Scriven v Sargent[2017] QCA 95

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.
2. BODDICE J:  On 9 September 2011, the applicant was convicted in the Magistrates Court of carrying out “assessable development”, on his rural property without an effective permit, contrary to s 4.3.1 of the Integrated Planning Act 1997 (Qld) (“IPA”).  The applicant was fined and ordered to pay the costs of the investigation and legal costs.  No conviction was recorded.
3. On 20 September 2011, the applicant lodged an appeal against both the conviction and sentence in the District Court of Queensland.  On 17 February 2016, the appeal against conviction was dismissed and the appeal against sentence was allowed.  An order was made that the applicant be re-sentenced for that offence.
4. By notice filed 14 March 2016, the applicant sought leave to appeal the decision of the District Court of Queensland, dismissing his appeal against conviction.  The grounds for the application were that there had been errors of fact and law, and a denial of natural justice.
5. The grounds of appeal were based on contentions that as the applicant was the registered owner of the freehold title of the land on which the assessable development had been carried out without an effective permit, a criminal offence was not created by the IPA; that the respondent had no standing to bring a claim of criminal negligence against the applicant as the State had no registered interest over his freehold land; and that s 22 of the Criminal Code had application in any event.
6. However, the applicant’s written submissions in reply clarified that the first two contentions were but circumstances relied upon to found a defence of honest claim of right based on s 22 of the Criminal Code (“Code”).  The oral submissions also proceeded on that basis.

Background

7. The land in question forms part of a large rural property, comprising over 13,000 hectares.  The applicant’s family conduct a cattle operation on the land.  The applicant acquired freehold title to the land in question in 2000.
8. The land was previously held by the applicant by way of a freeholding lease.  It was purchased from the former leaseholder and subsequently converted to a freehold title.  The applicant is the registered owner pursuant to that freehold title.
9. The assessable development the subject of the offence related to the clearing of native vegetation in the form of mallee and poplar box on some 1,819 hectares of the freehold land, without an effective permit.
10. The applicant’s contention in the Magistrates Court and on appeal was that the prosecution could not prove beyond reasonable doubt that the applicant did not have a permit or permits to clear the land and that, in any event, the applicant was not criminally responsible for any such offence because the clearing was done by him in the exercise of an honest claim of right without intention to defraud.

District Court decision

11. The primary Judge found the Magistrate was entitled, on the evidence, to be satisfied beyond reasonable doubt that the applicant had no permit for clearing the land.  The scheme of the Act provided for the notation of any permit issued to be made on the certificate of title to the relevant land.  Further, even if permits were able to be granted without such notation, permits would not have been granted for clearing the land in the way the applicant had cleared the land.
12. The primary Judge further held that the Magistrate did not err in concluding s 22 of the Code did not constitute an answer to the charge.  That section only operated if the right which a person must honestly believe to exist was a right which if it did exist would be a defence to the charge.  A belief in a right to do something with respect to the property cannot constitute a defence if that right does not exist.  It is simply ignorance of the law.

Applicant’s contentions

13. The applicant contends that the provisions of the Land Act, the Property Law Act and the Land Title Act create the Torrens System of title by registration.  The applicant honestly believed that that system of title protected the applicant from prosecution in respect of acts done in relation to his land whilst registered proprietor of that land.
14. The applicant submits that he honestly believed that holding real property under that system of title by registration entitles the applicant to use the subject land unconditionally, including all fixed native vegetation.  As neither the Vegetation Management Act nor the IPA were noted or registered on the applicant’s title to that land, the applicant honestly believed fixed native vegetation remained his property with the right to do as he wished with it.
15. The applicant submits the primary Judge erred in finding that s 22 of the Code had no application.  The applicant had undertaken clearance of the land in the honest but mistaken belief that he was the owner of the native vegetation on the property over which he had freehold title.  Section 22 operates as a defence in respect of an honest claim of right to act in a specified way in respect of property.

Respondent’s submissions

16. The respondent submits the primary Judge correctly held that s 22 of the Code had no application.  Section 22 only operates in respect of a right a person honestly believes to exist if that right, if it existed, would constitute a defence to the charge.
17. The primary Judge correctly found that s 4.3.1 created an offence of general application, irrespective of any proprietary or lesser right in the land and therefore afforded no scope for the exercise of any claim of right.  Nothing in s 4.3.1 limits its operation such that ownership of the land in question would constitute an excuse for the commission of the offence.
18. The respondent submits that s 4.3.1 of the IPA proscribes clearing of native vegetation on freehold land generally throughout the State.  The provisions of the Land Title Act did not free the applicant from the requirement to comply with such a provision.

Discussion

19. Relevantly, s 22 of the Criminal Code provides that a person is not criminally responsible, for an offence relating to property, or 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.  Section 22 does not operate if the relevant belief would not constitute a defence to the relevant charge.  It also does not operate if the relevant relief merely amounts to ignorance of the law.
20. In Walden v Hensler^[1] Deane J observed^[2]:

“An honest belief of a special entitlement to do the act with respect to the property, such as belief of ownership, will only constitute a defence under s 22 of the Code if that entitlement would, if well founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know.  …  In other words, it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged.”

