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- Unreported Judgment
MAGISTRATES COURTS OF QUEENSLAND
Weblin v Marshall  QMC 9
Raymond Edward WEBLIN
Trevor John MARSHALL
15 August 2019
20 May 2019, 9 July 2019
The Defendant is found not guilty of each charge
Destroying marine plants – proof of when event happened – obstruction of officer – failure to produce search warrant to occupier – reasonable excuse
Evidence Act 1977 s.65
Justices Act 1886 s.48
Planning Act 2016 s.163
Fisheries Act 1994 s. 182
Hackwill v Kay  VR 632
Kerr v Hannon  1 VR 43
Paulger v Hall  2 Qd.R 294
G. Elmore (i/b complainant)
G. Gallagher (Save U Legal)
- On 12 September 2017 various government agencies inspected the public park behind the Defendant’s house acting on a neighbour’s complaint. They formed the view that fill had been placed onto the park and killed marine plants.
- The Defendant has been charged with two offences. The first is that between 1 August 2017 and the 31 October 2017 he carried out assessable development under the Planning Act. Destroying marine plants without a permit is such an offence. Mr Marshall did not have a permit.
- The issue at trial was whether the evidence disclosed beyond reasonable doubt that there were marine plants in the area affected. Formal admissions were made that the Defendant was responsible for earthwork done at the house owned by his partner between 1 August and 31 October 2017.
- The Crown case relied on the Court accepting expert interpretation of various aerial photographs to prove that there were marine plants and they were covered. The Defence concentrated on the aspect of whether marine plants were present.
- The photos were aligned and lines drawn over them to show the cadastral boundaries and three areas called A, B and C. It was obvious that earthwork had been undertaken in these areas.
- Those inspecting in September 2017 did not look under the fill to see how deep it was or whether there were buried marine plants. This was despite the Defendant’s invitation to do so and to get a shovel.
- Much time was spent on whether the soil placed on the site was imported fill or the spoil from earthworks on the site. For the purposes of this offence, it simply does not matter.
- The investigators did not look at the videos or photos which he offered them on his phone. He said they showed there were no marine plants there before he started work.
- Had they looked at them, they would have seen what I did when the Defendant produced them in Court. They clearly show that all of area A and C and most of B were grass or weeds. They were clearly above tidal influence and no marine plants are visible in them. This appears to be because of filling occurring over an earlier period of time.
- While a substantial part of areas C and B were ultimately covered with some soil during the charged period, this only amounts to an offence as charged if there were marine plants under it. I am far from satisfied there were.
- The prosecution obtained search warrants on 22 November 2017 to seize records and phones from the Defendant. It is surprising that these did not inform the areas charged. They obtained another warrant on 7 February 2018 to survey the boundary. During this there was a confrontation between the Fisheries Officer and the Defendant. As a result he was charged with obstructing that officer from exercising his power to enter a public place.
- Both warrants cite reasonable suspicion of an offence committed between 2 August and 28 August 2017.
- In total 5 charges were laid in the complaint which was filed on 5 September 2018.
- Charges 1, 4 and 5 were discontinued before trial.
- It follows that :
- Charge 3 (the obstruct was bought within 1 year of the alleged offence as required under the Fisheries Act.
- Charge 2 (the Planning Act offence) was not bought within that period but it was within 1 year of the complainant becoming aware of the offence.
- At the time of bringing the complaint, the complainant had obtained a report from eminent botanist, Ralph Dowling. He inspected on 31 October 2017 and 7 February 2018. I accept his clear and cogent evidence that areas B and C would have contained marine plants at some stage. I also accept his evidence (which includes his report and photographs) that the clay pan next to area B contains marine couch.
- His report contained one aerial photo from 2017 (which turns out to be #19 of 22 on 10 August 2017 in Ex 1). That shows the fill covering parts of area B which was not present in another photo which Mr Dowling had dated 2016 (which turns out to be #12 of 22 on 25 May 2016).
- Thus Mr Dowling was convinced that filling had taken place in areas B and C. He expressed this in his report dated 21 February 2018. His report noted earlier filling shown from earlier photographs on this property and the one next door – also owned by Mr Marshall.
- Mr Dowling’s report, in particular photo 7 taken on 31 October 2017 show that the Defendant had filled and turfed area C thus excluding it from tidal influence and killing any marine plants that might have been present.
- Likewise Photo 8 shows that the Defendant did earthworks in a public park and filled the site to exclude the tide. Those two actions would have killed any marine plants present.
- Having had Mr Dowling’s report in February 2018, the complaint was not bought until September 2018.
- Any filling that happened in the charge period between 1 August 2017 and 31 October 2017 and damaged marine plants was captured by the Planning Act as the complainant bought it within 12 months of his first inspection on 12 September 2017.
- The Crown case was thus that the fill in areas A, B and C covered marine plants that were present during the charge period.
