Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Walker Corporation Pty Limited v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210
• Hearing dates: 13 February 2012
• Decision date: 26 September 2012
• Before: McClellan CJ at CL at [1]; Hidden J at [103]; Garling J at [104]

Decision

Appeal dismissed

• Catchwords: CRIMINAL LAW - particular offences - clearing of native vegetation in contravention of s 12 of Native Vegetation Act 2003 - whether charge adequately particularised - application and scope of s 12 - whether primary judge erred in finding offence proven beyond reasonable doubt - whether primary judge erred in holding that native vegetation includes dead plant matter held that native vegetation does not include dead plant matter - whether primary judge erred in finding that the appellant caused native vegetation to be cleared - whether primary judge reached erroneous conclusions about environmental impact of offence such that the sentence imposed was excessive - appeal dismissed
• Legislation Cited: Native Vegetation Act 2003 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Criminal Appeal Act 1912 (NSW); Environment Protection and Biodiversity Conservation Act 1999 (Cth)
• Cases Cited: Alphacell Limited v Woodward [1972] AC 824; Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569; Capral Aluminium Ltd v WorkCover Authority (NSW) [2000] NSWIR Comm 71; (2000) 49 NSWLR 610; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; CJ Burland Pty Ltd v Metropolitan Meat Industry Board [1968] HCA 77; (1968) 120 CLR 400; Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363; Coffs Harbour City Council v Hickey [2004] NSWLEC 531; Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343; Commonwealth v Hazeldell Ltd [1918] HCA 75; (1918) 25 CLR 552; Department of Environment and Climate Change (NSW) v Calman Australia Pty Ltd [2009] NSWLEC 182; Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15; (2010) 173 LGERA 366; Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256; Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530; Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121; Director-General, Department of Environment Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102; Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30; Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200; Environment Agency (formerly National Rivers Authority) v Empress Car Co (Albertilly) Limited [1999] 2 AC 22; Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70; (2003) 128 LGERA 240; Environmental Protection Authority v Multiplex Constructions Pty Limited [2000] NSWLEC 6; (2000) 112 LGERA 1; Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; General Clutch Corporation v Spriggs Pty Ltd (1997) 38 IPR 359; Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593; Greentree v Minister for the Environment and Heritage [2005] FCAFC 128; (2005) 143 LGERA 1; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; Holmes v Director General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264; (2005) 139 LGERA 102; House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5; John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531; Makita Australia v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Minister for Environment and Heritage v Greentree (No 3) [2004] FCA 1317; (2004) 136 LGERA 89; R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156; Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
• Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (2011, 7th ed)
• Category: Principal judgment
• Parties: Walker Corporation Pty Limited (Appellant); Director-General, Department of Environment, Climate Change and Water (Respondent)
• Representation: J M Ireland QC/J K Taylor (Appellant); S Rushton SC/E C Muston (Respondent)
• File Number(s): 2011/255088

Decision under appeal

• Date of Decision: 2011-07-11 00:00:00
• Before: Pepper J
• File Number(s): 2008/50040

Judgment

1 McCLELLAN CJ at CL: The appellant, Walker Corporation Pty Ltd, was convicted by a judge of the Land and Environment Court of an offence contrary to s 12 of the Native Vegetation Act 2003 (NSW) ('the Act'). Section 12(2) of the Act provides that a person who offends against s 12 is liable to pay the maximum penalty provided under s 126 of the Environmental Planning and Assessment Act 1979 (NSW), that penalty being 10,000 penalty units ($1,100,000). The primary judge ordered the appellant to pay a fine of $200,000. The appellant appeals both its conviction and sentence pursuant to s 5AB of the Criminal Appeal Act 1912 (NSW).

2 The appellant filed six grounds of appeal against its conviction. A further two grounds were filed in respect of its sentence.

3 Section 12 of the Native Vegetation Act prohibits the clearing of native vegetation except in accordance with a development consent or a property vegetation plan. Section 12 is in the following terms:

"12 Clearing requiring approval

(1)Native vegetation must not be cleared except in accordance with:

(a)a development consent granted in accordance with this Act, or

(b)a property vegetation plan.

(2)A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.

(3)It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4."

4 Section 6 of the Act defines "native vegetation". That section is in the following terms:

"6 Meaning of native vegetation

(1)For the purposes of this Act, native vegetation means any of the following types of indigenous vegetation:

(a)trees (including any sapling or shrub, or any scrub),

(b)understorey plants,

(c)groundcover (being any type of herbaceous vegetation),

(d)plants occurring in a wetland.

(2)Vegetation is indigenous if it is of a species of vegetation, or if it comprises species of vegetation, that existed in the State before European settlement.

(3)For the purposes of this Act, native vegetation does not include any mangroves, seagrasses or any other type of marine vegetation to which section 205 of the Fisheries Management Act 1994 applies."

5 "Clearing native vegetation" is given meaning by s 7 of the Act, which is in the following terms:

"7 Meaning of clearing native vegetation

For the purposes of this Act, clearing native vegetation means any one or more of the following:

(a)cutting down, felling, thinning, logging or removing native vegetation,

(b)killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation.

Note. See Division 3 of Part 3 for the exclusion of routine agricultural management and other farming activities from constituting the clearing of native vegetation if the landholder can establish that any clearing was carried out for the purpose of those activities."

6 The defence provided by s 12(3) of the Act allows clearing permitted under Division 2 of Part 3 of the Act. Division 2 allows clearing of non-protected regrowth and certain ground cover and is in the following terms:

"18 Application

(1) This Division sets out the clearing of native vegetation that is permitted to be carried out without the authority conferred by a development consent or property vegetation plan.

(2) This Division does not permit clearing without an approval or other authority required by another Act or in contravention of another Act.

19 Clearing of non-protected regrowth permitted

(1) Clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted.

(2) This section is subject to any exclusion in a property vegetation plan.

20 Clearing of certain groundcover permitted

The clearing of native vegetation that comprises only groundcover is permitted if:'

(a) the vegetation comprises less than 50% of indigenous species of vegetation, and

(b) not less than 10% of the area is covered with vegetation (whether dead or alive), and

(c) those percentages are calculated in accordance with the regulations."

7 The appellant relied upon s 19 at the trial.

8 Prosecution for an offence under the Native Vegetation Act is by summary process. The summons in the present case was in the following terms:

"The Prosecutor claims:

1.An order that the Defendant Walker Corporation Pty Ltd (A.C.N. 0076 263) of Level 50, Governor Phillip Tower 1 Farrar Place, Sydney in the State of New South Wales, appear before a Judge of the Court to answer the charge that, between about 1 June 2006 and 6 February 2007 inclusive, at or near Wilton in the State of New South Wales, it committed an offence against section 12 of the Native Vegetation Act 2003, in that it carried out clearing of native vegetation otherwise than in accordance with a development consent granted in accordance with that Act or a property vegetation plan.

Particulars:

(a)Place of offence:

On or near Lot 2 in Deposited Plan 108340 and Lot 2 in Deposited Plan 1076362, Parish of Wilton, County of Camden, Iocal government area of Wollondilly.

