Land and Environment Court Finds Defendant Guilty of Directing Unlawful Tree Cutting

The Land and Environment Court found the defendant guilty of directing the unlawful cutting down of 74 trees protected by a tree preservation order. The court determined that the defendant was vicariously liable for the actions of contractors who carried out the tree cutting.

Land and [ADDRESS] South Wales

Medium Neutral Citation: Ku-ring-gai Council v [NAME] (No 15) [2019] NSWLEC 1 Hearing dates: 16, 17, 18, 20 and 24 April; 16 and 22 May; 22, 23, 24, 25, 26, 29, 30 and 31 October; 1, 2, 5, 6, 12, 13, 14, 16 and 30 November; 4 December; and further written submissions 8 and 10 December 2018 Date of orders: 31 January 2019 Decision date: 31 January 2019 Jurisdiction: Class 5 Before: Robson J Decision: See orders at [534] Catchwords: ENVIRONMENTAL OFFENCES – defendant alleged to have procured an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) – defendant alleged to have directed the lopping of trees contrary to tree preservation order

PROSECUTION – criminal trial – defendant pleaded not guilty to environmental offence – whether established beyond reasonable doubt that defendant procured lopping of trees contrary to tree preservation order Legislation Cited: Crimes Act 1900 (NSW) s 351 Criminal Procedure Act 1986 (NSW) s 133 Environmental Planning and Assessment Act 1979 (NSW) ss 26, 122, 125 Evidence Act 1995 (NSW) ss 20, 136, 165 Land and [ADDRESS] 1979 (NSW) s 55 Rural Fires Act 1997 (NSW) ss 100Q, 100R Cases Cited: Anthony Tauszik v Gosford City Council [2006] NSWCCA 193; (2006) 146 LGERA 428 Astill v R (1992) 63 A Crim R 148 Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Canterbury City Council v Saad [2000] NSWLEC 278; (2000) 112 LGERA 107 Coffs Harbour City Council v Hickey [2004] NSWLEC 531 Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 Cumberland Council v [NAME]; Cumberland Council v [NAME]; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145 [NAME] v R; Rustom v R [2007] NSWCCA 118 Director-General of the Department of Environment, [NAME] and [NAME] v [COMPANY] (No 2) [2011] NSWLEC 229 Director-General, Department of [NAME] v [COMPANY] (No 2) [2010] NSWLEC 73 Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43 Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 [COMPANY] v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 Hawkesbury City Council v [NAME]; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 Hornsby Shire Council v Clyne [1998] NSWLEC 269 Hornsby Shire Council v Clyne (1998) 99 LGERA 432 [NAME] v [NAME] [2005] NSWSC 1053; (2005) Aust Torts Reports 81-816 Jenkins v The Queen [2004] HCA 57; (2004) 211 ALR 116 Kanaan v R [2006] NSWCCA 109 Ku-ring-gai Council v Edgar [2017] NSWLEC 49 Ku-ring-gai Council v [NAME] (No 10) [2018] NSWLEC 176 Ku-ring-gai Council v [NAME] (No 12) [2018] NSWLEC 184 Ku-ring-gai Council v [NAME] (No 4) [2018] NSWLEC 75 Majinski v Western Australia [2013] WASCA 10; (2013) 226 A Crim R 552 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 North Sydney Council v [NAME]; North Sydney Council v [NAME] (No 2) [2008] NSWLEC 169 R v Apostilides (1984) 154 CLR 563; [1984] HCA 38 R v GW (2016) 258 CLR 108; [2016] HCA 6 R v Momodou [2005] 2 All ER 571; [2005] EWCA Crim 177 R v Ncanana [1948] 4 SA 399 R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 Randwick City Council v Kara-Ali [2015] NSWLEC 5 Rao v Canterbury City Council [2000] NSWCCA 471, (2000) 112 LGERA 360 Seven Network Limited v News Limited [2007] FCA 1062 Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59 The Council of the City of Gosford v Tauszik [2003] NSWLEC 354; (2003) 131 LGERA 434 The Council of the City of Gosford v Tauszik [2005] NSWLEC 183 Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Texts Cited: [NAME], "10/50 Vegetation Clearing Code of Practice for New South Wales" Category: Principal judgment Parties: Ku-ring-gai Council ([NAME]) [NAME] (Defendant) Representation: Counsel: [redacted] [NAME] with [NAME] (April, May) and [NAME] (October, November, December) (Defendant)

Solicitors: [redacted] [COMPANY] (Defendant) File Number(s): 2016/00293131

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

2. Ku-ring-gai Council ('[NAME]') alleges that the defendant, between 6 October and 21 October 2014, directed contractors to cut down 74 trees on land which included the defendant's property at [ADDRESS], Roseville; a [NAME] reserve adjacent to his property; and [NAME] (collectively 'the site') in breach of the TPO.

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

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

Background 1. At the time of the alleged offence, the defendant lived with his wife in Killara, but of relevance to the current proceedings, he also owned the property at [ADDRESS], Roseville ('[NAME]'). 2. [NAME] alleges that the defendant retained [NAME] of [COMPANY] to carry out the clearing work the subject of the charge. [NAME] gave evidence during the hearing, as did [NAME]'s nephew who worked for [NAME] on a contract basis, and [NAME], who had no business association with [NAME] but whom [NAME] alleges the defendant separately retained to assist [NAME] and [NAME] remove the trees which they had cut down.

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

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

The alleged offence 1. At the time of the offence, s 125(1) provided: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. … 1. Clause 42 of the Ku-ring-gai Planning Scheme Ordinance ('Ordinance') provided: Preservation of trees (1) Where it appears to the responsible authority that it is expedient for the purpose of securing amenity or of preserving existing amenities it may for that purpose make an order (hereinafter referred to as a "tree preservation order") and may by like resolution rescind or vary any such order. (2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority may think fit. (3) Any such order may relate to any tree or trees or to any specified class, type or description of trees on land described in such order and such land may be described particularly or generally by reference to the municipality or any divisions thereof. (4) The responsible authority shall forthwith upon the making of a tree preservation order cause notice of the making of such order to be published in the Gazette and in a newspaper circulating in the area in which the land described in the order is situate [sic]. (5) In any proceedings under this clause it shall be sufficient defence to prove that the tree or trees ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed, was or were dying or dead or had become dangerous. (6) The powers conferred upon the responsible authority by this clause shall not extend to any trees within a State Forest or land reserved from sale as a Timber or Forest Reserve under the Forestry Act 1916.

1. The TPO, made pursuant to cl 42 of the Ordinance, relevantly provided: On what legislative basis has this Order been made? This order is made pursuant to section 26(e) of the Environmental Planning and Assessment Act 1979, and in accordance with Clause 42(4) of the Ku-ring-gai Planning Scheme Ordinance. This Tree Preservation Order was adopted by Council resolution of 12 December 2006, and advertised in the Government Gazette of 25 January 2007. … To what land does this Tree Preservation Order apply? This order applies to the whole of the local government area of Ku-ring-gai with the exception of those lands dedicated as [ADDRESS]. What is a tree under this Order? A Tree under this Order means a plant with any one or all of the following criteria: A perennial plant with at least one self supporting woody, fibrous stem, whether native or exotic, which is 5 metres or more in height or has a trunk diameter of 150mm or more measured at ground level. What tree works are prohibited? This Order prohibits the injury of any tree protected under this Order without the written consent of Council. Injury under this Order means damage to a tree and includes: removal of a tree pruning, damaging/tearing of live branches lopping (height reduction) topping of a tree … When is Council's consent required? Consent from Council will be required to undertake works to trees protected under this Order. What is an offence under this Order? A person who contravenes or causes or permits to be contravened the provisions of this order shall be guilty of an offence. What are the penalties for an offence under this Order? A person who contravenes the provisions of this order will be liable to prosecution and penalties in accordance with the Environmental Planning and Assessment Act, 1979.

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

2. An offence against s 125(1) is an offence of strict liability: Rao v Canterbury City Council [2000] NSWCCA 471; (2000) 112 LGERA 360 ('[NAME]') at [53]; Canterbury City Council v Saad [2000] NSWLEC 278; (2000) 112 LGERA 107 at [33]. 3. [NAME] submits that the elements of the offence with which the defendant is charged are as follows: 1. [NAME] was authorised under the EPA Act to forbid persons from injuring or causing injury to trees (noting that injury is defined in the TPO to include lopping and removal); 2. [NAME] did in fact forbid trees of a specified class or description, which included the subject trees, from being injured except with its written consent; and 3. The defendant engaged in that forbidden conduct by causing the trees in question to be lopped and removed without the consent of [NAME].

1. In Randwick City Council v Kara-Ali [2015] NSWLEC 5 ('[NAME]'), which similarly involved the alleged contravention of a tree preservation order, Sheahan J said at [4]: To succeed in this prosecution, it seems to me that the Council has to satisfy the Court, beyond reasonable doubt, of the following elements of the offence charged: (a) Council had authority to forbid the cutting down of the subject trees; (b) A TPO was in force and applied to the subject trees; (c) None of the exceptions to the prohibition in the TPO is/are enlivened; (d) The Council did not consent to the removal of the trees; and (e) The defendant caused or authorized the removal of the trees.

1. In the present proceedings, [NAME] says that the defendant is guilty by reason of vicarious liability. It relies upon an exception to the general principle that an accused is not vicariously liable for the conduct of contractors. As [NAME] of LEC said in North Sydney Council v [NAME]; North Sydney Council v [NAME] (No 2) [2008] NSWLEC 169 at [114]: … Generally, an accused will not be vicariously liable for the conduct of an independent contractor: [COMPANY] v [NAME] Co-operative Assurance Co of [COMPANY] (1931) 46 CLR 41 at 48; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 58-59 [277]. There are exceptions to this general principle. An accused may be vicariously liable where the accused has directly authorised the doing of the actus reus by the independent contractor: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [104] – 263 [106]. An accused may be vicariously liable where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [280], 61-62 [290]. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [102], [NAME] described the content of the control test as follows: "That test involves a right to direct and control a course of action, in circumstances where the right is capable of exercise and is, or is likely to be, effective. It relates to the manner in which the independent contractor undertakes the course of action, that is, the way in which the tasks are to be performed or how they are to be carried out".

1. Similarly, Preston J explained in Director-General of the Department of Environment, [NAME] and [NAME] v [COMPANY] (No 2) [2011] NSWLEC 229 ('[NAME] No 2') at [116]: One exception is that an accused may be vicariously liable where the accused has directly authorised the doing of the actus reus by the independent contractor: see Environment Protection Authority v [COMPANY] at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262-263 [104]-[106]. An act constituting the actus reus of an offence will be the act of the accused if the accused orders the contractor to do the act which constitutes the offence, to do some act which comprises that act, or to do some act which leads by all physical necessity to the offence: Stoneman v Lyons (1975) 133 CLR 550 at 573-574; Coffs Harbour City Council v Hickey [2004] NSWLEC 531 at [52]. Another exception is that an accused may be vicariously liable where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work: see Environment Protection Authority v [COMPANY] at 59 [280], 61-62 [290] and Environment Protection Authority v [COMPANY] at 262 [102].

1. This standard was held to be met in respect of the removal of native vegetation by Pepper J in Director-General, Department of [NAME] v [COMPANY] (No 2) [2010] NSWLEC 73 at [317], where her [NAME] said: In the present case, I find that the instructions given by [NAME] to [NAME] were sufficient to amount to a direction to do an act that would lead by all physical necessity to the clearing of native vegetation. [NAME] directed [NAME] to remove the "undergrowth" or "small regrowth". While what this constituted was left up to [NAME], given the absence of instruction by [NAME] as to what could be removed, the execution of [NAME]'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 [NAME] 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 [NAME]'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 [NAME].

1. In so doing, Pepper J distinguished the facts in that case from those in Coffs Harbour City Council v Hickey [2004] NSWLEC 531. In that case, at [63], Lloyd J found: The instructions given by [NAME] are the only positive act by which the defendants could be said to have caused the felling of the trees. Those instructions were to clear weeds, lantana and regrowth. I am not satisfied beyond a reasonable doubt that those terms of engagement were intended to include the particular trees that were felled. As I mentioned earlier (at [54] above), there was no express instruction to interfere with any trees per se. While there is no doubt that [NAME] intended to convey the instructions he gave, it is not clear that those instructions would ordinarily and naturally lead to the felling of trees. This is particularly so given that [NAME] did not clarify his understanding of the instructions and [NAME] was relying on the expertise of the contractors. [NAME] gave no instructions to [NAME]. As such there is a reasonable doubt as to whether [NAME] issued any instructions at all which could constitute a positive act that caused the trees to be felled. Taking into account the whole of the circumstances I am not satisfied beyond a reasonable doubt that either defendant caused the trees to be felled by the contractors.

1.

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

2. Further, the TPO provides a number of exemptions which, if applicable, will provide a defence to the offence: When is Council's consent not required? Works that do not require consent are called exemptions. The following exemptions to the order apply:

1. Dead trees and branches Removal of completely dead trees and dead branches.

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

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

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

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

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

7. Exempt tree species All of the following species are exempt: [none of the species exemptions are relevant to the alleged offence] … 8. Rural Fires Act 1997 Tree works for which an order or permit has been issued under the Rural Fires Act 1997. 1. [NAME] contends that none of the exemptions provided in the TPO, which would provide a defence to the offence with which the defendant has been charged, apply in the circumstances.

2. At the time of the alleged offence, the [NAME] had recently promulgated the "10/50 Vegetation Clearing Code of Practice for New South Wales" ('10/50 Code') which was given force under s 100Q of the Rural Fires Act 1997 (NSW) ('Rural Fires Act') which relevantly provides: 100Q The 10/50 Vegetation Clearing Code of Practice (1) The Commissioner is to prepare a 10/50 Vegetation Clearing Code of Practice for the carrying out of vegetation clearing work on land situated within a 10/50 vegetation clearing entitlement area pursuant to section 100R... ...

1. Section 100R of the Rural Fires Act relevantly provides: 100R Carrying out vegetation clearing work (1) This section applies to the following buildings only: (a) a building containing habitable rooms that comprises or is part of residential accommodation or a high-risk facility (but not if there is no lawful authority for the use of those rooms as habitable rooms), (b) a building that is a farm shed (but not if there is no lawful authority for the use of the building as a farm shed). (2) The owner of land in a 10/50 vegetation clearing entitlement area may carry out any of the following vegetation clearing work on the land if the work is carried out in accordance with the requirements of this section: (a) the removal, destruction (by means other than by fire) or pruning of any vegetation (including trees or parts of trees) within 10 metres of an external wall of a building, (b) the removal, destruction (by means other than by fire) or pruning of any vegetation, except trees or parts of trees, within 50 metres of an external wall of a building. (3) Vegetation clearing work may be carried out under this section despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003 or the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act. (4) A tree must not be removed or destroyed under subsection (2) (a) unless part of a trunk of that tree, having a circumference at a height of 1.3 metres above the ground of more than 0.3 metres, is within 10 metres of the external wall of the building. (5) If there is no external wall of a building on land owned by a person that authorises particular vegetation clearing work under this section, the person may rely on an external wall of a building on adjoining land to authorise the clearing. However, the person must not carry out the work unless he or she has obtained the written consent to the particular vegetation clearing work of each owner of adjoining land on which there is an external wall of a building that could be used to authorise the work. Note. For example, a tree on a person's land that is more than 10 metres away from the person's home but that is within 10 metres of the homes of 2 neighbours could be removed under this section only if both of those neighbours provide written consent. (6) Vegetation clearing work is not authorised to be carried out under this section on land unless it is carried out by or with the authority of the owner of the land. (7) Vegetation clearing work is not authorised to be carried out under this section unless it is carried out in accordance with the 10/50 Vegetation Clearing Code of Practice. (8) The Commissioner may prescribe in the 10/50 Vegetation Clearing Code of Practice whether, for the purposes of this section, particular rooms of a building are or are not habitable and what is or is not an external wall of a building. (9) A person is not guilty of an offence under any of the following Acts merely because of the carrying out of vegetation clearing work in accordance with this section: … (b) Environmental Planning and Assessment Act 1979, … (10) In this section: lawful authority means development consent or other lawful authority under the Environmental Planning and Assessment Act 1979.

1. The key provision of the 10/50 Code is contained in section 7, which relevantly provides: 7 Vegetation clearing provisions 7.1 Clearing distance A [NAME] may carry out the following vegetation clearing work on their own land: > the removal, destruction (by means other than fire) or pruning of any vegetation (including trees) within 10 metres; and > the removal, destruction (by means other than fire) or pruning of any vegetation, (except for trees) within 50 metres of an external wall of a building containing habitable rooms that comprises or is part of residential accommodation or a high-risk facility. It does not matter whether the residential accommodation or high-risk facility is located on the owner's land or adjoining land. The allowable distances apply irrespective of whose land the residential accommodation or high-risk facility occurs on. Trees may only be removed where the trunk is within 10 metres of the residential accommodation or high-risk facility. Note: a person may not clear adjoining land or any other land without the approval of the [NAME]. 7.2 The type of vegetation that can and cannot be cleared, including the types of trees All types of vegetation may be cleared other than mangroves and salt marsh on public land. … 1. [NAME] submits that the 10/50 Code does not assist the defendant because none of the 74 removed trees was within 10m of an external wall of a building containing habitable rooms. Even if this requirement was satisfied, [NAME] submits that the defendant did not have owner's consent to remove the trees on the [NAME] or the [NAME] reserve as required by section 5 of the 10/50 Code and s 100R(6) of the Rural Fires Act.

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

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

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

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

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

Whether the TPO provides for the offence with which the defendant is charged 1. On p 146 and following of its closing written submissions (and addressed orally at [NAME], 4 December 2018, p 1449(47) – p 1452(2)), the defendant raised a further issue in relation to the TPO for the first time. Given that the argument was raised so late in the proceedings, I granted leave for [NAME] to provide short written submissions in reply which were received on 8 December 2018.

2. In relation to this submission, the defendant notes the wording of cl 42(2) of the Ordinance, which is extracted above at [10] and which provides: A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority may think fit.

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

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

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

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

5. The defendant therefore submits that the TPO is invalid to the extent that it purports to prohibit the "causing" of a contravention of the TPO and that the only actus reus criminalised is the physical cutting of trees. 6. [NAME] says that the better view is that cl 42(2) of the Ordinance is expressed in sufficiently broad language to empower [NAME] to create a TPO which prohibits a person from causing injury to trees. However, it submits that it does not matter in any event because it relies on the principle of vicarious liability to ground the offence rather than the TPO.

7. I accept that the "note" in the TPO cannot independently create an offence which is not authorised by the Ordinance. However, whether it is covered by cl 42 of the Ordinance or not, I consider that the "note" is correct insofar as it is reflective of the common law position articulated by the High Court in [NAME] (1985) 156 CLR 473; [1985] HCA 29 ('[NAME]') that an "aider, abettor, counsellor or procurer" is in the same position as a principal offender. As [NAME] said at 500: …The requirement of intention on the part of an aider, abettor, counsellor or procurer or, if we may use the term, a secondary participant in a crime, is a requirement at common law and it is a requirement which is not affected by s. 351 of the Crimes Act. That section merely restates the common law by providing, in effect, that in proceeding against a secondary participant in a misdemeanour, no distinction is to be drawn between the principal offender and the secondary participant… 1. In any event, [NAME] does not rely upon the provisions of the TPO which relate to causing but rather on the established principles of accessorial liability extracted above at [16]-[17]. In other words, it is not suggested that the fact that the TPO includes the word "causes" is necessary for the Court to find the defendant guilty of the offence.

2. The summons in the present matter articulated the offence pursuant to s 125(1) of the EPA Act in the following way: …An order [is sought] that the Defendant, [NAME], of [xxx] [xxx] Street, Killara, in [NAME], appear before a Judge of the Court to answer the charge that between on or about 6 October 2014 to on or about 21 October 2014 at Roseville in [NAME], he committed an offence against s125(1) of the Environmental Planning and Assessment Act 1979 ("the Act") in that he did the following thing which was forbidden to be done by a Council authorised under the Act to forbid that thing to be done: He did cause injury trees [sic] protected by the Ku ring gai Tree Preservation order ("the TPO") without the consent of [NAME] where that consent was required.

1. The summons then gives the particulars of the alleged offence. For present purposes it is sufficient to extract the following: The manner of contravention by the Defendant The Defendant directed contractors to carry out works involving the said injury to 74 trees on the Site without having obtained the consent of [NAME], where such consent was required.

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

2. I should note for completeness that I do not consider that there is anything in this reasoning inconsistent with the decision of [NAME] in [NAME] (1998) 99 LGERA 432 ('Clyne'). In that case, [NAME] sought to amend a summons which the defendant contended was duplicitous. The summons relevantly provided: …"on or about 1 October 1997, at Dural in [NAME], the Defendant committed and caused to be committed an offence against the Environmental Planning and Assessment Act, 1979 section 125, whereby the Defendant caused to be pruned, lopped, cut down and/or removed trees contrary to the Council's Tree Preservation Order…"

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

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

3. At 433-434 in Clyne, [NAME] said: [NAME] contends that the summons is defective by reason of a failure to charge the defendant with any identified offence and the summons cannot now be amended to allege an offence for the first time. Notwithstanding s 55 of the Land and [ADDRESS], there is no offence of causing an offence to be committed under s 125 of the Environmental Planning and Assessment Act 1979 (NSW): see [NAME] v [NAME] (1987) 62 LGRA 207.

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

2. In this respect, I note the decision of Mason P, with whom Dowd and Austin JJ agreed, in [NAME]. At [22], [NAME] said: On appeal, the charges were also said to be defective because they did not state in effect that the development was being carried out in a manner said to contravene the relevant conditions. I do not agree. Each summons is pleaded inelegantly with its reference to causing the development consent to be implemented contrary to the specified conditions in the nominated manner. But the sense of each charge is perfectly clear, namely that conditions of a (necessary) development consent were infringed in the manner stated at the conclusion of each of the charges. (emphasis in original.)

1. The reasoning in [NAME] is entirely apposite to the flaws alleged by the defendant in the present case.

Accordingly, I find that the manner in which the summons was particularised and the hearing carried out was open to [NAME] and I do not accept that the only relevant criminal conduct in relation to the TPO is the physical carrying out of prohibited tree works. That conclusion would be contrary to established law in relation to vicarious liability and the common law position in relation to accessorial liability.

Evidence 1. I proceed now to give an overview of the evidence relied upon by the parties. The evidence in the case is voluminous and my description of it here is not intended to be exhaustive. I shall return to relevant aspects of the evidence in greater detail throughout the judgment in the course of making findings. 2. [NAME] tendered an A3 aerial image of the site with cadastral markings and markings made by [NAME]; a bundle of four A4 photographs showing trees being lopped; a photograph identified by [NAME] as showing one of his trucks; an A4 aerial photograph with markings made by [NAME] during his interview with [NAME] (who, as will be explained further below, was a private investigator retained by [NAME]) dated 11 October 2014; a further A4 aerial photograph dated 11 October 2014 with markings made by [NAME] in Court including "rock shelf" and "cliff face"; a copy of an aerial photograph of the site with two further markings made by [NAME]; an aerial photograph dated 11 September 2014 and marked by [NAME]; a document marked up by [NAME]; a photograph referred to in [NAME]'s record of interview dated 19 August 2016; a photograph marked by [NAME]; a bundle of documents comprising screenshots of mobile telephone text messages; two lever arch folders of documents comprising exhibits to an affidavit of [NAME]; a record of interview between officers from [NAME] and [NAME]; an aerial photograph marked by [NAME]; a record of interview between officers from [NAME] and [NAME]; a document styled 'Fire Risk Assessment', dated 3 March 2014; an enlarged survey plan of the [NAME] marked by [NAME]; correspondence between [NAME] and [NAME] dated 27 November 2014 and 1 December 2014; correspondence between [NAME] and [NAME] attaching a Bushfire Risk Assessment; a letter to [NAME] from [NAME] dated 17 December 2014; a lever arch folder comprising an exhibit to the affidavit of [NAME]; a letter appointing [NAME] as the defendant's agent; a letter of 9 December 2014 from [NAME] to [NAME]; a letter of 23 December 2014 from [NAME] to [NAME]; the audio and transcript of records of interview undertaken by [NAME] with each of [NAME] and [NAME]; and a document indicating phone contact between witnesses and identifying phone location data.

3. The defendant tendered an aerial photograph of the site marked by [NAME] "Northern"; an affidavit sworn by [NAME] for the [NAME] proceedings and the transcript of the [NAME] proceedings; a photocopy of two mobile telephone text messages between [NAME] and [NAME] dated 5 August 2016; three photocopies of prosecution exhibits marked by [NAME]; a photocopy of a text message dated 23 September 2014; a photocopy of text messages purportedly of 25 and 26 September 2014 and identified by [NAME]; a letter of [NAME] dated 9 December 2014; a bundle of letters comprising correspondence between [NAME] senior and [NAME]; a letter from [NAME] dated 8 August 2016, and addressed to [NAME] and signed by [NAME]; two letters dated 1 February 2015 and 9 February 2015 each signed, respectively, by [NAME] and [NAME]; a copy of an email chain comprising two emails dated 31 January 2017 and 1 February 2017 between [NAME]; a further photograph marked by [NAME]; an email dated 29 January 2016 from [NAME] (a solicitor who practises at the firm retained by [NAME]) to [NAME]; a log prepared by [NAME] dated 3 February 2016; a photocopy of text message screenshots of 27 July 2016, 1 August 2016, and 4 August 2016; a file note prepared by [NAME] dated 2 August 2016; a file note prepared by [NAME] dated 4 August 2016; a screenshot of a text message of 5 August 2016; further pages of screenshots of text messages dated 4 August 2016, 14 August 2016, 19 August 2016, and 22 August 2016; a typed copy of a handwritten file note prepared by [NAME] dated 21 October 2014; the audio and transcript of a record of interview between officers of [NAME] and the defendant dated 5 February 2015; an email from [NAME] to Greg Piconi dated 17 February 2015; a copy of the Ku-ring-gai Council Flood Data Sheet dated 8 November 1984 and letter dated 10 May 1985; a photograph of the [NAME]; an aerial photograph of the site dated 21 April 2017 and marked by [NAME]; a file note prepared by [NAME] dated 10 November 2015; an email from [NAME] to [NAME] dated 20 July 2015; and a copy of the handwritten note from [NAME]'s conference with [NAME].

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

1. An affidavit of [NAME] dated 15 February 2017;

2. Two affidavits of [NAME], each dated 26 September 2016;

3. An affidavit of [NAME] dated 29 September 2016;

4. An affidavit of [NAME] dated 14 February 2017;

5. An affidavit of [NAME] dated 20 June 2017;

6. An affidavit of [NAME] dated 25 October 2017;

7. An affidavit of [NAME] dated 22 June 2017;

8. An affidavit of [NAME] dated 19 October 2018;

9. An affidavit of [NAME] dated 29 September 2016;

10. An affidavit of [NAME] dated 13 November 2018; and 11. An affidavit of [NAME] dated 13 November 2018.

1. The defendant read one affidavit in the proceedings, being the affidavit of [NAME] dated 25 October 2018.

2. Oral evidence was given in the proceedings by [NAME] and [NAME].

The evidence of [NAME] 1. [NAME] gave evidence that he had been retained by the defendant to carry out tree removal work on three occasions prior to the alleged offence. He was first retained by the defendant in around 2011. Each of the three jobs he carried out for the defendant prior to the occasion the subject of these proceedings was at the defendant's Killara property. 2. [NAME] stated that in September 2014 the defendant contacted him about some clearing work which the defendant wanted carried out at the site. [NAME] said there were no boundary markings at the back of the [NAME], which slopes away from the rear of the house to the south where it meets the [NAME] and the [NAME]. [NAME]'s evidence is that the defendant initially wanted three large casuarina trees and the bush and shrubs closest to the property removed.

3. In [NAME]'s examination-in-chief, in response to questions asked by [NAME], senior counsel for [NAME] gave the following description of the work the defendant asked him to carry out (at [NAME], 16 April 2018, p 36(3-15)): Q. Do you know how far from roughly how far away from the house [the three casuarinas] were? Were they right next to it or a bit further away? A. I'd say roughly 10 metres. Q. Did he tell you at that point in time anything else about the job or just that? A. At that stage it was just that, plus the shrubs closest to the house. Q. When you say in answering that question "at that stage" why did you qualify your answer in that way? A. Because each day we would do work [NAME] would meet us at the property and he saw what we actually did and he got us to go further and further down. So every day he got us to do more and more cutting of the shrubs on the southern side of the property and eastern side. 1. [NAME] said that he and his crew worked at the site for eight days in total between 3 October 2014 and 21 October 2014. The defendant paid [NAME] a daily rate of $2,000, or $16,000 in total, which [NAME] said he received in cash. 2. [NAME] stated that the day he began work, which he said was 3 October 2014, was around four days after his meeting with the defendant on the site and their discussion as to the work which was to be carried out. He said that he was there with a crew of three, comprising one climber (that is, a person who climbs trees in order to remove branches) and two labourers, and that the work took eight days, each day of which he was present at the site. One of the labourers was [NAME]'s nephew, [NAME]. Once the trees and shrubs were felled, they were taken to a wood chipper at the top of the property and mulched onsite.

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

4. Of the eight days on which the work was carried out, [NAME] stated the defendant was present "almost every afternoon". According to [NAME], the exception was for a period when the defendant travelled to Singapore for a few days.

5. However, under cross-examination by [NAME], senior counsel for the defendant, [NAME] admitted that he did not know which days the defendant had attended the site ([NAME], 17 April 2018, p 90(3-15)): Q. Are you able to tell the Court when that was [that the defendant attended the site]? A. I know it was a couple of days during the week that we were there. Q. During the week that you were there? A. Yes. Q. Can I suggest to you that apart seeing [NAME] at his home, that is his home at Killara, he did not visit the site after he came back from Singapore, did he? A. I can't recall, but I know he was there for a few days. Q. But you can't say what days, can you? A. Not exactly, no.

