Kenway & Smith[2010] QDC 236

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 10 March 2009 the appellants were found guilty of committing an offence under s 4.3.1 of the Integrated Planning Act 1997 (IPA).  The penalty imposed was a fine of $3,000.00 each against Gillian Kenway and Brian Smith (the appellants).  The appellants were also ordered to pay the respondent’s costs of the hearing in the Magistrates Court in the amount of $4,898.10.  Dissatisfied with the decision below, the appellants have appealed to this court pursuant to s 222 of the Justices Act 1886.  John Cohen, the complainant in the proceedings below and the respondent in this appeal, was the responsible officer of the Gold Coast City Council.

2. [2]
   The facts underlying the proceedings below and this appeal are that the appellants retained a clearing contractor, a Mr Simpson (trading as Joe Lop), to clear timber on their land. The clearing was found to be assessable development within the meaning of IPA. There is no appeal against that finding. Pursuant to s 4.3.1 of IPA, assessable development cannot be undertaken unless there is an effective permit for the development.  There is no dispute that at the time of the clearing there was no permit.

3. [3]
   As I have already indicated, Mr Simpson, the clearing contractor, was responsible for actually cutting down the subject trees.  By reference to the decision below, it would appear that Mr Simpson pleaded guilty to the offence. But the court below also found that at the relevant times, Mr Simpson was carrying out the clearing work for and on behalf of the appellants pursuant to an oral contract.^[1]

The Appeals

4. [4]
   Section 4.4.14(3) of IPA relevantly provides:

“An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.”

The court below found that the work done was by a representative of the appellants, that the work was within the actual or apparent authority of the representative and that it had not been shown that the appellants had exercised any reasonable diligence to prevent the clearing. 

5. [5]
   Whilst the appellants have filed two separate notices of appeal, as both appellants were dealt with below in the same proceedings and where the appellants’ notices of appeal are in identical terms and, accordingly, raise materially the same issues, the appeals to this court were heard together. The respondent to these appeals also filed a separate appeal against the decision of the court below concerning costs. That appeal was subsequently withdrawn.

6. [6]
   Notwithstanding each of the appellants raising seven grounds in their notices of appeal, it became quite clear during argument that the substance of the appeals was largely as articulated in paragraphs 22, 23 and 24 of the appellants’ written outline of argument:

“22. The above facts clearly raise the operation of s 23 of the Queensland Criminal Code and it was the obligation of the prosecution to exclude the operation of that section …

23. No real attempt was made by the prosecution to exclude, beyond a reasonable doubt, the operation of s 23 of the Code.

24. Plainly Mr Simpson was an independent contractor, who engaged in several illegal acts.  The appellants are not criminally liable for the acts of an independent contractor, performed in violation of their instructions: …”

7. [7]
   Before either of the appellants could be held to be liable for the subject offences, it must of course be shown that the offending works were done for a person by his representative.^[2] A representative for the purposes of IPA relevantly means an employee or agent of the person.^[3]

8. [8]
   Relevant to this, the court below said:^[4]

“So, in short, I do prefer the evidence of Mr Smith and Ms Kenway, except with one particular area and that [is] whether in the conversation between Ms Kenway, on the 21^st, she gave Mr Simpson the go ahead to cut down trees.  Frankly, I am undecided about that matter.  It seems to me unlikely that Mr Simpson would have commenced work the following day, if he had not been given some indication that it was [in] order for him to do so.  So, it may be that the choice of words by both Ms Kenway and Mr Simpson, on that day, may have been ambiguous or vague such that Mr Simpson formed the view that it was in order for him to start.  Whereas Ms Kenway was under the impression that she had not given him formal authority to commence.

Having said that, the following day when Ms Kenway telephoned Mr Simpson, early in the day, and he said he was at the site, and she did not say to Mr Simpson to stop work, we just paused for a moment [if] a tradesman or any person doing work on one’s property were to commence without authority, it seems reasonable that if you did not want the person to do that work then you would tell him not to do it.