(b)Native vegetation cleared:

The native vegetation cleared included the species listed in the Annexure to this Summons.

(c)Manner of breach:

(i)The Defendant, by its contractor Environmental Land Clearing Pty Ltd, cleared native vegetation by means of machinery including a mulcher; and/or

(ii) The Defendant was the landholder of land on which the clearing of native vegetation was carried out.

(d)Date on which evidence of the offence first came to the attention of an authorised officer:

Evidence of the offence first came to the attention of an authorised officer, being Jennie Whyte, on 11 January 2007.

2.That the Defendant be dealt with according to law for the commission of the above offence.

3.An order that the Defendant pay the Prosecutor's costs.

4.Such orders as the Court in its discretion sees fit to make.

Annexure

Scientific name of speciescommon name or names of species

Acacia mearnsilBlack Wattle

Acacia parramattensisParramatta Wattle, Sydney Green Wattle

Allocasuarina littoralisBlack She-Oak

Astroloma humifusumNative Cranberry

Billardiera scandensHairy Apple Berry

Bassiaea prostrata(No common name)

Bursaria spinosaBlackthorn, Boxthorn, Sweet Bursaria

Callistemon linearisNarrow-leaved Bottlebrush

Daviesia ulicifoliaGorse Bitter Pea

Eucalyptus cerebraNarrow-leaved Ironbark

Eucalyptus eugenioidesThin-leaved Stringybark

Eucalyptus fibrosaRed Ironbark

Eucalyptus globoideaWhite Stringybark

Eucalyptus longifoliaWoollybutt

Eucalyptus moluccanaGrey Box

Eucalyptus parramattensisParramatta Red Gum

Eucalyptus punctataGrey Gum

Eucalyptus tereticornisForest Red Gum

Exocarpos cupressiformisCherry Ballart, Native Cherry

Hardenbergia violaceaPurple Coral Pea, False Sarsparilla, Waraburra

Hibbertia aspera subsp. Aspera(no common name)

Hibbertia diffusaWedge Guinea Flower

Kunzea ambiguaTick Bush

Leucopogon juniperinusPrickly Beard-heath

Melaleuca nodosa(no common name)

Persoonia linearisNarrow-leaved Geebung

Phyllanthus hirtellus(no common name)

Pimelea linifolia subsp. LinifoliaRiceflower

Pomax umbellate(no common name)"

9 At the trial the respondent alleged that clearing had taken place over an area of approximately 23 hectares. It was alleged to have taken the form of mulching trees and shrubs in situ or pushing them over and mulching them. The respondent accepted that a number of trees were preserved within the areas which had been cleared.

10 Although 30 species were specified in the summons only seven species were identified in the evidence as having been cleared:

(a)Allocasuarina LittoralisBlack She-Oak

(b)Eucalyptus CerebraNarrow-leaved Ironbark

(c)Exocarpus CupressiformisCherry Ballart, Native Cherry

(d)Hardenbergia Violacea Purple Coral Pea, False

Sarsparilla, Waraburra

(e)Melaleuca Nodosa(no common name)

(f)Pimelea Linifolia subspRiceflower

Linifolia

(g)Pomax Umbellata(no common name)

11 The respondent did not allege that the appellant itself physically cleared any land; rather, it alleged that Environmental Land Clearing Pty Ltd ("ELC") carried out the work at the request of the appellant. The respondent's case was that the appellant was liable pursuant to s 44 of the Act of having caused or permitted the clearing, or otherwise being liable at law for the activities of its contractor. Section 44 raises a presumption that the landholder of any land will be taken to have cleared it unless it is established that it did not cause or permit that clearing. The section is in the following terms:

"44Evidentiary provision

In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:

(a)the clearing was carried out by another person, and

(b)the landholder did not cause or permit the other person to carry out the clearing.

This section does not prevent proceedings being taken against the person who actually carried out the clearing."

12 At the trial, employees of ELC acknowledged that ELC had cleared blackberries, mulched "smaller standing" trees and scrubby bush and cleared a riparian zone. However, the respondent did not accept that this evidence reflected the true nature of the clearing activities. The respondent called Mr John Palmer, a Natural Resource Information Officer employed by the Department of Environment, Climate Change and Water. Mr Palmer used aerial photographs and images taken from a satellite known as "SPOT 5", which uses remote sensing technology to collect panchromatic, multi-spectral and infra-ray imagery. Mr Palmer concluded from his analysis of the available images that woody vegetation was present on the land which had been cleared prior to 1 January 1990 and that such vegetation was present within those areas of the property cleared by the appellant between 1 June 2006 and 6 February 2007.

13 The respondent also called evidence from Mr Kenneth Turner, a terrestrial ecologist. Mr Turner carried out two site inspections of the cleared land and examined nearby areas which had not been cleared. He also used aerial photography and the imagery from the SPOT 5 satellite. He concluded that the seven identified specifies had been cleared from the property. However, he was not able to specify the number of each species which was removed and accordingly was unable to identify the total quantity of the vegetation which had been removed.

14 At the trial the appellant raised a number of issues described in the submissions to this Court as "threshold questions." They included whether the vegetation removed included "native vegetation" within the meaning of the Act, whether the clearing was permitted because it was regrowth within the meaning of s 19(1) of the Act, and whether the appellant could be criminally liable for any act of ELC.

15 The appellant called evidence from Dr Andrew Smith and Dr AnnMarie Clements. Its defence to the prosecution case included the following submissions:

A.there was no direct evidence that the seven species alleged to have been cleared were present on the property prior to the clearing;

B.there was no direct evidence that those seven species had in fact been cleared;

C.it was not possible to infer from the fact that those seven species were subsequently identified in certain random and different cleared and uncleared areas on the property that such species had been cleared from the identified areas on the property totalling 23 ha between June 2006 and February 2007;

D.the appellant did not "cause" or "permit" ELC to carry out the offence, and accordingly the prosecutor was not able to gain assistance from s 44 of the Act so as to attribute criminal responsibility to the appellant, nor was the appellant vicariously liable for ELC's acts; and

E.ELC's clearing activities were limited to removing noxious weeds (such as blackberries), "underscrubbing" (which may have involved the removal of regrowth), removing dead wood to clean up the property, and associated regrowth.

Ground 1:The trial was conducted on the basis of a charge that was inadequately particularised, in that it failed to specify the native vegetation that was allegedly cleared.

16 The law requires that a defendant in criminal proceedings be told of the legal nature of the alleged offence and of the particular act, matter or thing alleged to be the foundation of the charge: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [26] (French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ). In Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, Dixon J said at 489:

"[In the present case] the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence."

17 The charge must specify "the time, place and manner of the defendant's acts or omissions": Kirk at [26]; Johnson at 486. The purpose in providing particulars is to inform the court of the nature of the offence and to provide the accused with an understanding of the charge so that he or she can properly defend against it: John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519; Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153. Accordingly, particulars will be inadequate if they do not enable a defendant to effectively rely upon any statutory defences which may be available to it: Kirk at [27]-[38]; Johnson at 483-484, 490.

