the summons is defective by reason of a failure to charge the defendant with any identified offence and the summons cannot now be amended to allege an offence for the first time. Notwithstanding s 55 of the Land and Environment Court Act, there is no offence of causing an offence to be committed under s 125 of the Environmental Planning and Assessment Act 1979 (NSW): see Border v David Brown Corporation of Australia Pty Ltd (1987) 62 LGRA 207.

49. This reasoning is not germane to the current case because the defendant is not charged with the offence of “causing an offence to be committed” under the EPA Act. Rather, as can be seen from [42] and [43] above, he is charged with an offence against s 125 of the EPA Act which is articulated as causing a breach of the TPO and particularised as arising from the defendant directing contractors to carry out certain works. It may have been preferable that the summons used the wording “vicariously cause” or “procure” rather than “causes” but I am not persuaded that this was a mandatory requirement when the offence and the manner in which it is alleged to have been carried out are plainly articulated in the summons.

50. In this respect, I note the decision of Mason P, with whom Dowd and Austin JJ agreed, in Rao. At [22], his Honour said:

On appeal, the charges were also said to be defective because they did not state in effect that the development was being carried out in a manner said to contravene the relevant conditions. I do not agree. Each summons is pleaded inelegantly with its reference to causing the development consent to be implemented contrary to the specified conditions in the nominated manner. But the sense of each charge is perfectly clear, namely that conditions of a (necessary) development consent were infringed in the manner stated at the conclusion of each of the charges. (emphasis in original.)

51. The reasoning in Rao is entirely apposite to the flaws alleged by the defendant in the present case. Accordingly, I find that the manner in which the summons was particularised and the hearing carried out was open to the prosecutor and I do not accept that the only relevant criminal conduct in relation to the TPO is the physical carrying out of prohibited tree works. That conclusion would be contrary to established law in relation to vicarious liability and the common law position in relation to accessorial liability.

Evidence

52. I proceed now to give an overview of the evidence relied upon by the parties. The evidence in the case is voluminous and my description of it here is not intended to be exhaustive. I shall return to relevant aspects of the evidence in greater detail throughout the judgment in the course of making findings.

53. The prosecutor tendered an A3 aerial image of the site with cadastral markings and markings made by Mr Edgar; a bundle of four A4 photographs showing trees being lopped; a photograph identified by Mr Edgar as showing one of his trucks; an A4 aerial photograph with markings made by Mr Edgar during his interview with Phillip Myles (who, as will be explained further below, was a private investigator retained by the prosecutor) dated 11 October 2014; a further A4 aerial photograph dated 11 October 2014 with markings made by Mr Edgar in Court including “rock shelf” and “cliff face”; a copy of an aerial photograph of the site with two further markings made by Mr Edgar; an aerial photograph dated 11 September 2014 and marked by Mr McKenzie; a document marked up by Mr McKenzie; a photograph referred to in Mr McKenzie’s record of interview dated 19 August 2016; a photograph marked by Mr Draeger; a bundle of documents comprising screenshots of mobile telephone text messages; two lever arch folders of documents comprising exhibits to an affidavit of Wendy Miller; a record of interview between officers from the prosecutor and Ken Hutton; an aerial photograph marked by Mr Hutton; a record of interview between officers from the prosecutor and Matthew Willis; a document styled ‘Fire Risk Assessment’, dated 3 March 2014; an enlarged survey plan of the Carnarvon Road property marked by Ms Miller; correspondence between Andrew Hyden and Mr Robertson dated 27 November 2014 and 1 December 2014; correspondence between Mr Hyden and Mr Robertson attaching a Bushfire Risk Assessment; a letter to Mr Hyden from Mr Robertson dated 17 December 2014; a lever arch folder comprising an exhibit to the affidavit of Christine Dunand; a letter appointing Mr Hyden as the defendant’s agent; a letter of 9 December 2014 from Mr Hyden to Roseville Golf Club; a letter of 23 December 2014 from Mr Hyden to Roseville Golf Club; the audio and transcript of records of interview undertaken by Mr Myles with each of Mr Edgar, Mr Draeger and Mr McKenzie; and a document indicating phone contact between witnesses and identifying phone location data.

54. The defendant tendered an aerial photograph of the site marked by Mr Edgar “Northern”; an affidavit sworn by Mr Edgar for the Edgar proceedings and the transcript of the Edgar proceedings; a photocopy of two mobile telephone text messages between Mr Myles and Mr Edgar dated 5 August 2016; three photocopies of prosecution exhibits marked by Mr McKenzie; a photocopy of a text message dated 23 September 2014; a photocopy of text messages purportedly of 25 and 26 September 2014 and identified by Mr McKenzie; a letter of Ms Miller dated 9 December 2014; a bundle of letters comprising correspondence between Mr McKenzie senior and the prosecutor; a letter from FactProbe Investigations dated 8 August 2016, and addressed to James Aloysius McKenzie and signed by Mr Myles; two letters dated 1 February 2015 and 9 February 2015 each signed, respectively, by J.A. McKenzie and James McKenzie; a copy of an email chain comprising two emails dated 31 January 2017 and 1 February 2017 between James McKenzie and Adam Stipcevic; a further photograph marked by Mr McKenzie; an email dated 29 January 2016 from Mr Merlino (a solicitor who practises at the firm retained by the prosecutor) to Mr Myles; a log prepared by Jacqueline Doran dated 3 February 2016; a photocopy of text message screenshots of 27 July 2016, 1 August 2016, and 4 August 2016; a file note prepared by Mr Myles dated 2 August 2016; a file note prepared by Mr Myles dated 4 August 2016; a screenshot of a text message of 5 August 2016; further pages of screenshots of text messages dated 4 August 2016, 14 August 2016, 19 August 2016, and 22 August 2016; a typed copy of a handwritten file note prepared by Ms Miller dated 21 October 2014; the audio and transcript of a record of interview between officers of the prosecutor and the defendant dated 5 February 2015; an email from Matthew Drago to Greg Piconi dated 17 February 2015; a copy of the Ku-ring-gai Council Flood Data Sheet dated 8 November 1984 and letter dated 10 May 1985; a photograph of the Roseville Golf Club Honour Board; an aerial photograph of the site dated 21 April 2017 and marked by Mr Robertson; a file note prepared by Ms Miller dated 10 November 2015; an email from Tony McCormack to Ms Miller dated 20 July 2015; and a copy of the handwritten note from the prosecutor’s conference with Mr Hyden.

55. In addition to that evidence, a number of affidavits were read by the prosecutor in the proceedings (some of which were only read in part), being:

1. An affidavit of Craig Edgar dated 15 February 2017;

2. Two affidavits of Phillip Myles, each dated 26 September 2016;

3. An affidavit of Wendy Miller dated 29 September 2016;

4. An affidavit of Wendy Miller dated 14 February 2017;

5. An affidavit of Wendy Miller dated 20 June 2017;

6. An affidavit of Wendy Miller dated 25 October 2017;

7. An affidavit of Christine Dunand dated 22 June 2017;

8. An affidavit of Douglas McLean dated 19 October 2018;

9. An affidavit of Raymond Rice dated 29 September 2016;

10. An affidavit of John Paul Merlino dated 13 November 2018; and

11. An affidavit of David Gunter dated 13 November 2018.

56. The defendant read one affidavit in the proceedings, being the affidavit of Jodie Wauchope dated 25 October 2018.

57. Oral evidence was given in the proceedings by Mr Edgar, Mr McKenzie, Mr Draeger, Mr Myles, Ms Miller, Mr Hutton, Mr Willis, Mr Robertson, Mr Hyden and Mr Dahtler.

The evidence of Mr Edgar

58. Mr Edgar gave evidence that he had been retained by the defendant to carry out tree removal work on three occasions prior to the alleged offence. He was first retained by the defendant in around 2011. Each of the three jobs he carried out for the defendant prior to the occasion the subject of these proceedings was at the defendant’s Killara property.

59. Mr Edgar stated that in September 2014 the defendant contacted him about some clearing work which the defendant wanted carried out at the site. Mr Edgar said there were no boundary markings at the back of the Carnarvon Road property, which slopes away from the rear of the house to the south where it meets the Crown Reserve and the Roseville Golf Club. Mr Edgar’s evidence is that the defendant initially wanted three large casuarina trees and the bush and shrubs closest to the property removed.

60. In Mr Edgar’s examination-in-chief, in response to questions asked by Mr Howard, senior counsel for the prosecutor, Mr Edgar gave the following description of the work the defendant asked him to carry out (at Tcpt, 16 April 2018, p 36(3-15)):

Q.   Do you know how far from roughly how far away from the house [the three casuarinas] were? Were they right next to it or a bit further away?

