DISTRICT COURT OF QUEENSLAND

Facts

1. [1]
   On 5 November 2004 each of the appellants was found guilty in the Magistrates Court, Innisfail of committing an offence pursuant to s 88(1) of the Nature Conservation Act 1992 (“the Act”) of taking protected animals. The ‘animals’ were in fact birds. The offences were committed between 1 July 2002 and 9 September 2003 when each of the appellants were employees of the “Barramundi Waters” fish farm at Cowley, south of Innisfail. In the course of their employment the two men shot and killed birds which had come to prey on the fish in the farm’s ponds. These birds included night herons, pelicans, ducks, egrets, and jabirus.

Evidence

2. [2]
   The evidence before the Magistrates court was that Environmental Protection Agency and Queensland Parks and Wildlife Service investigators executed a search warrant at the barramundi farm on 9 September 2003. A number of staff from the farm were interviewed including the two appellants. The investigating officers took possession of two books in which details had been kept by staff of the number of birds taken on particular nights. Remains of deceased birds were located at a site on the property and seized for scientific examination. When interviewed both appellants admitted to shooting birds but stated that they did not appreciate that it was an offence to do so.

3. [3]
   A former employee of the farm gave evidence of seeing fellow workers including the two appellants, shooting birds on many occasions including pelicans, jabirus, ducks, egrets and night herons. The carcasses of the birds were disposed of in a rubbish, or “mort”, pit on the farm. Although the former employee only worked on the farm during the day he saw evidence (in the form of the carcasses of night herons) of the shooting of birds during the night time. The birds were shot usually with a 12 gauge shotgun owned by one of the proprietors of the barramundi farm. The former employee guessed that “thousands” of birds had been shot during the 14 months he worked at the farm.

4. [4]
   Two dead birds seized on 9 September 2003 were identified as a masked lapwing and a striated heron, both of which are common wildlife pursuant to the Nature Conservation (Wildlife) Regulation 1994. Jabirus, pelicans, ducks egrets and night herons are also common wildlife pursuant to that legislation.

5. [5]
   Neither of the appellants were legally represented during the trial and neither sought to cross-examine any of the prosecution witnesses or give or adduce evidence themselves. A certificate tendered pursuant to the evidentiary provisions of the Act in relation to each appellant to the effect that neither of the appellants was the holder of a licence, permit or other authority issued under the Act at the relevant time, was also not challenged by either appellant.

6. [6]
   At the close of the prosecution case before the Magistrate the appellants submitted that there was no case for them to answer and sought to hand up to the Magistrate written submissions. The Magistrate refused to accept or read the written submissions and went on to give his decision in which he, unsurprisingly, found that the elements of the offence against each appellant had been proven beyond reasonable doubt and he convicted each of them.

7. [7]
   In sentencing the appellants the Magistrate noted that they were employees of a “substantial fish raising enterprise” and that the birds in question would be natural predators of the fish. However he declared the background was largely irrelevant in considering the protection of the birds. It was submitted by the prosecution that substantial fines should be imposed and the Magistrate had regard to the maximum penalties prescribed by the Act (a fine of $225,000 and imprisonment of two years, if dealt with on indictment) and also penalties imposed for similar offences in the past.

8. [8]
   His Honour noted that apart from participating in a record of interview during which admissions were made, neither of the appellants had co-operated with the administration of justice and in particular had not pleaded guilty despite an overwhelming prosecution case against them. Each of the appellants was convicted and fined $12,000 in default of payment to be imprisoned for two months. Each was also ordered to pay $4,272.21 being the professional costs and travel expenses incurred by the prosecution in running the trial. The appellants were allowed six months to pay the fine and eight months to pay the costs. The penalties imposed by His Honour were heavy, however neither appellant has appealed against the sentence imposed upon him.

Grounds of appeal

9. [9]
   Each appellant appeals against his conviction on the following grounds (as set out in their Notices of Appeal and amended during argument before this Court):-

1. That the investigating officers had no jurisdiction and/or power to enter the property and carry out their investigation.

2. That sections 22 and 392 of the Criminal Code “ousted the jurisdiction of the learned Magistrate as property was put in issue”.

3. That the Magistrate refused to accept a written plea of no case to answer from the appellants.

4. That Ashley Lawrence Leavy, who laid the complaint is an authorised officer of the Crown and his delegation restricts him to s 69 – Lands of the Constitution of Queensland 2001.

5. The Nature Conservation Act 1992 s 160 – Evidentiary provisions

“160(5) A statement in a complaint starting the proceeding of any of the following matters is evidence of the matters.

1. (a)
   …

5. (e)
   That the place where the offence was committed was in a specified protected area or in a specified zone in a specified protected area.”

The property, where the offence allegedly occurred is private property and is not a protected area as set out in Part 4 – Section 14 – “Protected Areas to which this Act applies” – Nature Conservation Act 1992.

No case to answer submissions

10. [10]
    It is unfortunate that the Magistrate did not accept from the appellants and peruse their written No Case to Answer Submissions. The respondent consented to those submissions being placed before this Court.

11. [11]
    The No Case to Answer submissions, which are 17 pages long, along with the appellants’ Outlines of Argument (23 pages) and indeed the Notices of Appeal have all apparently been “prepared and researched” by EnviroWild Pty Ltd on behalf of each of the appellants. Whilst these documents are clearly the result of extensive research they reveal a lack of appreciation of settled law.