18 The appellant submitted that the summons which commenced the proceedings failed to meet the obligation to provide adequate particulars. It was submitted that it failed to specify the actual vegetation alleged to have been cleared, the quantum of the vegetation making up the seven species which were identified, or the location of the species or individual plants beyond a "vague assertion" that 23 ha of land were cleared.

19 It was submitted that these failures amounted to more than a procedural irregularity and that they undermined the appellant's ability to put forward the defences available under the Act. In particular, it was submitted that in the absence of any particulars or specific evidence of particular specimens said to have been unlawfully cleared, it was not possible for the appellant to lead evidence that such specimens were "regrowth" within the meaning of the Act. Nor, so it was submitted, was it possible for the appellant to meet the case by showing the particular plant matter alleged to have been cleared was dead.

20 The respondent submitted that the appellant's argument failed to appreciate the inter-relationship between the definition of native vegetation in the Act and the allegation in the summons. It was submitted, as alleged in paragraph 1(b) of the summons, that the entirety of the vegetation cleared from the 23 ha was "native vegetation" by reason of the fact that it included one or more of the seven species.

21 The respondent emphasised the manner in which native vegetation was defined in s 6(1) of the Act. It was submitted that to construe s 6(1) of the Act as referring only to individual specimens such as the seven identified species is to disregard the use of the plural in ss 6(1)(a)-(d) and, more significantly, the phrase "or if it comprises species of vegetation. The Macquarie Dictionary defines the word "comprise" relevantly as including to comprehend, include, contain, consist of, be composed of, or to combine to make up.

22 It was submitted that in the context of the Act, the word "comprises" must be construed as "includes" or "contains." It was submitted that to construe the word as meaning "consists of" or "is composed of" so as to limit the definition of "native vegetation" to species existing in the State before European settlement would simply be to repeat what is already conveyed by the words "if it is of a species of vegetation", making the words "or if it comprises species of vegetation" superfluous. It was submitted that this construction is consistent with and best gives effect to the stated objects of the Act, in particular that referred to in s 3(b), which is in the following terms:

"3Objects of Act

The objects of this Act are:

(a)to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and

(b)to prevent broadscale clearing unless it improves or maintains environmental outcomes, and

(c)to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and

(d)to improve the condition of existing native vegetation, particularly where it has high conservation value, and

(e)to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation,

in accordance with the principles of ecologically sustainable development."

23 It was submitted that further support for this construction of the Act is found in s 20, which provides that the clearing of "native vegetation" that comprises only ground cover is permitted if the vegetation comprises less than 50 per cent of indigenous species of vegetation. The section contemplates that "native vegetation" may include indigenous and non-indigenous species.

24 The appellant responded to these submissions by considering previous decisions in relation to the meaning of the word "comprise." There is an exhaustive analysis by Lindgren J of the word in General Clutch Corporation v Spriggs Pty Ltd (1997) 38 IPR 359 at 373-376. As Lindgren J's analysis makes plain, the correct interpretation of the word "comprise" depends upon the context in which it is used.

25 The appellant submitted that the word "comprises" in s 6 of the Act should be understood to mean "consists of" or "composed of", rather than "includes." It was submitted that the relevant word should be given the meaning consistent with ordinary usage and "common sense." Section 6(2) prescribes a specific, particular characteristic for vegetation to qualify as indigenous, that being vegetation which "existed in the State before European settlement." It was submitted that that specific characteristic must be applied to each species under consideration.

26 It was further submitted that the interpretation advanced by the appellant does give effect to each of the words in the statute. It was submitted that the words "if it is of a species ... or if it comprises species ..." in s 6(2) is intended to accommodate the situation where the type of vegetation under consideration in s 6(1) is not uniform but is made up of more than one kind of indigenous plant. In the alternative, it was submitted that s 6(1) states that vegetation "means" various types of "indigenous vegetation." Some of these are plural (eg trees and plants) and some are singular (eg sapling or shrub, or any scrub). Accordingly, it was submitted that the words "if it is of a species" does have work to do even if comprises does not mean includes.

27 The appellant emphasised that when construing a provision imposing criminal liability, the rule of lenity requires that any ambiguity be resolved in favour of the defendant: Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576 (Gibbs J); Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164 (Gibbs CJ, Mason, Wilson and Dawson JJ); Capral Aluminium Ltd v WorkCover Authority (NSW) [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at 629; see also Holmes v Director General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264; (2005) 139 LGERA 102 at [26] and cases cited there by Lloyd J.

28 It was further submitted that the Act restricts the use a person can make of property and, accordingly, the general presumption in the event of ambiguity is that the court should prefer an interpretation that does not interfere with a citizen's proprietary rights: Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363 at 373; Commonwealth v Hazeldell Ltd [1918] HCA 75; (1918) 25 CLR 552 at 563; Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343; CJ Burland Pty Ltd v Metropolitan Meat Industry Board [1968] HCA 77; (1968) 120 CLR 400 at 406-407, 15; see also the cases cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia (2011, 7th ed) at [5.21].

29 The appellant submitted that the relevant object of the Act in s 3 is to prevent the clearing of native vegetation. Native vegetation means indigenous vegetation and, accordingly, if the definition of "native vegetation" is read as including indigenous and non-indigenous vegetation, the Act would extend beyond its stated objects by criminalising the clearing of non-native vegetation.

30 The appellant submitted that s 20 does not assist the respondent. It was submitted that it provides a special exemption in relation to clearing of certain ground cover. It was further submitted that if it be relevant at all, the provision assists the appellant. The appellant submitted that if "indigenous vegetation" means, as the prosecutor suggests, vegetation that "includes" species of vegetation that existed in the State before European settlement, it would be a nonsense to speak of vegetation comprising "less than 50% of indigenous species of vegetation" because, if the definition of "indigenous" in s 6(2) were applied, then "indigenous species" in s 20 would itself include indigenous and non-indigenous species. It was submitted that it would be absurd to construe the Act so that the clearing of non-indigenous species on land was a criminal offence.

31 The issue of the meaning of the word "comprises" was raised for the first time in this appeal in the context of this ground of appeal. There was no suggestion at the trial that the appellant did not understand the nature of the charge and the particulars relevant to it sufficiently to be able to mount its defence.

32 It must be remembered that in many situations where native vegetation exists there is also likely to be vegetation which is not indigenous. Ordinary experience suggests that many introduced species have found Australia's natural environment conducive to their propagation, very often to a level that seriously impacts upon the indigenous species. It could not have been the intention of the legislature that in circumstances where non-indigenous species were present, the Act would not operate to protect the indigenous species of vegetation.