1. In relation to the further instructions received from the defendant, [NAME] gave evidence as follows ([NAME], 16 April 2018, p 47(9-50)): Q. You told us earlier on about the initial instructions you got from [NAME] and you also told us that later on you had some other instructions from him. Can you tell [NAME], if you can, how long after you started the job did you get any instructions from [NAME] which were different to the initial instructions that you got? A. I'd say it would have been roughly a day or two after starting the initial works. Q. Did he speak with you? A. Yes, he did. Q. What did he say? A. He saw what we actually did and he wanted us to go further down the southern side and eastern side of the property. Q. When you say that he saw what you did, had did at that point in time, what had you done at that point in time? A. We had removed the three large casuarinas. Q. Yes. A. We started clearing the southern side, the bottom southern side. As he saw that he wanted more going down the southern and eastern side of the property. So he wanted to remove more and more. Q. When you say he wanted to remove more and more after he told you to gave you instructions about one or two days into the job did is that the sum total of your instructions from him or did he later, after that, give you further instructions? A. Further instructions, yes. Q. How long after the day two instructions, if I can put it that way, roughly, did you get further instructions from him? A. A day or two after that. Each day he would see what we had progressed and then he wanted to go further down. Q. When you say he wanted to how do you know he wanted to? A. Just asked us to clear more of the land. Q. How did he ask you to do that? A. He just said, "I want all this cut down. I want all this cut." So each day we would clear a section, once he saw that then he actually said, "I want you to go down further." 1. [NAME] said that the defendant was not present on the site the day the works were completed and could not recall whether he was present on the penultimate day of works. However, [NAME] gave evidence that the work involved the chopping down of trees on each of the eight days and that the defendant never intimated to him that he had cut down too many trees or that the trees had been cleared from an area from which they should not have been cleared. 2. [NAME] attested that he told the defendant about the 10/50 Code and that the defendant wanted to use this to clear the trees and shrubs around the site which he was concerned created a fire risk. [NAME] did not accept that the defendant wanted him to "comply" with the 10/50 Code but rather wanted to "use it to remove trees and shrubs" ([NAME], 17 April 2018, p 101(35-36)). 3. [NAME] agreed that he did not measure the distance between the house and any of the trees which were cut down to determine whether they were capable of being lopped in compliance with the 10/50 Code. 4. [NAME] was recalled in November 2018 to give further oral evidence, at which time he gave the following evidence regarding the 10/50 Code (at [NAME], 1 November 2018, p 954(1-19)): Q. And you fabricated that evidence because you knew that the trees that you had chopped down by them were outside the 10 metre limit. You knew that, didn't you? A. No, because there was no boundaries. Q. No, forget the boundaries. I don't want to go through it again, [NAME], I want to close this down if I can. But it may well be the position - did you think it was 10 metres from the boundary? A. We didn't measure it, so-- Q. I know you didn't measure it, but did you believe it was 10 metres from the boundary? A. I believed it, yes. Q. Pardon? A. Yes, I did. Q. And that was your understanding of the 10 metre rule? A. Yes.

1. In relation to the ownership of the site, [NAME] gave the following evidence ([NAME], 16 April 2018, p 50(3-18)): Q. [NAME], when you carried out these works at this site what did you understand about who owned the land on which you were carrying out the works? A. My initial thought it was [NAME]'s land. And then he said if we were to go onto golf course, because he told me it was [NAME], he had permission from [NAME]. He had done for 20 years. Q. Can you tell [NAME] what he said to you that makes you say that? A. "If you were to go on –" [NAME]: Did he say 20 years? [NAME]: He did. WITNESS: Twenty years. If we were to go on golf course land he had permission from [NAME] to clear any trees or shrub. 1. [NAME] attested that [NAME] was present on each occasion that the defendant gave him further instructions but could not recall whether [NAME] was also present.

2. On the last day he was working at the site, [NAME] said an officer of [NAME] named [NAME] attended the site, accompanied by other officers. [NAME] attested that the conversation was brief and casual. 3. [NAME]'s cross-examination, [NAME] accused [NAME] of lying to [NAME] during their conversation and suggested that it had been more formal than [NAME] was attempting to make it appear ([NAME], 17 April 2018, p 115(35) – p 116(36): Q. You were interviewed in a formal way, weren't you? A. No, I wasn't. Q. She cautioned you as in relation to your right to silence, didn't she? A. I can't really recall her saying that. Q. Pardon? A. It wasn't a long conversation we had, she took down my details, asked me a couple of questions, and that was it. Q. That is a blatant lie, isn't it? A. No, it's not. Q. You see this was put "hello, I'm [NAME], I work with Ku-ring-gai Council as the tree management officer and I am investigating the removal of trees from this property, can you tell me your name," she put that to you, didn't she? A. She put that to me, yes. Q. And there's no doubt by then that she was investigating the removal of trees from the property? A. She was acting on a complaint. Q. Whatever the position was there was no doubt in your mind she was investigating that complaint, correct? A. That's correct. Q. You answer to the name [NAME] and then she put this to you "thank you [NAME], I'd like to ask you some questions about what's happened here. I want you to understand that you do not have to answer and that any questions you give maybe given in evidence" she put that to you to too, didn't she? A. That I can't recall, no. Q. Pardon? A. You know, it was just a conversation Q. She used those words, didn't she? A. I can't recall that, no. Q. And the reason you won't admit to those words, because you knew that you were in trouble, didn't you? A. At the time, no. Q. Pardon? A. No. Q. At the time, no? A. No. Q. Why do you say, "at the time, no"? A. Well I thought what we were doing was just clearing some land. Q. On [NAME]'s instructions? A. That's right. Q. And that was firm in your mind them, wasn't it? A. Yes. Q. She then asked you a number of questions, including your name and your contact number, remember that? I think you've agreed with that, haven't you? A. I think yes, yeah. Q. It's fair to say as you would see it you weren't in trouble because you had obeyed the 10/50 rule, is that correct? A. Yes. 1. [NAME] denied the suggestion that he knew or thought that he was in trouble after his conversation with [NAME]. [NAME] suggested to [NAME] that in the course of his interview with [NAME] he had denied being on the site before that day, the last of the eight days on which the work was carried out ([NAME], 17 April 2018, p 118(22-36): Q. So, if she said to you "when were you last on the property" what would you have said? A. Probably would have been the Sunday. Q. Pardon? A. It would have been the Sunday. Q. And that would have been a truthful answer? A. Mmm hmm. Q. You lied to her, didn't you? A. No, I didn't lie to her. Q. You see this is what you told her "we started here a week ago but I haven't been to the site before today"? A. That's incorrect. 1. [NAME] suggested to [NAME] that he had also lied to [NAME] about whether he was responsible for the lopping of trees to the south of the site ([NAME], 17 April 2018, p 119(8-35)): Q. [NAME] then said this to you. "What about the trees that have been felled down on that lower section of the property, did your guys do that?" A. I can't recall her saying that? Q. Pardon? A. I can't recall her saying that. Q. It was said to you, wasn't it? A. I don't remember. Q. If that question was asked what would have been your answer? A. We felled those Q. Pardon? A. We felled those. Q. Sorry? A. We felled those trees. Q. That would have been your answer? A. If I would have said that. Q. And that would have been a truthful answer? A. That's right. Q. What you did in fact say to [NAME] was, "We didn't remove any trees on the lower section at any time, just small shrubs." Recall saying that? A. No. 1. [NAME] further pressed [NAME] on this point ([NAME], 17 April 2018, p 119-120(44-30)): Q. This is your answer in relation to the allegation concerning trees being felled lower down on the property. This is what you said to [NAME]. "The trees down on the lower section are not from us." That's what you said, wasn't it? A. I don't recall saying that, no. I can't recall saying that. Q. That was a lie, wasn't it? A. Like I said I can't recall Q. Pardon? A. I can't even recall saying that. Q. Let me ask you this. If you did in fact say that that would have been a lie, would it not? Would it not? A. No. Q. It wouldn't have been a lie? You're shrugging your shoulders, [NAME], what does that mean; yes or no? A. Like I said I can't yeah, I don't know. Q. No, please. [NAME]: Ask the question again, [NAME]. WITNESS: I don't understand. [NAME] Q. If you had told [NAME] that the trees down the lower section are not from us that would have been a lie, wouldn't it? A. If I would have told her. Q. Pardon? A. If I would have told her that. Q. That would have been a lie? A. Yes. 1. [NAME] agreed with [NAME] that if the questions and answers put to him had taken place he would have been put on notice that he was implicated in a serious allegation of unlawful tree cutting. [NAME] maintained that he could not recall any of those questions being asked. He agreed that he did not tell the defendant about his conversation with [NAME] and further agreed with [NAME] that the defendant, as the owner of the [NAME], had a right to know about [NAME]'s attendance.

2. However, [NAME] continued to maintain that he was not put on notice that there was any suspicion of wrongdoing by virtue of his conversation with [NAME] ([NAME], 17 April 2018, p 125(41-45)): Q. [NAME], I'm going to put this question another way, did you understand from the questions asked of you by [NAME] in terms of your occupation, in terms of trees being felled, as she puts it, that you were at the very least a suspect for some wrongdoing? A. That I can't recall, but no. Q. Pardon? A. No.

1. If it had been put to him that he was chopping down trees on the lower section unlawfully, [NAME] agreed that he would have told [NAME] that the defendant instructed him to carry out the works. However, [NAME] stated that he could not recall the question ever having been put to him by [NAME]. 2. [NAME] said that he was paid for the work a couple of days after it was completed. He was paid in cash by the defendant at the defendant's home in Killara. [NAME] stated that he attended the Killara property with [NAME] on that occasion and that the defendant met him with his solicitor (this was, in fact, [NAME]). [NAME] described their interaction with the defendant as follows ([NAME], 16 April 2018, p 53(8-32)): WITNESS: Basically, he said if there were any repercussions from council he said for myself and [NAME] to take the blame, basically. [NAME] Q. Did you say anything to him about that? A. No, I did not, I didn't say a word. Q. Why didn't you say anything to him when he said that? A. Because I, you know, I wasn't going to take the blame for something. [NAME] and I, [NAME] looked at each other and said, you know, "this is not our fault." Q. Have you told [NAME] what you can remember about that conversation, have you told [NAME] everything you can remember about the conversation? A. That's everything I can remember, yes. Q. Now the other person who was present who you described a few moments ago as [NAME]'s solicitor did he say anything to you that you recall during this meeting? A. Yes, solicitor. Q. Yes? A. He wanted my details and that was it and I refused to give it to him. 1. [NAME] suggested to [NAME] that at that meeting he told the defendant and his solicitor, who [NAME] identified as [NAME], that he had only carried out clearing in compliance with the 10/50 Code. [NAME] disagreed and said that they did not discuss anything of that nature. 2. [NAME] stated that in 2016 he was approached by [NAME], an investigator retained by [NAME], who interviewed him about his involvement in the alleged offence. Under cross-examination by [NAME] did not agree that his memory of the events was clearer at the time he was interviewed by [NAME], on 29 July 2016, than it was during the hearing ([NAME], 16 April 2018, p 55-56(35-20)): Q. [NAME], you were taken to a record of interview that you had with [NAME] back in 2016 just a moment ago. Is it fair to say that at the time you spoke to [NAME] the matter was fresher in your mind then than what it is now? A. No. Q. You're saying it's fresher in your mind now A. Like I still Q. No, please, let me finish my question. Are you saying, truthfully, the matter is fresher in your mind now than what it was when you spoke to [NAME]? A. Yes, it is. Q. Is that what you're saying? A. I'm saying it's still the same. Q. It's still the same? A. Still the same. Q. So whatever your recollect was to [NAME] you're saying it's the same recollection you have now? A. Yes. Q. But would you agree logically the matter was fresher then than it is now? A. No. Q. For example, you can't recall now what you said to [NAME], can you? I withdraw that question. The record of interview went for some hours, did it not? A. Yes, it did. Q. You're not suggesting for a moment now you can recall what you said to [NAME], can you? A. Not every word. 1. [NAME] did not agree with [NAME] that at the time he was interviewed by [NAME] he was aware that he had done anything wrong ([NAME], 16 April 2018, p 62(16-22)): Q. Are you saying that at the time of the interview you had with [[NAME]] you were unaware that you had done anything wrong? A. That's correct. Q. And that's a truthful answer? A. And that's a truthful answer. 1. [NAME] did however agree that he was aware that [NAME] wanted to interview him in relation to the work he had carried out for the defendant at the site. [NAME] maintained that he did not believe he was under investigation and did not think that he was in trouble. He also denied having spoken to [NAME] in relation to his interview before meeting [NAME]. 2. [NAME] pressed [NAME] on this point as follows ([NAME], 16 April 2018, p 68(1-26)): Q. You had spoken to [NAME], hadn't you, about the matter before you spoke to [NAME]? A. We just spoke on the matter after we got paid, about what [NAME] about the letter from council, that was it. Q. You see, you recall in fairness to you, I'll put it again; [NAME] said to you, just before the interview, "Have you spoken with [NAME]," and your answer was, "Yeah, he said he's got no problems speaking with you, 'But don't give my phone number out'," that's what you said to [NAME], on that day, before the interview, do you understand? A. Yes. Q. And [NAME] said, "Okay, it would be good to speak with him, he may be able to corroborate what was said," and you said, "If we are in the right, what's going to happen with [NAME], is he going to get fined," do you remember saying that to [NAME]? A. No, I can't remember saying that, no. Q. You did say that to [NAME], didn't you? A. No, I can't remember that, that's incorrect. Q. Pardon? A. That's incorrect. Q. You were concerned that you were in trouble, were you not? A. No, I wasn't concerned one bit.

1. During his interview with [NAME] declined to provide the names of the contractors he had hired to carry out the work. [NAME] asked [NAME] about this as follows ([NAME], 16 April 2018, p 71-72(41-13)): Q. Then he asked you these questions; "Can you tell me who the people were who assisted you at the property to clear the trees, the names of the people, so they were all contractors," answer, by you; "They were contractors, yes," do you see that? A. Yes. Q. Mr [NAME] then said to you, "Can you provide me with those names, [NAME]," see that? A. Yes. Q. Your answer was, "I don't want to answer that question"? A. Mm hmm. Q. Why did you not want to answer that question? A. Why? Q. Yes, why? A. I didn't want to give anyone's names out. Q. Because you knew that Mr [NAME] was investigating the matter and the last thing you wanted was for Mr [NAME] to speak to these people, that's right, isn't it? A. No, that's not right.

1. Later in his cross-examination, [NAME] asked [NAME] about the manner in which [NAME] began the interview ([NAME], 16 April 2018, p 75(22-45): Q. He said this; "I've been authorised by Ku-ring-gai Council under the Environmental Planning and Assessment Act of 1979, under the Act, I can ask you questions and you must answer my questions," he went on to say, "If you fail to answer my questions, it is an offence, if you feel that your answer may incriminate you, you can object to answer the question," do you see that? A. Yes. Q. When he delivered that statement to you, he put you on notice that the matter was pretty serious, didn't he? A. He didn't tell me it was serious but, yeah. Q. Well, you understood it to be serious, didn't you? A. It could have been, yes. Q. And then, you said, "Okay," in other words, you accepted what was said? A. Mm hmm. Q. Mr [NAME] went on to say this; "You still need to answer my questions but it can't be used in any evidence against you in criminal proceedings," you then said, "Yeah, I just don't want to get dragged into Court or anything like that, this [NAME] guy said that if you want any information, you can go to council and get it," you're talking there about [NAME], aren't you? A. I can't recall even saying that. 1. [NAME] asked [NAME] whether, prior to [NAME]'s interview with [NAME], he had communicated with [NAME] for the purposes of preparing their stories ([NAME], 17 April 2018, p 102-103(44-10)): Q. You see I'm suggesting to you that around about 2016 you and [NAME] got your heads together to blame [NAME] for what had occurred at [ADDRESS], hadn't you? A. No, that's incorrect. Q. Pardon? A. That's incorrect. I don't agree with that. Q. Sorry? A. I don't agree with that. Q. But you and [NAME] spoke from time to time, did you not, about the incident? A. We might have spoken once or twice. Q. However many times you spoke you certainly spoke to [NAME] around about the time you were to be interviewed? A. I can't recall exactly. 1. [NAME] continued to press [NAME] on this point ([NAME], 17 April 2018, p 104-105(1-1): Q. And one of the first questions he asked of you, before the interview started, was "have you spoken with [NAME]"? A. No, I don't recall. Q. And you might recall I asked you this yesterday? A. No, I don't recall that. Q. You don't recall that? A. No. Q. It's true though, you did speak with [NAME] before you spoke to Mr [NAME], didn't you? A. I can't recall, no. Q. More to the point, you spoke to Mr [NAME] about this very matter? A. Once again, I can't recall that. Q. You're not denying you spoke to [NAME] about the matter, are you? A. I'm not denying, no. Q. Recapping for a moment, you knew Mr [NAME] was interested in interviewing you on behalf of council, correct? A. Correct. Q. You knew that you were the tree lopper on site, correct? A. Correct. Q. You knew [NAME] was always onsite at the same time, correct? A. Correct. Q. You knew there was a problem about the trees being cut down, correct? A. At the time I didn't think there was a major problem Q. Well it was your crew that cut them down on any view, is that right? A. Yes, and that's correct. Q. And there was a problem, that's right isn't it? A. Right. Q. And according to you by then [NAME] had asked you to take responsibility, hadn't he? A. Correct. Q. That's right and I'll come back to that. But you see what Mr [NAME] said to you "have you spoken with [NAME]" and you said, "Yeah, he said he's got no problem speaking with you but don't give my phone number out," and the very next question was this "okay, it will be good to speak with him, he may be able to corroborate what was said," that's what Mr [NAME] said as an investigator to you, that's right isn't it? A. That's correct.

1. When [NAME] gave further evidence in November, he was further pressed about attempts to make contact with [NAME] on the basis of phone records which had been subpoenaed from Telstra. [NAME] continued to deny that he had sought to contact [NAME] for the purpose of discussing the evidence they were to give in these proceedings (at [NAME], 1 November 2018, p 923(26-28)): Q. You're sure it wasn't to try to get together with [NAME], to get your heads together? A. No, not at all.

1. When [NAME] was interviewed by [NAME], on 29 July 2016, he was asked to mark the areas he had been instructed by the defendant to clear on an aerial photograph of the [NAME]. He marked the photo with various lines. He was asked the following questions in relation to those lines during his cross-examination (at [NAME], 17 April 2018, p 92(4-25)): Q. And I'll take you to the document in a moment and using a red pen you did a number of lines in ever increasing distances from the house to demonstrate that area that [NAME] wanted cleared? A. That's correct. Q. And there's no doubt about that, is there? A. No. Q. And that's the area you cleared on [NAME]'s instructions? A. That's correct. Q. What you told the Court yesterday was a recap of what you told [NAME] on the first occasion; is that right? A. That's correct. Q. That is that you were doing no more than demonstrating to the Court on that document that area that [NAME] wanted cleared, without going through it again? A. Yes. Q. Pursuant to the 10/50 rule? A. Yes. 1. [NAME] attested that as a result of the incident the subject of the alleged offence and [NAME]'s investigations, he was charged with a summary offence in the Land and [ADDRESS] to which he pleaded guilty. He was sentenced in the [NAME] proceedings.

The evidence of [NAME] 1. [NAME] gave evidence that he has been a "landscape builder" for around 20 years and that in 2014 he was operating his own business called [NAME]. His work principally consists of refurbishing, exterior work, repairs, gardening and landscaping (at [NAME], 22 October 2018, p 288(5-45)). 2. [NAME] attested that in August or September 2014 he was engaged to carry out work for the defendant at the [NAME]. On that occasion, he said the defendant had asked him to do some work on the front nature strip of the property. He said the defendant gave him instructions at the front of the property and that the work was completed in around a day and a half.

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

4. When cross-examined about the description the defendant gave to him about the further work he wanted carried out (by reference to the transcript of [NAME]'s interview with [NAME]), [NAME] gave evidence as follows (at [NAME], 25 October 2018, p 577(9-31)): Q. I'll take you to page 36, point 5 [of the transcript of [NAME]'s interview with [NAME]], was said, "And he asked you to come back and meet him on the property?" And you said: "Yeah, he said he wants to tidy up through the rear, which I thought was quite weird, sort of thing, because the house hadn't even been worked on, but he wanted to tidy up the garden, that's around the house, here. There's all these shrubs, agapanthus, like agapanthus and kangaroo paw, and things like that, were all overgrown, and that needed cutting back and pulling out, or tidying them up. And that was both in his own garden, and along the eastern perimeter, wasn't it? A. Yes. Q. If there's any doubt about it, [NAME] says, "That's behind the house," and you say, "That's directly here, under the veranda, and then goes around to this pond, yeah." You then say at 36.8, "[NAME] asking to sort of looking at tidying that up, because he want to keep it in, if he wants to keep it maintained." And that's, you're really saying again, that's what he wanted done? A. Yep. Q. He wanted it maintained, kept trimmed and tidy, is that correct? A. Yes. 1. [NAME] stated that the next occasion he made contact with the defendant was when the defendant called him to ask him to carry out further work. He gave the following account of that conversation during his examination-in-chief (at [NAME], 22 October 2018, p 294(19-37)): Q. What occurred that had you contact with [NAME] at that stage, did he contact you, did you contact him? A. He contacted me. He said that he had people cutting down trees at his place, at [ADDRESS]. And that they needed assistance carrying branches up. From the bottom, up to the street. And he asked if I had any time to help. Help carry the branches up. Q. What did you say to him? A. I said, "Possibly, yes," cause we have, had, [NAME], his partner, his brothers who could work certain days to help us, or do some labour. So, we said we can potentially do a few days. Q. After you had that conversation with [NAME], did you actually attend the property, to do what you told him you could do? A. Yes. Q. Are you able to tell [NAME] when that was, referrable to a year, or a month, or both? A. It was, October, 2014. 1. [NAME] was unable to recall the date but stated that he attended the site to carry out this work early in the month of October 2014. He said that he was on the site for three or four consecutive days and then, after approximately four days' break, returned to the site for another two days. He said that the second tranche of days was after the Labour Day long weekend (the Labour Day public holiday fell on 6 October in 2014). 2. [NAME] gave the following description of the work being undertaken on the site at the time of his arrival (at [NAME], 22 October 2018, p 295(19-29)): Q. And could you tell [NAME], please, what you saw when you first arrived at the property at the rear side of the house? A. There were people cutting down - well, there was trees being cut down - or trees and shrubs – and-- [NAME]: Sorry, more trees and shrubs, or all trees and shrubs? [NAME] Q. You meant trees and shrubs? A. Trees and shrubs, yes. 1. [NAME] explained that the work he carried out was dragging trees and branches that had been cut down by [NAME] and his team to the top of the property where they were mulched onsite in the wood chipper.

2. On the first day he attended the site for his second job at the [NAME] said that he saw [NAME] and his team carrying out the following work (at [NAME], 22 October 2018, p 305(19-38)): Q. Insofar as concerns [NAME] and the workers with him, could you tell [NAME] what did you see them doing on the first day that you worked there with [NAME] and his two brothers? A. Cutting down, cutting back. There were, also helping us drag branches. Q. When you say cutting down or cutting back, could you tell [NAME], what did you see them cutting down? A. Trees, there were shrubs. There was a lot of clearing, so cutting back the low shrubs, exposing what was there. Q. So you've said well, I'll just ask you, if you wouldn't mind, in a neutral way to clarify. Did you see [NAME] or his working team cutting things that you considered to be trees? A. Yes. Q. And in giving that answer, what do you have in mind is a tree, as compared to, say, a shrub? A. A shrub is something that's sort of low, bushy, more multi branched, lower down. A tree is something with a trunk, a bit taller, straighter, as a generalisation of a tree. 1. [NAME] stated that he saw similar work being carried out on the second day he was in attendance at the site but that on that day [NAME] and his team cut down some larger trees. 2. [NAME] gave evidence that the defendant was present at the time some of this work was being carried out (at [NAME], 22 October 2018, 307-8(46-3)): Q. And could you tell [NAME], please, when you first spoke with [NAME], what could you see in terms of any activities being carried out at that time in the rear of the property? A. He came in the afternoon, so when most of the work was finished. There may have just been general sort of tidying up, sort of moving branches, tidying the site, packing up. So there wasn't a lot of activity. I don't think I can't actually recall whether he came earlier, during the middle of the day or things like that, but I know it was in the end of the day, there was at least a visit. 1. [NAME] stated that the defendant gave him instructions for what work he wanted carried out in the following terms ([NAME], 22 October 2018, p 308(50) -309(26)): Q. Just tell [NAME], as best as you can recall, the substance of any discussion you had with [NAME] at that time? A. Just discussing more so the progress, how long it was going to take us to get these sort of branches up. He was wanting to discuss with me sort of a long term plan he had for his garden that was possibly going to involve us doing actual building design work onto there. I think we sort of discussed sort of more of what he wanted to clear in the yard. Q. And what was that discussion? A. Just I think just sort of pointing and talking about sort of areas. Q. When you say that, could you just give [NAME] some more detail, if you're able to, about what he said? A. Just for things like sort of Casuarinas that he could see in sort of the immediate areas, to sort of clear, then those drop areas. Q. So just pausing there, if I may. You say he was referring to certain trees that he could see? A. Yeah. Q. Were they trees that were on the ground or were they trees that were standing at that time? A. Trees that were standing. Q. And what was [NAME] saying to you about the standing trees? A. That he would like to see those cleared. Not all of them, like, there was just certain ones. 1. [NAME] described the rear of the site as being split into various "drops" or "levels": first, an area near the pond in the backyard (at [NAME], 22 October 2018, p 297(50)); then a second drop of around two metres (at [NAME], 22 October 2018, p 298(2)); then a third drop which was a level that continued to run down to a gully (at [NAME], 22 October 2018, p 299(20)).

2. On the day [NAME] started work on the site, he said that the clearing was taking place in the area below the first drop, being the second level or the level beneath the pond (at [NAME], 22 October 2018, p 300(8-40)). He stated that he saw [NAME] and his team cutting down trees and cutting back trees including large trees. He said they were using chainsaws and tree climbers for the largest of the trees (at [NAME], 22 October 2018, pp 305(19) – p 307(35)).

3. After this first meeting with the defendant on the site, [NAME] stated that he saw the defendant attend the site on one more occasion. On that occasion, which he described as being towards the end of the first group of days he spent at the site, [NAME] stated that he met the defendant on his backyard veranda. He explained the status of the work at that time as follows (at [NAME], 22 October 2018, p 311(10-24)): Q. What was the difference in terms of the works that had been done, between the time you first met with [NAME] up near the clothesline, and the time that you were with him on the veranda? A. I think most of the back areas had been cleared, the drop areas, down to there. They'd started doing a bit more, going further, how to describe it. Sort of, further off towards Little Diggers track, further down. In that direction. Q. So insofar as there had been a [NAME], was it a recognisable progression in any particular direction or directions, as compared to what had been the case when you first met with [NAME]? A. Yeah, there was, it was more sort of cleared from both areas, and moving more in a consolidated direction. If that makes sense. Sort of, it's, so the two areas which had the most of the drops, were kind of cleared. The area just below from the clothesline, closest to the house, was cleared. And then there was an area going deeper off the two.

1. In his examination-in-chief, [NAME] gave the following account of the conversation he had with the defendant on the veranda (at [NAME], 22 October 2018, p 319(1-28)): Q. [NAME], you indicated to [NAME] that [NAME] had pointed to trees and shrubs that he wanted removed that were still standing; do you recall that? A. Yes. Q. Did he describe with words the trees and shrubs that he wanted removed? A. Yes. Q. And how did he describe that in words? A. Some he would identify by name, variety. Others were also saying, "In that area," so that was more directional than words. Q. Insofar as he described some trees by variety, what variety of trees did he describe in that way? A. [NAME]. Q. And what did he say? A. He didn't want to see those ones from his place. Q. Whereabouts in relation to the area of the works that you've described to [NAME] were [NAME] that you say [NAME] told you he didn't want to see? A. They were all over the property, all down the back. Yeah, so from pretty much all across the back, going up the top. They were growing in amongst the other trees. Q. Do you recall what you said to [NAME], if anything, or did you say anything when he told you that he didn't want to see [NAME]? A. I probably said, "Okay." 1. [NAME] said that the principal reason the defendant wanted the casuarina trees removed was his concern about the fire risk they presented. [NAME] further said that at no time during the defendant's visit to the site did he hear the defendant intimate that trees had been cut down which he did not want cut down. 2. [NAME] also gave evidence that he reported the progress of work on the site to the defendant as follows (at [NAME], 26 October 2018, p 657(33) – 658(2)): Q. When was it that you reported progress by phone to [NAME] as to what was being done? A. The same thing, I'm not sure. It was after the first group of days. It would have been either towards the start of the other couples of days that we were there, after the break between the two jobs ‑ the two blocks of days. Q. And when you agreed that at one stage you would report progress by phone to him as to what was being done, can you tell the Court whether that was on one occasion or more than one occasion that you reported progress by phone to him? A. It would have been one, maybe two. Q. Are you able to remember what you said to him and what he said to you, or to the effect of what you said to him and what he said to you in relation to reporting progress by phone to him? A. It would have been an update on clearing, how far we were getting. Q. And when you say how far you were getting, what do you mean by that? A. With moving the branches, clearing the site. How far we were getting up into that stage. 1. [NAME] said that he was aware that the defendant was seeking to invoke the 10/50 Code but admitted that when he was interviewed by [NAME] he mistakenly referred to it twice as the "50/10 rule". [NAME] asked him questions as to his understanding of the 10/50 Code as follows (at [NAME], 25 October 2018, p 538(13-49)): Q. In fairness to you, [NAME], you had an imperfect knowledge of the rule at that time, is that correct? A. Yes. Q. In fairness to you, you weren't quite sure what the actual distance meant in relation to your work, is that correct? A. I knew to move the trees and 50 metres for shrubs. But that's. Q. But from where, the boundary? A. From the property. The first part of the building, the house. Q. Did you really think that at the time, having in mind you call it the 50/10 rule? A. I wasn't clear on the rule. Q. You weren't clear? A. No, no‑‑ Q. That's all I ask? A. Yes, yes. Q. Put it this way, you weren't clear how the rule was to be applied, is that correct? A. Yes. Q. You didn't quite know the meaning of it, and what your obligations were, is that correct? A. Yes. Q. As you said quite fairly, you measured nothing, you left the tape in the car? A. Yes. Q. You didn't see [NAME] measure anything, did you? A. No, I didn't see. Q. Or anybody else? A. No.

