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  4. Osprey Australia Pty Ltd v Kidston (Department of Environment and Heritage Protection) - [2014] QDC 28

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Osprey Australia Pty Ltd v Kidston (Department of Environment and Heritage Protection)[2014] QDC 28

Osprey Australia Pty Ltd v Kidston (Department of Environment and Heritage Protection)[2014] QDC 28

DISTRICT COURT OF QUEENSLAND

CITATION:

Osprey Australia Pty Ltd v Richard Ashley Kidston (Department of Environment and Heritage Protection) [2014] QDC 28

PARTIES:

OSPREY AUSTRALIA PTY LTD
(Appellant)

v

RICHARD ASHLEY KIDSTON (DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION)
(Respondent)

FILE NO/S:

174/13

DIVISION:

Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

21 February 2014

DELIVERED AT:

Cairns 

HEARING DATE:

23 January 2014

JUDGE:

Everson DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL– VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED - where the appellant was found guilty of the offence of taking a protected animal without authorisation contrary to section 88 of the Nature Conservation Act 1992 (Qld) – where the evidence before the court was entirely circumstantial – where the onus of proof fell on the prosecution to establish that a finding of guilt was the only rational inference that could be drawn from the circumstances

Evidence Act 1977 (Qld), s 65

Justices Act 1886 (Qld), ss 222-223

Nature Conservation Act 1992 (Qld), s 88

Mbuzi v Torcetti [2008] QCA 231

R v Shepherd [1990] 170 CLR 573

COUNSEL:

Mr J Korn for the Appellant
Ms D Balic for the Respondent

SOLICITORS:

Atherton Tablelands Law for the Appellant
Department of Environment and Heritage Protection Litigation Unit for the Respondent

Introduction

  1. [1]
    This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) (“JA”) against the decision of a Magistrate sitting at Cairns on 11 August 2013 convicting the appellant of the offence of taking a protected animal, namely ten or more brolgas, without authorisation contrary to s 88 of the Nature Conservation Act 1992 (Qld) (“NCA”). Thereafter the appellant was fined, a penalty was imposed and costs were ordered to be paid.
  1. [2]
    In this appeal the appellant appeals its conviction only and not the subsequent orders of the learned Magistrate. The status of the brolgas pursuant to the NCA is not in issue.

The decision below 

  1. [3]
    The learned Magistrate found that the appellant was the registered owner of a rural property called Mandalee near Innot Hot Springs west of Cairns. Her Honour found that 52 brolgas were killed by agents or employees of the appellant by poisoning in circumstances where no specific agent or employee of the appellant company was identified as being responsible for the poisoning.
  1. [4]
    Her Honour accepted the evidence given by each of the witnesses called by the respondent to the effect that they attended the property with a search warrant on 24 June 2011 and found many carcasses of birds, predominately brolgas, and a number of piles of corn kernels. Her Honour accepted scientific evidence presented on behalf of the respondent that samples of the corn kernels showed them to be contaminated with the pesticide fenamiphos and that the ingestion of this by the birds would be sufficient to kill them. She also accepted the further scientific evidence that fenamiphos was not used in the production of the corn. The learned Magistrate concluded that the contamination of the corn kernels by fenamiphos was not accidental.

The nature of the appeal

  1. [5]
    Pursuant to s 223 of the JA an appeal under s 222 is by way of rehearing on the evidence given in the proceeding before the Magistrate. However, the District Court may give leave to adduce new evidence if the court is satisfied that there are special grounds for doing so. The only new evidence adduced before me was in the nature of summaries of evidence given before the learned Magistrate and in particular a flow chart of bird tissue samples sent for scientific analysis[1] and a table identifying the brolgas in the evidence given before the learned Magistrate.[2]
  1. [6]
    The task of a Judge on hearing an appeal such as this was summarised in Mbuzi v Torcetti [3] in the following terms:

“On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions …”

  1. [7]
    In this regard it is significant that the learned Magistrate accepted without reservation the evidence of the respondent’s witnesses in circumstances where the appellant declined to give any evidence.

