SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ: On 5 October 2004, the applicant pleaded guilty in the Magistrates Court at Cairns to an offence under s 162(1) of the Nature Conservation Act 1992 (Qld).  It was an indictable offence dealt with summarily.  The terms of the charge are as follows:

“that between 1 June 2002 and 9 September 2003 at Cowley in the Magistrates Court District of Innisfail in the State of Queensland, CRIS BRIAN PHILLIPS, being an executive officer of a corporation namely Nino Pty Ltd, did fail to ensure that the said Nino Pty Ltd complied with the Nature Conservation Act 1992 contrary to s 162(1) of the said Act in that he did fail to ensure that Nino Pty Ltd, not being an authorised person, did not take protected animals other than under a conservation plan applicable to the animals, or a license permit or other authority issued or given under a regulation, or an exemption under a regulation.”

2. The corporation Nino Pty Ltd pleaded guilty to the offence under s 88 of taking protected animals other than under an applicable conservation plan etc. The terms of the charge were:

“that between 1 June 2002 and 9 September 2003 at Cowley in the Magistrates Court District of Innisfail in the State of Queensland, NINO PTY LTD not being authorised persons, did take protected animals other than under a conservation plan applicable to the animals, or a licence permit or other authority issued or given under a regulation, or an exemption under a regulation.

And it is averred that the said protected animals are rare and common wildlife as specified in Schedules 4 and 5 respectively of the Nature Conservation (Wildlife) Regulation 1994 contrary to the Acts and regulations in such case made and provided.”

3. The applicant was placed on a good behaviour bond, and the company fined $35,000. Before the Magistrate, the applicant was represented by counsel.

4. The applicant brought an application before the Far Northern Judge for review of the Magistrate’s decision under the Judicial Review Act 1991 (Qld).  His contention was that although he pleaded guilty, he did so on legal advice which was incorrect.  He submitted that the complainant was not duly authorised, that a search warrant executed by an authorised officer was unlawfully obtained, that the place where the offence was committed was not established to be a protected area or zone, and that the Nature Conservation Act could not apply to the relevant activities because they were carried out on freehold land.

5. In the course of the submissions before him, the Judge suggested that had the applicant sought to resile from his plea of guilty, the appropriate course would have been to apply to the Magistrates Court to vacate that plea. Had that court vacated the plea and entered a plea of not guilty, the issues raised before the Judge could have been determined in the Magistrates Court. In the event of conviction nevertheless, there would have been a right of appeal to the District Court (under s 222 Justices Act 1886 (Qld)). 

6. His Honour nevertheless dealt with the applicant’s contentions. In his reasons for judgment he pointed out that the plea of guilty, apparently freely entered, bound the applicant, and embraced admission of all the elements of the charged offence. Further, and in any event, the challenge to the legislative power of the State could not be sustained, for reasons covered in Bone v Mothershaw [2003] 2 Qd R 600, 609-610. 

7. On 7 March 2005, Jones J dismissed the applicant’s application and upheld the application of the State of Queensland under s 48 of the Judicial Review Act for an order that the applicant’s application be dismissed (as inappropriate, unreasonable, frivolous or an abuse of process).  In each case, the applicant was ordered to pay costs, assessed on the standard basis.

8. On 22 April 2005 the applicant filed in the Court of Appeal an application effectively renewing the application which he had brought before Jones J, but also, seeking leave to appeal from the orders of Jones J. No doubt subsequently apprehending a 28 day time limit may have applied, the applicant on 31 May 2005 filed a further application for an extension of time “for this appeal to be lodged”. The applicant has filed a comprehensive outline of argument canvassing the points which were raised unsuccessfully before Jones J.

9. Because His Honour upheld the State’s application under s 48(1) of the Judicial Review Act, concurrently dismissing the applicant’s application, an appeal to this court depends on a grant of leave.  See s 48(5).  Leave should not be given because the appeal would have no prospect of success.  Jones J treated the proceeding before him as an application by both the present applicant and Nino Pty Ltd, and this court should do likewise.