A.   I'd say roughly 10 metres.

Q.   Did he tell you at that point in time anything else about the job or just that?

A.   At that stage it was just that, plus the shrubs closest to the house.

Q.   When you say in answering that question "at that stage" why did you qualify your answer in that way?

A.   Because each day we would do work John would meet us at the property and he saw what we actually did and he got us to go further and further down. So every day he got us to do more and more cutting of the shrubs on the southern side of the property and eastern side.

61. Mr Edgar said that he and his crew worked at the site for eight days in total between 3 October 2014 and 21 October 2014. The defendant paid Mr Edgar a daily rate of $2,000, or $16,000 in total, which Mr Edgar said he received in cash.

62. Mr Edgar stated that the day he began work, which he said was 3 October 2014, was around four days after his meeting with the defendant on the site and their discussion as to the work which was to be carried out. He said that he was there with a crew of three, comprising one climber (that is, a person who climbs trees in order to remove branches) and two labourers, and that the work took eight days, each day of which he was present at the site. One of the labourers was Mr Edgar’s nephew, Mr Draeger. Once the trees and shrubs were felled, they were taken to a wood chipper at the top of the property and mulched onsite.

63. During the time that he was working on the site, Mr Edgar said that the defendant had also retained Mr McKenzie, a landscape gardener, who had two labourers working for him. Mr Edgar gave evidence that neither Mr McKenzie nor his labourers were involved in the cutting down of trees but that they assisted in carrying material to be mulched to the wood chipper.

64. Of the eight days on which the work was carried out, Mr Edgar stated the defendant was present “almost every afternoon”. According to Mr Edgar, the exception was for a period when the defendant travelled to Singapore for a few days.

65. However, under cross-examination by Mr Steirn, senior counsel for the defendant, Mr Edgar admitted that he did not know which days the defendant had attended the site (Tcpt, 17 April 2018, p 90(3-15)):

Q.   Are you able to tell the Court when that was [that the defendant attended the site]?

A.   I know it was a couple of days during the week that we were there.

Q.   During the week that you were there?

A.   Yes.

Q.   Can I suggest to you that apart seeing Mr Chia at his home, that is his home at Killara, he did not visit the site after he came back from Singapore, did he?

A.   I can't recall, but I know he was there for a few days.

Q.   But you can't say what days, can you?

A.   Not exactly, no.

66. In relation to the further instructions received from the defendant, Mr Edgar gave evidence as follows (Tcpt, 16 April 2018, p 47(9-50)):

Q.   You told us earlier on about the initial instructions you got from Mr Chia and you also told us that later on you had some other instructions from him. Can you tell his Honour, if you can, how long after you started the job did you get any instructions from Mr Chia which were different to the initial instructions that you got?

A.   I'd say it would have been roughly a day or two after starting the initial works.

Q.   Did he speak with you?

A.   Yes, he did.

Q.   What did he say?

A.   He saw what we actually did and he wanted us to go further down the southern side and eastern side of the property.

Q.   When you say that he saw what you did, had did at that point in time, what had you done at that point in time?

A.   We had removed the three large casuarinas.

Q.   Yes.

A.   We started clearing the southern side, the bottom southern side. As he saw that he wanted more going down the southern and eastern side of the property. So he wanted to remove more and more.

Q.   When you say he wanted to remove more and more after he told you to gave you instructions about one or two days into the job did is that the sum total of your instructions from him or did he later, after that, give you further instructions?

A.   Further instructions, yes.

Q.   How long after the day two instructions, if I can put it that way, roughly, did you get further instructions from him?

A.   A day or two after that. Each day he would see what we had progressed and then he wanted to go further down.

Q.   When you say he wanted to how do you know he wanted to?

A.   Just asked us to clear more of the land.

Q.   How did he ask you to do that?

A.   He just said, "I want all this cut down. I want all this cut." So each day we would clear a section, once he saw that then he actually said, "I want you to go down further."

67. Mr Edgar said that the defendant was not present on the site the day the works were completed and could not recall whether he was present on the penultimate day of works. However, Mr Edgar gave evidence that the work involved the chopping down of trees on each of the eight days and that the defendant never intimated to him that he had cut down too many trees or that the trees had been cleared from an area from which they should not have been cleared.

68. Mr Edgar attested that he told the defendant about the 10/50 Code and that the defendant wanted to use this to clear the trees and shrubs around the site which he was concerned created a fire risk. However Mr Edgar did not accept that the defendant wanted him to “comply” with the 10/50 Code but rather wanted to “use it to remove trees and shrubs” (Tcpt, 17 April 2018, p 101(35-36)).

69. Mr Edgar agreed that he did not measure the distance between the house and any of the trees which were cut down to determine whether they were capable of being lopped in compliance with the 10/50 Code.

70. Mr Edgar was recalled in November 2018 to give further oral evidence, at which time he gave the following evidence regarding the 10/50 Code (at Tcpt, 1 November 2018, p 954(1-19)):

Q.   And you fabricated that evidence because you knew that the trees that you had chopped down by them were outside the 10 metre limit. You knew that, didn't you?

A.   No, because there was no boundaries.

Q.   No, forget the boundaries. I don't want to go through it again, Mr Edgar, I want to close this down if I can. But it may well be the position - did you think it was 10 metres from the boundary?

A.   We didn't measure it, so--

Q.   I know you didn't measure it, but did you believe it was 10 metres from the boundary?

A.   I believed it, yes.

Q.   Pardon?

A.   Yes, I did.

Q.   And that was your understanding of the 10 metre rule?

A.   Yes.

71. In relation to the ownership of the site, Mr Edgar gave the following evidence (Tcpt, 16 April 2018, p 50(3-18)):

Q.   Mr Edgar, when you carried out these works at this site what did you understand about who owned the land on which you were carrying out the works?

A.   My initial thought it was John Chia's land. And then he said if we were to go onto golf course, because he told me it was Roseville Golf Course, he had permission from Roseville Golf Course. He had done for 20 years.

Q.   Can you tell his Honour what he said to you that makes you say that?

A.   "If you were to go on –“

HIS HONOUR: Did he say 20 years?

HOWARD: He did.

WITNESS: Twenty years. If we were to go on golf course land he had permission from Roseville Golf Course to clear any trees or shrub.

72. Mr Edgar attested that Mr Draeger was present on each occasion that the defendant gave him further instructions but could not recall whether Mr McKenzie was also present.

73. On the last day he was working at the site, Mr Edgar said an officer of the prosecutor named Wendy Miller attended the site, accompanied by other officers. Mr Edgar attested that the conversation was brief and casual.

74. During Mr Edgar’s cross-examination, Mr Steirn accused Mr Edgar of lying to Ms Miller during their conversation and suggested that it had been more formal than Mr Edgar was attempting to make it appear (Tcpt, 17 April 2018, p 115(35) – p 116(36):

Q.   You were interviewed in a formal way, weren't you?

A.   No, I wasn't.

Q.   She cautioned you as in relation to your right to silence, didn't she?

A.   I can't really recall her saying that.

Q.   Pardon?

A.   It wasn't a long conversation we had, she took down my details, asked me a couple of questions, and that was it.

Q.   That is a blatant lie, isn't it?

A.   No, it's not.

Q.   You see this was put "hello, I'm Wendy Miller, I work with Ku-ring-gai Council as the tree management officer and I am investigating the removal of trees from this property, can you tell me your name," she put that to you, didn't she?

A.   She put that to me, yes.

Q.   And there's no doubt by then that she was investigating the removal of trees from the property?

A.   She was acting on a complaint.

Q.   Whatever the position was there was no doubt in your mind she was investigating that complaint, correct?

A.   That's correct.

Q.   You answer to the name Craig and then she put this to you "thank you Craig, I'd like to ask you some questions about what's happened here. I want you to understand that you do not have to answer and that any questions you give maybe given in evidence" she put that to you to too, didn't she?

A.   That I can't recall, no.

Q.   Pardon?

A.   You know, it was just a conversation

Q.   She used those words, didn't she?

A.   I can't recall that, no.

Q.   And the reason you won't admit to those words, because you knew that you were in trouble, didn't you?

A.   At the time, no.

Q.   Pardon?

A.   No.

Q.   At the time, no?

A.   No.

Q.   Why do you say, "at the time, no"?

A.   Well I thought what we were doing was just clearing some land.

Q.   On John Chia's instructions?

A.   That's right.

Q.   And that was firm in your mind them, wasn't it?

A.   Yes.

Q.   She then asked you a number of questions, including your name and your contact number, remember that? I think you've agreed with that, haven't you?

