R v Waine[2005] QCA 312

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with Keane JA's reasons for allowing the appeal and quashing the convictions.  The evidence at trial raised the defence of honest claim of right under s 22 Criminal Code 1899 (Qld).  The learned primary judge erred in not leaving that issue for the jury to determine.  The appellant contended that this Court should enter verdicts of acquittal on each count.  It remains a jury issue whether, on admissible evidence, the prosecution can negative the defences raised on that evidence under s 22 and s 24 Criminal Code.  This Court must order a retrial, although it is a matter for the Director of Public Prosecutions to determine whether the public interest is best served by pursuing Ms Waine on a retrial.

2. Order

1. Appeal against conviction allowed.

2. The appellant's convictions and verdicts are set aside.

3. New trials are ordered on each count.

3. KEANE JA:  On 18 February 2005 the appellant was convicted after a trial of six counts of wilfully damaging a building.  The appellant was alleged to have spray painted the insignia "AUA" on six huts at Dilli Village on Fraser Island, the huts being the property of the Director-General, Department of the Environment.  The appellant was fined $600, and no conviction was recorded. 

4. The appellant submits that her conviction involved a miscarriage of justice. The appellant pressed the following particular grounds:

1. the learned trial judge erred in failing to allow a defence of honest claim of right under s 22 of the Criminal Code 1899 (Qld) ("the Criminal Code") to be put to the jury;

2. The Crown Prosecutor cross-examined the appellant, and commented to the jury, upon the irrelevant issue of whether goods and services tax ("GST") was payable on permits issued and sold by the appellant.

The Crown case

5. The appellant was tried together with Reginald William Allan and Lyall Lindsay Sempf who were charged with offences relating to damage to property on 8 November 2003 and 17 November 2003. The charges against the appellant related only to 17 November 2003.

6. Mr Nathan MacDonald, a ranger employed by Queensland Parks and Wildlife, gave evidence that on 8 November 2003 he was living in cabin A at Dilli Village which consists of an old camp ground, old cabins and showers and toilets. At about 10.00 am a motor vehicle pulled up at the front of the "main house" where his fellow ranger Luke Buse was living. Mr MacDonald went out and introduced himself to Mr Lyall Sempf, one of the appellant's co-accused. Mr Sempf was accompanied by six to 10 other people. Mr Sempf asked Mr MacDonald how many people lived at Dilli. Mr MacDonald went to call his superior for instructions. Mr MacDonald next saw Mr Sempf cementing a sign into the ground at the back of cabin A and spray painting the words: "Aboriginal University of Australia" on the buildings. Mr MacDonald did not seek to intervene to stop Mr Sempf. The appellant was a passenger in the vehicle on this occasion.

7. Mr MacDonald said that, on 17 November 2003, he saw Mr Sempf and Mr Allan erecting a sign "Cabins for Rent" at the entrance to Dilli Village. Mr MacDonald did not intervene to prevent this activity, but took photographs of Mr Sempf while the appellant took photographs of him.

8. Later, Mr MacDonald saw the appellant with a stencil. She was spray painting the doors of cabins with the stencil. Once again, he did not seek to intervene to prevent the appellant from spray painting the cabins.

9. A police officer, Mr Lehfeldt, said that on 17 November 2003, he spoke to the appellant and her co-accused at the entrance to the village. They were erecting a sign. He later spoke to them in a cabin at the village. He told them he was leaving, and that they "were not to cause any damage to property". The appellant said: "You'll find that we're fairly peaceful people. You won't get any trouble out of us."

10. Dr Ruth Kerr was called to give evidence that claims for native title in respect of parts of Fraser Island had been made by Mr Jones who was an associate of
    Mr Sempf.  All these claims had been struck out by the relevant courts.  She gave evidence of the history of title to the land on which Dilli Village was situated. 

The appellant's case at trial

11. The appellant gave evidence. She admitted spray painting with stencils "maybe eight or ten cabins" at Dilli Village with the letters "AUA" on 17 November 2003.