10. Since the applicant and Nino Pty Ltd pleaded guilty before the Magistrate, any appeal under s 222 of the Justices Act was limited to penalty (s 222(2)(e)).  Apart from a possible application to the Magistrate to vacate the plea – which may have been met with the response he was functus officio, the avenue to seek to set aside the plea was that taken, namely, application under s 43 of the Judicial Review Act for an order for review of this judicial determination, an order akin to certiorari.  See also s 41.  I agree with the view expressed in that regard by Williams JA in Long v Spivey [2004] QCA 118 para 34, and as he says, R v The Justices at Cloncurry; ex parte Ryan [1978] Qd R 213 provides a good example of quashing by writ of certiorari a conviction following a plea of guilty.

11. Mention may be made of s 147A of the Justices Act, which empowers a Magistrate to set aside a conviction “that is based on or contains an error of fact”.  I would not consider that provision applicable here.  These convictions were based on pleas of guilty regularly entered: it is accordingly difficult to see how the basis for intervention under s 147A could be established by these circumstances.

12. As to the merit of the application, Jones J held the pleas were freely entered. The assertion (to date untested) they were influenced by legal advice now claimed to have been wrong would not justify vacating them (cf. R v Gadaloff [1999] QCA 286; Meissner v R (1995) 184 CLR 132; R v TN [2005] QCA 160), but even were such reliance established, the reality is the points of challenge lack substance for the reasons expressed by Jones J.  Subject to what follows, leave should therefore now be refused.

13. The issue arose at the hearing of the applications whether the charge against Nino Pty Ltd was invalid for failing to allege the taking did not occur in a protected area. If so, the charge against the applicant was likewise invalid.

14. The charge against the applicant was brought under s 162 of the Nature Conservation Act, which provides:

“(1) The executive officers of a corporation must ensure that the corporation complies with this Act.

(2)If a corporation commits an offence against a provision of this Act, each of the executive officers of the corporation also commit an offence, namely, the offence of failing to ensure that the corporation complies with this Act.

Maximum penalty—the penalty for the contravention of the provision by an individual.”

15. The charge against the corporation was brought under s 88, which I set out:

“(1) Subject to section 93, a person, other than an authorised person, must not take, use or keep a protected animal, other than under –

(a) a conservation plan applicable to the animal; or

(b) a licence, permit or other authority issued or given under a regulation; or

(c) an exemption under a regulation.

Maximum penalty – 3,000 penalty units or 2 years imprisonment

(2)  Subsection (1) does not apply to the taking of protected animals in a protected area.

(3) It is a defence to a charge of taking a protected animal in contravention of subsection (1) to prove that –

(a)the taking happened in the course of a lawful activity that was not directed towards the taking; and

(b)the taking could not have been reasonably avoided.

(4)  Subsection (3) does not allow a person to use or keep the animal.

(5)In this section –

‘authorised person’ means a person as follows performing functions under this Act in relation to the protected animal –

(a)the chief executive;

(b)a conservation officer, public service officer or other employee of the department acting under the chief executive’s authority.”

16. Taking in a protected area is dealt with by s 62. The short question is whether the circumstance that the taking has not occurred in a protected area is part of the statement of the offence.

17. The form of s 88(1) suggests it is not. The sub-section is presented as a comprehensive statement of the elements of the offence, extending to specifying the maximum penalty. Section 47 of the Justices Act provides “the description of any offence in the words of the Act … shall be sufficient in law”.