A.   I think yes, yeah.

Q.   It's fair to say as you would see it you weren't in trouble because you had obeyed the 10/50 rule, is that correct?

A.   Yes.

75. Mr Edgar denied the suggestion that he knew or thought that he was in trouble after his conversation with Ms Miller. Mr Steirn suggested to Mr Edgar that in the course of his interview with Ms Miller he had denied being on the site before that day, the last of the eight days on which the work was carried out (Tcpt, 17 April 2018, p 118(22-36):

Q.   So, if she said to you "when were you last on the property" what would you have said?

A.   Probably would have been the Sunday.

Q.   Pardon?

A.   It would have been the Sunday.

Q.   And that would have been a truthful answer?

A.   Mmm hmm.

Q.   You lied to her, didn't you?

A.   No, I didn't lie to her.

Q.   You see this is what you told her "we started here a week ago but I haven't been to the site before today"?

A.   That's incorrect.

76. Mr Steirn suggested to Mr Edgar that he had also lied to Ms Miller about whether he was responsible for the lopping of trees to the south of the site (Tcpt, 17 April 2018, p 119(8-35)):

Q.   Wendy Miller then said this to you. "What about the trees that have been felled down on that lower section of the property, did your guys do that?"

A.   I can't recall her saying that?

Q.   Pardon?

A.   I can't recall her saying that.

Q.   It was said to you, wasn't it?

A.   I don't remember.

Q.   If that question was asked what would have been your answer?

A.   We felled those

Q.   Pardon?

A.   We felled those.

Q.   Sorry?

A.   We felled those trees.

Q.   That would have been your answer?

A.   If I would have said that.

Q.   And that would have been a truthful answer?

A.   That's right.

Q.   What you did in fact say to Wendy Miller was, "We didn't remove any trees on the lower section at any time, just small shrubs." Recall saying that?

A.   No.

77. Mr Steirn further pressed Mr Edgar on this point (Tcpt, 17 April 2018, p 119-120(44-30)):

Q.   This is your answer in relation to the allegation concerning trees being felled lower down on the property. This is what you said to Wendy Miller. "The trees down on the lower section are not from us." That's what you said, wasn't it?

A.   I don't recall saying that, no. I can't recall saying that.

Q.   That was a lie, wasn't it?

A.   Like I said I can't recall

Q.   Pardon?

A.   I can't even recall saying that.

Q.   Let me ask you this. If you did in fact say that that would have been a lie, would it not? Would it not?

A.   No.

Q.   It wouldn't have been a lie? You're shrugging your shoulders, Mr Edgar, what does that mean; yes or no?

A.   Like I said I can't yeah, I don't know.

Q.   No, please.

HIS HONOUR: Ask the question again, Mr Steirn.

WITNESS: I don't understand.

STEIRN

Q.   If you had told Wendy Miller that the trees down the lower section are not from us that would have been a lie, wouldn't it?

A.   If I would have told her.

Q.   Pardon?

A.   If I would have told her that.

Q.   That would have been a lie?

A.   Yes.

78. Mr Edgar agreed with Mr Steirn that if the questions and answers put to him had taken place he would have been put on notice that he was implicated in a serious allegation of unlawful tree cutting. However Mr Edgar maintained that he could not recall any of those questions being asked. He agreed that he did not tell the defendant about his conversation with Ms Miller and further agreed with Mr Steirn that the defendant, as the owner of the Carnarvon Road property, had a right to know about Ms Miller’s attendance.

78. However, Mr Edgar continued to maintain that he was not put on notice that there was any suspicion of wrongdoing by virtue of his conversation with Ms Miller (Tcpt, 17 April 2018, p 125(41-45)):

Q.   Mr Edgar, I'm going to put this question another way, did you understand from the questions asked of you by Ms Miller in terms of your occupation, in terms of trees being felled, as she puts it, that you were at the very least a suspect for some wrongdoing?

A.   That I can't recall, but no.

Q.   Pardon?

A.   No.

80. If it had been put to him that he was chopping down trees on the lower section unlawfully, Mr Edgar agreed that he would have told Ms Miller that the defendant instructed him to carry out the works. However, Mr Edgar stated that he could not recall the question ever having been put to him by Ms Miller.

81. Mr Edgar said that he was paid for the work a couple of days after it was completed. He was paid in cash by the defendant at the defendant’s home in Killara. Mr Edgar stated that he attended the Killara property with Mr McKenzie on that occasion and that the defendant met him with his solicitor (this was, in fact, Mr Hyden). Mr Edgar described their interaction with the defendant as follows (Tcpt, 16 April 2018, p 53(8-32)):

WITNESS: Basically, he said if there were any repercussions from council he said for myself and James McKenzie to take the blame, basically.

HOWARD

Q.   Did you say anything to him about that?

A.   No, I did not, I didn't say a word.

Q.   Why didn't you say anything to him when he said that?

A.   Because I, you know, I wasn't going to take the blame for something. James and I, McKenzie looked at each other and said, you know, "this is not our fault."

Q.   Have you told his Honour what you can remember about that conversation, have you told his Honour everything you can remember about the conversation?

A.   That's everything I can remember, yes.

Q.   Now the other person who was present who you described a few moments ago as Mr Chia's solicitor did he say anything to you that you recall during this meeting?

A.   Yes, solicitor.

Q.   Yes?

A.   He wanted my details and that was it and I refused to give it to him.

82. Mr Steirn suggested to Mr Edgar that at that meeting he told the defendant and his solicitor, who Mr Steirn identified as Mr Hyden, that he had only carried out clearing in compliance with the 10/50 Code. Mr Edgar disagreed and said that they did not discuss anything of that nature.

83. Mr Edgar stated that in 2016 he was approached by Phillip Myles, an investigator retained by the prosecutor, who interviewed him about his involvement in the alleged offence. Under cross-examination by Mr Steirn, Mr Edgar did not agree that his memory of the events was clearer at the time he was interviewed by Mr Myles, on 29 July 2016, than it was during the hearing (Tcpt, 16 April 2018, p 55-56(35-20)):

Q.   Mr Edgar, you were taken to a record of interview that you had with Mr Myles back in 2016 just a moment ago. Is it fair to say that at the time you spoke to Mr Myles the matter was fresher in your mind then than what it is now?

A.   No.

Q.   You're saying it's fresher in your mind now

A.   Like I still

Q.   No, please, let me finish my question. Are you saying, truthfully, the matter is fresher in your mind now than what it was when you spoke to Mr Myles?

A.   Yes, it is.

Q.   Is that what you're saying?

A.   I'm saying it's still the same.

Q.   It's still the same?

A.   Still the same.

Q.   So whatever your recollect was to Mr Myles you're saying it's the same recollection you have now?

A.   Yes.

Q.   But would you agree logically the matter was fresher then than it is now?

A.   No.

Q.   For example, you can't recall now what you said to Mr Myles, can you? I withdraw that question. The record of interview went for some hours, did it not?

A.   Yes, it did.

Q.   You're not suggesting for a moment now you can recall what you said to Mr Myles, can you?

A.   Not every word.

84. Mr Edgar did not agree with Mr Steirn that at the time he was interviewed by Mr Myles he was aware that he had done anything wrong (Tcpt, 16 April 2018, p 62(16-22)):

Q.   Are you saying that at the time of the interview you had with [Mr Myles] you were unaware that you had done anything wrong?

A.   That's correct.

Q.   And that's a truthful answer?

A.   And that's a truthful answer.

85. Mr Edgar did however agree that he was aware that Mr Myles wanted to interview him in relation to the work he had carried out for the defendant at the site. Mr Edgar maintained that he did not believe he was under investigation and did not think that he was in trouble. He also denied having spoken to Mr McKenzie in relation to his interview before meeting Mr Myles.

86. Mr Steirn pressed Mr Edgar on this point as follows (Tcpt, 16 April 2018, p 68(1-26)):

Q.   You had spoken to Mr McKenzie, hadn't you, about the matter before you spoke to Myles?

A.   We just spoke on the matter after we got paid, about what John Chia about the letter from council, that was it.

Q.   You see, you recall in fairness to you, I'll put it again; Mr Myles said to you, just before the interview, "Have you spoken with James McKenzie," and your answer was, "Yeah, he said he's got no problems speaking with you, 'But don't give my phone number out'," that's what you said to Mr Myles, on that day, before the interview, do you understand?

A.   Yes.

Q.   And Mr Myles said, "Okay, it would be good to speak with him, he may be able to corroborate what was said," and you said, "If we are in the right, what's going to happen with John, is he going to get fined," do you remember saying that to Mr Myles?