The next step in the process was at about 11 o’clock when both Mr Smith and Ms Kenway were on site with Mr Simpson.  They didn’t tell him to stop and there was a discussion effectively about what work he would be doing.  So, I’m of the view that there was agreement between the parties, certainly by that stage, that Mr Simpson would complete the work that he had commenced.  That is reinforced by the fact that he was paid for the work on the Thursday.  He would not have been paid if Mr Simpson [sic] and Ms Kenway had not agreed that he should do the work.  The fact that that agreement came, or may have come on the Wednesday, rather than the Tuesday, does not take away the fact that there was agreement. …” (emphasis added)

9. [9]
   There is no dispute that the onus was on the respondent to prove all of the elements of the offence and that the burden of proof was beyond reasonable doubt. The appellants were only prosecuted in respect of clearing which occurred on 22 and 23 August 2007 on the basis that the contract for the clearing was not finalised until at or about 11am on 22 August 2007.

10. [10]
    I agree with the observation of the court below that it would be unlikely that Mr Simpson would have commenced work if he had not been given some indication that it was in order for him to do so.  The evidence strongly points to the fact that on 21 August 2007 some form of agreement had been reached between Ms Kenway and Mr Simpson about the clearing and, in particular, the extent of the clearing to be undertaken.  Mr Smith was not present on 21 August 2007 and took no part in the discussions between Mr Simpson and Ms Kenway on that day.

11. [11]
    It was not until at or about 11 am on 22 August 2007 that Mr Smith became directly involved in discussions with Mr Simpson.  Clearing works of course had been continuing through the 21^st and into the 22^nd before Mr Smith became involved.  There is, in my opinion, no factual basis for concluding that Mr Simpson had been acting as Mr Smith’s representative any time prior to at or about 11 am on 22 August.  No doubt that was a significant reason why the court below proceeded on the basis that no agreement had been reached between Mr Simpson and the appellants before 22 August.

12. [12]
    However I, with respect, disagree with the finding below that some time after 11 am on 22 August Mr Simpson did become a representative of Mr Smith for the purposes of s 4.4.14(3) of IPA.  By the 21^st, the extent of the clearing, or, to put it another way, the scope of the works under the agreement had been established between Mr Simpson and Ms Kenway.  As the court below correctly observed, “… on the 21^st, she gave Mr Simpson the go ahead to cut down trees …”.  As the court below also observed, Ms Kenway was aware that Mr Simpson was carrying out clearing works on the land prior to 11 am on the 22^nd.  In this regard I also tend to agree with the observations of the court to the effect that, in all the circumstances, it is difficult to understand why, if Ms Kenway had not authorised Mr Simpson to commence clearing, she did not tell him to stop work immediately after she found out that he was clearing the land.

13. [13]
    The court below seems to have concluded that Mr Smith was liable for a number of reasons.  First, that when Mr Smith attended the site on the 22^nd with Ms Kenway, he made no attempt to have the works stopped.  Second, that Mr Smith paid for the works.  Third, that certain correspondence tended to confirm Mr Smith’s complicity.

14. [14]
    As to the first of these matters, I was not taken to any evidence to show that when Mr Smith did attend the site he changed the scope of the works already agreed between Mr Simpson and Ms Kenway.  Further, I am not aware of any principle at law which would make Mr Smith liable because he did not ask for the works to stop.  There is no probative evidence which shows that at the time Mr Smith knew that the clearing was an unlawful act.  Indeed, there is evidence to the effect that he and Ms Kenway were relying on Mr Smith’s experience and advice that the clearing work was in fact lawful.  Ignorance of the law is, of course, no excuse.^[5]  Further, by virtue of the operation of s 67Bof the Vegetation Management Act 1999 the defence of mistake of fact^[6] is not available in the circumstances of this case.  However, Mr Smith’s mistaken belief that the clearing might not have been unlawful could well explain why he did not require Mr Simpson to cease work.

15. [15]
    In dealing with s 7 of the Criminal Code the court below said:

“I also note the provisions of s 7 of the Criminal Code which deals with parties to offences, where if a person aids or abets another or counsels or procures another to commit an offence, then that person is criminally responsible for that offence.  In this case it seems to me that the defendants by engaging Mr Simpson to cut down the trees contrary to law, they are liable pursuant to s 7 of the Criminal Code as well.”^[7]

16. [16]
    The fact that Mr Smith paid Mr Simpson is not, of itself, evidence establishing that Mr Smith was involved in the “engagement” of Mr Simpson.  Nor is Exhibit 16, the document relied on by the court below, evidence which would justify a finding, either of itself or together with other evidence, that Mr Smith had engaged Mr Simpson.  It is true that Exhibit 16^[8] refers to “our agreement”.  However, that exhibit has to be viewed with the whole of the evidence.  Exhibit 12, under the heading “letter of demand”,^[9] while it appears to be correspondence addressed to Mr Simpson on behalf of both appellants, it is tolerably clear that in fact it largely consists of a summary of matters underlying the arrangement struck between Mr Simpson and Ms Kenway on the 21^st:

“I met you on site, 21^st August to discuss your quote.  You pointed out trees that could be cut due to having previously been topped and damaged, also trees which were on the boundary and the skinny straggly trees which could be cut according to council’s rules and regulations.

