Joint Trial Allowed for Environmental Offences in NSW

The court allowed a joint trial for multiple prosecutions involving environmental offences against four defendants. The offences included damage to habitats of endangered species and breaches of development consent conditions.

Land and [ADDRESS] of New South Wales

CITATION : Director General, NSW Department of Industry & [NAME_1] v [COMPANY_1] & Ors [2010] NSWLEC 56

PROSECUTOR Director General, NSW Department of Industry & [NAME_1]

FIRST [COMPANY_1]

PARTIES : SECOND DEFENDANT [NAME_3]

THIRD DEFENDANT [NAME_5]

FOURTH DEFENDANT [NAME_7](S) : 50052; 50053; 50054; 50055; 50056; 50057; 50058; 50059; 50060; 50061; 50062; 50063; 50064; 50065; 50066; 50067 of 2009

CORAM: Preston CJ

KEY ISSUES: [NAME_8] :- trial - application by prosecutor for joint trial of co-defendants - 16 prosecutions for four environmental offences against four defendants - one defendant opposed application and sought separate trial - joint trial ordered

Criminal Procedure Act 1986 s 29 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 125(1) Fisheries Management Act 1994 s 220ZD(1)

R v Annakin (1989) 17 NSWLR 202 R v Demirok [1976] VR 244 CASES CITED: R v Fernando [1999] NSWCCA 66 R v [NAME_9] (No 1) [2007] NSWSC 769 R v [NAME_10] (NSWSC, Hunt J, 27 March 1991, unreported)

DATES OF HEARING: 24 March 2010

EX TEMPORE JUDGMENT DATE : 24 March 2010

PROSECUTOR I Lloyd QC with him T Howard

SOLICITORS Crown Solicitors Office LEGAL REPRESENTATIVES: FIRST, SECOND AND FOURTH DEFENDANTS J Webster SC

THIRD DEFENDANT [NAME_11]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

24 MARCH 2010

50052-50067 OF 2009

DIRECTOR GENERAL, NSW DEPARTMENT OF INDUSTRY & [NAME_1] v [COMPANY_1] & ORS

JUDGMENT

Application is made for a joint trial of prosecutions 1 HIS HONOUR: The prosecutor in each of the prosecutions, the Director General of the New South Wales Department of [NAME_1], by notice of motion seeks an order of the court that 16 prosecutions for various offences be heard and determined together under s 29 of the Criminal Procedure Act 1986 (NSW) ("the CP Act"). There are four defendants, each charged with four offences. [NAME_12] is one of the defendants. [NAME_12] opposes the order for a joint trial sought by the prosecutor. The other three defendants do not oppose the order.

The offences charged 2 The offences against the defendants fall into two categories: one is an offence against s 220ZD(1) of the Fisheries Management Act 1994 (NSW) ("the Fisheries Act") and the second is an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act"). 3 In relation to the first category of offences against s 220ZD(1) of the Fisheries Act, there are three offences charged, one in relation to a type of listed endangered [NAME_13], and the other two in relation to two threatened species of fish. The section contravened in each case is the same, although its application varies depending upon whether the offence concerns the [NAME_13] or the threatened species. The offence against s 220ZD(1) is that: "(1) A person must not, by an act or omission, do anything that causes damage to any habitat (other than critical habitat) of a threatened species, population or [NAME_13] if the person knows that the area concerned is habitat of that kind.

Maximum penalty: 1,000 penalty units or imprisonment for 1 year, or both." 4 In relation to the second category of offence against s 125(1) of the EPA Act, the allegation is that development was carried out otherwise than in accordance with a condition, condition 16, of a development consent that had been granted. The condition imposed a prohibition on removal of snags and woody debris from a river without complying with certain procedural steps.