A.   No, I can't remember saying that, no.

Q.   You did say that to Mr Myles, didn't you?

A.   No, I can't remember that, that's incorrect.

Q.   Pardon?

A.   That's incorrect.

Q.   You were concerned that you were in trouble, were you not?

A.   No, I wasn't concerned one bit.

87. During his interview with Mr Myles, Mr Edgar declined to provide the names of the contractors he had hired to carry out the work. Mr Steirn asked Mr Edgar about this as follows (Tcpt, 16 April 2018, p 71-72(41-13)):

Q.   Then he asked you these questions; "Can you tell me who the people were who assisted you at the property to clear the trees, the names of the people, so they were all contractors," answer, by you; "They were contractors, yes," do you see that?

A.   Yes.

Q.   Mr Miles then said to you, "Can you provide me with those names, Craig," see that?

A.   Yes.

Q.   Your answer was, "I don't want to answer that question"?

A.   Mm hmm.

Q.   Why did you not want to answer that question?

A.   Why?

Q.   Yes, why?

A.   I didn't want to give anyone's names out.

Q.   Because you knew that Mr Miles was investigating the matter and the last thing you wanted was for Mr Miles to speak to these people, that's right, isn't it?

A.   No, that's not right.

88. Later in his cross-examination, Mr Steirn asked Mr Edgar about the manner in which Mr Myles began the interview (Tcpt, 16 April 2018, p 75(22-45):

Q. He said this; "I've been authorised by Ku-ring-gai Council under the Environmental Planning and Assessment Act of 1979, under the Act, I can ask you questions and you must answer my questions," he went on to say, "If you fail to answer my questions, it is an offence, if you feel that your answer may incriminate you, you can object to answer the question," do you see that?

A.   Yes.

Q.   When he delivered that statement to you, he put you on notice that the matter was pretty serious, didn't he?

A.   He didn't tell me it was serious but, yeah.

Q.   Well, you understood it to be serious, didn't you?

A.   It could have been, yes.

Q.   And then, you said, "Okay," in other words, you accepted what was said?

A.   Mm hmm.

Q.   Mr Miles went on to say this; "You still need to answer my questions but it can't be used in any evidence against you in criminal proceedings," you then said, "Yeah, I just don't want to get dragged into Court or anything like that, this James guy said that if you want any information, you can go to council and get it," you're talking there about James McKenzie, aren't you?

A.   I can't recall even saying that.

89. Mr Steirn asked Mr Edgar whether, prior to Mr Edgar’s interview with Mr Myles, he had communicated with Mr McKenzie for the purposes of preparing their stories (Tcpt, 17 April 2018, p 102-103(44-10)):

Q.   You see I'm suggesting to you that around about 2016 you and Mr McKenzie got your heads together to blame Mr Chia for what had occurred at Carnarvon Road, hadn't you?

A.   No, that's incorrect.

Q.   Pardon?

A.   That's incorrect. I don't agree with that.

Q.   Sorry?

A.   I don't agree with that.

Q.   But you and Mr McKenzie spoke from time to time, did you not, about the incident?

A.   We might have spoken once or twice.

Q.   However many times you spoke you certainly spoke to Mr McKenzie around about the time you were to be interviewed?

A.   I can't recall exactly.

90. Mr Steirn continued to press Mr Edgar on this point (Tcpt, 17 April 2018, p 104-105(1-1):

Q.   And one of the first questions he asked of you, before the interview started, was "have you spoken with James McKenzie"?

A.   No, I don't recall.

Q.   And you might recall I asked you this yesterday?

A.   No, I don't recall that.

Q.   You don't recall that?

A.   No.

Q.   It's true though, you did speak with James McKenzie before you spoke to Mr Miles, didn't you?

A.   I can't recall, no.

Q.   More to the point, you spoke to Mr James McKenzie about this very matter?

A.   Once again, I can't recall that.

Q.   You're not denying you spoke to Mr McKenzie about the matter, are you?

A.   I'm not denying, no.

Q.   Recapping for a moment, you knew Mr Miles was interested in interviewing you on behalf of council, correct?

A.   Correct.

Q.   You knew that you were the tree lopper on site, correct?

A.   Correct.

Q.   You knew Mr McKenzie was always onsite at the same time, correct?

A.   Correct.

Q.   You knew there was a problem about the trees being cut down, correct?

A.   At the time I didn't think there was a major problem

Q.   Well it was your crew that cut them down on any view, is that right?

A.   Yes, and that's correct.

Q.   And there was a problem, that's right isn't it?

A.   Right.

Q.   And according to you by then Mr Chia had asked you to take responsibility, hadn't he?

A.   Correct.

Q.   That's right and I'll come back to that. But you see what Mr Miles said to you "have you spoken with James McKenzie" and you said, "Yeah, he said he's got no problem speaking with you but don't give my phone number out," and the very next question was this "okay, it will be good to speak with him, he may be able to corroborate what was said," that's what Mr Miles said as an investigator to you, that's right isn't it?

A.   That's correct.

91. When Mr Edgar gave further evidence in November, he was further pressed about attempts to make contact with Mr McKenzie on the basis of phone records which had been subpoenaed from Telstra. Mr Edgar continued to deny that he had sought to contact Mr McKenzie for the purpose of discussing the evidence they were to give in these proceedings (at Tcpt, 1 November 2018, p 923(26-28)):

Q.   You're sure it wasn't to try to get together with Mr McKenzie, to get your heads together?

A.   No, not at all.

92. When Mr Edgar was interviewed by Mr Myles, on 29 July 2016, he was asked to mark the areas he had been instructed by the defendant to clear on an aerial photograph of the Carnarvon Road property. He marked the photo with various lines. He was asked the following questions in relation to those lines during his cross-examination (at Tcpt, 17 April 2018, p 92(4-25)):

Q.   And I'll take you to the document in a moment and using a red pen you did a number of lines in ever increasing distances from the house to demonstrate that area that Mr Chia wanted cleared?

A.   That's correct.

Q.   And there's no doubt about that, is there?

A.   No.

Q.   And that's the area you cleared on Mr Chia's instructions?

A.   That's correct.

Q.   What you told the Court yesterday was a recap of what you told Mr Myles on the first occasion; is that right?

A.   That's correct.

Q.   That is that you were doing no more than demonstrating to the Court on that document that area that Mr Chia wanted cleared, without going through it again?

A.   Yes.

Q.   Pursuant to the 10/50 rule?

A.   Yes.

93. Mr Edgar attested that as a result of the incident the subject of the alleged offence and the prosecutor’s investigations, he was charged with a summary offence in the Land and Environment Court to which he pleaded guilty. He was sentenced in the Edgar proceedings.

The evidence of Mr McKenzie

94. Mr McKenzie gave evidence that he has been a “landscape builder” for around 20 years and that in 2014 he was operating his own business called Force of Nature. His work principally consists of refurbishing, exterior work, repairs, gardening and landscaping (at Tcpt, 22 October 2018, p 288(5-45)).

95. Mr McKenzie attested that in August or September 2014 he was engaged to carry out work for the defendant at the Carnarvon Road property. On that occasion, he said the defendant had asked him to do some work on the front nature strip of the property. He said the defendant gave him instructions at the front of the property and that the work was completed in around a day and a half.

96. After the work was completed, Mr McKenzie stated that he had a conversation with the defendant about further work which the defendant wished to be carried out at the rear of the property. Mr McKenzie said the defendant told him that he wanted the rear of the property cleared and tidied up as he had fire safety concerns whereupon Mr McKenzie explained that such work was beyond the scope of what his business could carry out. Mr McKenzie stated that the defendant paid him for this work via bank transfer.

97. When cross-examined about the description the defendant gave to him about the further work he wanted carried out (by reference to the transcript of Mr McKenzie’s interview with Mr Myles), Mr McKenzie gave evidence as follows (at Tcpt, 25 October 2018, p 577(9-31)):

Q.   I'll take you to page 36, point 5 [of the transcript of Mr McKenzie’s interview with Mr Myles], was said, "And he asked you to come back and meet him on the property?"  And you said:

"Yeah, he said he wants to tidy up through the rear, which I thought was quite weird, sort of thing, because the house hadn't even been worked on, but he wanted to tidy up the garden, that's around the house, here.  There's all these shrubs, agapanthus, like agapanthus and kangaroo paw, and things like that, were all overgrown, and that needed cutting back and pulling out, or tidying them up.

   And that was both in his own garden, and along the eastern perimeter, wasn't it?