1. In cross-examination, [NAME] gave evidence about a number of trees on the site which were marked with pink paint. He indicated that the fact that a tree was marked pink indicated that it was intended to be felled and stated that he was responsible for painting them (at [NAME], 23 October 2018, p 426(33)). He gave the following evidence in relation to instructions to mark the trees (at [NAME], 23 October 2018, p 427(9-17)): Q. Probably three or four. And do I take it that you painted those trees because you believed they could be cut down? A. No, they were pointed out. Q. By [NAME]? A. Yes. Q. Did you measure those trees before you painted them? A. No. 1. [NAME] asked whether [NAME] was fabricating his evidence in relation to this direction (at [NAME], 23 October 2018, p 427(27) – 428(1)): Q. See, that's the first time you've mentioned [NAME] pointing out trees that were painted by you; correct? That's the first time today, isn't it? A. Yes. Today, yes. Q. Because you're making it up to attribute blame to [NAME], aren't you? A. No. Q. Because you've got a problem: you were part of what happened on that site in the days leading up to 21 October? A. No. Q. You didn't tell [NAME] that you were painting trees on [NAME]'s instructions, did you? A. No. Q. Did you discuss with [NAME] - I withdraw that. Did you tell - I take it over how many I withdraw all of those questions. Over how many days did you paint trees, [NAME]? A. It would have been just occasion. Q. One occasion? A. Yes. Q. And you can't recall the date, can you? A. I can recall now where the trees are - were. So it's towards the end. 1. [NAME] marked the approximate location of the trees which he marked with pink paint on an aerial image of the site, which became an exhibit in the proceedings.

2. During the second tranche of days that [NAME] spent at the site (the days which he said fell after the Labour Day long weekend), [NAME] stated that the defendant was not on the site whilst he was there and that the work was further progressed. 3. [NAME] stated that the next time he had contact with the defendant was at the defendant's property in Killara to receive payment around two days after he finished the work. He said that the defendant asked to speak in his garage. Also present were [NAME] and a friend or associate of the defendant's whose name [NAME] did not know. It has since been established and is uncontroversial that this man was [NAME], the defendant's agent.

4. During the meeting in the garage, [NAME] stated that the defendant told the group that he had received a letter from Ku-ring-gai Council but that he had not yet opened it.

5. In his examination-in-chief, [NAME] described the further conversation during that meeting as follows (at [NAME], 22 October 2018, p 331-332(31-4)). Q. What makes you say that he was concerned? A. Sorry. [NAME] said, to say, that he was concerned that the work somebody had reported the work. He asked if one of us wanted to be responsible, take responsibility for the work that had been done. He would look after the financial side. Q. When you say he would look after it, we're only asking you about what [NAME] said; do you understand? A. He said if there is a fine, he would cover the fine. Q. Sorry, did you say anything in relation to that matter? A. I was more - no, I was more just taken aback by it, because I didn't - there was no - [NAME] Q. You didn't say anything? A. No. 1. [NAME] stated that after this exchange, the defendant asked to see him and [NAME] separately. He said that it was in these separate meetings that each was paid for the work they had carried out. [NAME] stated that he was paid about $1,800 in cash in an envelope.

2. There is some dispute in the case as to the time at which the meeting in the defendant's garage took place. In his examination-in-chief, [NAME] gave the following account of the timing (at [NAME], 22 October 2018, p 333(29) – 334(10)): Q. After that occasion - sorry - do you know - are you able to tell [NAME] what day that meeting occurred on that was in the garage or not? A. It was either on a Sunday or late on a weekday, because it was - I thought it was on a Sunday, but it might have been - it was after hours or a day that we weren't working or in work clothes at the time. Q. Did you ever after that occasion attend the property at [ADDRESS], East Linfield? A. Yes. Q. In relation to when that meeting took place at the garage of [NAME]'s house, when did you next attend the [NAME]? A. I think it was the day that council were there. Q. Just in relation to the meeting though that occurred in the garage, how long after that meeting, are you able to say, was the occasion when you returned to [ADDRESS]? A. It might have been one or two days, after that. Q. Why did you return to [ADDRESS] after that meeting? A. We were asked to tidy up, do a last bit of tidying up, on the– Q. Who asked you? A. [NAME]. Q. When did he ask you? A. At the meeting in the garage. Q. What did he ask you? A. He said if, he said to me and to [NAME], if you can go there and just tidy the site, remove the rest of the branches that are there. I believe it was that. 1. [NAME] stated that whilst he was on his way to the site, returning pursuant to the further instructions the defendant gave him (it is accepted that he returned on 21 October 2014), he received a call from [NAME] (at [NAME], 24 October 2018, p 463(42-49)): Q. You nonetheless received a phone call from [NAME], is that the position? A. Yes. Q. What did [NAME] tell you on the phone? A. He said there were council were there, and not to come up. Q. Did he tell you why you shouldn't come up? A. He said, there's council all over the site.

1. Notwithstanding this phone call, [NAME] said that he did return to the site and that when he arrived, he was stopped by officers from [NAME] in the street. He said there were a lot of cars in the cul-de-sac of [ADDRESS].

2. When he arrived at the site, [NAME] said that a "ranger" from [NAME] took his name, details and car registration, as well as the name and details of [NAME] who was with him in the car, and then told them to leave (at [NAME], 22 October 2018, p 334(47-49)). [NAME] said that they then left and did not return to the [NAME] to complete the work. 3. [NAME] gave evidence that he spoke to [NAME] later that day about what had transpired on the site. He said that this happened towards the end of the day and that the discussion was about "what had happened that day with the council there. It was just updating me, of the events that happened" (at [NAME], 22 October 2018, p 335(26-27)). 4. [NAME] gave evidence about further contact with [NAME] as follows (at [NAME], 22 October 2018, p 335(35) – 336(1)): Q. After that occasion, did you have any further contact with [NAME]? A. Yes. Q. When did you have contact with [NAME] after that occasion, that is, after you spoke with him on the afternoon of the day that you'd been told to leave the site by the council officer? A. I believe it was probably a couple, a year, about a couple of years later. When he called me up, informed me that there was a private detective, or an investigator, rather, from the council, who wanted to talk to us. He either told me he had been interviewed, or was to be interviewed. And so that was the first, he contacted me and told me. Told me that. Q. Can you remember the substance of the discussion you had with him about that? A. It, it wasn't a huge long conversation. It was basically just about being interviewed, I think them trying to find me. Cause at the moment, I think the Ku-ring-gai council couldn't find me to notify me. 1. [NAME] asked [NAME] whether he recalled [NAME] telling him that it would be good for him to speak to [NAME]. [NAME] agreed that he could remember it and described the conversation as follows (at [NAME], 24 October 2018, p 478(12-35)): Q. What's your recollection of it? A. Yes, he informed me that I should speak to [NAME], sorry, [NAME]. And it was important to do so. [NAME] Q. I think the question was‑‑ A. Sorry. Q. ‑‑do you recall that [NAME], coming to see you, and suggesting that it would be good for you to speak to [NAME], that was the question you were asked. I wasn't quite sure of your answer? A. I remember speaking to [NAME]. When he came to me, was when he came to do a job for me. I'm not sure of the times, the dates. Q. I think the word in the question from [NAME], you said the word "good." That [NAME] suggested it would be good for you to call [NAME]. That was the way it was put to you? A. Yes, your [NAME]. [NAME] Q. You understood [NAME]'s question? A. Yes, yes. He said it would be good for me to speak to [NAME].

1. In cross-examination, [NAME] accused [NAME] of fabricating his account of the instructions [NAME] said he received from the defendant to carry out the further work cleaning up the site at a meeting in the defendant's garage (at [NAME], 23 October 2018, p 417(7-44)): Q. You see what you are putting to this Court is a fabrication, isn't it, in relation to what happened on the site on 21 October 2014. It's a fabrication, isn't it? A. No. Q. Because you did not attend the meeting with [NAME] and [NAME] until two days later, 23 October? A. That I don't recall. I thought it was before. Q. And you knew when you attended the meeting with [NAME] through our conversation with [NAME] that the council were involved and looking at your conduct and [NAME]'s conduct? A. No. Q. [NAME] in your presence tell [NAME] that [NAME] had already spoken to [NAME]? A. No. Q. You see in your record of interview with [NAME], you told [NAME] that it was [NAME] who took your details, didn't you? A. Yes. Q. Now which version is true, that the ranger took your details or [NAME] took your details? A. I assumed she's the ranger. Q. Pardon? A. I call them all rangers, the council people over there. 1. [NAME] gave evidence that he was not aware of the involvement of [NAME] until he attended the meeting in the defendant's garage and that he only attended the meeting in order to be paid. 2. [NAME] proffers as an explanation for the confusion which arises in the evidence at this point that there were in fact two meetings in the defendant's garage, one before the further tidying up which took place on 21 October 2014 and one which occurred afterwards on 23 October 2014 when [NAME] was known to be investigating the works that had been carried out. This is discussed further below. 3. [NAME], on behalf of [NAME], sent a letter to [NAME] on 9 December 2014. The letter, which is in evidence, was sent to the property in Lindfield at which the car [NAME] drove to the site was registered. [NAME]'s father, a retired solicitor who is also named [NAME], replied to the letter saying that he ([NAME] Sr) had no knowledge of the felling of trees at the [NAME]. 4. [NAME] gave evidence in respect of the letter of 9 December 2014 as follows (at [NAME], 23 October 2018, p 432(14-49)): Q. At any stage did you discuss with [NAME] the contents of that letter? A. No. Q. Are you saying on oath that [NAME] at no stage after he received that letter said to you, "Son, what's this all about?" A. No, [NAME] dealt with it. Q. Pardon? A. [NAME] dealt with it and with the council. Q. [NAME] dealt with it? A. Yes. [NAME]'s not well, so‑‑ [NAME] Q. [NAME], did that letter come to your attention? A. Yes. Q. When? A. It would have been‑‑ Q. In respect of what may have been said by either of your parents, when did you become aware of that letter? A. Yeah. I suppose as soon as we received it in the mail. [NAME] Q. And it having come to your attention, either through [NAME] or [NAME], what did you do about it? What did you do about it? A. I sat on it. Q. Pardon? A. I did nothing about the letter. Q. You ignored it? A. Yes.

1. The following day, [NAME] showed [NAME] three letters from [NAME] and asked him which was the one he "sat on" (at [NAME], 24 October 2018, p 450(23) – 451(37)): Q. It must have been one of them, obviously; correct? A. I made an assumption. Q. Yes. You assumed it was one of the letters you sat on from council? A. No, I made an assumption of what I must have done, because I couldn't remember what happened back in 2014 ‑ 15. Q. And not only did you sit on it, you did nothing about the letter and you ignored it; that's what you said. Which was the letter that you ignored, [NAME]? Which was the letter that you ignored? A. I can't answer that question. Q. Pardon? A. I can't answer that. Q. But it was one of those letters, obviously, wasn't it? The copies which you brought to Court, it was one of those letters, wasn't it? A. These ones? Q. Yes. Any of the three letters from council. It must have been one of those letters, logically. A. (No verbal reply) [NAME]: Might the record show a pause. WITNESS: Okay, so I thought it was a letter that I never received. I assumed what I would have done. [NAME] Q. I will have an answer, [NAME]. It must have been one of those letters of which you kept a copy ‑ in fact, the original ‑ you have the original letters from council? A. Yes. Q. Two of which were sent to [NAME], one addressed to you. Now, which was the letter that you sat on? A. I can't answer that question. Q. Pardon? A. I can't answer that question. Q. And you sat on it because you were concerned as to what it might have meant as far as you're concerned; correct? A. I can't answer that. Q. Pardon? A. I can't answer. [NAME]: Your [NAME], I would ask the witness be directed that he answer. [NAME] Q. To the best of your ability, [NAME] ‑ if your concern is a presumption or an assumption in the question, you're entitled to have that clarified, but you are required to answer the questions. You made some comments earlier in relation to ‑ you used the expression yesterday, "sat on." A. Yes. Q. You may have sought to withdraw that this morning. If that's what you're doing, you say that, but at the moment counsel is assuming that your expression that you sat on it is what you did. He wishes to know which letter you sat on. If that's not your evidence and not what you did, you're entitled to say that. A. I did not sit on that letter ‑ a letter. 1. [NAME] stated that when he gave evidence that he "sat on" the letter he had been making an assumption as to what must have happened. He said that he did not become aware of the letters sent by [NAME] until he was interviewed by [NAME] and that his father did not discuss the contents of the letters with him at any time.

The evidence of [NAME] 1. [NAME] is [NAME]'s nephew and works with his uncle as a contractor on a frequent basis. He first worked with [NAME] in around 2007. He stated that he was not present at the site for the entirety of the work and estimated that he was present around 50% of the time. 2. [NAME] described the work that was undertaken in the following terms (at [NAME], 26 October 2018, p 672(17-28)): Q. I want to ask you please, [NAME], to describe to the Court what works you did while you were there on that site? A. On the property. Excuse me. From the start of the job it was started off as pruning some trees just on that side bit where the stairs were, as I've pointed out there. I do remember there were some trees that got pruned there. Q. You're pointing as you say that to where you've marked the line of stairs? A. Yeah. Just up there – Q. All right? A – and then the work just started to gradually get more and more with smaller removals and then started to work its way down to that bottom section.

1. In relation to the nature of the work, [NAME] said there was a lot of cutting and removing of trees approximately 30cm in diameter. He stated that trees were cut from the base as close to the ground as possible. He said that they were then stacked and dragged to the top of the property where they were mulched in the wood chipper. 2. [NAME] gave evidence that he saw the defendant on the site whilst he was working (at [NAME], 29 October 2018, p 691(37-50)): Q. Did you ever see anyone who you understood to be the owner or occupier of the property while you were there? A. I did. Q. Do you know that person's name? A. Yes. Q. What is that person's name? A. [NAME]. Q. Could you tell the Court, where did you see him? A. Generally while we were doing the work, he would come down and kept on what we were doing. You know, just sort of, inform how much more he wanted done, and.

1. In the course of his examination-in-chief, [NAME] gave evidence in relation to instructions received from the defendant as follows (at [NAME], 29 October 2019, p 692(26-48)): Q. When you were carrying out the works in the area that you've marked this morning as "completely cleared." Are you able to say whether you were present during any conversation between [NAME] and [NAME] in that area? A. Not the majority of the time. I only heard conversations as such as, keep working, I want my money's worth, basically. Q. Who said that? A. [NAME]. Q. Where was he when he said that? A. It's a bit hard to try and describe where he was kind of standing, at the point. Q. Doing the best you can, approximately where was he when he said that? A. He would come down, as we were working, mainly dragging the stuff up, and he'd come down and check on the work, what we were doing. He'd come down while we were sitting down, and sort of question why we were sitting down. Q. Do you recall when you first attended the subject property, the occasion? I'm not asking about a date, but do you recall the occasion when you first started working there? A. I can't recall that, to be honest with you.

1. In relation to the frequency of the defendant's attendances at the site, [NAME] said (at [NAME], 29 October 2018, p 693(4-17)): Q. Are you able to tell [NAME] how often [NAME] attended the site while you were there? A. It could have been four times a week. Q. When you say, "four times a week," when you said that, did you have in mind how long the period was, when you were attending the site? A. Well, if I was working there for three days of the week, and working with someone else, he would be there the three days of me being there. [NAME] would tell me he's been down here, you know, approximately most of the time. Q. When [NAME] was present, as you've described, on the site in the areas where you were working, what work had you carried out when he was present at the site? A. Pretty much all the work that was involved.

1. When asked about what, if anything, he heard the defendant say while he was at the site, [NAME] gave the following evidence (at [NAME], 29 October 2018, p 693(36) – p 694(26)): Q. While you were present working on the site, did you hear [NAME] say anything about the work? A. It was more, you know, I want more work done, I kept cutting. I didn't hear every single conversation because I was actually sort of either having a break or, you know, maintaining our equipment that we were using, chainsaws, et cetera, or filling up the chainsaws or whatever we were using with, you know, petrol, et cetera. But I just saw a lot of conversations happening, a lot of hand pointing type thing, and when I did hear conversations going on it was, "I want that cut over there. I want that cut over there," just, you know, pointing. Q. And who said that? A. [NAME]. Q. When you were present on the site on the occasions that you could hear [NAME] saying anything, did you ever hear him say anything to the effect of, you've cut things down that I didn't want cut down? A. No, I didn't hear that? Q. When you were present on occasions when [NAME] was there, did you hear him say anything to the effect of, you've gone beyond what I asked you to do? A. No. Q. When [NAME] was present on the site, down the back, are you able to tell [NAME] whether you were working when he was present there? A. Yes. Q. And can you tell [NAME] what you were doing when [NAME] was present down in that back area of the site? A. Doing the land clearing out the back. Q. Do you have any idea of how many trees you cut down during that exercise? A. I couldn't give you an exact, precise number. There was quite a few, but like I said, some of the trees were the width of my finger, so very small trees. There could have been 500 of them; maybe ten at the most sort of bigger trees. Q. And when you say ten at the most bigger trees, what do you mean when you say bigger trees, when you gave that answer? A. Could have been 30 to 50 centimetres in diameter.

1. In cross-examination, [NAME] asked [NAME] about his relationship with [NAME] (at [NAME], 29 October 2018, p 706(28) – p 707(9)): Q. Your evidence is that you were subcontracting for [NAME]? A. That is correct. Q. Who is your uncle? A. Yes. Q. How long do you say you've been working with him? A. Since 2007. Q. You still work up until today? A. That is correct. Q. You continue to get work from him on a business basis? A. Correct. Q. He gives you, what, 60% of your work? A. 60, 50, but, it could [NAME], cause, you know, sometimes he might, might not have work for, you know, two weeks or something. So I've got work with other people. Q. I think you told [NAME], at that stage he was giving you – A. Yes. Q. – 50% of the work? A. Yes. Q. And you're working for him today, and up until today you're getting at least 50%? A. At least 50, yeah. Q. Possibly more? A. Yeah. 1. [NAME] was also asked about his understanding of the 10/50 Code. [NAME] stated that his understanding was that anything within 10m of your property you didn't need approval to clear but that anything within 50m "I assume that you sort of need approval" (at [NAME], 29 October 2018, p 709(41)).

2. He gave further evidence in relation to the 10/50 Code as follows (at [NAME], 29 October 2018, p 711(1-22)): Q. You see, I don't understand in any of your evidence that you personally measured the distances of any trees, did you? A. No. Q. Is there any reason why that never happened? A. At the end of the day I was just there to do the work, go home and get paid, really. Q. Yes, fair enough. And did you see anybody else use a tape measure to measure the distance of the trees from any particular spot or the boundary or house? A. No, nothing of that sort. Q. That wasn't done? A. No. Q. And do I take it the reason for that was you never found out about the 10‑50 rule until after council became involved? A. Pretty much, yes. Q. Is that right? A. That's correct. 1. [NAME] estimated that he was on the site for approximately 60% of the job, which he characterised as a "rough estimate" (at [NAME], 29 October 2018, p 750(31)). He said that he was not sure how long the job took but that he thought "it was three months or something like that, it could have been two months" (at [NAME], 29 October 2018, p 750(31-33)). He said that he was not present at the site for three weeks before officers from [NAME] attended (at [NAME], 29 October 2018, p 750(40) – 751(1)).

The evidence of [NAME] 1. [NAME] is [NAME]'s partner and gave evidence that he drove [NAME] to the meeting at the defendant's Killara property. He said that he did so "once, maybe twice" (at [NAME], 13 November 2018, p 1297(42)).

2. In cross-examination, [NAME] said that the reason he was not sure about the number of times he attended the Killara property was because of the amount of time that has passed since 2014 (at [NAME], 13 November 2018, p 1298(1-8)).

The evidence of [NAME] 1. [NAME] is a private investigator who was retained by [NAME] to investigate the offences the subject of these proceedings. Prior to becoming a private investigator, [NAME] worked for 13 years as a detective with NSW Police.

2. Two affidavits sworn by [NAME] were read in the proceedings. The first relates to his investigations concerning [NAME] and [NAME] and the other relates to his investigations concerning [NAME].

3. On 29 July 2016, [NAME] interviewed [NAME] and [NAME]. They were working together on that day and [NAME] conducted separate interviews with each of them in his car. The audio recordings and transcripts of those interviews became evidence in the proceedings (albeit the use to which they could be put was limited under s 136 of the Evidence Act 1995 (NSW) ('Evidence Act'): see Ku-ring-gai Council v [NAME] (No 12) [2018] NSWLEC 184 ('[NAME] No 12') at [44]).

4. On 19 August 2016, [NAME] interviewed [NAME]. [NAME] was also present during the interview. The audio recording and transcript of the evidence became evidence in the proceedings for a limited purpose pursuant to s 136 of the Evidence Act (see [NAME] No 12 at [44]).

5. In cross-examination, [NAME] was asked by [NAME] about investigative techniques and approaches and agreed to the following propositions:

1. It is important to keep an open mind during investigations (at [NAME], 29 October 2019, p 760(28-40));

2. It is important to keep witnesses separate (at [NAME], 29 October 2019, p 760(48));

3. Witnesses should never be interviewed together because there is a chance of contamination and the witness with the stronger personality may overbear the witness with the weaker personality (at [NAME], 29 October 2019, p 760(50) – p 761(6));

4. Witnesses should be put in separate rooms so they cannot talk to each other to ensure that they give their version of events and not an amalgamated version (at [NAME], 29 October 2019, p 761(18-30));

5. It is important not to suggest material to witnesses as to do so may influence what they say and deprive the investigator of the ability to check what the witnesses actually know (at [NAME], 29 October 2019, p 761(28-40));

6. By imparting information to a witness, he or she is put on notice in relation to specific issues which may mean that a complete and independent version of what occurred cannot be obtained (at [NAME], 29 October 2019, p 761(38) – p 762(4));

7. He would not allow [NAME] to "infect" [NAME] with a different version of events (at [NAME], 29 October 2019, p 762(10-15));

8. Where it is within his control, he would not allow [NAME] to come into contact with [NAME] unless he had an independent version of facts from each of them (at [NAME], 29 October 2019, p 762(25-41));

9. He would interview witnesses separately "so I don't contaminate what each other says. So I get individual information from each person. Their record of events" (at [NAME], 30 October 2019, p 810(13-14)); and 10. If he ever became aware during an interview that multiple witnesses were present, he would separate them straight away (at [NAME], 30 October 2019, p 810(48-49)). 1. [NAME] agreed that when he was retained by [NAME] in January 2016, [NAME] was experiencing difficulty in locating each of [NAME] and [NAME]. As noted above, [NAME]'s attempts to contact [NAME] had resulted in a letter being sent by [NAME]'s father, a retired solicitor also named [NAME]. [NAME] Sr informed [NAME] that he had no knowledge of the commission of the offence.

2. On 15 July 2016, [NAME] had a phone conversation with [NAME] in which [NAME] asked [NAME] if he had made contact with [NAME]. [NAME] was cross-examined about this conversation, by reference to one of his affidavits, as follows (at [NAME], 30 October 2018, p 808(16-39)): Q. Page 3 at the top of the page, the last sentence in the first paragraph, you said, "Do you have some time next week for me to speak with you?" Do you see that? A. Yes. Q. And [NAME] says, "Yes, I have some time. Have you spoken with [NAME]?" Do you see that? A. Yes. Q. And you said, "No, not yet, but I would like to speak with [NAME] as well." And then [NAME] says, "We can both speak with you at the same time." Do you see that? A. Yes. Q. That's a bit odd, isn't it, for a potential witness to say that to you? A. Not ‑ but I clarified that below by saying, "We can, but I still need to speak with you separately," so you know, that's ‑ if they both‑‑ Q. In fact‑‑ A. Yes? Q. I'm going to take you to that now. Your answer was, "We can, but I will still need to speak with each of you separately." A. Yes.

1. On 29 July 2016, in the course of interviewing [NAME] asked [NAME] whether he had contacted [NAME], whom [NAME] was still experiencing some difficulty in locating. He was asked about this in cross-examination (at [NAME], 30 October 2018, p 783(22-45)): Q. If I can continue with paragraph 10. You'll see there, [NAME] says to you, "He says he's got no problems speaking with you, but don't give him my phone number out." You then said, "Okay, it would be good to speak with him. He may be able to corroborate what was said." Do you see that? A. Yeah. Q. You meant by that, that he, [NAME], could corroborate [NAME] as to what was said at a material time? A. That's correct. Q. [NAME] replied, "If we are in the right, what's going to happen with [NAME]?" Do you see that answer? A. Yes. Q. You agreed that when he says, "If we are in the right," he's talking about he and [NAME]? A. I could assume that that's what he may have meant. Q. Given the previous question by you? A. Yes, yes. Q. Then he went on to say, "What's going to happen with [NAME]," and you understood him to mean [NAME]? A. That's correct. 1. [NAME] asked [NAME] whether, with the benefit of hindsight, it would have been better not to use the word "corroborate" (at [NAME], 30 October 2018, p 797(26-50)): Q. [NAME], I'm putting this question to you: you knew the effect it would have on both [NAME] and [NAME], using those words in getting their heads together? A. No. Q. You knew that, didn't you? A. No. Q. Yes. Do you agree, at the very least, it might be taken by [NAME] as an encouragement to get [NAME] to corroborate him? A. No. Q. Do you agree, with the benefit of hindsight, it would have been wise not to have used those words in the context of attempting to interview [NAME], with the benefit of hindsight? A. It may have been a better choice of words could have been used. Q. Why? A. Well, because you're saying ‑ you're saying that‑‑ Q. Now I'm asking you why. A. Yes, but you're saying that it appears that the words ‑ that from those words that [NAME] and [NAME] might have got their heads together, when I say corroborate what was said. So maybe for the Court's purposes it might have been better to use a different word.

1. On 1 August 2018, [NAME] texted [NAME] noting that [NAME] had not contacted him. He was cross-examined on this point as follows (at [NAME], 30 October 2018, p 784(1-23)): Q. On 1 August 2016, you were still looking for [NAME], it would appear, that's some two days later, because you text [NAME], and said, "[NAME] has not contacted me. It would be helpful if I could speak with him. Thanks, regards, [NAME]." Do you see that? A. Yes. Q. I take it you still did not have [NAME]'s number? A. No, [NAME]'s number was there, cause it was on his website, back in February. Q. Why didn't you ring it yourself? A. I, I – Q. What prevented you from ringing it yourself? A. Well, nothing, really. Q. Don't you understand, and having interviewed [NAME], and then using [NAME] as a conduit to [NAME] and [NAME] may talk about what happened? A. That's a possibility, yes. Q. And there's a danger of contamination, if they get their heads together? A. That is a possibility.

1. On 2 August 2016, [NAME] received a phone call from [NAME]. [NAME] made a contemporaneous file note of the conversation which he read onto the transcript (at [NAME], 30 October 2018, p 788(28-36)): "Received phone call from [NAME]. I spoke with [NAME]. He told me that he was too busy to contact you yesterday. I told him that he needs to speak with you to get the whole thing resolved as soon as possible. [NAME] is trying to blame us. I told him all he has to do is to tell [NAME] your side of the story, that's all he wants. I said, yes, I would like to speak with [NAME] as soon as I can and arrange an interview with him. [NAME]: [NAME] told me that he will contact you. I said, that's good. I will contact you tomorrow afternoon if I don't hear from you." 1. [NAME] asked [NAME] about this phone conversation whereupon [NAME] gave evidence as follows (at [NAME], 30 October 2018, p 789(12-40)): Q. And as an investigator of some 15 years, there are two things which you would be concerned about, would you not: first of all, he and [NAME] have obviously discussed the matter for [NAME] to tell you that [NAME] was trying to blame both of them; do you agree with that as a matter of logic? A. That could be a possibility, yes. Q. And it's also a possibility for contamination, isn't it, both of them getting their heads together before [NAME] speaks to you? A. That could be a possibility. Q. Yes. And he goes on to say, "I told him all he has to do is to tell [NAME] your side of the story, that's all he wants." Now, you could read into that as an investigator that he and [NAME] have discussed what [NAME] might say to you? A. No, I wouldn't say that. Q. What else could it mean, given the context and tenor of what you've just read out? A. Well, to tell me what his version of events are. That's not‑‑ Q. Yes, after ‑ after‑‑ [NAME]: Sorry, he hadn't finished his answer. [NAME] Q. I'm sorry, I didn't mean to cut you off. I apologise, [NAME]. A. Yes. To tell me his version of events, that was all. I don't read anything into that at all. 1. [NAME] texted [NAME] again on 4 August 2016 saying that [NAME] had still not contacted him. [NAME] asked what prevented [NAME] from contacting [NAME] directly (at [NAME], 30 October 2016, p 786(10-31)): Q. What prevented you from doing it? A. I think, vaguely now ‑ and I can't say this is correct ‑ I know that when council contacted ‑ or attempted to contact him earlier in regard to an interview, his father had sent back a message, he was a retired solicitor, a fairly strongly worded message, so I think I might have been concerned about trying to do it in a way where [NAME] was comfortable with speaking with me, so ‑ and the conduit to that would have been [NAME], so I went through him. Q. I understand your point about the letter by [NAME]'s father, but what I don't understand is why you did not phone him directly on the number you already had. That's what I don't understand. A. Look, I can't recall. Q. Pardon? A. I can't recall. Q. That would have been the better approach, wouldn't it? A. Well, I did speak with him later by phone. Q. No, I understand that. A. But, look, I can't recall.

