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Baker v Smith (No 1)[2019] QDC 76

DISTRICT COURT OF QUEENSLAND

CITATION:

Baker v Smith (No 1) [2019] QDC 76

PARTIES:

MICHAEL VINCENT BAKER

(Appellant)

v

BRIAN ARTHUR CONWAY SMITH

(respondent)  4984 of 2016 Crime  s 222

FILE NO/S:

Appeal

DIVISION:

District Court at Brisbane

PROCEEDING:

17 May 2019

ORIGINATING COURT:

Brisbane

DELIVERED ON:

DELIVERED AT:

HEARING DATE:

11-13 April 2018

27-30 August 2018

JUDGE:

Porter QC DCJ

ORDER:

(1) The Court will hear the parties as to the proper form of orders.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – where appeal is brought under s 222 Justices Act 1886 (Qld) – whether error of law at trial is established.

CRIMINAL LAW – PROCEDURE – JURISDICTION – where four separate complaints were brought to trial in the Magistrates Court in relation to alleged land clearing offences – where the complaints made blanket averments excluding a range of exceptions to the offences – where certain complaints did not include certain particulars – whether the complaints articulated essential elements of an offence – whether the complaints were valid – whether the complaints attracted the jurisdiction of the Magistrates Court.

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF  – BURDEN OF PROOF – where the statutory regime contains an exemption where land clearing is performed for essential management – exemption  where the trial judge commented that the “essential management” exemption to the offence is the only realistic exemption – whether trial judge’s comment reflected a failure to apply the appropriate standard of proof – whether the trial judge erred in finding that the “essential management” exemption had been excluded by the prosecution.

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – where the Forestry Act 1959 (Qld) contains exceptions for interference with forest products performed under and in compliance with statutory authority – whether the defendant bears the onus of establishing the statutory authority exception – whether interference with forest products performed under and in compliance with statutory authority.

CRIMINAL LAW – PROCEDURE – LIMITATION OF TIME FOR PROSECUTION – where statutory limitation periods require proceedings to be instituted within certain time periods after the offence comes to the complainant’s knowledge – where the alleged offending occurred over a period of time – where the charges contained averments as to the date the alleged offending came to the complainant’s knowledge – at what point the complainant had reasonable grounds to believe that the offence had been committed – whether the averments comprised conclusive evidence – whether the charges were brought after the expiry of statutory limitation periods.

EVIDENCE – ADMISSIBILITY – HEARSAY – where the prosecution relied upon mapping data published under the Survey and Mapping Infrastructure Act 2003 (Qld) – where mapping data was adjusted following further surveying – where various mapping and geographical data was collated into an interactive database through specialised software – whether the mapping data was sufficiently accurate to sustain convictions in relation to charge areas on or near the boundaries – whether the statutory status of certain mapping data was lost upon adjustment – whether the output of the software comprised inadmissible documentary hearsay.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEALLIES – ERROR OF LAW – where expert evidence was given at trial – where certain evidence was alleged by the appellant to be inadmissible – where no objection was raised at trial – whether a trial judge relying on inadmissible evidence tendered without objection amounts to an error of law – whether material unfairness arises from the admission of inadmissible evidence tendered without objection.

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REAONS – where the trial judge’s reasons adopted in substance large parts of the prosecution submissions – whether the trial judge failed to give adequate reasons for finding that the prosecution excluded an exception to the alleged offending.

Legislation

Acts Interpretation Act 1954 (Qld), s 32A

Criminal Code Act 1899 (Qld) s 564

Evidence Act 1977 (Qld), s 95

Forestry Act 1959 (Qld), s 33, s 39, s 54, s 63, s 88, s 95

Justices Act 1886 (Qld), s 46, s 47, s 76, s 222, s 223, s 225

Survey and Mapping Infrastructure Act 2003 (Qld), s 46, s 47, s 131

Sustainable Planning Act 2009 (Qld), s 7, s 10, s 231, s 342, s 578, s 584

Sustainable Planning Regulations 2009 (Qld), reg 9, sched 3, sched 24, sched 26

Vegetation Management Act 1999 (Qld), s 3, s 19O, s 19P, s 20A, s 20AK, s 20AL, s 20AM, s 20AN, s 20AO, s 22LA, s 22LB, s 22LC, s 68, s 68A

Cases

A Child v Andrews (1994) 12 WAR 552

Agius v R (2011) 80 NSWLR 486 

Beavan v Wagner Industrial Services Pty Ltd [2017] QCA 246 

Brinkworth v Dendy [2007] 97 SASR 416

Chugg v Pacific Dunlop (1990) 170 CLR 249

Coal and Allied Operations Pty Limited v Australian Industrial

Relations Commission (2000) 203 CLR 194

Conde v Gilfoyle [2010] QCA 109 

Croft v Blair Unreported No. C.A. 275 of 1989, Queensland Court of Criminal Appeal, 15 December 1989

Dasreef Pty Limited v Hawchar (2011) 243 CLR 588

De Bray v Cohen [2008] QDC 275

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219

Fletcher Construction Australia Limited v Line MacFarlane &

Marshall Pty Ltd (No. 2) [2002] 6 VR 1 

Fox v Percy (2003) 214 CLR 118

Harrison v President of Industrial Court of Queensland [2017]

1 Qd R 515

HG v The Queen (1999) 197 CLR 144

Hunt v Australian Associate Motor Insurers Ltd [2012] QCA 183 

John L Proprietary Limited v The Attorney-General for NSW

(1987) 163 CLR 508

Johnson v Miller (1937) 59 CLR 467

Joseph v Morthington & Anor [2018] VSCA 102

Karimbala Construction Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56 

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Kyluk v The Chief Executive NSWCCA [2013] 114

LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012)

203 FCR 166

Macarone v McKeon [1986] 1 Qd R 284

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Marshall v Averay [2006] QDC 356

McConnell  Dowell  Constructors  (Aust)  Pty  Ltd               v Environmental Protection Authority (No. 2) (2002) 54 NSWLR 39

McDonald v Queensland Police Service [2017] QCA 255

McGregor Lowndes v Collector of Customs (1968) 11 FLR 349

McKay v The King (1935) 54 CLR 1 

MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154

N K Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304

Nudd v R (2006) 225 ALR 161

Palmgrove Holdings Pty Ltd v Sunshine Coast Regional

Council [2014] QCA 333 

Phillips v Spencer [2006] 2 Qd R 47

PQ v Australia Red Cross Society [1992] 1 VR 19

R v Ali (2005) 214 ALR 1 

R v Birks (1990) 19 NSWLR 677 

R v Fennell [2017] QCA 154

R v Hess [2008] QCA 48

R v Hinchey [2019] QCA 3

R v McPartland [2017] QCA 35 

Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476

Smith v Baldwin [1979] Qd R 380 

Stevenson v Yasso [2006] 2 Qd R 150

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

Teelow v Commission of Police [2009] 2 Qd 489

TKWJ v The Queen (2002) 212 CLR 124

Vines v Djordjevitch (1955) 91 CLR 512

Walker v Hay [1973] QSCFC 9

Witheyman v Van Riet [2008] 2 Qd R 587

COUNSEL:

G Allan, S Trewavas and A Thomas for the appellant

J Hunter QC and G Dann for the respondent

SOLICITORS:

Marland Law for the appellant

Department of Natural Resources and Mines for the respondent

Contents

SUMMARY11

BACKGROUND13

Chess Park13

The statutory framework: the Forestry Act offences13

The statutory framework: the SPA offences18

The offence creating provision18

Identifying assessable development19

Assessable development under the Regulations20

The VMA26

Justices Act 188632

THE COMPLAINTS33

Complaint 133

Complaint 237

Complaint 339

Complaint 439

THE TRIAL39

Overview of the prosecution case39

The course of evidence42

The parties’ submissions at trial42

The written submissions42

The addresses44

Conviction, reasons and other orders45

The appeal46

THE TRIAL JUDGE’S REASONS47

The limitations issue and Mr Goulevitch’s evidence47

Her Honour’s consideration of Mr Dillewaard’s evidence53

Her Honour’s consideration of Mr Tran’s evidence55

The Forestry Act offences57

The SPA offences: general58

The SPA offences: consideration of each charge60

THE AMENDED NOTICE OF APPEAL61

Ground 1: Jurisdiction61

Ground 2: Lack of jurisdiction to amend62

Ground 3: Reasons62

Ground 4: Essential management exemption not excluded62

Ground 5: Limitations issues63

Ground 6: Forestry Act exemptions63

APPEALS UNDER S. 222 JUSTICES ACT64

GROUND 1: JURISDICTION (COMPLAINTS 2 AND 4 ONLY)66

Summary of the appellant’s position66

Ground 1A66

Ground 167

Some general principles67

Ground 1A: Complaints 2 and 4 identify an offence known to the law72

The legal elements72

The necessary factual ingredients79

Conclusion on Ground 1A88

Ground 1: Particulars under s. 68A SPA89

Introductory comments89

The appellant’s contentions90

The respondent’s contentions92

Analysis93

Conclusion on Ground 196

GROUND 2: JURISDICTION TO AMEND (COMPLAINTS 2 AND 4 ONLY)97

GROUND 4: EXCLUSION OF ESSENTIAL MANAGEMENT EXEMPTION97

Introduction97

Ground 4/1A: Erroneous approach to burden of proof97

The parties’ contentions97

Analysis98

Ground 4/1B: Errors in concluding essential management exception excluded99

Introductory comments99

Paragraph (a): protection of infrastructure99

Paragraph (c):  Imminent risk exception103

Paragraph (e): Necessary to maintain infrastructure104

Conclusion on Ground 4/1B104

GROUND 5: LIMITATION DEFENCES (COMPLAINTS 1 AND 4)104

Introductory comments104

The appeal as it relates to Complaint 1104

The appeal as it relates to Complaint 4106

The factual context107

The appellant’s contentions110

Relevant principles110

Impugned charges in Complaint 1110

Impugned charges in Complaint 4112

The respondent’s contentions113

Relevant principles113

Impugned charges in Complaint 1114

Impugned charges in Complaint 4115

Analysis: Complaint 1115

When the impugned charges came to the respondent’s knowledge115

Charges 1 and 2 brought out of time117

Charges 4 and 5 brought within time117

Analysis: Complaint 4121

GROUND 6: THE FORESTRY ACT OFFENCES123

Introduction123

The statutory context123

The error by the prosecution at trial123

The appellant’s contentions124

The onus of proof124

Prosecution could not discharge the onus of proof on appeal125

Respondent’s contentions126

Analysis126

The onus to exclude statutory authority126

Prosecution may contend that the defendant bears the onus on authority issues on 1

this appeal130

Authority under s. 39(1) is excluded on the evidence 132

Conclusion135

MESSRS GOULEVITCH, DILLEWAARD AND TRAN: GENERAL OBSERVATIONS135

Introduction135

Relevant but inadmissible evidence136

The parties’ positions136

Analysis of the authorities137

Adequacy of the Amended Notice of Appeal: Goulevitch and Dillewaard148

ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE RELIED UPON BY GOULEVITCH149

Introductory comments149

The computer records point151

The appellant’s contentions151

The respondent’s contentions152

Analysis153

The DCDB point155

Some background to the DCDB155

The appellant’s contentions160

The respondent’s contentions161

Analysis162

The publication point166

The regional ecosystem map point166

CHALLENGES TO MR DILLEWAARD’S EVIDENCE167

Background167

Mr Dillewaard’s evidence168

General evidence on methodology168

Specific evidence on Chess Park inspection171

Identifying the character of cleared vegetation173

Cross examination175

The appellant’s submissions175

The respondent’s submissions178

Analysis179

Relevant principles179

What is the error alleged?185

Sufficient to prove native vegetation was cleared? 186

Some preliminary considerations 187

Mr Dillewaard’s methodology188

Mr Dillewaard’s reasoning for each charge 189

Other issues 190

The regional ecosystem mapping point192

Appeal in relation to Mr Dillewaard’s evidence is dismissed192

THE LOWEST COMMON DENOMINATOR ISSUE192

CHALLENGES TO MR TRAN’S EVIDENCE193

Introduction193

Summary of Mr Tran’s evidence194

General evidence 194

Evidence on Complaint 1 197

Evidence on Complaint 2 199

Evidence on Complaint 3 203

Evidence on Complaint 4 204

Cross examination of Mr Tran 207

Submissions at trial and her Honour’s reasons213

Approach to the appellant’s submissions214

Criticism of Mr Tran’s area of expertise215

Criticism relating to the factual basis for Mr Tran’s evidence215

Criticism of Mr Tran’s evidence interpreting satellite images216

Alleged inconsistency of evidence about existing fire trails216

Failure to produce at trial scientific papers referred to in evidence217

Criticisms of the idealised fire plan218

Criticisms of the evidence as to width of fire trails219

Failure to personally inspect219

Conclusion220

Ground 6 Issues220

GROUND 3: ADEQUACY OF REASONS221

Introduction221

Reasons on native forest practice222

The issue as litigated at trial222

Relevant principles226

Appellant’s submissions229

Respondent’s submissions230

Analysis230

The “cut and paste” contention233

The extent of her Honour’s adoption of prosecution submissions on contentious issues233

The appellant’s submission234

The respondent’s submission236

Reasons were adequate236

Reasons for accepting experts238

Conclusion238

DISPOSITION ON THE APPEAL239

ANNEXURE A240

ANNEXURE B242

SUMMARY

  1. [1]
    This is an appeal against conviction by the appellant, Mr Baker. He was convicted of 46 offences arising out of the clearing of vegetation on a rural property called Chess Park, near Eidsvold[1] in the North Burnett region.  The charges fell into two categories.
  2. [2]
    The first category of charges was charges arising under the Forestry Act 1959 (Qld) (the Forestry Act). Sections 39 and 54 prohibits, in general terms, interference with forest products on land regulated by the Forestry Act unless there is statutory authority to do so. The Forestry Act applied to three areas of land under the control of the defendant at the relevant times:
    1. (a)
      Forest Entitlement Area 34 (FEA 34), an area on the western boundary of Chess Park;
    2. (b)
      Dyngie State Forest (DSF), an area enclosed by Chess Park; and
    3. (c)
      The Lone Pine Redbank road reserve on the boundary of the DSF and Chess Park (the road reserve). 
  3. [3]
    The second category of charges was charges arising under the Sustainable Planning Act 2009 (Qld) (the SPA).  Section 578(1) of the SPA, prohibited (relevantly in this appeal) clearing of native vegetation without a development permit. That prohibition was subject to various exemptions and exclusions.
  4. [4]
    The prosecution’s case was that Mr Baker:
    1. (a)
      Cleared (or otherwise interfered with) forest products in each of the FEA 34 and the DSF in breach of s. 39 Forestry Act, and in the road reserve in breach of s. 54 Forestry Act.  Seven charges were brought in two complaints in respect of distinct areas of clearing in those three areas; and
    2. (b)
      Cleared native vegetation without a development permit on the leasehold/freehold of Chess Park in breach of s. 578(1) SPA. Thirty-nine charges were brought in two complaints in respect of distinct areas of clearing.
  5. [5]
    At trial, Mr Baker put the prosecution to proof. He did not give or call evidence. In broad terms, the defence case was as follows:
    1. (a)
      In respect of the Forestry Act offences, the prosecution had not excluded that the clearing was justified by the need to prepare for, and respond to, bush fire; 
    2. (b)
      In respect of the SPA offences, that the prosecution had not excluded that the clearing was permitted as part of a native forest practice for the purpose of a forestry business or (under various statutory guises) had not excluded that the clearing was not justified on bushfire management grounds; and
    3. (c)
      That a number of the offences were statute barred.
  6. [6]
    The learned Magistrate heard evidence over 20 days in two tranches of hearings which took place between 15 February 2016 and 19 July 2016. The prosecution adduced mapping evidence derived from satellite imaging through a witness said to be expert in Geographical Information Systems (GIS) and surveying (Mr Goulevitch), expert botanical evidence (from Mr Dillewaard) and expert evidence on fire management and fire ecology (from Mr Tran).  It also called a number of officers of the relevant department.

  1. [7]
    Her Honour received very extensive written submissions and heard oral addresses on 17 August 2016.  On 18 November 2016, she gave brief ex tempore reasons. She gave written reasons on 24 November 2016, which she later corrected for certain oversights identified by the appellant. Mr Baker was convicted of all 46 offences.  Her Honour later dealt with sentence and costs.
  2. [8]
    Mr Baker appealed all 46 convictions under s. 222 Justices Act 1886 (Qld). The issues arising on the appeal are numerous.  They can be grouped generally under the following themes:
    1. (a)
      First, that the form of the complaints was such as to fail to attract the jurisdiction of the Court to hear and determine them under the Justices Act;
    2. (b)
      Second, that her Honour erred in concluding that certain offences were not statute barred;
    3. (c)
      Third, that (for many distinct reasons) her Honour erred in accepting and acting on the evidence of the prosecution’s expert witnesses; 
    4. (d)
      Fourth, that her Honour erred by failing to give sufficient reasons; and
    5. (e)
      Fifth ,there were a number of other discrete legal and factual errors.
  3. [9]
    The appellant’s submissions on the appeal ran to well over 350 pages, the respondent’s some 132 pages.  Both parties also relied on their extensive trial submissions. Numerous individual issues arose. With the exception of the limitations point, some aspects of the fire management issues and some points raised on the reasons ground, the matters raised in the appeal were not raised before her Honour.  
  4. [10]
    By way of overview, for the reasons which I will give, I have concluded as follows:
    1. (a)
      The complaints were valid;
    2. (b)
      Her Honour, erred in her conclusion that Charges 1 and 2 of Complaint 1 were not statute barred.  Otherwise her Honour’s conclusions on the limitations issue were correct;
    3. (c)
      Her Honour did not err in acting of the evidence of Mr Goulevitch, Mr Dillewaard and Mr Tran;
    4. (d)
      Her Honour did not err in law by giving inadequate reasons; and
    5. (e)
      None of the remaining discrete errors alleged justified setting aside any charge, (though the appellant made good some of the errors alleged). 
  5. [11]
    The consequence of these conclusions is that:
    1. (a)
      The convictions on Charges 1 and 2 on Complaint 1 should be set aside and the charges dismissed;
    2. (b)
      The appeal in relation to the remaining charges is dismissed.  
  6. [12]
    In these reasons, references to the transcript at trial are articulated by reference to the day of the trial.  That format is used because the numbering of the days in the transcript provided were not continuous.  A schedule identifying what occurred when in the course of the trial by reference to this numbering convention is located Annexure A.

BACKGROUND

Chess Park

 

  1. [13]
    On 17 March 2011, the appellant Mr Baker purchased Chess Park. Chess Park is a rural property of approximately 8000 hectares noted on Lot 5 Plan WK207 in the Parish of Dyngie, County of Wicklow.  He initially acquired it as a Grazing Homestead Freehold Lease (GHFL), but converted it to freehold on 15 July 2011.  (Nothing of substance is said to turn on whether he was a lessee or registered proprietor from time to time).
  2. [14]
    The DSF is Crown land declared as a state forest by the Governor in Council. It is located within, and entirely surrounded by, the leasehold/freehold area of Chess Park. At the time of purchase of Chess Park, Mr Baker also became the lessee of the DSF.  He surrendered the lease of the DSF on 15 October 2012. 
  3. [15]
    FEA 34 is located on the western boundary of Chess Park. FEA 34 was a reservation on the leasehold of Chess Park. The grant of the GHFL provided relevantly that the Crown reserved rights over the forest products in the FEA.
  4. [16]
    As noted above, the road reserve is on the boundary of the DSF and Chess Park. It was and is an area reserved for a road. 
  5. [17]
    Annexure B to these reasons shows the locations of Chess Park, the DSF, FEA 34 and the road reserve.

The statutory framework: the Forestry Act offences

 

  1. [18]
    The DSF, FEA 34 and road reserve were at the relevant times regulated by the Forestry Act.  The long title of the Forestry Act describes its general purpose:

An Act to provide for forest reservations, the management, silvicultural treatment and protection of State forests, and the sale and disposal of forest products and quarry material, the property of the Crown on State forests, timber reserves and on other lands; and for other purposes.

  1. [19]
    “Forest products” is broadly defined in the dictionary contained in Schedule 3 of the Act to mean:

all vegetable growth and material of vegetable origin whether living or dead and whether standing or fallen, including timber, and, in relation to a State forest, timber reserve or forest entitlement area the term includes— 

  1. (a)
    honey; 
  2. (b)
    all form of indigenous animal life; 
  3. (c)
    any nest, bower, shelter or structure of any form of indigenous animal life; 
  4. (d)
    fossil remains; 
  5. (e)
    relics;
  6. (f)
    quarry material;

but does not include grasses on a stock route under the Land Protection (Pest and Stock Route Management) Act 2002, or grasses (indigenous or introduced) or crops grown on a Crown holding by the lessee or by the licensee or on a forest entitlement area by the lessee or owner.

  1. [20]
    The Forestry Act regulates forest products, relevantly:
    1. (a)
      In a “State forest” which is defined to mean “land set apart and declared under this [Forestry] Act as a State forest”.  DSF was a State forest so declared;
    2. (b)
      In a “forest entitlement area” which is defined as having the same meaning as the meaning given to that phrase in the Land Act 1994 (Qld). That Act defines forest entitlement area as meaning “a reservation of commercial timber, and the land on which it stands, to the State in a deed of grant or freeholding lease”. FEA 34 comprised such a reservation to the deed of grant for Chess Park; and
    3. (c)
      On any land reserved for public purposes, including (relevantly here) any road. The road reserve was such land.
  2. [21]
    Part 4 of the Forestry Act deals with management of, relevantly, State forests and forest entitlement areas. Section 33 identifies the cardinal principle of management of State forests as follows:
    1. (1)
      The cardinal principle to be observed in the management of State forests shall be the permanent reservation of such areas for the purpose of producing timber and associated products in perpetuity and of protecting a watershed therein. 
    2. (2)
      The chief executive must ensure each State forest is used and managed in the way the chief executive considers appropriate to achieve the purposes of this Act, having regard to
  1. (a)
    the benefits of permitting grazing in the area; 
  2. (b)
    the desirability of conservation of soil and the environment and of protection of water quality; 
  3. (c)
    the possibility of applying the area to recreational purposes.
  1. [22]
    The balance of Part 4 makes specific provision for particular aspects of management of State forests. Relevantly, it provides in s. 35(5) for the granting of a term lease under the Land Act over land in a State Forest on the conditions identified therein. The lease of DSF referred to above was a term lease granted to Mr Baker under the Land Act[2] under this section.
  2. [23]
    Part 4 also contains one of the two Forestry Act offence provisions relevant to this matter. Section 39 provides:
  1. (1)
    A person shall not interfere with, or cause to be interfered with, any forest products on any State forest, timber reserve or forest entitlement area except under the authority of and in compliance in every respect with the requirements of— 
  1. (a)
    a lease, licence, permit, agreement or contract granted or made under this Act, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or 
  2. (b)
    a permit to light a fire on a licence area under the Fire and Rescue Service Act 1990, section 65. 

Maximum penalty— 

  1. (a)
    for a first offence—1000 penalty units; and 
  2. (b)
    for a subsequent offence—3000 penalty units.
  1. (2)
    This section does not apply to—
  1. (a)
    a person performing duties under this Act acting in the administration of this Act; or 
  2. (b)
    a person acting under a plantation licence, plantation sublicence or related agreement or in accordance with an agreement entered into with a plantation licensee or plantation sublicensee.
  1. [24]
    “Interfere with” is defined as follows:

interfere with, used in relation to any forest products, earth, soil, or quarry material, includes destroy, get, damage, mark, move, use, or in any way interfere with.

  1. [25]
    “Destroy” is further defined as follows:

destroy, used in relation to any tree, means cut down, fell, ringbark, push over, poison or destroy by any means whatsoever.

  1. [26]
    Section 39 is the provision relevant to the offences in the DSF and FEA 34 which are the subject of this appeal.
  2. [27]
    Part 6 regulates forest products on Crown land not covered by Part 4.  Section 45 effectively provides that forest products on all Crown lands and analogous tenures (such as land reserved for public purposes) are the property of the Crown.
  3. [28]
    Section 54 is the equivalent provision to s. 39 in respect of Crown land regulated by Part 6 of the Forestry Act. It provides:
    1. (1)
      A person shall not interfere with, or cause to be interfered with, any forest products, any quarry material, or any earth or soil— 
      1. on any Crown land; or 
      2. on any land reserved for or dedicated to public purposes (including any road, save a State-controlled road under the Transport Infrastructure Act 1994); 

except— 

  1. (c)
    under the authority of any other Act or law; or
  2. (d)
    under the authority of and in compliance in every respect with the requirements of a permit, lease, licence, agreement or contract granted or made under this Act. 

Maximum penalty— 

  1. (a)
    for a first offence—1000 penalty units; and
  2. (b)
    for a subsequent offence—3000 penalty units.
  1. (2)
    Nothing in this section shall derogate from or otherwise affect any of the provisions of the Transport Infrastructure Act 1994.
  1. [30]
    Section 54 is the provision relevant to the offences in the road reserve.  
  2. [31]
    It was common ground at trial and on appeal that the scope of the exemption in s. 39(2)(a) Forestry Act included a person performing duties imposed by s. 63 Forestry Act.  Section 63 appears in Part 7 of the Forestry Act dealing with fires on, relevantly, State forests and forest entitlement areas. That section relevantly provides:
    1. (1)
      Every person holding any lease, licence, permit or other authority or entitled to any right or privilege under an agreement or contract granted or made under this or any other Act over or in respect of the whole or any part of any State forest, timber reserve or forest entitlement area or the forest products thereon (the holder), shall at the person’s own cost and expense—
  1. (a)
    at all times make all reasonable provision for preventing, detecting, controlling and extinguishing bush, grass, or other rural fires on the State forest, timber reserve or forest entitlement area or, as the case may be, part thereof, over or in respect whereof or the forest products thereon, the lease, licence, permit, authority, agreement or contract was so granted or made; and 
  2. (b)
    on becoming aware of any fire burning on the State forest, timber reserve or forest entitlement area, or as the case may be, part thereof as aforesaid, or burning elsewhere, which is likely to spread to such State forest, timber reserve or forest entitlement area, or as the case may be, part thereof (such not being a fire authorised under the provisions of the Fire and Rescue Service Act 1990, part 7), promptly do everything reasonably within his or her power to extinguish the fire whether or not there is immediate danger of it causing damage, and shall forthwith cause the nearest forest officer or person performing duties under this Act to be notified of the fire and of the measures taken by the person to extinguish the same, and if, at the time of so notifying the forest officer or person performing duties under this Act, the fire is not extinguished, the person shall continue so far as possible to control and endeavour to extinguish the fire until it is brought under control or extinguished or until the person obtains the approval of the forest officer or person performing duties under this Act to desist.
  1. (2)
    Any person refusing, neglecting or failing to comply with the provisions of this section shall be guilty of an offence against this Act and shall be deemed to have committed an offence.
  2. (3)
    False statements as to whereabouts

Any holder or agent who makes a false statement as to his or her whereabouts or makes a statement knowing the same to be false as to the whereabouts of any of the employees or agents of the holder at the time of the outbreak of any such fire shall be guilty of an offence against this Act. 

  1. (4)
    Nothing contained in this section shall be read as to relieve any person from any liability or obligation to which the person may be subject under the person’s lease, agreement, contract, permit, licence, other authority, or under any other Act or law, and the provisions of this section shall be read as in addition to and not in derogation from the provisions of any other Act.
  2. (5)
    This section does not apply to a plantation licensee or plantation sublicensee or any manager, supervisor or other person acting in the general management or control of the business of the plantation licensee or plantation sublicensee carried on in or on a licence area.
  1. [32]
    Section 63(a) is concerned with preventing fires in a State forest or forest entitlement area and s. 63(b) is concerned with extinguishing fires which are burning in or might spread to those areas. The section is concerned with protecting the Forestry Act areas. It is not concerned with protecting adjoining non-Forestry Act areas as such (like Chess Park itself). 
  2. [33]
    Part 8 of the Forestry Act deals with miscellaneous matters. Section 88 relevantly provides:

Offences generally 

  1. (1)
    Any person who contravenes or fails to comply with any provision of this Act shall be guilty of an offence against this Act. 
  1. (1A)
    Every person who attempts, aids, abets, counsels, or procures, or is in any way knowingly concerned in, the commission of an offence against this Act shall be deemed to have committed that offence, and shall be punishable accordingly.
  1. (1B)
    Where by this Act any authority is given to any person to direct anything to be done or to forbid anything to be done and anything so directed to be done is not done or anything so forbidden to be done is done, then every person who has offended against such direction or, as the case may be, prohibition shall be guilty of an offence against this Act.

Summary proceeding 

  1. (3)
    All offences against this Act may be prosecuted and all amounts of fees, royalties, stumpages, charges, or other moneys payable under this Act and not paid may be recovered in a summary way under the Justices Act 1886 on complaint by— 
    1. if the offence happened in, or related to, a licence area—a plantation officer; or 
    2. generally—any forest officer or any other person authorised for the purpose either generally, or in the particular case, by the chief executive.

Time for commencement of prosecutions

  1. (4)
    A prosecution for an offence against this Act may be instituted at any time within 12 months after the commission of the offence or within 6 months after the commission of the offence comes to the knowledge of the complainant, whichever is the later period.
  1. [34]
    Section 95 is also relevant to the issues which arise on this appeal. It relevantly provides:

Facilitation of proof 

In any proceedings under or for the purpose of this Act—

  1. (c)
    it shall not be necessary to prove the limits of any area or locality whatsoever, or that any place is within a State forest or timber reserve, or an area or a locality, or part thereof, but this shall not prejudice the right of any defendant to prove the limits of the area or locality or that any place is not within the State forest or timber reserve, area, or locality, or part thereof;

  1. (e)
    a document purporting to be made by the chief executive and stating that at any specified time there was or was not in force a lease, agreement, contract, permit, licence, certificate, or other authority, as described therein granted, given or made under this Act to or with a specified person, and, if stated therein, that such lease, agreement, contract, permit, licence, certificate, or other authority was or was not subject to terms, conditions, or restrictions, or was or was not issued or made subject to the provisions, conditions, and restrictions set out in that document, or that at any specified time a specified person was or was not exempted from any specified provisions of this Act, shall, upon its production in evidence, be evidence of the matters in that document, and in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such matters;

  1. (g)
    the averment in any complaint of the date on which the commission of any offence under this Act came to the knowledge of the complainant shall be evidence of that matter and in the absence of evidence in rebuttal shall be conclusive evidence of such matter;

  1. (i)
    a map or plan purporting to be made by the chief executive or by a person performing duties under this Act, or purporting to be issued or published by any department of the government or any officer thereof, shall, upon its production in evidence, be evidence of the matters stated or delineated thereon, and in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such matters;

...