33 Accordingly, I accept the respondent's submission that a purposive interpretation of s 6(2) requires that the word "comprises" be construed as "includes". To construe the word as meaning "consists of" would frustrate the Act's stated objects of protecting native vegetation and preventing broadscale clearing that does not improve or maintain environmental outcomes. So to construe s 6(2) would require the prosecution to painstakingly identify the precise quantum of indigenous vegetation within a large parcel of land. In most cases where native vegetation has been cleared, although it may be possible to identify after the event that some individual trees have been removed, the vegetation will be in such a state that it is not possible to identify individual plants or trees which have been destroyed. The practical result of the appellant's interpretation would be to preclude a good many prosecutions, even where the evidence suggests that large-scale clearing has incidentally destroyed native vegetation.

34 The appellant's submission that ambiguous penal statutes must be interpreted in favour of a defendant is a truism. But the argument, as applied to the Act under consideration, wrongly assumes that s 6(2) is ambiguous. Gibbs J's comments in Beckwith v The Queen at 576 are instructive:

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort."

35 The applicant has failed to clear the first hurdle of establishing an ambiguity in s 6(2) of the Act. The "ordinary rules of construction" to which Gibbs J referred include the principle that statutes are to be construed in context and in such a way as to best give effect to their object and purpose. As the High Court made clear in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408, context and purpose are to be "considered in the first instance, not merely at some later stage when ambiguity might be thought to arise". An interpretation of s 6(2) that has regard to context and purpose leaves no room for ambiguity. There is therefore no warrant for resorting to the rule that a penal statute ought to be strictly construed.

36 In any event, at the trial, the appellant had no difficulty in understanding that it was charged with removing multiple plants of varying species which were indigenous. It understood that it was alleged that the species were dispersed throughout 23 ha of land which had been cleared by mechanical means, although some individual trees remained. If the appellant contended, as it did, that the vegetation which was removed was only regrowth as provided by s 19, it could have brought evidence to establish that fact. However, the prosecution case was that even if there was some non-native vegetation present, there was throughout the 23 ha parcel of land native vegetation which was removed, and that the presence of that vegetation was established by a careful examination of portions of the land which had been cleared to establish from the residue of destroyed vegetation whether it was native. Those observations were supported by a detailed examination of portions of adjoining land which had not been cleared.

37 The interpretation of s 6(2) on which I have settled does not preclude a defendant from seeking to establish that the trees and plants which were on the land were regrowth within the meaning of the Act. In the same manner that the prosecution may carry out a detailed survey to determine the trees and plants that were present, a defendant may itself survey the land to establish the age of those trees and plants.

38 Although I am not persuaded that the appellant did not have sufficient particulars to defend against the charge, the dispersion and likely density of the trees and plants on the land were relevant to the quantum of the penalty. I shall consider in relation to the ground of appeal which challenges the appropriateness of the penalty the evidence that established the amount of vegetation existing on the land that was cleared.

Ground 2:The primary judge erred in holding that the prosecutor discharged its onus of proving that native vegetation was cleared on the land.

39 I have previously referred to the fact that the respondent called evidence from Mr Turner and Mr Palmer. Mr Turner based his analysis on photographs, a satellite image and field data collected by his assistants. He also carried out field inspections of relevant areas of the site.

40 The photographic images did not enable the identification of individual species. However, this was obtained by detailed field inspection. Mr Turner chose at random 4 plots 20 metres by 20 metres within the cleared areas and 3 plots of a similar size in the areas of adjacent uncleared vegetation. He identified native vegetation in the uncleared areas and from samples of native vegetation in the cleared lots concluded that seven native species had been cleared.

41 Mr Turner did not recall any individual plant in any particular position or mark its presence on the ground. The appellant submitted that, accordingly, it was denied the opportunity of calling evidence as to whether these plants were regrowth or had been cleared for some other reason, perhaps because they were already dead. Mr Turner's evidence was also criticised because he could not give evidence of any "scientific process" that he used to identify any of these stumps or other "trittered or shredded" plants, or their age.

42 There was no direct evidence of any of the seven species having been observed and identified within the cleared areas of the property at a time before the clearing and shredding of vegetation. Accordingly, the respondent relied upon the evidence brought forward by Mr Turner and Dr Smith from which it submitted that it could be inferred beyond reasonable doubt that the seven species had existed on the property and had been cleared.

43 An appeal to this Court under s 5AA is confined to an appeal "in the strict sense": Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 at 598. The appellant must demonstrate error.

44 Mr Turner's evidence was that each of the 7 species was observed by him to be present in uncleared areas located adjacent to the cleared areas on the property. He concluded from the satellite imagery and aerial photography that the cleared areas had vegetation patterns that were continuous with and essentially identical to those in the adjacent uncleared area. He said that the cleared and uncleared areas examined by him had the same geology, soil, topography and disturbance history and were part of a single stratification unit.

45 Mr Turner said that his examination of the cleared areas within 2 to 6 weeks after clearing ceased revealed the presence of Alocasuarina littoralis, Eucalyptus cerebra, and Hardenbergia violacea. This evidence was accepted by the primary judge and of itself was capable of sustaining a finding beyond reasonable doubt that at least these three species had been present and cleared from the land. Consideration of the evidence obtained from the detailed examination of the areas within and outside the cleared area established the presence of the remaining four species within the cleared area. This evidence was accepted by her Honour and in my judgment she was entitled to so accept it.

46 Mr Turner's evidence was criticised on the appeal on the basis that he did not explain how his field of "specialised knowledge" had been applied to the facts assumed or observed to produce the opinion he propounded: Makita Australia v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]. This objection was not taken at the trial. In any event a criticism in these terms was rejected by the primary judge at [209] of her Honour's judgment.

47 Although Mr Turner expressed a conclusion, the evidence he gave of his observations when he examined the site and the evidence given by others who carried out fieldwork on his behalf proved the presence of the relevant species. That conclusion could have been arrived at by the primary judge without relying upon Mr Turner's conclusion.

48 At the trial the appellant called evidence from Dr Smith and Dr Clements.

49 It was submitted to this Court that from their evidence inferences were available to the primary judge which were contrary to those which the respondent submitted should be drawn. It was submitted that even if there was native vegetation in uncleared areas it was possible that none existed in the cleared areas prior to the clearing activities. It was also submitted that because some native species had been left in the cleared areas it was open to her Honour to conclude that no native species had actually been removed. It was further submitted that the primary judge approached the task of determining whether the respondent had discharged its onus by merely choosing between the opinions of Mr Turner and Dr Smith.

50 The appellant made a number of submissions that were critical of her Honour's findings. Her Honour said at [212]:

"Dr Smith conceded that Allocasurina Littoralis was widespread throughout the property. It is therefore reasonable to find, and I do so without any doubt, that it was cleared from the property as charged."

51 The appellant submitted that it was not permissible to conclude, from a "concession" by Dr Smith or from the presence of that species throughout the property, that particular specimens were cleared in particular identified areas.

52 Her Honour further said:

"In relation to Hardenbeergia Violacea, Dr Smith's observations that the species was sufficiently small that it may not have been individually affected by mulching equipment does not accord with Mr Turner's observations of the species in the recently cleared areas. I am therefore satisfied beyond reasonable doubt that it was cleared from the property as charged."