A.   Yes.

Q.   If there's any doubt about it, Mr Myles says, "That's behind the house," and you say, "That's directly here, under the veranda, and then goes around to this pond, yeah."  You then say at 36.8, "Chia asking to sort of looking at tidying that up, because he want to keep it in, if he wants to keep it maintained."  And that's, you're really saying again, that's what he wanted done?

A.   Yep.

Q.   He wanted it maintained, kept trimmed and tidy, is that correct?

A.   Yes.

98. Mr McKenzie stated that the next occasion he made contact with the defendant was when the defendant called him to ask him to carry out further work. He gave the following account of that conversation during his examination-in-chief (at Tcpt, 22 October 2018, p 294(19-37)):

Q.   What occurred that had you contact with Mr Chia at that stage, did he contact you, did you contact him?

A.   He contacted me. He said that he had people cutting down trees at his place, at Carnarvon Road. And that they needed assistance carrying branches up. From the bottom, up to the street. And he asked if I had any time to help. Help carry the branches up.

Q.   What did you say to him?

A.   I said, "Possibly, yes," cause we have, had, Grant Dahtler, his partner, his brothers who could work certain days to help us, or do some labour. So, we said we can potentially do a few days.

Q.   After you had that conversation with Mr Chia, did you actually attend the property, to do what you told him you could do?

A.   Yes.

Q.   Are you able to tell his Honour when that was, referrable to a year, or a month, or both?

A.   It was, October, 2014.

99. Mr McKenzie was unable to recall the date but stated that he attended the site to carry out this work early in the month of October 2014. He said that he was on the site for three or four consecutive days and then, after approximately four days’ break, returned to the site for another two days. He said that the second tranche of days was after the Labour Day long weekend (the Labour Day public holiday fell on 6 October in 2014).

100. Mr McKenzie gave the following description of the work being undertaken on the site at the time of his arrival (at Tcpt, 22 October 2018, p 295(19-29)):

Q.   And could you tell his Honour, please, what you saw when you first arrived at the property at the rear side of the house?

A.   There were people cutting down - well, there was trees being cut down - or trees and shrubs – and--

STEIRN: Sorry, more trees and shrubs, or all trees and shrubs?

HIS HONOUR

Q.   You meant trees and shrubs?

A.   Trees and shrubs, yes.

101. Mr McKenzie explained that the work he carried out was dragging trees and branches that had been cut down by Mr Edgar and his team to the top of the property where they were mulched onsite in the wood chipper.

102. On the first day he attended the site for his second job at the Carnarvon Road property, Mr McKenzie said that he saw Mr Edgar and his team carrying out the following work (at Tcpt, 22 October 2018, p 305(19-38)):

Q.   Insofar as concerns Mr Edgar and the workers with him, could you tell his Honour what did you see them doing on the first day that you worked there with Mr Dahtler and his two brothers?

A.   Cutting down, cutting back. There were, also helping us drag branches.

Q.   When you say cutting down or cutting back, could you tell his Honour, what did you see them cutting down?

A.   Trees, there were shrubs. There was a lot of clearing, so cutting back the low shrubs, exposing what was there.

Q.   So you've said well, I'll just ask you, if you wouldn't mind, in a neutral way to clarify. Did you see Mr Edgar or his working team cutting things that you considered to be trees?

A.   Yes.

Q.   And in giving that answer, what do you have in mind is a tree, as compared to, say, a shrub?

A.   A shrub is something that's sort of low, bushy, more multi branched, lower down. A tree is something with a trunk, a bit taller, straighter, as a generalisation of a tree.

103. Mr McKenzie stated that he saw similar work being carried out on the second day he was in attendance at the site but that on that day Mr Edgar and his team cut down some larger trees.

104. Mr McKenzie gave evidence that the defendant was present at the time some of this work was being carried out (at Tcpt, 22 October 2018, 307-8(46-3)):

Q.   And could you tell his Honour, please, when you first spoke with Mr Chia, what could you see in terms of any activities being carried out at that time in the rear of the property?

A.   He came in the afternoon, so when most of the work was finished. There may have just been general sort of tidying up, sort of moving branches, tidying the site, packing up. So there wasn't a lot of activity. I don't think I can't actually recall whether he came earlier, during the middle of the day or things like that, but I know it was in the end of the day, there was at least a visit.

105. Mr McKenzie stated that the defendant gave him instructions for what work he wanted carried out in the following terms (Tcpt, 22 October 2018, p 308(50) -309(26)):

Q.   Just tell his Honour, as best as you can recall, the substance of any discussion you had with Mr Chia at that time?

A.   Just discussing more so the progress, how long it was going to take us to get these sort of branches up. He was wanting to discuss with me sort of a long term plan he had for his garden that was possibly going to involve us doing actual building design work onto there. I think we sort of discussed sort of more of what he wanted to clear in the yard.

446. I do not consider that these matters are capable of assisting the defendant. The only outstanding issue in these proceedings is whether the defendant instructed the contractors to carry out the work which constitutes the offence such that he is vicariously liable. If the Court is satisfied beyond a reasonable doubt that he did so, the defendant cannot rely upon the expertise of the contractors who carried out the clearing.

The defendant’s motive to clear the site

449. Although the offence with which the defendant is charged is one of strict liability such that the prosecutor does not have to establish any particular mental element, the prosecutor submits that it is axiomatic that people do things for a reason and that the defendant had a reason to order the clearing of the land at the site.

450. The prosecutor submits that the evidence given by Mr Hutton (see above at [185]-[186]) and Mr Hyden (see above at [216]-[217]) establishes that the defendant wanted to carry out fire hazard reduction on his land and neighbouring land and that this would enable him to carry out works on the house at the Carnarvon Road property, including the possibility of an extension.

451. Further, the prosecutor notes that Mr Hyden’s subsequent correspondence with the prosecutor and Roseville Golf Club establishes that fire hazard reduction was the defendant’s key concern. The prosecutor submits that the clearing which took place is consistent with that motive. When he was appointed as the defendant’s agent, Mr Hyden asked Mr Willis to prepare a further report, which stated that despite the clearing which had already been carried out, the Carnarvon Road property was still at risk and further clearing was required. Mr Hyden sought the support of the prosecutor, the NSW Rural Fire Service, and Roseville Golf Club to carry out further clearing but no such support was forthcoming.

452. Mr McKenzie (see above at [96] and [110]) also gave evidence that the defendant wanted the land at the site cleared for the reduction of fire hazards. In his record of interview, the defendant said that he was concerned about “what other people refer to as fuel load which I understand and understood to mean a fire hazard” in relation to the Carnarvon Road property. He also said that he was concerned about trip hazards at the site.

453. I consider that the defendant did have a motive to carry out the clearing the subject of the charge. He was, on his own account, concerned about the risk of fire at the Carnarvon Road property and there is also evidence that he was considering carrying out building work.

The motive of the contractors

454. I note that in contradistinction to the motive of the defendant, it is difficult to see what motive the contractors could have had for clearing the site independently.

455. However, the defendant did submit, as noted above at [445], that the idea that experts retained by the defendant to carry out work would blindly follow his instructions without determining whether it was lawful or exercising their own judgment is “ridiculous”.

456. I consider that the difficulty with this submission is that the defendant asks the Court to accept that it is ridiculous that the contractors would rely upon the instructions of the defendant whilst simultaneously asking the Court to accept that the contractors carried out the clearing without any instructions at all. If it is ridiculous that the contractors followed the defendant’s instructions, it can hardly be thought to be less ridiculous that they did so in the absence of any instructions.

457. It might have been suggested, although it was not, that because the contractors were being paid a daily rate they exceeded their instructions so as to be paid more. The logical difficulty with this proposition is that it assumes that the contractors expected to be paid for work they had not been asked to carry out.

458. In his record of interview (see above at [233]), the defendant said that he told Mr Edgar that he had “a very limited amount of money” and that if the work took “a couple of days then that’s fine”. It might be thought that, in those circumstances, it is particularly unlikely that the contractors would have expected to be paid for working longer than “a couple of days” or outside the instructions they had received.

459. I do note, however, that the defendant also said that, in answer to a question about whether he had paid Mr Edgar, Mr Edgar had “demanded some money and I paid him. Umm... I’m not going to stand there and…” I understand this to mean that the defendant is stating that he paid Mr Edgar money for work in excess of that which he had asked to be carried out.

460. In the circumstances, I find that the contractors had no motive to clear land beyond that which they were instructed to carry out and consider that it is highly unlikely they would have expected to be paid for work in excess of their instructions.