The statutory framework: the SPA offences

 

  1. [35]
    Clearing of vegetation on Chess Park (excluding the areas regulated by the Forestry Act) was regulated by the SPA[3] and the Vegetation Management Act 1999 (Qld) (the VMA). The statutory scheme is a complex one.

The offence creating provision 

  1. [36]
    It is convenient to begin with the key offence creating provision: s. 578(1) SPA (located in Chapter 7 Part 3 SPA). It provides:

Carrying out assessable development without permit

  1. (1)
    A person must not carry out assessable development unless there is an effective development permit for the development. Maximum penalty— 1665 penalty units. 
  2. (2)
    Subsection (1)—
    1. applies subject to subdivision 2; and 
    2. does not apply to development carried out under section 342(3).
  3. (3)
    Despite subsection (1), the maximum penalty is 17000 penalty units if the assessable development is on a Queensland heritage place or local heritage place.
  1. [37]
    This deceptively simple provision calls up many other provisions for the purpose of identifying “assessable development”. Before turning to that matter, it is convenient to deal with the carve-out provisions in s. 578(2).
  2. [38]
    Section 578(2)(a) refers the reader to Subdivision 2, which is headed “Exemptions”. It contains three statutory exemptions to the offence created by s. 578(1) in relation to emergency situations. Section 584 contains a general exemption. It provides:

General exemption for emergency development or use 

  1. (1)
    Sections 575, 576, 578, 580, 581, 582 and 583 do not apply to a person if— 
    1. the person carries out development or a use, other than operational work that is tidal works or building work to which section 585 or 586 applies, because of an emergency endangering— 
      1. the life or health of a person; or 
      2. the structural safety of a building; and 
    2. the person gives written notice of the development or use to the assessing authority as soon as practicable after starting the development or use. 
  2. (2)
    However, subsection (1) does not apply if the person is required by an enforcement notice or order to stop carrying out the development or use.
  1. [39]
    There are similar specific exemptions in relation to emergency tidal works (s. 585) and building work on heritage places (s. 586).  Neither at trial nor on this appeal has the appellant contended that any of these exemptions arose on the evidence tendered before her Honour. 
  2. [40]
    Section 578(2)(b) refers the reader to s. 342(3) SPA. That provision provides:

When approval lapses if development started but not completed—general 

  1. (1)
    Subsection (2) applies if— 
    1. a condition requires assessable development, or an aspect of assessable development, to be completed within a particular time; and 
    2. the assessable development, or aspect, is started but not completed within the time. 
  2. (2)
    The approval, to the extent it relates to the assessable development or aspect not completed, lapses.
  3. (3)
    However, even though the approval has lapsed, any security paid under a condition mentioned in section 346(1)(f) may be used in a way stated by the approval, including, for example, to finish the development. 
  4. (4)
    This section does not apply to a preliminary approval to which section 242 applies.
  1. [41]
    Again, neither at trial nor on this appeal has the appellant contended that this provision arises on the evidence tendered before her Honour.

Identifying assessable development  

  1. [42]
    The starting point is the definition of “development” in s. 7 SPA which provides:

Development is any of the following— 

  1. (a)
    carrying out building work;
  2. (b)
    carrying out plumbing or drainage work; 
  3. (c)
    carrying out operational work; 
  4. (d)
    reconfiguring a lot; 
  5. (e)
    making a material change of use of premises.
  1. [43]
    Relevant to this case is “operational work”. That term is relevantly defined in s. 10 SPA as follows:
    1. Operational work means—

  1. (f)
    clearing vegetation, including vegetation to which the Vegetation Management Act applies
  1. Operational work does not include

… 

  1. (b)
    clearing vegetation on— …
  1. (iii)
    an area declared as a State forest or timber reserve under the Forestry Act 1959; or 
  2. (iv)
    a forest entitlement area under the Land Act 1994.
  1. [44]
    The effect of item 2 in the definition is to confirm the exclusion of areas regulated by the Forestry Act from the SPA regime.
  2. [45]
    The next step is to identify what is assessable development.  Section 231 identifies the categories of development. It provides:

Categories of development under Act 

  1. The categories of development under this Act are as follows— 
    1. (a)
      exempt development; 
    2. (b)
      self-assessable development; 
    3. (c)
      development requiring compliance assessment;
    4. (d)
      assessable development;
    5. (e)
      prohibited development.
  2. Under this Act, all development is exempt development unless it is— 
    1. (a)
      self-assessable development; or 
    2. (b)
      development requiring compliance assessment; or 
    3. (c)
      assessable development; or 
    4. (d)
      prohibited development.
  1. [46]
    Assessable development is defined in the dictionary in Schedule 3 SPA as being development prescribed under s. 232(1)(c) to be assessable development. That subsection in turn directs attention to the regulations which prescribed assessable development.  

Assessable development under the Regulations 

  1. [47]
    The Sustainable Planning Regulations 2009 (Qld) (the Regulations)[4] set out an extended scheme for identifying assessable development.
  2. [48]
    Regulation 9 relevantly provides:

Assessable development, self-assessable development and type of assessment— Act, s 232 

  1. For section 232(1) of the Act—
  1. (a)
    development stated in schedule 3, part 1, column 2 is assessable development; …
  1. [49]
    The relevant part of Schedule 3 is as follows:

Baker v Smith (No 1) [2019] QDC 76

  1. [50]
    The exclusions from the definition of operational works identified in [43] above will apply in Table 4. Thus clearing of vegetation in a State forest or forest entitlement area will not be within the scope of the prohibition in s. 578(1). 
  2. [51]
    It can also be seen that clearing of native vegetation otherwise caught by the part of Schedule 3 Column 2 will not be assessable development if the clearing is clearing to which paragraphs (d), (e) and (f) apply. 
  3. [52]
    Of relevance to this matter are Schedule 24 Part 1 and Part 2. Given certain contentions by the appellant as to the requirements for a valid complaint, it is necessary to set out the whole of Schedule 24 Part 1. It provides (as set out in Reprint No 2C): 

Part 1 Clearing and other activities or matters – general 

  1. Clearing and other activities or matters for land generally 
  1. (1)
    Clearing under a development approval for a material change of use or reconfiguring a lot, if the approval is given for a development application—
  1. (a)
    made after 4 October 2004; and 
  2. (b)
    for which the chief executive administering the Vegetation Management Act is a concurrence agency. 
  1. Clearing an area of vegetation that is less than 0.5ha within a watercourse or lake for an activity (other than an activity relating to a material change of use of premises or the reconfiguring of a lot) that is subject to an approval process and is approved under the Act or another Act, or is carried out under the document called ‘Guideline—Activities in a watercourse, lake or spring carried out by an entity’ approved by the chief executive of the department that administers the Water Act 2000, if the area is— 
    1. (a)
      a least concern regional ecosystem— 
      1. shown on the regional ecosystem map or remnant map as remnant vegetation; or
      2. shown on a PMAV as a category B area; or 
    2. (b)
      shown on a PMAV as a category X area; or
    3. (c)
      shown on the regional ecosystem map or remnant map as other than remnant vegetation. 
  2. Clearing vegetation in an area declared under the Vegetation Management Act, section 19F if the clearing is carried out under the management plan for the area. 
  3. Clearing vegetation under a land management agreement for a lease under the Land Act 1994
  4. A traditional Aboriginal or Torres Strait Islander cultural activity, other than a commercial activity.
  5. A mining activity or a chapter 5A activity. 
  6. Any aspect of development for geothermal exploration carried out under a geothermal exploration permit under the Geothermal Exploration Act 2004
  7. Any aspect of development for core airport infrastructure on airport land. 
  8. An activity under the Fire and Rescue Service Act 1990, section 53, 68 or 69.
  9. An activity under— 
    1. (a)
      the Electricity Act 1994, section 101 or 112A; or
    2. (b)
      the Electricity Regulation 2006, section 17. 
  10. For a State-controlled road under the Transport Infrastructure Act—
    1. (a)
      road works carried out on the State-controlled road; or
    2. (b)
      ancillary works and encroachments carried out under section 50 of that Act.
  1. Clearing, for routine transport corridor management and safety purposes, on existing rail corridor land, new rail corridor land, non-rail corridor land or commercial corridor land (within the meaning of the Transport Infrastructure Act) that is not subject to a commercial lease. 
  2. Any activity authorised under the Forestry Act 1959.
  1. [53]
    Of these provisions, only item 13 is relevant to this matter. The effect of that provision is that clearing of native vegetation authorised by s. 63 Forestry Act will fall outside the scope of Schedule 3. It is important to bear in mind, as identified in [32] above, that s. 63 authorises clearing to protect Forestry Act areas from fire.  Clearing of native vegetation on freehold or leasehold land to protect that land from fire in a Forestry Act area will not fall within the scope of that exclusion. 
  2. [54]
    There were various amendments to Part 1 over the relevant period adding further exemptions. They are set out in her Honour’s reasons at [204] to [207]. Those changes have no material impact on this matter.  
  3. [55]
    Schedule 24 Part 2 contains further exceptions specifically for freehold land (which

included Chess Park at all relevant times by reason of the nature of the lease held prior to freeholding by Mr Baker). It relevantly provides:[5]  

Part 2 Clearing for particular land

  1. Freehold land

For freehold land, clearing that is—

  1. (a)
    clearing of vegetation to which the Vegetation Management Act does not apply; or 
  2. (b)
    for a forest practice; or 
  3. (c)
    residential clearing; or 
  4. (d)
    necessary for essential management; or
  5. (e)
    in an area shown on a PMAV as a category X area; or
  6. (f)
    in an area for which there is no PMAV and the vegetation is not regulated regrowth vegetation or shown on the regional ecosystem map or remnant map as remnant vegetation; or 
  7. (g)
    for urban purposes in an urban area and the vegetation is regulated regrowth vegetation, or an of concern regional ecosystem or a least concern regional ecosystem—
  1. (i)
    shown on a PMAV for the area as a category B area; or 
  2. (ii)
    if there is no PMAV for the area—shown on the regional ecosystem map or remnant map as remnant vegetation; or
  1. (h)
    for urban purposes in an urban area in a wild river high preservation area and the vegetation is— 
  1. (i)
    remnant vegetation, shown on the regional ecosystem map or remnant map, that is an of concern regional ecosystem or a least concern regional ecosystem; or
  2. (ii)
    shown on the regional ecosystem map or remnant map as other than remnant vegetation; or
  3. (iii)
    regulated regrowth vegetation; or
  1. (i)
    necessary for routine management in an area of the land and the vegetation is regulated regrowth vegetation, or a least concern regional ecosystem –
  1. (i)
    shown on a PMAV for the area as a category B area; or
  2. (ii)
    if there is no PMAV for the area – shown on the regional ecosystem map or remnant map as remnant vegetation; or
  1. (j)
    in an urban development area; or
  2. (k)
    on airport land and the operational work –
  1. (i)
    is consistent with the land use plan approved under the Airport Assets (Restructuring and Disposal) Act 2008, chapter 3, part 1 for the land; and
  2. (ii)
    is carried out on land that is not stated, under the land use plan, to remain undeveloped land; or
  1. (l)
    clearing of regulated regrowth vegetation under the regrowth vegetation code or a regrowth clearing authorisation, other than if the vegetation is shown on a PMAV for an area of the land as a category A area; or
  2. (m)
    for development that is for an extractive industry under the Vegetation Management Act, section 22A(3) in a key resource area to the extent it involves clearing regulated regrowth vegetation, other than if the vegetation is shown on a PMAV for an area of the land as a category A area; or
  3. (n)
    for development that is a significant community project to the extent it involves clearing regulated regrowth vegetation, other than if the vegetation is shown on a PMAV for an area of the land as a category A area. 

[Underlining added to identify provisions materially relevant to this appeal]

  1. [56]
    Part 2 was re-enacted in December 2012, but without any material impact on the issues in this case. Schedule 24 Part 2 requires further explanation and definition. The expressions “essential management” and “routine management” are themselves defined in Schedule 26 of the Regulations as follows:

essential management means clearing native vegetation –

  1. (a)
    for establishing or maintaining a necessary firebreak to protect infrastructure other than a fence, road or vehicular track, if the maximum width of the firebreak is equivalent to 1.5 times the height of the tallest vegetation adjacent to the infrastructure, or 20m, whichever is the greater; or 
  2. (b)
    for establishing a necessary fire management line if the maximum width of the clearing for the fire management line is 10m; or 
  3. (c)
    necessary to remove or reduce the imminent risk that the vegetation poses of serious personal injury or damage to infrastructure; or 
  4. (d)
    by fire under the Fire and Rescue Service Act 1990 to reduce hazardous fuel load; or
  5. (e)
    necessary to maintain infrastructure including any core airport infrastructure, buildings, fences, helipads, roads, stockyards, vehicular tracks, watering facilities and constructed drains other than contour banks, other than to source construction material; or
  6. (f)
    for maintaining a garden or orchard, other than clearing predominant canopy trees to maintain underplantings established within remnant vegetation; or 
  7. (g)
    on land subject to a lease issued under the Land Act 1994 for agriculture or grazing purposes to source construction timber to repair existing infrastructure on the land, if— 
  1. the infrastructure is in need of immediate repair; and 
  2. the clearing does not cause land degradation as defined under the Vegetation Management Act; and 
  3. restoration of a similar type, and to the extent of the removed trees, is ensured; or 
  1. (h)
    by the owner on freehold land to source construction timber to maintain infrastructure on any land of the owner, if—
  1. the clearing does not cause land degradation as defined under the Vegetation Management Act; and
  2. restoration of a similar type, and to the extent of the removed trees, is ensured.

  

routine management, for clearing native vegetation on land, means the clearing of native vegetation— 

  1. (b)
    to establish a necessary fence, road or vehicular track if the maximum width of clearing for the fence, road or track is 10m; or 
  2. (c)
    to construct necessary built infrastructure, including core airport infrastructure, other than contour banks, fences, roads or vehicular tracks, if—
  1. the clearing is not to source construction timber; and 
  2. the total extent of clearing is less than 2ha; and 
  3. the total extent of the infrastructure is on less than 2ha; or 
  1. (d)
    by the owner on freehold land to source construction timber for establishing necessary infrastructure on any land of the owner, if—
  1. the clearing does not cause land degradation as defined under the Vegetation Management Act; and 
  2. restoration of a similar type, and to the extent of the removed trees, is ensured; or
  1. (e)
    by the lessee of land subject to a lease issued under the Land Act 1994 for agriculture or grazing purposes to source construction timber, other than commercial timber, for establishing necessary infrastructure on the land, if— 
  1. the clearing does not cause land degradation as defined under the Vegetation Management Act; and 
  2. restoration of a similar type, and to the extent of the removed trees, is ensured.

  [Underlining added to identify provisions materially relevant to this appeal]

  1. [57]
    Other relevant terms in the dictionary in Schedule 3 of the SPA are:

forest practice

  1. (1)
    Forest practice means planting trees, or managing, felling and removing standing trees, on freehold land or indigenous land, for an ongoing forestry business in a—
  1. plantation; or
  2. native forest, if, in the native forest—
  1. (i)
    all the activities are conducted in a way that is consistent with the native forest practice code; or 
  2. (ii)
    if the native forest practice code does not apply to the activities, all the activities are conducted in a way that—
  1. (A)
    ensures restoration of a similar type, and to the extent, of the removed trees; and
  2. (B)
    ensures trees are only felled for the purpose of being sawn into timber or processed into another value added product (other than woodchips for an export market); and 
  3. (C)
    does not cause land degradation as defined under the Vegetation Management Act.
  1. (2)
    The term includes carrying out limited associated work, including, for example, drainage, construction and maintenance of roads or vehicular tracks, and other necessary engineering works. 
  2. (3)
    The term does not include clearing native vegetation for the initial establishment of a plantation

infrastructure includes land, facilities, services and works used for supporting economic activity and meeting environmental needs native forest practice means a forest practice other than in a plantation. 

native forest practice code means the native forest practice code under the Vegetation Management Act, section 19O(1). 

native vegetation means vegetation under the Vegetation Management Act.

The VMA 

  1. [58]
    There are several references in the SPA scheme to the VMA. Aspects of the VMA provisions are given considerable weight in the appellant’s submissions.
  1. [59]
    Section 3 identifies the purpose of the Act. It relevantly provides:
  1. (1)
    The purpose of this Act is to regulate the clearing of vegetation in a way that—
  1. conserves remnant vegetation that is—
  1. an endangered regional ecosystem; or
  2. an of concern regional ecosystem; or
  3. a least concern regional ecosystem; and
  1. conserves vegetation in declared areas; and
  2. ensures the clearing does not cause land degradation; and
  3. prevents the loss of biodiversity; and
  4. maintains ecological processes; and
  5. manages the environmental effects of the clearing to achieve the matters mentioned in paragraphs (a) to (e); and (g) reduces greenhouse gas emissions.
  1. (2)
    The purpose is achieved mainly by providing for—
  1. codes for the Planning Act relating to the clearing of vegetation that are applicable codes for the assessment of vegetation clearing applications under IDAS; and
  2. the enforcement of vegetation clearing provisions; and
  3. declared areas; and
  4. a framework for decision making that, in achieving this Act’s purpose in relation to subsection (1)(a) to (e), applies the precautionary principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage; and
  5. the phasing out of broadscale clearing of remnant vegetation by 31 December 2006; and
  6. the regulation of particular regrowth vegetation.
  1. [60]
    Part 2 VMA deals with vegetation management. Within that part, the following relevant provisions appear.
  2. [61]
    Section 8 defines vegetation under the Act (note the definition of native vegetation in the SPA at [57] above). It provides: 

Vegetation is a native tree or plant other than the following—

  1. (a)
    grass or non-woody herbage;
  2. (b)
    a plant within a grassland regional ecosystem prescribed under a regulation; 
  3. (c)
    a mangrove.
  1. [62]
    Subdivision 1 of Division 4B of Part 2 deals with certain codes for vegetation management. It relevantly deals with the native forest practice code (see Schedule 24 Item 2(b) at [55] above). It relevantly provides: 
  1. 19O
    Native forest practice code
  1. (1)
    The native forest practice code is the document called ‘The Code applying to a Native Forest Practice on Freehold Land’ approved by the Minister, as amended or replaced from time to time under this section.
  2. (2)
    The Minister may amend or replace the document mentioned in subsection (1) or any amendment or replacement of it.
  3. (3)
    However, the amendment or replacement does not take effect until it is approved under a regulation.
  4. (4)
    A reference to the native forest practice code is taken to include any amendment or replacement under subsection (2) that has taken effect.
  1. 19P
    Content of native forest practice code
  1. (1)
    The native forest practice code may provide for any matter about conducting a native forest practice the Minister considers is necessary or desirable for achieving the purpose of this Act.
  2. (2)
    The native forest practice code may provide for required outcomes and practices for producing, managing and removing commercial timber in native forests.
  3. (3)
    The native forest practice code must not be inconsistent with the State policy.
  1. [63]
    Division 5AA deals with Vegetation management maps (see Schedule 24 Part 2 Items 2(e) and (i) at paragraph [55] above). It deals with certain maps of remnant vegetation in a part of the State, relevantly in this matter, regional ecosystem maps[6] and PMAVs.  
  2. [64]
    As to the former, s. 20A provides:

The regional ecosystem map is a map certified by the chief executive as the regional ecosystem map for a part of the State and showing for the part—

  1. (a)
    areas of remnant vegetation that are—
  1. (i)
    an endangered regional ecosystem; or
  2. (ii)
    an of concern regional ecosystem; or
  3. (iii)
    a least concern regional ecosystem; and
  1. (a)
    the regional ecosystem number for each of the regional ecosystems mentioned in paragraph (a); and
  2. (b)
    areas the chief executive decides under section 20AH to show on the map as remnant vegetation.

Note

The chief executive may decide under section 20AH to show an area on the regional ecosystem map as remnant vegetation even though the vegetation is not remnant vegetation.

  1. [65]
    The dictionary in the VMA relevantly provides:

regional ecosystem means a vegetation community in a bioregion that is consistently associated with a particular combination of geology, landform and soil. regional ecosystem map see section 20A.

regional ecosystem number, for a regional ecosystem, means the regional ecosystem number that is established under the Regional Ecosystem Description Database.

Note

The Regional Ecosystem Description Database is a database containing regional ecosystem numbers and descriptions of the regional ecosystems that is maintained by the Queensland Herbarium. The database is available on the department’ s website at .

  1. [66]
    As a matter of practice, a particular regional ecosystem is identified by three figures which are linked to the vegetation, geology and soil which distinguish a particular system. Exhibit 34.4 (all references to exhibits will be to trial exhibits unless otherwise noted) shows the regional ecosystem numbers for the regional ecosystems present on Chess Park according to the relevant regional ecosystem maps as reviewed by Mr Dillewaard. 
  2. [67]
    Division 5A provides for maps of remnant vegetation for a particular owner’s land. Such a map is called a property map of assessable vegetation (PMAV). Division 2A provides relevantly:
  1. 20AK
    What is a property map of assessable vegetation (or PMAV)
  1. (1)
    A property map of assessable vegetation (or PMAV) is a map certified by the chief executive as a PMAV for an area and showing for the area the following—
  1. (a)
    category A areas;
  2. (b)
    category B areas;
  3. (c)
    category C areas;
  4. (d)
    category X areas;
  5. (e)
    areas subject to a regional ecosystem map, remnant map or regrowth vegetation map.
  1. (2)
    The map may also show for the area the location of the boundaries of, and the regional ecosystem number for, each regional ecosystem in the area.
  2. (3)
    Each of category A area, category B area, category C area and category X area is called a vegetation category area.

Note—The effect of sections 20AL to 20AO, 20BA and 20CA is that there is no overlap of the boundaries of the vegetation category areas.

  1. (4)
    The chief executive may certify a map as a PMAV by certifying—
  1. a hard copy of the map; or
  2. a digital electronic form of the map.
  1. 20AL
    What is a category A area

A category A area is an area that—

  1. (a)
    is any of the following—
  1. a declared area;
  2. an offset area;
  3. an exchange area; or
  1. (b)
    has been unlawfully cleared; or
  2. (c)
    is, or has been, subject to—
  1. a restoration notice; or
  2. an enforcement notice under the Planning Act containing conditions about restoration of vegetation; or
  1. (d)
    has been cleared of native vegetation and in relation to the clearing a person has been found guilty by a court, whether or not a conviction has been recorded, of a clearing offence; or
  2. (e)
    the chief executive decides under section 20BA is a category A area.
  1. 20AM
    What is a category B area

A category B area is an area, other than a category A area—

  1. (a)
    shown on a regional ecosystem map or remnant map as remnant vegetation; or
  2. (b)
    that, if section 20AN does not apply to the area, is a Land Act tenure to be converted under the Land Act 1994 to another form of tenure and is or contains an endangered regional ecosystem, of concern regional ecosystem or a least concern regional ecosystem.
  1. 20AN
    What is a category C area

A category C area is an area, other than a category A area, that contains regrowth vegetation that is—

  1. (a)
    an endangered regional ecosystem, of concern regional ecosystem or a least concern regional ecosystem that has not been cleared since 31 December 1989; and
  2. (b)
    either—
  1. shown on a regional ecosystem map or remnant map as remnant vegetation; or
  2. shown on a regrowth vegetation map as high value regrowth vegetation.
  1. 20AO
    What is a category X area
  1. (1)
    A category X area is an area, other than a category A area or category C area, in which clearing of vegetation has happened and that, when a PMAV applying to the area was made, did not contain remnant vegetation

or vegetation shown on the regional ecosystem map or remnant map as remnant vegetation.

  1. (2)
    However, an area is not a category X area if the chief executive decides under section 20CA the area is not a category X area.
  1. [68]
    It can be seen that regional ecosystem maps and PMAVs map “remnant vegetation” and regional ecosystem maps also include three categories of ecosystem: endangered, of concern and least concern regional ecosystems.
  2. [69]
    Remnant vegetation was defined in the dictionary in the Schedule to the VMA as follows: 

remnant vegetation means vegetation, part of which forms the predominant canopy of the vegetation—

  1. (a)
    covering more than 50% of the undisturbed predominant canopy; and
  2. (b)
    averaging more than 70% of the vegetation’s undisturbed height; and
  3. (c)
    composed of species characteristic of the vegetation’s undisturbed predominant canopy.
  1. [70]
    The different categories of regional ecosystems are defined in Division 7A of Part 2 as follows:
  1. 22LA
    Endangered regional ecosystems
  1. (1)
    A regulation may declare a stated regional ecosystem to be an endangered regional ecosystem.
  2. (2)
    The Minister must not recommend to the Governor in Council the making of a regulation under subsection (1) unless the Minister is satisfied—
  1. the area of remnant vegetation for the regional ecosystem is less than 10% of the pre-clearing extent of the regional ecosystem; or
  2. the area of remnant vegetation for the regional ecosystem is—
  1. 10% to 30% of the pre-clearing extent of the regional ecosystem; and
  2. less than 10000ha.
  1. (3)
    However, failure to comply with subsection (2) in relation to a regulation does not affect the regulation’s validity.
  1. 22LB
    Of concern regional ecosystems
  1. (1)
    A regulation may declare a stated regional ecosystem to be an of concern regional ecosystem.
  2. (2)
    The Minister must not recommend to the Governor in Council the making of a regulation under subsection (1) unless the Minister is satisfied—
  1. the area of remnant vegetation for the regional ecosystem is 10% to 30% of the pre-clearing extent of the regional ecosystem; or
  2. the area of remnant vegetation for the regional ecosystem is—
  1. more than 30% of the pre-clearing extent of the regional ecosystem; and
  2. less than 10000ha.
  1. (3)
    However, failure to comply with subsection (2) in relation to a regulation does not affect the regulation’s validity.
  1. 22LC
    Least concern regional ecosystems
  1. (1)
    A regulation may declare a stated regional ecosystem to be a least concern regional ecosystem.
  2. (2)
    The Minister must not recommend to the Governor in Council the making of a regulation under subsection (1) unless the Minister is satisfied the area of remnant vegetation for the regional ecosystem is—
  1. more than 30% of the pre-clearing extent of the regional ecosystem; and
  2. more than 10000ha.
  1. (3)
    However, failure to comply with subsection (2) in relation to a regulation does not affect the regulation’s validity.

The next part of the VMA relevant to this matter is Part 4, headed “Reviews and legal proceedings”. It makes specific provision for a “vegetation clearing offence”. The Schedule defines “vegetation clearing offence” to mean an offence against a “vegetation clearing provision”, which is then defined as meaning “the Planning Act, section 578(1), 580(1), 581, 582 or 594(1) to the extent the provision relates to the clearing of vegetation”.  It is to be recalled that the offences under the SPA which are the subject of this appeal are against s. 578(1) SPA. 

  1. [71]
    Thus the VMA regulates aspects of the law and practice relating to that offence. It relevantly provides:

(a)  In Division 3 “Proceedings”:

  1. (i)
    By section 68:
  1. A proceeding for an offence against this Act, or for a vegetation clearing offence, must be taken in a summary way under the Justices Act 1886.
  2. Subject to subsection (4), a proceeding for an offence against this Act must start—
  1. within 1 year after the commission of the offence; or
  2. within 1 year after the offence comes to the complainant’s knowledge, but within 5 years after the offence is committed.
  1. Despite the Planning Act, and subject to subsection (4), a proceeding for a vegetation clearing offence must start—
  1. within 1 year after the commission of the offence; or
  2. within 1 year after the offence comes to the complainant’s knowledge, but within 5 years after the offence is committed.
  1. If a Magistrates Court considers it just and equitable in the circumstances, the court may, at any time, extend a time set under this section.
  2. Subsection (4)—
  1. applies to an offence regardless of whether it was committed before or after the commencement of the subsection; and
  2. does not apply to an offence if the time for starting a proceeding for the offence had expired before the commencement of the subsection.
  1. A vegetation clearing offence does not come to the complainant’s knowledge merely because the complainant receives a remotely sensed image that may provide evidence of the offence.
  1. (ii)
    By section 68A:
  1. This section applies to a complaint for a proceeding for a vegetation clearing offence.
  2. It is enough, for identifying the vegetation cleared and the place where the vegetation was cleared, for the particulars for the complaint to state the following—
  1. the number of hectares of vegetation that have been cleared unlawfully;
  2. the location where the vegetation was cleared;
  3. a description of the vegetation;

Example

remnant vegetation that is an endangered regional ecosystem and essential habitat for protected wildlife (d) whether the vegetation was in—

  1. (i)
    an area of high nature conservation value; or
  2. (ii)
    an area vulnerable to land degradation.

Justices Act 1886

 

  1. [72]
    There are a number of provisions of the Justices Act which are relevant.
  2. [73]
    Section s. 76 deals with proof of a negative. It provides: 
  1. 76
    Proof of negative etc.

If the complaint in any case of a simple offence or breach of duty negatives any exemption, exception, proviso, or condition, contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in the defendant’s defence.

  1. [74]
    The following provisions regulate this appeal:
  1. 222
    Appeal to a single judge
  1. If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.

  1. 223
    Appeal generally a rehearing on the evidence
  1. (1)
    An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
  2. (2)
    However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  3. (3)
    If the court gives leave under subsection (2), the appeal is—
  1. (a)
    by way of rehearing on the original evidence; and
  2. (b)
    on the new evidence adduced.
  1. 225
    Powers of judge on hearing appeal
  1. (1)
    On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
  2. (2)
    If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
  3. (3)
    For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
  4. (4)
    An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.
  1. 226
    Costs

The judge may make such order as to costs to be paid by either party as the judge may think just.