- To prove this they had to show beyond reasonable doubt that the marine plants were there and were not destroyed before the fill was placed.
- In April 2019, the prosecution received a report from Ms Lawrence, an expert in aerial mapping. She compiled a booklet of photographs from various sources from 1 April 2001 to 20 May 2018.
- These show that a large number of trees were destroyed in the park behind Mr Marshall’s house and the area became filled and turfed. I heard he had interactions with law enforcement in relation to marine plants in the past. It is possibly in relation to this area. I do not know nor need I what the outcome of those events was.
- Mr Marshall’s wife bought the house next door and they decided to renovate. After complaints from the neighbour about work being done in the park, government agencies were naturally concerned that history was repeating.
- Ms Lawrence gave evidence that she had imported each of the images into a piece of software. The dataset had data points created by the makers. Some images were from aircraft and some from satellites. There were a variety of commercial providers. Ms Lawrence used features on the ground to rectify the images and ensure they overlapped. She expressed the error factor in the photos themselves as 20cm and in her placement of the lines as 10cm.
- She explained that items not at ground level might be inaccurate when cross-examined about the satellite dish that appeared to move at least 1m between some photos. I accept her evidence that she did the best she could with the data she had. The images are from different cameras, with different fields of view. The colours, seasons, times of day, processing etc are variable. Shadows affect what is and is not visible.
- I would not be prepared to accept that this type of exercise was suitable for establishing what was on the same spot to less than a 1m accuracy. The point is illustrated by the movement of what appears to be the post box on the front and side boundary of the Marshall lots. A further illustration of the extent that reliance could be placed on these images at this scale comes from the base of the power pole on the cul-de-sac between the boundaries. On most images the base of it appears on the right of the extension of the side boundary. On some it appears on the left.
- I was also given no information as to height variations at the level of the clay pan. It would appear from the photographs to be at least 1m and up to 2m below the pavement which was used as a reference point. If the satellite dish can move a metre sitting about 3m above ground level, it is reasonable to assume up to 1m for the clay pan.
- Section 65 of the Evidence Act does not assist the prosecution as these overlayed photos are not a published or issued document. Nor do they appear to me to be a reliable source of information beyond 1m or so.
- In the end I used a ruler to scale two fixed points being the western most edge of the weir and the eastern most end of the driveway. Photos 16, 17 and 19 are all 143mm between these two points indicating that they are scaled the same.
- There appears to be 2 tyre marks on the clay pan. Measuring along a line parallel with the boundary to the cul-de-sac to the toe of the fill shows a change between photos 17 and 19 of 2.5mm. This is shown on the scale as 1m. Even if the red lines are wrong, the fill moved 1m between 21 July 2017 and 10 August 2017 in that part of area B.
- Photo 17 was taken 21 July 2019. That is, 10 days before the start of the offence period. Some work had clearly been done. It is apparent by looking at Mr Dowlings photos that the clay pan was largely marine couch. On 21 July 2017 parts of areas B and C appear of the same colour and texture as what I accept is marine couch on the rest of the pan.
- All areas of area B are covered by 10 August 2017. I cannot be satisfied beyond a reasonable doubt whether this occurred before or after 1 August 2017.
- The north-western most part of area C is marine couch on 21 July 2017. It is the same colour and texture as that which I accept Mr Dowling has identified as marine couch on the clay pan during his visit.
- That area is covered in photo 19 on 10 August 2017 or photo 20 on 28 August 2018. It may be covered by 10 May 2018 but that is outside the charge period. Nor am I convinced that it was covered and is no longer marine couch. It is not possible to tell from the images and the lines are clearly inaccurate in this area compared to the un-vegetated patch on clay area which does not move.
- There is no credible evidence before me that area A (which is entirely on the Defendant’s land) at any relevant time contained any marine plants. It was behind a retaining wall for much of this time. The colours and patterns appear inconsistent with marine couch and consistent with turf in the rest of the visible yard areas.
- It follows that there is no evidence on which to find that the offence which was clearly committed on parts of area B was committed either by the Defendant or after 1 August 2017.
- I was asked to find that the 2m x 2m area on the westerly tip at the top of the curve on the northern end of area B changed after 10 August 2017. Exhibit 2 was the PDF version of Exhibit 1. Having zoomed in on it I am satisfied that in fact all relevant aspects of this area were covered with fill on 10 August 2017 and therefore possibly outside the charge period.
- The Defendant gave evidence that he placed a water pipe along the edge of the marine couch and instructed the workers not to go over it. He said he moved it along as work progressed to ensure marine couch wasn’t interfered with. His evidence was frank. He knowingly and deliberately filled and raised areas of public park as part of his efforts to improve his wife’s property. He had no right to do so.