53 It was submitted that this conclusion was illogical and incorrect: that Mr Turner recorded the presence of this species in three cleared plots and one uncleared plot is wholly consistent with Dr Smith's observation that the species was sufficiently small that it may not have been individually affected by mulching equipment. It was submitted that her Honour was not entitled to draw the conclusion that she did, to the criminal standard of proof.

54 Her Honour also said at [213]:

"In relation to Eucalyptus Crebra, Dr Smith contended that the species was sufficiently rare or uncommon that it was in all likelihood naturally absent from the cleared areas ... I agree with the submission of the prosecutor that [the cross-examination of Dr Smith as to errors in the recorded instances of this species] gives rise to a genuine concern as to the accuracy of the fieldwork founding Dr Smith's opinions as to the likely presence of the seven species from the cleared area. For this reason, I prefer the evidence of Mr Turner who found actual evidence of Eucalyptus Crebra in all seven plots he surveyed, both in the northern and southern cleared areas on the property. I am therefore satisfied beyond reasonable doubt that this species was cleared on the property." (emphasis added)

55 It was submitted that it was impermissible to reason, from the rejection of Dr Smith's opinion, that Mr Turner's opinion as to the presence of Eucalyptus Crebra, allegedly in all seven cleared and uncleared plots, proved that it had been cleared. This was said to be particularly so where, as set out above, Eucalyptus Crebra was a large canopy tree, and the prosecutor's own witnesses did not give any evidence of clearing canopy trees and consistently described their activities as "underscrubbing."

56 It was submitted that similar criticisms applied in relation to the findings at [215], [217], [218] and [220] of her Honour's reasons relating to each of the remaining specimens. It was submitted that in each case, the primary judge reasoned that, because the Court preferred the evidence of Mr Turner, the prosecutor's case was proved beyond reasonable doubt. It was submitted that scant attention was paid to the quality of the prosecutor's own evidence, and for the reasons set out above, even if the Court accepted that evidence, it did not rise to the standard required to convict the appellant of the offence charged.

57 I do not accept the appellant's submissions. I do accept that a superficial reading of her Honour's reasons may lead the reader to the view that having preferred the evidence of Mr Turner to that of Dr Smith her Honour did not otherwise consider whether Mr Turner's evidence justified a conclusion beyond reasonable doubt that the relevant species were present. However, a more faithful reading of her Honour's reasons brings me to the conclusion that she carefully considered the evidence of the appellant's witnesses on the relevant issue and, finding it flawed in relevant respects, addressed the particular issue having regard to Mr Turner's evidence. Having formed the conclusion that Mr Turner's evidence was, if accepted, capable of proving the disputed fact, and finding that there were reasons not to accept the appellant's witnesses, her Honour made findings that she was satisfied of the disputed fact beyond reasonable doubt. Her Honour did not say, as perhaps she could have, that she rejected the evidence of the appellant's witnesses. However, she did say that the problems with their evidence left only the respondent's evidence, which could in the absence of any demonstrated problems be accepted. Her Honour accepted it and in so doing expressed her satisfaction that the relevant fact was proved beyond reasonable doubt. This conclusion was plainly open and her Honour did not err in reasoning to it.

Ground 3:This ground was abandoned.

Ground 4:The primary judge erred in finding that vegetation includes, for the purposes of s 6 of the Act, both living and dead plant matter and in finding that the extended clearing of dead plant matter remains unquantified.

58 Her Honour did conclude that vegetation includes, for the purposes of s 6 of the Act, both living and dead plant matter. Her Honour also said that the issue "was of marginal significance".

59 The appellant submitted to this Court that both the ordinary meaning of vegetation and the structure of the Act make plain that it was not intended to apply to dead plants.

60 The Macquarie Dictionary defines vegetation as "plants collectively, plant life of a particular region considered as a whole." It was submitted that the reference to life excludes from the ordinary meaning of the word plant material which is dead. With respect to the Act both s 20 and s 46 use the word "dead", contrasting it with living vegetation. Section 20 speaks of ground cover "whether dead or alive" and s 46 permits regulations to be made to prohibit the clearing of "dead wood" from any land.

61 Before this Court the respondent indicated that it was not responsible for this issue being raised in the Land and Environment Court. It appears that the primary judge herself determined that the issue was relevant and resolved it in the manner in which I have indicated. The opposition by the respondent to the appellant's submission in this Court was, to say the least, faint.

62 To my mind her Honour's conclusion that vegetation includes dead plant matter was not correct. Obviously a plant will be a plant, whether it is dead or alive. However, the concern of s 6 is with vegetation which is defined "for the purposes of the Act" to mean any of the stated types of indigenous vegetation. Section 7 makes plain that so far as the Act requires approval for the clearing of native vegetation, it contemplates the clearing of living vegetation only. It would be an extraordinary use of language to speak of cutting down, felling, burning, logging or removing dead plants or trees or killing, destroying, poisoning or uprooting dead plants: see ss 7(a)-(b). Construed in the context of the Act, these activities are only relevant to living plants or trees. One may speak of burning dead vegetation, but given the other verbs in s 7, the draftsperson must have been referring to burning living plants or trees.

63 Such an interpretation is entirely consistent with the objects of the Act, set out at [22] of this judgment. The legislative purpose is clearly to protect native vegetation and avoid its unplanned removal or degradation. When, by whatever means, a plant or tree has died it would require clear words before removal of a plant or tree in that state without the necessary authority constituted a criminal offence.

64 The finding by her Honour that the issue was of marginal significance was challenged in this Court. It was emphasised that there was evidence that at least part of the clearing that was carried out was of dead plant matter. That evidence came from Mr Humphreys, who said that he observed a lot of trees on the ground that were dead. Similar evidence was given by Mr Mills, Ms Ridge and Mr Hinton. The report of Dr Smith also indicated that there were "high numbers of dead trees" on the property which were cleared.

65 The trial judge disposed of this issue by finding that it was of marginal significance because the "extent" of the clearing was "unquantified". It was submitted that this finding was wrong and constituted a reversal of the onus of proof. It was submitted that her Honour did not appreciate that the prosecutor had failed to quantify the extent of the clearing of native vegetation. If there was a failure to prove the extent of dead wood which was cleared, it was submitted, the corollary must be that the extent of live vegetation was also not quantified and the offence had therefore not been proved.

66 I do not accept this submission. The evidence which her Honour accepted was capable, as her Honour found, of proving that extant native vegetation had been cleared irrespective of whether her Honour had erroneously accepted that dead vegetation had been illegally cleared. However, if her Honour gave weight to the clearing of dead vegetation when determining the extent of environmental harm occasioned by the appellant's activities, this may require a reconsideration of the matter of penalty.

Ground 5:The primary judge erred in holding that the appellant caused ELC to carry out the clearing within the meaning of s 44 of the Act.

Ground 6:The primary judge erred in finding that the clearing carried out by ELC was done in accordance with and directly as a result of the appellant's instructions.

67 These two grounds of appeal may be dealt with together.

68 Section 44 of the Act provides:

"44Evidentiary provision

In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:

(a)the clearing was carried out by another person, and

(b)the landholder did not cause or permit the other person to carry out the clearing.