12. The appellant said that she had been working as a volunteer at the Shell Tourist Centre at Rainbow Beach. This shop was operated by Bronwyn Evans, the daughter of Mr Allan. Mr Sempf was introduced to her by her other co-accused Mr Allan. Mr Sempf had arranged for "Indige Passes" to be sold through the shop which purported to authorize tourists to travel to and camp on Fraser Island. Mr Sempf told the appellant that he was "dealing on behalf of the Aboriginal people who were wanting to set up a cultural centre on Fraser Island, Dilli Village" and that they intended to make use of the disused buildings there.

13. While the appellant was working for the Shell Tourist Centre, she issued "Indige Passes" to tourists. She said that Mr Sempf told her that there was some arrangement or authority in place allowing Indige Tours to be conducted from Dilli Village. She attended a ceremony, also attended by the local Mayor and local Member of Parliament, where the commencement of Indige Tours was announced. This occurred on 7 November 2003. On 8 November 2003, after having driven with Mr Sempf and Mr Allan to Dilli Village, she saw Mr Sempf hand some papers to the ranger which she was later led to believe gave Mr Sempf the authority to claim the village for the local Aboriginal tribe. The appellant acknowledged that she did not stay in any of the cabins because she "didn’t have a claim to it".

14. In her evidence-in-chief, the appellant said that prior to spray painting the cabins on 17 November 2003 she had asked Mr Sempf whether or not the spray painting of the walls of the cabins were legal, and that he had told her "yes, it was definitely legal, everything was aboveboard. We weren't doing anything wrong because he had the correct paperwork and the approval of various perhaps government - I don’t know if he meant the Court. I'm not really sure."

15. She said that she had proceeded to spray paint the cabin doors "[b]ecause prior to going over to Dilli Village on Fraser Island I was led to believe and on the understanding the aboriginals were - the Dalungbara tribe, et cetera, were going to open a cultural centre there purely to help the aboriginal youths and other people of the aboriginal people to be able to show their culture to the tourists, mainly the international tourists who were travelling constantly into the area."

16. The appellant was asked about her belief in what Mr Sempf had told her. She said: "Well, I didn’t think there was any reason to disbelieve him. He sounded very, very confident, very sure of his facts and I had seen the relevant information to all this on Elder John Jones's web site - not so much paperwork, but it just seemed very convincing to me that that's what was going to happen."

17. The appellant was cross-examined about documents provided to her which included the statement: "Our appointed Rainbow Beach Manager, Lyall Sempf, who built and installed our shop next door to the office of the Parks and Wildlife, Rainbow Beach, informs me that Parks officers have intimated that our passes are illegal". She admitted that she had read that statement.

18. She was also cross-examined about the possible application of Goods and Services Tax ("GST") to the "Indige Passes" issued by her at the Shell Tourist Centre. I shall deal with this cross-examination in more detail when discussing the ground of appeal to which it relates.

The appeal

19. I propose to consider in turn the two grounds of appeal which were pressed by the appellant.

Honest claim of right

20. The learned trial judge allowed the issue of a defence under s 22(2) of the Criminal Code to go to the jury in the case against Mr Sempf.  This was on the basis of
    Mr Sempf's evidence that he claimed native title in respect of Dilli Village on behalf of the local Aboriginal tribe.  His Honour did not, however, allow the same defence to be left to the jury in the case against the appellant.

21. The Crown submits that s 22(2) afforded no defence in the appellant's case because the appellant herself made no claim of right to the buildings. The Crown says that the highest it could be put for the appellant was that she had a mistaken belief as to the fact of whether or not Mr Sempf was the owner of Dilli Village and, while this may have raised a defence under s 24 of the Criminal Code, such a belief did not, of itself, amount to a claim of right for the purposes of s 22(2).  The Crown's contention thus depends on the view that s 22(2) is not apt to afford a defence unless an accused claims some right in the property the subject of the charge that is personal to him or her.

22. Section 22 of the Criminal Code provides relevantly as follows:

"(1)Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.

(2)But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.

