Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro (No 5)

[2007] NSWLEC 362

Land and Environment Court

of New South Wales

CITATION:

Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 5) [2007] NSWLEC 362

PARTIES:

PROSECUTOR
Port Macquarie – Hastings Council
FIRST DEFENDANT
Lawlor Services Pty Limited
SECOND DEFENDANT
Edmund Petro

FILE NUMBER(S):

50031 of 2006, 50006 of 2007

CORAM:

Pain J

KEY ISSUES:

Prosecution :- whether "no case to answer" submission should be granted.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 125
Hastings Local Environmental Plan 2001 cl 20
Hastings Tree Preservation Order 2003 cl 7

CASES CITED:

Amalgamated Television v Marsden (2001) 122 A Crim R 166;
Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88;
Canada Bay City Council v Bird; Canada Bay City Council v Christopher (2003) 124 LGERA 303;
EPA v N (1992) 26 NSWLR 352;
Giorgianni v R (1985) 156 CLR 473;
Ianella v French (1967-1968) 119 CLR 84;
Ku-Ring-Gai Municipal Council v Beaini [2001] NSWLEC 35;
Lloyd v Snooks (1997) 94 A Crim R 314;
Lloyd v Snooks (1999) 153 FLR 339, 9 Tas R 41;
May v O'Sullivan [1955] 92 CLR 654;
Osland v R (1998) 159 ALR 170;
Power v Penthill (1993) 80 LGERA 247;
R v Tangye (1997) 92 A Crim R 545;
R v Taufahema (2007) 234 ALR 170;
Walsh v Bar-Mordecai 62 LGERA 195;
Willoughby City Council v Revelas [2004] NSWLEC 147.

DATES OF HEARING:

12 June 2007
13 June 2007
14 June 2007
15 June 2007

 
DATE OF JUDGMENT: 

19 June 2007

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr I Hemmings
SOLICITOR
Donovan Oates Hannaford

FIRST DEFENDANT
Mr J Maston
SOLICITOR
Falvey Associates
SECOND DEFENDANT
Mr T Hale SC
SOLICITOR
Falvey Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

19 June 2007

50031 of 2006, 50006 of 2007 Port Macquarie – Hastings Council v Lawlor Services Pty Limited, Port Macquarie – Hastings Council v Petro (No 5)

JUDGMENT ON NO CASE TO ANSWER

1 Her Honour: This judgment deals with a “no case to answer” submission by both Defendants in relation to separate charges that an offence was committed under s 125 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that the Defendants caused trees at Lot 186 DP754405 Herons Creek Road, Herons Creek NSW to which the Hastings Tree Preservation Order 2003 (the TPO) applied to be destroyed contrary to the provisions of cl 20 of the Hastings Local Environmental Plan 2001 (the LEP). The person who bulldozed the trees in issue, Mr Lindsay, was not charged and gave evidence in the Prosecutor’s case. The Prosecutor has closed the evidence in its case.

2 Section 125(1) of the EP&A Act provides:

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.

3 The Prosecutor is taking action under cl 20(4) of the LEP which provides:

A person must not ringbark, cut down, top, lop, remove or wilfully destroy a tree to which a tree preservation order applies without development consent or the permission of the Council or unless authorised to do so by or under an Act.

4 The TPO identifies at cl 7 exemptions including:

This Order does not apply to tree removal listed below, although this does not override any other statutory requirement for consent or permission to be obtained:
…

(g) The property is being selectively and sustainably logged in accordance with a Harvest Management Plan that has been approved by Council.

5 Subject to one argument by the Defendants concerning continuing use rights which I deal with below, there is no dispute that the TPO applies to the subject land unless an exemption applies. A Harvest Management Plan (HMP) awarded to Mr Parish, the previous owner of the land, granted by the Prosecutor on 25 August 2005 for one year, is in evidence.

6 The “no case to answer” submissions of the Defendants, submitted jointly, are based on three grounds:

(i) the forestry activity which gave rise to the alleged offence is a continuing use under s109 of the EP&A Act and the TPO therefore has no application,

(ii) the forestry activity was conducted pursuant to a HMP and was exempt from the TPO by virtue of cl 7(g),

(iii) there is no evidence which could prove the existence of a joint criminal enterprise in relation to Mr Petro.