  1. [75]
    Other relevant statutory provisions will be set out in the course of these reasons. 

THE COMPLAINTS 

  1. [76]
    As noted above, the trial involved 46 offences articulated in four separate complaints. Some of the charges comprised in the complaints were amended at trial as to date ranges and areas cleared.  These amendments are not of substantive relevance to disposition of the appeal.[7] The below analysis is of the amended complaints.

Complaint 1

 

  1. [77]
    The first complaint (Complaint 1), articulated five offences alleged to have occurred during various periods during March to December 2012. It was sworn on 17 August 2013.   The first four offences related to clearing of areas contrary to s. 39 Forestry Act:
    1. (a)
      Charges 1 and 2 related to clearing in FEA 34;
    2. (b)
      Charges 3 and 4 related to clearing in the DSF. 
  2. [78]
    Charge 5 related to clearing in the road reserve contrary to s. 54 Forestry Act.  
  3. [79]
    Given the issues raised by the appellant, it is necessary to set out an example of the form in which charges in Complaint 1 were articulated.  Charge 1 is an example of the form of the s. 39 charges. It provided:

Charge One

On a date or dates unknown in the period between 30 29 March 2012 and 17 13 May

2012 at “Chess Park” in the Magistrates Courts District of Maryborough in the said State MICHAEL VINCENT BAKER interfered with forest products on the Forestry Entitlement Area 34 otherwise than under the authority of and in compliance in every respect with the requirements of – 

  1. (a)
    a lease, license, permit, agreement or contract granted or made under the Forestry Act 1959, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or 
  2. (b)
    a permit to light a fire on a license area under the Fire and Rescue Service Act 1990, section 65; contrary to sections 39 and 88 of the Forestry Act 1959.

Particulars 

That at the place and time aforesaid:

  1. Michael Vincent Baker (Mr Baker) was registered owner of a parcel of land called “Chess Park”, being Lot 5 on W207 and situated at 16555 Redbank Road, Eidsvold in the State of Queensland.
  2. “Chess Park” had, on its western boundary, and within its boundaries an area totalling 213.2 hectares being a forest entitlement area under the Land Act 1994 and described as FEA34 and WK219 (FEA34).
  3. “Chess Park” was subject to FEA34 as provided on Crown Plan Number WK207.
  4. FEA34 contained forest products, within the meaning of that term in Schedule 3 of the Forestry Act 1959 being:
    1. (a)
      Living vegetable growth;
    2. (b)
      Dead vegetable growth;
    3. (c)
      Standing timber; and
    4. (d)
      Fallen timber.
  5. No person may deal with forest products on FEA34 unless they hold:
    1. (a)
      a lease, license, permit, agreement or contract granted or made under the Forestry Act 1959, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or
    2. (b)
      a permit to light a fire on a licence area under the Fire and Rescue Service Act 1990, section 65;  to do so.
  6. FEA 34:
    1. (a)
      Was cleared of vegetation along the length of almost its entire western boundary, being approximately 2.5 kilometers in length, in widths varying from approximately 50 metres to approximately 86 metres; 
    2. (b)
      Had, on it, piles of cleared vegetation which had been pushed by mechanical means into piles with the clearing in (a);
    3. (c)
      Had an area of standing vegetation approximately 20 metres wide running the length of and parallel to the clearing described in (a); and
    4. (d)
      Was cleared of vegetation parallel to the cleared area in (a) at a distance of approximately 90 to 100 metres from its western boundary, with the clearing being approximately 20 metres wide and approximately 2.5 kilometres in length;
    5. (e)
      Had, in places on it, cleared vegetation pushed by mechanical means up against the standing vegetation on the eastern side of the cleared area in (d);
    6. (f)
      Was cleared at the approximate places marked Charge01_a and Charge 01_b on the attached overview map marked C;
    7. (g)
      Had been cleared in a total area of approximately 18.8 hectares in the cleared areas particuarlised in (a) and (d).
  7. The cleared areas particularised in paragraphs 6(a) and (d) were identified as proximate to the following Global Positioning System (GPS) waypoints:
  1. (a)
    145 56J 0251102 7182971;

[paragraphs (b)-(o) comprise further GPS waypoints]

  1. Included in the piles referred to in paragraphs 6(b) and (e) was timber suitable for milling and habitat timber.
  2. There was no:
    1. (a)
      lease, license, permit, agreement or contract granted or made under the Forestry Act 1959, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or
    2. (b)
      permit to light a fire on a license area under the Fire and Rescue Service Act 1990, section 65; for the clearing of vegetation particularised in paragraph 6.
  3. FEA34 was not a license area under the Forestry Act 1959.
  4. The clearing of the vegetation in paragraph 6 destroyed that vegetation, within the meaning of Schedule 3 of the Forestry Act 1959.
  5. The destruction of that vegetation was an interference with forest products within the meaning of that term in Schedule 3 of the Forestry Act 1959.
  6. In breach of section 39 of the Forestry Act 1959 Michael Vincent Baker:
  1. (a)
    Cleared the vegetation as particularised in paragraph 6, save and except to the extent of the area identified as proximate to GPS waypoints 147 56J 0251313 7181910, 153 56J 0251425 7181820 and 163 56J 0251422 7181892 which was a clearing along an internal fence line running from the western boundary of FEA34 in a general west-east direction for approximately 100 metres from the western boundary of “Chess Park” and forms part of the area described in Charge 2 of the complaint;
  2. (b)
    Did not have:
  1. a lease, license, permit, agreement or contract granted or made under the Forestry Act 1959, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or ii.  a permit to light a fire on a license area under the Fire and Rescue Service Act 1990, section 65; for the clearing of vegetation particularised in paragraph 6;
  1. (c)
    Thereby destroyed that vegetation, within the meaning of Schedule 3 of the Forestry Act 1959; and
  2. (d)
    Thereby interfered with forest products within the meaning of that term in Schedule 3 of the Forestry Act 1959.
  1. Mr Baker was not a person to whom section 39(2) of the Forestry Act 1959 applied.

I, Brian Arthur Conway Smith further say that the matters contained in Charge One of the complaint came to my knowledge on 18 February 2013.

  1. [80]
    As is evident from paragraphs 6 and 7 of this charge, specific areas of unlawfully cleared land were identified by narrative description. Paragraph 6(e) of the complaint also refers to an overview map: in that case Map C.  This map shows the areas comprised in each charge as pink areas, referred to in the proceedings a polygons or charge polygons. Map C identified the charge polygons on a satellite image upon which was superimposed boundaries of the DSF, FEA 34 and Chess Park. Those boundaries were taken from Digital Cadastral Database (DCDB) maintained by DNRM.  Map C in A3 format is included in Exhibit 17. 
  2. [81]
    Charge 5 is an example of the form in which offences against s. 54 were pleaded: 

On a date or dates unknown in the period between 29 March 2012 and 12 December 2012 at “Chess Park” in the Magistrates Court District of Maryborough in the said State MICHAEL VINCENT BAKER interfered with forest products on any land reserved for or dedicated to public purposes, namely the road reserve passing through the Dyngie State Forest, otherwise that:

  1. (a)
    under the authority of any other Act or law; or
  2. (b)
    under the authority of and in compliance in every respect with the requirements of a permit, lease, license, agreement or contract granted or made under the Forestry Act 1959;

contrary to sections 54 and 88 of the Forestry Act 1959.

Particulars 

That at the place and time aforesaid:

  1. Michael Vincent Baker (Mr Baker) was registered owner of a parcel of land called “Chess Park”, being Lot 5 on WK207 and situated at 16555 Redbank Road, Eidsvold in the State of Queensland.
  2. “Chess Park” had, contained entirely within its boundaries, an area of land set apart and declared a state forest under the Forestry Act 1959, called the Dyngie State Forest, and described as State Forest 49 on Crown Plan FTY1194 (Dyngie State Forest). 
  3. Dyngie State Forest was owned by the State of Queensland.
  4. Dyngie State Forest contained a road reserve as provided on Crown Plan Number WK207.
  5. The road reserve contained forest products, within the meaning of that term in Schedule 3 of the Forestry Act 1959 being:
    1. (a)
      Living vegetable growth;
    2. (b)
      Dead vegetable growth; 
    3. (c)
      Standing timber; and
    4. (d)
      Fallen timber;
  6. No person may deal with forest products on the road reserve unless:
    1. (a)
      under the authority of any other Act or law; or
    2. (b)
      under the authority of and in compliance in every respect with the requirements of a permit, lease, license, agreement or contract granted or made under the Forestry Act 1959.
  7. The road reserve:
    1. (a)
      Was cleared between approximately GPS waypoints 267 56J 0254826 7182316 and 271 56J 0254930 7182243;
    2. (b)
      Was cleared to a width of approximately 37 metres wide between approximately GPS waypoints 270 56J 0254912 7182211 and 271 56J 0254930 7182243;
    3. (c)
      Was cleared from approximately south of GPS waypoint 276 56J 0255738 7181479 to approximately GPS waypoint 279 56J 0255941 7181033;
    4. (d)
      Was cleared to a width of approximately 31 metres between approximately GPS waypoints 278 56J 0255970 7181044 and 279 56J 0255941 7181033;
    5. (e)
      Was cleared at the approximate places marked Charge05_a, Charge05_b, Charge 05_c, Charge 05_d and Charge 05_e on the attached overview map marked C;
    6. (f)
      Had, on it, along the length of the clearing, piles of cleared vegetation including timber stacks which had been pushed by mechanical means.
  8. The cleared areas particularised in paragraph 7 were identified as proximate to the following Global Positioning System (GPS) waypoints:
  1. (a)
    267 56J 0254826 7182316;

… [paragraphs (b)-(i) comprise further GPS waypoints]

  1. Included in the piles referred to in paragraph 7(e) was timber suitable for milling and habitat timber.
  2. There was no authority, permit, lease, license, agreement or contract granted Michael Vince Baker or made under the Forestry Act 1939 for the interference with forest products particularised in paragraph 7.
  3. Mr Baker did not have authority under any Act or law to interfere with forest products particularised in paragraph 7.
  4. In breach of section 54(1)(b) of the Forestry Act 1959 Michael Vincent Baker:
    1. (a)
      Cleared the vegetation as particularised in paragraph 7;
    2. (b)
      Did not have an authority or a permit, lease, license, agreement or contract under the Forestry Act 1959 for the clearing of vegetation particularised in paragraph 7;
    3. (c)
      Did not have an authority under any other Act or law for the clearing of vegetation particularised in paragraph 7;
    4. (d)
      Thereby destroyed that vegetation, within the meaning of Schedule 3 of the Forestry Act 1959; and
    5. (e)
      Thereby interfered with the forest products within the meaning of that term in Schedule 3 of the Forestry Act 1959.

Contrary to the Acts in such case made and provided. 

Complaint 2

 

  1. [82]
    The second complaint (Complaint 2), articulated 13 offences against s. 578(1) SPA alleged to have occurred during various periods between August 2011 and March 2013. It was sworn on 24 December 2013. Given the issues raised by the appellant, it is necessary also to set out an example of the form in which charges in Complaint 2 were articulated.
  2. [83]
    A sufficient example is Charge 1.  It provided:

Charge One

On a date or dates unknown in the period between 30 May 2011 and 7 September 2012 at “Chess Park” in the Magistrates Court District of Maryborough in the said State MICHAEL VINCENT BAKER carried out assessable development without an effective development permit for the development, contrary to section 578(1) of the Sustainable Planning Act 2009.

Particulars

That at the place and time aforesaid:

  1. Michael Vincent Baker (Mr Baker) was a registered owner of a parcel of land called “Chess Park”, described as Lot 5 on WK207 and situated at 16555 Redbank Road, Eidsvold in the State of Queensland.
  2. “Chess Park”:
    1. (a)
      Was, in the period 17 March 2011 to 15 July 2011 a Grazing Homestead Freeholding Lease (GHFL) described as Grazing Homestead Freeholding Lease 32/2051; and (b) Since 15 July 2011 was freehold land.
  3. “Chess Park” had, on its western boundary, and within its boundaries an area totalling 213.2 hectares being a forest entitlement area under the Land Act 1994 and described as FEA34 on WK219 (FEA34).
  4. “Chess Park” was subject to FEA34 as provided on Crown Plan Number WK207.
  5. Development is assessable development within the Sustainable Planning Act 2009 (SP Act) if it is the clearing of native vegetation on freehold land or land subject to a lease, license or permit under the Land Act 1994 unless the clearing is, relevantly, clearing or for another activity or matter mentioned in schedule 24, part 1 or clearing mentioned in schedule 24 part 2 of the Sustainable Planning Regulation 2009 (Regulation).
  6. The development consisted of operational work being the clearing of native vegetation on the land comprising “Chess Park”.
  7. “Chess Park” was cleared:
    1. (a)
      in the period between 30 May 2011 and 7 September 2012;
    2. (b)
      in a total area of approximately 65.4 hectares;
    3. (c)
      in areas at the approximate place marked Charge01 A and Charge01B on the attached overview map B;
    4. (d)
      in an area running to the north of FEA 34 along the western boundary of “Chess Park” and around the north western corner boundary of “Chess Park” and along the northern boundary of “Chess Park” within the area comprising “Chess Park”;
    5. (e)
      in an area running approximately parallel to the area in (c) approximately 100 metres inside the boundary of “Chess Park” within the area comprising “Chess Park”;
    6. (f)
      at the approximate places marked Charge01 A_a, Charge01A_b,

Charge01B_c, Charge01B_d, Charge01B_e, Charge01B_f, Charge 01B_g, Charge01B_h and Charge01B_i on the attached closed upmap marked B3;

  1. (g)
    of native vegetation all of which was classified as remnant vegetation.
  1. The clearing was undertaken by mechanical means.
  2. The clearing was not clearing or for an activity or matter mentioned in schedule 24 part 1 or clearing mentioned in schedule 24 part 2 of the Regulation.
  3. No exemption pursuant to Chapter Seven, Part 3 Subdivision 2 of the SP Act applied to the development.

And it is stated that the matter of complaint in this complaint came to the knowledge of the Complainant on 18 February 2013.

  1. [84]
    As is evident from paragraph 7 of this charge, specific areas were again identified by reference to maps, in this case Map B and Map B3.  Like Map C, Map B showed the charge polygons for each charge on a map of the same kind as Map C.  Map B in turn incorporated three more detailed maps of the same kind: Maps B1, B2 and B3.[8]  
  2. [85]
    Each of the other charges in Complaint 2 are in substantially the same form as Charge 1, differing only in identification of the relevant area and dates. 
  3. [86]
    Paragraphs 9 and 10 of the charge contain averments which negative the exemptions, exclusions and conditions in Schedule 24 and s. 578(2)(b) SPA respectively.  The

validity of that form of pleading is challenged by the appellant.[9]  For convenience, the general averment relating to Schedule 24 will be referred to hereafter as the First Blanket Averment and the averment relating to s. 578(2)(a) SPA will be referred to as the Second Blanket Averment.

Complaint 3

 

  1. [87]
    The third complaint (Complaint 3), articulated two offences alleged to have occurred during in the periods 25 April 2013 to 30 June 2013 and 27 May 2013 to 4 August 2013 respectively. Complaint 3 was sworn on 24 April 2014. These offences were designated Charge 32 and Charge 33. Charge 32 alleged another offence against s. 39 Forestry Act in FEA 34 and Charge 33 another offence against s. 54 in relation to the road reserve. 
  2. [88]
    Charge 32 was in substantially the same form as Charge 1 in Complaint 1, set out in paragraph [79] above. Charge 33 was set out in substantially the same form as Complaint 1 of Charge 5 set out in paragraph [81] above.
  3. [89]
    Both Charges are pleaded by reference to Map A which is also included in Exhibit 17.

Complaint 4

 

  1. [90]
    The fourth complaint (Complaint 4) is concerned with SPA offences only. It articulates 26 offences against s. 578(1) SPA alleged to have occurred during various periods between May 2011 and March 2014.   It was sworn on 28 July 2014.
  2. [91]
    These charges are in substantially the same form as Charge 1 of Complaint 2 set out in paragraph [83] above. The charge polygons relating to the charges in Complaint 4 are also identified in Map A and, depending on where they appear, in Maps A1, A2 or A3 respectively.

THE TRIAL

Overview of the prosecution case

 

  1. [92]
    A broad summary of how the prosecution went about the task of proving the charges is necessary.  At the trial (amongst other matters) the prosecution:
    1. (a)
      Had to prove in each case that native vegetation protected by the particular statute had been cleared at the times and in the locations alleged for each charge; and
    2. (b)
      Had to exclude the exemptions and exclusions potentially applicable under the statutory regime for each charge.
  2. [93]
    This simple statement masks the complexity of the task before the prosecution. The difficulties of proof included:
    1. (a)
      How to prove that clearing of vegetation had occurred as and when alleged, and in the locations on the ground alleged by reference to the boundaries of each tenure;
    2. (b)
      For the SPA offences, how to prove that native vegetation had been cleared in those areas; and
    3. (c)
      How to prove the negative propositions which had to be established to exclude the various exceptions and exclusions relating to each of the two categories of offence.
  3. [94]
    Further, from at least January 2016, the defence had taken the position that no admissions would be made. The defence insisted on strict proof of the offences. The prosecution sought to meet its burden of proof by adopting the following overall approach.  
  4. [95]
    The prosecution led evidence of various Forestry Officers who visited the relevant areas and observed the clearing on the ground and dealt with the appellant. The most extensive evidence was from Mr Smith, the principal investigator and complainant.  His attendances were also relevant to the limitation issues. This evidence was relied upon to prove the fact and extent of the clearing, but was not the sole evidence relied upon in that regard. Rather, the prosecution also relied on mapping and satellite imagery and data. It relied on:
    1. (a)
      Remote sensing images taken over the relevant periods showing the relevant areas. These images largely comprised satellite images. Those images were proved under the facilitative evidentiary provision contained in s. 131 Survey and Mapping Infrastructure Act 2003 (Qld);
    2. (b)
      The Digital Cadastral Database (described from paragraph [733] below) which purported to identify the boundaries of Chess Park, the DSF, the FEA 34 and the road reserve for the purposes of superimposing the location of the clearing areas onto the location of the tenures in question; and
    3. (c)
      Maps made under the VMA which mapped categories of vegetation under that Act including the PMAV for Chess Park and the regional ecosystem maps covering Chess Park.  
  5. [96]
    That mapping and imagery required interpretation and analysis to be understood. That interpretation and analysis was carried out largely by Mr Goulevitch. To facilitate interpretation and analysis, Mr Goulevitch utilised a GIS computer program called ArcGIS.  The program permitted the integration of all of the geographical information. The integrated data (seemingly referred to at trial as the ArcMap database) could then be viewed in different formats using an application called ArcReader.[10] The integrated data was used in a variety of ways. Notably:
    1. (a)
      Mr Goulevitch created a series of maps presented as part of a PowerPoint document using information contained in the ArcMap database.[11] The maps were used to seek to prove the clearing in each of the relevant areas at the relevant times. (He also created the maps attached to the complaints in Exhibit 17). As part of this process, Mr Goulevitch relied on his expertise in interpretation of satellite imagery to conclude that various forms of clearing had been undertaken at various identified times; and
    2. (b)
      Mr Goulevitch  also integrated various GPS co-ordinates recorded by other witnesses (notably Mr Smith and Mr Dillewaard) into the database and prepared interactive packages in ArcReader showing those GPS co-ordinates along with the other spatial data and photographs taken by witnesses: see Exhibits 23 (Mr Smith) and 35 (Mr Dillewaard).  This was used to assist in the presentation of the evidence in chief of those witnesses.
    3. (c)
      Maps were also created using that program based on satellite imagery of the fires in Chess Park in 2011 which were used by Mr Tran in giving evidence on certain bushfire management issues.  Maps were also created to assist in the presentation of other aspects of Mr Tran’s evidence.
  6. [97]
    Third, the prosecution sought to demonstrate that the vegetation cleared in the charge polygons was remnant vegetation of a least concern regional ecosystem by reliance on evidence of Mr Dillewaard, its expert botanist and the regional ecosystem maps.  Mr Dillewaard’s evidence went beyond opining that the vegetation cleared in each charge polygon would have been native vegetation. He gave evidence of his opinion as to whether the vegetation in each case was remnant vegetation of a least concern regional ecosystem. That evidence was based in part on inspection of particular charge areas and in part on other evidence, particularly the satellite imagery and the existing regional ecosystem maps which he updated.  
  7. [98]
    Fourth, both the Forestry Act and SPA contained numerous exemptions, exceptions, provisos and conditions.  It can be seen from the examples in paragraphs [79], [81] and [83] above that the complaints were in a form which arguably engaged s. 76 Justices Act (to the extent that section applied).  However, the relevance of and applicability of s. 76 is contentious in a number of respects in the appeal. 
  8. [99]
    In any event, reliance was not expressly placed on s. 76 at trial. Rather, the prosecution led evidence to exclude the potential application of the exemptions and exclusions.  
  9. [100]
    The prosecution tendered certificates given by relevant Directors-General negativing the existence of certain exemptions and exclusions. In particular:
    1. (a)
      The Director-General of the Department of National Parks, Sport and Racing executed a certificate under s. 95(e) Forestry Act (reliance on this certificate by the prosecution in final submissions was contentious in the appeal: see from paragraph [495] below);[12]
    2. (b)
      The Director-General of the Department of Infrastructure, Local Government and Planning executed a certificate under s. 623 SPA as to the non-existence of a relevant development permit. 
  10. [101]
    In addition, the prosecution tendered evidence relied upon as sufficient to negative the exemptions or exclusions. The decision of whether to lead such evidence, and how much, on a particular exception or exclusion appeared to be informed by the issues which the prosecution apprehended were likely to be contentious at trial, and the possibility of such exception or exclusion arising on the evidence as a whole.  
  11. [102]
    One of the matters most extensively dealt with (being the main theme of the correspondence from Mr Baker in Exhibit 40) related to, in broad terms, the scope of permitted clearing for bushfire management. This was an understandable focus of prosecution evidence. Much of the correspondence which passed between Mr Baker and various government officers prior to the commencement of the proceedings was concerned with clearing for bushfire management purposes, particularly after the fires which affected Chess Park in September 2011. That correspondence is in

Exhibit 40 and is summarised in a schedule of 38 pages attached to the prosecution’s General Outline produced at trial and referred to in paragraph [112](a) below.  

  1. [103]
    Evidence was also led from lay witnesses relating to this topic and others from Mr Mossman (the local fire warden) and Messrs Aslin, Stumer, Reinke and Sparrow, departmental officers who had some dealings with Mr Baker in relation to clearing to address fire risk prior to the proceedings.
  2. [104]
    The prosecution also led evidence from Mr Tran, who was presented as an expert in bushfire management and ecology. He gave evidence that related, in broad terms, to the reasonableness of the clearing which had occurred from the perspective of bushfire management.  
  3. [105]
    The prosecution also directly addressed the native forest practice exemption by evidence from the witnesses who had been on Chess Park from time to time, with a view to establishing that there was either no native forest practice being undertaken or that if there was, it was not consistent with the relevant code.
  4. [106]
    As already noted, the defence led and called no evidence.  

The course of evidence

 

  1. [107]
    The prosecution provided a written opening which, amongst other things, set out the relevant statutory provisions and a summary of how the prosecution intended to prove the case.
  2. [108]
    The witnesses gave evidence and were cross examined as set out in Annexure A to these reasons.  The trial was primarily concerned with the evidence of Mr Smith (about two days), Mr Goulevitch (about five days), Mr Dillewaard (about four days) and Mr Tran (about three days).
  3. [109]
    Much of the evidence of those witnesses was taken up with examination in chief in which each witness:
    1. (a)
      First gave evidence in relation to general matters relating to the nature and scope of their evidence; and
    2. (b)
      Second, gave evidence in relation to each of the 46 individual charges.  
  4. [110]
    Cross examination of Mr Smith and Mr Dillewaard took about two hours, Mr Tran a bit over half a day and Mr Goulevitch about a day. 

The parties’ submissions at trial

 

The written submissions

The prosecution

  1. [111]
    Both parties made extensive written submissions to her Honour at the conclusion of the trial.
  2. [112]
    The prosecution provided the following written submissions, in addition to its written opening:
    1. (a)
      A “General Outline of Submissions” of some 39 pages summarising the evidence of the witnesses and making submissions as to the reliability of that evidence. That included a summary of those parts of the correspondence in Exhibit 40 relevant to the prosecution case;
    2. (b)
      A submission on limitation period issues; and
    3. (c)
      Four specific submissions, one for each complaint, addressing the detailed evidence relevant to each of the charges in that complaint.
  3. [113]
    The prosecution contentions were:
    1. (a)
      That the prosecution witnesses, particularly Mr Smith and the three experts, should be accepted;
    2. (b)
      None of the charges were statute barred;
    3. (c)
      The evidence sustained the particular charges in each case, relying on identified evidence from each relevant witness in respect of that charge; and (d) All relevant exemptions and exclusions were excluded on the evidence. 
The defence
  1. [114]
    First, the defendant contended that the Court could not be satisfied that some undiscovered or undisclosed permit or authority did not exist that may provide a defence to some or all of the charges.[13]
  2. [115]
    Second, the defendant contended that, on various alternative premises, some or all of the charges in each of the complaints was statute barred.[14]
  3. [116]
    Third, the defendant challenged the evidence of Mr Goulevitch (though in only brief terms). It was submitted that Mr Goulevitch should not be treated as independent because he was employed by the State.  It was also submitted that when excluding cleared areas on the basis of exemptions and exceptions, he did not consider the native forest practice exemption or the “location of buried polyurethane water pipelines”.[15]
  4. [117]
    The defendant also challenged Mr Goulevitch’s evidence insofar as he identified categories of clearing other than “total” clearing such as “heavy parkland clearing” or “light parkland clearing”. The defendant contended such forms of alleged clearing were not “clearing” as pleaded in the complaints and, it seems, did not comprise conduct which attracted the offence creating provisions. There was also criticism of the so-called “lowest common denominator” approach to identifying areas of remnant vegetation.[16]
  5. [118]
    Fourth, the defendant challenged the evidence of Mr Dillewaard (but only insofar as it was said not to exclude the possibility that the native forest practice exemption applied to some charges).[17]
  6. [119]
    Fifth, there was a significant challenge to Mr Tran’s evidence.[18] The gravamen of that complaint was that:
  1. [170]
    In summary, the Defendant submits in respect of the evidence of Tran whether characterised as that of an expert or not is that: his opinions and conclusions arrived at from a desktop analysis of the fire weather conditions and therefore the intensity of fires on Chess Park at the relevant times differ in substantial and relevant aspects from that of Mossman who gave direct evidence to the contrary of Tran; his underlying premise that the Defendant’s fire plan consisted of clearing large fire breaks/lines and

relying on large volumes of water is a wrong premise and any opinion or conclusions based on that premise must also be wrong; his idealised fire plan for Chess Park was developed without fundamental information and is of little practical use to the Court and of no practical use to a landholder.

  1. [171]
    Tran’s opinions and conclusions are improbable with regard to competing evidence and other considerations. No inference should be made in respect of the guilt of the Defendant of any of the charges before the Court on the basis of Tran’s evidence. 

[Underlining in original]

  1. [120]
    Sixth, the defendant contended that various limbs of the essential management exemptions in the SPA had not been excluded. In particular, the defendant contended for a construction of that definition (and its incorporated definitions) which gave a wide meaning to the terms “infrastructure” and “imminent risk”.[19]  This construction was relied upon to contend, on a charge by charge basis, that the prosecution had not excluded the essential management exemption in many instances.
  2. [121]
    Seventh, the defendant contended in respect of the SPA offences that the prosecution had not excluded the native forest practice exemption.[20]
  3. [122]
    Finally, the defendant addressed each charge individually, identifying the particular evidence relied upon to sustain the defence to that charge. The specific submissions referred back to the main arguments advanced by the defendant noted above: in particular that one or more of the native forest practice point, limitations point or essential management point justified acquittal on the particular charge.

The addresses 

 

  1. [123]
    The addresses occurred on 17 August 2016, following delivery of the written submissions. The addresses were relatively short. The prosecution address focused on the issues specifically raised by the defence submissions.
  2. [124]
    In summary, Mr Hunter QC (who appeared with Ms Dann for the respondent at trial and on this appeal):
    1. (a)
      On the parkland clearing issue, submitted that the form of clearing proved was within the scope of the complaints and met the requirements of the offence creating provisions;[21]
    2. (b)
      On the limitations issue, submitted that on the proper construction of the statutes and the evidence, all complaints were sworn within time;[22]  
    3. (c)
      Met the criticisms of Mr Goulevitch;[23]
    4. (d)
      Met the criticisms of Mr Tran;[24] 
    5. (e)
      On the essential management issues, submitted that they did not answer any of the charges;[25] 
    6. (f)
      Dealt with the native forest practice issue;[26] 
    7. (g)
      Contended that the defendant erred in relying on SPA exemptions and exceptions in answer to Forestry Act offences;[27] 
    8. (h)
      Otherwise relied on the written submissions in respect of the individual offences.
  3. [125]
    Mr Sheridan (who appeared for Mr Baker) addressed at length on the limitation issues.[28] The argument was that:
    1. (a)
      Knowledge for the purposes of the relevant limitation statutes was knowledge of Messrs Reinke and Opperman even though they were not the complainant;
    2. (b)
      Alternatively, the proceedings should be stayed because Messrs Reinke and Opperman and others conducted themselves so as to extend the limitation period by delaying charging then handing the matter to Mr Smith; or
    3. (c)
      Alternatively, Mr Smith had knowledge for the purposes of the limitations provisions at a time which led to most of the complaints being out of time.
  4. [126]
    Mr Sheridan then turned to his criticisms of Mr Tran’s evidence. He referred, amongst other things, to:
    1. (a)
      The defect in the form of that evidence given its non-compliance with relevant rules of the UCPR;
    2. (b)
      The theoretical and irrelevant nature of the idealised fire plan; and 
    3. (c)
      The lack of proper appreciation by Mr Tran of the circumstances of Chess Park arising, amongst other things, from his lack of understanding of the activities on the land and the fact that he had not inspected the property in person.[29]
    1. [127]
      He briefly addressed on:
    1. (a)
      The scope of the imminent risk limb of the essential management exception;[30] and 
    2. (b)
      The lack of sufficient evidence to exclude the native forest practice exemption.[31] 
  1. [128]
    Like Mr Hunter, Mr Sheridan baulked at taking her Honour through the submissions on each of the individual charges.  He did, however, address briefly his written submission that the kinds of clearing adopted by Mr Goulevitch short of total clearing were not provided for in the statute.
  2. [129]
    Mr Hunter briefly replied on an aspect of the limitations issue.[32]

Conviction, reasons and other orders

 

  1. [130]
    Her Honour stated that Mr Baker was found guilty on all charges on 18 November 2016 and gave short ex tempore reasons dealing with the main issues.  There is a

debate in the costs appeal about whether her Honour’s conduct on that date meant she was functus officio thereafter and had no power to order costs.  