21. In discussing the ambit of s 22, Deane J considered offences involving the taking of property from the natural environment:

“An example of such a possible offence is that of mining in a natural forest.  If the offence charged be the extraction of minerals owned by the Crown or another person in breach of the provisions of royalty legislation, the existence of an honest belief of ownership of the relevant minerals would found a defence of claim of right under s 22 of the Code in that, if the belief were well founded, the offence would not have been committed.  On the other hand, if the mining is in breach not of royalty provisions but of a general conservation law intended to protect the forest from all mining activities, including any mining activities of the owner of the minerals, an honest belief of ownership of, or of some more limited claim to, the minerals could not constitute a defence of claim of right under s 22 for the reason that, even if it had existed, ownership of, or the more limited claim to, the minerals would be simply irrelevant.  …”

22. In Walden, the relevant offence imposed a general prohibition upon the taking or keeping of prescribed fauna irrespective of any proprietary or lesser right.  That offence was committed regardless of whether a person was exercising rights of ownership or traditional rights of hunting with respect to that fauna.  As Deane J observed:

“That being so, a genuine claim of ownership or hunting rights with respect to the fauna no more constitutes the basis of a defence of claim of right than does a genuine belief by a drug trafficker of ownership of the drugs in which he deals.  In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights.”^[3]

23. Dawson J reached a similar conclusion.^[4]  The reasoning of Deane and Dawson JJ in Walden has been expressly adopted and applied by this Court.^[5]
24. The applicant submits that s 4.3.1 does not constitute a general offence as unconditionally fixed natural vegetation is registered as a fixture to real property and accordingly a matter to which the applicant properly has a claim of ownership as the registered owner of the property in question.  A defence of claim of right pursuant to s 22 was available because the claim was an entitlement to act in respect of the native vegetation.
25. That submission cannot be accepted for two reasons.  First, the natural vegetation on the applicant’s land was not a fixture for the applicant to use as he saw fit.  The IPA and the VMA lawfully protected clearance of that natural vegetation without an effective permit.^[6]
26. Second, that submission fails to accord any significance to the requirement in s 22 for the honest belief, if it had been well founded, to be a defence to the charge.  The belief claimed by the applicant amounted to no more than an assertion that he honestly believed he had an entitlement to act in relation to the native vegetation.  That assertion amounts to no more than an allegation he was unaware of the effects of the relevant legislation.  Such a claim, even if held honestly, is not protected by s 22 as it merely amounts to ignorance of the law.
27. Section 184 of the Land Title Act protects a registered proprietor of real property from an unregistered interest affecting the lot.  It does not protect the registered proprietor from legal obligations that do not stem from a proprietary interest.  Section 4.3.1 of the IPA creates a legal obligation on the registered proprietor of freehold land.
28. Relevantly, s 4.3.1 of the IPA provides:

“4.3.1(1) A person must not start assessable development unless there is an effective development permit for the development.

Maximum penalty – 1665 penalty units.

2. Subsection (1) applies subject to section 4.3.6.

3. Despite subsection (1), the maximum penalty is 17000 penalty units if the assessable development is –

1. the demolition of a building identified in a planning scheme as a building of cultural heritage significance; or

2. on a registered place under the Queensland Heritage Act 1992.”

29. There is also no substance in the contention that s 4.3.1 constitutes a form of acquisition of a property right.  Section 4.3.1 proscribes what may be done in relation to the clearing of vegetation on freehold land throughout the State.  It does not purport to create an interest of any type that would be capable of being recorded on the title to the real property held by the applicant.  There is therefore no inconsistency between the provisions of s 184 of the Land Title Act and s 4.3.1 of the IPA.
30. There is also no substance to the applicant’s contention that because the State had no registered interest in the applicant’s title the respondent had no standing to bring an action for “criminal nuisance”.  A State Parliament has plenary power to make laws for the peace, order and good government of the State.  That power includes the power to create offences.  A State may also legislate on the prosecution of offences created by it.  The provisions of the IPA constitute a legitimate exercise of that power.  Section 4.3.1 proscribes the clearing of native vegetation on freehold land without a permit.  The Justices Act provides for the institution of proceedings by way of summary complaint.  The respondent was a proper officer to make such a complaint.  This ground on appeal also fails.

Conclusions

31. The primary Judge correctly concluded that s 4.3.1 of the IPA created an offence of general application that operated irrespective of any proprietary or lesser right in respect of that native vegetation.  As the claimed right constituted no defence to the charge, s 22 of the Code had no operation in the instant case.
32. In order to obtain leave to appeal under s 118(3) of the District Court of Queensland Act 1967, the applicant must establish that the appeal is necessary to correct a substantial injustice and that there is a reasonable argument that there is an error to be corrected.^[7]  Neither requirement is established in the present case.

Order

33. I would order that the application for leave to appeal be refused.
34. DALTON J:  I agree with the reasons of Boddice J and with his proposed order.