7 The approach to a “no case to answer” application was identified in May v O’Sullivan [1955] 92 CLR 654 where it was held at 658:

When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject a ruling that there is a “case to answer” has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end.

8 In Doney v The Queen [1990] 171 CLR 207 it was held at 214:

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

9 Amalgamated Television v Marsden (2001) 122 A Crim R 166 at [48] was also relied on by the Prosecutor. The Prosecutor accepts that it must prove that the TPO applies to the land. There is evidence that a TPO has been made pursuant to s 20(2) of the LEP, which was published in a newspaper circulating in the Council area on 3 December 2003. It must prove there are no development consents or TPO permissions. There is some evidence that no such consents or permissions apply to the land. There is one HMP issued for the land to its previous owner, Mr Parish. There is evidence that logging pursuant to the HMP was carried out on the land in May and June 2006.

Ground (i) continuing use

10 Section 109(1) of the EP&A Act provides:

Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

11 The Defendants argued that the land the subject of the charge has been used for timber farming/forestry for about one hundred years, relying on the HMP application where a brief history of the use of the land is set out and the affidavit of Ms Davine dated 20 September 2006 par 4. Timber farming/forestry is a use for a lawful purpose to which s 109 applies. Under the LEP forestry is a permissible use with development consent in the industrial zone, which the subject land is zoned, hence the application of s 109(1). The Prosecutor stated in submissions that the forestry activity, meaning the logging which was undertaken in May/June 2006, was lawful.

12 Further, because of continuing use rights for timber farming/forestry pursuant to that use it was not in fact necessary for an application to be made for a HMP. Clause 20(4) of the LEP does not apply because the logging in May/June 2006 was authorised by virtue of s 109 and the clean up by Mr Lindsay afterwards is part of the lawful forestry activity.

13 The Prosecutor argued that there is evidence to establish that the removal of trees the subject of the charge was not being carried out pursuant to the HMP. As identified in the Prosecutor’s written submissions:

· Logging had occurred about two to three months before Mr Lindsay was on the land (Mr Lindsay – transcript 31 May 2007 at 52.24)

· Mr Lindsay went there after logging (Mr Lindsay transcript 284.22)

· Mr Lindsay understood his instructions to be to remove everything other than the larger trees (transcript 308.22)

· Mr Armitage told Mr Lindsay that “Eddy asked about the firies to burn and they said they wanted it tidied first” (transcript 318.22)

· Mr Lindsay understood his role was to “tidy up the debris on the site” (transcript 319.19).

Further, the logging pursuant to the HMP had been carried out by Mr Lewis and Mr Toms under the supervision of Mr Bartlett. The removal of trees pursuant to the HMP had been finished by 3 May 2006 (see Bartlett transcript 590.57). The Prosecutor notes that at no time has it been suggested to any witness, nor has it been suggested by any witness, that any of the work that was being carried out by Mr Lindsay was pursuant to the HMP.

14 The Prosecutor otherwise characterises the use of the land as being for logging. As the evidence of the last logging of the land was in 2000, the rebuttable presumption of abandonment arises under s 109(3) of the EP&A Act.

Finding on ground (i)

15 This ground is essentially an argument that, if successful, must be a complete defence to the Prosecution (as is ground 2). Because it has been argued on a “no case to answer” basis the argument is essentially preliminary. In order to finally determine the matters raised by the Defendants there needs to be more argument and evidence before I can conclude that this ground is a complete defence. As submitted by the Prosecutor, until the “no case to answer” submission there was no suggestion raised in the course of cross-examination or in any other context that the clean up activities of Mr Lindsay were conducted under the HMP. There is presently no evidence that the work conducted by Mr Lindsay was done under the HMP contrary to the Prosecutor’s case that it was not. Reliance on the terms of the HMP is not conclusive of the matter.

16 There is some evidence (identified in the Prosecutor’s submissions) that the activities of Mr Lindsay in clearing up are not within the terms of the HMP or, to apply May v O’Sullivan, that there is evidence if uncontested that could lead to the conclusion that Mr Lindsay’s cleaning up activities were not done within the terms of the HMP.