1. At around 10:00am on 4 August 2016, [NAME] called [NAME]. [NAME] gave evidence of that conversation as follows (at [NAME], 30 October 2018, p 791(1-33)): Q. Could you read out your note of the conversation between yourself and he in relation to the first phone call, if you will? A. Yes. So, "[NAME] contacted me on his mobile phone. He said, 'Hello, it's [NAME].' I said, 'Hello, [NAME], thank you for contacting me. I want to speak‑‑ Q. Slowly, please? A. "'I want to speak with you about work at [ADDRESS], in late September, early October, where trees were removed from that property. Either side of the property, and rear on [NAME]. I want to do a record of interview which will be electronically recorded. I'll provide you with a copy of the record of interview.' [NAME] said, 'I probably can't tell you much.' I said, 'I just want the facts about the work.'" Q. I'll stop you there. Would you agree, given what you already knew, and given your interview with [NAME], at the very least, [NAME] was pretending not to know much? A. To be, I don't think I'm in a position to answer that question, because I don't know what was on his mind at the time, so I don't know. And‑‑ Q. You accepted [NAME]'s version, who implicates [NAME] in being on the site at material times. The fact that [NAME]'s saying "I can't tell you much" is inconsistent with [NAME]'s version, is it not? A. Well, yes, with [NAME]'s version, it is inconsistent, yes. Q. Then he rang you back at 10.37, did he not? A. That's correct. He didn't ring me back, it was a text message. Q. Would you read out the text? A. "Hi [NAME], I'm unable to assist you in this matter, [NAME]."

1. On 5 August 2016, [NAME] sent another text message to [NAME]. He gave evidence in relation to that message as follows ([NAME], 30 October 2018, p 792(11-35)): Q. Can I now show you a further text message by you to [NAME]? A. Yes. Q. Dated Friday, 5 August, at 3.06pm. Would you read out your text message to [NAME] on Friday, 5 August at 3.06pm? A. "[NAME] rang me yesterday, I spoke about doing an interview. He told me that he would contact me later in the afternoon, once he'd planned his work he has. He sent me a text a little over half an hour later, informing me that he cannot assist me. However I will still need to speak with [NAME]. I thought he may have been a little more obliging. Regards, [NAME]." Q. Again, you reverted to using [NAME] as a conduit, do you agree with that? A. Yes. Q. Why did you use [NAME] as a conduit, given you'd already spoken to him yourself? A. Look, I don't know whether, I don't know. I can't recall. Q. You're really facilitating for [NAME] to get on side with [NAME], by using [NAME] as a conduit, aren't you? A. No, not really. 1. [NAME] confirmed that he had a copy of the file note [NAME] prepared in respect of her conversation with [NAME] when she first attended the site. [NAME] agreed that he had not asked [NAME] about any of the things he said to [NAME] on that occasion and further agreed that the account [NAME] gave [NAME] could not stand with the answers he gave in his interview with [NAME]. 2. [NAME] gave evidence that, during the course of his interview with [NAME] on 29 July 2016, which took place in [NAME]' car adjacent to a property in Woollahra where [NAME] and [NAME] were working, he showed [NAME] an aerial photograph of the site after it had been cleared and asked [NAME] to mark the areas which he had cleared. He showed the same photograph including the markings which [NAME] had made to [NAME] during his interview with the latter which [NAME] conducted immediately after his interview with [NAME]. [NAME] cross-examined [NAME] about the propriety of this approach as follows (at [NAME], 20 November 2018, p 823(48) – p 824(33)): Q. Then you go on and say, "So that's where it's already marked by [NAME]. So there is red biro there marked by [NAME] and blue biro marked by [NAME] as well where he said that the area was cleared." Then you say, "Is that the area that was cleared?"; do you see that? A. Yes. Q. Asking for his answer? A. Yes. Q. You've already given him [NAME]'s answer? A. Yes. Q. Do you think that might lead to contamination? A. I thought he might have showed me whether there were additional areas, that's all. Q. Pardon? A. I thought he may have showed me any additional areas that have been cleared. Q. Yes. But you've already assisted him by putting to [NAME]'s version, had you not? A. That's correct. Q. And don't you think that might amount to contamination in relation to a material issue? A. It may do. Q. Yes. In relation to how much was cleared or how little was cleared? A. It could do, yes. Q. Yes. And with the benefit of hindsight, do you agree that should not have been done? I'm not sure why you're smiling, [NAME], it's a serious question. A. Well, because, [NAME], I showed him a map that was marked by [NAME].

1. When pressed why he did not use a clean copy of the aerial photograph when interviewing [NAME] gave the following evidence (at [NAME], 30 October 2018, p 826(7-29)): Q. Given the importance of the issue in relation to what was cleared, what prevented you from using another copy, a clean copy, when showing [NAME]? A. I don't think I had another copy of the map at the time. I don't recall having another map. Q. But you knew you were going to interview [NAME]? A. Yes. Q. Yes? A. No, I didn't. No, I didn't. Q. All right. But it would have been easy enough to obtain another copy given your position as an inquiry agent? A. Well, not at the time. I was out in the field. I was out at a location where [NAME] was clearing trees from a property at Woollahra. I wasn't aware where [NAME] was. I wasn't aware that [NAME] had been to the property at [ADDRESS] until that morning, until I spoke to [NAME] on the side of the road. Q. So I take it from that answer, if you had a clean copy you would have used it? A. If I had a clean copy I could have used it, yes. 1. [NAME] asked [NAME] why he allowed [NAME] to be present whilst he interviewed [NAME]. [NAME] agreed that he knew that [NAME] was a work colleague of [NAME] but said he did not know that [NAME] had been at the site at material times.

2. The fact that [NAME] had been at the site emerged during [NAME]' interview with [NAME] and [NAME]. [NAME] asked [NAME] about that as follows (at [NAME], 30 October 2018, p 841(1-12)): Q. By that stage, it was abundantly clear that [NAME] was also present at material times, do you agree with that? A. Yes. Q. What prevented you from terminating the interview until such time as [NAME] removed himself from the interview room? A. Nothing. Q. Do you understand that by allowing him to remain, he could possible contaminate the interview by answering questions in front of, or in the hearing of, [NAME]? A. That could be a possibility. 1. [NAME] agreed that he showed [NAME] and [NAME] a copy of the aerial photograph which had been marked by [NAME] in the course of [NAME]'s interview and agreed that certain contributions made by [NAME] "could be" contamination of [NAME]'s evidence (at [NAME], 30 October 2018, p 860(38)) and that [NAME] was "peppering" the interview "with salient points at different times" (at [NAME], 30 October 2018, p 861(40-42)).

2. In re-examination, [NAME] asked [NAME] his perception as to whether collusion had taken place in respect of his interview with [NAME] (at [NAME], 31 October 2018, p 901(5-10)): Q. I'd like you to read as much of that interview of [NAME], the transcript of which you have as MFI 7, as you need to, to tell [NAME] whether anything of what [NAME] said to you, was suggestive in your mind of him having colluded with [NAME]? A. There is nothing in there, your [NAME], that would cause me to think that there has been collusion between [NAME] and [NAME].

The evidence of [NAME] 1. [NAME] is a tree management officer employed by [NAME] and the officer at [NAME] in charge of the investigation of the offences. In her affidavit of 29 September 2016, she deposed that she first became aware of the tree clearing at the site when she received a complaint from a local resident, [NAME], on 13 October 2014. She attended the site on 16 October 2014 and observed that trees had been felled. Later that day, after checking that there had been no approvals granted for the works at the site, she issued a "stop work" order which she hand-delivered to the defendant's home address in Killara.

2. She attended the site again on 21 October 2014 accompanied by a number of other officers from [NAME] who assisted her to tag and photograph the stumps of all of the trees that had been felled. [NAME] recorded in her affidavit that when she attended the site on that occasion the trees appeared to have been felled recently as evidenced by fresh wood shavings, sap staining and the colour of the timber stumps.

3. The trees the subject of the charge in these proceedings are those which had a diameter of over 150mm and were therefore protected by the TPO. [NAME] said that 10 of the 74 tree stumps were marked with pink paint. 4. [NAME] said that she instructed a surveying firm, [COMPANY], to prepare a survey which showed the location of each tree stump tagged by officers from [NAME]. [ADDRESS], [NAME] marked on the map each of the 10 tree stumps which according to her observations on the site were marked with pink paint.

5. After the preparation of the survey, [NAME] returned to the site and measured the distance between each of the trees that had been removed closest to the house and the external wall of the house. The trees she measured were trees numbered 63, 75, 101, 102 and 104 on the survey. She stated that none of these trees was situated within 10m of an external wall of the residence at the [NAME]. 6. [NAME] gave evidence that she spoke to [NAME] on 21 October 2014 when she attended the site. She gave evidence of this conversation in cross-examination as follows (at [NAME], 5 November 2018, p 1047(23) – 1048(5)): Q. Do you see there you caution him as to his right to be silent - I understand that - then you went on to say, "Can you tell me what you're doing here?" and [NAME] said, "I'm waiting for the owner to arrive," and you said, "Who are you waiting for?" and he said, "[NAME]." A. Yes. Q. Can I suggest to you that on 21 October 2014 at no stage whilst you were there did [NAME] arrive at the property, did he? A. I did not see [NAME]. Q. You then asked him his full name, his contact number? A. Yes. Q. And other details, and then at paragraph 26 you said, "Who do you work for, [NAME]?" and he said, "[NAME], it's my business," and then you asked him this question, "Thank you, [NAME], so can you tell me what's happening here, how long have you been working at this property?" and he said, "We started here a week ago but I haven't been to the site before today." Do you see that? A. Yes. Q. And he then went on to say, "We're felling a Casuarina within 10 metres of the house, which is okay." Is it fair to say that when you did your own investigation there was no Casuarinas cut down within 10 metres of the house, were there? A. No. Q. Pardon? A. Not within the dwelling - no, not within 10 metres of the dwelling.

1. She gave further evidence of her conversation with [NAME] as follows (at [NAME], 5 November 2018, p 1060(19-35)): Q. Just on that point, [NAME] said, "We didn't remove any trees on the lower section at any time, just small shrubs. The trees down the lower section are not from us." See that? A. Yes. Q. And then you said okay to that and then he said, "I'm not going to give any more information about this. We were here Saturday and no‑one asked us to stop working." Do I take it you would have asked him further questions but for that statement by him? I mean, you were interested in getting information so obviously you would have asked him further questions, correct? A. It was ‑ I think from the interview that I had with [NAME] I was getting this amount of information and he was ‑ my opinion of him was starting to get a little unsettled or just maybe uncomfortable perhaps, so I was just trying to get as much as I could in what was, I thought could be‑‑ Q. Achieved? A. At that time.

1. While she was at the site on 21 October 2014, [NAME] stated that she saw a person talking to [NAME] upon her arrival. This evidence is discussed later in the judgment in the context of a submission made by the defendant about the credibility of each of [NAME] and [NAME]. [NAME] gave the following evidence in cross-examination (at [NAME], 5 November 2018, p 1067(36) – 1068(24)): Q. And your observation was that you saw [NAME] walking around the property of sorry, you saw the driver of the Nissan Navarra walking around the property of [ADDRESS] with [NAME]? A. Yes. Q. And that was the truth, wasn't it? A. I was referring to the top section of the property, yes. Q. I'm not suggesting where he was, but he was walking around with him, wasn't he? A. He was at the top of the property with him, yes. Q. Walking around with [NAME]? A. Yes. Q. Now, did you speak to [NAME] at the time you saw him walking around with [NAME], whether he was at the top of the property or down on the property? A. No. Q. Did any other council member speak to [NAME]? A. I'm not aware of that. Q. Who was in charge of the group of council officers who came to the property? A. I don't believe that there was anybody in charge specifically, but I was managing what was occurring on the property. Q. And you asked these people from council to come with you? A. Yes. Q. Yes. You spoke to [NAME]; correct? A. Yes. Q. Do you recall personally ever speaking to [NAME]? A. No. Q. Do you recall any member of your group speaking to [NAME]? A. No.

1. Later in [NAME]'s cross-examination, she identified the person who was speaking to [NAME] at the top of the property as [NAME] in the following exchange (at [NAME], 6 November 2018, p 1132(4-23)): Q. Yes. The only person you spoke to was [NAME]? A. Yes. Q. Do you know where that other person went whilst you were speaking to [NAME]? Did he leave? What did he do, can you recall? Just think for a moment. A. [NAME], I'm not sure. Q. We're talking about‑‑ A. Are we talking about the man with the‑‑ Q. ‑‑[NAME], who was in the car ‑ in the other car? A. I was talking to [NAME] down at the ‑ down further behind the house and I saw [NAME] talking to‑‑ Q. [NAME]? A. ‑‑[NAME] at the top.

1. However, in re-examination, [NAME] gave the following account of this person (at [NAME], 6 November 2018, p 1159(17-31)): Q. As recorded in the transcript at 1047 lines 10 and following you told the Court that there was a man using some sort of blower who was smoking a cigarette with a face mask on his head? A. Yes. Q. And I think you cleared up what you meant by that that it was one of those dust masks which the guy had moved from his face up to his head? A. Yes. Q. You've told the Court, I understand today, that you didn't speak with that man, is that right? A. No. Q. Do you know who he is? A. No. 1. [NAME] asked her further questions on this point as follows (at [NAME], 6 November 2018, p 1169(33) – 1170(6)): Q. When you agreed that to the best of your recollection this was the driver of the Nissan Navara, on what basis did you recall he was the driver of the Nissan Navara; how did you know that? A. Because he was sitting in the vehicle when we came up; he was sitting in the vehicle. Q. Whereabouts was the vehicle? A. The vehicle was facing towards Little Diggers track. Q. On the street? A. On the street. Q. As you sit here now, have you ever seen [NAME]? A. Not that I recall, no. Q. Do you know what he looks like? A. Roughly, yes. Q. Do you know whether the person that you saw that you saw in the driver's seat of the black Navara is or is not [NAME]? A. No. Q. When you say no? A. No, I don't know that that is [NAME].

1. Finally, [NAME] asked her the following questions in relation to this point (at [NAME], 6 November 2018, p 1170(37-45)): Q. You remember being asked this question, "Do you recall any member of your group speaking to [NAME]?" and you said no, do you remember that? A. Yes. Q. What I'm asking you is this, is it possible that a member of your group may have spoken to a person you're referring to in that answer as [NAME] while you were doing something somewhere else on the site? A. Possibly.

1. After her attendances at the site, [NAME] experienced difficulties in locating each of [NAME] and [NAME]. She had taken [NAME]'s address from his licence only to find that he no longer lived there. From [NAME]'s licence plate she obtained the address at which his vehicle was registered but this also proved fruitless (as noted above, [NAME]'s father replied to a letter sent by [NAME] saying he had no knowledge of the tree clearing). Subsequently, in January 2016, [NAME] retained [NAME] to locate [NAME] and [NAME].

The evidence of [NAME] 1. [NAME] is a builder who was engaged by the defendant to carry out remedial work at the [NAME] after it had been damaged by fire some time before the incident the subject of these proceedings. He gave evidence that the works with which he was involved included the installation of a heavy structural beam in two parts.

2. When at the site to carry out the work, [NAME] described the [NAME] in the following terms (at [NAME], 2 November 2018, p 1015(41 – 1016(10)): Q. And you were concerned that for jobs to go ahead from your point of view from a building safety point of view the area had to be cleared? A. Some sort of brush vegetation, yeah, there was, it had sort of been maintained, it looked like it had been maintained fairly regularly so it wasn't overly bushy, but yeah, there was shrubs and things Q. Did it look like it was ready to be cleaned up again? A. Not, no not particularly, we would have needed to clear a couple of things to get access to get the beam around. Q. What sort of things can you remember? A. Just off hand as I said, more, more to be like a shrubs rather than anything large, I mean there wasn't any large gum trees or anything like that in the road, it was more to do with sort of you know bushy type stuff that would get in the road of getting through. Q. And from your point of view did you tell [NAME] you were concerned about trip hazards? A. Well when you're carrying that sort of weight with that many people manhandling you need to have it reasonably clear. 1. [NAME] gave evidence that the defendant had considered building an extension to the dwelling at one stage which would have been an addition on the courtyard side of the house. An inquiry was made of a town planner as to whether a development application would be required for that work. [NAME] said that if it were the case that a development application would be required, the defendant would not have pursued the idea of an extension, but if it had been complying development he may have considered it. 2. [NAME] asked [NAME] about the defendant's reluctance to go ahead with the development application process (at [NAME], 2 November 2018, p 1017(29-37)): Q. Eventually for reasons I think you might have indicated, [NAME] did not go ahead with a DA did he? A. No, because I think because of the bushfire rating it was about or was a flame, what they call flame area I think it's is, bale(?) 40 [sic], something like that or frame. Q. And what is your understanding as to why [NAME] did not go ahead? A. Because it would have incurred a lot of cost to build to that fire rating standard is a fair bit of extra cost involved.

1. In early 2014, [NAME] called [NAME], a bushfire expert with whom he had worked previously, to ask if [NAME] would be interested in carrying out a bushfire assessment of the [NAME]. 2. [NAME] asked some questions about [NAME]'s impression of the defendant. [NAME] gave evidence as follows (at [NAME], 2 November 2018, p 1016(9-43)): Q. How long did you do work for him? A. Well pretty much from the time we came on site to look at the initial damage, we started probably six or eight weeks after that to start to do some remedial. Q. And how did you find him to deal with, firstly on a business basis? A. I have no problems [NAME] is a very astute, very reasonable and fair man. Q. Yes. And when you say reasonable and fair why do you say that? A. He's generally very thorough in what he does like if he's looking at something he generally looks at all aspects. Q. Was that your impression of him, was it? A. Yeah. Q. When you say, "generally very thorough," what do you mean by that, in what respects? A. Well, we had meetings to look to, planning meetings to try to get the project perspective accurate, and how it should be, or how we wanted it to be. Q. When you say, "how he wanted it to be," did he leave it to you to make sure what was to be done? A. I think there was a number of people involved, because some of the stuff, I don't have the expertise on all things. So, if we needed some input, I think we looked in the places where we could get the right advice. Q. Was it your understanding that [NAME] expected you to obey the regulations, obey the rules? A. Well, that's part of my profession, to go by the BCA, the Building Code of Australia. I've got to have a fairly good knowledge of it, but not every aspect do we have a, you know, an intimate knowledge of it. Q. Was it your understanding that [NAME] left it to you to follow the rules and regulations in your profession? A. In my profession, yeah. 1. [NAME] gave further evidence about this in re-examination, saying (at [NAME], 2 November 2018, p 1022(1-15)): Q. Do you remember answering a question [NAME] asked you by saying that [NAME] was thorough in what he did? A. I won't ‑ I won't ‑ I can't say about everything in life but I mean in building possibly not because it's not his profession. But I found he generally asked a lot of questions, he generally would look for information, he did research, yeah. It wasn't just something he sort of took off the top of his head normally. Q. And you said at one stage in the same context that you would have planning meetings, is that right? A. Well for the things that we were planning to do, yeah, we'd sit down and we might do a four hour meeting where we said, okay, all the elements that we were looking at doing and what are the best options, who do we get ‑ if we don't have the information or answer who do we get it from, yeah. So generally, you know, thorough in the way he went about trying to do what he did.

The evidence of [NAME] 1. [NAME] was the bushfire expert engaged in early 2014 to prepare a bushfire risk hazard assessment for the [NAME] which was to be submitted as part of a development application to repair the part of the house which had been damaged by fire. 2. [NAME] prepared two reports. The first report was prepared on 3 March 2014 and concluded that the house on the [NAME] was in a "high risk flame zone" and that clearing to a 25m setback to the south of the property was required in order to comply with the Building Code of Australia and the relevant Australian Standard and Planning for Bushfire Protection 2009.

3. In [NAME]' second report, which was prepared on 7 November 2014 (after the clearing the subject of the charge had been carried out), [NAME] concluded that, notwithstanding the clearing which had been carried out, the dwelling was still within the flame zone and recommended that 39m to the south of the [NAME] be cleared, including 25m within the defendant's property and 14m outside the property.

The evidence of [NAME] 1. [NAME] is the general manager of [NAME], a position which he has held since February 2012. He gave evidence that he was contacted by [NAME] on 20 October 2014 in relation to the unlawful clearing of land belonging to the golf club. 2. [NAME] said that he never gave the defendant consent to remove any trees from the golf club land and that, to the best of his knowledge, the defendant did not receive consent or approval from any other members of the golf club.

3. He attended the site with his course superintendent and described the clearing as follows (at [NAME], 5 November 2018, p 1085(35-39)): Q. What did you see when you say there was a clearing, what did you actually see? A. We saw freshly cut down trees, we saw a bundling together of those offcuts, we saw many of those offcuts pushed into a creek that runs through our property and it was a very, very extensive clearing of land.

1. On 21 October 2014, [NAME] said he received a phone call from the defendant. He said that the conversation took place at approximately 4:30pm and that he made a file note of it at about 5:00pm on the same day. He described the conversation in the following terms (at [NAME], 5 November 2018, p 1088(20-25)): A. [NAME] introduced himself as a concerned resident of [ADDRESS]. He was concerned about the need to clear property at the rear of his property for bushfire reasons. I asked [NAME] which was his property. He explained that it was [ADDRESS]. I told him that we were very concerned about the clearing of land that had already occurred there. He did not answer that and I don't recall how the conversation finished. 1. [NAME] asked [NAME] the following questions about his phone conversation with the defendant in cross-examination (at [NAME], 6 November 2018, p 1114(46) – 1115(47)): Q. Yes. And you said a number of things, but in particular, he said this to you and this is what you told the council officers "He went on to say that he had an arrangement in place with certain board members that goes back to the mid 80s which allowed for regular clearing of bush fire hazard," and you go on to say, "I can't recall if he mentioned any particular board members and it wouldn't have been relevant anyway as I could not determine whether the conversation took place." But the point of all this, he did speak to you and explain to you that he had permission from certain board members; do you see that? A. Yes, I do. Q. Do you recall him giving you any name, or names, of board members? A. No, I don't. 1. [NAME] agreed that an "[NAME]" appears on the [NAME] as club captain between 1987 and 1994 and as president from 1995 to 1998. He stated that the [NAME] board is accurate and that there is no reason to doubt its authenticity. 2. [NAME] asked the following questions about the defendant's account which he gave in the phone conversation of 21 October 2014 as to how the clearing took place (at [NAME], 6 November 2018, p 1121(45) – 1122(5)): Q. And according to your interview, you say this, "[NAME] and [NAME] were not acknowledging that works were undertaken by him," then he goes on to say that, "It was a contractor who exceeded his instructions." I take it by that, [NAME] told you that the contractors had exceeded his directions? I'm only reading what you've got there. A. Yes, if I've said that at that point in time, then that would be correct, yes. Q. Yes. And that's what he told you at the time? A. Yes. Q. On 21 October 2014? A. Correct.

1. There was some confusion as to whether this explanation had been proffered to [NAME] by the defendant or [NAME]. This was clarified as follows (at [NAME], 6 November 2018, p 1127(29-32)): Q. Is it your best recollection that [the defendant] said [in the telephone conversation on 21 October 2014] words to the effect that he had left verbal instructions with his contractor which had gone awry with the amount of clearing? A. Yes. 1. [NAME] gave evidence that all the golf club's neighbours along [ADDRESS] had extended their backyards onto land owned by the golf club to varying extents, including extending their lawn areas from between five and 15 to 30m onto the golf club's land. [NAME] described the procedures of the golf club in relation to such requests as follows (at [NAME], 6 November 2018, p 1129(46) – 1130(2)): Q. [NAME] please what the process or procedure is? A. A neighbour would contact me at the golf club, we would discuss what the neighbour wants to do, we would determine the impact on our property and if we could see little or no impact on our property we would agree with the neighbour proceeding. 1. [NAME] stated that he never received such a request in relation to the clearing of land at the rear of the [NAME].

The evidence of [NAME] 1. [NAME] acted as an agent of the defendant in relation to the matters the subject of the proceedings. He has known the defendant since their sons went to school together some 25 years ago and [NAME], who worked as an engineer, was involved in some small construction projects at the [NAME] in the intervening period. 2. [NAME] was appointed as the defendant's agent on 23 October 2014. The defendant phoned him that morning at around 8:00am and explained to him that [NAME] was investigating works at the [NAME] (at [NAME], 12 November 2018, p 1182(39) – 1183(10)): Q. Could you tell [NAME] please what were the circumstances in which you were appointed by [NAME] as his agent in the terms of that letter of 23 October 2014? A. Well, [NAME] rang me in the morning of that day and explained that he had it'd come to his attention that some clearing works that he'd had some ..(not transcribable).. works that he'd commissioned contractors to do and I guess come to the attention of the council. He explained that he'd received a phone call on the 21st. [NAME]: [NAME] keep his voice up please. WITNESS: Sorry. He'd received a telephone call on 21 October from one of the contractors advising him that they'd been at the site and the council had come around and asked them to stop what they were doing and leave the area. So that was the reason for the call, and he had used my advice before and this was another occasion where - albeit infrequently - that he wanted me to assist him particularly as he had been recently overseas and intended to be overseas in the very near future again for business and felt that I could be assisting him on the spot, responding to telephone calls and correspondence that ..(not transcribable).. thought it was likely to be engaged with council ..(not transcribable).. [NAME] had also, on the same day, called the golf course general manager so that there was a second concerned party to be contacted. 1. [NAME] said that, later on 23 October 2014, he attended a meeting in the garage of the defendant's property at Killara. The defendant showed him a letter which was marked with [NAME]'s logo and which was unopened. It transpired that this letter was the "stop work" letter dated 16 October 2014 which had been delivered by [NAME]. [NAME] said that the defendant told him he did not know when it had been received. [NAME] opened the letter at about 3:00pm or 4:00pm on 23 October 2014.

2. In cross-examination, [NAME] gave the following evidence about opening the letter from [NAME] (at [NAME], 12 November 2018, p 1212(23) – 1213(16)): Q. What your understanding was, he told you he believed it might have been a rate notice? A. He, as all residents have that frequently are receiving letters from the council, he‑‑ Q. I understand why but is that what he told you? A. He didn't ‑ he didn't have a ‑ a mind that it was anything untoward. Q. Yes, because it was, as you say, another letter from council? A. Yeah. Q. And you told [NAME] that you in fact opened the letter? A. Correct. Q. And you understood the import and seriousness of it yourself? A. Correct. Q. And you explained that to [NAME]? A. I did. [NAME] Q. Can I just understand, is it your evidence, based upon what you might have told prosecution lawyers, that your best recollection, [NAME] thought it might have been a rate notice? A. No, I ‑ I don't believe, no. That was ‑ I think that was a suggestion maybe that I or somebody else had made, but no, he'd‑‑ Q. I understand your evidence as being that invited or asked you to open the letter? A. He did. Q. Because he had some concern about it? A. Yes, he had some concern about it and it had come to his attention that he had a letter from the council and juxtaposed with the phone call from [NAME] or [NAME] on the two days previously.

1. After his initial meeting with the defendant on 23 October 2014, [NAME] said that he attended the [NAME] and paced out the distance between the trees that had been removed and the nearest corner of the dwelling in order to determine whether any of the trees which had been felled were permitted to be removed pursuant to the 10/50 Code.

2. Although he had no qualifications as an arborist, [NAME] said that he had knowledge of the 10/50 Code because he was a property owner in the Ku-ring-gai area (at [NAME], 12 November 2018, p 1208(32-48)). He described that he was the one who told the defendant about the 10/50 Code (at [NAME], 12 November 2018, p 1217(30-45)): Q. You were asked a specific question by [NAME]. You were asked this: "What made you think there was a major problem?" and you said, "Exceeded the purview of the 10/50 rule." Do you see that? A. Yes. Q. And you were able to tell [NAME] that you knew about the 10/50 rule because you're also a property owner in Ku‑ring‑gai? A. Correct. Q. And in relation to the 10/50 rule, your recollection is that [NAME] didn't say anything about the 10/50 rule to you; is that right? A. That's correct, yes. Q. Is that because you told him about the 10/50 rule? A. That's correct. He made ‑ I don't believe he ever prior to that knew about it. He certainly never said that he knew about it.