The prosecutor's case and evidence 5 The prosecutor's case concerning the offences against s 220ZD of the Fisheries Act is that a contractor by the name of [NAME_14] and his employees removed snags and woody debris from waterways adjacent to a property known as "Kunanadgee" on the Murray River. These snags and woody debris comprised habitat of the particular endangered [NAME_13] and of the two threatened species of fish. The prosecutor alleges that four persons were legally responsible for that damage. The first person was [COMPANY_1] ("[NAME_2]"). This was the company that owns the property "Kunanadgee" and was carrying out the ecotourism development pursuant to the relevant development consent, for the purposes of which development the snags and woody debris were removed. Next, the prosecutor alleges that two directors of [NAME_2], namely [NAME_15] and [NAME_16], were legally responsible either by giving directions or instructions to [NAME_17] to remove the snags and woody debris or by reason of being a director of [NAME_2]. Finally, the prosecutor alleges that [NAME_12] was legally responsible by reason of his appointment as a project manager who was legally responsible for the carrying out of the ecotourism resort and, it is alleged, gave directions to [NAME_17] to remove the snags and woody debris. 6 The prosecutor would also need to establish the knowledge element of the offence against s 220ZD, that is, that the defendants in question caused the damage knowing the area concerned was habitat of the particular endangered [NAME_13] or threatened species of fish. 7 The prosecutor's case in relation to the offence against s 125 of the EPA Act is that [NAME_17] and his employees did the acts of removal of the snags and woody debris contrary to condition 16 of the relevant development consent, and that each of the four defendants were persons who carried out that development contrary to condition 16. The prosecutor will rely on the same matters alleged for the s 220ZD offences to establish that each of those persons were legally responsible for those offences. 8 The evidence upon which the prosecutor will rely will comprise both oral evidence and documentary evidence. As far as the oral evidence is concerned, the prosecutor has served affidavits and statements of evidence from various witnesses. The prosecutor has affidavits of [NAME_18] who will be a principal witness giving evidence in relation to the persons who gave directions and instructions to [NAME_17] to carry out the works of removing the snags and woody debris from the river. In addition, the prosecutor has provided an affidavit of [NAME_14] and has provided records of interview of [NAME_14] and [NAME_14]. Each of [NAME_20] [NAME_14], [NAME_14] and [NAME_14] were employees who worked under [NAME_18] in carrying out the works. 9 The prosecutor has also served affidavit evidence of a [NAME_21] concerning the existence of habitat of the two species of fish and the endangered [NAME_13]. The prosecutor has provided evidence of four officers from the Department of Fisheries being [NAME_20] [NAME_22], [NAME_23], and [NAME_24]. [NAME_20] [NAME_22] will provide evidence about the species of fish in the area, that no permit had been granted, and that there was no consultation as might have been required under the conditions of development consent. [NAME_23] was the investigator and undertook the records of interview and took photographs and will provide evidence in relation to those matters. [NAME_24] provides evidence of searching the register kept under the Fisheries Act. 10 The prosecutor has given notice that it will adduce evidence from [NAME_25], a council officer, in relation to the development consent and condition and in relation to the documents that accompanied the development application that resulted in the development consent. This included a species impact statement which apparently identified the area to be habitat of the endangered [NAME_13] the subject of the charges. 11 Finally, the prosecutor will rely on the affidavit evidence of [NAME_28], a council officer to whom the incident was reported and who undertook an initial investigation. 12 In addition to that oral evidence, the prosecutor will seek to tender records of interview undertaken with [NAME_29], [NAME_4] and [NAME_6]. It is with respect to the three records of interview that [NAME_12] bases his objection to there being a joint trial. He says that the justice of the situation requires that there be separate trials or at least a separate trial in relation to [NAME_12]. 13 Evidently, the records of interview with each of the defendants would be admissible into evidence only against each of the defendants concerned. That is to say, in the proceedings against [NAME_12], only the record of interview with [NAME_12] would be admissible into evidence against [NAME_12]; the records of interview with [NAME_30] would not be admissible into evidence against [NAME_12].