Character traits of the defendant

461. The prosecutor submits that the defendant’s account of the commission of the alleged offence is contrary to evidence of the defendant’s character given by Mr Hutton and Mr Hyden. The prosecutor notes that Mr Hutton gave evidence (see above at [188]-[189]) that the defendant was thorough in what he does and generally looks at all aspects and that they had planning meetings including one which lasted for four hours. Mr Hutton said that the defendant asked a lot of questions, that he would generally look for information, and that he did his own research. The prosecutor also notes that Mr Hyden gave evidence (see above at [221]) that the defendant had an incredibly particular knowledge of all the work that had been done at the Carnarvon Road property and that he took a great interest in specifications and the like.

462. The prosecutor submits that the evidence is consistent with the defendant being a person intent on keeping control and that the weight of the evidence is consistent with the contractors’ version of events. That is, the prosecutor says that the evidence is consistent with the defendant having been present on the site whilst the contractors were working, closely supervising their work, and directing them as to what trees he wanted them to cut down.

463. The defendant submits that, in making this submission, the prosecutor has overlooked important evidence about the defendant’s character including that Mr Hyden gave evidence that the defendant would leave it to the experts to do their job properly (see above at [221]) and that Mr Hutton gave evidence that the defendant would leave it to him to follow the rules and regulations in his profession (see above at [188]).

464. I consider that the evidence of both Mr Hyden and Mr Hutton, considered as a whole, portrays the defendant as a person who takes an active and close interest in the projects and endeavours in which he is involved and this was particularly so in relation to the Carnarvon Road property. This is so, even when he retains others with specific skills and qualifications. This is illustrated, for example, by his dealings with both Mr Hutton and Mr Hyden in relation to various matters relating to the Carnarvon Road property both before and after the matter the subject of these proceedings, such as building and proposed building works, design matters, attendances with and correspondence to the prosecutor, Roseville Golf Club, and various authorities (such as NSW Rural Fire Service, whom Mr Hyden contacted on the defendant’s behalf).

465. Whilst I accept (as noted at [254]) that the defendant is a person of good character, I find that this is not inconsistent with an active involvement with matters in which he has an interest.

466. I consider that this evidence, when considered with the rest of the evidence as a whole, is consistent with the defendant being onsite on a number of occasions during the works undertaken by the contractors and actively directing (or giving instructions) in relation to the works he wanted undertaken.

Timeline of events

467. It is helpful to set out some of the most relevant matters in a timeline. It is clear that sometime in September 2014, the defendant asked Mr Edgar to carry out certain works.

468. It appears that the works commenced in either late September or early October 2014. It was Mr Edgar’s evidence that they began on 3 October 2014, which he said was around four days after he first received instructions. In any event, the works commenced around late September or early October 2014.

469. I note that the defendant submits, contrary to this position, that the work started in mid-September and that Mr Edgar erroneously gave the date of 3 October 2014 on the basis that a photograph, which is in evidence, was taken on this date and he thought that he took it “roughly at the start of the job” (at Tcpt, 16 April 2018, p 37(38-40)).

470. The defendant submits that, when one looks at all of the evidence and having regard to the fact that Mr Draeger said pruning occurred at the start of the job followed by small removals, the work must have started earlier than 3 October 2014. The defendant says that if Mr Draeger’s evidence that he was absent from the site three weeks before the arrival of officers from the prosecutor is correct, he would have finished working on the site on the week ending 3 October 2014.

471. I do not consider that a great deal turns on this, but having regard to the prosecutor’s concession that Mr Draeger did not have a particularly good recall of events as well as the fact that he thought the job took between two to three months, I would not place great reliance on the fact that Mr Draeger thought he was not present at the site for three weeks before officers from the prosecutor arrived, and I consider the better view on the whole of the evidence is that the works commenced around the end of September 2014.

472. This is consistent with the evidence of Mr McKenzie who stated that he was on the site for three or four consecutive days in early October 2014 (the work had already begun by then, see above at [99]) and then, after approximately four days’ break, returned to the site for another two days. He said that the second tranche of days was after the Labour Day long weekend, which was 6 October 2014. This would put Mr McKenzie’s initial arrival at the site on 29 or 30 September 2014.

473. The defendant’s flight records show that he flew to Singapore on 10 October 2014 and arrived back in Sydney on 14 October 2014.

474. On 16 October 2014, Ms Miller hand-delivered a “stop work” letter to the defendant’s Killara property.

475. Both Mr Edgar and Mr McKenzie gave evidence that they attended a meeting in the garage at the defendant’s Killara property to get paid. It is the evidence of Mr McKenzie that he attended the defendant’s Killara property prior to 21 October 2014 because the defendant asked him to return to the site to clear up (see above at [121]). It is not agreed that any meeting took place before 21 October 2014.

476. On 21 October 2014, Ms Miller and other officers from the prosecutor attended the site. Ms Miller interviewed Mr Edgar and took Mr McKenzie’s licence details.

477. At approximately 4:30pm on 21 October 2014, the defendant called Mr Robertson at Roseville Golf Club. Mr Robertson gave evidence that the defendant was seeking the golf club’s permission to carry out clearing on land owned by Roseville Golf Club and to the rear of the Carnarvon Road property (see above at [196]).

478. On 23 October 2014, Mr Hyden was appointed the defendant’s agent. Mr Hyden gave evidence that he attended the defendant’s Killara property at around 3:00pm and that he opened the letter from the prosecutor (this was the “stop work” letter hand-delivered by Ms Miller on 16 October 2014). Later that day, there was a meeting in the defendant’s garage at his Killara property which Mr Hyden, Mr Edgar, Mr McKenzie, and the defendant attended.

The alleged directions

479. Against that background, it is convenient to address the prosecutor’s submissions in respect of the key issue in the proceedings: whether the defendant directed that the clearing be carried out.

480. The prosecutor submits that the Court need not be satisfied that the defendant directed every tree the subject of the charge be removed and that the offence will be proved if that direction is only established with respect to some of the trees the subject of the charge. The prosecutor refers in that regard to the decision of Pain J in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 (‘Johnson’).

481. In Johnson, each defendant was charged with the clearing of trees, being the felling and/or clearing of 13 eucalyptus tereticorins (forest red gums) and approximately 200 acacia parramattensis (black wattles). At [162], her Honour found:

The direct evidence is sufficient to establish that there was direct authorisation of conduct giving rise to the removal of the black wattle trees but not the forest red gums. It is supported by the inferential evidence and the evidence of admissions made.

482. At [195], her Honour concluded:

For the reasons explained above, I find each of the offences with which Mr Johnson and Johnson Property Group Pty Ltd are charged to be proved beyond reasonable doubt. I note that while the elements of the offences have been proved the Prosecutor has not established all the particulars relied on in relation to the offences. The proceedings should be re-listed for further hearing and submissions on penalty and costs.

483. The prosecutor submits that the Court would be satisfied that there was a direction to cut down all of the trees that were removed and that the clearing was a direct response to the defendant’s directions for three reasons:

1. The defendant admits to directing the removal of those trees located within the areas marked by blue and red lines by Mr Edgar;

2. There is uncontested evidence that the defendant directed Mr McKenzie to remove 10 trees that had been painted with pink paint; and

3. With respect to trees cleared beyond those areas, the Court would find that the prosecutor has proved beyond reasonable doubt that the defendant directed the clearing of those trees during his visits to the site on days subsequent to the first day. The prosecutor submits that the contractors’ evidence in that regard would be accepted because the Court should accept them as witnesses of truth.

484. I note that, as canvassed above, the fact that Mr McKenzie was directed by the defendant to remove the 10 trees marked with pink paint is no longer uncontested; if, indeed, it was ever uncontested. The defendant’s position, as noted above at [114] and [420], is that Mr McKenzie fabricated this evidence. The defendant calls in aid the fact that Mr McKenzie did not mention it during his recorded interview with Mr Myles or on any occasion prior to giving evidence in these proceedings.

485. In respect of the first reason submitted by the prosecutor, that there is agreement that the defendant directed the clearing of the area marked by blue and red lines by Mr Edgar, I note that Mr Steirn said the following during the hearing (at Tcpt, 17 April 2018, p 139(9-15)):

Your Honour, our case is, so there's no doubt about it, that our instructions to Mr Edgar are confined to the blue and red lines of which Mr Edgar has given evidence of in‑chief and in cross‑examination.  It is open ended and ambiguous to say the least to talk about what he cleared in terms of what Mr Chia had to say.  It has to be circumscribed by the evidence involving the blue and red lines.  To put it any other way is a misleading question to put in re‑examination.