1. After inspecting the [NAME] said that he returned to the defendant's Killara property to attend a meeting with the defendant, [NAME] and [NAME]. He described the meeting in the following terms (at [NAME], 12 November 2018, p 1194(19-33)): Q. Could you tell [NAME] please what occurred at the meeting between yourself, [NAME] and [NAME] and [NAME]? A. Well, we ‑ [NAME] and I met the two gentlemen at the front door of their residence ‑ an outer door, I think it's better described, so a courtyard door; met them. We went together to meet them whence they'd rung the bell and we went immediately inside to the garage which opens out ‑ the entry is attained immediately inside the courtyard door. So in terms of what transpired, [NAME] asked them what had occurred on 21 October when they were on site and the members of the council staff had come there when it was all ‑ referred back to the phone call that he'd received from one of those two gentlemen. Q. Yes. A. Yes, that's ‑ so he asked them what had happened and they gave sort of a description of ‑ I don't think they'd spent long on the site after the council arrived and asked them to leave, so there was not a lot to say. 1. [NAME] said that he asked the contractors whether they believed that the work they carried out complied with the 10/50 Code. Based upon his inspection of the site, [NAME] had formed the view that the work did not comply. He gave the following evidence of asking the contractors this question (at [NAME], 12 November 2018, p 1195(9-13)): Q. Can you tell [NAME] who said what in relation to that matter at this meeting? A. My recollection is that [NAME] responded to that question and said that he was very experienced in these matters and had worked within several council areas and that in his experience the rules were quite flexible. 1. [NAME] elaborated on this answer in cross-examination (at [NAME], 12 November 2018, p 1219(5-30)): Q. Now, if I can just take you to the very next point. According to this note [of [NAME]'s conference with [NAME]'s lawyers], you said, "I put to them at the end in a question, 'You think this is covered by the 10/50 rule,'" then there's another little cryptic note, "Somewhat disbelieve." Now, was that a rhetorical question by you, or what was the reason that you asked that specific question? A. Well, I thought it was a fair question. I wasn't disbelieving of them, but it seemed important to me to understand if they felt that the work that had been done was covered by the 10/50 rule. Q. And according to the note here, it was [NAME] who answered? A. Yes, correct. Q. And [NAME] said to you, "I have had experience and rules are flexible." A. He said a bit more than that, but that's the guts of it. Q. Right. Will you tell us what else he said, if you can recall? A. Well, just that he's worked on the north shore in other councils ‑ Warringah, Ku‑ring‑gai, Hornsby ‑ and the rules are flexible. Q. According to him? A. Yeah, according to him, the rules are ‑ I think what he meant was he interprets the rules flexibly. Q. Yes, go on? A. But, yes, it was sort of ‑ so I guess by saying that he was actually answering my question, that it was within the 10/50 rule as he saw it. 1. [NAME] said that he was not initially aware that [NAME] and [NAME] had been retained as separate contractors (at [NAME], 12 November 2018, p 1218(26) – 1219(3)): A. Well, I was a little confused because it wasn't clear to me at the point at that time that they were ‑ I actually didn't know at the time that they were separate contractors. Q. Right. A. I thought they had been engaged as a team. Q. Yes. A. And they were supporting each other's answers to ‑ or interposing to sort of‑‑ Q. I'll ask you about that. What do you mean, they were interposing? Between each other, is that what you mean? A. Well, sorry, not contradicting each other, but sort of adding to the other answer. So it was a conversation from two people. Q. You're not suggesting they were contradicting. They were supporting one another? A. Yes, in response to saying what happened on the 21st, so there was sort of‑‑ Q. Can you recall now what they said about what happened on the 21st, doing the best you can now? A. Well, that they were ‑ yes, they were both on site and the work at that stage only consisted of bringing cut material up the slope to the ‑ up to the street, where they ‑ there was a shredder. So that was all they were doing, there was no other work had been done, and they just explained that the council came on site and shortly told them to stop what they were doing and leave. 1. [NAME] asked [NAME] about whether the issue of blame for what had occurred at the [NAME] came up in that meeting (at [NAME], 12 November 2018, p 1198(12-16)): Q. Just taking you back to the meeting on 23 October 2014 at the [NAME] house in Killara, in fact, in the double garage, do you have any recollection of [NAME] saying to [NAME] or [NAME] anything in respect of taking the blame for what had occurred? A. Definitely not. 1. [NAME] asked further questions in relation to this during cross-examination (at [NAME], 12 November 2018, p 1219(46) – 1220(8)): Q. Understood, okay. Now, there was a question there [in [NAME]'s conference with [NAME]'s lawyers], "Was there anything said by [NAME] about paying for liability?" and your answer was pretty definite, "Ridiculous. Absolutely not." A. Correct. Q. And [NAME] then asked you, "Was there any talk about apportionment of liability, in other words, who might be to blame?" Do you see that? A. Yes, I do. Q. And you've given a rather cryptic answer, "Lie wherever it lay." What did you mean by that, sir? A. Well, that the liability would - this is my words - the liability would be distributed wherever it properly lay. 1. [NAME] gave evidence that earlier in 2014 he had assisted the defendant in relation to fire damage that had been sustained to the [NAME]. He described his involvement in that matter in the following way (at [NAME], 12 November 2018, p 1196(41-47)): I attended the insurance company's site visit with potential contractors that the insurance company had called along to prepare quotations for the repair, which presumably would have been submitted to the insurers and then subsequently [NAME] asked me to look at the correspondence from the insurers basically to ‑ including anything from the potential building contractors to see whether I felt it was inclusive, sufficiently inclusive, to cover the work that would be necessary. 1. [NAME] did not meet [NAME] at that time but said that he understood [NAME] had been engaged to carry out works in relation to the fire damage at the [NAME]. [NAME] said that he was also aware that the defendant had retained architects in early 2014 to explore opportunities for renovating the [NAME] but that their services were terminated in around March 2014. 2. [NAME] said that at some time on around 23 October 2014, he was provided with a copy of [NAME]' bushfire risk assessment report of 3 March 2014. He spoke to [NAME] several times on the phone and asked him to prepare a follow-up report. He said that he understood that [NAME] had been retained by [NAME] at the request of the defendant to prepare a bushfire report. This was responsive to the advice of the architects that such a report would be required if a development application were to be lodged in respect of the [NAME].

3. In response to the reports of [NAME] stated that he contacted the [NAME] in the hope that they could assist in conveying to [NAME] the nature of the fire risk at the [NAME] (at [NAME], 12 November 2018, p 1206(41-48)): Q. What was the nature of your correspondence to the Rural Fire Service? A. The nature was that the advice that I was working on was the ‑ taken together, the two reports from [NAME] ‑ that the property was still subject to, or being in, the fire zone and seeking or putting a matter to the Rural Fire people to engage them with a view to ‑ if they concurred, that this would enable us to deal with the golf course because they clearly felt there was no threat, so that was the process that was explained to me by one of the appropriate officers at the council. 1. [NAME] said that in around January 2015, he prepared a summary of all of the work he had done as the defendant's agent, attaching copies of all relevant documents. He sent this summary to the defendant's solicitors. After that, he ceased to be involved in the matter and his agency in relation to the work at [ADDRESS] ended "by common assent" (at [NAME], 12 November 2018, p 1207(21)).

2. In the course of his cross-examination, [NAME] gave the following evidence about the defendant's character (at [NAME], 12 November 2018, p 1235(5-27)): Q. You gave evidence to my friend that you've known him for 25 years. You've always known him as a family man? A. Correct, yes. Q. And that remains the position? A. Yes. Q. And as a good citizen? A. Yes. Q. Can you just elaborate as to how you see him personally as a citizen? A. Well, yes, I'm happy to. He's somebody who is punctilious in, you know, observing the requirements. You won't see anything ‑ you know, the building work that we've done over time with him, not major things, but significant enough in their own right, were always ‑ they were always done with not only a very ‑ well ‑ they were done well, but that's not the point. But they were always done with his observing all the necessary approvals and such things as that. In the fire claim situation or fire effort there, that he point out to the insurers that they hadn't provided adequately for some of the repairs that were necessary and that was ‑ okay, that's him wanting his result ‑ sorry, his rights to be observed but it applied both ways. He didn't want anything that he wasn't entitled to and he wanted to make sure that there was never a question that he hadn't met all the requirements.

1. In relation to his role as the defendant's agent, [NAME] gave the following evidence (at [NAME], 12 November 2018, p 1235(42) – 1236(8)): [NAME] Q. Did he remain hands‑on, so to speak? A. Well, only to the extent of I would discuss, to the extent necessary, contents of a letter I was drafting. Q. What about in relation to the earlier building works that you'd done for him that had always been done well? A. Well, [NAME] did have an incredibly particular knowledge of all the work that had been done including even the original construction and he took a great interest in specifications and the like. [NAME] Q. But consistent with what [NAME] just put to you and consistent with the previous answer, he would leave it to the experts to do their job properly? A. That's right, yes. 1. [NAME] asked [NAME] further questions about the defendant's character and he gave evidence as follows (at [NAME], 12 November 2018, p 1236(14-44)): Q. With that in mind, would you consider him civic minded in every sense of the word, as far as the council, the community, his neighbours? A. Yes, absolutely, possibly to a fault. I mean, maintaining neighbourly good relations has been obviously very important to him, so when we did building work down beside his house where the neighbour was ‑ there was a neighbour adjoining‑‑ Q. On the neighbour's side? A. Yeah, there was an open area which we landscaped and paved and did a number of things, not in a building sense but in a landscaping sense, so there were issues of noise and dust and all of those things which he wanted to make sure that we, you know, didn't create them to be drawn ‑ to be a matter of concern to the neighbours. Q. He was concerned about they being accommodated? A. He had good relations, maintaining good relations with them. Q. That included a consultation where necessary? A. Well, I made it a point of consulting or informing the neighbours about what we were doing in advance and all these sort of things and making sure that they knew‑‑ Q. Tell us about that. How did that come about that you made it a point when you were consulting with neighbours? How did that come about? A. Well, the neighbour was ‑ I think at that stage she'd lost her husband and she was someone who'd been there since before, I think, they built and she was particular about such things as noise and disturbance, which is not unreasonable, so [NAME] said that, "The first thing you need to do before you make a start is see her and explain what's going to be going on and even to the extent of, within reason, changing what we were going to be done, like the way we were going to be doing something if it would make her happier.

The evidence of [NAME] 1. [NAME] is the "Team Leader Governance" at [NAME]. In her affidavit sworn on 22 June 2017, she deposed that she carried out an extensive search of [NAME]'s records and could not locate any approval or authorisation for the tree removal the subject of these proceedings. This evidence is not challenged by the defendant.

The evidence of [NAME] 1. [NAME] was the resident who brought the tree works taking place at the [NAME] to the attention of [NAME]. He said that towards the middle of the week commencing 6 October 2014, he observed works being carried out towards the top of the property.

2. On Monday 13 October 2014, [NAME] observed works being carried out at the site and noted "many felled and pruned large trees". He said that there were a number of felled trees adjacent to the Little Diggers Track and one large log in the process of being cut up. On this day he said that the "view from the track towards the lower side of [ADDRESS], East Lindfield to be much clearer".

The defendant's record of interview 1. On 5 February 2015, the defendant undertook a compulsory interview pursuant to the EPA Act. The interviewers from [NAME] were [NAME] and [NAME] and also present was the defendant's solicitor, [NAME] and [NAME], who attended as a typist.

2. The defendant formally objected to the interview on the grounds that he might incriminate himself pursuant to what was then s 122U(3) of the EPA Act. Pursuant to s 122T(2) of the EPA Act as was then in force, the defendant was under an obligation not to provide any answers which he knew were "false or misleading in a material respect".

3. The defendant tendered his own record of interview which was admitted into evidence in both audio recording and transcript form: Ku-ring-gai Council v [NAME] (No 10) [2018] NSWLEC 176 ('[NAME] No 10'). The audio of the interview was also played in Court.

4. At [46]-[47] of [NAME] No 10, I indicated that although I was determining to allow the interview into evidence, I was not making a finding as to its weight or probative value. I note in that regard at the outset (as I did in [NAME] No 10 at [46]) that [NAME] did not have the opportunity to cross-examine the defendant about the answers he gave in the interview, which is a matter that I consider goes to the weight of the evidence.

5. The defendant gave the following account of the tree lopping works at the site in his record of interview (as it appears in the transcript tendered in the proceedings, noting that interjections appear using the initials [NAME] for the defendant, TM for [NAME] and [NAME] for [NAME]): [NAME]: On 21 October ([NAME]: 21st October) 2014, ([NAME]: right) Council officers observed tree lopping staff, so contractors, doing tree lopping works ([NAME]: right) on your property of [ADDRESS], Roseville. ([NAME]: right) Can you please tell us about those activities? [NAME]: No I can't. [NAME]: Did you engage any persons to do tree works on your property at [ADDRESS] on or around 21 October 2014? [NAME]: Before then, I engaged ah… landscapers. I think that's… It seems to me to be very different. I actually haven't been to the property since well before that so I can't answer the question because I don't know. (TM: Okay.) Sorry I can't answer your question because I'm trying to give the background… ([NAME]: No, that's fine). [NAME]: Could I ask [NAME] a question? Um… When, um, I visited your property on 21 October 2014, um, I, when I was at your property, um, there was a gentleman by the name of ah… [NAME] who informed me that he had removed um… some trees under umm… a request by the owner of the property. I asked him who the owner of the property was and he said it was [NAME]… [NAME] had asked him to do some ah… tree works to… to remove trees for um, 10/50, under the 10/50 legislation. [NAME]: It's not true. [NAME]: Ok, so, um… You didn't engage any tree contractors to do any tree removal on your property? Or… [NAME]: No. That's not… um… I need to get you to ask… [NAME]: Just ask a simple question. ([NAME]: Okay, Sorry, sorry,…) It just might help. [NAME]: I can answer "no" to the other one… which I did. [NAME]: Okay. All right, so my question is: Did you ah,… request any tree contractors to do any tree removal on your property? [NAME]: [Breathing out, pause] I'm still finding difficulty answering that because if I say yes, um, that's not true (TM: Okay..) and if I say no then… (TM: In your previous answer…) so I can't really say yes or no. [NAME]: That's all right. In your previous answer you said you engaged landscapers to do works, what did the works entail that you engaged these staff for? [NAME]: Without giving background which would take forever and anyway is probably not relevant… The landscaping, ah was to maintain the property as it always has been. Um… It's something …, I don't do the gardening and um… from time to time obviously you have maintain, just to clear up and so forth. You asked me what did I instruct them or what did I engage them to do. There were things like.. there's a lot of mess around that needed to be cleared away … that had to be taken … [NAME]: Sorry, before we go any further, Can you clarify mess? [NAME]: Well, there were ,,, Again working from what I had been told rather than necessarily my own observations or being there, I understood and I believed that there were tree fronds, there was um.. weeds throughout the whole garden, um… there were bushes that had grown taller and messy, I mean, y'know, to the point where it had completely changed. That is the sort of mess that I am talking about. It is cleaning up. Um… But it is also clearly um… um… and I have to be careful because I don't remember exactly who told me all of these things. But there was what other people refer to as fuel load which I understand and understood to mean a fire hazard there. (TM: Just to clarify … ) That's the sort of thing.

1. The defendant said that another reason for asking the contractors to carry out work at the [NAME] was that [NAME] had told him that there were trip hazards at the site and the defendant was desirous of having those removed.

2. The defendant gave the following further description of what the works entailed: [NAME]: Cleaning up to remove trip hazard and fuel load, they said, and things like that. To me that was the stuff that had,… that was in the garden. 1. [NAME] asked the defendant if he had obtained any quotes for the work which was carried out, to which he gave the following response: [NAME]: No,… because they said they didn't know how long it would take and I said we had a very limited amount of money. I have not worked for a long time. We didn't have a lot of money. And um… if it's a couple of days then that's fine. That's basically [NAME]: Sorry, I'll clarify this, that "it is going to take a couple of days to clear the mess on [ADDRESS]"? [NAME]: That's what was in my head. Yes. That's what I said to them.

1. The defendant said that he knew [NAME] because he had carried out previous work for him at his property in Killara when a tree had fallen over from a neighbour's property. He said that he called [NAME], whose business card or pamphlet had been left at his home some time earlier, and that [NAME] "carried away some of the branches and so forth from our property".

2. The defendant gave the following account of asking [NAME] to carry out work at the [NAME]: [NAME]: I rang him up, um… ([NAME]: at 53 Carnarvon? [NAME]: Yes, Yes.)… um and on the phone I said we need um… to clean up the place because the builder, … that's why I was telling you before, so that's the… and that's what I've said to him. He said ah.. I'll go and have a look at it and um.. I said, "Okay that's fine" "You need to tell me how much because I'm not … we're not very well off in that sense". Um… And, he ah… ah… said well I'll meet you on site. I drove down there and I went to the front of the garage on the concrete ([NAME]: Yep) and he was there. And I said "Oh, … so have you seen it" and he said "I know what to do". And I said "Well, hang on, so how long will it take?" Because that's the thing that was important to me. [NAME]: Do you recall the date of that conversation / meeting? [NAME]: Um … I was going overseas… I was always going overseas at that point, um,.. so that day or the next day. No, the next day. And, er, um, anyway, ahh.. I have been overseas at that period, or not overseas necessarily, er,.. away from home probably every week or every two weeks, something like that. So it was constant. And therefore I can't remember which time that was.

1. The defendant said that he could not recall the exact date of his conversation with [NAME] but said that it was likely to have been in August or September 2014. When asked if he and [NAME] looked at the property together, the defendant gave the following answer: [NAME]: No. ([NAME]: No.) ([NAME]:) I did not move from that apron of the front and I said "but hang on what are you going to do" y'know I don't know if I said that actually, but I tried to get that across y'know that that I wanted to know how much. He said, well, it was very hard to take stuff up the slope and all that sort of thing, so I said okay, well, are we talking a couple of days? And, um … and he said "Yes". It gave me a picture of what he was intending to do. But I did say a lot of other things which maybe I should say now because you asked me what did I specifically say, or how did I engage him? And I need to … This is very important to me that the whole of what I said is stated. And that is I said firstly, I don't… as always, and I say this to every contractor by the way, it doesn't matter if it is a plumber or an electrician, a builder, it doesn't matter, "you have to stay within the law, you have to um… ah… stick with the guidelines and regulations of whatever's involved.". And it is your responsibility to get approvals, um… all approvals that are necessary. And I don't know what the rules are and I am asking you 'do you know what to do with the rules' etcetera.. 'You are licenced, insured…, fully insured', you're this, that, and everything else. 'Yes,' so that is the conversation. Then I went on as I don't stop there and that is everything has to be safe. So you don't endanger other people and that you do things according to proper work practices. The second point is that as you leave, whatever you do has to be aesthetic, I used that word specifically which means to me it has got to look good, as the way it is meant to be. It's pretty obvious to me, that we… in every place we have ever lived or done anything, that I am always conscious of … the way it looks to other people. Because I don't believe in making it anything other than good for other people. That is what is very important to me. And the third thing … I am shortening it but will go on. The third thing is that you have to talk to all neighbours, … first … you have to make sure they are happy. And then all the way through, wherever you are, you're not allowed to leave trucks on the road, you are not allowed to leave anything, any debris there, you mustn't make unreasonable noise, you've got to not work too early, too late. I worry about all those things as far as neighbours are concerned and obviously at that particular site the Golf Course is a neighbour so that is very important to me. And if I can say that, this and I am sorry to for adding all that but it gives you some background and helps you perhaps to understand what is in my head when I am instructing somebody and if I am going to pay them any money at all. Umm… Since we bought that block of land I have tried to be as good a neighbour as possible to everyone and it breaks my heart that umm… anybody is upset with me or [NAME] for that matter. Because throughout the whole of our lives we have just tried really hard to live in the society in which, you know, our parents were not natives and so forth. We try to assimilate 1. At this point in the interview, the defendant became emotional and [NAME] indicated that they would take a short break to allow him time to compose himself. When the interview resumed, the defendant stated that he had not looked at the property with [NAME] and gave instructions as per his answer above. He stated that he had left the site probably within five minutes. 2. [NAME] asked the defendant what [NAME] quoted to do the job at the [NAME]. The defendant said that [NAME] told him that his usual daily rate was about $4,000. The defendant said that he thought that this was a high amount for the work he wanted carried out but said that [NAME] said he would not charge the defendant that amount. 3. [NAME] asked the defendant whether he thought $8,000 was a lot of money for "tidying up a little bit of mess on his property", to which the defendant replied: [NAME]: No. Umm … ([NAME]: for 2 days work) Well, I think that is a fairly high rate. But it's not a little bit of mess … you know, in my estimation of what probably had to be – don't know what had to be done he did describe that there was a lot of mess. And, In the past every year or two or three I have had to engage people to do the same task which has always cost me a lot. [NAME]: Is that to tidy up mess within [ADDRESS]? [NAME]: Yes that's correct. [NAME]: Have you paid [NAME] his money? [NAME]: He demanded some money and I paid him. Umm .. I'm not going to stand there and … 1. The defendant confirmed that he had appointed [NAME] as his agent to deal with, inter alia, matters relating to the clearing of trees at the [NAME]. He said that he did so because he was often away and he "wanted to make it good with everybody as much as possible". He said that he knew that [NAME] had spoken to [NAME].

2. The defendant was asked whether he had an agreement with [NAME] to conduct maintenance on its property. He said that he did not have such an arrangement at that time (that is, at the date of the interview) but that he had had such an arrangement previously.

3. In relation to the [NAME], the defendant said that he met with three members of the club in around 1979 or 1980 including a "[NAME]", who he identified as the club captain of the golf club. The other two members were the president of the golf club, who the defendant thought was named "[NAME]", and the club secretary, whose name the defendant could not recall. The defendant said he was told that he would be doing the golf club a favour by looking after the land. He said that the agreement was a "gentlemen's agreement" accompanied by a handshake, whereby he was given access to an "...area beside our property, down the side" on the undertaking that he maintain some land owned by the golf club. The defendant said that he believed the agreement would exist in perpetuity. 4. [NAME] then asked the following question about the work he had engaged the contractors to do: [NAME]: You have established that in 1979/1980 there was an agreement ([NAME]: Yes) to do certain works outside, ([NAME]: Oh, Okay …) Was part of the scopes of the work engaged by your contractor to do works in that area that you thought you had approval for? [NAME]: Yes, for instance, the grasses that are tall should be made .. to take away the trip hazard or or make it so that if you are carrying a beam you're not going to fall over. And I explained to him not only in the phone call but on site, I was going to say on site as well but I was pretty sure in the phone call and on site that the only reason for doing this at the time – otherwise we would wait - y'know was because the building works were going to require access. [NAME]: So there was conversation in relation to works outside of [ADDRESS]? [NAME]: No I didn't say that and I didn't mean that there was not a conversation about works outside of [ADDRESS] but I did say that the builders are going to have access so I guess that there may be some sort of inference or implication of that but I don't believe I said that.

1. The defendant said that he thought it was best to hire landscapers "who would appreciate what's there, I can't direct people what to do as I'm not going to be there and I have no idea what's got to be done, it's too hard". He thought that the "better way is to get someone who would take that responsibility entirely and that is why I put all those caveats over it as well so the responsibility goes with those people". 2. [NAME] asked the defendant whether he had an ongoing landscaper, to which the defendant replied: [NAME]: I have a gardener. And, after I received the letter, well sorry I didn't receive the letter, but I have to correct that too, that after I understand that Council sent the letter I cancelled that because I did not want anybody touching anything anymore. It is far easier in my head to say let's sort out things, stop y'know, I know life goes but on the other hand… [NAME]: Do you have details of your gardener? [NAME]: Gardeners have changed because of people over the years. Umm… I have a current gardener who does our place at [xxx] [xxx] Street Killara. I don't know his number off the top of my head or anything like that, but at home, … he comes every week, so… I would have that.

1. The defendant said that he had paid in the past for people to maintain the area around his clothes line. He said that he wanted to ensure that it was safe for children as there was no boundary fence at the [NAME].

Warnings and directions 1. The defendant submits that I should give myself certain warnings and directions in relation to eight specific matters, being:

1. A direction in respect of the good character of the defendant;

2. A direction in respect of the failure of [NAME] to call material witnesses;

3. A warning that it is dangerous to convict based upon accomplice evidence;

4. A warning in respect of a witness who might reasonably be supposed to have been criminally concerned with the events giving rise to the proceedings;

5. A direction in respect of accomplices corroborating each other's evidence;

6. A warning in respect of prior inconsistent statements;

7. A direction in respect of a motive to lie; and 8. A direction in respect of an accused who provides exculpatory evidence relevant to a critical element in the prosecution case. 1. [NAME]'s initial position is that a warning under s 165 of the Evidence Act would only apply if there was a [NAME] or, alternatively, if a judge is sitting alone in a trial of an indictable offence, by application of s 133(3) of the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act'). As this is a trial of a summary offence, not an indictable offence, s 133(3) of the Criminal Procedure Act does not apply. It follows, according to [NAME], that the presumptive obligation to give a warning under s 165(2) of the Evidence Act does not apply.

2. The prosecution further says that the question of whether the Court should warn itself turns upon the application of the common law which, briefly stated, requires a warning to be given by a judge to a [NAME] whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. Such a perceptible risk arises when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay [NAME] (R v GW (2016) 258 CLR 108; [2016] HCA 6 at [50]).

3. Thus, on the assumption that the common law principles are applied where a judge is sitting alone, [NAME] submits that there is no perceptible risk of miscarriage of justice arising from the circumstances to precipitate the need for any such warning.

4. However, in the light of the defendant's further submissions, [NAME] submits that the "conservative" premise the Court should apply is that, if any of the directions that are sought by the defendant would properly be given to a [NAME], then the Court should give that direction to itself notwithstanding that s 133 of the Criminal Procedure Act does not apply to a judge alone presiding in the trial of a summary offence.

5. The defendant cites the following comment of Gleeson CJ in Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 where [NAME] said: [1] These two cases concern instructions given to juries at criminal trials in New South Wales as to the significance that may properly be attached to the failure of an accused person to deny or explain inculpatory evidence relied upon by the prosecution. It is for the [NAME] to evaluate the evidence at a trial. But juries often require, and sometimes expressly seek, guidance as to the significance of an accused's failure to give evidence, or failure, when giving evidence, to deal with some matter. In deciding what guidance is proper, a trial judge, or an appellate court reviewing a trial judge's summing-up, must have regard both to general principles and to relevant statutory provisions. Here, the general principles concern the onus of proof, the presumption of innocence, and the evaluation of evidence. The relevant statutory provision is s 20 of the Evidence Act 1995 (NSW). [2] The operation of the general principles have a significance which goes beyond trial by [NAME]. In New South Wales, and other Australian jurisdictions, trials for indictable offences are not infrequently conducted by a judge sitting without a [NAME]. Summary offences are tried by magistrates sitting without a [NAME]. In such cases, the reasoning of the judge, or magistrate, is constrained by the same principles as govern the deliberations of a [NAME]. Similarly, an appellate court when considering an argument that a [NAME], acting reasonably, must have entertained a reasonable doubt as to the guilt of an appellant, or which is considering the application of the proviso in a case where there has been a misdirection, may need to form a view as to the significance of an accused's silence, either generally, or upon some particular topic (citations omitted).

1. In these circumstances, I consider it appropriate to adopt what [NAME] refers to as the "conservative" approach and deal with the suggested warnings and/or directions discretely. I consider that some of the directions and warnings sought (as per [247] above) involve overlapping considerations and I have considered the requests accordingly.

Direction in respect of good character 1. It is agreed between [NAME] and the defendant that I should direct myself as to the defendant's good character. I accept the fact that the defendant is a person of good character is relevant to the likelihood of he having committed the offence, and that is a factor for me to take into account. I take the defendant's good character into account.

Direction in respect of the failure of [NAME] to call material witnesses 1. [NAME] and the defendant accept that the principles concerning responsibility of a [NAME] to call witnesses in criminal trials are well-established and rely upon the statement of [NAME] in Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 ('Whitehorn') at 664: ...all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the [NAME] unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point.

1. In R v Apostilides (1984) 154 CLR 563; [1984] HCA 38, the Court said at 575: We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia:

1. The [NAME] alone bears the responsibility of deciding whether a person will be called as a witness for the [NAME].

2. The trial judge may but is not obliged to question [NAME] in order to discover the reasons which lead [NAME] to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.

3. Whilst at the close of the [NAME] case the trial judge may properly invite [NAME] to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct [NAME] to call a particular witness.

4. When charging the [NAME], the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of [NAME] to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to [NAME]'s reasons for his decision as [NAME] thinks it proper to divulge.

5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.

6. A decision of [NAME] not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. 1. [COMPANY] v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186, [NAME] said at [66]: The general principles concerning the responsibility of prosecutors to call witnesses in criminal trials are well established and were enunciated by the High Court in Apostilides at 575. These principles are not confined to [NAME] prosecutors but apply to those who prosecute criminal offences on behalf of Councils or other authorities… 1. To support its submission that [NAME] failed to call material witnesses, the defendant points to the fact that when [NAME] was questioned about who was present onsite at the time of the offence, [NAME] refused to provide [NAME]'s investigator, [NAME], with details of the other people working with him "...in case it will incriminate [him] or other people" ([NAME] 16 April 2018, p 72(32-43)).

2. Despite this, in the course of his cross-examination, [NAME] revealed that a [NAME] and a "[NAME]" had worked with him on the site and the defendant submits that the earlier refusal (during his interview with [NAME] on 29 July 2016) to give names to [NAME] must be contrasted with [NAME]'s then eagerness to volunteer his nephew ([NAME]) to answer questions. The defendant also notes that despite [NAME] (through [NAME] as investigator) having had the power at the time to compel [NAME] to answer, [NAME] chose not to obtain the names of those people at a time when [NAME] would have been more likely to have recalled their names and their contact details.

3. Further, the defendant submits that [NAME] cannot now "hide behind" the fact that it did not have specific details of these witnesses (that is, the other sub-contractors) because [NAME] did not ask relevant questions to extract this information as he was entitled to do. Thus, this "failure" has deprived the Court of the ability to have that material tested and those witnesses called. In these circumstances, the defendant submits that the failure to call a number of witnesses including [NAME]'s brothers, who the evidence reveals were at the site at relevant times (see, for example, [98] above), and [NAME], the Court should entertain a reasonable doubt about the guilt of the defendant.