The prosecutor's submissions for a joint trial 14 The prosecutor submits that the circumstances in s29(2)(b) and (c) of the CP Act are applicable to the 16 prosecutions in this case. The prosecutor says that each of the 16 offences arise out of the same set of circumstances, or alternatively form a part of a series of offences of the same or similar character. Furthermore, the prosecutor submits that having a joint trial would meet the convenience of the court and the justice system. It would assist in ensuring the disposition of the trials in a timely and cost effective manner. It would meet the convenience of all of the witnesses, including [NAME_17] who resides in Melbourne and would need to be brought to Sydney to give evidence at the trials. 15 The prosecutor notes that the prosecutions brought in the Land and [ADDRESS] are dealt with summarily by a judge sitting alone without a jury. The judge is therefore in a position to control any prejudice that could possibly be caused to any defendant by the admission into evidence of a record of interview against any other defendant. 16 The prosecutor submits that the central probative evidence comes from [NAME_18] and that evidence is common to all of the defendants. The prosecutor refers to the commonality of evidence given by every witness and that the only point of difference between the evidence that would be adduced against each defendant relates to the records of interview. 17 The prosecutor submits that any risk of prejudice relating to those isolated pieces of evidence which would be the records of interview, can be cocooned by the judge making appropriate directions to him or herself to not take into account evidence that is not admissible and has not been admitted against a defendant. 18 The prosecutor finally submits that it would make clear which items of evidence are admissible against each defendant and there would be no confusion at the trial and no unfairness from the outset. 19 The prosecutor referred to various principles governing joint or separate trials referred to in the authorities including R v [NAME_9] (No 1) [2007] NSWSC 769, R v Demirok [1976] VR 244, R v [NAME_10] (NSWSC, Hunt J, 27 March 1991, unreported) and R v Fernando [1999] NSWCCA 66 and the cases referred to in those cases.

The defendant's submissions for separate trials 20 [NAME_12] accepts that the circumstances referred to s 29(2) of the CP Act are applicable to the proceedings in this case. However, [NAME_12] submits that it is in the interests of justice that the matters be heard and determined separately, relying on s 29(3) of the CP Act. 21 [NAME_12]' arguments as to why it is in the interests of justice for there to be separate trials can be grouped under four headings. Firstly, and primarily, [NAME_12] says that significantly different evidence would need to be adduced in the defendants' different matters. The significantly different evidence relates to the records of interview. [NAME_12] says that the records of interview with the other defendants, [NAME_30], contained material that would be highly prejudicial to [NAME_12] in two respects.

22 The first respect is that there are apparently concessions made by [NAME_30] in their capacity as directors of [NAME_2]. As I understand the content of these concessions, they relate to accepting some responsibility for directing or instructing [NAME_17] to remove, or having knowledge of [NAME_17] removing, snags and woody debris from the river. [NAME_12] says these concessions have the inherent potential to prejudice [NAME_12]' defence even though they would not be admissible in the prosecutions against him. It is not immediately apparent to me why, if the concessions are of the nature said, they would be prejudicial to [NAME_12]' defence. If anything they would seem to be corroborative of [NAME_12]' defence which I understand will be that he was not the person responsible for directing or instructing [NAME_17] to carry out the works of removal of the snags and woody debris from the river.

23 The second and perhaps more important respect in which [NAME_12] says the material in the records of interview with [NAME_30] might be prejudicial to [NAME_12] is that [NAME_30] in their records of interview apparently attribute [NAME_12] with responsibility for supervising [NAME_17] who was engaged to carry out the works. [NAME_12] denies that he was so responsible. 24 [NAME_12] submits that there is a risk that the judge, being the trier of fact in the absence of a jury, would impermissibly allow the evidence in the records of interview with [NAME_30] to influence or affect the fact-finding in the proceedings against [NAME_12]. [NAME_12] relied upon the three cumulative principles in R v [NAME_10]. [NAME_12] submits that the material in the records of interview with [NAME_30] would be highly prejudicial to [NAME_12] in the two respects stated, although it would not be admissible against him, and that the evidence against [NAME_12] is significantly weaker and different to that admissible against [NAME_30] or [NAME_2] itself. [NAME_12] then submits that, putting those two factors together, there is a real risk that the weaker [NAME_8] case against [NAME_12] would be made immeasurably stronger by reason of the prejudicial material in the records of interview with [NAME_30]. In those circumstances, [NAME_12] submits that a separate trial should be ordered according to the principles in R v [NAME_10]. 25 Secondly, [NAME_12] submits that it is in the interests of justice that a separate trial be ordered because he was only a project manager. [NAME_12] submits that it might be appropriate that the proceedings against the corporation [NAME_2] and the directors of the corporation be heard and determined together. However, the fact that [NAME_12] is a third party, being a project manager, meant that there was not the same degree of affinity as there was between a corporation and its directors. [NAME_12] submitted that it has been uncommon for such a third party to be tried together with a corporation and directors. 26 Thirdly, [NAME_12] submits that the joint trial would lead to [NAME_12] incurring additional costs associated with the joint trial which would be longer and more complex than if a separate trial were to be conducted of [NAME_12] alone. [NAME_12] submits that the additional cost would result from having longer cross-examination by each of the defendants and longer submissions. This would result in a considerable lengthening of the trial and hence an increase in cost to [NAME_12]. 27 Finally, [NAME_12] submits that there are no countervailing public interest considerations which would overwhelm the potential unfairness and costs to [NAME_12] if a joint trial were to be held. [NAME_12] notes the fact that [NAME_17], who apparently has been given an indemnity by the [NAME_8], would be required to give evidence twice rather than once but submits that this factor should be given limited, if any, weight. Certainly, [NAME_12] submits, it should not outweigh the risk of unfair prejudice to him that might be caused by a joint trial.