486. To similar effect, Mr Steirn also said the following in answer to a question I asked about the status of the blue and red lines (at Tcpt, 17 April 2018, p 139(45-48)):

Correct, your Honour.  We are saying, in essence, that the blue and red lines on our case in cross‑examination circumscribes that area of the property in a general sense which Mr Chia gave instructions to be cleared and not further.

487. In written submissions, the defendant says that the prosecutor is trying to deal with the fact that “the red and blue lines cannot be linked with any of the trees the subject of this charge”. The defendant submits that there is no evidence that any of the trees removed were within the red and blue lines marked by Mr Edgar. Moreover, the defendant submits that none of Mr Steirn’s comments above constitute an admission that the defendant gave instructions that trees within the red and blue lines be removed.

488. When the map marked with red and blue lines is compared to the survey plan prepared by Degotardi, Smith & Partners which identifies the location of the trees which were removed, it appears to me that at least some of the trees (indeed, quite a number) the subject of the charge are located in the area demarcated by Mr Edgar’s red and blue lines.

489. However, this is not necessarily determinative if the defendant has not conceded that he instructed the contractors to clear trees in that area.

490. Without intending to be needlessly repetitive, it is worth setting out some of the evidence given by each of the contractors as to the instructions they received.

491. Mr Edgar gave evidence (see above at [60]) that “each day we would do work John would meet us at the property and he saw what we actually did and he got us to go further and further down. So every day he got us to do more and more cutting of the shrubs on the southern side of the property and eastern side”. He said (see above at [66]) that the defendant gave instructions in the following terms: “‘I want all this cut down. I want all this cut.’” He also said (see above at [71]) that the defendant told him that if “we were to go on golf course land he had permission from Roseville Golf Course to clear any trees or shrub”.

492. Mr McKenzie agreed (see above at [97]) that the defendant had initially asked that the site be “maintained, kept trimmed and tidy”. However, Mr McKenzie gave evidence that the instructions evolved when he went on to say (see above at [105]) that when the defendant returned to the site, the defendant “was wanting to discuss with me sort of a long term plan he had for his garden that was possibly going to involve us doing actual building design work onto there. I think we sort of discussed sort of more of what he wanted to clear in the yard”. In particular, Mr McKenzie said that the defendant said, in respect of certain casuarinas, that he “would like to see those cleared. Not all of them, like, there was just certain ones”. Mr McKenzie also gave evidence (see above at [109]) that the defendant, after identifying the casuarinas on the site by name, said that he “didn't want to see those ones from his place”.

493. Mr Draeger did not give evidence that he was personally given instructions by the defendant, but stated that “I did hear conversations going on it was, ‘I want that cut over there. I want that cut over there,’ just, you know, pointing” (see above at [141]). Mr Draeger also gave evidence that the defendant wanted to get his “money’s worth” (see above at [139]).

494. The phone records of Mr McKenzie indicate that the defendant was in communication with Mr McKenzie on the following days:

1. 3 October 2014;

2. 6 October 2014;

3. 7 October 2014;

4. 8 October 2014;

5. 9 October 2014;

6. 10 October 2014 at 8:33am; and

7. 14 October 2014 at 11:00am.

495. The location data attached to the phone records establishes that on each of those days, the defendant’s phone was in Sydney. The overwhelming inference, which I draw on the evidence, is that the defendant was in Sydney and in contact with the contractors on those days. This evidence also establishes that the defendant was in contact with Mr McKenzie immediately prior to departing for Singapore and immediately upon his return.

496. The first thing to note about the totality of the evidence in relation to the alleged directions is that, whilst the accounts given by each of the contractors about the instructions they received from the defendant exhibit certain similarities, they are not so similar as to give rise to a concern that they are contrived. In other words, and accepting that this is not on its own a determinative consideration, if one looks at the accounts given by each of the witnesses together, they are not redolent of the contractors having colluded.

495. The second thing that is worth noting is that Mr McKenzie’s reference to the defendant wanting to carry out “actual building design work” finds some support in the evidence given by Mr Hutton and Mr Hyden. Mr Hyden said that architects had been retained to investigate options at the Carnarvon Road property but that their services were terminated in about March 2014. Mr Willis’ fire assessment of the Carnarvon Road property was dated 3 March 2014, and, according to Mr Hyden, the risk of fire and difficulties this would create for any development application process was one of the principal reasons that options for further building work were not further investigated.

496. The third thing to note is that Mr McKenzie gave evidence (see above at [111]) that he reported progress to the defendant over the phone. Mr McKenzie stated that this took place “after the first group of days”, which means after Mr McKenzie returned to the site following the Labour Day public holiday (which was 6 October 2014). As can be seen from the phone records, he and the defendant were in communication (or attempted communication) on 3 October, 6 October, 7 October, 8 October, 9 October, 10 October and 14 October 2014.

497. Mr McKenzie’s evidence in these proceedings was that he reported to the defendant over the phone “one, maybe two” times and that it would have been “an update on clearing, how far we were getting”. Most of the phone records indicate brief calls being made between Mr McKenzie and the defendant (a length consistent with either very brief conversations or perhaps messages being left) as well as text messages on 3 October, 7 October and 14 October 2014. However, one call on 8 October 2014 lasted for 604 seconds, or just over 10 minutes. The duration and date of this call adds credence to the account given by Mr McKenzie.

498. I note that it is submitted on behalf of the defendant that there is no evidence about the contents of the phone calls and that “the contents of any phone call made was never put to any witness” and that, in those circumstances, the prosecutor cannot ask the Court to draw an inference that the defendant was taking a controlling interest in the work being carried out at the site. The defendant submits that the prosecutor could have asked the witnesses in re-examination what they spoke to the defendant about but did not do so, and that the phone calls could have been about any number of things.

499. I do not accept the proposition that there is no evidence about the contents of any phone call having regard to the fact that Mr McKenzie did give evidence about reporting the progress of the clearing to the defendant by phone. Moreover, even in the absence of that evidence, I consider that it would be illogical to assume that the phone contact was not made in respect of the work at the site, at least in a general sense. It is not disputed that the defendant retained Mr McKenzie to carry out work at the Carnarvon Road property or that when the phone records show that communication between them took place in early October 2014 he was doing so. There was no other reason for the defendant and Mr McKenzie to contact each other. I cannot accept the proposition that they were not speaking about the work being undertaken at the site.

Whether there is a reasonable hypothesis consistent with the defendant’s innocence

502. It is axiomatic that in order to prove the defendant’s guilt, the prosecutor must negate all reasonable hypotheses consistent with the defendant’s innocence beyond a reasonable doubt.

503. In Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 at 605-606, Windeyer J said:

The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt—that they cannot be so satisfied if there be still open some reasonable hypothesis compatible with innocence.

504. If there is a rational hypothesis which the prosecutor has not negatived, the defendant is entitled to an acquittal. In the present case, the defendant has tendered his own record of interview which presents a version of events said to be consistent with his innocence. He does not have to prove that his account is true. If I consider it a reasonable hypothesis, the prosecutor will have failed to discharge its onus.

505. Although I do not need to make a finding about the defendant’s account save for whether it is “reasonable” as opposed to believable, I note that a number of matters cause me concern.

506. First, the defendant stated that he hired “landscapers”. Whilst I accept that Mr Edgar does landscaping work, Mr McKenzie is also a landscaper, or “landscape builder”, and gave evidence that the works he was initially asked to do by the defendant were outside the scope of what he was able to carry out. Mr Edgar’s business at that time was called “Expert Tree Solutions” and the defendant had previously retained him to cut up a tree which had fallen at his property in Killara. He retained Mr Edgar again in respect of the work at the Carnarvon Road property. This is indicative, though I accept not decisive, that the defendant sought to carry out tree works at the site.

507. Secondly, when asked in his record of interview whether he hired tree contractors to conduct tree removal at the Carnarvon Road property, the defendant gave an answer which can only be described as equivocal: “I’m still finding difficulty answering that because if I say yes, um, that’s not true… and if I say no then… so I can’t really say yes or no.”

508. Thirdly, the defendant agreed with the proposition that Mr Edgar told him that it was “going to take a couple of days to clear the mess” at the Carnarvon Road property and said “…that’s what was in my head. Yes. That’s what I said to them”. It is difficult to reconcile that evidence with the work that actually took place at the site or to conceive of why, if those were the agreed instructions, work was carried out to such a scale over a period of at least eight days.