12. [12]
    In summary the underlying argument of the appellants is that because the property upon which the offences allegedly occurred was held by the registered owners by way of a Deed of Grant in fee simple, the property had thus been alienated from the State “and away from the law-making power of the Parliament of Queensland”, and could not therefore be subject to the restrictions purportedly imposed by the Act.

13. [13]
    Firstly of course, s 88(1) of the Act does not purport to impose any restriction or limitation on the use of property but, as the relevant divisional heading in the Act states, places “restrictions on activities” of persons. Secondly however, even if the section could be interpreted as imposing restrictions or limitations on the use of property there is ample case law to place it beyond argument that the Queensland Parliament has the power to enact laws placing restrictions on the use to which private property can be put and the activities that can be lawfully undertaken thereon.^[1]There is nothing in any of the appellants’ submissions that persuades me that the Act was not validly enacted or that the provisions of s 88(1) do not apply to the activities of the appellants at Barramundi Waters.

Ground 1: No jurisdiction

14. [14]
    The appellants argue that because the offences occurred on private property, as opposed to a “protected area” as defined under the Act, no offences were committed. Section 88 of the Act places restrictions on persons relating to protected animals wherever the animals are taken from. The offence created by s 88 of the Act is not restricted to areas which are “protected areas” (eg national parks, wilderness areas etc) as defined under the Act. It is quite clear from a reading of the Part of the Act relating to its objects that it is intended that the Act apply to the whole of Queensland and in particular the protection of native wildlife by managing it wherever it be found.

15. [15]
    A related argument is that the registered owners of the property constituting Barramundi Waters are not “land-holders” as defined by the Act. The definition of that term in the dictionary, which is a Schedule to the Act, is not an exclusive one and certainly does not exclude the registered proprietors of the land upon which the offences took place. The ownership of the land is not however, relevant to the commission of the offences.

16. [16]
    As I understand the appellants’ argument that the investigating officers had no jurisdiction and/or power to enter the property and carry out their investigations, it is on the basis that no offences could have been committed because the relevant activities occurred on private property. As outlined above, this is of no consequence so far as the commission of an offence pursuant to s 88 is concerned.

17. [17]
    The appointment of the investigating officers was not challenged during the trial and neither was the validity of the search warrant issued pursuant to s 149 of the Act.

Ground 2: Application of Criminal Code

18. [18]
    Section 392(1) of the Criminal Code provides –

“When a wild animal in the enjoyment of its natural liberty has been killed by any person, the taking of the dead body of the animal by that person, or by any person acting under the person’s order, before it has been reduced into actual possession by the owner of the land on which the animal was killed or on which it died, is not deemed to be stealing.”

The definition of “property” under s 1 of the Criminal Code includes an animal that is –

“an untamed animal of a type that, if kept, is usually kept confined; or an untamed animal in a person’s possession or being pursued for return to possession after escape.”

Section 22(2) of the Criminal Code provides –

“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.”

19. [19]
    It is argued that the effect of a combination of these sections of the Criminal Code “ousted the jurisdiction of the learned Magistrate as property was put in issue”, or as I perceive the argument, that no offence could have been committed in relation to the birds the subject of the complaints, or that the appellants had a defence to the alleged offences. This argument is totally without merit. The appellants were not charged with stealing and quite clearly an offence pursuant to s 88 of the Act is not an offence relating to property. Further, there was no evidence whatsoever before the Magistrate to suggest that the appellants had an honest claim of right in relation to the birds taken. There is no conflict or inconsistency between the application of these provisions of the Criminal Code and that of s 88 of the Act.

Ground 3: No Case to Answer submissions

20. [20]
    It was conceded by the respondent that the Magistrate at first instance should have accepted and considered the written pleas of No Case to Answer from each of the appellants. For that reason, those written submissions were admitted as fresh evidence before me. Nevertheless, there is nothing contained in those submissions which could have altered the Magistrate’s findings or ultimate decision.

Ground 4: Delegation to complainant

21. [21]
    Section 69 of the Constitution of Queensland 2001 provides: 

69. Lands

3. (1)
   The Constitution Act 1867, section 30 gives the Parliament law-making power in relation to the waste lands of the Crown in Queensland.

3. (2)
   The Constitution Act 1867, section 40 vests particular rights in relation to the waste lands of the Crown in Queensland in the Parliament.

Sections 30 (Legislature empowered to make laws regulating sale and other disposal of waste lands) and 40 (The entire management of Crown lands and all revenues thence arising to be vested in the local legislature) of the Constitution Act 1867 are preserved without alteration by the Constitution of Queensland 2001.

22. [22]
    These provisions do not restrict the power of the Queensland Parliament to pass laws affecting private property and certainly do not restrict the officer who laid the complaints against the appellants to the laying of complaints regarding the commission of offences in “protected areas” only. Clearly the complainant had authority to make the complaints against each of the appellants,^[2]and a challenge to his delegated power to lay those complaints is without substance.

Ground 5: Protected area

23. [23]
    Similarly, the appellants’ final ground of appeal again appears to be based on the assertion that the Act cannot apply to private property or that an offence is only committed if animals are taken from a “protected area”. For the reasons I have given these arguments are unsustainable.

24. [24]
    Each of the appeals is dismissed.