17 I do not find there is “no case to answer” on this ground.

Ground (ii) exemption in cl 7(g) of TPO applies

18 The Defendants argued that on the Prosecutor’s evidence the TPO does not apply because the exemption in cl 7(g) applies. A HMP was issued for one year from the date of determination and expired on 25 August 2006. The alleged activity giving rise to the offence occurred before that date. Under the terms of the HMP there was no relevant limit on the trees that could be logged or on the clearing of any vegetation on the land. All of the activities carried out by Mr Lindsay on the site meet the description of the activities which were mandated by the conditions of consent and they all occurred within the one year currency of the HMP. Reliance was placed on the conditions of the HMP. The former owner, Mr Parish, caused the logging operations on site to occur, but did not carry out any of the post logging clean up activities required by the conditions of the HMP.

Finding on ground (ii)

19 The Prosecutor has the onus of establishing that cl 20(4) of the LEP applies but any exemption must be proved by the Defendants. It is not therefore for the Prosecutor to negate the application of cl 7(g) of the TPO; see Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 at 119 per McHugh J:

the onus of proof lies on the party alleging that he falls within the qualification, excuse or proviso

As identified in relation to ground 1, if the exemption is ultimately proved by the Defendants it will be a complete defence to the Prosecution.

Ground (iii) no joint criminal enterprise

20 In opening, the Prosecutor argued the offence committed by Mr Petro was that of a joint criminal enterprise with Mr Lindsay, the bulldozer driver who knocked over the trees over 3m the subject of the charge. The Defendants requested particulars in relation to the joint criminal enterprise alleged by the Prosecutor on the second day of the hearing and the Prosecutor provided the following answers:

Particulars

Answer: The wilful destruction of trees to which the Hastings Tree Preservation Order 2003 applied, contrary to the provisions of cl 20 of the Hastings Local Environmental Plan 2001 on Lot 186 DP 754405 (the Site) during the period 1 July 2006 to 8 August 2006.

Answer: To the extent the agreement or understanding was express, Edmund Petro was present on the Site regularly (if not daily) during the commission of the physical acts the subject of the joint criminal enterprise by Dean Lindsay. During those times Edmund Petro confirmed that he was both satisfied with the works being carried out by Dean Lindsay and that Dean Lindsay should continue with those works.
To the extent the agreement or understanding was implied or tacit, Edmund Petro was present on the Site regularly (if not daily) during the commission of the physical acts the subject of the joint criminal enterprise by Dean Lindsay.

Answer: The agreement between Edmund Petro and Dean Lindsay was express and/or implied.

Answer:
(a) No
(b) partly oral
(c) partly implied

Answer: Nil

6. If wholly or partly oral state:
Answer: See answer to [2] above.

Answer: See answer to [2] above.

(i) Wilful destruction under the TPO

21 The Defendants argued that the offence charged is that of wilful destruction of trees under cl 20(4) of the LEP and is not an offence under s 125 only. Further, the offence of wilful destruction of trees is not a strict liability offence. Cases such as Ianella v French (1967-1968) 119 CLR 84 identify that “wilful” can mean that mens rea is required as a necessary element of the offence it creates. (I note that Barwick CJ and Windeyer J both refer to the need to consider “wilful” in the statutory context in which it appears.) Reliance was also placed on EPA v N (1992) 26 NSWLR 352.

22 The Prosecutor has argued its case on the basis that the offence is one of strict liability under s 125(1) of the EP&A Act, the relevant matter being the failure to comply with cl 20(4) of the LEP. Provided that trees are no longer in the ground, as part of the facts giving rise to the offence, it does not matter whether these are removed, knocked over, wilfully destroyed or any of the other actions specified in cl 20(4) of the LEP. On the evidence it is clear that trees were wilfully destroyed meaning not accidentally but intentionally destroyed. Numerous cases which have held that prosecutions under s 125 of the EP&A Act, including in relation to TPOs, are strict liability offences were referred to, see Power v Penthill (1993) 80 LGERA 247 (breach of development consent conditions), Walsh v Bar-Mordecai 62 LGERA 195 at 197, Willoughby City Council v Revelas [2004] NSWLEC 147, Ku-Ring-Gai Municipal Council v Beaini [2001] NSWLEC 35, Canada Bay City Council v Bird, Canada Bay City Council v Christopher (2003) 124 LGERA 303 at [68].