A joint trial should be ordered 28 The principles that should be applied were not in contest. It is sufficient to note that they are summarised in the cases referred to by the parties and are conveniently set out in R v [NAME_9] at [15] – [18] and R v [NAME_31] [199] – [211] and the cases therein cited. 29 I consider that the 16 proceedings relating to the offences against each of the four defendants should be heard and determined together for the reasons advanced by the prosecutor. I am not of the opinion that the interests of justice require the matters to be heard and determined separately and in particular I am not of the opinion that the proceedings for the offences brought against [NAME_12] should be heard and determined separately from the other proceedings. 30 I do not consider that the circumstances where courts in the past have held it is appropriate to order separate trials apply in the circumstances of this case. The only evidence that might contain material highly prejudicial to [NAME_12] are the records of interview with [NAME_30]. However, such records of interview would not be admitted into evidence in the proceedings for offences brought against [NAME_12]. The judge would appropriately direct him or herself only to make findings of guilt on the evidence that is admissible in the proceedings against [NAME_12], and not have regard to any other evidence that is not admitted although it may be admitted in other proceedings against the other defendants. The judge is a professional and there is no reason to expect that the judge would not make appropriate directions and decide the prosecutions against [NAME_12] on the basis of the evidence admissible against [NAME_12] alone. There is not a "real" risk (to use the words in R v [NAME_10]) that the judge would err in law in making findings of fact on the guilt of [NAME_12] on evidence that is not admitted against [NAME_12]. Furthermore, there is nothing about the nature of the evidence in the records of interview with [NAME_30] that would make it difficult for the judge to ignore or put out of his or her mind the evidence in deciding the guilt of [NAME_12]. 31 There is no "real" risk that the judge would be overwhelmed and unable to dispassionately and objectively make findings on the evidence admitted against [NAME_12] and on that evidence alone. I do not consider that each of the principles, and in particular, the third principle in R v [NAME_10] is satisfied. I consider the factors referred to by the prosecutor in its submissions and in the cases quoted, particularly in R v [NAME_9], R v Annakin (1989) 17 NSWLR 202 and R v Demirok [1976] VR 244, are appropriate in this case. As was said in R v [NAME_32] at 207: "In the ultimate, each case must be dealt with according to the evidence and by reference to the considerations relevant to whether prejudice will be caused so as to prevent an accused being given a fair trial and, of course, this is essentially a matter for the trial judge".