509. Fourthly, the record of interview was conducted on 5 February 2015, several months after the clearing work was carried out at the site. In Astill v R (1992) 63 A Crim R 148 (‘Astill’), Kirby P (as his Honour then was) made the following comments about the admissibility of out-of-court statements at 156:

There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: ‘…reliance on the greater trustworthiness of statements made at once and without reflection…’ The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten (at 389f):

“The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded…”

510. Whilst I acknowledge that Kirby P’s comments in Astill were directed at the admissibility of out-of-court statements, I consider that they provide some guidance when considering the weight that such statements should be afforded. Given the time that elapsed before the defendant’s record of interview, it cannot be said that, in the terminology of Lord Wilberforce, “the possibility of concoction can be disregarded”.

511. Fifthly, and similarly, I have some concern about the lengthy statement the defendant gave during his record of interview (extracted above at [235]). It raises matters that are not entirely responsive to any question that he was asked and gives the appearance of having been carefully considered beforehand. I harbour a concern that it is a statement which is far from “spontaneous” in the sense considered in Astill.

512. Sixthly, the defendant appeared to give inconsistent answers when he was asked whether there was a conversation with the contractors in relation to works outside the Carnarvon Road property. He initially appeared to agree that there were, saying “Yes, for instance, the grasses that are tall should be made... to take away the trip hazard or or make it so that if you are carrying a beam you’re not going to fall over”, but when Mr McCormack asked whether this meant that there was a conversation in relation to works outside the Carnarvon Road property, the defendant said “No I didn’t say that and I didn’t mean that. There was not a conversation about works outside of 53 Carnarvon Road but I did say that the builders are going to have access so I guess that there may be some sort of inference or implication of that but I don’t believe I said that”.

513. To the extent that the defendant denied instructing the contractors to carry out work outside the Carnarvon Road property, this is difficult to accept having regard to the totality of the evidence. Mr Edgar gave evidence that he knew the defendant had a long-standing arrangement with Roseville Golf Club, similar to the account the defendant himself gave in his record of interview. It is difficult to see how Mr Edgar could have known that the defendant had an arrangement with Roseville Golf Club going back “20 years” unless the defendant told him about it, or why the defendant would have told him about it, except in the context of asking him to carry out works that might have been on land owned by the golf club.

514. These concerns that arise from the face of the defendant’s record of interview are heightened when regard is had to the totality of the evidence and the apparent logic of events. Each of Mr Edgar, Mr McKenzie and Mr Draeger gave evidence that the defendant directed clearing at the site, and the phone records establish that the defendant was in contact with Mr McKenzie from early to mid-October 2014.

515. Moreover, the location data attached to the phone records establishes that in early October 2014, and prior to his departure for Singapore on 14 October 2014, the defendant was in Sydney. Even if one leaves aside the evidence of his phone contact with Mr McKenzie and the evidence about the defendant’s “character traits” which point to him having been a person who took an interest in the minutiae of work undertaken at his property, it would be surprising if he did not attend the site or check the progress of work during this time, particularly given his comments in his record of interview that he was concerned about how much the work would cost and the fact that he was paying a daily rate.

Beyond reasonable doubt

516. The fundamental principle applicable to a criminal trial is that the prosecutor must establish each element of the offence with which the defendant is charged beyond a reasonable doubt. In the present case, the only element of the offence in dispute is whether the defendant directed the contractors to carry out the clearing the subject of the charge.

517. Although, for the reasons given above at [506]-[515], I do not accept the account of the circumstances which gave rise to the clearing given by the defendant in his record of interview, the defendant is not obliged to provide an account consistent with his innocence. Rather, the prosecutor bears the onus of establishing beyond reasonable doubt that he directed the contractors to carry out the clearing. This onus is a very high bar.

518. However, for the following reasons I find that, in the present case, the prosecutor has discharged its onus and I find that the defendant is guilty of the offence charged beyond reasonable doubt.

519. First, having regard to the apparent logic of events that transpired at the site, it is not plausible that the contractors would have cleared such a large area without instructions and with no apparent motive to do so. Indeed, as extracted above at [445], the defendant submitted that it was “ridiculous” that the contractors would have cleared the site “blindly” following the directions of the defendant. For the reasons already set out, I consider that it is more unlikely that the contractors would have done so in the absence of instructions.

520. Secondly, I consider that the defendant had a motive to carry out the clearing, and that the contractors did not.

521. Thirdly, each of Mr Edgar, Mr Draeger and Mr McKenzie gave evidence that the defendant instructed the contractors to carry out the cutting of trees on the site. I accept this evidence on the basis of the findings I have already made in respect of the credibility of each, and, importantly, because their account is believable in that it provides a logical account of the commission of the offence.

522. Fourthly, I consider that Mr McKenzie’s evidence, in particular, is consistent with the evidence considered as a whole, notably the evidence concerning the defendant’s plans to carry out building works at the Carnarvon Road property and the phone records.

523. Fifthly, I consider that the phone records which indicate communication between Mr McKenzie and the defendant not only provide support to Mr McKenzie’s account of events but that they are indicative that the defendant took a continuing interest in the work that was being carried out at the site, consistent with him having directed the clearing work to be carried out.

524. Sixthly, while not independently a consideration of great weight, I consider that this is consistent with the evidence given about the defendant’s character given by Mr Hyden and Mr Hutton that he took an interest in the minutiae of work which he asked contractors to carry out.

525. Seventhly, as I have noted above and for the reasons at [506]-[515], the version of the events given by the defendant in his record of interview is very difficult to accept having regard to the totality of the evidence.

526. Eighthly, I consider that the evidence that 10 trees were marked with pink paint is indicative that there were directions given to cut and remove trees at the site. It is not consistent with the haphazard or undirected nature of the work on the site, which the defendant asks me to accept, for specific trees to have been marked for removal.

527. Ninthly, though not independently of great significance, I consider that the phone call the defendant made to Mr Robertson at Roseville Golf Club at approximately 4:30pm on 21 October 2014, the day on which the defendant was informed by the contractors that officers from the prosecutor were investigating the clearing at the site, is indicative that the defendant was seeking Roseville Golf Club’s permission or approval for the clearing works that had already been carried out. Although this is also not of great moment, when considered with the rest of the evidence, the fact of the call appears logically consistent with the defendant having instructed that the clearing be carried out.

528. Accordingly and for the above reasons, I am satisfied beyond reasonable doubt that the defendant directed Mr Edgar, Mr McKenzie and the other contractors to carry out the work which comprised the offence such that he is vicariously liable for the commission of the offence (Stoneman v Lyons at 573-574). Further, and having regard to the comments of Sheahan J in Kara-Ali at [4], I am also satisfied beyond reasonable doubt that the trees the subject of the charge were protected by the TPO, that the TPO was validly made, that no exception applied in relation to the trees that were felled, and that no consent was issued in relation to the trees’ removal.

529. Whilst I accept, in accordance with the approach taken by Pain J in Johnston, that it is not necessary for each particular to be proved in order for the offence to be made out, I consider that it is established beyond reasonable doubt that each of the 74 trees was removed by Mr Edgar and his team at the defendant’s direction.

530. I did harbour some slight concern about the trees (it appears from the survey prepared by Degotardi, Smith & Partners that there may be three or four such trees) in the area surrounding a concrete drain towards the north-east of the site. My concern in relation to those trees arose on the basis that when he was asked whether he cleared the area around the concrete drain in cross-examination, Mr Edgar replied “[n]o, we didn't do ‑ no, that wasn't us” (at Tcpt, 16 April 2018, p 65(2)). However, Mr Edgar did give evidence that he removed three casuarinas to the east of the Carnarvon Road property and the trees and shrubs closest to the house (at Tcpt, 16 April 2018, p 36(1-19)). It appears that the trees near the concrete drain, at least one of which was a casuarina, may fall within this description as they were the felled trees closest to the house on the Carnarvon Road property.

531. In any event, I have already found that Mr Edgar understated the area which his team cleared (see above at [415]) and I am satisfied on the basis of the objective evidence in the form of the Degotardi, Smith & Partners survey that the trees near the concrete drain were removed and further, having regard to Ms Miller’s evidence based on her training and expertise, that those trees had been freshly removed as at 21 October 2014. Moreover, I note that Mr Edgar admitted to having removed 74 trees without consent in the Edgar proceedings.

532. In the circumstances, I am satisfied that each of the 74 trees removed without consent was removed at the direction of the defendant.

Conclusion

533. As I have found the defendant guilty of the offence as charged, the appropriate orders are that the defendant is found guilty of the offence and that the matter be stood over to a date to be fixed for submissions on penalty.

Orders

534. The Court orders that:

1. The defendant is guilty of the offence as charged.

2. The matter is stood over to a date to be fixed for submissions on penalty.

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Amendments

17 December 2019 - Anonymisation Policy amendments.

Decision last updated: 17 December 2019