This section does not prevent proceedings being taken against the person who actually carried out the clearing."

69 It was conceded before the primary judge that the appellant was a "landholder" within the meaning of the Act, because it both had "lawful management or control" of the land and was the owner of it. Accordingly, the burden fell on the appellant to prove on the balance of probabilities that it did not "cause or permit" ELC to carry out the clearing. The primary judge found that the appellant "caused" but did not "permit" ELC to carry out the clearing.

70 The evidence before the primary judge indicated that Mr Humphreys, on behalf of ELC, was instructed by Mr Fife, on behalf of the appellant, to "tidy up the site". Mr Fife also instructed Mr Humphreys to clear certain areas "back by 50 metres" to provide a buffer around those sections.

71 The primary judge found that although Mr Fife gave instructions as to the areas of land to be cleared and their location he "did not instruct [Mr Humphreys] with any particular specificity as to what vegetation the clearing was to include". Mr Fife instructed Mr Humphreys to "keep the undergrowth at bay", by which he meant "small regrowth" or "small trees that looked like they have grown relatively recently".

72 Mr Fife attended the site "a couple of times" during the clearing activity. The primary judge found that on one occasion he observed mulching and on both occasions expressed satisfaction with the progress of the works.

73 The submission to the primary judge and to this Court by the appellant was that it had contacted ELC to do the work and relied on its expertise and knowledge as land clearing specialists. However, the primary judge found that the evidence did not establish that ELC held itself out as being able to provide specialist expertise and advice on whether the clearing of vegetation that it was engaged to carry out was lawful or not. Furthermore, her Honour was not satisfied that the appellant engaged ELC for that purpose or relied upon ELC's alleged expertise. Her Honour further found that ELC did not have the relevant expertise.

74 The primary judge found that the clearing carried out by ELC was carried out "in accordance with and directly as a result of Walker's instructions." Her Honour found that as a result ELC mulched, trimmed and felled native vegetation in areas indicated by Mr Fife and the clearing of native vegetation was "a natural consequence of the instructions given by Mr Fife".

75 Her Honour said at [306]-[307]:

"While I accept the submission of the defendant that there is no suggestion in any of the evidence that there was any instruction by the defendant to clear native vegetation, this is irrelevant to the determination of whether the landholder caused the unlawful clearing given the offence is one of strict liability.

I therefore find that the defendant has not established on the balance of probabilities that the clearing undertaken by ELC was not caused by the defendant and that therefore, as the landholder, the defendant is to be taken to have carried out the clearing pursuant to s 44 of the Act."

76 Her Honour did accept the submission of the appellant that it did not permit the clearing undertaken by ELC for the purposes of s 44. Her Honour's reasons for this finding were expressed at [308]-[309] in the following terms:

"There is no evidence that prior to the receipt of the copy of the 2006 Keystone report Mr Fife had any awareness or knowledge that native vegetation would be cleared in breach of the Act. At is highest the evidence reveals that he was careless as to consequences of his instructions to ELC. This is insufficient, however, to amount to permission for the purposes of s 44 of the Act.

While the receipt of the attachment to the 27 September 2006 email arguably conferred on Mr Fife a greater appreciation of the possible unlawful consequences of the clearing that he had directed ELC to carry out, absent any evidence that he read the attachment or understood the significance of its contents, I am not satisfied that its receipt, without more, had the consequence that he 'permitted' the clearing of native vegetation by ELC after he gave the approval for the clearing to resume in or about October 2007, for the purposes of the Act."

77 Her Honour then considered whether the appellant was vicariously liable for ELC's acts. Although her Honour was not satisfied that the appellant exercised control or direction over ELC in the execution of the work, her Honour found that the appellant authorised ELC to remove the vegetation. Her Honour approached the issue in the same manner as Lloyd J in Coffs Harbour City Council v Hickey [2004] NSWLEC 531, where a specific instruction to do an act which would "lead by all physical necessity to the felling of the trees" was held to be sufficient to found liability in the giver of the instruction.

78 Her Honour said at [317]-[318]:

"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.

However, I do not find that the evidence demonstrates to the requisite degree or standard that the defendant exercised detailed control over the manner of doing the work which led to the clearing of the native vegetation. That is to say, the evidence does not disclose that the defendant, through Mr Fife, supervised the works or instructed ELC as to how the clearing should take place sufficient to establish that the defendant ought to be vicariously liable for the clearing carried out by ELC on this basis (Multiplex at [276]-[292])."

79 The appellant submitted that in making these findings her Honour erred in a number of respects. The errors were articulated in the following terms:

in finding that the appellant "caused" the clearing to occur under s 44 of the Act, her Honour applied the wrong test and also reached erroneous factual findings;

holding that the clearing by ELC was done in accordance with and directly as a result of the appellant's instructions; and

her Honour should have found that the clearing was undertaken as a direct result of ELC's own decision to clear.

80 The appellant accepted that appropriate guidance in the resolution of these issues could be found in Environmental Protection Authority v Multiplex Constructions Pty Limited [2000] NSWLEC 6; (2000) 112 LGERA 1 at [238]-[260]. The respondent did not contend otherwise. The relevant principles were accepted to be that:

(a)"causing" should be given its common sense meaning: Alphacell Limited v Woodward [1972] AC 824 at 834, 847;

(b)a person causes a result where he or she deliberately and intentionally does an act which naturally produces a certain outcome: Alphacell at 839;

(c)the defendant must engage in a positive act to "cause" something to occur and this act need not be an immediate cause: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Albertilly) Limited [1999] 2 AC 22 at 27-28;

(d)the active involvement of a third party may, but does not necessarily, break the causal connection: Empress Car Co at 33, 36-37; and

(e)in determining whether the involvement of a third party excludes the defendant as a causative factor, the court should consider whether the actions of the third party were an ordinary occurrence or something extraordinary. This is a question of fact: Empress Car Co at 36.

81 The appellant submitted that her Honour's finding that the appellant had not "permitted" ELC to carry out the clearing should have led her Honour to reach a negative conclusion on the question whether the appellant caused the clearing. The relevant reasoning is set out at [308]-[309] of her Honour's judgment, quoted in full at [76] of this judgment.

82 The difficulty in the appellant's submission is that when considering the issue of "permission" her Honour focused upon whether Mr Fife, at the relevant time, had any awareness that native vegetation would be cleared in breach of the Act. In adopting this approach, accepted by the appellant to be correct, her Honour followed Department of Environment and Climate Change v Olmwood Pty Limited [2010] NSWLEC 15; (2010) 173 LGERA 366 at [358]-[359].