18. Section 88(2) specifies a situation in which the offence set out by s 88(1) could not occur. It is up to the complainant, or the prosecuting authority, to select the applicable provision – s 88 or s 62. If the charge is brought under s 88, then once the place where the alleged offence occurred had been established, the court could as a matter of law be satisfied of the applicability of s 88 by taking judicial notice of regulations establishing protected areas (cf. Nature Conservation Act, s 14, s 29).  Determining elements of offences in cases like this is rarely crystal clear, as the myriad of cases on exclusions and provisos illustrates, but it is the form of s 88(1), an acknowledgment of the ease with which the legislature could have included the subject matter of (2) in (1) had it been intended that constitute an element of the offence in the formal sense, and the role of s 88(2) as explained above, which persuade me that s 88(2) was not intended to establish an element of the offence for which s 88(1) otherwise provides.

19. I would order:

1. that the application for leave to appeal be refused;

2. that the application for an extension of time within which to appeal be refused;

3. in each case, that the applicant pay the respondent State’s costs to be assessed on the standard basis.

20. McMURDO P:  The facts and issues are set out in the Chief Justice's reasons for judgment with which I agree, subject to the following observation.

21. The applicant applied under Pt 5 Judicial Review Act 1991 (Qld) ("the Act")^[1] to set aside pleas of guilty in the Magistrates Court contending that he pleaded guilty after receiving incompetent legal advice.  The applicant could have applied to set aside those pleas under s 147A(2) Justices Act 1886 (Qld) within 28 days after his conviction or within such further time as allowed (s 147A(5)).  It may be that the primary judge could have dismissed the application under s 12 or s 13 of the Act because the applicant could have applied to a magistrate to reopen the summary proceedings and set aside the plea of guilty under s 147A Justices Act 1886 (Qld):  cf Bell v Bay‑Jespersen.^[2]  The learned primary judge, however, dealt with the application on its merits.  The exercise of the free choice to plead guilty should be an informed choice based on competent legal advice so that there has been no miscarriage of justice in the entering of the guilty plea:  R v MacKenzie.^[3]  As the primary judge identified the applicant did not establish any such miscarriage of justice and his Honour rightly dismissed the application.

22. I agree with the Chief Justice's reasons for concluding that the charges laid in the Magistrates Court did not charge offences unknown to law.

23. The orders made by his Honour were plainly correct on the material before him.

24. As the applicant has no prospects of success in any appeal the applications should be refused with costs to be assessed.

25. JERRARD JA: In this appeal I have had the benefit of reading the reasons for judgment of de Jersey CJ and of the President, and the orders proposed.   I agree with what the Chief Justice has written about the points taken before the learned trial judge but I consider that there is a significant point that the unrepresented appellant has overlooked, and which leads me to respectfully disagree with their Honours.  That point is whether Mr Phillips pleaded guilty to an offence known to the law; or to put it another way, whether the allegations in the complaint, if true, disclosed the commission of an offence.

26. The reasons of the Chief Justice describe the complaint. That complaint alleged on its face that it was laid by a public officer within the meaning of s 142A of the Justices Act 1886 (Qld), one Ashley Leavy, who also made the complaint of the offence to which the corporation Nino Pty Ltd pleaded guilty.  That complaint against the company^[4] alleges an offence against s 88 of the Nature Conservation Act 1992 (“the Act”).  The offence alleged against Mr Phillips,^[5] as an executive officer of that corporation, alleged a breach of s 162 of the Act.  Section 162 provides that an executive officer of a corporation must ensure that the corporation complies with the Act, and further provides that if a corporation commits an offence against a provision of the Act, each of the executive officers of the corporation also commits an offence, namely that of failing to ensure the corporation complies with the Act; and each is liable to the same penalty as for the contravention of that relevant provision by an individual. 

27. Section 88 of the Act reads as follows:

“88Restriction on taking etc. protected animals

(1) Subject to section 93, a person, other than an authorised person, must not take, use or keep a protected animal, other than under –

(a)a conservation plan applicable to the animal; or

(b)a licence, permit or other authority issued or given under a regulation; or

(c) an exemption under a regulation.

Maximum penalty – 3 000 penalty units or 2 years imprisonment.

(2) Subsection (1) does not apply to the taking of protected animals in a protected area.^[6]   (This footnote appears in the Act as reproduced on this page).

