Hindman v Sargent[2013] QDC 143

DISTRICT COURT OF QUEENSLAND

1. [1]
   I have before me an application by the appellant to admit fresh evidence on the hearing of his appeal.

2. [2]
   At the hearing of the application:

1. The respondent consented to the expert evidence of Dr Bill Burrows, contained in a report prepared by him to be admitted into evidence.

2. The appellant withdrew his application for the evidence of Ms Jane Hamilton and Mr Alexander Stirton to be admitted and also withdrew his application for a field inspection of the subject land by the court hearing the appeal.

3. [3]
   Accordingly, the only remaining question was whether a review conducted by crown law at the request of the Director General of the Department of Natural Resources and Mines should be admitted as fresh evidence.

4. [4]
   The applicant’s submissions with respect to that issue are entirely contained in the document entitled “Further Submissions on Behalf of the Appellant to Admit Fresh Evidence” dated 9 May 2013, although general submissions about the admission of fresh evidence are also contained in paragraphs 3 to 5 of earlier submissions of the appellant filed 3 December 2012. The respondent’s submissions in reply are contained in a three page document entitled “Respondents Submissions in Reply to Appellants Further Submissions on his Application to Admit Fresh Evidence” dated 14 May 2013 but once again, general submissions about admission of fresh evidence on an appeal are contained in paragraphs 1 and 2 of the respondent’s earlier submissions of 16 April 2013.

5. [5]
   The general history of the matter is set out in an affidavit of the appellant filed on 3 December 2012.

6. [6]
   On 2 November 2012 the appellant plead guilty to carrying out assessable development on a property he owned, Alpha Station, at Wyandra without a permit contrary s. 4.3.1 of the Integrated Planning Act. He was fined $110,000.

7. [7]
   The property had been inspected by two officers of the Department of Employment and Economic Development (“DEEDI”), initially on 19 May and on a number of occasions thereafter. Subsequently the appellant and officers of DEEDI spoke or corresponded on a number of occasions about, inter alia, turkey bush, a woody plant prevalent on the subject land. It was the clearing of this plant and perhaps others, from the subject land that led to the subject charge. Initially, the appellant says that the DEEDI officers were enthusiastic about his dealings with the plant; that is, his clearing of it from the subject land. Indeed they proposed, he says, to write up his land management practices as a case study. Subsequently it seems that officers of the Department of Environment and Resource Management (“DERM”) took a different view and the DEEDI officers would thereafter not supply material in the form of a case study to support the appellant in his dealings with DERM.

8. [8]
   It is not in dispute that the appropriate test for the admission of fresh evidence on appeal is as set out in Pavlovic v Commission of Police (2006) QCA 134. Three main considerations were identified as prerequisites to the admission of fresh evidence on appeal namely:

1. (a)
   whether the evidence relied on could have been produced by the accused at the proceedings;
2. (b)
   whether the evidence is apparently credible; and
3. (c)
   whether the evidence, if believed, might reasonably have led to a different result.

9. [9]
   The documents sought to be admitted are documents which were prepared for, or produced by a crown law review of the Vegetation Management Act. Evidence was given about this review before the Parliamentary Estimates Committee. It seems that some evidence given at that committee, presumably by an officer of DERM, suggested that there had been a consideration of the increased levels of fines imposed under that Act in recent times. The review was apparently the result of a ministerial query about the reasons for that significant increase, in circumstances where there had been no change to the Act itself. In the course of that evidence it was said that after completion of the review it would be made public.

10. [10]
    The review was, it seems, also referred to by the minister introducing the Vegetation Management Framework Amendment Bill on 2 March 2013 and in the explanatory notes to the Vegetation Management Framework Amendment Bill 2013. It seems that one of the findings of the Crown Law Review was that penalties could be applied inconsistently and result in inequitable penalties for defendants.

11. [11]
    In such circumstances one can understand the defendant’s interest in having material available to the Appellate Court about such circumstances. The question however is whether, is even if it is relevant, the criteria earlier set out from Pavlovic’s case have been met and  further, and perhaps as a threshold ­matter, whether the material would be admissible as evidence.