You quoted a price of $3,000, cash in hand, being for the three of you at $500 each per day stating that would be for felling, cutting up, and laying the trunks and foliage in the ditch, which you pointed out, otherwise it would cost a lot more to cart away plus tip fees.

You also mentioned then another $250 to transport your dozer to the site.  This is when I thought you were getting a bit greedy so I decided to get another quote.

I said, ‘Okay, I’ll get back to you.’  We parted.

…

I went home and spoke to my builder who put me on to another tree lopper for a second quote.  We arranged to meet on site at 4 pm Wednesday.  I phoned you Wednesday morning early, out of courtesy, to inform you I was getting another quote.  You stated you had already started and had all your equipment there.  Without the ‘go ahead’.  I was shocked, trying to understand what was misunderstood.”

17. [17]
    It is clear that the reference to the “I” referred to above is to Ms Kenway.  This version is also consistent with the cross‑examination of Ms Kenway:

“Well, you wanted a significant number of trees removed from the property? … definitely.

And they weren’t just restricted to the boundary; were they? … I wanted a lot of the rubbish removed.

And that’s over the whole of the site? … Yes.

There were trees that you had that you’d identified that you believed …. ?... I didn’t – I didn’t identify any trees, I spoke to Joe Lop about it.  He pointed out trees he could move legally and I said, ‘Yes, that sounds fine.’”^[10]

And later, when being cross‑examined about Exhibit 11, the following exchange took place between counsel for the respondent and Ms Kenway:

“But he in fact – you agree that as this letter states, you pointed – he pointed out with you the trees that he believed could go? … Yes.

Yes.  And those were the trees that in fact were removed by him – trees that you’d discussed with him? … Can you imagine a jungle?  I mean, like I can’t say exactly which trees, whether it was the one behind that one or whatever.  I’m just repeating his words.  Anything – I agreed with him, anything straggly could go, yes.

And in terms of the trees that were removed, your complaint, as I understand it, in relation is to Mr Lop or Mr Simpson was not that he removed trees that you hadn’t discussed or weren’t within his general instructions, but the fact, according to our evidence, that he stated before you’d given him the okay? … He started without permission, yes.”^[11]

And later:

“Now, in terms of the quote though that he gave, he gave you a price of $3,000 odd.  That was a price that he gave to you following his indication to you about the work that he could – the trees that he could remove, namely those that had been topped and damaged, those which were on the boundary, those that were skinny and straggly? … So what are you asking?  You’ve got all that, he said all that.  What is your question?

No, if you can answer my question.  He gave you a quote.  He indicated to you; didn’t he, that that quote was for the removal of trees that had been toped and damaged, trees that were on the boundary and trees that were skinny which he indicated the council would allow him to remove that’s …? … Yeah.

…what he explained to you…?.. Yeah, not the whole- not the whole property just a few, I don’t know. I didn’t want the whole property barren if that’s what you are trying to get at.

It’s the case; isn’t it, that you have never complained to anyone that the trees that Mr Simpson removed were not trees that you gave – that were part of a discussion that you had with him on the 21^st of August? … I have not complained about the trees removed, no.”^[12]

18. [18]
    Mr Simpson also gave evidence that he was put “under a lot of pressure” from Mrs Kenway to “cut everything.”^[13]

19. [19]
    On the evidence before me, with great respect of the court below, Mr Smith’s appeal must be allowed.  It is sufficiently clear to me that at all material times Mr Simpson was likely carrying out works (the nature and extent of which, were agreed on 21 August 2007) pursuant to an agreement between him and Ms Kenway entered into on 21 August 2007.  The respondent, in my respectful opinion, did not prove beyond reasonable doubt that at the material times Mr Simpson was acting as Mr Smith’s representative for the purposes of s 4.4.14(3) of IPA.  I do not consider that s 7 of the Criminal Code assists the respondent in the circumstances of this appeal.