(ii) Joint criminal enterprise

23 The Defendants argued that in order for the Prosecutor to succeed in proving that Mr Petro was engaged in a joint criminal enterprise with Mr Lindsay it needs to prove firstly that a crime was committed (this related to whether there is an offence committed by Mr Lindsay of the wilful destruction of trees, see above).

24 It is also necessary that there be proof of

(i) the existence of a voluntary agreement between Mr Lindsay and Mr Petro for Mr Lindsay to wilfully destroy trees over 3m in height on the land.

(ii) the physical presence of Mr Petro at the time and place at which Mr Lindsay wilfully destroyed a tree or trees in excess of 3m and

(iii) the participation (meaning presence in this context) of Mr Petro in the commission of the proscribed acts.

There is no evidence of any agreement between Mr Petro and Mr Lindsay that Mr Petro would agree and participate in the joint criminal activity with Mr Lindsay of the wilful destruction of trees in excess of 3m and none can be inferred on the evidence.

25 The Prosecutor argued that taken at its highest the evidence permits the inference to be drawn that Mr Petro knew that trees greater than 3m were being destroyed. It is unnecessary to establish that fact because this is a strict liability offence and it is not necessary for the Prosecutor to prove that either Mr Petro or Mr Lindsay knew that trees in excess of 3m were being removed, provided there is evidence that trees of 3m in height were being removed (as there is). There is no doubt that Mr Lindsay has committed an offence under s 125 of the EP&A Act, that is, a breach of cl 20 of the LEP in that he has removed trees to which the TPO applies without permission or consent.

26 Joint criminal enterprise can arise for a strict liability offence see Osland v R (1998) 159 ALR 170, R v Tangye (1997) 92 A Crim R 545. Such an offence was found proved in Lloyd v Snooks (1999) 153 FLR 339, 9 Tas R 41.

Finding on Ground (iii) joint criminal enterprise

27 Because the Defendants’ submissions raised legal arguments about the charges in this case I requested the parties draw up questions which could be answered as a means of identifying the legal issues which need to be answered in the context of this “no case to answer” application. This was done in relation to “wilful” and “joint criminal enterprise”.

“Wilful”

28 The questions posed in relation to “wilful” were:

(i) does “wilfully”, where used in cl 20(4) of the LEP, mean deliberately, as opposed to accidentally? The Prosecutor argued “yes” and I agree with those submissions as set out above at par 22. As identified EPA v N the statutory context in which “wilful” appears must be considered, see Hunt CJ at 355:

The word “wilfully” when appearing in a statute is not always given the same meaning. In Iannella v French , the offence was expressed as: “Any person who … wilfully demands or wilfully recovers as rent … any sum which by virtue of this Part is irrecoverable, shall be guilty of an offence …” Barwick CJ (at 95) said that the word “wilfully” connotes intention and knowledge, although he acknowledged that what is to be intended and what is to be known must vary with the nature of the act proscribed. Windeyer J (at 107) said that it generally comprehends all that is meant by voluntary in the sense of both ultroneous (done of one’s own accord) and intentional, and that it goes further so as to carry a sense of contumacy. Later (at 109), his Honour said that, when the word “wilfully” forms part of the description of an offence, what is meant is an act done with knowledge of all the facts which make it an offence.
The two justices were, of course, in the minority as to the result in that case. The weight to be given to their interpretation of the word “wilfully” is thus perhaps equivocal. In the majority, McTiernan J (at 98) said that the word meant “with wilful intent”, Taylor J (at 101) appears to have equated it simply with “intentionally”. Owen J (at 116-117) agreed with Taylor J.
Perhaps the only assistance which can be obtained from that case is to be found in the statements by Barwick CJ (at 93, 95) that the denotation of the word ‘wilfully” depends upon its context and the subject matter of the provision in which it is found, and by Windeyer J (at 108) that an exercise in the science of language and meaning of words (semasiology) will not yield the true interpretation of the word “wilfully”; its importance is in the meaning which it gives to (rather than takes from) its context.

This passage stresses that context is important.

(ii) If the answer to (i) is “no”, what does wilfully mean? It follows from my previous answer that I do not accept the Defendants’ argument that wilfully means “intentional” requiring proof of mens rea. This is also clear from my finding that s 125 offences are strict liability offences (see answer to question (iv) below).