- The evidence of Mr Frewings who drove his excavator to do work for the Defendant is that the water pipe did not move and that he did not do all the work. I accept his evidence as honest. It seems more likely than not that he did the work that first covered area B. That is shown on 17 of 22. Other machinery was present. I have not heard from their operators. Mr Frewings saw their machine: an Hitachi.
- There are features on the maps that are at ground level and consistent such as the tyre mark. It is clear that the Defendant or his contractors have filled land beyond his boundary and turfed it. He has removed it from the zone of tidal influence, changed the species and prevented marine plants from regrowing. He's turned public land into an extension of his yard. That is not an offence which I was hearing a charge of.
- I did not hear from the surveyor as to precise location of the boundary or to confirm that the aerial overlays were accurate.
- I do not accept the Defendant's evidence where it is not supported by conclusive photographic proof. If he had genuinely wanted to avoid prosecution he would have photographed everything, marked out the area with more than a moveable pipe, notified the authorities and put in a sediment fence. Instead, he wanted to get the job done before they arrived to inspect and he did.
- He attributed the change between photos 17 and 19 to ‘rounding over’ on request of the inspectors when that did not happen until after photo 19 was taken.
- Exhibit 4 shows it was always his intention to claim part of the park as his and he has. How that is addressed is a matter for its owner.
- There are partial admissions on the field tape from 12 September 2019. The listener can't tell where he is or where he is pointing when he says something like ‘1m of couch grass, game over’. No evidence was led about where the parties were or were indicating in the recording. He also said if there was a problem he would pull the soil back. It seems obvious that it's just the edge somewhere but it's not at all obvious that he didn't pull it back afterwards as he promised. No evidence was led on the precise location the parties were at or indicating on the recording or any work done or not done afterwards. Photo 22 shows some marine plants have returned on the toe of the fill.
- No amendment was sought of the charge period. I have nonetheless considered where there should be an amendment in accordance with s.48 of the Justice Act. I have concluded there should not be.
- The amendment here would be to change the offence period to encompass some earlier point of time than 1 August 2017. In Hackwill v Kay  VR 632, the Victorian Court of Appeal held that where there is a time limit, a failure to allege a date of an offence is an essential part of the complaint. They held an allegation of an offence at a specific date and place was not defective just because the prosecution could not prove those facts but could prove others. At page 637, the Court held:
Here the date alleged in the information was an essential or material allegation. The information was out of time. By s.215 , it was barred and could no longer be laid. Evidence that a like offence had been committed on a later date and at a time within the period allowed by the statute for the laying of an information is more than a mere variance from such an information. …
- In Kerr v Hannon  1 VR 43, the Court held that where an information must be laid within a specified time from the date on which it was alleged to have been committed, it must contain particulars to enable the date to be ascertained. After the time limit has expired, it cannot be amended to insert that missing date.
- While both these cases concerned limitations from the time of the offence having been committed, they have weight in relation to the newer concept of limitation since the complainant becomes aware of the charge.
- In Paulger v Hall  2 Qd.R 294, Justice Holmes (as the Chief Justice then was) considered that the amendments sought were still within time. Her Honour makes it clear (at ) that there is a discretion to allow the amendment. At  Her Honour distinguished Hackwill v Kay and held that in this case the broadening of the period over which the offences were alleged to have occurred did no more than reflect a variance and the essentials of the charges remained the same.
- In my view where the time period for laying an amended charge has lapsed (as it has here), a change to extend the period of liability is not permitted. An extreme example illustrates the position. A tardy officer might charge more than 12 months from the offence or from when they became aware of the offence then seek to backdate the offence to beyond the statutory limits. There seems little difference between doing that knowingly and negligently.
- Even if it were available in these circumstances, s.48 requires the exercise of a discretion to allow the amendment. I would not exercise that in the prosecutions favour simply because there is no evidence that the Defendant is responsible for the filling that occurred prior to 1 August 2017. He made admissions of responsibility on and from that date only. The trial was conducted on that basis. The prosecution have never suggested other than that the offence period commenced on that date. I do not know why they settled on that date. It is not apparent from the evidence. What is clear is that they did not obtain the report of Ms Lawrence until the limitation period had expired. There was no explanation of why they took the full 12 months to lay charges.
- Section 48 specifically references the interests of justice. While the prosecution of offences and the upholding of the law is very desirable, the prompt and efficient use of the prosecution process is just as desirable outcome. A trial following directions and disclosure is not a dress rehearsal. The time to finalise the charge is not during addresses. The section does not contemplate judicial officers change from their role of determining the charges bought before them to allowing a conviction of a differently constituted offence.
- While I am satisfied beyond any reasonable doubt that the Defendant committed a planning act offence, I cannot be satisfied it was within the charged period. I find him not guilty of charge 2, the Planning Act offence.