83 However, with respect to the issue of whether the appellant caused the clearing, her Honour said at [274]:

"Distilling [Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232] and Olmwood, the following principles emerge in the context of a prosecution under s 12 of the Act where liability is being attributed to a corporate defendant pursuant to s 44 of the Act:

(a)first, s 44(b) provides a statutory basis of landholder liability arising out of the acts of a third party separate from the common law principles of vicarious liability (Olmwood at [354]). However, an offence against s 12 is one of strict liability thereby attracting the principles of vicarious liability (Issa at [80]);

(b)second, the defence provided for in s 44 must be established on the balance of probabilities by the defendant (Olmwood at [333];

(c)third, a company can be criminally liable through the actions of its officers or employees, as the embodiment of the company (Issa at [79]);

(d)fourth, in determining who is the 'directing mind and will' of the company the real question is, on the proper construction of the statute, whose act is intended to count as the act of the company (Issa at [82]). The acts of both a high-level employee or director and the acts of low-level employees may count if that is required by the terms or the offence and the objects of the statute (Issa at [83]);

(e)fifth, in cases concerning a protective regulatory regime such as that contained in s 12 of the Act, the conduct of officers or employees involved in the actus reus of the offence may be attributed to the company at least where such conduct is in furtherance of the company's interests or not against them (Issa at [97]);

(f)sixth, to "cause" clearing does not require the exercise of particular control over the third party whose actions resulted in the clearing event to the extent that would otherwise be necessary to establish vicarious liability. Where the clearing by a third party arises as a natural consequence of the landholder's conduct that landholder can be said to have caused the clearing (Olmwood at [355]); and

(g) seventh, to "permit" means to intentionally allow. That is to say, with knowledge or awareness rather than any intentional failure to act. Further, knowledge that something that is a contravention is likely to be done in the future is to "permit" it to be done. However, mere carelessness or negligence in failing to prevent an act giving rise to a contravention is not to "permit" it to occur (Olmwood at [358]-[359])."

84 The appellant submitted that, as with "permit", before a person or corporation can "cause" the relevant act there must be "an element of intention to do the act which brought about the breach of the Act". The appellant accepted that Lloyd J's approach to the issue is correct.

85 The controversy arises because of the terms of s 44, which I repeat here for convenience:

"44Evidentiary provision

In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:

(a)the clearing was carried out by another person, and

(b)the landholder did not cause or permit the other person to carry out the clearing.

This section does not prevent proceedings being taken against the person who actually carried out the clearing."

86 Accordingly, to avoid liability for the clearing of the land, the appellant carried the burden of proving, on the balance of probabilities, that it did not cause ELC to carry out the clearing. It was submitted that her Honour should have found that the appellant did not have the requisite intention and accordingly did not "cause" ELC to carry out the clearing.

87 The difficulty with the appellant's submission is that it attributes the same factual elements to cause as it does to the word "permit" in s 44. Her Honour held that permit means "intentionally to allow", the relevant "knowledge" being "that native vegetation would be cleared in breach of the Act". Lloyd J's analysis does not import "knowledge" of that character in relation to the different standard of "causing." Her Honour recognised that knowledge in the context of causing something to be done is different to knowledge in the context of permitting something to be done. Her Honour found that the appellant, through Mr Fife, instructed ELC to clear the land in a manner which would "lead by all physical necessity to the clearing of native vegetation." In so finding, her Honour applied the principles identified by Lloyd J and accepted by the appellant. I see no error in her Honour's approach.

88 It was submitted that the appellant's instructions to ELC were confined and that Mr Fife did not direct ELC as to what vegetation should be cleared and, furthermore, the appellant was entitled to rely on ELC's expertise in environmental matters. This submission confronts insurmountable difficulties. Her Honour found that the instructions which were given included instructions to remove vegetation which was native vegetation. Secondly, her Honour expressly rejected the proposition that the appellant relied on ELC's specialist expertise and experience. The appellant has not demonstrated that her Honour was not entitled to make these findings or that they are incorrect.

89 The appellant, relying on Multiplex, submitted that the appellant was not relevantly in control of the work carried out by ELC (see Multiplex at [265]-[269], [273]). However, as Lloyd J otherwise explained, and the appellant accepted, the question is not answered by a finding as to whether the landowner controlled the action of the contractor, although that may be relevant depending upon the circumstances of the particular case. If, as her Honour found in the present case, the instruction given was to do acts which led by all physical necessity to a breach of the Act, there may be no significance in the fact that the landowner does not have control over the contractor's actions.

90 The appellant sought and was granted leave to raise an additional ground of appeal, identified as Ground 6A, which was pleaded as follows:

Ground 6A: The primary judge erred in finding 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, or inexorably and inevitably, to the clearing of native vegetation. The primary judge therefore erred in finding that the defendant is vicariously liable for the acts of ELC.

91 The additional ground of appeal is difficult to distinguish from Grounds 5 and 6. The essence of the additional submission was to the effect that her Honour should have found that the instructions given by Mr Fife to ELC did no more than create a "mere risk" that the relevant event would occur. A finding to that effect was made by Pain J in Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70; (2003) 128 LGERA 240 at [119].

92 The appellant accepts, as it was obliged to do, that ELC were instructed to "tidy up the property" and remove "small undergrowth" or "regrowth." Her Honour found that these descriptors referred to native vegetation and accordingly any suggestion that the instruction gave rise only to a "mere risk" that the relevant event would occur is untenable. Her Honour found, as I have previously indicated, that the appellant did not rely on ELC's alleged environmental expertise. For those reasons, this ground of appeal fails.

Ground 7: The primary judge erred in holding that the Court was entitled to draw an inference as to the area of land cleared and reached erroneous conclusions (about) the environmental impact of the offence in circumstances where the quantum and location of the seven species of native vegetation cleared was unknown and not proved.

Ground 8: The primary Judge imposed a penalty that was excessive in the circumstances.

93 It is convenient to deal with the grounds of appeal against sentence together. The appellant's submissions on these grounds are based on much the same reasoning as its submissions on Ground 1, namely that the prosecutor inadequately particularised the charges against the appellant. According to the appellant, the consequence must be that the primary judge sentenced the appellant on an evidentiary foundation that did not distinguish between "native vegetation" (the only possible subject of the charge under the Act) and "non-native vegetation" (the clearing of which was not captured by the relevant offence provision).

94 This submission is without merit. As I have found in relation to Ground 1, s 6(2) permitted the primary judge to draw the inference that the entirety of the 23 ha of land was "native vegetation" on the basis that the seven identified species were dispersed throughout the parcel of land. As Ground 1 fails, Grounds 7 and 8 must also fail to the extent that they rely on the same reasoning. In any event, the following remarks by her Honour at [85]-[86] of the judgment on sentence show that she had due regard to the dispersal of the seven species throughout the 23 ha of land:

"Walker is correct in its submission that it is impossible to accurately calculate how many hectares of the seven species of native vegetation that it actually cleared. Put another way, it is not the case that 23 ha of the seven species of native vegetation listed in the summons were cleared by Walker and I have not taken this into account in determining the appropriate sentence to be imposed on Walker.