20. [20]
    Mr Smith’s liability in this case really turned on whether Mr Simpson was, at all material times, acting as his representative as defined in the IPA. For the reasons given the respondent did not prove such a relationship existed. In respect of s 7 of Criminal Code, Mr O'Brien made the following submission:

“Whether Mr Smith engaged in communications about the price to be paid or the other elements that might have to be established to prove out the contract, in his case it’s simply enough to show that they counselled or procured and that’s born out in this case by the fact that they turned up on the day, they had the discussions with Mr Simpson.”

21. [21]
    S  7 of the Criminal Code Act 1899 (Qld), relevantly provides:

1. “7(1)
   When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

1. (a)
   every person who actually does the act or makes the omission which constitutes the offence;

2. (b)
   every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

3. (c)
   every person who aids another person in committing the offence;

4. (d)
   any person who counsels or procures any other person to commit the offence …”

22. [22]
    For the reasons given it was not proved that Mr Smith procured Mr Simpson. Nor in my opinion was it proved that Mr Smith had counselled or aided Mr Simpson to commit the offence for the purposes of the Criminal Code.

23. [23]
    While these “defences” to the liability of Mr Smith was not specifically addressed in the oral or written submissions made on the behalf of the appellants, they are open, in my view, under the grounds of appeal.^[14]

24. [24]
    Turning then more particularly to the situation of Ms Kenway, there is ample evidence to support the finding that Mr Simpson was, acting as Ms Kenway’s  “representative” when carrying out the clearing.  On behalf of Ms Kenway, it is also acknowledged that ignorance of the law is no excuse and, that in the circumstances of this case, the defence of mistake of fact is not available. 

25. [25]
    As already identified however, it is submitted that Ms Kenway should be excused from any liability under IPA pursuant to s 23 of the Criminal Code Act 1899 (Qld).  Section 23 relevantly provides:

“22. Intention – motive

3. (1)
   Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

1. (a)
   an act or omission that occurs independently of the exercise of the person’s will; …”

26. [26]
    In support of Ms Kenway, Mr Bowden relied in particular on the following cases:  Breene v Boyd; ex parte Boyd,^[15] Hunt v Maloney; ex parte Hunt,^[16] and Grain Sorghum Marketing Board and Supastock Pty Ltd.^[17]  It was of course necessary for the respondent to negative the defences available under s 23 beyond reasonable doubt. 

27. [27]
    In all of the abovementioned cases, it was held that s 23 provided a valid defence against the charge laid because the act or omission constituting the offence occurred independently of the offender’s will.  In those cases the evidence was that the act or omission perpetrated by the agent was contrary to or otherwise in violation of the principal’s instructions. 

28. [28]
    Here, it is argued that Ms Kenway could not be criminally liable because the clearing that occurred was independent of her will. That is so according to Mr Bowden, because it occurred contrary to her express instructions and/or she relied on the experience and advice of Mr Simpson. The evidence to which I was referred concerning the nature and effect of the instructions given concerning the clearing does not support the arguments advanced on her behalf.  It may well have been the case that Ms Kenway did rely on Mr Simpson’s advice about the legality of the clearing.  However, in the circumstances of this case that provides no defence.  The evidence is that Mr Simpson cut down those trees he was instructed and contracted to clear.

29. [29]
    During the course of argument Mr O'Brien submitted that the proviso in s 4.4.14(3) of IPA excluded the operation of s 23 of the Criminal Code. That consequence could only arise when the language used is clearly to that effect.^[18] While not finally deciding the matter, it is my preliminary view that s 4.4.14(3) of IPA may not necessarily operate to oust the operation of s 23 of the Criminal Code. However, in the circumstances of the case, that section does not assist Ms Kenway. As I have already said the subject trees were cleared with the express authority and agreement of Ms Kenway. There is no evidence that Mr Simpson cleared trees he was told or instructed not to remove. Accordingly, the evidence is sufficient to justify a finding, beyond reasonable doubt, that the clearing did not occur independently of the exercise of Ms Kenway’s will.

30. [30]
    For the reasons set out above no error of fact and/or law on part of the Court below has been shown. The appeal of Ms Kenway, therefore must be dismissed.

Orders

1. The appeal of Mr Brian Leigh Smith is upheld.

2. The appeal of Gillian Rosalind Kenway is dismissed.

3. I will hear from the parties as to costs.