  1. [131]
    The matter was then adjourned for mention, ultimately, to 24 November 2016. On that day, her Honour published her written reasons of some 823 paragraphs (the Reasons) which were consistent with her finding of guilt on all charges.  Mr Hunter asked that her Honour not make formal orders until the question of costs were dealt with. No contrary submission was made by Mr Sheridan. Her Honour directed submissions be filed on costs, sentence and statutory restoration and listed the matter for further hearing on 27 and 28 February 2017. 
  2. [132]
    The matter ultimately came on for further hearing on 20 March 2017. On that date, her Honour began by informing the parties that she had identified some errors and omissions in her Reasons. She stated the necessary corrections in Court and published revised Reasons of some 840 paragraphs taking in those corrections (the Revised Reasons). The alterations to the Reasons comprised the recording of some conclusory findings consistent with the Reasons and formally stating the fact of conviction where that had been overlooked. There is a suggestion in the appellant’s submissions that her Honour did not have power to make those corrections.  Nothing is said to turn on the difference in the two sets of reasons for the purposes of the conviction appeal.[33]  As nothing is said to turn on the difference, these reasons will also refer to the Reasons.  That seems to be the basis upon which the parties acted in this appeal in drafting submissions. 
  3. [133]
    On 20 March 2017 her Honour convicted Mr Baker on all charges and imposed a single penalty of $276,000. She also ordered a restorative payment under the Forestry Act of $17,471.01. She also allowed the prosecution’s application for costs, in the process rejecting the contention that she was functus officio on 18 November 2016. The costs ordered were substantial, totalling in excess of $650,000. Convictions were recorded.

The appeal

 

  1. [134]
    On 19 December 2016, Mr Baker filed an appeal against conviction. It might be debated as to whether an order convicting Mr Baker had been made at the time the Notice of Appeal was filed given the matters discussed in the previous section of these reasons, though nothing seems to turn on this issue in the conviction appeal. On 18 April 2017, Mr Baker lodged his appeal against sentence and costs. 
  2. [135]
    Submissions were filed by both parties. They are voluminous. The Chief Judge gave leave to amend the Notice of Appeal on 7 March 2018 in the form exhibited to an affidavit of Thomas Allan.[34] No amended Notice of Appeal was actually filed, apparently on the basis that the leave operated on the form of document exhibited to the affidavit.  An amended Notice of Appeal was filed at my direction on 5 September 2018.[35]  It is clean document which does not show the amendments.   
  3. [136]
    The appeal was optimistically listed for hearing for three days commencing on 11 April 2018.  It was evident by the end of the first day of hearing that the appeal would not be heard within three days.  The conviction appeal was adjourned part heard. It was completed over four further sitting days starting 27 August 2018.  I ordered that the sentence and costs appeals be adjourned until after the conviction appeal had been determined.

THE TRIAL JUDGE’S REASONS

  1. [137]
    Her Honour first set out the background to the various areas and title and then summarised the effect of the four complaints in a manner consistent with my own summary (which is based with gratitude on her Honour’s summary). It is therefore not necessary to set out this part of the Reasons.  Her Honour then made two general observations:

Overview: Rights of the Land Owner

  1. [20]
    It can be inferred from the Defence case that this matter may be an icon for the right of a land holder to clear his property and to protect assets from being affected by fire by clearing it of trees and vegetation as a particular land owner saw fit. It is not. Without a doubt fires are a dangerous feature of the forests and bush areas and are not to be underestimated. Extensive evidence was given about bush fires, their management and control by an expert witness, Mr Cuong Tran. This matter concerns whether legislation which applies to all citizens has been contravened by Mr Baker.

The Ultimate Question

  1. [21]
    The ultimate question tor the court is whether the prosecution have proved beyond a reasonable doubt that Mr Baker has breached the provisions of the FA and the SPA as alleged and whether the prosecution has excluded beyond a reasonable doubt defences available to Mr Baker for breaches of the FA and that whether the Prosecution proved beyond a reasonable doubt that the clearing on the leasehold and the clearing on freehold areas are not exempt as assessable development.

The limitations issue and Mr Goulevitch’s evidence

 

  1. [138]
    Her Honour then rejected the submission that the complaints should be struck out because of the language used in the prosecution submissions which were critical of the defendant’s conduct and motivation. That matter does not arise on the appeal.
  2. [139]
    Her Honour then dealt with the limitations issue.  She set out the relevant statutory provisions then made the observation by way of aside, that: 
  1. [37]
    The Prosecution have proved by way of evidence from witnesses and by evidentiary aids that the Defendant did not have permits to conduct any of the clearing. I accept that evidence. I do not accept the submissions that there may be some permits that the Prosecution overlooked.
  1. [140]
    Her Honour then returned to the limitations issues. In rejecting the defendant’s contentions, she reasoned as follows.  Her Honour started by holding that in applying the references in the limitations provisions to knowledge, only Mr Smith’s knowledge was relevant: Reasons [38] to [41].  That conclusion is not challenged on appeal. She then referred to authority dealing with the meaning of knowledge as follows:
  1. [42]
    The issue of what amounted to “knowledge” was considered in Woods v Beattie ex parte Woods. The Court held that:

“This is essentially a question of fact the resolution of which is not advanced by judicial exegesis to substitute another set of words for the ordinary language used in the subsection. The critical word used is “knowledge” which, in the context, bears a meaning different from a bare allegation”.

[Footnote omitted]

  1. [141]
    After identifying the swearing dates of the four complaints, her Honour turned to consider the circumstances of the investigation and the knowledge of Mr Smith from time to time. 
  2. [142]
    Her Honour first dealt with the period up to when clearing at Chess Park was referred to Mr Smith for investigation and he was initially briefed by other departmental officers. She made the following findings:
  1. [46]
    On 16 August 2012 Forestry Officers Messrs Opperman and Reinke were in FEA 34 as part of their duties, when each observed extensive clearing in FEA 34. They noted the clearing continued south into the freehold part of Chess Park. They reported the matter to their superiors. Around that time there had been a departmental reorganisation, and the division of the Forestry arm of the Department of Environment Resource Management ("DERM"), was separated and merged with another department, Department of Agriculture and Fisheries. There were no investigative staff within the Forestry department for that area or even within DERM for that area.
  2. [47]
    Mr Wayne Sparrow from Queensland Parks and Wildlife visited Chess Park on 11 November 2012 in company with Mr Baker. The purpose of the visit was to inspect the boundaries of the DSF. Queensland Parks and Wildlife are responsible for the “custodial” of State forests while Forestry is responsible for the commercial aspect. Therefore Queensland Parks and Wildlife are responsible for the approval of fire permits and approval is given under certain circumstances taking into account a number of matters including the degree of moisture in the vegetation. In any event when Mr Sparrow made his visit he saw clearing in the DSF.
  3. [48]
    His evidence was clear that he was unsure about a number of aspects of it and he referred the matter to his superior Mr Peter Wright. It can be said conclusively at this stage, that Mr Sparrow was in no position to start proceedings against Mr Baker. He simply did not have the knowledge to do so.
  4. [49]
    His evidence was that he and/or his supervisor contacted Forestry and learned there were concerns and the matter was ultimately referred for investigation. In return the matter came to Brian Conway Smith an officer of DERM who was not from that area but from the northern part of the region in Rockhampton. He is the Complainant.
  5. [50]
    The matter was referred to him on 23 November 2012. He then made some desktop investigations and found the owner of the property. He met with the Forestry Officers Messrs Opperman and Reinke on 30 November 2012. The Forestry Officers showed Mr Smith a map where they said the clearing had occurred, and they provided him with photographs and told him that the owner of the property did not have the relevant permits.
  6. [51]
    I specifically find that Mr Smith did not acquire sufficient knowledge to start any proceedings at that point. That is for a number of reasons. Firstly it is unlikely that the Forestry Officers themselves had sufficient knowledge given the dates of the clearing. Their visit was in August 2012. In relation to count 3, the clearing at that stage had not started, and in relation to counts 4 and 5 had not ended.
  7. [52]
    Neither of them knew the “specific facts that constituted the elements of a particular offence"[36] in relation to counts 1 and 2, although they had observed the clearing and knew there was no permit for that clearing. They had never seen anything like it. It was not minor clearing but something “you could land a 747 on” said Officer Reinke.
  8. [53]
    It is the knowledge of the Complainant that is relevant not the knowledge of the persons who reported the matter to the Complainant even if their positions were official positions within the relevant department. While there is no doctrine of constructive knowledge on the facts they simply did not know enough in any event.
  9. [54]
    The Complainant is Mr Smith and it is his knowledge and when he acquired it that is relevant. He did not acquire it because the matter, even if it was of some substance, was referred to him for investigation.

[Footnotes from her Honour’s Reasons retained]

  1. [143]
    Her Honour’s findings reveal that any awareness of potentially unlawful clearing prior to Mr Smith commencing his investigation relates only to areas in the DSF and FEA 34 observed by other officers in the course of other duties.  That finding was not challenged.  (However, the appellant does contend that Mr Smith had relevant knowledge of all bar one of the Complaint 1 charges from his first meeting on 23 November 2012.)
  2. [144]
    Her Honour then deals with the first visit of Mr Smith to Chess Park in mid-January 2013 (the January 2013 visit) in the following terms:
  1. [55]
    After the meeting on 30 November 2012 Mr Smith wrote to the owner, Mr Baker, telling him an investigation was taking place and he later wrote advising Mr Baker that he would be visiting the property on 15, 16 and 17 January which he did.
  2. [56]
    In January Mr Smith visited a number of places where clearing had occurred on Chess Park including in the FEA and the DSF and other areas on the freehold. This was the first of three visits to the property that Mr Smith made as part of his investigations and location of cleared areas, but it is his first visit which is relevant for the question of knowledge. He ascertained the position and took the extent of the clearing by noting waypoints on his GPS and by taking photographs at almost every waypoint. He took eight photographs at these waypoints starting at the north and continuing through the north-east, east, south-east, south, southwest, west and north-west.
  3. [57]
    At that time in January Mr Smith knew that extensive clearing had occurred. He knew the owner of the property but he did not know when the clearing had occurred and he knew there had been a recent change of ownership in April 2011. He referred the matter to Mr Bruce Goulevitch. Mr Smith said he did not know ''the when or the who”.
  • [145]
    It was contended at trial that the commission of certain of the offences contained in Complaints 1, 2 and 4 came to Mr Smith’s knowledge during the January 2013 visit. (This was persisted with on appeal for certain charges in Complaints 1 and 4[37]).  The locations visited by Mr Smith during the January 2013 visit and his other visits in November 2013 (the November 2013 visit) and April 2014 (the April 2014 visit) were recorded by Mr Smith using a GPS. Those locations and the photographs he took were presented in an ArcReader package prepared by Mr Goulevitch which incorporated other relevant mapping and geospatial data. Mr Smith’s ArcReader package was Exhibit 23 in the proceedings.  
  • [146]
    Mr Goulevitch having been introduced to the narrative at that point, Her Honour turned to considering Mr Goulevitch’s evidence as a whole. The manner in which her Honour dealt with his evidence is challenged on appeal.  She said:
  1. [58]
    Mr Goulevitch is a principal scientist employed by the Department of Science Information Technology Innovation. I am indebted to Counsel for the Prosecution for an accurate summary of his evidence. It was not challenged and I accept it in its entirety.
  2. [59]
    Mr Goulevitch is a licenced surveyor and expert in the interpretation of remotely sensed imagery to detect and monitor changes in landscape management practices. He reviewed lot 5 on plan WK207 which he understood to be a property known as Chess Park, and area known as SF49 on FTY1194 which he knew to be the Dyngie State Forest and an area being FEA34 on WK219 which he knew to be Forest Entitlement Area 34. He also looked at the road running through the middle of Chess Park and the Dyngie State Forest called Lone Pine Redbank Road. He had reference to the landsat series of satellites which is Queensland Governments regular aerial photo capture program and collects imagery over the entire state every 16 days.
  3. [60]
    The imagery is publicly available. He used landsat 5, landsat 7 and landsat 8. The landsat images on interpretation can show an area which is normally vegetated shown as green, an area which is white will be bare earth, and area which is pink will be bare earth with some moisture or other land cover types over it.
  4. [61]
    Vegetation clearing is determined by comparing two consecutive images through time using software to flicker or jump between the images with the human eye being drawn to any change. Mr Goulevitch also had reference to the ALOS prism imagery generated from JAXA which is the Japanese space agency that controls the satellite and distributes the imagery to companies around the world to on-sell.
  5. [62]
    He excluded any area which was shown on any relevant map as a nonremnant area, adopting a lowest common denominator approach to the assessment of areas which were cleared. He developed a classification system to describe the different types of clearing that he observed on the imagery being:
  1. (1)
    Thick woody vegetation clearing commonly known as broad scale clearing. This describes the biggest change in vegetation where the trees were fairly close together.
  2. (2)
    Open woody vegetation clearing, if the trees are more scattered but most have been cleared;
  3. (3)
    Light Parkland clearing where trees have been kept but the understorey shrubs and other ground layer have been cleared or affected in some way;
  4. (4)
    Heavy Parkland clearing where some trees have also been cleared with the shrub layer; and
  5. (5)
    Thinning where one or both layers have been thinned in the vegetation.
  1. [63]
    He excluded natural damage, storm related damage, locust plagues for causing the clearing. He saw evidence of fire in all areas where the fire went through but within a very short time after the fire the canopies could be seen to be still alive.
  2. [64]
    His opinion that for the vast majority of charges against the four complaints, the areas have been cleared by mechanical means. There are some areas that had been thinned and in the very light Parkland areas it may not be mechanical. Mr Goulevitch relied upon the digital cadastral database (DCB) as well as the original survey plans and the waypoints identified by Mr Smith. Mr Dillewaard visited the property at a later date.
  3. [65]
    The DCB does not authoritatively delineate the boundaries of the property but the accuracy statement for Chess Park DCBD boundaries was plus or minus five metres. For these proceedings Mr Goulevitch adjusted the DCB western boundary of Chess Park to coincide with the existing fence line. That meant moving the boundary for DCBD by about 12 metres in some places and many places it was less than one metre.
  4. [66]
    Because of the width of the clearing on the western boundary as well as the 10 metre fence line exemption that Mr Goulevitch allowed he could be confident that the cleared areas were actually on Chess Park and not on the neighbouring property. He gave evidence by way of example of complaint 2 charge 3 which is an area on the western border of Chess Park south of the FEA. This issue with respect to the DCBD did not affect the mapping of anywhere else on the property.
  5. [67]
    He used a graphical information system (GIS) versions of the regional ecosystem maps including the updated version prepared by Mr Dillewaard (who was the botanist who visited Chess Park in 2013) to identify the various areas where clearing had either been done or was permissible. He used the lowest common denominator approach so that the charge polygons for the SPA/VMA charges only include areas that definitely contained remnant native vegetation and did not include areas that were plainly the subject of exemptions under the Sustainable Planning Regulations.
  • [147]
    As her Honour stated, she adopted that summary from the submissions of the prosecution, though with some variations to most paragraphs. Her Honour’s observation that that summary was not challenged was substantively correct, though there were some limited criticisms of Mr Goulevitch’s evidence at trial.[38]  [148] Her Honour then returned to the limitations issue. She said:
  1. [68]
    The results of Mr Goulevitch's analysis were delivered to Mr Smith on 13 August 2013 and Mr Smith swore Complaint 1 with the averments on 17 August 2013.
  2. [69]
    The Defence's submission is that Mr Smith gained the relevant knowledge at the latest in January 2013 when he visited the property and assessed the clearing. In addition the Defence says that because Mr Smith gained the requisite knowledge in January, Complaint 2 sworn on 24 January [sic December] 2013 is outside the statute times. The Defence further says Mr Smith should have seen the clearing alleged in Complaint 4 when he visited in January 2013 and says it is out of time as sworn on 24 June 2014.
  3. [70]
    That submission has no substance. It was never put to Mr Smith that he saw the clearing and some of the clearing occurred long after January 2013.
  4. [71]
    The allegation about Complaint 2 is as I understand it, because Mr Smith gained the requisite knowledge on 30 November 2012 it is out of time but I have found he did not gain the knowledge then. If the latest date for the gaining of the requisite knowledge is February 2013, Complaint 2 is sworn within time in terms of the SPA.
  5. [72]
    The only issue for the court is did the time begin to run from January 2013.
  1. [149]
    Her Honour then considered Witheyman v Van Riet [2008] 2 Qd R 587, and concluded that it stood for the proposition that:
  1. [74]
    Witheyman v Van Riet is authority for the proposition that whilst a complainant need not know the identity of the Defendant to have “knowledge” for the purposes of a limitation period, the Complainant does need to know of “specific facts that constitute the elements of a particular offence at a particular place and within a particular period”.
  1. [150]
    On that basis, her Honour concluded that Mr Smith did not have knowledge of the alleged offence until August 2013 when Mr Goulevitch provided him with his GIS analysis, which told Mr Smith when the offences were committed. Her Honour explains as follows:
    1. [82]
      The reality is that the Prosecution was presented in meticulous detail starting with the evidence of Mr Smith and his visit to Chess Park on the three days in January and on his other visits and the provision of photographs from Forestry Officers and from him that presented the extent and nature of the clearing. The court was provided with the opportunity to appreciate the arduous task of gathering evidence in matters where extensive clearing of vegetation has occurred on a large property, where the element of forest products and assessable development has to be proved, when numerous exemptions are available, and can apply, and must be disproved; where there was been recent change in ownership; where there has been change in status in the land tenure and where the legislation may change over periods of time.
    2. [83]
      None of these matters were known with any certainty by Mr Smith in his visit in January 2013; but most importantly the Complainant did not know when the clearing had been undertaken and this could not be determined until spatial analysis had been carried out.
    3. [84]
      The gap in Mr Smith's knowledge relating to ''the when” as he put it, is overwhelmingly important. Mr Smith did not refer the results of his measurements taken during his visit in January to Mr Goulevitch to discover the owner of the property, even though establishing the dates when the clearing had occurred coincidentally enabled certain identification of the ownership of property, subsequent to the change of ownership in 2011. The dates of clearing were more important than that.
    4. [85]
      As described above, Mr Goulevitch's work was not directed towards ascertaining the owner of the property even though the timelines established conclusively that the present owner, Mr Baker, was the owner at the time of the clearing.
    5. [86]
      A crucial aspect of the Complainant's knowledge was when offences had been committed. On a basic level a Defendant if accused of an offence, is entitled to know when the offence has been committed. There had been changes in tenure over the time of the clearing. Once Mr Goulevitch was able to advise the end date for the clearing of the charges, particularly 3, 4 and 5 as September and December 2012, Mr Smith was able to know that he could swear a complaint within 12 months from the end date of the clearing. Mr Goulevitch's evidence provided accurately the extent of the clearing that could have been.
    6. [87]
      Therefore, it was the information given to Mr Smith, the Complainant, by Mr Goulevitch in August 2013 which gave him the knowledge “of specific facts that constitute the elements of a particular offence at a particular place and within a particular period and Mr Smith gained the requisite knowledge to start the complaints at that time.
    7. [88]
      As for charges 1 and 2 it was never put to Mr Smith that he falsely swore the averment but on the basis that I have attempted to set out he gained knowledge only in August 2013 and Complaint 1 is sworn within time.
    8. [89]
      It is crucial for an owner of property to know when alleged clearing occurred as I have said, but particularly so with offences against the FA where persons are being charged with interference with forest products which are the property of the Crown.
    9. [90]
      After he received information from Mr Goulevitch, the Complainant was only then in the position to initiate proceedings to allege clearing of areas in relation to Complaint 1. In relation to Complaint 2, the Complainant had another year from 17 August 2013 to institute proceedings pursuant to the SPA. I have already said that on submissions in respect of Complaint 4 being out of time are “without any foundation”.
    10. [91]
      Finally, there is no evidence or any suggestion that Forestry Officers, Messrs Reinke and Opperman delayed investigation either deliberately or negligently. All the evidence is quite to the contrary and that the matter was referred to Mr Smith for investigation in a timely manner and all assistance given to him by the Forestry Officers.
  2. [151]
    Her Honour then dealt with the issue of Mr Baker’s responsibility for the clearing which was observed by Mr Smith, Mr Goulevitch and others. Under the heading “the Prosecution Case”, her Honour observed:
    1. [92]
      There is no other rational inference to be drawn than that the Complainant carried out the clearing on all areas as alleged. He made no admissions about any specific area of clearing, but it was his property during the relevant time and perusal of the correspondence between him and various governmental officers indicate that he intended to clear the property for various reasons including making the property working property and protecting it from fire.
    2. [93]
      Although Mr Baker engaged in correspondence with the various Departmental officers and at length, he did not ever apply for permission to clear vegetation on Chess Park and he did not ever claim exemptions.
    3. [94]
      He conducted the clearing by interference with forest products on Crown Land and on the leasehold and freehold and he waited for the clearing to be discovered and measured and assessed. In his correspondence he invited an injunction advised he would not read Section 39 and to had no intention of doing so at his age and foresaw that he would be in court in some capacity either as Plaintiff or Defendant. He proceeded to clear areas of Chess Park in the face of advice from Departmental officers and from the Rural Fire Warden, Mr Mossman.
  3. [152]
    Her Honour then referred to some evidence of Mr Mossman, the Rural Fire Warden.  His evidence concerned conservative fire management processes which her Honour observed related to whether exemptions for the clearing (presumably those relating to clearing for bushfire management) had been proved.

Her Honour’s consideration of Mr Dillewaard’s evidence

 

  1. [153]
    Her Honour then considered Mr Dillewaard’s evidence. She began with the following comment:
  1. [98]
    Mr Dillewaard is a botanist and holds the position of principal botanist for the Queensland Herbarium. He gave expert evidence of great value to the court. It was not challenged and I accept it in its entirety. His evidence was that Mr Smith asked him to provide a detailed assessment of the regional ecosystem mapping associated with lot 5 on plan WK207 in the parish of Dyngie including identifying whether there were areas that contained remnant and non-remnant vegetation. He personally visited Chess Park on 26 to 29 November 2013 although he did not go to every area that Mr Goulevitch identified as a charge polygon. While at the property in November he took some GPS waypoints for Mr Goulevitch.
  1. [154]
    Again (bearing in mind the attacks on her Honour’s reasons), that observation was broadly correct, though there were challenges to Mr Dillewaard’s conclusions in a number of respects, mostly focused on his evidence relating to native forest practice issues.[39]  
  2. [155]
    Her Honour then again largely adopted the summary of his evidence from the prosecution submissions as follows:  
  1. [99]
    His opinion as to the vegetation that would have been present on areas which are cleared based on reviewing similarity of signatures on imagery, consideration of landform, geology and soils information and where he has visited a site to data he measured immediately adjacent to a site or investigation of a stock pile.
  1. [100]
    His evidence was that vegetation stratifies itself into tall trees, short trees, shrubs and a ground layer. The predominant strata is the one that contributes to the most biomass to the particular vegetation community, which, in eucalypt dominated communities in Queensland relates to the tree layer typically. There is a further layer called emergent which are trees which for unknown reasons grow to be much taller than the rest of the community. T1 refers to the predominant canopy that is the tallest layer, T2 to the small tree layer, SI to the shrub layer and G to the ground layer.
  2. [101]
    The Tl layer on Chess Park is typically the spotty gum, the rusty gum, the narrow leaf iron bark, the silver leaf iron bark and poplar box. In the T2 there is generally bull oak. In the shrub layer there are generally wattles and minor species. On the ground there are generally mixed grasses, herbs and forbs. In his desktop assessment Mr Dillewaard had reference to Version 6.0b and 8.0 of the Herbariums numbering of vegetation mapping.
  3. [102]
    In the predominant there were only native species, the woody vegetation was native. He made his assessment of the character of the vegetation which had been cleared by reference to a number of consideration being similarities on signatures on imagery, where the landform, geology or soils information is not obviously different, an assessment of vegetation immediately adjacent to some of the cleared areas and investigation of some of the remaining pods of vegetation and further review of imagery particular areas under stereo imagery.
  4. [103]
    Each regional ecosystem has a unique identification number which identifies the bioregion, the land zone and the vegetation community which is found within that particular regional ecosystem.
  5. [104]
    The vegetation on Chess Park is essentially eucalypt woodlands to open forest. He measured the heights of trees during his field investigation using a digital hypsometer.
  6. [105]
    The average height of the vegetation communities was around 22 to 23 metres with the highest about 27 to 28 metres. This was a maximum that he saw. Nothing in the stock piles that he saw or measured was higher than what he had noticed.
  7. [106]
    Typical species across the property were iron barks, gum top boxes, spotted gums and river red gums.
  8. [107]
    There are only three categories of remnant native vegetation, least concern, of concern and endangered. It is not possible to have remnant native vegetation that does not fall within one of those categories. When he located areas in his site visit which he considered non-remnant but were mapped as remnant he changed them to nonremnant. Areas he considered remnant but were mapped as non-remnant he changed to remnant.
  9. [108]
    The bull oak species are in the T2 layer. Where he observed these trees had been removed in the woody layer or shrub layer there was no regeneration. Bull oak is a long lived species, he said, which tends to regenerate more from seed. Its response to fire is essentially through regeneration by seed growth. It is long lived and a slow growing species.
  10. [109]
    The community in the way point 47 to 49 transect included a small tree layer and a shrub layer. These layers were missing in the transect from waypoints 44 to 46. They had been totally removed and put in piles. The species in the sub canopy were 10 to 12 metres high.
  11. [110]
    The removal of the sub layers is usually done to promote the ground layer from a grazing potential that is a general reason why people either clear, fell or take out various parts of the structure of that community.
  12. [111]
    Studies of eucalypt show that at greater than 30 years the trees are still not the height to replace the trees that may die in the predominant canopy. It takes decades. No clearing of the eucalypt community has achieved remnant status within 30 years. Nowhere at any place at any time during the period he spent on Chess Park did he see somewhere where both the shrub layer and the sub canopy layer had been destroyed by fire.
  1. [156]
    On this occasion, her adoption of the summary was not expressly stated (though it might reasonably have been inferred from her acceptance of his evidence “in its entirety”).

Her Honour’s consideration of Mr Tran’s evidence

 

  1. [157]
    Her Honour then turned to the evidence of Mr Tran. Her Honour summarised his evidence as follows:
  1. [112]
    Mr Cuong Tran gave evidence over a number of days. His evidence was very important because it was he who gave evidence about essential management as it related to clearing to protect the property from fire. I accept he was an expert witness.
  2. [113]
    Mr Tran presented as a thoughtful, learned and careful witness who has had vast experience and expertise in the field of bushfire ecology and management. He holds an honours degree in science, in plant biology and is qualified in the field of bushfire management. He is currently a PHD candidate having submitted a thesis on the topic of the evolution of flammability of Australian native plants. Throughout his career he has worked in the field of fire ecology and is currently the national science lead in bushfire services manager with ten rivers formerly transfield.
  3. [114]
    He is responsible for the management for 2.9million hectares of bushfire prone land on behalf of the Department of Defence. He is also responsible for area transversed by a coal seam gas pipeline that runs from Chinchilla to Curtis Island and he has published widely in the field of bushfire management.
  4. [115]
    His evidence was not the subject of contradiction from many other experts nor were the bases for his opinions undermined.
  5. [116]
    Giving his evidence he was [sic] relied on fire data from the Northern Australia fire information web service from the Bureau of Meteorology and he had regard to the work undertaken by Messrs Goulevitch, Dillewaard and Smith. He presented fire scar maps that depict the fire activity across Chess Park and neighbouring properties at various times during the period within which this matter is concerned.
  6. [117]
    There were a series of maps that Mr Tran prepared as idealised means of managing fire across Chess Park.
  7. [118]
    His significant evidence was there was in fact no point in having a fire trial [sic] that is bigger than 10 metres. CSIRO studies have shown that a six metre fire trial [sic] will arrest between 50 to 90% of fires of moderate intensity. If a fire is of greater intensity than moderate it cannot be attacked directly and embers and spot fires will negate the effectiveness of the fire trail of any width.
  8. [119]
    He said the type of clearing that he saw had been done on Chess Park was something he had never seen before in his professional career.
  9. [120]
    Mr Baker had been issued fire permits to light fires but Mr Tran was not able to link them to any recorded fire activity on the property.
  10. [121]
    Not only had Mr Tran not seen the extent of such clearing before for fire prevention, the wide areas of clearing posed problems in that they would need to be maintained, they would be extremely resource heavy and cost prohibitive exercise. In any event the extent of the clearing was not commensurate with a bushfire risk.
  11. [122]
    In terms of a situation if Mr Baker had limited assistance to fight fires on his property. He said that did not justify wider fire breaks. “My experience with places like forestry where we were able to fight fires two of us were able to pull up fires and save 400 hectare block quite safely. It all comes down to knowing your country, knowing how fires behave and move in the landscape. To be able to come up with some strategies to arrest even moderately intense fires”.
  12. [123]
    Concerning the clearing on the coal seam gas line he said it was excessive. His own management of the Chinchilla CSG pipeline involved 10 metre wide fire break along the pipe itself which he said “is enough to manage the bush fire risk along thousands of kilometres of pipeline to Curtis Island”.
  13. [124]
    He said the dam in the FEA was poorly sited for fire-fighting purposes with only one means of access or regress. It was much larger than required and its steep sides would make access by a fire-fighting vehicle difficult.
  14. [125]
    He said it was not sensible to manage fire on Chess Park by simple reliance on clearing and a lot of water. Plant burn should be part of the management strategy.
  15. [126]
    By way of summary he described what had been done on Chess Park in these terms “the type of clearing and both the extent and size of the clearing is something that I have not seen before in my professional career. So in Defence, the maximum area that we would clear for a perimeter of fire trail is 20 metres and they are typically around explosive ordinance depots. So this is where the Defence stores the bombs and ammunition prior to loading them on to tanks and planes. So we'll always have their – their exceptional circumstances where 20 metre wide clearings are utilised and that's consistent regardless of your location with Defence so in some of these areas where the clearing is beyond 20 metres is – I've never seen that in my life.
  16. [127]
    Typically most fire trials [sic] are never more than five, six metres wide - almost across most of the State and we manage about 3000 kilometres of fire trails on behalf of Defence each year. Furthermore the parallel clearing is something I've not seen before in my life either”.
  17. [128]
    He gave evidence that he did not know about any assistance available to Mr Baker or what assistance he could expect from the Rural Fire Brigade but he said no Rural Fire Brigade would have the resources to provide fire suppression for the areas they cover. That is why a landholder needs a well prepared bushfire management plan.
  18. [129]
    He said whilst he understood Mr Baker's intention with respect to the clearing “most of the work that has been undertaken in relation to mechanical removal of vegetation is well beyond what is required for a cohesive integrated bushfire management plan for that part of the land”.
  19. [130]
    There were existing tracks and large already cleared areas. Mr Tran did not know the details of fencing or the number of stock being grazed on Chess Park but his fire management plan was designed to facilitate better production values and in doing so read the guide provided by DAFF in 2007 which was available to Mr Baker at the relevant times. It was entitled “Maximising Productivity in Spotted Gum/Iron Bark Forest”, which is the predominant vegetation on Chess Park.
  20. [131]
    Although the evidence given by Mr Tran was criticised in some respects, it was not contradicted.
  21. [132]
    His reliance on data from the Bureau of Meteorology weather station at Miles was challenged but there was no evidence that it was not an appropriate use of data and in the end was only comment.
  22. [133]
    I accept his evidence in its entirety about the clearing undertaken by Mr Baker on Chess Park as being unsuitable for the management of bush fire for the many reasons he advances including the suitability of an alternative plan and the ongoing need imperative [sic] to monitor and prepare for the possibility of fire.
  1. [158]
    Mr Tran’s evidence was challenged at trial.[40] Her Honour expressly did not accept those criticisms undermined the basis of his opinions.  He reasons in this regard were mostly taken from prosecution submissions but as will be seen, contained a number of additional paragraphs.