(3) It is a defence to a charge of taking a protected animal in contravention of subsection (1) to prove that –

(a)the taking happened in the course of a lawful activity

that was not directed towards the taking; and

(b)the taking could not have been reasonably avoided.

(4) Subsection (3) does not allow a person to use or keep the animal.

(5) In this section –

“authorised person” means a person as follows performing functions under this Act in relation to the protected animal –

(a)the chief executive;

(b)a conservation officer, public service officer or other employee of the department acting under the chief  executive’s authority.”

28. Section 62 of the Act provides as follows:

“62 Restricted on taking etc. of cultural and natural resources of protected areas

(1) A person, other than an authorised person, must not take, use, keep or interfere with a cultural or natural resource of a protected area, other than under –

(a)the interim or declared management intent for the area; or

(b)any conservation agreement or covenant applicable to the area; or

(c) a lease, agreement, licence, permit or other authority granted, made, issued or given –

(i)by the chief executive under sections 34 to 38; or

(ii)under the Forestry Act 1959 or Mineral Resources Act 1989; or

(iii)under another Act by the Governor in Council, or someone else with the consent of the Minister or chief executive; or

(d)a licence, permit or other authority issued or given under a regulation; or

(e)if the area is a conservation park, resources reserve, nature refuge, coordinated conservation area, wilderness area, World Heritage management area or international agreement area – an exemption under a regulation.

Maximum penalty – 3 000 penalty units or 2 years imprisonment.

(2) It is a defence to a charge of taking or interfering with a cultural or natural resource in contravention of subsection (1) to prove that –

(a)the taking or interference happened in the course of a lawful activity that was not directed towards the taking or interference; and

(b)the taking or interference could not have been reasonably avoided.

(3) Subsection (2) does not allow a person to use or keep the resource.

(4) Despite subsection (1) and section 15,^[7] (this footnote appears in the Act) but subject to the conditions prescribed under a regulation, a person may take–

(a)a fish in a prescribed place; or

(b)an invertebrate animal in a prescribed place for use as bait to take fish under paragraph (a); or

(c)a mud crab (Scylla serrata) in a prescribed place.

(5) However, subsection (4) does not authorise a person to take –

(a)an animal for a commercial purpose; or

(b)an animal prescribed under this Act as threatened or rare wildlife; or

(c) an animal prescribed under a regulation for this paragraph.

(6) Also, subsection (4) does not, in itself, authorise a person to enter a prescribed place.

(7) In this section -

“authorised person” means a person as follows performing functions under this Act in relation to the protected area –

(a)the chief executive;

(b)a conversation officer, public service officer or other employee of the department acting under the chief executive’s authority.

“national park” includes a national park (Aboriginal land) or, national park (Torres Strait Islander land) or national park (recovery).

“prescribed place” means a national park, or part of a national park, prescribed under a regulation for subsection (4)(a), (b) or (c).”

29. Sections 62 and 88 describe different offences. Each provides for the same defences, for which the onus is expressly placed on the defendant. Those matters of defence are self-evidently ones likely to be within a defendant’s means of knowledge, rather than a complainant’s. While the same defences are provided by s 62(2) and s 88(3), the authorisations for interfering with cultural or natural resources of a protected area provided for in s 62(1)(a)-(e) differ from the authorisations specified under s 88(1)(a)-(c).   The only authorisations expressed in common terms are those appearing in s 62(1)(d) and s 88(1)(b).  There are sufficient differences between the offences and authorisations provided for in each of the two sections to treat them as prohibiting quite different varieties of conduct.  One prohibits a variety of conduct concerning the cultural or natural resources of a  protected area; the other prohibits a narrower range of conduct, and only regarding protected animals, but the latter prohibition expressly does not apply in a protected area.  The point which has troubled me on this appeal is whether a complaint alleging conduct in relation to a protected animal which is in breach of s 88 must allege that the conduct did not happen in a protected area, that is, whether it is an element of the offence created by s 88, which the prosecution must allege and prove, that the prohibited conduct happened outside a protected area.