- Exhibit 16 was body worn camera footage of Mr Weblin when he visited on 7 February 2018. He and the Defendant exchanged words while the surveyors worked. At one point, Mr Weblin was on or near the large stone blocks which the survey seems to show are actually on Crown land but which he and the Defendant thought were on the Defendants land. The Defendant knew from Exhibit 4 and his own admissions, that some of the works he had done were on public land.
- The Defendant approaches him and Mr Weblin leaps to his feet refusing to show the Defendant the warrant which he had in his hand.
- The charge is particularised as the Defendant ‘approached [Mr Weblin] and stood only a matter of inches from him, waving his finger in [Mr Weblin’s] face while yelling abuse in a loud voice. This caused [Mr Weblin] to fear for his safety … in that [the Defendant] might assault him.’ The video supports these physical gestures having taken place. Abuse is not heard. Rather the Defendant demands loudly and repeatedly that Mr Weblin not intimidate him by yelling.
- To make out the charge the prosecution must prove that the Defendant obstructed which includes assault, hinder, resist and attempt or threaten to obstruct.
- The power being exercised was particularised as the power to enter a public place under the Act. It is further particularised as that Mr Weblin was using his powers to enter a public place namely the park.
- The footage shows the clear purpose of the approach and actions taken by the Defendant was to challenge the legality of Mr Weblin being on his property. He screamed out ‘Unless you’ve got a warrant get off my property’.
- Mr Weblin in fact had a warrant and said so but refused to hand it over unless the Defendant was the occupier. The warrant was in fact addressed to Mr Marshall. He was the only one home and known to Mr Weblin to be the occupier.
- The footage shows Mr Marshall close-up to Mr Weblin who did not back away after he stood up. Mr Marshall repeated that he would not be intimidated. His behaviour was not of someone who was intimidated but rather someone who sought to use his own physical presence to intimidate.
- The warrant was to enter the premises to obtain evidence of the destruction of marine couch by allowing measurements and surveying to be undertaken on the property. Mr Weblin was not doing this. He was watching others who were.
- When he was challenged and refused to produce the warrant he clearly thought he was on the Defendants land but refused to show the warrant. He repeatedly asked if Mr Marshall was the occupier. It is clear that he was and Mr Weblin knew this. He named Mr Marshall on the warrant and it was addressed to him.
- Mr Weblin was never at any time prevented from entering the public land. He appears from Exhibit 1 to have been on it at all times but given the inaccuracies it is impossible to tell with precision.
- It appears from the video that when the confrontation started he had passed the line the surveyor was marking out (10:58:18 on the video). He was not obstructed from entering or remaining on that land. The surveyors stopped to watch but were not hindered in their job. Dealing with land owners wanting to see warrants is part of the investigators role. Had the warrant been handed over the incident might not have happened.
- Mr Marshall had a right to challenge the apparent trespass as he did. He may have honestly and reasonably believed there was a trespass and wanted to know if it was authorised. It is hard to say he did have any honest belief about siting given he planned the works to cover land that was not his. Any trespass by Mr Weblin was authorised, but he wasn’t allowed to see that documentation.
- Mr Marshall certainly knew that the officer had a warrant and would show it to the occupier. He did not admit to being the occupier.
- Another officer intervened and Mr Marshall backed off and kept arguing about seeing the warrant with that officer. Mr Marshall can be heard challenging Mr Weblin to a fight. He said words to the effect of “Do you want to have a go?”.
- Did his conduct amount to an assault? There was no touching.
- Was Mr Weblin hindered from doing his job? No. Only for a brief period where he had to stop watching the surveyors while wrongly failing to execute the warrant.
- Did Mr Marshall resist anything that Mr Weblin was trying to do? No. He did not.
- Did he attempt to do any of these? Again, no.
- Did he threaten to do any of these? There was a challenge to fight a fisheries officer who was no longer on his land and who apparently had a warrant authorising his entry onto the Defendant’s land. That perhaps was not a threat to assault him but an invitation to engage in a consensual fight.
- Even if this could amount to an offence, it is not that charge that was bought and particularised. That was preventing Mr Weblin entering public land. That simply did not happen.
- The Crown have also failed to negative section 277 of the Criminal Code. As the person in peaceable possession, Mr Marshall was entitled to use force less than grievous bodily harm which was reasonably necessary to remove a person wrongfully on his land. As no warrant had been shown to him he was entitled to act under that provision.
- The Crown have also failed to prove that Mr Marshall did not have a reasonable excuse for his conduct, namely insisting on compliance with the law by being shown the warrant. His conduct was aggressive and rude but to the extent it could amount to an offence of obstructing, he had a reasonable excuse being the failure to serve the warrant on the occupier and the failure when requested to show him the warrant.
- I therefore find the Defendant not guilty of the obstruct charge.
- Published Case Name:
Raymond Edward Weblin v Trevor John Marshall
- Shortened Case Name:
Weblin v Marshall
 QMC 9
15 Aug 2019