. . . "

23. Authority provides some guidance in relation to the operation of s 22(2) of the Criminal Code.  An erroneous belief that what one is doing is lawful is a mere mistake of law and no defence.^[1]  What is required to raise the possibility of a defence under s 22(2) of the Criminal Code is an honest claim by the accused to an entitlement in, or with respect to, property.^[2]  It may be, although it is not entirely clear, that this claim must be one which is peculiar to the person asserting it.^[3]  It is clear, however, that it is not necessary that the right claimed be one known to the law.^[4]  

24. It is also clear that the defence afforded by s 22(2) is "not limited … to offences by which the offender obtains possession of property. The defence is available when the offence relates to the damaging or destroying of property . . ."^[5]

25. It has been said that the clearest example of the operation of s 22(2) of the Criminal Code is the case where a person does an act with respect to property in the honest but mistaken belief that he or she is the owner of the property.^[6]  But it is also clearly established on the authorities that an honest claim of right may be made, not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property.  What is important is the honest belief that one is legally entitled to do to the property that which one is doing.  That belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one's own title.^[7] 

26. It would follow, it seems to me, that one who damages property in the mistaken belief that one is authorized to do so by the owner may honestly claim to be entitled to deal with the property in that way so as to have a defence under the subsection. In this way, the subsection would, for example, afford a defence to a house painter who is requested to paint a house pursuant to a contract with a person who mistakenly represents himself or herself to be the owner of the house. The painter may honestly claim to act with respect to the house pursuant to the right conferred in that regard by the person honestly believed to be the true owner. In my respectful opinion, in the present case, the position of the appellant is no different.

27. In the present case, the issue was whether the appellant, as a person dealing with property in a manner authorized by Aboriginal persons asserting ownership of the cabins, could raise a defence under s 22(2) of the Criminal Code by claiming to deal with the huts in accordance with the consent of those persons.  In my respectful opinion, in such a case, the accused falls within the dictum of Gibbs J in R v Pollard:^[8]

"An accused person acts in the exercise of an honest claim of right (in respect of the property the subject of the charge) if he honestly believes himself to be entitled to do what he is doing [in relation to that property]."

28. I have made the parenthetical insertions in the dictum of Gibbs J in deference to the observations of Mansfield CJ in Olsen v Grain Sorghum Marketing Board; Ex parte Olsen^[9] that the statement of Gibbs J must be read as speaking of conduct in respect of the property the subject of the charge.^[10] 

29. In this case, the appellant was acting as the agent of Mr Sempf. If Mr Sempf can assert an honest claim of right to deal with the property, so, in my view, may the agent who believes she is authorized by him to do what he might do. It was submitted on behalf of the respondent that only a claimant to a beneficial interest in property in that claimant may raise a defence under s 22(2) of the Criminal Code.  But the language of s 22(2) does not suggest that the defence which it affords can or should be read down in this way; and to read the language of s 22(2) as if it were so confined would be inconsistent with the liberal construction of the provision supported by R v Jeffrey & Daley.^[11]   

30. Having reached this conclusion it is necessary to consider the nature and extent of the claim of right made by Mr Sempf. In order to establish an honest claim of right it is necessary to show that the rights claimed “would, if well founded, preclude what was done from constituting a breach of the relevant criminal law which an accused is presumed to know".^[12] The relevant criminal law in the present case was
    s 469 of the Criminal Code, which makes it an offence for any person to wilfully and unlawfully destroy or damage any property.  By virtue of s 458(1) of the Criminal Code:

 "An act which causes injury to the property of another, and which is done without the owner's consent, is unlawful unless it is authorised or justified or excused by law." 

The argument mounted by Mr Sempf was that he claimed certain native title rights with respect to the land at Dilli Village that, if those rights had been well founded, would have meant that his acts at Dilli Village, including those which resulted in damage to the cabins located there, were not unlawful.

31. The Crown has not contended in this appeal that the evidence did not provide sufficient basis for Mr Sempf to mount the argument that he had an honest claim of right based on native title to carry out certain activities on the land at Dilli Village. Instead, the Crown submits that such a claim is not applicable to what was actually done by Mr Sempf and, by extension, the appellant, because that claim related to "the land" and not the buildings. There is nothing in the evidence, however, to suggest that the buildings were not fixtures upon, and so part of, the land under the common law.^[13]  Whether they could be so regarded as one of the incidents of the native title rights claimed by Mr Sempf was not fully explored; but the possibility that they should be so regarded was not negatived by the Crown.  It is apparent from Mr Sempf's evidence that he believed that he was entitled to do what he did to the buildings because they were on the land to which he laid claim. I would, therefore, reject the Crown's argument that the learned trial judge erred in this respect.