But while the precise amount of the seven species cleared by Walker cannot be ascertained, the Court is nevertheless permitted to draw an inference, based on the available evidence, which includes the evidence of Mr Turner and Mr Lembit, as to the environmental impact of the commission of the offence. That is to say, while the quantum of the seven species of native vegetation cleared is a relevant matter for the Court to consider - and because in the present circumstances this cannot be precisely ascertained any doubt must be resolved in favour of Walker - this is but one component of the overall environmental harm that the Court must determine has been caused by the commission of the offence." (emphasis added)

95 There remains the issue of whether the sentencing exercise miscarried because her Honour expressed the erroneous view that "native vegetation" includes dead plant matter. I do not believe that it did. There is no indication that the primary judge took into account the appellant's clearing of dead plant matter when imposing sentence. Indeed, it is telling that the appellant's written submissions with respect to Grounds 7 and 8 do not complain that her Honour gave any weight to dead plant matter in the sentencing exercise. In any event, the $200,000 penalty imposed was modest in comparison with the maximum penalty of $1,100,000 and consistent with the gravity of the appellant's conduct. This further supports the conclusion that her Honour did not take the clearing of dead plant matter into account in such a way as to cause the sentencing exercise to miscarry.

96 Although the penalty is modest in comparison to the maximum available penalty, I accept that the $200,000 fine is nevertheless high as compared with the fines typically imposed for this type of offence. Counsel for the respondent drew this Court's attention to Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4; (2009) 165 LGERA 256, where the Land and Environment Court imposed a $400,000 penalty on a farmer who bulldozed 450 ha of wetlands, contrary to s 12(1) of the Act. Lloyd J described the offence (at [75]) as being "at the upper range of seriousness since it was done deliberately and after the defendant had been expressly told ... that native trees must be retained on the land". His Honour noted a number of other sentencing decisions in relation to contraventions of provisions similar to s 12, including:

• Director-General of the Department of Environment and Climate Change v Taylor [2007] NSWLEC 530, where Lloyd J imposed a fine of $30,000 following the offender's plea of guilty to a charge of clearing 30 ha of native vegetation, contrary to the then s 21(2) of the Act;
• Director-General of the Department of Environment and Climate Change v Wilton [2008] NSWLEC 297, where Biscoe J imposed a fine of $40,000 following a plea of guilty to two counts of unlawfully clearing approximately 13 ha of native vegetation, again contrary to what was then s 21(2) of the Act;
• Minister for Environment and Heritage v Greentree (No 3) [2004] FCA 1317; (2004) 136 LGERA 89, where Sackville J fined an individual and corporation $150,000 and $300,000 respectively for deliberately clearing approximately 100 ha on a NSW property, contrary to s 16(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The maximum penalty was $550,000 for an individual and $5.5 million for a corporation. Sackville J's decision was affirmed on appeal to the Full Federal Court: Greentree v Minister for the Environment and Heritage [2005] FCAFC 128; (2005) 143 LGERA 1.

97 To these decisions may be added:

• Director-General, Department of Environment, Climate Change and Water v Linklater [2011] NSWLEC 30, where Preston CJ imposed a sentence of $82,500 on an individual who pleaded guilty to clearing about 166 ha of native vegetation in an area not authorised to be cleared, contrary to the then s 21(2) of the Act;
• Director-General, Department of Environment, Climate Change and Water v Vin Heffernan Pty Ltd [2010] NSWLEC 200, where Pepper J (the primary judge) imposed a sentence of $30,150 on a corporation that pleaded guilty to a charge of clearing 86 ha of native vegetation, contrary to s 12 of the Act;
• Department of Environment and Climate Change (NSW) v Calman Australia Pty Ltd [2009] NSWLEC 182, where Pain J imposed a fine of $22,000 on each of three corporations that pleaded guilty to clearing 21 ha of land, contrary to s 12 of the Act;
• Director-General, Department of Environment Climate Change and Water v Ian Colley Earthmoving Pty Ltd [2010] NSWLEC 102, where an individual who pleaded guilty to clearing 12 ha of native vegetation, contrary to s 12 of the Act, was fined $5,000, the fine being reduced from $20,000 in recognition of the offender's poor financial circumstances;
• Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121, where the offender, who pleaded guilty to partially clearing 215 ha of native vegetation, of which 155 ha was cleared of over 95 per cent of all trees, contrary to s 12 of the Act, was fined the sum of $160,000; and
• Olmwood, where the Court imposed a fine of $100,000 on a corporate offender that was found guilty of clearing nine species of native vegetation within 10.1ha of land, in breach of s 12 of the Act.

98 A purely quantitative analysis of the above decisions - many of which were cited by the primary judge at [135]-[146] of the judgment on sentence - suggests that the penalty imposed in this case was excessive. To my mind, however, the primary judge did not misjudge the seriousness of the offence or otherwise impose an excessive sentence. This Court cannot determine the appropriateness of the sentence by way of a superficial comparison of the sentence imposed on the appellant with the sentences imposed on offenders who cleared similarly sized parcels of land. That approach risks giving undue weight to the quantum of cleared native vegetation in the sentencing exercise, in much the same way that the guideline judgment in R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 at [134] gave undue weight to the quantity of imported narcotics in the sentencing of drug offenders: Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [73]-[74] (Gaudron, Gummow and Hayne JJ). Indeed, in many if not most of the decisions on sentence cited above, the offenders had pleaded guilty at the first available opportunity, assisted the authorities, or expressed contrition or remorse. The quantum of native vegetation cleared is an important consideration in the sentencing of offenders for offences against s 12 of the Act, but it is not the only one.

99 The primary judge correctly identified (at [23] and [149] of the judgment on sentence) that her task was to instinctively synthesise the considerations relevant to the sentence, of which the amount of native vegetation cleared was but one factor among many: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39]. Her Honour also correctly identified at [135] that the consistency which sentencing law strives to achieve is consistency in the application of the relevant legal principles, not consistency of outcome: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [18], [48]-[49]. After reviewing previous sentencing decisions, her Honour identified characteristics in those decisions that warranted a more lenient sentence being imposed than in the present case (at [148]):

"Although the areas found to have been cleared in the present case are relevantly analogous to that in Calman and Colley, a number of distinguishing features warrant a considerably less lenient sentence than in either of those two decisions. First, in the present case Walker committed the offence recklessly and its culpability is measurably higher. Second, Walker did not plead guilty. Third, Walker has expressed no contrition or remorse for its unlawful acts. Fourth, Walker neither cooperated nor assisted the prosecuting authorities. Fifth, there is no evidence that Walker is of limited financial means."

100 Whether this Court would have imposed the same or a similar penalty in the circumstances is immaterial: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5. It was open to her Honour to give significant weight to such factors as the appellant's moral culpability and the need for general and specific deterrence (at [131]-[133]) in imposing the penalty that she did. I can see no error in her approach.

101 Both grounds of appeal against sentence fail.

Orders

102 The appeal is dismissed.

103 HIDDEN J: I agree with McClellan CJ at CL.

104 GARLING J: As the reasons of McClellan CJ at CL demonstrate, the judgment of the trial judge has not been demonstrated to be, in any way, erroneous.

105 Consequently, I too would dismiss the appeal.

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Decision last updated: 02 October 2012