The contentions of the appellant

  1. [8]
    The appellant raised numerous grounds of appeal relating to evidentiary findings made below by the learned Magistrate. Essentially it is argued that the respondent has not demonstrated beyond a reasonable doubt that the appellant was responsible for the deaths of the birds the subject of this proceeding. It is submitted that the case against it is entirely circumstantial and that the respondent has not discharged the onus of proof necessary to link the appellant to the dead birds found by the witnesses who carried out the search on 24 June 2011 and gave evidence on behalf of the respondent. Secondly, it is submitted that the dead birds were not sufficiently identified as brolgas and therefore falling within the restrictions contemplated by s 88 of NCA. The mapping prepared by the various officers of the respondent indicating, using GPS measurements, where dead birds and contaminated corn were discovered on the appellant’s property[4] was also challenged, it being argued that it had not been proved beyond reasonable doubt that the contaminated corn and dead birds were on the appellant’s property. The evidence in this regard was accepted by the Magistrate and was clearly admissible pursuant to s 65 of the Evidence Act 1977. On the hearing of the appeal counsel for the appellant, not surprisingly, did not press this ground of appeal.
  1. [9]
    Obviously when considering the grounds raised by the appellant in a case such as this, where the respondent relies entirely upon circumstantial evidence in connecting the appellant with the dead birds, it is necessary that guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances.[5] 
  1. [10]
    In addressing the argument that there was not sufficient evidence to connect the deaths of the birds with the appellant, there are three material evidentiary facts disclosed in the evidence led by the respondent. Firstly, it is clear that the property was being used for agricultural purposes and in particular the growing of at least one crop.[6] Secondly, there were a number of small neat piles of corn kernels which were later found to be contaminated with fenamiphos placed in various locations adjacent to areas that were being cropped.[7]  Thirdly, what was described as a mass grave containing the bodies of 14 birds was discovered in circumstances where they had been placed close together underneath straw.[8] In such circumstances the only rational inference is that the appellant was placing poisoned corn on its property to kill birds which might otherwise destroy part of its crop. To suggest as the appellant did in submissions to the learned Magistrate that the birds were poisoned by people unconnected with the appellant is, when the evidence noted above is taken into account, fanciful. I find that there is sufficient evidence to find the defendant guilty beyond reasonable doubt of killing the dead birds found on the property.
  1. [11]
    The next ground to consider is whether ten or more brolgas were identified as being poisoned on the property. In this regard the appellant submits that the expert witness Ms Dabinett called by the respondent lacked the necessary expertise to identify a sufficient number of brolgas. Ms Dabinett gave evidence that she held a Bachelor of Science with a major in, inter alia zoology, which involved particular expertise in identifying bird species and that she had been employed as a wildlife ranger with the respondent for six years.[9] She gave evidence that her role in the investigation was to identify the birds and that on the day the search warrant was executed at the appellant’s property all of the dead birds she identified were brolgas with the exception of one crow. Subsequently in her evidence she positively identified 12 brolgas.[10] Ms Dabinett was also responsible for cataloguing and bagging samples of deceased birds, corn kernels (some of which were taken from the ground and others from within the bodies of the decomposing birds) and soil beneath corn kernels, for scientific testing. Despite repeatedly objecting to the receipt of her evidence and her expertise, counsel for the appellant did not cross examine her in this regard.
  1. [12]
    Another wildlife ranger employed by the respondent, Mr Meade, also identified deceased birds as brolgas but did so without formal qualifications in this area.[11] A number of photographs of deceased birds alleged to be brolgas were placed before the learned Magistrate. With the abundance of evidence before her the learned Magistrate was entitled to find beyond reasonable doubt that ten or more brolgas had been killed. Indeed such a finding could have been made on the evidence of Ms Dabinett alone.
  1. [13]
    The final focus of the appellant is on gaps in the chain of custody of samples collected by Ms Dabinett which were taken to the Biosecurity Queensland, Townsville Aquatic and Animal Health Laboratory[12] before being on forwarded to the Biosecurity Queensland, Chemical Residues Laboratory in Brisbane for scientific analysis. The veterinary surgeon who received the samples at Biosecurity, Townsville tragically died prior to the trial before the Magistrate. The deceased veterinary surgeon had dissected the dead birds forwarded to Townsville by Ms Dabinett and sent tissue samples from them to Biosecurity, Brisbane for testing. The fact that it was unable to be shown that the dissected samples came from brolgas removed from the appellant’s property gave rise to a submission that this evidence could not be relied upon.[13]  The balance of the evidence collected for testing was shown to have been transmitted to Biosecurity, Brisbane and tested, by use of documentary evidence and testimony of other witnesses.[14]
  1. [14]
    Some of the bird tissue samples, one of which was allegedly taken from the crow, showed contamination with fenamiphos.[15] The failure to record toxic levels of fenamiphos in all of the bird tissue samples could be explained by the witness Dr Warne, an expert toxicologist, as attributable to fenamiphos breaking down rapidly.[16] The balance of the evidence showed lethal doses of fenamiphos in the corn samples collected from the ground.[17] Dr Olsson, a highly qualified wildlife veterinary surgeon, gave evidence that the levels of fenamiphos present in some of the bird tissue samples and corn samples taken from the ground at the property were high enough to have caused the death of birds.[18]
  1. [15]
    The unfortunate death of the veterinary surgeon from Biosecurity, Townsville was not such as to give rise to a reasonable doubt that corn samples taken from the appellant’s property, which had been placed on the ground in the vicinity of the crops being grown, showed toxic levels of fenamiphos.
  1. [16]
    If the evidence of the bird tissue samples is excluded as a consequence of the break in the chain of custody between the collection of the dead birds at the property and the testing of the tissue samples in Brisbane, there remains the proven facts that corn placed on the property was found to be contaminated with levels of fenamiphos lethal to birds, and that more than ten dead brolgas were found on the property in unexplained circumstances. Dr Warne stated in his evidence that it was “extremely unlikely that the corn grains were not deliberately contaminated...”[19] There was therefore sufficient evidence placed before the learned magistrate to justify a finding that the brolgas had died as a consequence of eating corn which had been deliberately contaminated with fenamiphos.