32. Once it is accepted that the defence of honest claim of right was available to
    Mr Sempf then, in my respectful opinion, I see no reason why the appellant was not equally entitled to have the jury consider whether s 22(2) afforded a defence in her case as well. If Mr Sempf was allowed to place his argument of right before the jury, then the appellant was entitled to have the jury consider whether the appellant had merely acted as Mr Sempf’s agent in the exercise of these rights. There was evidence that the acts of the appellant out of which the charges against her arose were carried out pursuant to Mr Sempf’s instructions and with the honest belief that Mr Sempf possessed the rights to which he laid claim. It follows, in my respectful opinion, that there was evidence sufficient to raise the issue of a defence under
    s 22(2) of the Criminal Code and the learned trial judge erred in refusing to allow the jury to determine that issue.

GST

33. The Crown Prosecutor cross-examined the appellant at some length in relation to her failure to attend to the possibility that GST was payable on Indige Passes issued by her. In particular, the Crown Prosecutor cross-examined the appellant in relation to whether GST was payable on the issue of the Indige Pass documents, whether it was collected and remitted to the Australian Taxation Office and whether the appellant was concerned about those matters or made any enquiries in relation to them.

34. The appellant's counsel objected to this cross-examination. The learned trial judge permitted the cross-examination to continue. His Honour evidently accepted the submission of the Crown Prosecutor, which was in the following terms:

"The issue is this witness has been put forward as placing reliance on these documents and having read them carefully.  I am exploring what level of veracity and what level of knowledge she has of these documents; whether there's anything about them that would strike her as unusual."

35. In my respectful opinion, this submission is not compelling. Indeed, it is barely intelligible. Insofar as it was relevant to the appellant's credibility that she knew of the Indige Passes and was familiar with their terms, that seems to have been clear beyond any shadow of a doubt without the need for this line of cross-examination. Further, the appellant's appreciation of the operation of GST in relation to the Indige Passes as a matter apt adversely to affect her credibility could not begin to be relevant in the absence of a demonstration that GST was payable on the Indige Passes; and this the Crown Prosecutor did not attempt. In this regard, the cross-examination was distinctly unfair in that no attempt was made to establish that GST was payable on the issue of the Indige Passes.

36. In any event, the relevance of the cross-examination as possibly detracting from her credibility was overwhelmed by the unfounded, but highly prejudicial, suggestion that the appellant was in some vague way complicit in some unidentified form of fraud on the revenue. It appears that some argument to that effect may have been addressed to the jury by the Crown Prosecutor. Unfortunately, the addresses of counsel to the jury were not recorded; and so the position in this regard is not clear. It does seem, however, that the GST point was pursued by the Crown Prosector as a point adverse to the appellant's credibility.

37. The appellant, in reliance upon s 24 of the Criminal Code, claimed that she had an honest and reasonable but mistaken belief that Mr Sempf had received executive or curial approval to paint the buildings at Dilli Village. The learned trial judge directed the jury that it should not draw any inference against the appellant if GST had not been paid when it should have been.  One cannot be confident that this direction was sufficient to repair the prejudicial effect upon the appellant's prospects of acquittal of what was a lengthy cross-examination.^[14]  The jury were not directed to disregard this aspect of the cross-examination entirely.  The concern which arises from the cross-examination relates at least as much to what the jury made of the appellant's performance in attempting to deal with this unexpected, complex and, in my respectful opinion, irrelevant line of questioning as it does to whether the Crown had succeeded in establishing the basis for an inference that she was a tax fraudster.

Conclusions and orders

38. The appeal should be allowed and the convictions should be quashed.

39. The appellant has submitted that verdicts of acquittal should now be entered. But there was ample evidence on which the appellant could have been convicted. Whether the appellant's defence under s 22 or s 24 should be upheld is a matter for a jury. In my opinion, there should be an order for a retrial.

40. WILSON J:  I agree with the reasons for judgment of Keane JA and with the orders His Honour proposes.