30. Protected areas are defined in the dictionary and s 14 of the Act to include a considerable class of protected areas, of which two appear capable of applying to land held in fee simple. Those are World Heritage management areas and international agreement areas, as provided for respectively in Divisions 5 and 6 of Part 4 of the Act. The description in Division 6, and particularly s 57, of how an international agreement area can be declared by the Governor-in-Council assumes that declaration of an area may affect (private) land holders. Nothing in the Act appears to exclude private land from inclusion in an international agreement area. Whether a particular private property is in an international agreement area is a matter more likely to be within the knowledge of an officer in the department administering the Act than it is to be within an ordinary citizen’s knowledge.

31. It must be possible that the land privately owned by the corporation, on which there apparently occurred the offence alleged against s 88 committed by that company, of which Mr Phillips was himself guilty for not ensuring that that company complied with the Act, was in a protected area. If the conduct did happen in a protected area, s 88(1) did not apply to it; if an offence was committed, it was one against s 62 rather than s 88. If alleging a breach of s 62, the prosecution would need to allege the absence of the authorisations provided for by s 62(1)(a)-(e).

32. Mr Mulholland QC, for the State of Queensland, argued that it was not necessary to allege, in a complaint of an offence against s 88, that the conduct happened in a protected area. He submitted it did not form part of the statement or description of the offence in the Act, and referred to s 47 of the Justices Act 1886. That section provides that (in a complaint) the description of an offence in the words of the Act creating the offence shall be sufficient in law. 

33. Relevant case law on whether s 88(2) creates, as an element of the offence which the prosecution must prove, or as an exception it must negative, that the conduct was not in a protected area includes Dowling v Bowie (1952) 86 CLR 136, Vines v Djordjevitch (1955) 91 CLR 512, and Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.  In Vines v Djordjevitch^[8] the joint judgment observes that the technical distinction between an exception, which must be negatived, and a proviso, which need not be, had come now to depend not so much upon form as upon substantial considerations.  Relevantly, the judgment reads: (at CLR 519)

“But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies.  When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions.  Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision.  In other words it may embody the principle which the legislature seeks to apply generally.  On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts.”

34. The fact that s 88(3) expressly provides a defence on which the onus of proof is on the defendant is a textual implication supporting the view that the offence created in s 88 is not entirely stated by s 88(1), and that s 88(1) and (2) taken together amount to a statement of the complete factual situation which must be found to exist before criminal liability is incurred under that section. Then there is the consideration that where the complainant is an officer of a State Department, that complainant is more likely to both know and be able to establish whether a part of Queensland is a protected area under the Act. Conservation officers appointed under the Act^[9] have powers of entry,^[10] seizure of evidence, and arrest;^[11] the latter power is granted where the officer believes proceeding by way of a complaint and summons would be ineffective.  The Act thus discloses an assumption conservation officers will be complainants, and those officers would be likely to know precisely what lands were in protected areas.  Although the remarks of Callinan J in Slivak v Lurgi (2001) 205 CLR 304 at [94]-[95] weaken reliance on it, there is a presumption that the burden of proof is placed on a party to prove matters particularly within that party’s knowledge.  I think that is relevant to deciding what must be alleged in a complaint of breach of s 88.  In my opinion the effect of s 88(2) is that it states a matter that a complainant has to allege and prove.