4. The defendant notes in this regard the suggested direction in the Criminal Trial Courts Bench Book – Trial Instructions ('Bench Book') in relation to "witnesses – not called", which provides: You have heard that [name of witness] has not been called by the [NAME] to give evidence. You can take the fact that there was no evidence from that witness into account when you decide whether the [NAME] has proved the guilt of the accused. I am not inviting you to guess what [name of witness] would have said if [he/she] had been called. You must not do that at all. But in a criminal trial, where the [NAME] must prove that the accused is guilty beyond reasonable doubt, a [NAME] is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused's guilt … [refer to the submissions of the defence and [NAME] on the issue].

1. The defendant also submits that, despite the fact that they gave evidence in the proceedings, there had been a "constructive failure" to call [NAME] and [NAME] on the basis that [NAME] had not intended to call them as witnesses until the defendant insisted upon it. 2. [NAME] submits that there is no proper basis for the Court to direct itself in respect of witnesses not called as [NAME] has not failed to call any material witness. [NAME] maintained, in accordance with the principle articulated by [NAME] in Whitehorn (noted above), that there is no requirement for [NAME] to call all witnesses, only material witnesses and in the circumstances, there is no basis for the suggestion that the [NAME] and [NAME] were in fact material witnesses. [NAME] submits that these individuals only played a peripheral role in respect to the conduct the subject of the charge.

3. In addition, [NAME] says that there is no evidence that the [NAME] or [NAME] were present when the defendant directed the contractors to cut down the trees. [NAME] also submits that there is no "constructive failure" on the part of [NAME] to call [NAME] or [NAME] as each of those witnesses was called.

4. I accept the principle, as stated in Whitehorn, is that all witnesses whose testimony is necessary "for the presentation of the whole of the picture" should be called. However, I do not consider [NAME] has failed to call any material witnesses and I accept that there is no evidence that the [NAME] or [NAME] were present when the defendant was alleged to have directed the contractors to cut down the trees and there is no evidence that leads me to the view that they would materially add any relevant testimony.

5. I also note, but do not place weight upon, the fact that prior to making the submission that the Court should give itself a direction in relation to [NAME]'s alleged failure to call material witnesses, the defendant had not previously contended that any of those three (the [NAME] or [NAME]) was a material witness. I further note that when the defendant earlier in the proceedings contended that [NAME] had proposed not to call other persons whom the defendant suggested were material witnesses (being [NAME] and [NAME]), [NAME] thereafter called each of those four persons. Further, I do not accept that there was a "constructive failure" on the part of [NAME] to call either [NAME] or [NAME] as each was called.

6. In the above circumstances, I do not consider that there is any basis for a direction in respect of witnesses not called by the prosecution.

Warning that it is dangerous to convict based upon accomplice evidence and warning in relation to the evidence of the criminally concerned 1. As the common law has long recognised that there is danger in accepting evidence of an accomplice or person who could be criminally liable, the defendant submits that the Court should direct itself that it would be dangerous to convict the defendant based upon the evidence of [NAME]. It puts this submission on the basis that each is an accomplice because each played a part in the unlawful removal of trees as principals.

2. In support of the application for these requested warnings and directions, the defendant relies upon a number of facts. First, each of [NAME] and [NAME] took part in the chopping down of trees and [NAME] aided and abetted [NAME] and [NAME] (noting that [NAME] admitted to identifying trees for [NAME] and others to remove); second, [NAME] had lied when first spoken to and made no attempt at that time to implicate the defendant; third, [NAME]'s warning to [NAME] not to come to the site (which, according to [NAME], was because Council officers were present); fourth, [NAME]'s plea of guilty and the fact that in being sentenced in the [NAME] proceedings, he received a benefit for his assistance to the prosecution; fifth, an acceptance that at common law accomplices collude; sixth, a real possibility of fabrication; seventh, the opportunity for collusion having arisen on a number of occasions; and eighth, the contamination of [NAME] and [NAME]'s evidence through delivery of [NAME]'s evidence to them during their records of interview.

3. In addition to the common law warning, the defendant says that the Court should warn itself pursuant to s 165 of the Evidence Act regarding what is said to be accomplice evidence. The defendant relies upon the Bench Book concerning s 165(1)(d) of the Evidence Act and directs the Court to the manner in which courts have previously dealt with this type of unreliable evidence including Kanaan v R [2006] NSWCCA 109 ('[NAME]') at [165], R v Ncanana [1948] 4 SA 399 at 405, and Jenkins v The Queen [2004] HCA 57; (2004) 211 ALR 116 at [30]. 4. [NAME] accepts that the Court should give itself a warning pursuant to s 165(1)(d) of the Evidence Act in respect of [NAME] and in doing so should be guided by the Bench Book. However, [NAME] maintains that in relation to [NAME] and [NAME], the Court should not give itself a warning. In relation to [NAME] submits first, that he did not cut the trees down (his role only to drag branches up to the road) and, second, whilst he "marked" some trees with pink paint at the direction of the defendant, that is not sufficient to warrant any warning given in relation to his evidence. In relation to [NAME], the prosecution reminds the Court that he is a labourer and had no belief that he was in any trouble.

5. I accept that the common law has long recognised the danger in accepting evidence of an accomplice or a person who could be criminally concerned in events which give rise to the proceedings and, that it is dangerous to convict on the testimony of an accomplice. I consider that while s 165 of the Evidence Act has codified the law in relation to warnings, I also accept that s 165(5) provides that s 165 does not affect any other power to give a warning in relation to unreliable evidence.

6. Further, I consider that in [NAME] at [217] (whilst noting comments of the High Court in Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2), it was accepted that directions similar to the common law accomplice warnings should generally be used when considering matters which may cause the evidence of a witness to be unreliable. As such, I am conscious that it may be dangerous to convict on the uncorroborated evidence of a witness who could be criminally concerned.

7. Whilst there has been some concern expressed about the use of the term "accomplice" (and noting that it is not used in s 165), (R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260 at [125]-[130]), I accept that the matters considered by the common law as rendering certain evidence suspect include that persons otherwise implicated may have reason to implicate others and may exaggerate the role of another.

8. I note the suggested direction in the Bench Book, which begins: The [NAME] relies upon the evidence of [the witness]. The [NAME] also asserts that [the witness] is a person who was, or might have been, involved in the alleged crime. The law requires me to give you certain warnings and directions concerning this evidence. They are given in every case in which the [NAME] relies upon the evidence of a witness who was, or might have been, involved in the alleged crime. They are not given in this case because of any view which I have formed concerning the evidence of [the witness]. The need to give such directions arises because the courts have, over the years, a great deal of experience concerning the reliability of evidence given by a witness who was, or might have been, involved in the alleged crime. That experience has shown that the evidence given by such a witness may be unreliable. I do not intend to suggest, however, that such evidence is always unreliable… 1. The suggested direction contains a number of reasons, which were adopted by the defendant, why such evidence may be considered reliable: • It is only natural, you may think, that a witness who was, or might have been, involved in the alleged crime, may want to shift the blame from himself or herself onto others, and to justify his or her own conduct. In the process, the witness may construct untruthful stories, which tend to play down his or her own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people. • Persons who are, or might have been, involved in an alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility. • Such a person may be motivated to give false evidence in order to qualify for a reduction in his or her own sentence. [Where a discount has already been granted, as is the normal case, the [NAME] should be specifically directed as to the precise extent of the discount and the consequences of failing to give evidence in accordance with his or her undertaking — see bracketed note below.] • There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be. Remember that the [NAME] has to prove the essential aspects of its case and the accused does not have to prove anything. • Experience has shown that once such a witness has given a version to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.

1. I accept that these are matters which, in a general sense, may affect my assessment of [NAME]'s reliability. More specifically, I note that, in his judgment in the [NAME] proceedings, Moore J recorded the following as a mitigating factor in relation to [NAME]'s sentence at [28]: [NAME] accepts that [NAME] has cooperated, fully and appropriately, with [NAME]. This cooperation has not merely been in the making of admissions and settlement of a Statement of Agreed Facts, but also in the providing of a statement of the evidence that [NAME] would propose to give in the prosecution of [NAME] for the activities that [NAME] has undertaken on [NAME]'s behalf and at his direction.

1. Having regard to the nature of the instinctive synthesis approach to sentencing, it is not possible in the case of the [NAME] proceedings to identify with precision the benefit that [NAME] received for cooperating with authorities in relation to the sentence which might otherwise have been imposed. Obviously, [NAME] did not receive (and could not have received, whether he cooperated with [NAME] or not) a prison sentence in relation to the offence that he committed.

2. I also note that [NAME] did not accept the proposition that he was treated more leniently by the Court because he was prepared to give evidence against the defendant. When that was put to him in cross-examination, he denied it and said that he was treated more leniently because he pleaded guilty (at [NAME], 17 April 2018, p 127(36)). Clearly, if he was unaware that he was being treated more leniently by reason of his cooperation in the defendant's prosecution, it would not have served as a motivation to fabricate evidence against the defendant.

3. However, it is clearly the case that [NAME]'s cooperation with authorities was properly taken into account as a mitigating factor in the [NAME] proceedings and I accept that this is one further reason why I may find [NAME]'s evidence less reliable.

4. Adopting s 165(1)(d) as a guide, I consider the evidence of [NAME] is of the kind that may be unreliable because he is a witness who might reasonably be supposed to have been (and indeed was) criminally concerned in the events giving rise to the proceedings. As such, I consider that I should approach [NAME]'s evidence with caution in that he may have desired to shift the blame from himself to others and in the process may give evidence which may tend to play down his role and may construct an untruthful version of events. Further, he may have been motivated by the fact that he received a penalty which took into account assistance he may have given to authorities.

5. In relation to [NAME] and [NAME], I do not consider that it is appropriate for a warning to be given. I do not consider that either [NAME] or [NAME] is an accomplice or that either [NAME] or [NAME] was criminally implicated.

6. In relation to [NAME], although I deal with his evidence in detail elsewhere in this judgment, for present purposes, the evidence is and I find that, whilst he admits to identifying certain trees, he did not cut the trees down; his role was to drag the branches up to the road; and whilst he marked some trees in pink paint for removal (he says at the direction of [NAME]), that conduct is not sufficient to warrant a warning being given in relation to his evidence.

7. Furthermore, I consider that the circumstances in which he came to give evidence did not raise any prospect of him being at any risk of criminal liability and I accept [NAME]'s submission that there is no evidence that he saw himself to be at any such risk.

8. In relation to [NAME], again, although I deal further with his evidence elsewhere in this judgment, for present purposes, I find that he did not give evidence while under any genuine apprehension of being punished for his involvement in the commission of the offence, so did not have any motive to deflect blame. He maintained, and I accept, he was a labourer or a sub-contractor to [NAME].

Warning in respect of accomplices corroborating each other's evidence 1. Although the defendant separately submits that the Court should not consider the evidence of [NAME] and [NAME] capable of amounting to corroboration because of the real possibility they have jointly fabricated, it also discretely asks that I warn myself in respect of the danger of accomplices corroborating each other's evidence.

2. Noting that I deal with the evidence in relation to collusion separately later in this judgment, I consider that although the common law warnings can apply, I find in fact that [NAME] do not fall within this type of category of a co-accused in circumstances that might trigger the need for a warning either under s 165 or the common law. This is because I find that they did not give evidence while under any genuine apprehension of being punished for their involvement, and so do not necessarily have any motive to deflect the blame from themselves. As such, I find that a discrete warning is not warranted. In making this finding, I am conscious of the comments of the Court of Criminal Appeal in [NAME] v R; Rustom v R [2007] NSWCCA 118 at [28]: It is important to appreciate that although evidence may fall within one of the categories identified in s 165(1) it does not follow that a warning is necessarily required. The evidence must be of a kind that may be unreliable...

1. In the above circumstances, I do not consider that there is a requirement to warn myself that the evidence of [NAME] may be unreliable. I emphasise that this does not mean that I accept all of their evidence. Rather, I discretely consider matters of weight and allegations of collusion and contamination later in the judgment.

Warning in respect of prior inconsistent statements 1. The defendant submits that a warning is appropriate because [NAME] has given a prior inconsistent statement in his conversation with [NAME] on 21 October 2014 where he made no mention of the defendant. In that circumstance, where [NAME] later gave evidence to the Court which was to the contrary and, according to the defendant's submission, was self-evidently more damaging to the defendant than the statement he made to [NAME], the defendant submits that a warning should be given. Given the significance of [NAME]'s omission to make reference to the defendant giving him "directions" at a material time where, according to the defendant, it would have been expected of him to have given that information if it were true, the defendant says the omission should cause the Court to have serious doubt as to [NAME]'s credibility.

2. In Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43 ('[NAME]'), Gibbs J, with whom Barwick CJ, Mason, Jacobs and Murphy JJ agreed, said at 536: In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the [NAME] against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony.

For these reasons I cannot accept that it is always necessary or even appropriate to direct a [NAME] that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable.

1. I accept [NAME]'s submission that a warning in these circumstances is not required and that I am able to take into account what [NAME] said in his conversation with [NAME] when assessing his evidence as a whole.

2. Noting what Gibbs J said in [NAME], I do not consider that there is any general proposition that such a warning is required. Nor do I think that making such a warning explicitly assists my consideration of [NAME]'s evidence as a whole.

Direction in respect of a motive to lie 1. The defendant submits that I should give myself a direction that a motive to lie can affect the assessment of the credibility of a witness and that each of [NAME] and [NAME] has a motive to lie in the sense that each has something to gain by lying about the instructions given by the defendant and their involvement in the removal of the trees. Further, that the Court must consider the evidence of their motive to lie and determine whether their evidence is nevertheless truthful.

2. Whilst I accept that there was a possibility that [NAME] and [NAME] may have had a motive to lie, this is a matter that I take into account in assessing their credibility in other parts of this judgment and I have taken this into account in considering the totality of each of the witnesses' evidence. I also note that the suggested direction in the Bench Book, extracted above at [275]-[276] provides direction in relation to witnesses who may have a motive to lie. This is reflective of the overlap between an allegation that evidence is unreliable because it is given by an accomplice (or someone otherwise criminally concerned), and an allegation that a witness has a motive to lie.

3. In those circumstances, having already considered the defendant's submissions in relation to the unreliability of accomplice evidence and the evidence of the criminally concerned, I do not consider a discrete direction in respect of the witnesses having a motive to lie is necessary.

Direction regarding the defendant not giving evidence 1. The defendant submits that as a matter of law I should direct myself in respect to the evidence given by the defendant in his recorded interview. [NAME] accepts that I may so direct myself, and that the terms of such a direction is a matter for the Court.

2. I accept, as agreed between the parties, that in this respect guidance can be taken from the Bench Book. I accept that the defendant has given a version of events in the recorded interview which I have separately considered in this judgment and that he is entitled to rely upon that account. Moreover, I accept the fundamental principle that he is not required to prove that his account is true and that [NAME], in discharging its obligation to prove the defendant's guilt, must satisfy the Court that it is a version of events that could not reasonably be true.

3. As such, the defendant does not have to prove anything and the fundamental onus upon the prosecution to prove the guilt of the defendant beyond reasonable doubt does not, and cannot, shift by reason of the defendant's statements in his record of interview.

Allegations of collusion and contamination 1. One of the principal submissions of the defendant is that the Court should not accept the evidence of [NAME] and [NAME] because it is fabricated, is the product of collusion, and was contaminated at an early stage by [NAME]. There are several strands to this position.

2. I proceed to consider each of the submissions made by the defendant discretely and then jointly. Unfortunately, this approach necessitates some repetition. At the outset, I note that [NAME] submitted in respect of all of these allegations generally that they are without merit, and that the frequency with which they were articulated in the course of the hearing does not give them credence.

3. Before dealing with the specific allegations made by the defendant, by way of background and principle, I note the discussion of collusion and contamination in the English case of R v Momodou [2005] 2 All ER 571; [2005] EWCA Crim 177 ('[NAME]'). At [61], Judge LJ, with whom Dobbs J and Sir [NAME] agreed, said: There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. (See R v Richardson [1971] 2 All ER 773, [1971] 2 QB 484; R v Arif (1993) Times, 17 June); R v Skinner [1994] 99 Cr App R 212; and R v Shaw [2002] EWCA Crim 3004, [2002] All ER (D) 79 (Dec).) The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be 'improved'. These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other witnesses to the same events, the dangers dramatically increase. [NAME]. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited.

1. The principles discussed in [NAME] were also considered in Majinski v Western Australia [2013] WASCA 10; (2013) 226 A Crim R 552 ('Majinski'). At [32], Martin CJ, with whom Buss and Mazza JJA agreed, said: Questioning of a witness moves beyond "proofing" to impermissible "coaching" when the witness' true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness: [NAME] v [NAME]; R v [NAME]. A solicitor or counsel should not advise a witness as to how to answer a question: [COMPANY]; Ex parte Brock. By way of example, in Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 the defendant's solicitors prepared an extensive document for the defendant outlining "possible areas of questioning, (to be passed on to the respective witnesses)" and included suggestions as to appropriate responses which would be in line with the defendant's case [22]. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and "tainted" the defendant's case [182].

1. Relevantly to the allegations of collusion, Cooper AJ said in [NAME] v [NAME] [2005] NSWSC 1053; (2005) Aust Torts Reports 81-816 ('[NAME]') at [246]-[248]: [246] All of the police officers said that they saw nothing wrong with using the notebook or statement of another police officer in order to assist them in preparing their own statements. They emphasised that it was merely to help them refresh their memory and if something was said with which they did not agree they would not have adopted it as part of their own statement. [247] The fact, however, is that what each of the officers was doing was not writing down something that was his/her own independent recollection. What they were doing was accepting the recollection and statements of [NAME] as their own recollection. This practice overlooks the fact that in relying upon another officer's statement as to the details of conversations there is a real danger of it being accepted as correct even though the personal recollection of the writer of the statement may be unclear or slightly different. [248] Furthermore, the value of evidence as corroboration is seriously diminished when that evidence is all based upon a statement of the witness sought to be corroborated.

1. The defendant submits that in the present case the witnesses are not only dishonest but are accomplices, which "exponentially diminishes the evidence that they may give". I proceed to consider each of the specific allegations of collusion and contamination raised by the defendant.

Alleged collusion prior to [NAME]'s arrival at the site 1. The defendant refers to the evidence given by [NAME] that [NAME] told him not to attend the site on the final occasion because there were officers from [NAME] present. The defendant submits that [NAME] took this course so as to ensure that no one else could be interviewed by the officers present that day and that it represented the first opportunity that [NAME] and [NAME] had to "get their heads together".

2. The defendant notes that the phone records before the Court indicate that the call referred to by [NAME] was made, notwithstanding that [NAME] said he did not recall having made the call, did not think that he did so and said he would have had no reason to call [NAME] at that time (at [NAME], 1 November 2018, p 938(46-50)). [NAME] said that it was not true that he called [NAME] to tell him to stay away from the site (at [NAME], 1 November 2018, p 939(4-19)). The defendant submits that the fact that [NAME] was attempting to collude with [NAME] is the reason why he denied the phone call taking place.

3. The defendant further submits that when officers from [NAME] arrived at the site, [NAME] could have simply called the defendant and asked him to come to the site, but that he chose not to do so because he knew that the defendant would not have supported the lies that he told [NAME]. 4. [NAME] submits that in respect of all allegations of collusion between [NAME] and [NAME], the fact that they may have had an opportunity to contact each other does not mean that they colluded and that there is no evidence of collusion at all.

5. In this regard, [NAME] submits:

1. No evidence of collusion emerged from what [NAME] and [NAME] said when they answered questions when they were interviewed by [NAME] or when they gave evidence. [NAME] submits that there were differences in the details of their accounts of events in line with what one would expect from different people who had broadly shared a common experience; 2. [NAME] and [NAME] exhibited a natural and fairly spontaneous demeanour that is not consistent with them having colluded. [NAME] says that [NAME] in particular maintained a degree of spontaneity in his evidence in the face of cross-examination over a period of days and that his demeanour had no ring of collusion to it; and 3. The mobile phone records which were produced by subpoena were presented by the defendant as being probative of collusion when they suggest the opposite. [NAME] says that the records show intermittent and infrequent communication between [NAME] and [NAME] in the period after the job was finished and before they were interviewed by [NAME] which is explicable in large measure by reason of the fact that they worked together on some other jobs. More importantly, [NAME] says that the evidence shows no contact between [NAME] and [NAME] in the lead up to the hearing of the matter in April 2018 or the resumption of the hearing on 22 October 2018.

1. I consider that the intercourse between [NAME] and [NAME] prior to attending the site on the final occasion is neither indicative nor decisive of collusion between them. Whilst I accept that the phone records before the Court are unclear, the mere fact that there may have been a phone call from [NAME] to [NAME] cannot without more be indicative of an attempt to collude. At its highest, it demonstrates an opportunity to collude.

2. Further, the fact, as was submitted by the defendant, that [NAME] "could have simply called the defendant and asked him to come down to the site" is nugatory and would have been liable to expose [NAME]'s false claim made to [NAME] that he bore no responsibility for the felling of the trees at all. Even if it was, as submitted by the defendant, "the first opportunity that [NAME] and [NAME] had to get their heads together", I find this fact, on its own and considered with the whole of the evidence of the contact between [NAME] and [NAME], of little relevance.

Alleged collusion at the site 1. The defendant refers to the evidence of [NAME] that she observed [NAME] and [NAME] walking around the site together after officers from [NAME] arrived on 21 October 2014 and after she had spoken to [NAME]. In an email on 17 February 2015, [NAME] wrote: During my assessment of the site [NAME] (contractor) was speaking with the driver of a Black Nissan Narvara [sic]. The driver of the Nissan Navara was walking around the property of [ADDRESS] with [NAME].

1. As noted above at [124], [NAME] gave evidence that he drove to the site with [NAME] on 21 October 2014, was stopped by someone he referred to as a "ranger", who took his particulars and that he then drove away and did not return to the [NAME] thereafter.

2. The defendant submits that a fair interpretation of the evidence is that [NAME] was the one driving the black Nissan Navara, which is the car that was photographed at the scene and registered in his name. Each of [NAME] and [NAME] denied speaking to each other on the site on that day and [NAME] suggested that [NAME] did not come to the site at all. The defendant submits that this is because they knew that it "would not be a good look" if they were seen talking at the site and that the evidence of [NAME] should be preferred as she has no motive to lie.

3. I consider that the difficulty is that the evidence of [NAME] on this point was somewhat equivocal. In the course of her re-examination she confirmed that she has never met [NAME] and does not know whether the man she saw speaking to [NAME] was [NAME] or not. She said that she formed the view that he was the driver of the black Nissan Navara on the basis that he was sitting in the car which was parked near the Little Diggers Track when she arrived at the site. She also said that one of the other officers accompanying her on that day may have spoken to [NAME].

4. The defendant says that it is unbelievable that an officer from [NAME] took down [NAME]'s details and did not incorporate them into [NAME]'s records. [NAME] accepts that there is no record of [NAME]'s details other than the registration of his car. The defendant submits that [NAME] must have been lying about giving his details to an officer in order to make himself look compliant and cooperative.

5. On the uncontested evidence of [NAME] was also in his car on 21 October 2014, so it does not necessarily follow that the person [NAME] saw in the car was [NAME]. In any event, I consider this to be of relatively little moment. [NAME] and [NAME] spoke together on the site at 21 October 2014 or not, there were certainly opportunities for them to speak after they became aware of [NAME]'s investigation. There is no evidence as to what they may have said on 21 October 2014 with the consequence that I find their appearance together there or otherwise of little significance to the case.

Alleged collusion at the defendant's Killara property 1. The defendant submits that the evidence about the meeting in the defendant's garage at his Killara property on 23 October 2014 between the defendant, [NAME] and [NAME] is a "clear example of [NAME] and [NAME] colluding to blame the defendant". The defendant says that when "their version is compared against that which [NAME] gave it is clear that they both have no problem twisting the truth to suit their needs".

2. The defendant submits that the evidence of [NAME] as to what happened at the meeting should be preferred as he had no motive to lie and moreover that [NAME] has accepted that [NAME] is a witness of truth by calling evidence-in-chief from him in the proceedings. 3. [NAME]'s account of the meeting differs from that of [NAME] and [NAME] in three material respects: 1. [NAME] said that he asked [NAME] about the 10/50 Code and that [NAME] said it was "flexible", which [NAME] denies;

2. That in relation to their stories about what occurred at the site on 21 October 2014, [NAME] and [NAME] were interjecting to support each other's account; and 3. That the defendant did not ask [NAME] and [NAME] to take the blame for what had occurred and did not offer to take care of any fines or financial issues which might arise.

1. The defendant submits that [NAME] is twisting the timeline of the garage meeting to avoid any suggestion that he colluded with [NAME] prior to his arrival at the meeting.

2. This submission does not take account of (or else implicitly rejects) [NAME]'s suggestion that there were two meetings in the garage at the defendant's Killara property; one prior to 21 October 2014, at which the defendant asked [NAME] to go back to the site to clear up fallen branches; and the second on 23 October 2014, after [NAME] was known to be investigating the felling of trees at the site.

3. I also note that it was the evidence of each of [NAME] and [NAME] that they were taken aside by the defendant to be paid. [NAME] said that he did not see payment at those meetings and was not present when either man was paid (at [NAME], 12 November 2018, p 1245(42-46)). There is therefore at least a theoretical possibility that the defendant separately told [NAME] and [NAME] that he wished them to take the blame and that he was prepared to pay for any financial consequences and that [NAME] did not witness it.

4. The defendant notes that the phone records show that there were two more occasions where "communication was at least attempted" between [NAME] and [NAME] prior to the meeting in the defendant's garage. The defendant submits that there is an inference available to the Court that after seeing officers from [NAME] on the site and prior to the meeting on 23 October 2014, [NAME] and [NAME] hatched a plan to deny all responsibility and blame the defendant for what had occurred. The defendant says that the timing of the conversations (or attempted conversations) supports an inference that they were colluding because it is unlikely that they would have been talking about anything else. 5. [NAME] submits, contrary to this position, that the brevity and infrequency of the phone contact between [NAME] and [NAME] supports the opposite inference.

6. I do not accept that there is evidence suggestive of collusion between [NAME] and [NAME] in relation to the meeting with the defendant (and [NAME]) at the defendant's house at Killara. Whilst there was clearly opportunity for [NAME] and [NAME] to speak together before attending the Killara property, I consider that no evidence of collusion emerged from what each of [NAME] and [NAME] said in their respective answers in the recorded interviews. Further, I accept, as [NAME] submits, that there were differences in details in their respective accounts which are understandable.

7. In addition, in relation to each of the defendant's submissions regarding discrete opportunities for collusion, I note that each was cross-examined at length, and in the case of [NAME], over a period of days, during which he maintained a degree of spontaneity in giving evidence, which in my observation is not indicative, and certainly not decisive of collusion particularly in relation to the meeting (or meetings) at the defendant's Killara property.

8. Further, again, the mobile phone records show relatively infrequent communication between them at any relevant time and in particular showed infrequent communication in the period after the incident and before their respective interviews. I accept [NAME]'s submission that the frequency of contact was explicable where the evidence was that they worked together on other jobs. In the circumstances, I do not consider that there was collusion at or in relation to having attendance (or attendances) at the Killara property, with the defendant.

Alleged collusion facilitated by [NAME]

1. I have noted above at [152] that the defendant in cross-examination put to [NAME] a number of propositions in relation to investigative techniques and approaches, with which he agreed. The defendant submits that in spite of giving that evidence, [NAME] broke all of the rules about proper investigative techniques with which he had agreed. He defendant submits that this must give the Court serious doubt as to his objectivity and that it is unbelievable that a person with his experience would negligently or inadvertently make so many errors.

2. The defendant submits that [NAME]' awareness of the dangers of contamination and collusion leave the only reasonable inference as to the reason why he used [NAME] as a conduit to contact [NAME] is that he "deliberately contrived to create the opportunity for collusion". The defendant submits that this inference is supported by the fact that [NAME] gave evidence that he told [NAME] it would be "good" to have [NAME] corroborate him (see above at [155]).

3. The defendant submits that [NAME] deliberately facilitated the cross-contamination and collusion between a number of material witnesses by failing to abide by the principles set out above at [152]. The defendant makes the same submission in relation to [NAME] allowing [NAME] to be present when he interviewed [NAME].

4. The defendant gives the following examples of what it says are [NAME]' orchestrations of the collusion between [NAME] and [NAME]:

1. On 15 July 2016, [NAME] asked [NAME] whether he had spoken to [NAME] (see above at [154]). The defendant submits that by failing to set [NAME] straight about the possibility of being interviewed together he has accepted that the witnesses could speak with each other about their evidence;

2. On 29 July 2016, [NAME] said to [NAME] that it would be "good" to speak to [NAME] and that [NAME] might be able to "corroborate" what was said (see above at [155]). The defendant submits that the use of the word "corroborate" in this circumstance is significant;

3. On 1 August 2016, [NAME] texted [NAME] saying that [NAME] had not yet contacted him (see above at [157]);

4. On 2 August 2016, [NAME] spoke with [NAME] over the phone (see above at [158]). The defendant submits that by encouraging [NAME] to speak to [NAME] was allowing [NAME] to tell [NAME] that the defendant was blaming them for what had occurred and that this created the possibility for contamination;

5. On 4 August 2016, [NAME] sent [NAME] a further text message saying that [NAME] had still not contacted him (see above at [160]); and 6. On 5 August 2016, [NAME] sent [NAME] a further text message (see above at [162]).

