Under some legislation in New South Wales, a prosecuting authority is entitled to fulfil roles as both a plaintiff in civil enforcement proceedings, and a prosecutor in criminal proceedings. The general approach is that a prosecuting authority will choose one or the other.

This was the approach taken by the Chief Executive, Office of Environment and Heritage (Prosecutor) up until 2016 when it commenced criminal proceedings in the Class 5 jurisdiction of the Land and Environment Court[1] (Court), following a trial in civil enforcement proceedings in the Court’s Class 4 jurisdiction[2] in relation to the same land clearing event[3].

In the criminal proceedings, the Prosecutor sought to rely on admissions made by the Defendant in the civil proceedings through Court documents, affidavit evidence and during cross examination. The Defendant challenged the use of the admissions but was unsuccessful[4]. Given the dilemma caused by everything said by the Defendant in the civil proceedings being used against him in the criminal proceedings, the Defendant did not ‘enjoy significant prospect of acquittal[5]’ and thus pleaded guilty to an offence under the now repealed Native Vegetation Act 2003,of clearing native vegetation otherwise than in accordance with a consent or property vegetation plan.

In the criminal proceedings before Her Honour Justice Duggan, the Prosecutor submitted a range of aggravating factors including:

  • the offence caused a high level of actual environmental harm and a high level of likely harm to the environment: this was established on the facts;
  • state of mind of the Defendant: Her Honour found that considering past advice and experience of the Defendant, he ought to have been aware that the native vegetation was of such quantity and value that an approval to clear the land was required;
  • planned criminal activity and for the purposes of financial gain: while the Defendant had made a large profit on the sale of the premises because of the clearing (the evidence established cropping land has a higher value then grazing land), Her Honour rejected the Prosecutor’s submission on the basis that the Prosecutor had failed to prove this beyond a reasonable doubt forming the view that the clearing was opportunistic or ill-considered, rather than premediated[6]; and
  • reasonable foreseeability of the harm caused or likely to be caused: the Prosecutor submitted that the Defendant had been provided with information about the ecological value of the land cleared in previous incidents and was on notice through previous proceedings that the land was a high priority offset area. Her Honour accepted those submissions in finding that the actual harm or likely harm was reasonably foreseeable.

The mitigating factors considered by the Court were:

  • contrition and remorse: the Defendant relied on written submissions that he had made statements against his interests in the civil proceedings as evidence of remorse and contrition. Her Honour rejected this submission finding ‘the statements against interest demonstrate a required participation in litigation and the need, when evidence is given under oath, to provide truthful answers[7]’;
  • early plea: the Defendant had taken several interlocutory actions in relation to the matter. The Defendant claimed that he had entered his plea as soon as possible after the final interlocutory application had been dealt with. Her Honour did not accept this proposition given that almost a year had elapsed between the last interlocutory application and the enter of the plea. Her Honour found the plea was not entered at ‘the earliest or even a reasonably early state of the proceedings[8]’;
  • prior convictions: the Defendant had a prior conviction for unlawful clearing. Her Honour found that the prior conviction did not permit a finding that the Defendant was of bad character. However, her Honour did consider the prior conviction as evidence relating to his knowledge of offending, state of mind and need for specific deterrence; and
  • extra-curial punishment: the Defendant submitted that he had already suffered extra-curial publishment because of the offence, including the loss of his father and the public response of the death of the officer involved in the matter. In rejecting this submission Her Honour found that these factors did not arise as a consequence of the subject offence but rather the conduct of his father.

Having regard to the above, the need for deterrence retribution and denunciation, and the lack of evidence establishing a limited capacity to pay a fine, Her Honour ordered the payment of a fine of $405,000 and the Prosecutor’s legal costs.

It is important to remember that while some legislation expressly restricts the use of evidence given by an accused in civil proceedings from being used in subsequent criminal hearings, this is not always the case. In the absence of legislative provisions to this effect, it is imperative to consider mechanisms in the context of civil proceedings to avoid use of any admissions made in later criminal proceedings including the extent and nature of any defence in the civil proceedings.

[1] Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137

[2] Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66

[3] Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165 at paragraph [102]

[4] Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165

[5] Chief Executive of the Office of Environment and Heritage v Turnbull [2023] NSWLEC 137 paragraph [63]

[6] Ibid at paragraph [50]

[7] Ibid at [60]

[8] Ibid at [66]