(iii) Is the Court satisfied that the evidence could show that trees (the subject of the TPO) were “wilfully destroyed”? The Defendants concede that Mr Lindsay has cleared trees greater than 3m in breach of the TPO for the purposes of this “no case to answer” application. I have already noted that he is not charged with an offence.

(iv) Is the offence under s 125 of the EP&A Act, being a breach of the prohibition in cl 20(4) of the LEP, an offence of strict liability? The numerous cases relied on by the Prosecutor confirm that s 125 offences are strict liability. That the offence arises because of a failure to comply with an LEP does not alter this circumstance.

(v) Does the answer to question (iv) depend on the physical act proscribed by cl 20(4) of the LEP? This question is linked to question (iv), where I have held that the strict liability offence arises under s 125, not under the LEP. It is not therefore possible for a mens rea offence to arise in relation to cl 20(4) of the LEP simply because wilful destruction appears as one of the proscribed acts. The answer to this question is no.

Joint criminal enterprise

29 The questions posed were:

(i) If the answer to question (iv) in par 29 is “yes” that is, the offence is strict liability, is Mr Petro able at law to be criminally liable, as a principal in the first degree, by reason of a joint criminal enterprise? That is not a question easily answered at this stage of the case in the context of a “no case to answer” application which I am endeavouring to answer quickly on the basis of the evidence. I will discuss the submissions and evidence below.

(ii) If the answer to question (iv) in par 29 is “no”, the offence is not a strict liability offence, is Mr Petro able at law to be criminally liable as a principal in the first degree by reason of a joint criminal enterprise? This question does not arise in light of my findings above.

In Criminal Practice and Procedure New South Wales (LexisNexis Australia, (Electronic Source viewed 14 June 2007) [6-010]) joint responsibility for criminal acts is considered under the headings of joint enterprise and, separately, common purpose. The latter applies to an offence charged which was not the object of the joint enterprise entered into by a defendant. That is not the case being prosecuted here. As submitted by the Prosecutor, joint criminal enterprise is not the same charge as one based on secondary participation, such as a charge of “aid and abet” as considered in Giorgianni v R (1985) 156 CLR 473. The latter requires that the prosecutor prove that the defendant knew of all the facts and circumstances which must be established to prove that the principal committed the offence and it is not sufficient that the defendant is reckless or negligent in relation to those facts/circumstances.

Many of the Defendants’ submissions were directed to cases such as Giorgianni and R v Taufahema (2007) 234 ALR 1 which considered secondary participation and proof of common purpose.

The Prosecutor relied on Osland v R (1998) 159 ALR 170 and the Court of Criminal Appeal New South Wales in Tangye . In Osland, Gaudron and Gummow JJ held at [72] – [75]:
However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King (No 2) by Smith J who directed the jury in the following terms:

"The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime."

In that case, his Honour directed the jury that "they are all equally guilty of that crime". But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law:

"[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert." (emphasis added)
So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in Tangye. The Court said:

"(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed". (emphasis added)

In accordance with the New South Wales practice, the Court referred to "carrying out a criminal enterprise" rather than acting in concert. The principles, however, are the same.

As a result, a person may be found guilty of murder although he or she did not commit the acts which physically caused the death of the victim and the person who did is found guilty only of manslaughter. In R v Howe, all their Lordships were of the opinion that R v Richards, which had held that the person who did not perform the acts could not be guilty of a more serious charge than the actual perpetrator, was wrongly decided. Lord Mackay said:

"[W]here a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant."

This statement is conclusive in England, at all events, in showing that it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity. [footnotes omitted]

30 This is apparently the first time that such a offence has been prosecuted in this Court, according to the Prosecutor. In any event, no case from this Court concerning joint criminal enterprise relying on a strict liability charge has been provided. In the course of argument just one case, Lloyd v Snooks (see Lloyd v Snooks (1997) 94 A Crim R 314 at first instance and Lloyd v Snooks (1999) 153 FLR 339, 9 Tas R 41 on appeal) was discovered and relied on by the Prosecutor.

I am not prepared to rule finally on this “no case to answer” application as to whether such a charge is or is not available as a matter of law. On the basis of the case law relied on by the Prosecutor it appears that it is theoretically available. I will assume that it is for the purposes of this application. I will therefore consider the evidence relied on by the Prosecutor on this issue.