1. The defendant submits that [NAME] sought to tell [NAME] that the defendant was trying to blame them and that this affected the evidence given by [NAME] in the proceedings. The defendant also refers to the evidence noted above at [86] and [155] that [NAME] told [NAME] it would be "good" if he could speak to [NAME]. The defendant submits that it is clear that the only "good" thing [NAME] could do from [NAME]'s perspective is corroborate his version.

2. The defendant refers to the phone records and states that between 15 July 2016 and 22 July 2016, "there were at least 10 attempts by [NAME] and [NAME] to communicate with each other". The defendant notes that some of these calls went "for at least a minute". 3. [NAME] and [NAME] spoke over the phone while [NAME] was in Malaysia and the calls continued when [NAME] arrived back in Australia on 8 June 2016. The defendant submits "the frequency and duration of the calls is indicative of these two parties getting their stories straight before either party is interviewed by [NAME]".

4. Of particular significance according to the defendant is a phone call between [NAME] and [NAME] that took place on 29 July 2016, immediately after [NAME]'s interview with [NAME]. [NAME] was on the phone to [NAME] for 190 seconds. [NAME] gave evidence about this call in cross-examination as follows (at [NAME], 1 November 2018, p 925(24-44)): Q. After you were interviewed by [NAME], at 10.22 ‑ according to the record of interview with [NAME] finished at 9.51am that day, the 29th. Do you understand? A. Yes. Q. By 22 minutes past ten, you were on the phone to [NAME]. Just a coincidence, was it? A. That's it, could have been a coincidence. Q. And you spoke? A. Well, we'd gone back to work then. Q. And you spoke for over three minutes. That was just a coincidence? A. Yes, because I was back at the job. And he's got gardening experience, so. Q. Pardon? A. He has gardening experience. Q. You wanted to find out something about that particular job? A. Yeah.

1. The defendant submits that [NAME]'s evidence on this point is "a complete fabrication and a lie".

2. The defendant further notes the evidence of [NAME] (noted above at [157]) that in using [NAME] "as a conduit" to contact [NAME] there was a danger of contamination. [NAME] justified this approach by reference to the fact that [NAME] had been difficult to locate, but the defendant submits that in taking this approach [NAME] gave the witnesses an opportunity to collude and placed his own convenience above the integrity of the evidence. In those circumstances, the defendant submits that the Court could not be satisfied that [NAME] and [NAME] gave a truthful account of what occurred as opposed to a concocted story to place blame on the defendant.

3. As I have noted above at [308]-[309], [NAME] answers these submissions in a general way by saying that the mere fact that [NAME] and [NAME] had the opportunity to contact each other does not mean that they colluded and that the evidence is inconsistent with them having done so. Moreover, [NAME] submits that the phone records do not support an allegation of collusion but rather provide evidence to the opposite effect.

4. I do not repeat my findings and consideration at [310]-[311], [317] and [326]-[328] above but take those matters into account in considering the alleged collusion "facilitated by [NAME]".

5. Whilst, as [NAME] accepts, there were aspects of [NAME]' investigation which were "less than ideal", I do not consider that the evidence given by [NAME] and [NAME] was cross-contaminated because [NAME] had conducted himself in a manner that deliberately facilitated either contamination or collusion. Although I consider that the use of the word "corroborate" was less than ideal, again, I do not consider it determinative that [NAME] was deliberately facilitating collusion.

6. Accepting as I do that [NAME] was an experienced investigator, his explanation as to why he sought to contact [NAME] through [NAME] was understandable and plausible (which is not to say desirable). As noted above, there is no doubt that [NAME] was, at least, reluctant to participate when [NAME] first became involved in the investigation. However, I again consider that the mere opportunity to collude (even if "facilitated" by [NAME]) is not sufficient to suggest that collusion took place.

7. As noted above, the viva voce evidence of both [NAME] and [NAME] was given before the Court in circumstances where each was extensively cross-examined and each was able to deal with the suggestion of collusion by denial. Furthermore, the accounts given by [NAME] and [NAME] in the recorded interviews, again as noted above, contain sufficient differences from each other which I find are explicable given the effluxion of time between the recorded interviews and the incident and indeed the time between the incident and the Court hearing.

8. The defendant's examples of [NAME]' "orchestrations of the collusion" (noted above at [331]) considered both individually and together, do no more than provide a background where an opportunity for collusion may have been enabled however are equally suggestive of the type of intercourse that is likely to have taken place between [NAME] and [NAME] given their working relationship. Moreover, whilst it would have been preferable if [NAME] had not contacted [NAME] through [NAME], I consider that he was doing so because [NAME] had been difficult to contact and do not accept the defendant's submission that [NAME] was deliberately facilitating collusion between the witnesses.

9. Additionally, I do not accept that the phone records display a "frequency and duration" that is indicative that they are "getting their stories straight" before either party is interviewed by [NAME], as submitted by the defendant.

Alleged collusion over the phone generally 1. The defendant notes the following about the phone records as they relate to communication between [NAME] and [NAME]:

1. Between 21 October 2014 and 4 August 2016, there were at least 48 attempts of communication between [NAME] and [NAME]; 2. 23 of the "attempts" had a duration of over 16 seconds, the longest being 5 minutes and 15 seconds;

3. Some of the communication occurred while [NAME] was overseas;

4. Eight attempts at communication were made on 21 October 2014, after officers from [NAME] arrived at the site. Three of those attempts lasted for more than 90 seconds; 5. [NAME] sent [NAME] a text message on 23 October 2014 prior to meeting [NAME] and the defendant at the defendant's Killara property; 6. [NAME] contacted [NAME] on 15 July 2016, there were a number of attempts made by [NAME] to communicate with [NAME]. [NAME] attempted to call [NAME] three times and sent him a text message before finally contacting [NAME] on 16 July 2016. The first of the calls on 16 July 2016 lasted for 129 seconds. A further call on 18 July 2016 lasted for 179 seconds. On 22 July 2017, [NAME] spoke to [NAME] for 97 seconds; 7. [NAME] interviewed [NAME] called [NAME] for 190 seconds; and 8. [NAME] sent [NAME] a text message on 4 October 2016, after which [NAME] attempted to contact [NAME].

1. The defendant submits that the phone records demonstrate clear opportunities for [NAME] and [NAME] to get their heads together and clear up their story over the phone. The defendant also says logically there may have been opportunities for collusion face to face. The defendant submits that the evidence of contact after [NAME] had begun investigating the matter was of particular significance as it showed both [NAME] and [NAME] speaking before they were formally interviewed.

2. A number of matters about this evidence should be noted at the outset. First, of the 48 "attempts" at communication between [NAME] and [NAME], many are properly characterised as attempts only as the duration shown in the data is inconsistent with phone contact having been successfully effected.

3. Secondly, the duration of even the longer calls is inconsistent with lengthy discourse. Obviously the possibility of [NAME] and [NAME] meeting to speak in person cannot be excluded on the basis of the phone records, but these phone records do not establish the fact of a conversation between [NAME] and [NAME] of a duration of over five minutes and 15 seconds.

4. Thirdly, there is evidence before the Court as to the possible contents of a number of the phone calls: 1. [NAME] said that [NAME] called him on the morning of 21 October 2014 asking him not to come to the site because officers from [NAME] were there (see above at [122]); 2. [NAME] further said that [NAME] called him later that day to fill him in on the attendance of [NAME] at the site (see above at [125]);

3. It is agreed that [NAME] sought to have [NAME] contact [NAME] to check his availability for an interview. Putting to one side the question of the desirability of that approach on the part of [NAME], a number of the "attempts" at communication are explicable on this basis, including the phone call between [NAME] and [NAME] that took place on 29 July 2016 immediately after [NAME]'s interview with [NAME]; and 4. It was suggested by each of [NAME] and [NAME] that they referred work to each other after meeting at the site in 2014.

1. Fourthly, and like all of the evidence about collusion in the proceedings, I find that none of the evidence about the possible contents of the phone calls suggests evidence of actual collusion as distinct from evidence of communication from which it might be inferred that collusion could have taken place.

2. As a result of the above, I consider that the phone records do not suggest anything more than opportunities for collusion. I have considered these opportunities in my evaluation of the whole of the evidence, however I find that on their own, or considered collectively, the defendant's complaints fail to establish that the evidence of [NAME] and/or [NAME] was the result of collusion or contamination (even if [NAME] had inadvertently facilitated the opportunity for collusion by his conduct).

Alleged collusion between [NAME] and [NAME]

1. The defendant notes that, at the time [NAME] was interviewed by [NAME] had told him that the defendant was trying to deflect the blame for what had happened to [NAME] (at [NAME], 29 October 2018, p 715(14-16)): Q. By the way, earlier, prior to the [NAME] interview, [NAME] had told you that [NAME] was blaming [NAME], for what happened? A. That is correct.

1. The defendant also notes that [NAME] had discussed the matter with [NAME] before being interviewed with [NAME] (at [NAME], 29 October 2018, p 715(31-49)): Q. [[NAME]] told you about it, over the years leading up to the interview? A. Well, whenever we discussed it, sort of thing. Q. Which was often enough, I suppose? A. Not a great deal. Q. But certainly you discussed it before [NAME] came on the scene, didn't you? A. We had discussed about it, yeah. Q. What had you discussed, [NAME]? A. To be honest, I don't recall. I can't give you a proper answer on that. Q. You've already agreed that your uncle told you that [NAME] was blaming your uncle for it. Do you agree with that? A. Yeah, I agree with that. Q. You've agreed that your uncle was quite concerned? A. Yes.

1. The defendant submits that [NAME] was "desperate" for [NAME] to support his account of the events that transpired at the site to the extent that he wanted [NAME] present that day despite him being sick. [NAME] gave evidence about this as follows (at [NAME], 29 October 2018, p 722(2-8)): A. But, to be honest with you, like I said, I was sick that day. Having that interview, all I wanted to do was hurry up the conversation. I didn't even want to work that day but [NAME] was desperate for a worker that day. Q. Yes. And he knew that was the day that [NAME] was going to interview him; correct? A. I think it just sprung up, basically. 1. [NAME] submits that the defendant's contention that [NAME] colluded with [NAME] is "risible". [NAME] submits that whilst [NAME] is [NAME]'s nephew, they evidently had little contact including in the run-up to the resumed hearing. Moreover, [NAME] submits that any allegation that [NAME] was colluding with [NAME] faces the hurdle that [NAME] expressed his recollection that the work at the site lasted eight days, whereas [NAME] thought that it lasted for two or three months.

2. Again I accept that there was an opportunity for collusion between [NAME] and [NAME]. However, despite this, considered separately, the oral evidence of each is sufficiently different to militate against any reasonable suggestion that there was collusion. There is no doubt there had been contact between [NAME] and [NAME] however I accept the fact that [NAME] was working with [NAME] on the day that [NAME] conducted the interviews is understandable in the circumstances. Again, for the reasons noted above, the mere fact that there was an opportunity is not evidence of collusion absent more.

3. In the circumstances, where no evidence of collusion emerged from what each had said during the recorded interviews, the fact that there were differences in the details in respect of certain events (such differences not being unexpected) and having observed each giving oral evidence (and being subjected to extensive intense cross-examination) I accept that each of [NAME] and [NAME] displayed a demeanour and gave evidence in a manner which is not consistent with collusion having occurred. Again, each of the discrete submissions regarding the opportunities (over the phone and otherwise) both individually and together do not in my view, amount to persuasive evidence that collusion took place.

The red and blue contamination allegedly caused by [NAME]

1. The defendant complains about the use to which [NAME] put the aerial photograph of the site marked in red and blue by [NAME] during his record of interview. As noted above, [NAME] used the same aerial photograph with [NAME]'s markings when he interviewed [NAME] immediately afterwards ([NAME] stated that he did not have a clean copy of the aerial photograph with him on that occasion and that he had not expected to interview both [NAME] and [NAME] on that day) and used the same photograph when he later interviewed [NAME].

2. The defendant further complains that the aerial photograph was one of the site taken after the clearing took place and although [NAME] gave evidence that he did not have an aerial photograph of the site in its uncleared state, the defendant says that it "defies belief" that [NAME] could not have obtained one if he attempted to do so.

3. The defendant submits that [NAME]' evidence that in using the photograph marked by [NAME] he was attempting to elicit from [NAME] whether any further areas had been cleared (see above at [164]-[165]) should cause the Court to have concerns not only about [NAME]' evidence but about his approach to the investigation generally. The defendant submits that [NAME] appears to have approached the interview with [NAME] with the intention of having him expand the areas given to him already by [NAME] with a view to building the largest possible case against the defendant.

4. Further to my comment at [341] above in relation to [NAME]' approach to the investigation, whilst I accept that the use of the same copy of the aerial photograph was less than ideal, it was understandable in the circumstances and I draw no adverse inference from [NAME]' conduct. Whilst the markings made by [NAME] may have influenced the memory of [NAME] and [NAME], the circumstances (leading to the provision of the marked aerial photograph as explained by [NAME]), are understandable. Again, the fact that [NAME] did not have (or did not obtain) a second copy of the aerial photograph is, in my view, nugatory.

[NAME] contamination allegedly caused by [NAME] 1. [NAME] accepts that there were aspects of [NAME]' investigation that were "less than ideal, including the fact that he allowed [NAME] to participate in the interview with [NAME]".

2. The defendant submits that [NAME], in allowing [NAME] and [NAME] to be interviewed together, acted contrary to what he agreed was best practice investigative technique (see above at [152]) and contaminated the evidence of [NAME].

3. The defendant points to evidence that [NAME] gave in relation to [NAME]'s presence at his interview with [NAME] (at [NAME], 24 October 2014, p 461(1-9)): Q. But it's fair to say [NAME] [[NAME]] helped you with matters that you couldn't recollect? A. Yes. Q. And on a number of occasions, when you couldn't recall something, [NAME] would say what his position was; is that right? A. Yes. Q. Yes. And sometimes he was right and you changed your view? A. Yes.

1. Further, [NAME] agreed that he was happy that [NAME] was present and that he was happy that [NAME] could assist him with things that he had forgotten or had got wrong (at [NAME], 24 October 2018, p 461(22-27)).

2. The defendant also points to the following comments of [NAME] (at [NAME], 30 October 2018, p 849(14-22)): Q. Go to page 12 [of the transcript of [NAME]' interview with [NAME]]. Before I take you to page 12, did you at that stage consider having [NAME] removed from the interview? A. No. Q. Did it ever cross your mind at all, given all the answers he was volunteering or giving? A. The, it was too far into the interview, and he'd been, he'd listened to quite a bit of the information that was provided. So I thought that he's probably already, the information may already be contaminated. 1. [NAME] agreed that, in hindsight, he should have removed [NAME] from the room (at [NAME], 30 October 2018, p 851(32-34)).

2. Again, these further criticisms of [NAME]' conduct do not, either on their own or when considered with the other criticisms, detract significantly from the weight which I attribute to the evidence of [NAME]. I find that the fact that [NAME] permitted [NAME] to be present during the evidence of [NAME] does not necessarily amount to the contamination of [NAME]'s evidence. I find this even though [NAME] gave evidence that having [NAME] present may have "helped" him in relation to some matters that he could not recollect.

3. Again, better practice, as accepted by [NAME], would have been to have separated the witnesses. In the circumstances, whilst this is a matter I take into account in my consideration of the overall reliability and credibility of [NAME], having considered the contributions made by [NAME] in [NAME]'s record of interview and the extensive cross-examination and re-examination in relation to those matters, I do not consider that it is a matter of significance especially when regard is had to the precise details that were contributed by [NAME] in [NAME]'s recorded interview.

The approach to the assessment of credibility 1. As much of the present case turns upon the extent to which I accept or do not accept the evidence of the witnesses called for the prosecution, it is appropriate to give a brief overview of the approach courts take to the assessment of credibility.

2. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 ('[NAME] v [NAME]'), Gleeson CJ, Gummow and Kirby JJ at [23] described the evidentiary advantage of a trial judge over an appellate court as follows: …On the one hand, the appellate court is obliged to ''give the judgment which in its opinion ought to have been given in the first instance''. On the other, it must, of necessity, observe the ''natural limitations'' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the ''feeling'' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole (citations omitted).

1. However, at [30]-[31], they sounded a cautionary note as to the reliance which should be placed on findings of credibility: [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in [NAME] ([NAME]) v [NAME] (The ''Palitana''): ''…I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.'' [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical (some citations omitted).

1. The relevance of the High Court's comments in [NAME] v [NAME] to the task of a trial judge was examined by [NAME] in Seven Network Limited v News Limited [2007] FCA 1062 at [373] where [NAME] said: The present judgment follows a trial at which a great deal of evidence was given by many witnesses. It is not an appellate judgment. Nonetheless, the observations in [NAME] v [NAME] are pertinent to the fact-finding process a trial judge is required to undertake. It is not inconsistent with those observations to observe that the importance of 'demeanour' as an indicator of the reliability of a witness may vary according to the circumstances. It may be quite inappropriate, to take an example not relevant to this case, to regard an indigenous person's apparent unwillingness to make eye contact and hesitancy in answering questions as demonstrating untruthfulness. But if a confident and articulate witness becomes hesitant and defensive when confronted with documentary evidence apparently at odds with his or her own account of events, the witness' hesitancy might well suggest a lack of candour: see [NAME], at 662.

The credibility of [NAME]

1. The defendant submits that the Court would not accept the evidence of [NAME]. The defendant makes this submission having regard to the fact that his evidence is unreliable (see the warnings and directions above at [247]) and what the defendant says are examples of specific lies by [NAME] in the proceedings. I shall consider those below. 2. [NAME] says that the Court should accept [NAME] as a witness of truth having regard to what it says was his sincere and honest demeanour when he gave evidence in these proceedings.

3. Conversely, the defendant submits that each of [NAME] and [NAME] was evasive, had a very selective recall, used the phrase "couldn't recall" on many occasions, avoided eye contract, had poor body language and took a number of long pauses whilst giving evidence. The defendant also submits that [NAME] would [NAME] his evidence when confronted with irrefutable facts.

4. I shall consider the examples raised by the defendant and submissions made by each of the parties, and will make overall findings taking into account those examples as well as the warnings and directions which I have considered at [247]-[298].

[NAME]'s alleged lies to [NAME] 1. [NAME] accepts that [NAME], when initially confronted on the site by [NAME] on 21 October 2014, denied having cut down the trees in the lower part of the site. [NAME] says that merely because someone initially denies something when confronted by an authority figure, this does not automatically mean that what they later say should be considered untrue.

2. In this regard, [NAME] says that [NAME] "came clean", admitted what he had done, and accepted responsibility and punishment for it. It submits that he told the truth against his own interest.

3. Conversely, the defendant submits that [NAME]'s memory was selective when he gave evidence about his conversation with [NAME]. The defendant notes that [NAME] could recall the beginning of the conversation but could not recall the information he gave [NAME] (see above at [73]-[80]). The defendant further notes that [NAME] said that he did not believe that he was in trouble at that time, which is contradicted by the fact that he felt it was necessary to lie about whether he had carried out the work that [NAME] was investigating.

4. Moreover, the defendant notes that [NAME] accepted that it would have been a lie if he said that his crew was not responsible for felling trees at the bottom of the property and further that he denied that he would have lied to [NAME], noting his comments as follows (at [NAME], 17 April 2018, p 121(7-12)): Q. If you did say it was there a reason why you weren't giving any further information? A. I wouldn't have said that. Q. Pardon? A. Not to a council officer.

1. Self-evidently, this answer is given on a contingent basis. In answer to that question, [NAME] does not purport to give a blanket assurance that he did not say but merely says that he would not. Arguably more relevant in this regard, but not specifically relied upon by the defendant, were [NAME]'s comments extracted above at [75] (at [NAME], 17 April 2018, p 118(31-36)): Q. You lied to her, didn't you? A. No, I didn't lie to her. Q. You see this is what you told her "we started here a week ago but I haven't been to the site before today"? A. That's incorrect.

1. In fairness to [NAME], all of these comments must be seen in the light that he stated he could not remember the details of his conversation with [NAME] on 21 October 2014. However, the proposition that he would not have said these things is contrary to the contemporary note of the conversation prepared by [NAME]. Having regard to [NAME]'s evidence, the fact that she took a contemporaneous note of the conversation, and the fact that [NAME] on his own account could not recall the details of the conversation, leads me to the view that [NAME] did lie to [NAME] in his initial conversation with her about his responsibility for the felling of trees at the bottom of the site.

2. On one view, not a great deal turns on this. As [NAME] submits, the fact that [NAME] was untruthful to [NAME] (and noting that it is unclear whether [NAME] was interviewed formally on that occasion), does not necessarily impugn his later evidence. However, the fact that he lied on that occasion does make it difficult to accept his evidence that he was subsequently unaware that he may have been in trouble in relation to the commission of the offence. It is difficult to understand his motivation for lying to [NAME] if he did not believe there was the spectre of punishment awaiting him for the felling of trees at the site.

[NAME]'s alleged lies about the pink paint 1. In cross-examination, [NAME] accepted as a general proposition that paint is sometimes used in his profession to mark trees that are to be cut down (at [NAME], 16 April 2018, p 73(50)). However, he denied that any trees had been marked with paint at the site (at [NAME], 16 April 2018, p 74(1-5)): Q. And did you or [NAME] paint any trees? A. No. Q. Did you paint any trees? A. No.

1. He continued to deny that any trees were marked with paint (at [NAME], 16 April 2018, p 74(38-47)): Q. And, can I suggest to you that some of those trees were marked with paint? A. No, they weren't. Q. Pardon? A. No. Q. Are you saying none of the trees that you cut down were marked with any paint? A. I can't recall any trees being marked or anything like that, no.

1. The defendant submits that [NAME]'s denial that there was pink paint on any of the trees must cast serious doubt over his ability to give credible and reliable evidence. The defendant says that the use of the pink paint is a material piece of evidence which one would expect [NAME] to remember.

2. Contrary to the position of the defendant, I am not persuaded that one would expect [NAME] to remember the use of pink paint almost four years after the event. It is worth remembering in that regard that only 10 of the 74 trees the subject of the charge in these proceedings were marked with pink paint. In those circumstances, and noting that [NAME] did not gain any advantage by stating that none of the trees were marked with pink paint, I consider that in all likelihood [NAME] simply forgot that any trees had been marked with pink paint at the site. This might cause one to draw an adverse inference about his recall, but not his honesty (I note, however, that imperfect recollection is a matter which goes to the credibility of a witness, as that term is defined in the Evidence Act: Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328 at [265]. The characterisation of evidence as "credibility evidence" or otherwise is principally relevant to admissibility, but the accuracy of [NAME]'s recollection is a matter I consider below when determining whether to accept his evidence).

[NAME]'s alleged lies about [NAME] 1. [NAME] gave evidence that the defendant initially wanted "three large casuarina trees" and the shrub closest to the house at the [NAME] removed (see above at [59]). The defendant submits that this evidence is a lie.

2. The defendant submits the following in relation to [NAME]'s evidence about the three casuarinas: 1. [NAME] gave evidence that he attended the [NAME] and walked around it with the defendant (see above at [59]). [NAME] said that the defendant instructed him to remove the three closest casuarinas which were on the eastern side of the property within 10m. The defendant submits that this evidence is completely fabricated, unsupported by any other evidence, and inconsistent with objective evidence presented as part of the prosecution case. (I note, however, that the defendant did not identify the pieces of objective evidence with which it says this account is inconsistent); 2. [NAME] gave evidence that the conversation on that occasion involved the removal of three casuarinas close to the house (see above at [59]). The defendant again submits that this conversation is not supported by any other witnesses, is uncorroborated by any independent evidence, is completely fabricated, and is inconsistent with the objective evidence about which trees were removed; 3. [NAME] stated that [NAME] were removed at the start of the job whereupon the defendant gave him further instructions (see above at [60]). The defendant submits that [NAME] is "piggy backing one lie off another to make his story sound credible";

4. The survey evidence can be considered incontrovertible evidence which suggests that [NAME] was lying about this conversation and the directions he purportedly received. The survey evidence does not show three large casuarinas close to the house having been removed. The evidence shows the following trees close to the house:

1. Tree label 102 is approximately 13m from the house and near the concrete drain;

2. Tree label 65 is approximately 18m from the house;

3. Tree label 67 is approximately 30m from the house;

4. Tree label 52 is approximately 36m from the house;

5. Tree label 100 is approximately 38m from the house; and 6. Tree label 51 is approximately 40m from the house.

1. The defendant notes that the closest casuarina to the house is tree 102, but that this tree was marked as "fresh" by [NAME] on 21 October 2014, indicating that it had been removed in the last three to four days. The defendant says that it cannot have been removed at the beginning of the job and further is near the concrete drain in an area which [NAME] said "wasn't us".

1. Having regard to those matters, the defendant says that the Court would commit an error by finding that [NAME] was telling the truth in relation to this evidence. The defendant submits that if the Court accepts the incontrovertible evidence that there were not three large casuarinas within 10m of the house at the [NAME]'s evidence that he received such instructions cannot be accepted.

2. Further, the defendant notes that [NAME] did not tell [NAME] about these instructions and did not mention them in his recorded interview with [NAME]. The defendant submits that having regard to the significance of the evidence, one would expect [NAME] to have told [NAME] about it prior to giving evidence in these proceedings in April 2018.

3. It is clear that the [COMPANY] survey (see above at [173]) does not show three casuarinas having been removed within 10m of the house at the [NAME]. However, it is also clear from the affidavit evidence of [NAME] that the majority of the trees removed from the site were casuarinas. Moreover, [NAME] gave evidence that he did not measure the distance between the house and any of the trees felled (see above at [69]).

4. Further, the evidence which [NAME] gave in the proceedings was that the three casuarinas were "roughly 10 metres" from the house (at [NAME], 16 April 2018, p 36 (5)), not necessarily that the trees were "within 10 metres". This was almost four years after the event, in circumstances where [NAME] had never taken measurements of the trees at the site. I acknowledge that the trees recorded on the [COMPANY] survey indicate the trees must have been between (at least) 18m to 36m away, but I am not persuaded that this is evidence capable of proving [NAME]'s account was fabricated as opposed to being affected by [NAME]'s memory and perhaps his failure to measure trees at the time the site was cleared.

[NAME]'s alleged lies about contractors 1. The defendant notes that, during the course of his interview with [NAME] "let slip" that one of [NAME]'s cousins was present at the site. After the break in the interview, [NAME] said that he only knew the people at the site as labourers. [NAME] also gave evidence that, when he was not at the site, [NAME]'s brother-in-law was there in his stead. [NAME] also gave evidence that he worked with two different backpackers from Avalon.

2. The defendant submits that [NAME] was not forthcoming with any of this information and that his omissions in that regard were "clearly an attempt to cover up the identity of the other workers who were on the site". The defendant says one possible explanation for this is that it was against his business interests to name those he was working with at the site as it would damage his reputation in the industry. The defendant also says that the omissions allowed [NAME]'s lies to go unchallenged throughout the investigation which diminished his role in the commission of the crime.

3. The defendant notes that [NAME] agreed that the other climber was an itinerant climber who travelled all the states and further notes that [NAME] denied having a cousin or his brother-in-law at the site. The defendant submits that [NAME] clearly knew who else he had working on the site on the basis of his answer to [NAME]' question (that he did not wish to give out names as he might incriminate himself or others), and further submits that adding to the evidence of a cover up is the lack of a paper trail which one would expect to exist for tax purposes.

4. I do not consider that it is affirmatively established that [NAME] was untruthful about the contractors who worked on the site. The fact that, when interviewed by [NAME] was reluctant to give him the names of people who were with him on the site is a matter which gives me further cause to doubt his evidence that he did not consider that he might have been in trouble for the commission of the offence, but I do not consider that it is a matter which otherwise adversely affects his credit.

5. Whilst there are some discrepancies between the account [NAME] gave to [NAME] with respect to the workers who were present for the work at the site and the account [NAME] gave in these proceedings, [NAME]'s recall of the events was not especially good and it is certainly possible that he was interpolating the presence of [NAME]'s cousin and brother-in-law from a different job. Moreover, even if it were established definitively that [NAME]'s cousin and brother-in-law were present at the site whilst the works were carried out, which I do not consider is the case, [NAME] had a motive for protecting them from investigation which has no bearing on the truthfulness of his other evidence. It is not a matter which, even if established, I consider would necessarily detract from the reliability of the rest of [NAME]'s account.

Assessment of [NAME]'s credibility 1. In considering [NAME]'s evidence, I have taken into account the judicial observations noted at [372]-[374]. I am entitled to accept part of a witness' evidence and reject other parts. I have watched [NAME] closely and considered both what he has said in his evidence and his demeanour. As I am conscious of the "scientific research that has cast doubt on the ability of judges (or anyone else) to tell the truth from falsehood accurately on the basis of such appearances" ([NAME] v [NAME] at [31]), I do not rely solely upon demeanour and I accept that it is important to look at the objective established facts, contemporaneous materials and, importantly, the apparent logic of events.

2. Moreover, as I considered above at [247]-[253] and [268]-[281] in relation to directions and warnings requested by the defendant, I repeat that I approach [NAME]'s evidence with caution in that he may have desired to shift the blame from himself to the defendant and may have constructed an untruthful version of events. Further, he may have been motivated by the fact that he received a penalty which took into account as a mitigating factor the assistance he was to give in the prosecution of the defendant.

3. In my assessment of [NAME]'s evidence, I am also conscious of the direction in the Bench Book (noted at [275] and [276] above) and the careful submissions of the defendant in this regard. I take into account the warnings that his evidence may be unreliable and, as I have noted above, I consider the evidence of [NAME] is of the kind that may be unreliable because he is a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings.

Accordingly, I approach his evidence with caution in that regard.

4. As I have found above (at [288]), I do not consider a warning is warranted in relation to the suggested prior inconsistent statement (as suggested by the defendant) however I take into account the evidence that [NAME] in his conversation with [NAME] of 21 October 2014 denied having cut down the trees at the south of the site and made no mention of the defendant. In each respect, his comments when speaking to [NAME] were contrary to his evidence given in the course of these proceedings.