The Forestry Act offences

 

  1. [159]
    Her Honour then turned to considering the evidence on the specific offences under the Forestry Act contained in Complaint 1 and Complaint 3. Her Honour began with an analysis of the most directly relevant parts of the Forestry Act.  It was not challenged and does not have to be set out.  
  2. [160]
    As already noted, there were seven Forestry Act offences charged. After her general observations, her Honour considered each of the charges individually. As foreshadowed in Reasons [144], her Honour adopted the prosecutions submissions in respect of Complaints 1 and 3 in Reasons [145] to [179].  The consequence of her Honour’s adoption of the prosecution submissions in the specific charges had the result that her reasons did not directly engage with the submissions made by the defendant in writing on these charges.[41] Those submissions raised two substantive points in respect of each charge in Complaints 1 and 3:
    1. (a)
      That the charge was statute barred; and/or
    2. (b)
      That the clearing was within the scope of parts (c) or (e) of the essential management exemption in Part 2 Item 4 SPA Regulations.
  3. [161]
    Her Honour had already dealt with both propositions; as to the former see [148] to [150] above and as to the latter, see Reasons [139] where her Honour concluded that the Schedule 24 exemptions do not apply to areas regulated by the Forestry Act.  No challenge to that conclusion of law is raised on appeal.  By adopting the prosecution’s submissions, however, her Honour dealt with the potential defence under s. 63 Forestry Act (even though it was not raised by the defendant) and was plainly conscious of its potential application: see Reasons [137]-[141].

The SPA offences: general

 

  1. [162]
    Her Honour first set out the statutory schemes which inform s. 578 SPA.  Her Honour set out the statutory schemes in largely the same manner as [35] to [71] above.
  2. [163]
    Her Honour then made the following general findings about the VMA issues:
  1. [236]
    As is apparent from the provisions, there are five categories of land pursuant to a PMAV – A, B, C, R and X. The definitions for each category are not entirely straightforward, however it suffices to say that there is a PMAV for Chess Park, which came into existence on 11 August 2010, and contains areas shown as category X, but none shown as category B.
  2. [237]
    To the extent that any clearing occurred in the category X areas on Chess Park, it has not been charged.
  3. [238]
    The PMAV refers, itself, to the regional ecosystem maps. The maps, in this case, contain areas which are shown as remnant vegetation. All of the clearing charged in Complaints 2 and 4 is clearing in those areas.
  4. [239]
    Practically, in this matter, the alterations in the system for maps effected on 2 December 2013 produce no material change in the relevant legal concepts. The critical points are:
  1. (a)
    At all material times for Complaints 2 and 4, there were maps covering the vegetation on Chess Park made under the VMA: a

PMAV and a regional ecosystem map (which was subsequently replaced by a remnant vegetation management map);

  1. (b)
    The relevant maps showed areas of Chess Park which comprised of remnant vegetation, typically as “least concern regional ecosystem”;
  2. (c)
    The areas charged in Complaints 2 and 4 are only those which fall within this framework.

[Footnotes omitted]

  1. [164]
    Her Honour then turned to the question of exemptions which might apply. She observed:
  1. [242]
    Certain exemptions under SPA apply to all charges in Complaints 2 and 4, and must be excluded beyond reasonable doubt.
  2. [243]
    The exemptions do not apply to the charges under the Forestry Act. [244]   With respect to the exemptions set out in Schedule 24 SPR
  1. No part of Chess Park had been declared pursuant to section 19F of the VMA to be of high nature conservation value or vulnerable to land degradation.
  2. No land management agreement existed to land degradation.
  3. No area management plan pursuant to section 20J of the VMA was ever in force with respect to Chess Park during the period the subject of the charges.
  4. A PMAV existed for Chess Park that identified some category X areas, but no category B. None of the charged clearing took place in category X areas which are the “white” areas on the PMAV.
  5. A regional ecosystem map existed for Chess Park and the area surrounding it. The areas which clearing took place are categorized as containing remnant vegetation and are typically within a least concern regional ecosystem.
  6. The vegetation cleared was native vegetation, and therefore vegetation to which the VMA applies.
  7. In particular no “forest practice”, as defined, was being conducted. Mr Dillewaard's evidence was instructive and persuasive in addition, as well as Mr. Smith, other experienced officers visited Chess Park over the time of the charges, although no person vested every part of Chess Park.
  • [165]
    From [245] her Honour deals with the defendant’s contention that the forest practice exemption had not been excluded. Her Honour’s analysis extends over Reasons [245] to [261].  The rejection of the defendant’s argument that the forest practice exemption had not been excluded was not directly challenged on appeal, though it was contended that her Honour gave insufficient reasons for doing so.
  • [166]
    Her Honour then made the general observation that:
  1. [262]
    Most of the exemptions are not available or have been excluded by evidence of searches and admission in evidence because of the application if statutory of Evidentiary aids as proof of matters.
  • [167]
    Her Honour then grappled with the propositions advanced by the defendant which were summarised in [120] above as to the scope of the meaning of the words “imminent” and “infrastructure” in the essential maintenance exception. Her Honour held:
  1. [263]
    In respect of all the charges on Complaints 2 and 4, “imminent” has its ordinary meaning, Mr Stumer gave evidence that he advised Mr Baker of the meaning in the legislation, which was consistent with its ordinary meaning. The word “imminent” does not require a special definition the meaning is perfectly clear. If the risk described was not meant by the legislation to be “imminent” other words would have been used.
  2. [264]
    For all the charges, a fence road or vehicular track is excluded in the legislation in the definition of essential management for clearing for establishing or maintaining a necessary firebreak.
  3. [265]
    For both complaints, although the definition of infrastructure includes “land” the word is used in the context of “facilities", services and works used for supporting economic activity and meeting environmental needs.” There is nothing in the evidence to raise any suggestion that the clearing related to land in the context, or in any sense. Any reference to clearing of land to protect “land", in terms of “essential management", or at all, is excluded.
  1. [168]
    Her Honour then dealt with some further issues which were not raised on appeal.  
  2. [169]
    Her Honour concluded her general remarks as follows:
  1. [272]
    The word “imminent” does not require a special definition. The meaning of “imminent” is perfectly clear. If the risk described was not meant by the legislation to be “imminent” other words would have been used in the legislation. In any event Mr Stumer advised Mr Baker about the meaning of “imminent” in clear terms.
  2. [273]
    Because there are so many charges relating to so many areas of clearing, I have addressed every charge in Complaint 2 and 4 and have adopted the submissions from the Prosecution in relation to each charge for clarity and I am indebted.
  3. [274]
    Essential management is the only realistic exemption and it has been conclusively dealt with by Mr Tran and I accept his evidence in relation to every charge in that respect.

The SPA offences: consideration of each charge

  1. [170]
    Her Honour then turned to considering each of the individual charges in Complaints 2 and 4.  As she foreshadowed, she adopted the submissions of the prosecution on the individual charges.  Her Honour’s reasons on the specific charges again do not directly engage with the submissions made by the defendant in writing on these charges.  Those submissions raised one or more of the following points in respect of each charge:
    1. (a)
      That the charge was statute barred; 
    2. (b)
      That the prosecution had not excluded that the clearing was within the scope of Parts (c) or (e) of the essential management exemption in Schedule 24 Part 2 Item 2 SPA Regulations;
    3. (c)
      That the prosecution had not excluded that the clearing was within the native forest practice exemption; and/or
    4. (d)
      That the prosecution had not excluded that the clearing was within the routine management exemption.
  2. [171]
    The statute bar issues had already been dealt with. Her Honour had also already:
    1. (a)
      Made some observations on the scope of key concepts relied upon by the defendant in respect of the essential management exemption: at Reasons [263][265]; and
    2. (b)
      Made findings about the native forest practice exemption (see [165] above).  
  3. [172]
    Again, there were individual points raised by the defendant in the course of advancing those arguments which were not directly addressed by her Honour as a consequence of adopting the prosecution submissions.  However care must be taken in assuming that material points were not therefore addressed, given that many points raised by the defendant had as their genesis a common proposition which had been rejected elsewhere by her Honour: for example, the acceptance of Mr Tran’s evidence might be thought to have addressed the specific complaints about specific points of his evidence raised by the defendant in its specific submissions. (This observation applies equally to the individual points of detail raised in respect of the Forestry Act offences.)  Further, many of the points were dealt with in the prosecution submissions which her Honour adopted.

THE AMENDED NOTICE OF APPEAL 

  1. [173]
    Notwithstanding the Chief Judge’s order, I asked the appellant to file the Amended Notice of Appeal as a standalone document. In the course of argument, the appellant abandoned certain points raised in the Amended Notice of Appeal and certain submissions made in the appeal.  Those matters were set out in writing by the appellant.[42] The Amended Notice of Appeal maintains the following grounds of appeal.

Ground 1: Jurisdiction

  1. [174]
    Ground 1 is entitled as follows: “Lack of jurisdiction to convict in respect of charges for vegetation clearing offences in Complaints 2 and 4 (the Jurisdictional point)”.  There are then two sub-grounds articulated.
  2. [175]
    Ground 1A states:

The Magistrate erred at law as she lacked jurisdiction to convict the appellant in respect of each offence charged on Complaints 2 and 4 as each of the offences charged under [s. 578(1) SPA] were defective for want of essential legal and factual elements and disclosed no offence known to law.

  1. [176]
    This ground is particularised separately in respect of legal elements and factual ingredients.  
    1. (a)
      As to the former, the appellant contends that the articulation of the SPA offences in Complaints 2 and 4 failed to articulate an offence known to the law because it did not include in the statement of the offence for each charge a statement that the assessable development was not development which fell within one or more of the various exclusions and exceptions relating to the offence under s. 578(1) SPA.  
    2. (b)
      As to the latter, the appellant contends that if the offence did not have to be articulated in the way contended for to identify an offence known to the law, the same omission meant that the SPA offences as averred lacked “essential factual elements”.
  2. [177]
    Ground 1 then separately contends:

The Magistrate erred at law as she lacked jurisdiction to convict the appellant in respect of each [SPA offence] as each [SPA offence was] made unlawfully, in breach of s. 68A(2)(c) and s. 68A(2)(d) [VMA] and s. 47(1) of the Justices Act 1886 and were defective for want of essential factual elements and disclosed no offence known to law.

  1. [178]
    The gravamen of this ground is that on the proper construction of s. 68A(2)(c) and (d) VMA, a valid complaint for a SPA offence:
    1. (a)
      Had to aver the category, type and number of regional ecosystem of the vegetation cleared (to comply with s. 68A(2)(c)); and
    2. (b)
      Had to aver whether the vegetation was in an area of high nature conservation value or in an area vulnerable to land degradation (to comply with s. 68A(2)(d)).

Ground 2: Lack of jurisdiction to amend

  1. [179]
    Grounds 2A and 2B contend that her Honour had no jurisdiction to amend Complaints 2 and 4 (as she did early in the trial).  It was accepted that these grounds stand or fall on the resolution of the matters raised by Ground 1.

Ground 3: Reasons

 

  1. [180]
    Ground 3 is in respect of all offences and is described as follows: “Inadequacy of Reasons and failure to discharge judicial function to evaluate the evidence”.
  2. [181]
    By Ground 3/1A(a) and (b) the appellant contends that her Honour erred by:
    1. (a)
      Her wholesale adoption of the prosecution submissions “by copying and pasting more than 80% of those submissions” and “wholesale rejection of the defendant’s submissions without giving adequate reasons”; and
    2. (b)
      By “simply finding the defendant guilty of all charges where the Magistrate was required to evaluate and positively believe and accept beyond reasonable doubt the evidence presented by the prosecution”.
  3. [182]
    Ground 3/1A(c) raises two further distinct points.
    1. (a)
      Ground 3/1A(c)(ii) contends that her Honour erred in accepting Mr Smith’s evidence as to the dates at which he had the requisite knowledge of the commission of the offences the subject of the statute bar contention.  
    2. (b)
      Grounds 3/1A(c)(iii) to (v) contend that her Honour erred by accepting the evidence of Messrs Tran, Goulevitch and Dillewaard because their evidence in each case “had no probative value, was inadmissible and should have been accorded no weight”.  

Ground 4: Essential management exemption not excluded

 

  1. [183]
    Ground 4 relates only to the SPA offences and is described as follows: “Errors by the Magistrate in finding that the prosecution had proved beyond reasonable doubt that the so described ‘essential management’ exemption did not apply to the charged clearing…”
  2. [184]
    Ground 4/1A contends that her Honour misdirected herself by her finding in Reasons [273] that essential management is the only realistic exemption and that it had been conclusively dealt with by Mr Tran.  It was said in the particulars that:
    1. (a)
      Her Honour erred by asking the wrong question: whether the exemption as “realistic”; and
    2. (b)
      Rather her Honour should have evaluated each exemption by reference to the evidence adduced to determine if it had been excluded beyond reasonable doubt.
  3. [185]
    Ground 4/1B contends that because her Honour asked the wrong question, she made three further errors:  
    1. (a)
      First, the appellant contends her Honour erred in her approach to paragraph (a) of the definition of essential management in that:
      1. Her Honour erred in her construing “infrastructure” in the definition of essential management as not including land used for economic activity; and
      2. Her Honour therefore erred in not considering whether the prosecution had excluded the relevant part of the essential management exemption on the basis of that construction and the fact that the September 2011 fire showed that the existing fire breaks were inadequate. 
    2. (b)
      Second, the appellant contended that her Honour erred in her failure expressly to adopt a construction of the word “imminent” in paragraph (c) of the definition of essential management and therefore erred in finding that this limb of the definition had been excluded by the prosecution. 
    3. (c)
      Third, the appellant contended that her Honour erred in concluding that the prosecution had excluded paragraph (e) of the definition of essential management (clearing necessary to maintain infrastructure) because there was a preponderance of evidence that the clearing was necessary for that purpose.
  4. [186]
    So far as I could determine, arguments were only advanced in respect of the first and second of these grounds.

Ground 5: Limitations issues

 

  1. [187]
    Ground 5 is described simply as “Limitation ground: Complaints 1 and 4”.
    1. (a)
      Ground 5/1(a) contends that Charges 1, 2, 4 and 5 in Complaint 1 were brought after expiry of the limitation period in s. 88 Forestry Act.
    2. (b)
      Ground 5/1(b) contends that all charges in Complaint 4 were brought after the expiry of the time limit in s. 68(3) VMA.
  2. [188]
    The appellant advances three distinct contentions in relation to both grounds:
    1. (a)
      First, in particulars (i) to (iii), that her Honour erred in finding that Mr Smith had to have knowledge of when the offences were committed and who committed them, when all that was required was for the complainant to have knowledge of such information as to give him reasonable grounds for belief that an offence had been committed;
    2. (b)
      Second, in particulars (iv), her Honour erred in Reasons [68] to [70] rejecting the defendant’s submission that Mr Smith gained the requisite knowledge in January 2013 when visiting Chess Park because that was never put to him; and
    3. (c)
      Third, in particulars (v), her Honour erred in concluding in Reasons [88] that the averments in Charges 1 and 2 in Complaint 1 were conclusive in the absence of the defendant putting to Mr Smith “that he had falsely sworn the averments”.

Ground 6: Forestry Act exemptions

 

  1. [189]
    Ground 6 relates to Complaints 1 and 3 and is described simply as “Forestry Act offences”. Ground 6/1 contends that her Honour erred in finding the Forestry Act charges proved because the prosecution did not establish beyond reasonable doubt that Mr Baker was not complying with the duty under s. 63 Forestry Act.

APPEALS UNDER S. 222 JUSTICES ACT 

  1. [190]
    Section 223 provides that this appeal is an appeal by way of rehearing on the original evidence unless leave is given to lead further evidence.  No such leave was sought.  A useful starting point in considering the character of the appeal is the statement in McDonald v Queensland Police Service [2017] QCA 255.  There, Bowskill J, with whom Fraser and Philippides JJA agreed, said (footnotes omitted):
  1. [46]
    A failure on the part of a District Court judge, on an appeal under s 222 of the Justices Act, to conduct a rehearing is an error of law, which would warrant the intervention of this Court to correct an injustice.
  2. [47]
    However, in this case, the District Court judge did conduct the appeal appropriately, in accordance with law, by way of a rehearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing. It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.
  3. [48]
    It is clear, particularly from [14]-[18] of the decision below, that the District Court judge reviewed the evidence that was before the Magistrate, and formed his own view of it, leading to the conclusion that, in the challenged respects, he could see no basis to overturn the Magistrate’s factual findings – that is, could see no error in those factual findings, which would warrant allowing the appeal.

[Underlining added]

  1. [191]
    The underlining emphasises the central place of identifying error in the appeal process.  Other cases support the centrality of identification of error in an appeal by way of rehearing.  A convenient starting point is Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 where Gleeson CJ, Gaudron and Hayne JJ said:
    1. If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. 
    2. Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.

[Underlining added]

  1. [192]
    In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ relevantly said:
    1. The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. 
    2. The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. 

    ...

    1. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons.

[Underlining added, footnotes omitted]

  1. [193]
    Those observations have particular weight in this case, where the trial judge had the advantage of observing witnesses whose credit was challenged (albeit expert witnesses) and, perhaps more importantly, had the opportunity to have the rather complex evidence presented in a coherent and logical manner during the course of the trial.  Her Honour will have had an overview of the case developed over the 20 days of evidence which is difficult fully to replicate on a rehearing.  Those considerations are reflected in statements such as that in Stevenson v Yasso [2006] 2 Qd R 150 at [162] that an appeal under s. 223 requires the Court to make its own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[43]
  2. [194]
    The next case to consider is Teelow v Commission of Police [2009] 2 Qd 489.  In that case, Muir JA with whom Fraser JA and Mullins J agreed, made the following relevant observations, after citing s. 223 (footnotes omitted):
  1. [4]
    It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance." On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.
  1. [195]
    Other authorities also identify the necessity of identifying error in the decision below.[44]  Not only does identification of error provide the foundation for interfering in the judgment under appeal, it is also useful in a complex appeal for identifying (as noted in Fox v Perry) that part of the proceedings below which should be subject to particular scrutiny and reconsideration.  

GROUND 1: JURISDICTION (COMPLAINTS 2 AND 4 ONLY)

 

Summary of the appellant’s position

 

  1. [196]
    The appellant’s submissions on the jurisdiction ground were voluminous.[45]  The broad propositions as I apprehended them are as follows.

Ground 1A 

  1. [197]
    A complaint which does not articulate the essential legal elements and factual ingredients of a statutory offence does not attract the jurisdiction of the Magistrates Court to hear and determine the complaint.  The appellant contended that charges in Complaints 2 and 4 failed in that respect in the articulation of charges for breach of s. 578(1) SPA in the following ways. 
  2. [198]
    First, the appellant contended that valid articulation of a charge under s. 578(1) required the charge to set out each item in Schedule 24 Parts 1 and 2 individually in the charge and expressly to state that the clearing of native vegetation identified in the charge was not within that item.  The charges failed to do so: rather they dealt with the items in Schedule 24 by the First Blanket Averment.  This was said to result in the failure of the charge to articulate the essential legal elements of the offence or, in the alternative, to articulate essential factual elements.
  3. [199]
    Second, the appellant contended that the valid articulation of a the charge under s. 578(1) required the charge to set out each of the exemptions stated in each of sections 584, 585 and 586 and expressly to state that the clearing identified was not within any of those provisions.  The charges failed to do so: rather they invalidly dealt with those sections by the Second Blanket Averment.  The appellant relied on this contention as giving rise to a failure of the charge to articulate essential factual elements of the offence.  It was not relied upon as being relevant to the legal elements of the offence.[46] 
  4. [200]
    Third, the appellant contended that valid articulation of a charge under s. 578(1) required the charge expressly to refer to s. 342(3) SPA and to state that the clearing did not fall within that provision. (It will be recalled that s. 342(3) is referred to in s.

578(2)(b): see paragraph [36] above).  The charges did not refer to that section at all with the consequence that the charges failed to articulate the essential legal elements of the offence or, in the alternative, the essential factual elements.  

Ground 1 

  1. [201]
    As to Ground 1, the appellant contended that valid articulation of a charge under s. 578(1) which alleged clearing of native vegetation required all of the particulars referred to in s. 68A(2) VMA to be pleaded, failure to do so comprising a failure  properly to plead the legal elements or alternatively, the factual elements of a charge under s. 587(1).
  2. [202]
    The appellant contended that the relevant complaints (Complaints 2 and 4) failed to include particulars required by s. 68A(2) in the following respects:
    1. (a)
      Contrary to the requirements of s. 68A(2)(c) that the particulars “describe the vegetation”:
      1. Complaint 2 failed to include particulars of the class of regional ecosystem to which the vegetation belonged (i.e. least concern, of concern or endangered) and failed to include particulars of the particular regional ecosystem or systems to which the vegetation belonged; and
      2. Complaint 4 failed to include particulars of the particular regional ecosystem or systems to which the vegetation belonged.
    2. (b)
      Contrary to the requirements of s. 68A(2)(d), both complaints failed to include particulars of whether the vegetation was in a high nature conservation area or an area vulnerable to land degradation. 

Some general principles

 

  1. [203]
    A valid complaint is required to ground the jurisdiction of the Magistrates Court to hear and determine a complaint under the Justices Act.  A complaint which fails properly to articulate an offence known to the law will be invalid and a conviction on an invalid complaint cannot stand.[47]   
  2. [204]
    The position at common law was authoritatively restated by the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [26] where the majority (Heydon J agreeing in this part of the majority reasons) held (footnotes omitted):

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.  In John L Pty Ltd v AttorneyGeneral (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed.  In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offence, “must at the least condescend to identifying the essential factual ingredients of the actual offence”.  These facts need not be as extensive as those which a defendant might obtain on an application for particulars.  In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant's acts or omissions”.  McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.  

[Underlining added]

  1. [205]
    The underlined part of the above passage identifies two distinct matters which a valid charge must address: the identification of the legal nature of the offence charged and the identification of how the offence was committed.  In applying these principles, it is helpful to recall the twin purposes to be served by the complaint identified by the above passage:
    1. (a)
      To inform the court of both the nature of the offence and the manner in which it had been committed; and
    2. (b)
      To inform the defendant of the substance of the charge which he or she has to meet.
  2. [206]
    The Justices Act also deals with the form and content of complaints.  As to the former, the relevant provisions are sections 46 and 47(1) Justices Act which provide:
  1. 46
    Description of persons and property

Such description of persons or things as would be sufficient in an indictment shall be sufficient in a complaint.

  1. 47
    What is sufficient description of offence

The description of any offence in the words of the Act, order, by-law regulation or other instrument creating the offence, or in similar words, shall be sufficient in law.

  1. [207]
    Section 46 picks up s. 564 Criminal Code Act 1899 (Qld).[48]  That section relevantly provides:
  1. 564
    Form of indictment
  1. (1)
    An indictment... must, subject to the provisions hereinafter contained, set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved, and as to the property (if any) in question, as may be necessary to inform the accused person of the nature of the charge.

...

  1. (3)
    It is sufficient to describe an offence in the words of this Code or of the statute defining it...
  1. [208]
    Section 564 requires the charge to address time and place of commission of the offence, the person aggrieved and the property in question.  It does not seem to me that this is an exhaustive statement of the particulars which must be included in a charge under the Justices Act.  Section 46 is concerned with descriptions of persons and things.  Section 564 itself goes beyond those two considerations.  In any event, I see no reason why s. 46 would confine the common law principles as to the requirements of a valid charge.  It is important to note, however, that the section articulates the standard for particulars as being the particulars necessary “to inform the accused person of the nature of the charge”.  Unsurprisingly, the Criminal Code provision reflects the approach in Kirk set out above.  
  2. [209]
    Section 47 is a provision of long standing.[49]  As can be seen, s. 564(3) of the Criminal Code is in similar, form, though it does not include the alternative of stating an offence in “similar words”.  Section 47 and similar provisions do not eliminate the requirement that a valid complaint articulate necessary factual matters.  Rather, the provision specifies that use of the words which create an offence (or similar words) are sufficient to identify the legal nature of an offence charged.[50] 
  3. [210]
    Cases dealing with the legal nature of the offence charged have been concerned generally with the circumstance where the complaint (or indictment as the case may be) has diverged from the words used to create the offence. Venerable examples are given in Kennedy Allen.[51]  A more recent example relied upon by the appellant is Marshall v Averay [2006] QDC 356.  That case also involved a situation where the complaint failed to use the words of the offence creating provision. McGill DCJ concluded that the words used in the complaint were not sufficiently similar to the words of the offence creating provision as to attract the operation of s. 47.  
  4. [211]
    The appellant’s case is different from most of those other cases.  Here, the respondent sought to use the words of the offence creating provision.  Rather, the appellant’s complaint is that the description of the offence by the respondent in the complaints does not include all of the words which, on the proper construction of the SPA, comprise the description of the offence created by s. 578.  The appellant’s contention is that “the description of the offence in the words of the Act creating the offence” include:
    1. (a)
      The words in s. 578(1) (which do appear in the SPA charges); 
    2. (b)
      All of the words of the Regulations identifying the assessable development and exclusions from it in Schedule 24 Parts 1 and 2; and
    3. (c)
      The words in s. 578(2)(b).  
  5. [212]
    This submission raises the question of how the expression “words of the Act … creating the offence” are to be applied to the offence contained in s. 578 SPA.  Some light is cast on this issue by McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (No. 2) (2002) 54 NSWLR 39.  In that case the Court was considering the validity of a summons in the following form, relevantly:

On or about [date] at [place] [the appellant] committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute water contrary to s. 16(1) of the Clean Waters Act 1970.

  1. [213]
    The appellant contended that the summons failed to articulate the nature of the offence charged because it failed to articulate in the charge the act of polluting by the appellant.  It was not in dispute that the summons omitted to do so.  It was relevant whether the omission went to the identification of the legal nature of the offence or just to the essential factual ingredients because, in the circumstances of that case, an omission going to the legal nature of the offence could not be saved by the saving provisions.  
  2. [214]
    The Court of Criminal Appeal concluded that the omission was not one which went to the articulation of the legal nature of the offence.  It held:

"A person shall not pollute any waters”. 

Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the Environmental Offences and Penalties Act 1989

  1. [11]
    The charge in the summons alleged that the appellant “did pollute waters contrary to s 16(1)”. Particulars of the place and kind of pollution alleged were provided in the summons. Accordingly, the question in this appeal is whether the omission of an allegation detailing the act of polluting said to have caused the pollution renders the charge fatally defective so as to preclude the curative effect of s 43.
  2. [12]
    The answer to that question depends, in turn, on whether the act of polluting is a legal element of the offence or merely an essential factual ingredient thereof. That is because a charge that omits a legal element of the offence is incurable, whereas, by reason of s 43, a charge that lacks an essential factual ingredient of the offence may still be maintained.
  3. [13]
    The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed. But putting the difference in this way does not necessarily help in the differentiation process.
  4. [14]
    I think it helpful to note that the purpose of the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. If the charge does not allege an offence known to the law, the court has no jurisdiction and the charge must be struck out.
  5. [15]
    The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet: Stanton v Abernathy (1990) 19 NSWLR 656. Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients.
  6. [16]
    This case concerns a statutory offence. The elements of a statutory offence must be discerned from the relevant statutory provisions. In the present instance, these are ss 16(1) and (7a) of the Clean Waters Act. Section 16(1) provides:
  7. [17]
    Significantly, the term “pollute", in relation to waters, is defined by the Clean Waters Act (s 5). The definition contains three paragraphs, each of which provides for a different meaning of pollute. Paragraph (a) provides, generally, that pollute means to introduce into waters any matter so that “the physical, chemical or biological condition of the waters is changed”. Paragraph (b) contains a complex definition that broadens the meaning of pollute so that it means (in summary form) to introduce into waters matter which alone or together with other matter makes or is likely to make the waters unclean, etc, detrimental to health of persons, undrinkable to farm animals or is likely to interfere with the enjoyment of rights. Paragraph (c) provides that pollute means to introduce into waters any matter that is of a prescribed nature, description or class that does not comply with a prescribed standard. The latter, in effect, is a deemed polluting.
  8. [18]
    It follows that there are several ways in which a person may pollute waters, namely, the ways defined in the statutory definition of “pollute”. That being so, it seems to me, by the language of the statute, the relevant legal element of the offence is the act of “polluting”, as defined, of waters. The particular way in which the defendant is alleged to have polluted the waters concerned will constitute the essential factual ingredients of the charge.
  9. [19]
    In Brownlie v State Pollution Control Commission (1992)  27 NSWLR 78 Gleeson CJ said at 83 that an offence of contravening s 16(1) requires the prosecution to prove that the defendant performed some act which resulted in waters being polluted (see also Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82). This, I think, is on the basis that the prosecution relies on “pollute” as defined in either one of paras (a) or (b). The need to prove these matters stems from the statutory definition of “pollute“. The existence of the need, however, does not convert these matters into legal elements of the offence. In my view, they are and remain essential factual ingredients of the legal element of “pollute” in the offence of contravening s 16(1).
  10. [20]
    Accordingly, in my view, the elements of the offence are:
    1. (a)
      a polluting; 
    2. (b)
      by a person;
    3. (c)
      of any waters.
  11. [21]
    The charge alleges these three elements. Therefore, the language of the charge, on its face, describes an offence known to the law, namely, a contravention of s 16(1). The court is thereby vested with jurisdiction to hear the prosecution of that offence.

[Underlining added]

  1. [215]
    This case is of considerable assistance. The propositions I derive from it are:
    1. (a)
      The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out and the essential factual ingredients concern the time, place and manner in which the offence was committed;
    2. (b)
      The purpose of the rule that requires the legal elements to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge;
    3. (c)
      The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet;
    4. (d)
      Consequently, legal elements are usually static, while factual elements vary from case to case; and
    5. (e)
      Where there are several ways in which a person may commit an act or omission contained in an offence creating provision, it is likely that the act or omission is properly characterised as a legal element, but the manner in which the act or omission occurs is a factual element.

Ground 1A: Complaints 2 and 4 identify an offence known to the law

 

The legal elements 

  1. [216]
    The appellant’s submissions had a tendency on occasion to elide the distinction between legal and factual elements.  However, I intend to address the issues separately, starting with the legal element issues.  
  2. [217]
    The offence seemingly created by s. 578(1) is amenable to a similar simple statement of the elements of the offence as that articulated in paragraph 20 of the quote from McConnell Dowell above.  The elements could be articulated as follows:
    1. (a)
      A person;
    2. (b)
      Must not carry out;
    3. (c)
      Assessable development;
    4. (d)
      Unless there is an effective development permit for the development.
  3. [218]
    The SPA charges contain each of these elements (though they also include many other matters).  The respondent contends that this is all that is required for a valid charge of the offence contemplated by s. 578(1).  
  4. [219]
    There is a beguiling simplicity to this submission.  The appellant contends, however, that the legal elements of the offence go well beyond these four elements and that the balance of the charges do not address the deficiency.  Two matters are relied upon.

The exceptions in Schedule 24 Parts 1 and 2

  1. [220]
    The appellant contends that valid articulation of a charge under s. 578 required the charge to set out each item in Schedule 24 Parts 1 and 2 individually in the charge and expressly to state that the clearing of native vegetation identified in the charge was not within that item.  That was said to be necessary to identify the legal elements of the offence.  
  2. [221]
    There are some preliminary observations to be made about this.  
  3. [222]
    First, it is to be recalled that Schedule 24 Parts 1 and 2 contain the exceptions to the form of assessable development identified in Item 1 Table 4 in Schedule 3 to the Regulations (Item 1).  Table 4 relevantly identifies as assessable development operational work that is the clearing of native vegetation on freehold, indigenous or Land Act land.  (That kind of operational work is just one of 11 items in Schedule 3 Part 1 Table 4.) That multifaceted description of the operational work covered in Item 1 is itself subject to three exceptions: clearing which is on premises to which structure plan arrangements apply, along with clearing covered by Schedule 24 Parts 1 and 2.  So it is only if the offence in question is committed by operational work of the kind identified in Item 1 (clearing native vegetation on one of the identified tenures) that the exceptions in Schedule 24 Parts 1 and 2 are relevant to the offence under s. 578 at all.
  4. [223]
    Second, it can be inferred that the appellant does not complain about a failure in the charges to articulate the operational work said to comprise the assessable development in question because the charges do identify it.  Each SPA charge recites the terms of Item 1 and then avers that the development consisted of clearing of native vegetation on the land comprising Chess Park.  
  5. [224]
    Third, if the appellant is correct in its contention that each item in Schedule 24 Parts 1 and 2 must be expressly articulated and excluded in the charge, this means that the “description of the offence in the words of the Act” will be a very, very long description.  There are 37 individual items in Schedule 24 Parts 1 and 2, each of which would have to be referred to in describing the offence.[52] That unwieldy result seems unlikely to have been Parliament’s intention for description of an offence.
  6. [225]
    Having made those observations, I now turn to the appellant’s contention.  The appellant’s contention is shown to be incorrect by McConnell Dowell.  As stated in that case:[53]

The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet...Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients.

[Underlining added]

  1. [226]
    The underlined statement provides the answer to the appellant’s argument that the items in Schedule 24 Parts 1 and 2 are legal elements of the offence created by s. 578.  
  2. [227]
    There are numerous ways that “assessable development” within the meaning of that expression in s. 578(1) can occur: the acts identified in Item 1 are just one of numerous alternative forms of assessable development contemplated by the SPA.  It is to be recalled that there are at least 10 other Items of operational works in Table 4, without considering the other forms of assessable development dealt with in the Regulations.  Thus, the identification of assessable development the subject of the particular charge as being Item 1 operational work is an example of one of the different sets of factual ingredients which can give rise to proof of the offence.  It is the same circumstance as that applying to the word “pollute” in the statute considered by the Court in McConnell Dowell.  Item 1 is in the nature of a (variable) factual ingredient not a constant legal element.  A fortiori for the exceptions in Item 1 contained in Schedule 24 Parts 1 and 2, which are relevant only as exceptions to the form of assessable development identified in Item 1.
  3. [228]
    The appellant relied on DPP v United Telecasters Sydney Ltd (1989-1990) 168 CLR 594 in support of its contention.[54]  In my respectful view, that case was of little assistance on the question of the legal elements of an offence under s. 578.  United Telecasters was concerned with where the onus lay in respect of an exclusion from the scope of the offence creating provision, not what was necessary for the valid articulation of that offence.  The latter matter did not arise in that case and was not considered.[55]  In any event, nothing in United Telecasters provides an answer to the difficulty for the appellant’s contention identified in the previous paragraph.

Section 578(2)(b)

  1. [229]
    The appellant expressly accepted that s. 578(2)(a) did not identify legal elements of

the offence.  The basis of that concession appears to have been that the provisions in Subdivision 2 are all headed “exemption”.[56]  

  1. [230]
    However, he contended that the “description of [the] offence in the words of the Act” did include the words in 578(2)(b), and that the charges were invalid for failing expressly to allege that the development was not development under s. 342(3) SPA.  None of the SPA charges contained such an averment.  Consequently, if the appellant is correct in this contention, all of the convictions under the SPA were in respect of charges not known to the law and must be set aside.
  2. [231]
    The identification of the legal elements of a statutory offence involves a question of construction of the particular statute.  Written submissions by the appellant on the particular question of construction were hard to identify, beyond reference to statutory provisions relevant to s. 342(3).[57]  
  3. [232]
    As I understood it, the oral argument focused primarily on the question of onus.[58]  The underlying assumption appeared to be that if the onus lay on the prosecution to negative the matter in 578(2)(b), then that matter was an element of the offence and had to be expressly excluded in the charge.  I am not certain that that assumption is correct.  While the question of onus and the question of identification of the legal elements of an offence will be related, they seem to me to be distinct.  And the criminal law is familiar with those being distinct questions, the most obvious example being that the prosecution bears the onus of excluding defences under the Criminal Code, though such defences are plainly not part of the offences to which they can apply.  Each case will depend on the statutory context and the terms of the particular offence creating provision.  However, even if the appellant’s assumption is adopted, it does not assist the appellant because I do not think that on the proper construction of the sections the onus to exclude s. 578(2)(b) lies on the complainant.
  4. [233]
    The appellant relied on Vines v Djordjevitch (1955) 91 CLR 512.  Again, this case was not concerned with identification of the legal elements of an offence.  Rather, it was concerned with identification of where the onus of proof lay in respect of a proviso included in the statement of a statutory cause of action against the nominal defendant.  The High Court construed the proviso as comprising a condition precedent to the statutory cause of action, and that the onus in respect of the proviso lay on the plaintiff.  
  5. [234]
    The High Court dealt with that question at 518–519 as follows:

The first question which arises in considering the correctness of this conclusion is whether the burden of proving facts amounting to a compliance with the proviso rests upon a plaintiff in an action brought under s. 47(1) against a nominal defendant.  

It is said that the form of the sub-section places the burden of disproof on the defendant. For the requirement of prompt notice after the injured party becomes aware of the impossibility of identifying the car inflicting the injuries is expressed in the form of a proviso. “There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not” - per Abbott J. in Steel v. Smith (1817) 1 B & Ald 94, at p 99 (106 ER 35, at p 37). The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter...

[Underlining added]

  1. [235]
    The appellant relied on the first underlined passage (or parts of it) as articulating a general principle applicable to the identification of the elements of an offence in a statute.  I do not accept that that is strictly correct.  Despite the general terms in which the Court spoke, it was concerned with a civil claim created by statute, not a criminal offence.  However, it can be accepted that the question of whether an exception, proviso or condition is one of the elements of an offence is a question of construction of the particular statute, as was made clear in MacDonnell Dow above and Phillips v Spencer (considered below).  It can also be accepted that the observations of the High Court can provide assistance in that process of construction in this case.  
  2. [236]
    The appellant relied on Vines as supporting its construction of s. 578 in this way:

MR ALLAN: ...But the significant part of this passage which the appellants rely on, we say, applies directly to section 342, subsection (3), and also in respect of the submissions we've made yesterday in respect of the elements of the offence – the legal elements of the offence in respect of schedule 24, part 1 and 2, yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision.

So in the case of the definition of “assessable development", what facts do you, your Honour, have to find in order to be satisfied of the complete factual situation to make out the offence? On the appellant's case, those facts, whether they be categorised as legal elements or as factual elements, must include whether or not the clearing activity was not one of the activities in schedule 24, part 1 and 2. And we say that the application of this principle, on a proper construction of section 578(1), applies with equal force to – although they are words of negative connotation, does not apply to the development carried out under 342(3). By application of that general statement of principle by the High Court - - - that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right – that's not our situation – or incurs a liability under the provision, and we say that is our situation. And in that context we can readily distinguish applying that statement of general principle, the provision under consideration in Phillips v Spencer, which I'd like to take your Honour to now, if I may.[59]

  1. [237]
    It is instructive to look at how the Court resolved the question of construction before it in Vines.  The Court focused on the guiding principle articulated in the second underlined passage above and observed:

But the operative words express a negative co-extensive with the affirmative imposition of liability in the main provision. In terms the proviso makes it incumbent upon everybody claiming under the main provision to give the notice and to do so as soon as possible after knowledge of the impossibility of establishing the identity of the car responsible for his injury. It is expressed as a statement of a further requirement to be fulfilled by all before the main provision can be availed of.[60]

  1. [238]
    In my view, this approach supports the conclusion that s. 578(2)(b) is not an element of the offence.  Consideration of the statutory context demonstrates that it is not a general pre-condition to all persons who might breach s. 578(1), but rather “denies the... liability in a particular case by reason of additional or special facts”, those fact being that the development is work which is being carried out after the expiry of the term of an otherwise effective development permit by use of security paid as a condition of the approval: see 346(1)(f) SPA.
  2. [239]
    It is convenient at this point to deal with Phillips v Spencer [2006] 2 Qd R 47.  That case dealt with conviction of the applicant on his own plea under a provision creating criminal liability for him as a director of Nino Pty Ltd.  The company in turn pleaded guilty to an offence under s. 88(1) Nature Conservation Act.  Section 88 relevantly provided:
  1. (1)
    Subject to section 93, a person, other than an authorised person, must not take, use or keep a protected animal, other than under –
  1. (a)
    a conservation plan applicable to the animal; or
  2. (b)
    a licence, permit or other authority issued or given under a regulation; or
  3. (c)
    an exemption under a regulation.

Maximum penalty – 3,000 penalty units or 2 years imprisonment

  1. (2)
    Subsection (1) does not apply to the taking of protected animals in a protected area.
  2. (3)
    It is a defence to a charge of taking a protected animal in contravention of subsection (1) to prove that – 
  1. the taking happened in the course of a lawful activity that was not directed towards the taking; and
  2. the taking could not have been reasonably avoided.
  1. (4)
    Subsection (3) does not allow a person to use or keep the animal.
  2. (5)
    In this section - “authorised person” means a person as follows performing functions under this Act in relation to the protected animal –
  1. the chief executive;
  2. a conservation officer, public service officer or other employee of the department acting under the chief executive’s authority.
  1. [240]
    The offences were indictable offences dealt with summarily.  The issue which relevantly arose was whether the charge had identified an offence known to the law in circumstances where the charge did not aver in terms of s. 88(2) that the taking of animals had not occurred in a protected area.  The applicant contended that in failing expressly to so aver, the company had pleaded guilty to an offence not known to the law because the matter in s. 88(2) was part of the statement of the offence.  
  2. [241]
    de Jersey CJ, with whom McMurdo P agreed, held that the exclusion in s. 88(2) was not part of the statement of the offence.  His Honour held:
  1. [16]
    Taking in a protected area is dealt with by s. 62. The short question is whether the circumstance that the taking has not occurred in a protected area is part of the statement of the offence.
  2. [17]
    The form of s. 88(1) suggests it is not. The subsection is presented as a comprehensive statement of the elements of the offence, extending to specifying the maximum penalty. Section 47 of the Justices Act provides

“the description of any offence in the words of the Act … shall be sufficient in law”.

  1. [18]
    Section 88(2) specifies a situation in which the offence set out by s. 88(1) could not occur. It is up to the complainant, or the prosecuting authority, to select the applicable provision – s. 88 or s. 62. If the charge is brought under s. 88, then once the place where the alleged offence occurred had been established, the court could as a matter of law be satisfied of the applicability of s. 88 by taking judicial notice of regulations establishing protected areas (cf. Nature Conservation Act, s. 14, s. 29). Determining elements of offences in cases like this is rarely crystal clear, as the myriad cases on exclusions and provisos illustrate, but it is the form of s. 88(1), an acknowledgment of the ease with which the legislature could have included the subject matter of (2) in (1) had it been intended that constitute an element of the offence in the formal sense, and the role of s. 88(2) as explained above, which persuade me that s. 88(2) was not intended to establish an element of the offence for which s. 88(1) otherwise provides.
  1. [242]
    His Honour reached this conclusion in the context where he identified that the scheme of the statute was to create two offences: one under s. 62 (where the taking occurred in a protected area) and the other under s. 88(1) (where the taking occurred outside a protected area). 
  2. [243]
    Jerrard JA reached the contrary conclusion.  It is worth noting that his Honour placed emphasis on the following:[61]
    1. (a)
      The distinction between ss. 88(2) and 88(3), the latter cast in the form of a defence, suggested that s. 88(2) was part of the offence;
    2. (b)
      The consideration that the complainant will be an officer of the relevant State Department and will likely know which offence provision applies.
  3. [244]
    The respondent contended that the analogy in the language of s. 578(2)(b) and s. 88(2) Nature Conservation Act and in the statutory context of the two provisions meant that it was appropriate to adopt the same approach as in Phillips v Spencer.  The appellant pointed out, correctly, that the reasoning in Phillips was not entirely applicable to s. 578 because the interaction between ss. 88 and 62 was not replicated in this case.
  4. [245]
    However, there are aspects of de Jersey CJ’s reasoning which do apply to s. 578(1):
    1. (a)
      Like s. 88(1), s. 578(1) is presented in my view as a “comprehensive statement of the elements of the offence, extending to specifying the maximum penalty”; and
    2. (b)
      Like s. 88(2), the terms of s. 578(2)(b) could have easily been included in the statement of the offence if Parliament intended it to be an element of the offence. 
  5. [246]
    There is also an aspect of Jerrard JA’s reasoning which, in my view, favours the position of the respondent.  His Honour considered it important that the statute contemplated the choice between ss. 88 and 62 being made by a complainant who, by reason of his or her role in the relevant State department, would be better placed than a defendant to judge where an offence occurred.  The opposite is likely to be the case in respect of s. 578.  
  6. [247]
    The SPA offence involves development being carried out by a person without a permit.  A person doing so in the very specific circumstances provided for in s. 342(3) (i.e. pursuant to authority conferred by a valid but lapsed development approval using funds paid as security) seems likely to be aware of that fact because such person will be acting under the permit.  That person is likely therefore to be aware of its terms, whether it has expired and, if so, whether s. 342 nonetheless permits work to be done.  It is a very specific situation.  The same cannot be said for the likely complainant in respect of offences under s. 578(1).  While the range of complainants could be very wide indeed given the range of conduct caught by the offence, it is likely in my view that such complainants would often be persons who are not as well placed as the prima facie offender under s. 578(1) to know if s. 342(3) applies.  In many cases (as in this case) therefore, a potential complainant is far less likely to be aware of whether that section applies than the potential defendant.  While that is not of itself a factor which compels the conclusion that s. 578(2)(b) was not intended by Parliament to be part of the statement of the offence, it certainly is consistent with that conclusion. 
  7. [248]
    The respondent advances a further proposition of construction.  He points out that s. 578(1) applies where there is no effective development permit and that s. 342(3) assumes a valid but expired development approval.  The respondent then submits that:[62]

It is apparent from the terms of the SPA that section 578 cannot apply because it, in terms, creates an offence predicted on the absence of an effective development permit.  Section 342(3), however, is directed to the circumstance that there is a development permit in place, but development provided for in the permit does not meet a timing condition of that permit.

  1. [249]
    I do not accept that this point assists the respondent’s construction.  It turns on the assumption that a development approval which has expired remains an “effective development permit”.  That is an inherently improbable construction of s. 578(1) and, if correct, would appear to have made s. 578(2)(b) otiose.  
  2. [250]
    On the other hand, however, it seems to me that the form of the words in s. 578(2)(b)  do lend themselves to a similar conclusion. The subsection provides that s. 578(1) “does not apply” to development under s. 342(3).  That language is consistent with the conclusion that development under s. 342(3) is entirely outside the scope of the offence creating provision, rather than being a part of the statement of the offence.
  3. [251]
    I reject the appellant’s contention that s. 578(2)(b) comprises part of the statement of the offence created by s. 578.

Conclusion on legal elements

  1. [252]
    The form of the SPA charges in Complaints 2 and 4 identified an offence known to the law.

The necessary factual ingredients

The appellant’s contentions

  1. [253]
    The appellant contended that the complaints in relation to the SPA charges were invalid because proper articulation of the factual elements of a charge under s. 578:
    1. (a)
      First, required that each of the items in Schedule 24 Parts 1 and 2 be expressly negatived and that the First Blanket Averment failed adequately to meet that requirement;
    2. (b)
      Second, required that each of the matters incorporated by s. 578(2)(a) SPA be expressly negatived and that the Second Blanket Averment failed adequately to meet that requirement; and.
    3. (c)
      Third, required that the matter in s. 342(3) be expressly negatived and the charges failed to do so in any form.
  2. [254]
    I found some difficulty in concisely identifying the appellant’s argument as to why those matters had expressly to be pleaded.[63]  As I apprehended it, the appellant contended that proper articulation required express pleading of those matters because: 
    1. (a)
      Each of those matters formed part of the path the prosecution had to take to establish the offence; and
    2. (b)
      The use of blanket averrals was insufficient to notify the appellant of how he committed the offence.
  3. [255]
    As to the former matter, the appellant contended that the onus lay on the prosecution to establish that the clearing alleged was not within one of the exceptions in Schedule 24 and not within the scope of s. 342(3).  Accordingly, (as I understood the argument) because the prosecution was required to prove those exemptions did not apply to make good the commission of the offence, the prosecution was required expressly to plead in the complaint that each of those matters was excluded and failure to do so meant that the case to be advanced by the prosecution was not disclosed in the complaint.[64]  
  4. [256]
    This contention could not assist in respect of s. 578(2)(a) because the appellant conceded that he had the onus of establishing those matters.  The argument on that subsection appeared to be that, in the absence of proper pleading of those matters under s. 76 Justices Act,  they remained essential factual matters to be articulated in the complaint.[65]
  1. [257]
    As to the latter matter, the appellant contended that the blanket averments were ineffective to articulate the factual matters required to be pleaded (on its case) because they comprised allegations of law or allegations of mixed law and fact.  The appellant relied on Macarone v McKone [1986] 1 Qd R 284.  
  2. [258]
    Further, the appellant rejected the suggestion that s. 76 Justices Act assisted the prosecution in respect of the onus in relation to Schedule 24 matters because that section did not apply where the onus of proof in respect of a matter was on the prosecution as a matter of law.  The appellant relied on Marshall v Averay.[66]  

The respondent’s contentions

  1. [259]
    The respondent submitted that there is a distinction between what is required for factual ingredients necessary to articulate a valid charge and the particulars to which a defendant might be entitled.  He submitted that cases such as Johnson, GPI and indeed Kirk itself, involved circumstances where there was inadequate particularisation of the charge such that the charge in the form which went to trial was inadequate.  He submitted that the cases demonstrate that sufficiency of pleading of factual ingredients turns on the context of the particular case and the course of the proceedings.
  2. [260]
    The respondent therefore rejected the gravamen of the appellant’s core argument that pleading of factual ingredients required the prosecution to plead every matter upon which it has the onus of proof.  
  3. [261]
    The respondent pointed out that the charges did in each case adequately identify the factual ingredients of the charge.  It identified in each case, relevantly: 
    1. (a)
      That the assessable development in question was operational works comprising clearing of remnant native vegetation on certain tenures in certain areas and at certain times;
    2. (b)
      That the clearing was undertaken by Mr Baker; and
    3. (c)
      That the clearing was not for any purpose in Schedule 24 or excluded by the s. 578(2)(a) exemptions.
  1. [262]
    The respondent noted (correctly) that at no stage in the trial was any complaint made by the appellant as to the adequacy of this articulation of the manner in which the offence was committed.  This was said to be strongly indicative, in a practical sense, that the factual nature of the case to be advanced was sufficiently identified to meet the requirements of communicating to the defendant how the offence was committed and what case he had to meet.
  2. [263]
    As to the blanket averments, Mr Hunter submitted that they were effective to communicate the respondent’s case, being that none of the exceptions and exclusions referred to applied in this case.  He asked, rhetorically, how would the extensive pleading called for by the appellant have improved the appellant’s knowledge of the case to be advanced?  Whether articulated in a blanket averment or item by item, it is plain what the respondent’s case would be at trial: none of the exceptions applied.
  1. [264]
    The respondent’s contentions made the question of onus of proof as a criterion for the form of pleading largely irrelevant to the circumstances of this particular case.  Mr Hunter did not need to rely on the blanket averments and s. 76 Justices Act to sustain the validity of the charges.  However, he did not accept that s. 76 only applied to cases where the onus of proof in relation to a matter was on the defendant.
  2. [265]
    As to s. 342(3), Mr Hunter submitted that even if the onus lay on the prosecution in relation to excluding that matter, it was not necessary for a valid charge expressly to allege that that section did not apply for the charge to allege the necessary factual ingredients.  He submitted, consistent with the approach described so far, that it was plain from the factual case identified in the charge, that the prosecution’s position was that that section was inapplicable because no charge could be laid if it did apply.

Analysis

  1. [266]
    In my view, it is not the law that a complaint fails to sufficiently articulate the factual ingredients of a charge if it fails specifically to allege each and every matter which the prosecution has to prove (or exclude) to establish the commission of the offence.     No such inflexible principle is stated in any of the cases to which the parties referred.  Rather, the question of whether a complaint is valid in this respect depends on a practical assessment in the particular circumstances of whether the complaint sufficiently identifies how the offence has been committed to permit the defendant to understand the substance of the case against him or her.  
  2. [267]
    A convenient starting point in the authorities is Johnson v Miller (1937) 59 CLR 467.  In that case, a publican was charged with breaching a statutory prohibition directed at regulating Sunday trading hours.  The particular provision  made it an offence by a licensee if any person was seen coming out of the premises other than during certain hours on a Sunday unless the licensee proved that the person’s presence on the premises was explained by various exculpatory provisions.  
  3. [268]
    The form of the charge was initially that certain persons had been seen leaving the premises during the proscribed periods. The complainant Miller initially gave particulars of some 30 persons who had been identified as leaving the premises in the relevant time periods.  At trial Miller amended the complaint to allege that “a certain person” was seen coming out of the premises.  The defendant sought particulars to show which of the 30 men previously identified was the subject of the complaint.  Miller refused to give further particulars despite the Magistrate calling upon Miller to do so.  Miller maintained it was permissible to lead evidence of all 30 instances to make good the single instance pleaded in the charge,
  4. [269]
    Statutory context must be kept in mind when considering all cases relating to validity of complaints.  In Johnson v Miller, s. 181 of the then current Justices Act 1921 (SA) required that a complaint give “the defendant a reasonably clear and intelligible statement of the offence...”  Under s. 182 of the relevant Act, no objection was to be taken to any defect in substance or form of a complaint but the Magistrate had power to dismiss the complaint, relevantly, if it appeared to the Magistrate that the defendant was prejudiced by the defect or the complaint failed to disclose any offence. The Magistrate dismissed the complaint under s. 182. That judgment was upheld in the SA Supreme Court and the Full Court.
  5. [270]
    The High Court by majority (Latham CJ dissenting) concluded that the complaint was properly dismissed.  Various issues are dealt with in the judgment.  Of interest is the approach of the majority to the character of the defect in the complaint.
  6. [271]
    Dixon J observed relevantly as follows (at 486 and 490 respectively):

In stating the offence, the complaint described it in the words of sec. 209 (1) of the

Licensing Act without specifying or negativing the excuses, and the Justices Act 1921-1936 (secs. 55 and 56) provides expressly that such a description shall be sufficient in law. But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions (Smith v. Moody). The complaint did in fact state the day, the place and the circumstances of the offence, and, until it appeared that according to the complainant during the time particularised many persons were seen coming from the licensed premises, the sufficiency of the complaint would be taken for granted. But, if the complainant were to prove that many persons unknown issued from the hotel during the period given in the particulars on the day, at the place and in the circumstances mentioned in the complaint, it is evident that it would become quite uncertain which of them was the person unknown to whom the complaint referred. In other words, the facts or the alleged facts disclosed a latent ambiguity in the complaint...

By doing so he necessarily raised the question, What is the consequence of a complainant's declining to indicate which of a plurality of transactions covered by the complaint is that upon which the charge is based or upon which he relies to make out the charge? If in the absence of such an indication, whether it is expressed in an amendment, in particulars, or by election, the actual application of the complaint to the known or the alleged circumstances is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and distinguish it from other like occasions, transactions or occurrences indifferently answering the description contained in the complaint, then I think there is a defect in the complaint within the meaning of sec. 182. Although on its face the complaint may have appeared sufficient, yet when applied to the facts it is found to contain a latent ambiguity, and this, in my opinion, is a defect in particularity.  

  1. [272]
    Evatt and McTiernan JJ gave separate reasons though reached the same conclusion. Evatt J relevantly observed (at page 495):

It may be that the prosecutor has been placed in some difficulty because he could only prove the fact that thirty persons emerged from the licensed premises during the course of the two hours here in question, so that, if, in advance of the evidence, the prosecutor selected one person only, his case might break down so soon as convincing matter of exculpation was proved by the defendant in relation to the particular person selected. It is for this reason that the apparent recalcitrance of the prosecutor in declining to provide better particulars is readily explained. Probably he was not in a position to be reasonably sure that the single instance he might select would not be satisfactorily accounted for by the defendant. The prosecutor wished (the Crown Solicitor's letter makes this clear) to place the defendant in the position of having to exculpate himself in reference to thirty separate charges, so that, at the end of all, the prosecutor could “elect” or “select” the charge where the defendant's answer had turned out to be the weakest.

In my opinion, the course of action proposed by the prosecutor is contrary to recognised principles of law, and, so long as a defendant insists from the outset on being informed of the specific offence with which he is charged, so transparent a device will be defeated. In substance, the prosecutor was trying to convert the court exercising a strictly judicial function—that of determining guilt or innocence of a single offence—into an administrative commission of inquiry into the question whether, in respect of the Sunday morning mentioned, when there were thirty possible occasions when an offence might have been committed, the defendant could exculpate himself in respect of all thirty occasions. The prosecutor planned that, after the court had acted as such commission of general inquiry, it would resume its normal function, the prosecutor would graciously “elect,” i.e., “select,” his strongest case, and obtain a conviction.

In my opinion, the learned magistrate perceived the object of the manœuvre, and was justified in frustrating it. His action was justified in law upon two independent grounds.

In the first place, I consider that, in the circumstances, the complaint, as amended, although it related to one offence, did not give the defendant “a reasonably clear and intelligible statement of the offence or matter with which he is charged.” This extract from sec. 181 of the Justices Act occurs in a provision which in form defines what is a sufficient, not an insufficient, complaint. None the less, the positive statement in sec. 181 carries with it the negative proposition that a complaint which does not give the defendant information of the defined character may be treated as defective; in which case it becomes the duty of the court, pursuant to sec. 183, to cause the complaint to be amended. Further, I think that, when an amendment is rendered impossible because a prosecutor, after full consideration, refuses to give sufficient particulars, by which the complaint, when amended, will “give the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged,” prejudice to the defendant has arisen from the defective complaint and the court is authorized to dismiss the complaint pursuant to the proviso to sec. 182.