35. It follows that neither the complaint against the company, nor the complaint against Mr Phillips, alleged an offence known to law. This Court has jurisdiction on an application under Part 5 of the Judicial Review Act 1991 to make orders of the same nature as the certiorari orders which the court could have made prior to that Act coming into force.  Where a defendant had pleaded guilty to a complaint which did not disclose an offence known to the law, certiorari was available to set aside that conviction, since an error of law was patent on the face of the complaint.  In R v the Justices at Cloncurry; ex parte Ryan [1978] Qd R 213 Andrews J, giving the judgment of the court, cited a decision in Cummins v Sharman ex parte Sharman; R v The Magistrates Court at Warwick and Bushell, ex parte Sharman (OSC No 45 of 1974) (unreported) in which there was apparently both an application for an order of review under s 209 of the Justices Act 1886 and an application for certiorari; Hoare J wrote in Cummins v Sharman that it was unimportant whether the court acted under s 209 or on the application for certiorari, because the plea of guilty was so qualified that the Magistrate lacked jurisdiction to convict and should have refused to do so.  That approach, apparently supported by Dunn J in the same case, appears to have been relied by Andrews J in R v The Justices at Cloncurry, in which decision convictions were quashed where there had been a plea of guilty which the justices ought not to have acted upon, quashed on applications for writs of certiorari.  Likewise in R v Middleton, Bromley & Bexley Justices; Ex parte Collins [1970] 1 QB 216, orders for certiorari were made to bring up and quash an order for disqualification made by justices acting in excess of jurisdiction, and also subsequent orders convicting that applicant of driving whilst disqualified and further punishing that applicant, who had pleaded guilty to those latter charges only because of the incorrect belief that the first conviction and disqualification was lawful. 

36. Part of the supervisory jurisdiction of this Court includes the jurisdiction to do justice^[12] and ensure that citizens of the State are not convicted and punished for non-existent offences.^[13]  A plea of guilty to a complaint which does not allege an offence admits only the matters alleged in the complaint, and no more than that.  In Long v Spivey [2004] QCA 118 Williams JA wrote that prior to the repeal of s 209 of the Justices Act,^[14] a defendant could seek to have a plea of guilty set aside by relying on an application under that section, and that prior to the enactment of the Judicial Review Act 1991 a writ of certiorari was also available.  His Honour cited as authority the decision in R v the Justices at Cloncurry, remarking that it was a good example of the latter procedure being used in order to have a conviction and sentence quashed by writ of certiorari where the court was satisfied that the original plea was equivocal.  His Honour then wrote that in his view, since 1991 such relief could be obtained under Part 5 of the Judicial Review Act, which replaced the jurisdiction formerly exercised by the Supreme Court by way of the prerogative writs. 

37. I respectfully agree with that view, and note that Holmes J agreed with the reasons of Williams JA in Long v Spivey.  I observe that because of s 222(2)(e) of the Justices Act 1886, Mr Phillips could not appeal his conviction in the Magistrates Court to a District Court Judge.  It may be, as has been suggested, that Mr Phillips could have applied to the Magistrate for leave to withdraw his plea of guilty, but any such application would run the risk of the Magistrate declaring both that he was functus officio, and (correctly) that the applicant could proceed by way of an application under Part 5 of the Judicial Review Act.  I respectfully disagree with the view that the possibility of an application to a Magistrate for leave to withdraw a plea could be considered a provision, let alone an adequate provision, made by a law and by which Mr Phillips was entitled to have a Magistrate review acceptance and conviction on the plea of guilty.  It follows that neither s 12 nor s 13 of the Judicial Review Act 1991 apply.  Mr Phillips did apply in his original application for an order in the nature of certiorari under s 43 of that latter Act, asking for a quashing of the convictions recorded by the Magistrate.  Mr Mulholland QC accepted that it was Mr Phillips’ intention to have both his own personal conviction under s 162, and the company’s conviction under s 88, quashed.  Since his applications were appropriate, and because I consider an error of law is obvious on the record, I would quash the convictions on those grounds.

38. Accordingly, I would grant Mr Phillips all relevant enlargements of time, leave to amend further his amended application dated 31 January 2005 by the addition of a ground that the complaints made against him and the company each failed to allege that the place where the offence was committed was not a protected area, allow the appeal, and quash those convictions and any order for costs. I would also order that the respondent pay the appellant’s costs of the appeal.