5. However, consistently with my consideration at [384]-[385] above, I do not find that this is a determinative matter although it does lead me to treat [NAME]'s claims that he did not suspect that he was in trouble with caution. I do not consider that anything turns on the fact that [NAME] failed to identify the defendant in his conversation with [NAME] because, in that conversation, [NAME] denied having cut down the trees at all. It does not necessarily follow that the reason he did not identify the defendant at that time is because the defendant had not instructed him to cut down the trees. Rather, [NAME] appears to have wished to avoid liability entirely. Receiving instructions from the defendant would not have inoculated [NAME] from legal responsibility in respect of actually having cut down the trees. Indeed, as much is illustrated by the fact that he was sentenced in the [NAME] proceedings despite it being an agreed fact for the purpose of those proceedings that he was acting under instruction.

6. Whilst again attempting to avoid repetition, I have dealt with above the defendant's allegations of collusion and contamination in relation to [NAME] (and [NAME] and [NAME]) in the various instances as submitted by the defendant (at [305]-[328]), and in relation to the alleged collusion "facilitated" by [NAME] (at [329]-[345]). I have also dealt with the alleged collusion over the phone generally (at [346]-[352]) and the further alleged collusion between [NAME] and [NAME] (at [353]-[358]). I do not repeat my earlier consideration and my findings but take those matters into account in assessing [NAME]'s credibility especially in regard to the further circumstances raised by the defendant (noted and considered at [375]-[400] above).

7. The defendant made a significant and sustained attack upon [NAME]'s credibility particularly that he fabricated his evidence and answers given to [NAME]; that he fabricated evidence about instructions he was given by the defendant to clear trees (specifically in relation to the casuarina trees); that he and [NAME] "got their heads together" to blame the defendant; that by the time he had his interview with [NAME] he "had his story straight with [NAME]"; that he was anxious for [NAME] to corroborate his version; that he used the defendant as a scapegoat; that he was prepared to give evidence against the defendant because it would assist his own matter before the Court; and that the trees had been cut down at his own "initiative" (at [NAME], 16 April 2018, p 85(24-26)).

8. The nature and extent of [NAME]'s evidence has been summarised above at [58]-[93].

9. My overall impression is that [NAME] is a witness of truth. Whilst I had some concern in relation to his initial communications with [NAME], I consider that he displayed an appropriately sincere and honest demeanour when he gave evidence including sustained and forceful cross-examination much of which went directly to his credit.

10. I accept that his initial dealing with [NAME] sat uncomfortably with his later evidence however I accept the submission of [NAME] and I find that the lack of detail given to [NAME], particularly in relation to the defendant, in the initial attendance (which I have considered at [383]-[385] above), does not significantly affect my consideration of his later evidence.

11. In relation to the alleged lies about the pink paint, I have dealt with this at [389] above; in relation to the alleged lies about [NAME], I have dealt with this at [394]-[395] above; and, in relation to the alleged lies about the contractors, I have dealt with this at [399]-[400] above.

12. There are a number of aspects of [NAME]'s evidence about which I do harbour some concern. In particular, I find his evidence that he did not believe he was in trouble at material times difficult to accept and I also consider that his recollection of various events is imperfect.

13. Despite this, in all of the circumstances, I accept [NAME] as a witness of truth in relation to the matters which I consider are of significance. These relate particularly to his evidence regarding the conduct of the work on the site in October 2014; the time he was on the site; and the nature and extent of the work involving removal of trees, shrubs and bushland.

14. I also accept [NAME]'s evidence that the work was done in stages, the first stage being the removal of casuarinas on the eastern-side of the property at the defendant's direction, together with the removal of some shrubs close to the house; and thereafter, the second stage being the progressive removal south of the property.

15. I accept, with some caution, the bulk of [NAME]'s evidence in relation to the work undertaken which he marked on the aerial photograph, however I find that the area which he marked in the interview with [NAME] was an understatement or under-recording of that which was cleared at the site. The general shape of the clearing on the map is broadly consistent with the pattern that was undertaken but it is clear, having regard to the other evidence before the Court, and in particular the survey map prepared by [COMPANY], [NAME] understated the extent of clearing. He may have done so to minimise his own involvement in the offence or he may have done so because he was confused by the nature of the aerial photograph which showed some areas completely free of trees and others which were merely thinned. I find that [NAME]'s evidence was understated in this regard in the context of the evidence in the proceedings including the evidence of the other witnesses regarding the trees that were cut down.

16. Importantly, I accept [NAME]'s evidence in relation to the defendant's attendances upon the site and the instructions and/or directions given. As I shall explain below, although I treat it with caution, this evidence is corroborated by the accounts given by [NAME] and [NAME]. Whilst I note that the defendant submitted that the contractors are unable to corroborate one another because they are accomplices, for the reasons given above at [282]-[285], I do not accept this submission. Moreover, I find that the evidence given by [NAME] in this regard is consistent with the "apparent logic of events" ([NAME] v [NAME] at [31]). This is a consideration I return to later in the judgment.

The credibility of [NAME] 1. [NAME] submits that, whilst it would be fair to conclude that [NAME] was initially uncooperative when [NAME] first attempted to arrange an interview, the evidence does not establish that he fabricated any aspect of his evidence, and that the defendant has failed to make a persuasive argument to the contrary. 2. [NAME] notes that [NAME] was in the witness box for a number of days and was the subject of "searching and robust" cross-examination. [NAME] submits that, in giving his evidence, [NAME] was open, prepared to make concessions, and candid about what he could and could not remember. [NAME] submits that he should be accepted as a witness of truth.

3. As noted at [377] above, the defendant submits that [NAME] was evasive, had a very selective recall, used the phrase "couldn't recall" on many occasions, avoided eye contact, had poor body language, and took a number of long pauses whilst giving evidence. The defendant also submits that [NAME] had "the audacity to claim that he was confused when he said he 'sat' on a letter". The defendant says that the Court will recall the way [NAME] tried to "distance his father from the run around until he was confronted by the letter that his father had signed".

4. The defendant makes one specific claim that [NAME] lied while giving evidence which is that he fabricated his account of the defendant instructing him to mark certain trees with pink paint (see above at [114]). The defendant notes that prior to giving evidence in these proceedings, [NAME] never mentioned that he was directed to mark certain trees with paint and submits that this is a recent invention which amounts to fabrication on a material issue.

5. The defendant further submits that [NAME]'s evidence about the defendant pointing out specific trees from the locations identified by [NAME] is a nonsense and inconsistent with his own evidence that the defendant identified areas rather than "what tree to chop out" (at [NAME], 25 October 2018, p 535(10-12)). The defendant says that it is "inconceivable that the defendant from the clothesline or veranda could have singled out 3 or 4 specific trees, 45 to 60 metres away, amongst so many others".

6. Moreover, the defendant submits that [NAME] could only have been concealing the information that he marked trees with pink paint because it would have put him in a position of control over the tree loppers. The defendant says there is no other explanation for [NAME] leaving out a material piece of information in the case.

7. I have taken into account the judicial observations noted above at [372]-[374]. I refer to my consideration of [NAME]'s evidence both by way of summaries at [94]-[134] above and further, in relation to directions and warnings requested at [282]-[284], [288] and [294]-[295]. I have also dealt with the defendant's specific allegations in relation to collusion and contamination involving [NAME] at [305]-[352].

8. Having watched [NAME] closely and considering both his evidence and his demeanour in the witness box, and conscious of the limited utility of demeanour as an indicator of truthfulness when considered in isolation, my overall impression is that [NAME] is a witness of truth. For abundant caution, although not in my view relevant, no criticism of [NAME] could be made that [NAME] was present during his interview.

9. The fact that [NAME] was initially uncooperative in relation to the attempts by [NAME] to arrange an interview is not conduct which I consider affects his credibility. His explanation and conduct regarding his receipt (or otherwise knowledge) of the initial letter requesting an interview from [NAME] is of some concern, however in all the circumstances, I consider that it is not a significant concern and somewhat understandable. Whilst the defendant seeks to make much of this initial conduct, I do not consider that it is of significance in relation to his credibility.

10. He was subject to significant testing in lengthy cross-examination over a number of days. In total, he was in the witness box for five days, from Monday 22 October 2018 to Friday 26 October 2018. A good deal of his evidence is not in dispute and parts are corroborated by independent evidence such as phone records, as I consider below. It was not in dispute for example, that he had been retained by the defendant and there is evidence in the phone records to suggest that he was honest and reliable when he gave evidence that he had been in phone contact with the defendant. Further, his account of the defendant telling him that he wished to carry out building works at the site is consistent with the evidence of [NAME] and [NAME]. I consider that he was candid in his evidence about that which he could remember and that which he could not. I also consider that he was able to make concessions and his inability to recall certain matters is not indicative of evasiveness.

11. In relation to the defendant's other submission that [NAME] fabricated his evidence regarding the defendant's instructions to mark certain trees with pink paint, and in particular that it was not "raised earlier" (as per [420] above), I am not persuaded that the defendant has established that this evidence was fabricated. I accept his evidence that he was directed to mark trees with pink paint by the defendant is not corroborated or mentioned by any other witness, but the evidence of [NAME] demonstrates that 10 trees on the site were marked with pink paint, and the location of the trees so marked was broadly consistent with the area in which [NAME] stated he marked trees on the defendant's instruction.

The credibility of [NAME] 1. [NAME] submits that, whilst [NAME] "did not have a very good recall of the relevant events", he exhibited an untroubled and open demeanour in giving his evidence and that he too should be regarded as a witness of truth.

2. The defendant did not make any specific allegation that [NAME] told untruths in the course of his evidence, but submitted, as noted above at [268]-[288] and [293]-[295], that various warnings and directions should be given about the dangers of accepting his evidence.

3. In relation to [NAME]'s credibility, I initially note my findings above. At [285], I found that as [NAME] did not give evidence while under any genuine apprehension of being punished for his involvement in the commission of the offence, so did not have any motive to deflect blame, and I did not consider that a warning or direction was appropriate in relation to either accomplice evidence (or being criminally concerned) or in relation to [NAME] having a motive to lie. At [357], I found that whilst there was an opportunity for collusion between [NAME] and [NAME], there was no evidence of collusion. I consider that, although [NAME] had some difficulty with his recollection of events, this was understandable given the effluxion of time. Finally, having observed his demeanour in the witness box, he appeared on the whole to be responding to the questions as well as he could. In all, I find that he is a witness of truth.

Matters said to corroborate the account of the defendant 1. The defendant submits that the credibility of his account given in his record of interview is bolstered by the fact that the following matters are corroborated in the evidence: 1. [NAME] accepted that he did landscaping work; 2. [NAME]'s full name was [NAME], not [NAME]; 3. [NAME] did do work for the defendant in the past; 4. [NAME] did charge $4,000 for one day's work previously; 5. [NAME] did not charge $4,000 a day on this occasion but a daily rate of $2,000;

6. The defendant has never come to the attention of [NAME] or any other law enforcement agency before;

7. The defendant was out of the country from 10 to 14 October 2014, on 30 October 2014, 11 November 2014, and also left the country on 17 November 2014; 8. [NAME] gave evidence that there was "bushy stuff" that might get in the road when they were going to bring a beam in and he wanted to have a clear pathway;

9. The [NAME] has an "[NAME]" listed upon it at a time when the defendant says he spoke with [NAME]; and 10. [NAME] gave evidence that other land owners have informal agreements with [NAME] to maintain green spaces on the land which is consistent with the defendant's evidence that he had an informal agreement, albeit many years earlier, with the golf club.

1. I accept each of these matters. I also note [NAME]'s oral submission (at [NAME], 4 November 2018, p 1420(33-37)): I made the point during the trial, your [NAME], that if [the defendant in his record of interview] trots out matters which are lies, and the lies can be proved, then, of course, that counts against him. If, however, he tells the truth, then that supports his version that he's giving a consistent account.

1. On this basis, the defendant submits that the fact that [NAME]' name appears on the [NAME] board at [NAME] (a photograph of which was admitted into evidence) is a significant matter that goes to the defendant's credit. I accept that the [NAME] board provides support for the account the defendant gave of having made an agreement in respect of the [NAME]. However given that this relates to an agreement made many years earlier than the events in these proceedings, I do not consider that the fact the defendant gave an accurate account of [NAME]' name has significant bearing on the other evidence he gave in his record of interview. Indeed, the defendant's evidence in this regard might equally be said to provide support for the accounts of [NAME] and [NAME] each of whom gave evidence that the defendant told them about the existence of an arrangement between the defendant and [NAME].

2. The defendant further submits that [NAME], in giving evidence that she was aware of the existence of [NAME] but saying that she never investigated further or included this in her affidavit, demonstrated an "example of avoiding exculpatory evidence that would assist the defendant".

3. I find this submission difficult to understand. The existence of an agreement between [NAME] and the defendant to clear land, even if it had existed at the time of the alleged offence (and the defendant himself admitted that it did not in his record of interview), could not have been exculpatory. That is because, even if the defendant had the permission of the golf club to remove trees, he would still have required development consent to remove them. He could not have taken advantage of the 10/50 Code because none of the trees removed from the [NAME] land were within 10m of an exterior wall of the house at the [NAME].

4. However, I do accept that the matters identified by the defendant at [431] are matters which aid his credit, at least insofar as they corroborate the account he gave in his record of interview. However, it is clear that none of the corroborated matters are matters which go to the core issue of the case, being whether he instructed the contractors to remove the trees the subject of the charge.

The defendant's claimed assumption that the contractors would obey the law 1. The defendant refers to the comments of Mason CJ, Brennan, [NAME] and [NAME] in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 ('[COMPANY]') at 450: Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct (citations omitted).

1. The defendant says that this principle applies a fortiori in a criminal trial and submits that when the defendant gave [NAME] instructions, he was entitled to assume that [NAME] would follow them and not break the law. The defendant says that this assumption is supported by the defendant's prior engagement of each of [NAME] and [NAME].

2. It is difficult to see how [COMPANY] can have any bearing on the present case. Leaving aside the fact that the Court is not, on any view, being asked to make a finding that a party to civil litigation was guilty of criminal conduct and leaving aside also that the principle in [COMPANY] might be thought to have less applicability where there is, as in this case, incontrovertible evidence that criminal conduct has taken place, the principle does not assist my consideration.

3. Whilst it can be accepted that there is a presumption that members of society do not ordinarily engage in criminal conduct, a direction to commit criminal conduct would surely dislodge such a presumption. It is clear from the principles relating to accessorial liability that, in order to be criminally liable, the defendant must have ordered the contractor to do the act which constitutes the offence, to do some act which comprises that act, or to do some act which leads by all physical necessity to the offence (see [NAME] No 2 at [116]; [NAME] at 573-574). If the Court is satisfied beyond reasonable doubt that the defendant has ordered criminal conduct to be carried out, it can hardly be thought that the defendant can rely upon an assumption in civil law that people do not ordinarily carry out criminal offences.

4.

Accordingly, I do not consider that [COMPANY] assists the defendant, nor do I consider that it is relevant to the present proceedings.

The defendant's claimed reliance on expertise 1. The defendant submits that, in addition to the fact that the defendant was entitled to assume that [NAME] and [NAME] would not break the law, he was entitled to rely upon their expertise in relation to their ability to stick to the rules. 2. [NAME] gave evidence about being contacted by the defendant as follows (at [NAME], 16 April 2018, p 34(18-21)): Q. When [NAME] rang you would you tell [NAME] what did he say about what he wanted you to do when he first rang you? A. He was worried about bushfires, and he wanted me to come along and have a look at his property and see what we can do about clearing it.

1. The defendant submits that "the defendant relied upon [NAME]'s expertise to work out whether or not the trees could be removed under the 10/50 rule. It was [NAME]'s error in his judgment which caused the trees to be removed not the defendant's".

2. The defendant further submits: …the idea that an independent contractor, who runs a company called [COMPANY], who markets themselves as "the tree solution experts" being established in 1995, with twelve years' specific experience in his industry, who knows that it is a serious offence to chop down trees unlawfully, would blindly follow the illegal instructions of a 66 years old retiree who had no experience in his industry, without questioning him, or exercising his own professional experience, or asking his co-workers who also have experience for advice, and ignore his own independent judgment is ridiculous.

1. It is fair to conclude that each of [NAME] and [NAME] had an inaccurate understanding of the 10/50 Code both at the time they carried out work for the defendant and when they gave evidence in these proceedings. It may well be that if they had had more detailed knowledge of the rules surrounding tree removal the commission of the offence would have been avoided. However, this does not alter the fact that the offence is one of strict liability.

2. The defendant submits that expecting a lay person to supervise and second-guess the work of a professional is a "nonsense" and that it is unfair to place the defendant at the top of the hierarchy in terms of the instruction and direction which led to the trees being unlawfully removed.

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

The defendant's motive to clear the site 1. Although the offence with which the defendant is charged is one of strict liability such that [NAME] does not have to establish any particular mental element, [NAME] submits that it is axiomatic that people do things for a reason and that the defendant had a reason to order the clearing of the land at the site. 2. [NAME] submits that the evidence given by [NAME] (see above at [185]-[186]) and [NAME] (see above at [216]-[217]) establishes that the defendant wanted to carry out fire hazard reduction on his land and neighbouring land and that this would enable him to carry out works on the house at the [NAME], including the possibility of an extension.

3. Further, [NAME] notes that [NAME]'s subsequent correspondence with [NAME] and [NAME] establishes that fire hazard reduction was the defendant's key concern. [NAME] submits that the clearing which took place is consistent with that motive. When he was appointed as the defendant's agent, [NAME] asked [NAME] to prepare a further report, which stated that despite the clearing which had already been carried out, the [NAME] was still at risk and further clearing was required. [NAME] sought the support of [NAME], the [NAME], and [NAME] to carry out further clearing but no such support was forthcoming. 4. [NAME] (see above at [96] and [110]) also gave evidence that the defendant wanted the land at the site cleared for the reduction of fire hazards. In his record of interview, the defendant said that he was concerned about "what other people refer to as fuel load which I understand and understood to mean a fire hazard" in relation to the [NAME]. He also said that he was concerned about trip hazards at the site.

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

The motive of the contractors 1. I note that in contradistinction to the motive of the defendant, it is difficult to see what motive the contractors could have had for clearing the site independently.

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

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

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

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

6. I do note, however, that the defendant also said that, in answer to a question about whether he had paid [NAME] had "demanded some money and I paid him. Umm... I'm not going to stand there and…" I understand this to mean that the defendant is stating that he paid [NAME] money for work in excess of that which he had asked to be carried out.

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

Character traits of the defendant 1. [NAME] submits that the defendant's account of the commission of the alleged offence is contrary to evidence of the defendant's character given by [NAME] and [NAME]. [NAME] notes that [NAME] gave evidence (see above at [188]-[189]) that the defendant was thorough in what he does and generally looks at all aspects and that they had planning meetings including one which lasted for four hours. [NAME] said that the defendant asked a lot of questions, that he would generally look for information, and that he did his own research. [NAME] also notes that [NAME] gave evidence (see above at [221]) that the defendant had an incredibly particular knowledge of all the work that had been done at the [NAME] and that he took a great interest in specifications and the like. 2. [NAME] submits that the evidence is consistent with the defendant being a person intent on keeping control and that the weight of the evidence is consistent with the contractors' version of events. That is, [NAME] says that the evidence is consistent with the defendant having been present on the site whilst the contractors were working, closely supervising their work, and directing them as to what trees he wanted them to cut down.

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

4. I consider that the evidence of both [NAME] and [NAME], considered as a whole, portrays the defendant as a person who takes an active and close interest in the projects and endeavours in which he is involved and this was particularly so in relation to the [NAME]. This is so, even when he retains others with specific skills and qualifications. This is illustrated, for example, by his dealings with both [NAME] and [NAME] in relation to various matters relating to the [NAME] both before and after the matter the subject of these proceedings, such as building and proposed building works, design matters, attendances with and correspondence to [NAME], and various authorities (such as [NAME], whom [NAME] contacted on the defendant's behalf).

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

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

Timeline of events 1. It is helpful to set out some of the most relevant matters in a timeline. It is clear that sometime in September 2014, the defendant asked [NAME] to carry out certain works.

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

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

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

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

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

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

8. On 16 October 2014, [NAME] hand-delivered a "stop work" letter to the defendant's Killara property. 9. [NAME] and [NAME] gave evidence that they attended a meeting in the garage at the defendant's Killara property to get paid. It is the evidence of [NAME] that he attended the defendant's Killara property prior to 21 October 2014 because the defendant asked him to return to the site to clear up (see above at [121]). It is not agreed that any meeting took place before 21 October 2014.

10. On 21 October 2014, [NAME] and other officers from [NAME] attended the site. [NAME] interviewed [NAME] and took [NAME]'s licence details.

11. At approximately 4:30pm on 21 October 2014, the defendant called [NAME] at [NAME]. [NAME] gave evidence that the defendant was seeking the golf club's permission to carry out clearing on land owned by [NAME] and to the rear of the [NAME] (see above at [196]).

12. On 23 October 2014, [NAME] was appointed the defendant's agent. [NAME] gave evidence that he attended the defendant's Killara property at around 3:00pm and that he opened the letter from [NAME] (this was the "stop work" letter hand-delivered by [NAME] on 16 October 2014). Later that day, there was a meeting in the defendant's garage at his Killara property which [NAME], and the defendant attended.

The alleged directions 1. Against that background, it is convenient to address [NAME]'s submissions in respect of the key issue in the proceedings: whether the defendant directed that the clearing be carried out. 2. [NAME] submits that the Court need not be satisfied that the defendant directed every tree the subject of the charge be removed and that the offence will be proved if that direction is only established with respect to some of the trees the subject of the charge. [NAME] refers in that regard to the decision of Pain J in Hawkesbury City Council v [NAME]; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 ('[NAME]').

3. In [NAME], each defendant was charged with the clearing of trees, being the felling and/or clearing of 13 eucalyptus tereticorins (forest red gums) and approximately 200 acacia parramattensis (black wattles). At [162], her [NAME] found: The direct evidence is sufficient to establish that there was direct authorisation of conduct giving rise to the removal of the black wattle trees but not the forest red gums. It is supported by the inferential evidence and the evidence of admissions made.

1. At [195], her [NAME] concluded: For the reasons explained above, I find each of the offences with which Mr [NAME] and [COMPANY] are charged to be proved beyond reasonable doubt. I note that while the elements of the offences have been proved [NAME] has not established all the particulars relied on in relation to the offences. The proceedings should be re-listed for further hearing and submissions on penalty and costs. 1. [NAME] submits that the Court would be satisfied that there was a direction to cut down all of the trees that were removed and that the clearing was a direct response to the defendant's directions for three reasons:

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

2. There is uncontested evidence that the defendant directed [NAME] to remove 10 trees that had been painted with pink paint; and 3. With respect to trees cleared beyond those areas, the Court would find that [NAME] has proved beyond reasonable doubt that the defendant directed the clearing of those trees during his visits to the site on days subsequent to the first day. [NAME] submits that the contractors' evidence in that regard would be accepted because the Court should accept them as witnesses of truth.

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

2. In respect of the first reason submitted by [NAME], that there is agreement that the defendant directed the clearing of the area marked by blue and red lines by [NAME], I note that [NAME] said the following during the hearing (at [NAME], 17 April 2018, p 139(9-15)): Your [NAME], our case is, so there's no doubt about it, that our instructions to [NAME] are confined to the blue and red lines of which [NAME] has given evidence of in‑chief and in cross‑examination. It is open ended and ambiguous to say the least to talk about what he cleared in terms of what [NAME] had to say. It has to be circumscribed by the evidence involving the blue and red lines. To put it any other way is a misleading question to put in re‑examination.

1. To similar effect, [NAME] also said the following in answer to a question I asked about the status of the blue and red lines (at [NAME], 17 April 2018, p 139(45-48)): Correct, your [NAME]. We are saying, in essence, that the blue and red lines on our case in cross‑examination circumscribes that area of the property in a general sense which [NAME] gave instructions to be cleared and not further.

1. In written submissions, the defendant says that [NAME] is trying to deal with the fact that "the red and blue lines cannot be linked with any of the trees the subject of this charge". The defendant submits that there is no evidence that any of the trees removed were within the red and blue lines marked by [NAME]. Moreover, the defendant submits that none of [NAME]'s comments above constitute an admission that the defendant gave instructions that trees within the red and blue lines be removed.

2. When the map marked with red and blue lines is compared to the survey plan prepared by [COMPANY] which identifies the location of the trees which were removed, it appears to me that at least some of the trees (indeed, quite a number) the subject of the charge are located in the area demarcated by [NAME]'s red and blue lines.

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

4. Without intending to be needlessly repetitive, it is worth setting out some of the evidence given by each of the contractors as to the instructions they received. 5. [NAME] gave evidence (see above at [60]) that "each day we would do work [NAME] would meet us at the property and he saw what we actually did and he got us to go further and further down. So every day he got us to do more and more cutting of the shrubs on the southern side of the property and eastern side". He said (see above at [66]) that the defendant gave instructions in the following terms: "'I want all this cut down. I want all this cut.'" He also said (see above at [71]) that the defendant told him that if "we were to go on golf course land he had permission from [NAME] to clear any trees or shrub". 6. [NAME] agreed (see above at [97]) that the defendant had initially asked that the site be "maintained, kept trimmed and tidy". However, [NAME] gave evidence that the instructions evolved when he went on to say (see above at [105]) that when the defendant returned to the site, the defendant "was wanting to discuss with me sort of a long term plan he had for his garden that was possibly going to involve us doing actual building design work onto there. I think we sort of discussed sort of more of what he wanted to clear in the yard". In particular, [NAME] said that the defendant said, in respect of certain casuarinas, that he "would like to see those cleared. Not all of them, like, there was just certain ones". [NAME] also gave evidence (see above at [109]) that the defendant, after identifying [NAME] on the site by name, said that he "didn't want to see those ones from his place". 7. [NAME] did not give evidence that he was personally given instructions by the defendant, but stated that "I did hear conversations going on it was, 'I want that cut over there. I want that cut over there,' just, you know, pointing" (see above at [141]). [NAME] also gave evidence that the defendant wanted to get his "money's worth" (see above at [139]).

8. The phone records of [NAME] indicate that the defendant was in communication with [NAME] on the following days: 1. 3 October 2014; 2. 6 October 2014; 3. 7 October 2014; 4. 8 October 2014; 5. 9 October 2014; 6. 10 October 2014 at 8:33am; and 7. 14 October 2014 at 11:00am.

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

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

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

4. The third thing to note is that [NAME] gave evidence (see above at [111]) that he reported progress to the defendant over the phone. [NAME] stated that this took place "after the first group of days", which means after [NAME] returned to the site following the Labour Day public holiday (which was 6 October 2014). As can be seen from the phone records, he and the defendant were in communication (or attempted communication) on 3 October, 6 October, 7 October, 8 October, 9 October, 10 October and 14 October 2014. 5. [NAME]'s evidence in these proceedings was that he reported to the defendant over the phone "one, maybe two" times and that it would have been "an update on clearing, how far we were getting". Most of the phone records indicate brief calls being made between [NAME] and the defendant (a length consistent with either very brief conversations or perhaps messages being left) as well as text messages on 3 October, 7 October and 14 October 2014. However, one call on 8 October 2014 lasted for 604 seconds, or just over 10 minutes. The duration and date of this call adds credence to the account given by [NAME].

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

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

Whether there is a reasonable hypothesis consistent with the defendant's innocence 1. It is axiomatic that in order to prove the defendant's guilt, [NAME] must negate all reasonable hypotheses consistent with the defendant's innocence beyond a reasonable doubt.

2. In Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 at 605-606, Windeyer J said: The task of the [NAME] in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt—that they cannot be so satisfied if there be still open some reasonable hypothesis compatible with innocence.

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

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

3. First, the defendant stated that he hired "landscapers". Whilst I accept that [NAME] does landscaping work, [NAME] is also a landscaper, or "landscape builder", and gave evidence that the works he was initially asked to do by the defendant were outside the scope of what he was able to carry out. [NAME]'s business at that time was called "[COMPANY]" and the defendant had previously retained him to cut up a tree which had fallen at his property in Killara. He retained [NAME] again in respect of the work at the [NAME]. This is indicative, though I accept not decisive, that the defendant sought to carry out tree works at the site.

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

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

6. Fourthly, the record of interview was conducted on 5 February 2015, several months after the clearing work was carried out at the site. In Astill v R (1992) 63 A Crim R 148 ('Astill'), Kirby P (as [NAME] then was) made the following comments about the admissibility of out-of-court statements at 156: There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: '…reliance on the greater trustworthiness of statements made at once and without reflection…' The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten (at 389f): "The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded…"

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

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

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

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

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

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

Beyond reasonable doubt 1. The fundamental principle applicable to a criminal trial is that [NAME] must establish each element of the offence with which the defendant is charged beyond a reasonable doubt. In the present case, the only element of the offence in dispute is whether the defendant directed the contractors to carry out the clearing the subject of the charge.

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

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

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

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

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

7. Fourthly, I consider that [NAME]'s evidence, in particular, is consistent with the evidence considered as a whole, notably the evidence concerning the defendant's plans to carry out building works at the [NAME] and the phone records.

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

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

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

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

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

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

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

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

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

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

Conclusion 1. As I have found the defendant guilty of the offence as charged, the appropriate orders are that the defendant is found guilty of the offence and that the matter be stood over to a date to be fixed for submissions on penalty.

Orders 1. [ADDRESS] orders that: 1. The defendant is guilty of the offence as charged. 2. The matter is stood over to a date to be fixed for submissions on penalty.

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