[Underlining added]

  1. [273]
    McTiernan J observed (at 501):

Although the complaint itself disclosed one offence only, the result is that the letter could not but put the appellant in doubt as to the person whose egress from the premises was being charged as the incriminating matter which the appellant would be bound to explain in order to exculpate himself. The letter read as a whole informed the appellant that such person is any one of a number of people to whom the description, “a person whose name is unknown to the police,” would apply and who were seen leaving the premises during the period mentioned in the new particulars. When read with the letter the complaint cannot be understood as referring to one particular person, but to any one of a number of persons. For this reason it fails to comply with the standard imposed by the well-established rule of practice in criminal proceedings now embodied in sec. 181 of the Justices act, which requires that fair information and reasonable particularity as to the nature of the offence charged must be given to the defendant (See Smith v. Moody).  

  1. [274]
    As can be seen, the analysis of the High Court focused on whether the complaint failed to give the defendant reasonable particularity as to the nature of the offence charged by reference to the specific circumstances of the case and in the context of a challenge by the defendant to the adequacy of the charge made by reference to those circumstances.  The case provides no support for the approach articulated by the appellant.  
  2. [275]
    The appellant’s written submissions place reliance on the underlined passage in the extract from Evatt J’s judgment.[67]  This reliance is misplaced.  Evatt J’s observation is relevant because of the specific circumstances identified by the defendant in that case which gave rise to the unfairness of the course which the complainant sought to take.  Like all the other cases to be considered, it was this identification of inadequacy in articulation of the manner of commission of the offence, in the context of the particular prosecution, which supported the conclusion of the High Court that the complaint was defective as to factual articulation.
  3. [276]
    The appellant’s submissions do not identify any concrete omission or ambiguity, latent or patent, in the articulation of the manner of commission of the offences under s. 578 which in a concrete and practical manner actually prejudiced his ability to understand the case advanced against him or to meet that case.  As Mr Hunter submitted, there was no complaint of that kind advanced at trial, despite the appellant being represented by counsel (with experience in the area of land clearing litigation) over the course of the trial.  That remains the position even now.  The appellant’s complaint about the factual articulation of the offence is theoretical.  In the absence of some concrete objection at trial, it is hard to see how it can properly be concluded that the complaint was invalid on this basis. A fortiori where even on appeal, no specific matter of actual ambiguity or prejudice is raised.
  4. [277]
    The next case to consider is John L Proprietary Limited v The Attorney-General for NSW (1987) 163 CLR 508.  In that case, a Mr Clayton laid an information against the appellant John L alleging an offence against s. 32(1) Consumer Protection Act.  The gravamen of the offence was publishing a statement intended to promote the supply of goods which was, to the knowledge of the publisher false or misleading, in a material particular.  The complaint referred to an advertisement offering 1000 litres of free fuel to persons who bought a car over $3000 on a certain weekend. The complaint failed to identify the material particular which was false or misleading.
  5. [278]
    In dealing with whether that failure made the complaint defective, the majority made the following frequently quoted observations (at 519-520):

The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: “an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence” (Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153, at p 166). The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 11 & 12 Vict. c.43, ss.1 and 3 and the Summary Jurisdiction Act 1879 42 & 43 Vict. c.49, s.39) was substantially adopted in New South Wales (see the discussion in Ex parte Lovell; Re Buckley, at pp 167-174 and, in particular, Justices Act 1902 (N.S.W.), ss.65 and 145A). One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence (see, e.g., Smith v. Moody (1903) 1 KB 56, at p 60; Johnson v. Miller [1937] HCA 77; (1937) 59 CLR 467, at pp 486-487, 501; Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270, at p 280). It is, however, unnecessary to pursue that particular question here since, putting to one side s.6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J. was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence. 

In De Romanis v. Sibraa (1977) 2 NSWLR 264, at p 291, Mahoney J.A. correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. 

  1. [279]
    Importantly, the majority went on to analyse the specific defect alleged by the appellant in the articulation of the charge.  Their Honours observed:[68]

As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the “material particular” in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental. The impugned statement was the expression of a present intention to engage in future conduct, namely, to give 1000 litres of free petrol to customers “buying a car over $3,000.00” during the coming week-end. It would appear from the transcript of submissions made in the Court of Criminal Appeal that the informant relied upon the failure of the appellant to give some or all of those customers the promised free petrol. But those facts, even had they been included in the information, would not have indicated whether the statement was alleged to be false or misleading because at the relevant time the appellant lacked the intention to carry out its promise or for some other reason. The relevant time was, as the information recognized, the time at which the statement was made. At the most those facts would, in the absence of explanation of them, amount to evidence of lack of intention. But any number of supervening events could have frustrated the performance of a promise genuinely made. Whether it was the absence of intention or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence. In other words, the information failed to specify the “manner of the (appellant's) acts or omissions” (cf. per Dixon J., Johnson v. Miller, at p 486) or to provide “fair information and reasonable particularity as to the nature of the offence charged” (per McTiernan J., ibid., at p 501). In the result, the information was defective and insufficient to found proceedings against the appellant in respect of the alleged offence unless its failure to identify the “material particular” in which the alleged statement was false or misleading was cured or overcome by some applicable statutory provision.

  1. [280]
    Again, the analysis focuses on a specific defect and the substantive consequences of that defect for the ability of the defendant to understand and defend the charge brought against it.  
  2. [281]
    Kirk itself shows a similar approach.  After the statement of principle set out above, the majority observed:[69]

The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged.

The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.

  1. [282]
    Again, the approach of the Court was concerned with difficulties arising from the identified omission.  It was concerned with how a specific omission impacted on the ability of the defendant to understand and respond to the offence charged, in this case with a focus on the ability of the defendant to take advantage of defences which might be available, a matter which also arose in Johnson.
  2. [283]
    The last case to which I will briefly refer is N K Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304.  In that case, the question arose as to whether, as in Kirk, a valid complaint alleging an offence of, in general terms, failing to ensure workplace health and safety had to articulate the act or omission said to comprise the failure to meet the obligation imposed by the statute.  
  3. [284]
    The complexities of the statutory scheme analysed by Holmes JA (as the Chief Justice then was and with whom Fraser JA and Wilson J agreed) do not have to be considered fully here.  It is sufficient to note that the gravamen of the offence was to impose an obligation to ensure the safety of a person’s employees was not affected by conduct of a person’s business.  The statute further provided that the obligation could be discharged if a person’s employees were not exposed to safety risks arising out of the conduct of the business.  It then provided for alternative ways that obligation could be discharged. 
  4. [285]
    A worker was killed while felling timber. He was killed when a tree with rotten roots fell on him.  It was apparent he had just felled a nearby tree when the accident happened.  There was no other evidence as to how the death occurred.  The relevant Act also included a defence where, relevantly, an employer managed exposure to a risk in accordance with a code of practice or if no such code existed, otherwise adopted an appropriate way to prevent the contravention.
  5. [286]
    At the outset of proceedings in the Industrial Magistrates Court, counsel for the applicant sought particulars of the alleged failure to ensure the workplace health and safety of workers, asking to be told “what act or omission it is alleged by the prosecution either has been done or has been omitted to have been done”. The Magistrate, following decisions of the Industrial Court, declined to order the giving of particulars. He accepted the second respondent’s argument that the complaint did not require the identification of any act or omission by the applicant; the breach consisted in the exposure of workers to risk.  The correctness of that argument was the relevant issue in the appeal.  
  6. [287]
    Holmes JA rejected that argument.  Her Honour relevantly concluded that the necessity for particulars arose from the practical necessity for the particulars sought to permit the appellant to take advantage of specific defences. This was particularly so because of the reliance by the prosecution, in final submissions, on certain codes said to be relevant to the management of the particular risks.  Her Honour’s detailed analysis at paragraphs [51] to [59] provides yet another example of how factual sufficiency must be determined by reference to the particular circumstances of the case in question.
  7. [288]
    In this appeal, each of the SPA charges identified the manner in which the offence was committed relevantly: 
    1. (a)
      By identifying that the assessable development in question was operational works comprising clearing of remnant native vegetation on certain tenures in certain areas and at certain times;
    2. (b)
      That the clearing was undertaken by Mr Baker; and
    3. (c)
      That the clearing was not for any purpose in Schedule 24 or excluded by the s. 578(2)(a) exemptions.
  1. [289]
    This pleading of the factual ingredients seems to me prima facie to adequately state the manner of the commission of the offence.  Nothing raised by the appellant leads to a contrary view.
  2. [290]
    Take first the complaint about the lack of pleading of each of the individual items in Parts 1 and 2 of Schedule 24.  How was the lack of pleading of each of those items individually causative of such ambiguity as to the manner of the commission of the offence as to leave the Court and the defendant unable to understand the case against him?  There was certainly no complaint at trial about that matter.  Neither was there any difficulty which I could identify which arose from that matter in the course of the trial.  A review of the conduct of the trial and the submissions made at trial shows in my view that the appellant was able to respond to the case he had to meet.  Even now, on the appeal, the appellant does not identify a substantial difficulty which was encountered by the appellant in the conduct of the trial by the form of the charge. 
  3. [291]
    Further even if further details might have been required in respect of a particular item in Schedule 24 Parts 1 and 2, such details could properly have been provided by the respondent as particulars.  Given that, I agree with the respondent’s submission that pleading out each of the items in Parts 1 and 2 would have made the charge extremely long, but would not have materially added to the understanding of the charge by the appellant.  The charge informed the appellant that none of the exceptions applied.  Listing each one out would not have improved his understanding of the complainant’s position.  If clarification were required on a particular item, it could have been provided as particulars.  The fact that a charge requires further particularisation does not mean that it fails properly to articulate the necessary factual ingredients of an offence, particularly where the purpose of the particular is to refine an allegation already present in the charge.[70]
  4. [292]
    This reasoning applies equally to the pleading of s. 578(2)(a).  However, the adequacy of pleading of the exemptions called up by s. 578(2)(a) seems a moot point given the appellant’s concession that he bore the onus at trial on these matters.  If the onus of proof lay on the appellant in respect of those matters, I cannot see why it was necessary to a valid complaint that the complainant expressly negative the exceptions incorporated by that subsection.  
  5. [293]
    That leaves the question of s. 342(3), which it will be recalled was made relevant by s. 578(2)(b).  I have already concluded that s. 578(2)(b) did not comprise a legal element.  
  6. [294]
    Further, I agree with the respondent’s submission that the charge was not invalid for failure to articulate necessary factual elements because it did not expressly negative the exception in s. 342(3).  The adequacy of pleading of necessary factual elements depends on the particular context of the offence and the manner in which it is said to have occurred.  Here, as Mr Hunter contended, it was necessarily implied by the laying of the charge that the circumstances in s. 342(3) were not engaged.  Further, there was no suggestion in the evidence or in the course of the trial that the circumstances of that section might be engaged.
  1. [295]
    This is a sufficient basis to conclude that the complaint validly articulated the manner in which the SPA offences were alleged to have been committed.  However, I should deal with some other matters raised by the appellant.
  2. [296]
    First, I will deal with Macarone v McKeon [1986] 1 Qd R 284.  The appellant relied on this case to establish the proposition that the blanket averrals were ineffective.  In my view, that case is irrelevant to the issue raised in this appeal.  Macarone was relied upon as authority for the proposition that an averment which was properly characterised as an averment of a matter of law was not able to be treated as prima facie evidence under an enabling provision which made every allegation or averment contained in a complaint of breach of the extant Brisbane Town Plan.  The case does support that proposition.[71]  However, that is not the issue which arises here.  The relevance of the blanket averments is that they communicate in a substantive sense the manner in which the offence was committed by making plain the prosecution’s position that none of the excuses for clearing contained in Schedule 24 Parts 1 and 2 apply.  Whether these averments would be effective to take advantage of prima facie evidence provisions is not the issue.
  3. [297]
    Second, I need to deal briefly with the arguments about s. 76 Justices Act.  In submissions I raised the possibility that, if the onus was on the prosecution to exclude the Schedule 24 and 578(2)(a) matters, that onus might be reversed by the blanket averments, with the consequence that any factual inadequacy in the pleading in respect of those matters became irrelevant.  This is a moot point given my reasoning on factual validity in which s. 76 plays no part.
  4. [298]
    However, it seems doubtful that s. 76 Justices Act can have the substantive effect of reversing the onus of proof where it would otherwise lie on the prosecution.  The better view seems to be that the section is declaratory of the common law and therefore applies only where the onus of proof lies in any event on the defendant,[72] though the possibility that it goes further than the common law rule seems to still be open.[73]
  5. [299]
    Further, if the section were to apply, I think it unlikely its application would be constrained by the requirement that the averment not comprise or include allegations of law.  The terms of an “exemption, exception, proviso...etc” could well comprise or include matters of law, or at least mixed law and fact.  The proper construction of s. 76 seems to contemplate the complaint negativing the exemption in terms.  The applicability of the approach in Macarone to s. 76 seems doubtful to me. 

Conclusion on Ground 1A 

  1. [300]
    Ground 1A of the Amended Notice of Appeal is dismissed.

Ground 1: Particulars under s. 68A SPA

 

Introductory comments 

  1. [301]
    It is necessary to set out some more statutory and factual context to be able properly to understand the contentions of the parties on Ground 1.

Some relevant statutory context

  1. [302]
    Section 68A VMA is set out in paragraph [71] above.  The issues which arise relate to s. 68A(2)(c) and (d).  Section 68A(2)(c) refers to a “description of the vegetation”.  The section includes an example, which is part of the Act.[74]  The example has three components:
    1. (a)
      It describes the vegetation (which, it will be recalled, under the VMA is native vegetation other than grassland and mangroves) by reference to its status as remnant vegetation;
    2. (b)
      It describes the vegetation by reference to its status as an endangered regional ecosystem; and
    3. (c)
      It describes the vegetation by reference to its status as essential habitat for protected wildlife.
  2. [303]
    It is to be noted that these three aspects call up different ways that vegetation could be categorised under the VMA.
    1. (a)
      As to the first aspect, the VMA classifies vegetation by whether it is remnant vegetation or regrowth vegetation.  All vegetation under the VMA is one or the other.  The statute operates differently in a number of respects depending on whether native vegetation is one or the other. 
    2. (b)
      As to the second aspect, the VMA also classifies vegetation by reference to the class of regional ecosystem to which it belongs.  A regional ecosystem is a “vegetation community in a particular bioregion that is consistently associated with a particular combination of geology, landform and soil.” While there are numerous individual regional ecosystems identified in the State (there are some 1500), regional ecosystems are of only three classes in the VMA: endangered, of concern and least concern.[75] The statute operates differently in a number of respects depending on the class to which vegetation belongs.  Relevantly, a regional ecosystem map under s. 20A VMA is a map for part of the State showing areas of remnant vegetation classified as endangered, of concern or least concern.  Remnant and regrowth vegetation can belong to any of the three classes.
    3. (c)
      As to the third aspect, another way which the VMA classifies vegetation is by whether it is essential habitat.  Essential habitat is an area of remnant vegetation which, in brief, is important for the protection of wildlife.  Essential regrowth habitat is a similar area of regrowth vegetation.  Each is therefore a subset of remnant and regrowth vegetation.  Such areas can be recorded on essential habitat maps.
  3. [304]
    The example in s. 68A(2)(c) does not exhaust the ways that vegetation is classified under the Act.  There are, for example, sub-categories of regrowth vegetation identified in the Act.  Further, vegetation can be described by reference to the area in which it is located in the way identified in s. 68A(2)(d).  Section 68A(2)(d) refers to whether the vegetation is in “an area of high nature conservation value” or in “an area vulnerable to land degradation”.  The declaration of such areas is dealt with in Division 4 of Part 2 VMA. Areas may be so declared by the relevant Minister or the Governor in Council: (ss. 17 and 18) or on application by a land owner (s. 19E), or by the chief executive (s. 19F). A declaration may only be made if the area meets statutory criteria: ss. 19 and 19G.  They are not linked to classifications of the vegetation in the area under the VMA.  
  4. [305]
    In each case, a form of management plan is prepared for the area and the declaration is recorded by the Registrar of Titles in a manner which links it to a title search for the land which includes the area.  
  5. [306]
    Some of those forms of description of vegetation are picked up in Schedule 24 Parts 1 and 2 of the SPA Regulations.  Part 1, Items 2 and 3 refer to classification of vegetation under the VMA.  For Part 2, all items apart from (c), (k) and (j) relate in some way to the VMA.

Relevant allegations in Complaints 2 and 4

  1. [307]
    Complaints 2 and 4 relate to the SPA offences.  It is only those complaints for which particulars under s. 68A(2) are relevant.
  2. [308]
    Paragraph 7(g) of Complaint 2 Charge 1 is the only allegation in that charge which describes the vegetation cleared.  That paragraph alleges Chess Park was cleared “of native vegetation all of which was classified as remnant vegetation”.  The other charges in Complaint 2 adopt the same description.  
  3. [309]
    Paragraph 6(e) of Complaint 4 Charge 1 is the only allegation in that charge which describes the vegetation cleared.  That paragraph alleges Chess Park was cleared “of native vegetation all of which was classified as remnant vegetation, a least concern ecosystem”.  The other charges in Complaint 4 adopt the same description.  The Complaint 4 charges therefore provide more particularity than Complaint 2 charges on the character of the vegetation cleared.  
  4. [310]
    It should also be recalled that the First Blanket Averment in each SPA Charge expressly negatives each of the items in Schedule 24 Parts 1 and 2, including those which create exceptions defined by reference to matters arising under, or affected by, the VMA.

The appellant’s contentions

  1. [311]
    The appellant’s contention was developed as follows.
  2. [312]
    First, the appellant contended that on its proper construction, s. 68A imposed a mandatory requirement that a complainant for a vegetation clearing offence must include the particulars specified in s. 68A(2), such that failure to do so rendered the complaint invalid.  The invalidity arose either because the section imposed additional legal elements for a vegetation clearing offence under s. 578(1) or, alternatively, mandatory factual ingredients for pleading such a charge.
  3. [313]
    The factors supporting that construction were as follows:
    1. (a)
      The plain meaning of the opening words in s. 68A(2) “It is enough...” is that the particulars identified are the minimum requirement for identification of the vegetation cleared;
    2. (b)
      This is supported by two matters:
      1. The heading to s. 68A is part of the VMA[76] and therefore relevant to construction of the provision. The phrase “Particulars to be stated” in the heading is consistent with a mandatory construction of s. 68A; and
      2. The use of the phrase “whether the vegetation was in...” which opens s. 68A(2)(d) communicates in its ordinary meaning that the particulars must state whether or not the vegetation was in one of the areas identified;[77]
    3. (c)
      The mandatory construction was said to be consistent with “settled principles of statutory construction”.  These principles were articulated in a general manner by the appellant by reference to the summary statement in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] to [71].  It was also said to be consistent with the purposes of the VMA identified in s. 3 (see paragraph [59] above).
  4. [314]
    Second, the appellant contended that Complaints 2 and 4 failed to include particulars required by s. 68A(2)(c).  
  5. [315]
    The particulars said to have been omitted from both complaints were the identification of the declared regional ecosystem (or systems) to which the vegetation identified in each charge belonged.  That is, the appellant contended that a valid charge which alleged clearing of remnant native vegetation had to state the type of regional ecosystem and the regional ecosystem number as declared under the Vegetation Management Regulation for each regional ecosystem in the area of cleared vegetation the subject of the charge.  This was alleged to be required either as a matter of law under the statute or alternatively to identify the necessary factual ingredients of these specific charges.[78]
  6. [316]
    Why, one might ask, would that information be necessary to comply with s. 68A(2)(c) or necessary to identify how the offence was committed? The answer given by the appellant seemed to be that the only way to identify a least concern regional ecosystem (or indeed an of concern or endangered system) is by reference to the categorisation of the individual declared regional ecosystems as one of the three classes under the Regulations.  This seems to be technically correct: see Regulation 8(3) and (6) of the VMR.  Whether it leads to the conclusion that a valid charge must specify each specific regional ecosystem is another matter.  
  7. [317]
    Third, the appellant contended[79] that Complaint 2 was invalid because it failed to include the class of regional ecosystem of the remnant vegetation in each charge (in contrast to the position under Complaint 4).  The appellant appeared to contend that where the vegetation was said to be remnant vegetation, the class (least concern etc) had to be included.  It submitted the example demonstrated the scope of particulars contemplated for compliance with s. 68A(2)(c) included the class.  The appellant also contended that a description of vegetation which referred to the vegetation without indicating whether it was least concern, of concern or endangered under the VMA was meaningless.  Therefore it must have been Parliament’s intent that sufficient particulars of remnant vegetation included its class.  
  8. [318]
    Fourth, in relation to s. 68A(2)(d), the appellant submitted as follows.  The specific averment required by section 68A(2)(d) serves to distinguish for the defendant and the Court whether the clearing occurred in or outside a declared area. Thus:[80]

...if unlawful clearing is alleged to have taken place on land that is partly within and partly outside, that part of the clearing which is outside a declared area is an essential factual ingredient of any charge specifically referable to the place where the vegetation was cleared for a vegetation clearing offence that must, as required by s 68A(2)(d) be averred on the complaint for the particular charge in question.  That is because (as explained below), a vegetation clearing offence can only pertain to an offence under s. 578(1) of the SPA

[All forms of emphasis in original]

  1. [319]
    The appellant conceded that only chief executive declarations under s. 19F would be relevant in practice because these declarations are the only kind referred to in Schedule 24.  The particular item is Part 1 Item 3 which excludes clearing vegetation in a declared area under s. 19F if the clearing is consistent with the management plan. The ultimate contention seemed to be that unless the defendant knows that vegetation is or is not within a declared area, he cannot know whether the prosecution contends that the exception in Item 3 is excluded. 

The respondent’s contentions

  1. [320]
    The respondent contended as follows.
  2. [321]
    First, he submitted that s. 68A did not mandate how a complaint must be particularised to be valid. This is said to be evident from the phrase “it is enough”.  The respondent submits that the proper construction of s. 68A in this respect is that it identifies what particulars will make a complaint properly particularised.  However, the section contemplates that proper particularisation might exist without specifying those matters in each case.  This is so because of the character of particulars being to enable a party to know the case it has to meet.  The section permitted the appellant to require further particulars in terms of 68A(2)(c) and (d) but did not compel their provision as a matter of law.
  3. [322]
    Second, on that basis, the respondent submitted in relation to all the complaints of the appellant as to alleged non-compliance in this regard, that there was no basis to conclude that the complaints were not properly particularised because the defendant sought no further particulars in respect of the matters in those subsections and made no complaint about the particularity of this aspect of the complaints at trial.
  4. [323]
    Third, apart from the lack of complaint at trial, he submitted that the form of pleading could be seen to be sufficient when regard was had to the relevance of vegetation description to the particular offence.  The link between the description and the offence arose from Schedule 24.  Item 2 in Part 1 was the only one which touched on the class of the vegetation.  Mr Hunter correctly pointed out that that Item related to very specific circumstances not applicable in any view to this case.  He made similar submissions about the other links between vegetation class and the Items in Part 2.
  1. [324]
    He further submitted that the offence otherwise comprised clearing of remnant native vegetation and it was not necessary to demonstrate that the vegetation was of a particular declared regional ecosystem to make good the commission of the offence.
  2. [325]
    Third, in respect of the omission of any reference in Complaint 2 to the class of regional ecosystem (least concern etc), Mr Hunter submitted, again, that no complaint was made about lack of particularity in this respect at trial.  Further he submitted it could be inferred that occurred because it was understood that the areas cleared were in the least concern category.  So much was evident, he submitted, from the fact that the PMAV for Chess Park[81] and the related regional ecosystem maps[82]  showed that all the charge areas were in areas shown as least concern.  Further, he pointed to evidence which suggested the appellant was familiar with that mapping.  He referred to a letter from Mr Baker to an officer of DNRM that he wanted to clear in the “green areas”.[83]  The least concern areas are marked in green on the regional ecosystem maps
  3. [326]
    Fourth, the respondent submitted as to s. 68A(2)(d), that by negativing the exceptions in Schedule 24 Parts 1 and 2, the prosecution clearly communicated to the defendant that its case was that no part of any of the areas the subject of charges in Complaints 2 and 4 were declared under s. 19F.  Mr Hunter submitted that as a matter of substance the prosecution’s position on the issue raised by s. 68A(2)(d) was clear. 

Analysis 

Compliance with s. 68A(2) is not a statutory condition for validity

  1. [327]
    Section 68A(2) does require provision of the particulars in s. 68A(2)(c) and (d) as a condition for a valid complaint for a vegetation clearing offence.  
  2. [328]
    First, the section refers to particulars.  Particulars have an established common law meaning, both in civil and criminal pleading.  They are concerned with defining the case being advanced, not with articulating the essential legal elements of an offence or cause of action.[84]  Parliament ought to be assumed prima face to have intended to adopt that meaning by the use of that word.  Indeed the accepted distinction between particulars and material facts/legal elements is so well established that it would take in my view some clear language to elevate the imposition of “particulars” so described to a matter which must be pleaded in order that a charge be valid.[85] 
  3. [329]
    Second, the language of the provision overall does not support the contrary view.  The key phrase relied upon by the appellant is, at best, equivocal.  In my view, by saying “it is enough” Parliament is communicating that providing the particulars in s. 68A(2) will be sufficient, but not necessary.  If a different intention existed, one would expect Parliament to have said so in clearer terms. Nowhere does the provision state that the complaint must provide the specified particulars.  Even the heading, relied upon by the appellant, does not go so far.
  1. [330]
    Third, the construction contended for by the respondent seems to me consistent with the overall statutory scheme.  Section 68A falls to be applied to all vegetation clearing offences.  There are five such provisions in the SPA.  However those provisions could be breached in numerous different ways, this case being one such example.  Whether and to what extent the particulars in s. 68A(2) are necessary, or even relevant, to a particular complaint will vary.  That is particularly so for s. 68A(2)(c) and (d).  It seems unlikely that Parliament would intend to make a complaint invalid for failure to include one of the particulars in the section where such particulars were not relevant or necessary.  
  2. [331]
    Fourth, it seems unlikely that Parliament would intend to make validity of all complaints for all vegetation clearing offences conditional on such a general phrase as “a description of the vegetation”.  Such a general phrase can be interpreted in many ways.  The analysis of the range of ways that vegetation can be described shown in the example in the provision shows that to be so.  If validity was conditional upon compliance with s. 68A(2)(c), it would be very difficult to be certain whether a complaint was valid, and the complaint might be held invalid even if the description was adequate for the purposes of the particular proceeding.  On the other hand, approaching the question of validity from the perspective of whether the complaint in context provides adequate particularity to identify how the offence was committed and to communicate the case to be met will solve this difficulty. This is because the adequacy of the description can then be assessed against that standard.

Complaints 2 and 4 are otherwise valid

  1. [332]
    The appellant also submits that the failure to provide the particulars it submits should have been provided under s. 68A(2)(c) and (d) meant that the Complaints 2 and 4 were invalid because they failed to communicate the complainant’s case sufficiently to attract the jurisdiction of the Court.
  2. [333]
    I reject that submission.

Declared areas: s. 68A(2)(d)

  1. [334]
    It is convenient first to deal with s. 68A(2)(d).  In determining whether the SPA charges were invalid for alleged failure to give the particulars in s. 68A(2)(d) it is necessary to focus on the relevance of the matter there identified to the case advanced and the form of the complaint.  
  2. [335]
    It was submitted by Mr Hunter that the only link between the SPA offence as pleaded in the charges and a declaration of the kind in subsection (d) was in Schedule 24 Part 1(3).  It excludes from the offence creating provision clearing in an area declared under s. 19F unless consistent with the management plan.  I do not recall the appellant pointing to any other link and I could identify no other.  
  3. [336]
    Mr Hunter submitted that the substantive effect of the First Blanket Averment was to communicate that the clearing did not fall within the scope of Schedule 24 Part 1(3).  In my view this is correct.  Nor was there any complaint at trial about particularisation in this respect.  Indeed even now, the appellant points to no substantive difficulty in the conduct of the trial for the defendant which arises from the failure it alleges in compliance with s. 68A(2)(d).
  4. [337]
    Indeed one wonders what else the appellant says the defendant needed to be told.  True it is that negativing of Schedule 24 Part 1(3) says nothing about whether the areas of clearing were declared areas made so by the Minister or Governor in Council.  However, such areas do not appear to have any relevance to the offences charged.  