(iii) if the answer to question (iv) in par 29 is “yes”, which it is, is the Court satisfied that the evidence could show that there was an understanding or arrangement amounting to an agreement between Mr Petro and Mr Lindsay to commit a crime? and

(iv) if the answer to (iii) above is “yes”, which it is, is the Court satisfied that the evidence could show that Mr Petro participated in the joint criminal enterprise?

31 I will consider the evidence in relation to understanding and arrangement, and participation, together as they are closely linked in this case. The evidence the Prosecutor relies on is that Mr Lindsay undertook cleaning up work over approximately 12 days and that Mr Petro visited on most if not all those days for approximately 20 to 30 minutes while Mr Lindsay was working. The Prosecutor relies on the fact there was extensive cleaning up activity by Mr Lindsay over those 12 days over a 23ha site. There is evidence from two Council officers, Ms Davine and Mr Hanlon, describing the extent of clearing they saw when they visited the site after Mr Lindsay had nearly finished his cleaning up activity. That evidence is outlined in the Council’s written submissions on the “no case to answer” submission from par 27 to par 41 and is to the effect that all the understorey which included trees up to eight or more metres in height was cleared by Mr Lindsay.

32 There is evidence that Mr Lindsay removed trees in excess of 3m but the evidence of the number of trees removed is imprecise. The Prosecutor set out in its written submissions at par 43 a summary of the evidence concerning the number of trees in excess of 3m knocked over during Mr Lindsay’s cleaning up activity. The Defendants have admitted for the purposes of the “no case to answer” application that Mr Lindsay has knocked down trees in excess of 3m.

33 The Prosecutor argued that the inference arises on the evidence that Mr Petro could not have failed to notice the scale of the cleaning up process undertaken by Mr Lindsay, given his daily visits to the site. The evidence relied on as identified in the Prosecutor’s written submissions is that when Mr Petro came to the site Mr Lindsay was working:

· transcript - 31/5 p 50.45 - 56

· transcript - 302.12

34 On every occasion that Mr Petro came to the land he spoke with Mr Lindsay. On those occasions Mr Petro spoke to Mr Lindsay and told him “good work, keep going”.

· transcript - 303.42 and 55

· transcript - 304.20 - 25

35 Alternatively, to the extent he may not have used the specific words “keep going” he left Mr Lindsay with the impression that he was satisfied with the work that he was doing and that he should keep going.

· transcript - 338.5 (and see specifically transcript - 338.44)

36 Mr Petro also provided specific instructions as to the area of land upon which Mr Lindsay was to do his work.

· he told Mr Lindsay only to clear as far as Logan Crossing Road – Mr Lindsay transcript - 303.55

· Mr Lindsay transcript - 304.20 - 34

· Mr Lindsay confirmed the instructions given to him as set out in par 9 of Ms Davine’s affidavit - transcript - 307.19 - 39

· There is a clear inference from his evidence that Mr Lindsay considered he was told to remove everything other than the larger trees - transcript 308.19

· The description of the work that Mr Lindsay was doing was “basically just pushing up all the smaller spindly oaks and the younger eucalypt saplings and the undergrowth into piles …” - transcript - 309.5

· By the time Mr Lindsay was stopped he had almost finished the extent of the work that Mr Petro has asked him to do – transcript 309.55

37 Ms Davine also interviewed Mr Petro as set out in her affidavit of 13 October 2006 at par 5:

· Mr Petro is authorised to act for Lawlor Services – page 5

· Mr Petro organised for someone from the Rural Fire Services to come out to the site – page 5

· Mr Petro contacted Mr Armitage to have the work carried out – page 6

· Mr Petro met with Mr Armitage on the site – page 6

· Mr Petro organised for Mr Fullford to do some minor works on the land – page 7

· Mr Petro gave instructions to Mr Laws for the carrying out of that work – page 8

· Mr Petro was happy with what was being done on the land – page 8

· What they were doing on the land was according to Mr Petro’s instructions – page 8

38 On the basis that the evidence is uncontested, there is evidence which could give rise to a finding of understanding and agreement, and participation, by Mr Petro in a joint criminal enterprise. The “no case to answer” application is unsuccessful on this ground.