12. [12]
    The appellant says that he has requested the material from the respondent. Presumably this means from the department rather than from the respondent himself. This request has been refused. At paragraph 14 of his submissions the appellant says “(t)hat the respondent has such concerns in respect of the application of Section 60B that it has recommended that the section be repealed entirely following the advice contained in the Review is a matter that ought to be ventilated before this Court on this Appeal and this Court ought to have the Crown Law Review before it in considering the Appeal”.

13. [13]
    The appellants written submissions did not identity the basis on which the review material would be admissible on the appeal. It would, it seems to me, contain matters of history and opinions of particular officers of Crown Law. In oral submissions his solicitors relied on the provisions of s. 51 of the Evidence Act. That section is in the following terms:

“Proof of public documents

51. Where a document is of such a public nature as to be admissible in evidence on its mere production from proper custody, a copy of or extract from the document shall be admissible in evidence if –

1. it is proved to be an examined copy or extract; or
2. it purports to be certified as a true copy or extract under the hand of a person described in the certificate as the person to whose custody the original is entrusted.”

14. [14]
    In my view, documents prepared during a review of legislative enactments as part of public servants duties following a ministerial query are not public documents within the meaning of s 51. Public documents are documents made by a public officer pursuant to a duty to enquire and to record facts for a public purpose. The section has no application to the review documents. There is in my opinion no entitlement for members of the public to view the Crown Law documentation.

15. [15]
    Furthermore, as the respondent’s counsel point out in their submission the review does not have legal force and is not of itself relevant to the interpretation of s. 60B of the Vegetation Management Act 1999. Because issues on the appeal concern the interpretation of s. 60B of the Vegetation Management Act, the respondent’s counsel submit it is appropriate to have regard also to s. 14B of the Acts Interpretation Act which deals with the use of extrinsic material in interpretation. The section provides:

1. Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation –

1. (a)
   if the provision is ambiguous or obscure – to provide an interpretation of it; or

2. (b)
   if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable – to provide an interpretation that avoids such a result; or

3. (c)
   in any other case – to confirm the interpretation conveyed by the ordinary meaning of the provision.

2. In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to –

1. (a)
   the desirability of a provision being interpreted as having its ordinary meaning; and

2. (b)
   the undesirability of prolonging proceedings without compensating advantage; and

3. (c)
   Other relevant material.

3. In this section – extrinsic material means relevant material not forming part of the Act concerned, including, for example –

1. (a)
   … the Act…; and

2. (b)
   A report of a royal commission, law reform commission, commission or committee of enquiry, or a similar body, that was laid before the Legislative Assembly before the provision concerned was enacted; and

3. (c)
   A report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the provision was enacted; and

4. (d)
   …

5. (e)
   An explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and

6. (f)
   the speech made to the Legislative Assembly by the member when introducing the bill; and

7. (g)
   material in the Votes and Proceedings of the Legislative Assembly or in any official record of debates in the Legislative Assembly; and

8. (h)
   a document that is declared by an Act to be a relevant document for the purposes of this section.

16. [16]
    The Counsel for the respondent in their submission point out that there is no evidence that the review was ever laid before the Legislative Assembly and nor was it produced by a committee of inquiry or similar body.

17. [17]
    In the circumstances it does not seem to me that the Crown Law review would be admissible evidence to be called upon the appeal. It may be, however, that in the interpretation of s. 60B of the Vegetation Management Act, that proceedings in parliament for the amendment of s. 60B, by the Vegetation Framework Amendment Act and the explanatory memorandum thereto may be relevant to the consideration of whether or not the fine imposed in this case was appropriate. I do not however decide that issue, which of course involves separate issues from those raised on this application and it is a matter for the Appellate Court.

18. [18]
    In the circumstances the application so far as it relates to the admission of evidence of the Crown Law review is dismissed.

19. [19]
    I will hear argument as to costs.