Conclusion

  1. [17]
    In all of the circumstances there was an abundance of evidence to justify the conviction of the appellant beyond reasonable doubt of taking ten or more brolgas without authorisation contrary to s 88 of the NCA.
  1. [18]
    The appeal is dismissed.

Footnotes

[1]  Ex 2.

[2]  Ex 3.

[3]  [2008] QCA 231 at [17].

[4]  Ex 26, Ex 78.

[5]R v Shepherd [1990] 170 CLR 573 at 578.

[6]  Ex 78, T1-13 L20-25, T2-23 L5-10.

[7]  T1-13 L20-35.

[8]  T1-80 L20-40.

[9]  T2-8 L10-30.

[10]  T2-18 - T2-21 L25.

[11]  T1-19 L1-5.

[12]         T2-24 L1-5. T25 L25-35, Ex77.

[13]         T3-25 L15-L20.

[14]  Ex 79 – Ex82, T2-51 L30 – L40, T2-55 L25 –L40, T2-61 L1-10.

[15]         Ex 80, Ex82.

[16]  T2-98 L10-15.

[17]         Ex80.

[18]  T2-85 L15 – T2-86 L10,

[19]         T2-98 L30-40.

Close

Editorial Notes

  • Published Case Name:

    Osprey Australia Pty Ltd v Richard Ashley Kidston (Department of Environment and Heritage Protection)

  • Shortened Case Name:

    Osprey Australia Pty Ltd v Kidston (Department of Environment and Heritage Protection)

  • MNC:

    [2014] QDC 28

  • Court:

    QDC

  • Judge(s):

    Everson DCJ

  • Date:

    21 Feb 2014

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Mbuzi v Torcetti [2008] QCA 231
2 citations
Jump To
Cite 1 - [2008] QCA 231
Cite 2 - [2008] QCA 231
Shepherd v The Queen (1990) 170 CLR 573
2 citations
Jump To
Cite 1 - (1990) 170 CLR 573
Cite 2 - (1990) 170 CLR 573

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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