32 I consider this can be done in this case. The trial judge can make appropriate directions and deal with the prosecutions according to the evidence so as to avoid prejudice to [NAME_12] and ensure that [NAME_12] is given a fair trial. 33 I do not consider the fact that [NAME_12] is a project manager and not a director of the corporation, to be material. The circumstances in which joint trials are appropriate are not closed. The fact that in the past there may have been joint trials between a corporation and directors of the corporation does not exhaust the circumstances where it is appropriate to have a joint trial. By reason of the commonality of the facts and the evidence, it is appropriate that there be a joint trial of each of the defendants in this case. 34 There may be some additional legal costs incurred by [NAME_12] by reason of having a joint trial. At the outset, it should be noted that this is always the case where there is a joint trial. The very nature of a joint trial is that there are more than one defendant. The presence of the other defendants will always lead to some additional legal costs associated with extra cross-examination or extra submissions. However, the advantages of having a joint trial, referred to in the cases to which I have already made reference, outweigh this additional legal cost being incurred by a defendant. 35 In any event, in the circumstances of this case, I do not consider that the additional legal costs that might be incurred by [NAME_12] by having a joint trial, would be disproportionate or would be so great as to work unfairness or injustice to [NAME_12]. All of the witnesses the prosecutor has given notice that it wishes to call would still be called regardless of whether there is a joint trial or there are separate trials. The records of interview would of course be tendered, although only against the particular defendant who is the subject of the record of interview, but the tender of these records of interview would not take any material time. There would be some extra cross-examination and additional submissions by reason of the defendants all being there. However I do not consider this would be unreasonable. 36 I also note that any additional time in cross-examination or submissions, caused by having multiple defendants in a joint trial, does not necessarily lead to prejudice to the defendant. Of course it is true, as [NAME_12] submitted, that there is a degree of uncertainty as to what might transpire in a joint trial. Nevertheless, there can be advantages to defendants in having a joint trial. This was noted in R v [NAME_9] at [27] where Justice Buddin noted that: "… the applicant could actually benefit from a joint trial because she would be able to take advantage of any evidence adduced at it which casts doubt upon the Crown's capacity to establish the principal offence. This may prove to be more difficult for her at a separate trial where, of necessity, the principal parties (and their representatives) will not be able to assist in facilitating such an outcome". 37 In this case, there are a number of different elements for each of the offences that would need to be established. The matter concerning who is responsible for directing [NAME_17] to carry out the works of removal of snags and woody debris, is one of those elements. It is in relation to this matter that [NAME_12] has expressed concern about the records of interview but there are a number of other elements that would need to be established. It may well be that any advantage the defendants in the other proceedings might gain in casting doubt upon the prosecutor's case on those other elements, would be beneficial to [NAME_12] in similarly casting doubt on the prosecutor's case in respect to those elements for the same offences against [NAME_12]. Of course this may not come to pass but I simply note that it cannot be assumed that having a joint trial always and necessarily leads to prejudice; it can sometimes lead to an advantage to a defendant. 38 Balanced against the additional legal costs that might be incurred by [NAME_12] by reason of a joint trial are the savings that would be achieved by having a joint trial. The conserving of costs, improving the efficient dispatch of trials and avoiding inconvenience to witnesses by having to attend a number of trials are factors that have been referred to in the various authorities. 39 These factors are particularly applicable in this case where, as I have said, the prosecutor will call each and every one of its witnesses in a separate trial just as it would in a joint trial. Hence, if there were not to be a joint trial, there would be a wholesale duplication of all of the evidence of the prosecutor and each of those witnesses that I have set out earlier in my reasons for judgment would need to be called again. It is not only [NAME_17] who would need to attend the two trials. Nevertheless this concern is particularly relevant to [NAME_17] because he comes from Melbourne and his evidence is critical in the case against the defendants and it is likely that he would need to be cross-examined for a considerable period of time. 40 It has also been noted in the authorities that there is an advantage in having a joint trial where there is likely to be cutthroat defences, that is where each of the defendants deny they were responsible but will be alleging that other defendants were responsible. This factor has been referred to in the authorities as tending towards establishing that a joint trial would be beneficial, see for example R v [NAME_33] at 251- 253 as well as [NAME_34] (1994) 181 CLR 41 at 88-89 quoted in R v [NAME_31] at [211]. 41 I have found the risk of unfair trial to [NAME_12] is not real and that what risk might remain cannot in the circumstances outweigh the other factors that tend to establish the desirability of having a joint trial. 42 In these circumstances, I consider it is appropriate to make the orders sought by the prosecutor.

Orders 43 Accordingly, the Court orders: 1. Proceedings 50052-50067 of 2009 be heard and determined together.

2. The parties have liberty to approach the Registrar forthwith to obtain a date for trial of the proceedings.

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