Description of the vegetation: s. 68A(2)(c)

  1. [338]
    The charges in Complaint 2 describe the vegetation as remnant native vegetation.  The charges in Complaint 4 adds the words “of a least concern regional ecosystem”.
  2. [339]
    I will start with the omission of the class of vegetation from Complaint 2.  Three matters require recognition:
    1. (a)
      First, no complaint was raised at trial about the lack of particularisation of the class of regional ecosystems;
    2. (b)
      Second, as Mr Hunter submitted, all the clearing the subject of SPA charges in Complaint 2 related to least concern ecosystem areas marked on the PMAV and regional ecosystem maps and the case was conducted on that basis and there is some basis to infer the appellant was familiar with at lead the regional ecosystem maps; and
    3. (c)
      Third, even now, the appellant does not explain how the lack of particularisation of the class of the remnant vegetation resulted in the defendant being unable to understand and respond to the case put against him.
  3. [340]
    This is not a promising start for the appellant’s submission that Complaint 2 failed to articulate essential factual ingredients. 
  4. [341]
    Further, it is difficult to see how the omission in Complaint 2 was material given the relevance of that form of classification to the trial.  As correctly submitted by the respondent, the link between the class of remnant vegetation and the offences as pleaded in Complaint 2 was provided by items in Schedule 24 Parts 1 and 2.  Most of those items were plainly irrelevant to the clearing alleged in each charge, see for example:
    1. (a)
      Part 1 Item (2) which was concerned with very specific clearing of a certain type within a watercourse or lake;
    2. (b)
      Part 2 Items (g) and (h) which were concerned with clearing in an urban area.
  5. [342]
    Only Part 2 Item (i) raised the issue of ecosystem class in a manner relevant to the charges.  Even there, however, the question is concerned with how the area cleared is shown on a PMAV or regional ecosystem map.  By negativing that item by the First Blanket Averment, the defendant communicated that that item did not apply.  Given that the charges specified that the vegetation was remnant vegetation, it was communicated that the first limb of the alternative kinds of vegetation identified in that item (“regulated regrowth vegetation” which by definition cannot be remnant vegetation) was not applicable.  Thus as a matter of substance, by negativing Item (i), it was substantively communicated that the clearing was not necessary for routine management in a least concern regional ecosystem shown on the PMAV or regional ecosystem map.  
  6. [343]
    Further, in the course of the trial, the parties joined issue on whether the clearing in each charge in Complaint 2 comprised routine management.  This is consistent with the defendant being able to apprehend clearly the issue which arose in respect of that item at the trial.
  7. [344]
    For these reasons, I consider that Complaint 2 sufficiently identified essential factual ingredients of the charge to attract the jurisdiction of the Court despite its omission of express reference to the class of regional ecosystem to which the identified remnant vegetation belonged.
  8. [345]
    I now turn to the appellant’s complaint about the omission of particularisation of each particular regional ecosystem in the charge areas.
  9. [346]
    Once again, the analysis can start with the recognition that the omission was not raised at trial and that even on this appeal the appellant points to no practical consequence for the conduct of the trial resulting from the defendant’s not having the benefit of particularisation of this kind.  Further, there is no suggestion that a proper description of the vegetation under s. 68A(2)(c) required particularisation of the specific regional ecosystem.  It does not appear in the example.  
  10. [347]
    Why then, for the appellant to understand how he was said to have committed the offence, did he need to be appraised of the specific regional ecosystems applicable to the remnant vegetation in each charge area?  It is not essential to identify the vegetation cleared: that is said to be remnant native vegetation and, on my analysis of the VMA, the declared regional ecosystem to which remnant vegetation belongs is not essential to the description of such vegetation.
  11. [348]
    So far as I could apprehend, the answer given by the appellant is that stated in paragraph [316] above.  While it appears to be true that the classification of vegetation under the VMA as least concern, of concern or endangered occurs by reference to the specific regional ecosystem to which vegetation belongs, that is an insufficient basis for concluding that essential factual ingredients require that to be specified in the charge.
  12. [349]
    In this case, it was evident that the charges related to least concern regional ecosystems.  That meant that they necessarily relate to specific ecosystems declared as such.  That does not mean, however, that the individual ecosystems had to be particularised for the charges to be valid.  If a defendant thought this kind of detail was important, further particulars could have been sought.  It is relevant to note that at trial, Mr Dillewaard gave evidence as to the particular regional ecosystems which would have been present in the cleared areas based on the regional ecosystem mapping and his inspections while at Chess Park.  No complaint was made about the lack of particularisation in the charges on this issue at trial.
  13. [350]
    In my view, the appellant’s position on this issue goes well beyond what was required to articulate necessary factual ingredients for a valid charge in this particular case.

Conclusion on Ground 1  

  1. [351]
    Ground 1 of the Amended Notice of Appeal is dismissed.

GROUND 2: JURISDICTION TO AMEND (COMPLAINTS 2 AND 4 ONLY)

  1. [352]
    It was accepted by the appellant that if Ground 1 was dismissed, then it follows that her Honour had jurisdiction to amend the complaints as she did at trial.  Accordingly Ground 2 is dismissed.

GROUND 4: EXCLUSION OF ESSENTIAL MANAGEMENT EXEMPTION

Introduction

 

  1. [353]
    It will be recalled that the essential management exception comprises one of the kinds of clearing of native vegetation without a development permit which is excised from the offence by Schedule 24.  It appears in Part 2 Item (d)[86] and excludes clearing that is necessary for essential management.  It relates only to the SPA Charges in Complaints 2 and 4.   Essential management in turn is defined in the Regulations. The definition is set out in paragraph [56] above.  It can be seen that it in turn comprises eight sub-items of clearing.
  2. [354]
    Ground 4 of the Amended Notice of Appeal has two sub-grounds.  
    1. (a)
      The first relates to her Honour’s approach to the standard of proof relevant to the exclusion of the exemption by the prosecution.  
    2. (b)
      The second is concerned with whether certain essential management exceptions were excluded to the necessary standard.  There were no written submissions directed specifically to this ground of appeal.  In oral submissions, the appellant relied on the particulars in the Amended Notice of Appeal as setting out the argument.

Ground 4/1A: Erroneous approach to burden of proof

 

The parties’ contentions 

Particulars

Analysis 

Ground 4/1B: Errors in concluding essential management exception excluded

 

Introductory comments  

Paragraph (a): protection of infrastructure  

Appellant’s contentions

Respondent’s contentions

Analysis

The role to be played by definitions in a Queensland Act is provided by s 32A of the Acts Interpretation Act 1954 (Qld). That section provides that definitions in an Act apply “except so far as the context or subject matter otherwise indicates or requires.” It is not uncommon to find in an interpretation statute a provision to the effect that a definition found in a statute applies unless the context otherwise requires. Section 32A differs from the provision more commonly encountered in two respects. Regard is to be had, not simply to the context, but also to the subject matter of the provision in which the defined term occurs. Moreover, the application of the definition may be affected not only because the context otherwise requires; it may be affected because the context (or subject matter) otherwise indicates. These features evince an intention by the legislature that a more flexible approach be taken to the application of a statutory definition, when interpreting Queensland legislation, than would be required under some other interpretation provisions. That approach is expressed in the language of s 32A. 

Paragraph (c):  Imminent risk exception

Appellant’s contention

The learned Magistrate erred at law (at paragraph [263] of the First Decision  by failing, as a threshold matter, to assign a meaning to the word “imminent” (when it was not defined in the SPA) because the word “… did not require a special definition [as] the meaning is perfectly clear…”, when its meaning was not perfectly clear:- the Macquarie dictionary defines the word as meaning “likely to occur at any time” compared to the Oxford dictionary meaning of “about to happen”. By failing to assign a meaning to the word “imminent”, the learned Magistrate erred at law by then finding (expressly or implicitly) that the prosecution had proved beyond reasonable doubt that the clearing as particularised in each of the charges in Complaints 2 and 4 did not fall within the exemption. 

Respondent’s contention

The appellant’s contentions about ‘imminent risk’ requires a strained interpretation of the word “imminent”... [T]he Magistrate made a finding about the meaning of imminent in the Reasons. Apart from two exceptions (which were conceded by the respondent, and found by the magistrate [sic]) there was no evidence that any of the clearing was done in response to an imminent risk of injury or damage. Nor could it have been, given the scale of the clearing. The argument seems to have been that trees that might one day burn and fall onto a fence could be cleared, but this does not sit well with the prescription that “routine management” along a fence line is limited to a maximum width of 10 metres.  

Analysis

Paragraph (e): Necessary to maintain infrastructure

Conclusion on Ground 4/1B 

GROUND 5: LIMITATION DEFENCES (COMPLAINTS 1 AND 4)

Introductory comments

 

The appeal as it relates to Complaint 1 

The charges challenged

The relevant statutory provisions

(4) Time for commencement of prosecutions

A prosecution for an offence against this Act may be instituted at any time within 12 months after the commission of the offence or within 6 months after the commission of the offence comes to the knowledge of the complainant whichever is the later.

[Underlining added: note the 12 month period under the VMA for SPA offences]

the averment in any complaint of the date on which the commission of any offence under this Act came to the knowledge of the complainant shall be evidence of that matter and in the absence of evidence in rebuttal shall be conclusive evidence of such matter.

The two timing scenarios

Averments made

The appeal as it relates to Complaint 4

The charges challenged

The relevant statutory provisions

...

A statement in a complaint for an offence against this Act that the matter of the complaint came to the knowledge of the complainant on a stated day is evidence of the matter stated. 

In a complaint starting a proceeding, a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter.

The two timing scenarios

Averments made

The factual context 

The appellant’s contentions

 

Relevant principles 

Impugned charges in Complaint 1 

When offences came to the respondent’s knowledge

Averment issue

I was going to say, your Honour, I don’t, thinking about it, see how I could possibly contend that evidence in rebuttal should be restricted to evidence called by a defendant, because how on earth would a defendant give evidence about the state of mind of an investigator.[122]

Charges 4 and 5

Impugned charges in Complaint 4 

When offences came to the knowledge of the respondent

The first possible date that the SPA offences contained in Complaint 4 came to the knowledge of Mr Smith was 17 January 2013, when Mr Smith inspected Chess Park, and saw the clearing himself.  Mr Smith spent three says inspecting Chess Park, but it was not made clear as to what observations were made on each particular day in relation to each charged area.

[Underlining added] 

The respondent’s contentions

 

Relevant principles 

Impugned charges in Complaint 1

When charges came to the knowledge of the respondent

Charges 4 and 5

Impugned charges in Complaint 4 

Analysis: Complaint 1

 

When the impugned charges came tothe respondent’s knowledge

Charges 1 and 2 brought out of time 

Charges 4 and 5 brought within time 

Some clearing occurred within one year of the swearing of Complaint 1

The prosecution did not prove, or even attempt to prove, what clearing alleged in Complaint 1, charges 4 and 5, occurred after 16 August 2012 that is within the first limb of the limitation period.

Charges 4 and 5 were within time as a matter of law

Because the evidence does not in my view establish any damage occurring within the limitation period no point would be achieved by sending the matters back to the Magistrates Court. At best for the prosecution the evidence may have possibly established a reduction in canopy cover during the limitation period as a result of damage caused outside the limitation period.

[Underlining added]

The magistrate did not at all consider the limitation period or the evidence bearing on it; nor did he make any findings of when particular damage was caused other than that it occurred between the dates charged. He did not refer to the definition of damage or make any finding as to what if any damage had been caused between 13 February 2003 and November 2003. The respondent cannot exclude the fact that damage to the trees – the acts of poisoning – may have been caused or done before 13 February 2003. 

[Underlining added]

  

A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied.

The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis, by Sir Francis Jeune, who said: ‘The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue’.

Practical considerations suggest that while the prohibited act is the clearance of plants, it should be possible to charge an offence that consists of the clearance of an unspecified number of plants, and that it should be permissible to lay the charge in a form that identifies the place or area where the plants were before they were cleared. Unless this is so, in many situations the prohibition in s 26(1) will be unenforceable.

Analysis: Complaint 4

 

GROUND 6: THE FORESTRY ACT OFFENCES

Introduction

 

The statutory context

 

The error by the prosecution at trial

 

Did not hold a lease license permit agreement or contract granted or made under the Forestry Act 1959, the Land Act, the Mining Acts, the Gethermal [sic] Act of the GHG Storage Act;

The appellant’s contentions

 

The onus of proof  

Prosecution could not discharge the onus of proof on appeal 

Respondent’s contentions

 

Analysis

 

The onus to exclude statutory authority  

The existence or not of such an authority...is clearly a matter that would be peculiarly within the knowledge of the defendant and provides a strong indication that it a matter of exception upon which the defendant would, is [sic if] section 76 was enlivened, bear the onus of proof. 

The primary issue raised by the informant's appeal is whether, in a prosecution under s.21 of the Act, the informant or the defendant bears the onus of proof on the question of practicability. It was unanimously held by the Full Court that the onus is on the informant. The issue upon which Ormiston J. reached his dissenting decision, namely, the relevance of reasonable foreseeability to liability under s.21 of the Act, will be dealt with later. 

The Act is silent as to the onus of proof in relation to the offence created by s.21. That is not unusual for the rule as to the onus of proof in a criminal proceeding is clear, namely, that "it is the duty of the prosecution to prove (a defendant's) guilt subject ... to the defence of insanity and subject also to any statutory exception": Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462, at p 481. The question thus raised by the informant's appeal is whether the words "so far as is practicable", as used in s.21(1) and (2) of the Act, constitute a statutory exception. 

For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, at pp 519-520. The distinction does not depend on the rules of formal logic: Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136, at p 147. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v. United Telecasters Sydney Ltd. [1990] HCA 5; (1990) 64 ALJR 181, at p 183; [1990] HCA 5; 91 ALR 1, at p 6. The intention may be discerned from express words or by implication. See Reg. v. Edwards (1975) QB 27 and Reg. v. Hunt (1987) AC 352.

Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined "upon considerations of substance and not of form": Dowling v. Bowie, at p 140. And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s.168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception "whether it does or does not accompany the description of the offence". 

One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring and Lighterage Co. Ltd. v. Jacobsen [1945] HCA 22; (1945) 70 CLR 635, per Dixon J. at p 644. Such is ordinarily the case where, in the terms used in Reg. v. Edwards, at p 40, there is a prohibition on the doing of an act "save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities". See Reg. v. Hunt, at p 375, where Lord Griffiths considered the statement from Reg. v. Edwards "an excellent guide to construction". If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.

Prosecution may contend that the defendant bears the onus on authority issues on this appeal

As to the onus of proof as to the time when a complainant has notice of the matter of complaint we were referred to Morgan v. Babcock and Wilcox Ltd. (1929) 43 C.L.R. 163. I think that statements in the joint decision of Knox C.J. and Dixon J. and the provisions of s. 14(3) of the Secret Commissions Act 1919 therein referred to show the case to be distinguishable. 

However it seems that it was the appellant who undertook the burden of proof here so that the case cited could really add nothing to the matter. His Worship in his decision clearly purported to dispose of the question and in effect found that there was no case to answer on the point.

The complaint did not allege that the s 493A exception as to the conduct’s being authorised by a development approval was negatived, so there was no question of any shift in the burden of proof under s 76 of the Justices Act 1886. Nor did the prosecutor contend that the Environmental Protection Act should be construed as imposing the burden on the applicant to prove on the balance of probabilities that the development approval authorised the discharge. Instead, the prosecution was conducted on the basis that it fell to the complainant to prove that the discharge was not so authorised; that is, that it entailed a contamination level which exceeded that permitted by the development approval. 

[Footnote omitted]

This court is not required on this rehearing to embark on any consideration or determination of the question as to whether the prosecutor, in point of law, correctly assumed the burden of proof in respect of the offences charged under section 39(1)(a) and (b) and section 54(1)(c) and (d) of the Forestry Act. To do so would have the potential result of occasioning irreparable prejudice to the appellant. This, in turn, would give rise to a miscarriage of justice because the appellant, by reason of the prosecutor’s conduct of the trial below, did not, because he was not required to, assume and then seek to discharge any legal and/or evidential burden to prove that he held (during the relevant period of the charges for the Forestry Act offences), the requisite permit, lease license or other permission or authority. The obvious prejudice to a defendant in such circumstances, has at least implicitly, been recognized and accepted by the Queensland Court of Appeal and the Full Court of the Supreme Court of Queensland in similar cases where those Courts have determined that a prosecutor is bound by his conduct in the Court below.[154]

[Underlining added]

Authority under s. 39(1) is excluded on the evidence  

Conclusion

 

MESSRS GOULEVITCH, DILLEWAARD AND TRAN: GENERAL OBSERVATIONS  

Introduction

 

Relevant but inadmissible evidence

 

The parties’ positions

Ordinarily, as a trial such as the one before the Learned Magistrate is adversarial in nature, parties are bound by the conduct of their counsel.  Where counsel makes a forensic decision at trial which viewed objectively was rational then an appeal ground gainsaying that decision would not ordinarily succeed.  

Analysis of the authorities

Review of authorities relating to criminal proceedings generally

The appellant contends that all this resulted in a miscarriage of justice.  In order to deal with that submission it is necessary to consider with some particularly the features of the matter which are said to give rise to that miscarriage.  The first concerns the conduct of the counsel, including his failure to cross-examine the complainant on important issues and his subsequent failure to take steps to deal with the problem after it had become obvious.  

In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice.  To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.  

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witness to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.  The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.  For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

“…His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests are thereby prejudiced.”

In Halsbury’s Laws of England, 4th ed, vol 3(1), par 518 at 420, it is stated that:

“… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted.  Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client.  This authority extends to all matters relating to the action, including the calling and crossexamination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.”

...

There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice.  It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise.  The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice.

It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions.  It is well settled that neither of these circumstances will, of itself, attract appellate intervention.  At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases.  The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene.  A common theme running though the cases, however, is that such intervention is a matter about which the courts are extremely cautious.

The relevant principles, may be summarised as follows:

At this point I come to the final observation I wish to make concerning this crossexamination. A trial judge in a criminal trial carries a heavy burden. He must see that the accused has a fair trial. He has an obligation to see the trial is conducted fairly and in accordance with law. He must exclude evidence which is not shown to be admissible. In short, the principle is that an accused should not be convicted on any but legal evidence (R v Gibson (1887) 18 QBD 537 at 543 per Wills J), further, and per the same judge: “… If a mistake had been made by counsel, that would not relieve the Judge from the duty to see that proper evidence only was before the jury”. In Shaw v The Queen (1952) 85 CLR 365 at 381, the joint judgment said plainly that the prosecution must take responsibility for leading inadmissible evidence and the failure of the prisoner's counsel to object did not make it admissible. Similarly, in Stirland v Director of Public Prosecutions [1944] AC 315, it was said an improper question should be disallowed even though no objection be taken, the basis being that justice is to be done as far as possible according to law: see per Viscount Simon (at 327-328) speaking for their Lordships. In the light of these principles it is not to the point to say the accused or his counsel may have sought some tactical or other advantage from the questions being considered by not objecting.[195]

In these circumstances, the appellant says, the conviction was unsafe and should be set aside. Her grounds of appeal are that:

During the course of the appeal I inquired as to the reason for the failure, on the part of counsel who had appeared at the trial, to raise any objection to the admission of the hearsay evidence. As a consequence, and by consent, an affidavit sworn by that counsel was filed. In it she deposed to the fact that she “simply did not advert to the fact that the evidence given by Siobhan Byford was partly hearsay”. She said that if she had realised its hearsay character she would have objected to its admissibility.[197]

The question came again before the Victorian Full Court in R v Gay [1976] VR 577.  In that case some pages from a police officer’s notebook were tendered by the Crown to rebut a suggestion that the officer had recently invented part of his evidence.  Counsel for the accused (after consultation with the accused) stated that he had no objection to their admission.  The pages were admitted in evidence.  It was argued, on the appeal, that they should not have been admitted in evidence.  The court (comprising Young CJ, Gillard and Murray JJ), after reviewing the authorities (including Stirland v Director of Public Prosecutions and R v Cutter), considered (at 584-585) that, in circumstances in which counsel had made a conscious decision not to object (and said so), the reception of that evidence could not, on the appeal, be impugned. 

In R v Visser [1983] 3 NSWLR 240 the appellant complained that evidence had been wrongly admitted.  However, the evidence complained of had not been objected to.  The court considered that, where no objection is taken at a trial to evidence which is claimed to be prejudicial, an appellant bears a heavy burden of persuading an Appeal Court that an occasion arose for the exercise of the trial judge’s discretion to exclude it and an even heavier burden of establishing that the discretion was wrongly exercised.  It was said that it would be “a very rare case where a trial judge is justified in intervening to reject evidence where the accused is represented and when no objection has been taken to it”.

In R v Roisetter [1984] 1 Qd R 477 the Court of Criminal Appeal in Queensland was called upon to consider a matter in which the appellant had been convicted on counts of indecent assault and rape.  At the trial evidence had been admitted in the Crown case that the appellant was given to violence and that he has at times dealt violently with members of the complainant’s family, including the complainant, who gave evidence that she was “terrified” of the appellant.  Counsel for the appellant, evidently acting deliberately and as part of a defence strategy, had not objected to the admission of that evidence.  It was argued, on the appeal, that this evidence was wrongly admitted.  

McPherson J, with whom Andrews SPJ and Thomas J agreed, applying Stirland v Director of Public Prosecutions, R v Cutter and R v Gay, concluded (at 479) that it was not open to the accused to disavow, simply because unsuccessful, a form of strategy that was evidently the outcome of a deliberate decision by defence counsel and one that could hardly have been adopted without instructions from the accused himself.[198]

While Lusher J may have gone somewhat further than had been done in the majority of the cases referred to above, there is now a substantial body of authority to support the proposition at least that, in a case of genuine inadvertence, counsel’s failure to object will not, of itself, necessarily be a bar to the raising of the fact of the admission of inadmissible evidence as a ground of appeal.  (I should, perhaps, also mention, in this respect, Crudgington v Cooney; Ex parte Cooney [1902] St R Qd 176 and Cahalane v Hop Kee; Ex parte Hop Kee [1926] St R Qd 73, both of which cases involved appeals from decisions given by magistrates.)

Each such case will, as was said by Pring J in R v Branscombe depend upon its own circumstances albeit the court will always be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made by counsel at trial.[199]

An indictment was presented alleging sexual offences against C and K. C and K were respectively the son and daughter of a woman with whom the accused was living at the time of the alleged offences. To enable separate trials to be conducted, the indictment was amended to allege offences only against C. In the course of the trial, counsel for the accused informed counsel for the Crown that he intended to adduce evidence of the accused's good character. Counsel for the Crown replied that, in that event, he would then apply to call K to give evidence about the allegations relating to her. No character evidence of the accused was adduced. The accused was convicted.

Held, that counsel’s decision not to adduce evidence of the accused's character was a legitimate choice that a competent counsel could fairly make and, viewed objectively, was a rational tactical decision made to avoid a forensic risk. Hence failure to adduce that evidence did not give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act.

It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.

The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. 

One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.

No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence? 

If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently, even though the conclusion that there could be no reasonable explanation for the course followed at trial would seem to entail the conclusion that counsel did not act competently.

[Emphasis in original]

[Underlining added]

A trial judge in some circumstances may conclude that the giving of a specific direction in relation to evidence wrongly admitted may be counter-productive in focussing attention on evidence which has achieved no particular prominence. It is not possible to say whether that was a consideration here; there was no request for a redirection and thus no argument in relation to the point. In my view, however, the evidence about improper touching and the workplace banter, as well as being inadmissible, was prejudicial to the appellant for the reasons already advanced. The jury should have been directed to disregard it. Even if the evidence of the banter on 27 August was admissible, which I doubt, its prejudicial effect outweighed any marginal evidentiary value it may have had and it should not have been admitted.

Having regard to the prejudicial nature of the wrongly admitted evidence, which was not addressed by appropriate directions, viewed in light of the other matters discussed above, I am unable to be satisfied that the accused was proved guilty beyond reasonable doubt. For the same reasons I have concluded that there was a “miscarriage of justice” within the meaning of s 668E(1) of the Criminal Code Act 1899 (Qld). Accordingly, I would allow the appeal, order that the verdict be set aside and order a re-trial.

“Certainly there must be exceptional circumstances for the Court to grant special leave to appeal where an applicant did not object at trial to the tender of evidence which is subsequently found to have been improperly admitted. Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel. The correctness of their counsel’s decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.”

“… TKWJ is concerned with challenges to forensic judgments that are within counsel’s remit. The objective test that TKWJ holds is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice. A necessary consequence of that discretion is that the accused will generally be bound by counsel’s forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.”

Appeals by way of rehearing pursuant to s. 223 Justices Act

Counsel for the respondent submitted that there was no evidence which established that the appellant was given the care which she alleged to have received. The evidence, upon which the appellant relies, for present purposes, is that of Ms Purse and herself. Ms Purse’s report was admitted without objection and, prima facie, the hearsay evidence in it was therefore evidence for all purposes and should have been given the weight the trial judge thought appropriate.

Conclusion

Adequacy of the Amended Notice of Appeal: Goulevitch and Dillewaard

 

ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE RELIED UPON BY GOULEVITCH  

Introductory comments

 

The computer records point

 

The appellant’s contentions 

The respondent’s contentions 

Analysis 

An expert witness, in relying on data in authoritative publications, is not confined to confirming or correcting a recollection of what is stated in the data. The witness may rely on the data without a previous knowledge of it. An example is the reliance that may be placed on tables and the like: [ee Borowski v Quayle [1966] V.R. 382, at pp. 387-8. The data relied on may be a statement of fact or opinion.

When an expert witness bases evidence on data in an authoritative scientific publication it is the evidence of the witness which is thus put before the court. The publication itself is not evidence of the truth of statements it makes as to data. If the witness refers to or quotes from an authoritative publication as correctly stating a fact, what is referred to or quoted is part of the testimony of the witness: Sussex Peerage Case (1844) 11 Cl and Fin 85, at pp. 114-17; 8 ER 1034, at pp. 1046-7; Collier v Simpson (1831) 5 C and P 73; 172 ER 883; Cocks v Purday (1846) 2 Car and Kir 269; 175 ER 111; Concha v Murrieta (1889) 40 ChD 543, at p. 554; Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1980) 33 ALR 251, at pp. 273-4; Baker, The Hearsay Rule, p. 164 and Gillies, The Law of Evidence in Australia, pp. 354-5.

Professor Forbes observes, s. 95(3) is not a code.[210]  He writes:[211]

Section 95 is an enabling provision, not a code. At common law information from a computer can be made admissible by giving ordinary evidence of data fed into the device by a person using it as calculator, compiler or classifier, supported by expert evidence that it was working properly at the material time.[212]  In such cases the computer functions (so to speak) as a sophisticated version of a pencil and a slide rule.

In R v Wood[213] an expert used a computer to classify the results of metallurgical analyses in order to identify stolen property. Mehesz v Redman (No 2)[214] involved blood-alcohol tests, and R v McHardie and Danielson[215] concerned voice-analysis tests to identify a blackmailer. Data on a computer constituted admissions in Markovina v The Queen,[216] a drug-dealing case.

Provided that the computer is properly programmed, the insertion of raw data and collection of the results need not be done by an expert.[217]

For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.

The DCDB point

 

Some background to the DCDB

That evidence was not challenged at trial.  He explained as follows:

MR HUNTER: All right. Well, can you explain then what the digital cadastral database is?

MR GOULEVITCH: Yes, the digital cadastral database is an administrative tool, I guess, your Honour. It was sort of created about the time when space and information [sic spatial information] was going through a digital upgrade if you like. It – it represents the approximate position of boundaries across Queensland. In different parts of the State, it’s more accurate than other as I was referencing before. The Survey Mapping Infrastructure Act defines the digital cadastral database and why it’s used and it also governs or has legislation where the digital cadastral database, if it differs from survey plans, the survey plans are the true positions of boundaries.

BENCH: If you – I didn’t catch where you said was approximate – as you said as a reference before. Where did you say it was approximate?

MR GOULEVITCH: The digital cadastral database is – was created by initially digitising big, working maps so it’s quite inaccurate and without any ground control in western and far northern areas of the State, it was fairly inaccurate. But over the decades that that’s been going, ground control has been picked up sometimes from imagery – satellite imagery or aerial photography where you can see fence lines that represent basically where the extent of the property is and DCDB section would have used visible fence lines to adjust the DCDB location to that fence line. 

BENCH: I see. So it’s been gradually - - -?

MR GOULEVITCH: Yes. And surveyors also when they go out and do work, they’ll connect into permanent survey marks which are coordinated marks and they will link the survey to that permanent survey mark, hence giving it a more accurate coordinate in the Australian mapping system.

BENCH: The fence isn’t the boundary and the DCDB’s not in the boundary. You’ve got to find something - - -?

MR GOULEVITCH: Yeah. To define the actual location of the boundary, you need a cadastral surveyor to go out and measure the location of monuments found on survey plans and reinstate not just that property boundary, your Honour, but ensure that no surrounding property owners are adversely affected by any shortage or excess in measurement. It’s a relative system, the cadastral system and people – when they see the digital cadastral database – because it’s got coordinates tend to think it’s an absolute system but it’s not. It’s a relative system currently to be fair to all landholders abutting a property and cadastral surveyors are obligated to ensure when they do a survey that none of the abutting landholders are adversely affected.[222]

MR HUNTER: Can I ask you some questions about the western and north-western and northern boundary of the property – or boundaries – plural. How did you identify the boundaries of the property in those areas? Obviously, there are cleared areas that you’ve identified and we’ll come to them in due course but there are cleared areas all along the western, north-western and northern boundaries?---Yes. And – and - - -

BENCH: Of the forest?

MR HUNTER: No, of the property.

BENCH: Of the property.

MR GOULEVITCH: Yes, it was evidence from the WorldView 2 imagery so the - - -

BENCH: Evident from the?---WorldView 2, your Honour. The - - -

Yes?--- - - - half-metre resolution - - -

Yes?--- - - - imagery. I could actually see the western fence line and the northern fence line and given that I was asked to give a 10-metre exemption on the internal side of that external fence line, I mapped the fence line to apply that 10-metre exemption. When looking at the location of that fence line relative to the 2014 upgrade from the DCDB section, it was pretty close. It varied in different area. By what sort of amounts?---Around that 10-metre mark. Sometimes it’s very close. Sometimes it’s different. And from a surveying perspective, significant corners like the north-west corner fence post, I would put more weight in the position of that than intermediate fence posts and bends along that western boundary and northern boundary. There’s an instance on the northern boundary, your Honour, where the fence actually ducks down to the south to avoid going through a – what looks to be a creek. So that’s an example of commonsense from the landholder rather than trying to establish a fence exactly where the survey says, just avoid the cost of going up and down through a creek and then he’s just ducked down to the south a bit. So I’ve mapped the location of that fence to give the fence line exemption. But between the digital cadastral database representation of the northern and western boundaries, it swings around about so they sort of cross over each other a bit. But in terms of the scale of the property and the accuracy stated on the datasets, it makes sense. So just so I can be clear about this: what are the inner and outer limits of the difference between the fence line as you’ve mapped and the 2014 digital cadastral database?--In some areas, it’s probably sitting within a metre - - -

BENCH: It is what? Sitting?---It would be within a meter of each other - - -

Yes?--- - - - your Honour.

MR HUNTER: What’s the maximum - - -?---Well - - - departure?

MR GOULEVITCH: - - - it’d be around 10 metres. I don’t think any were 15 metres. maybe 12 metres here and there on the odd points but relative to that sort of country, the – from my perspective as a licensed surveyor, given that the fences aren’t the boundary and the DCDB’s not the boundary, they relate to each other quite well.[225]

MR HUNTER: All right. Well, dealing then with areas that you have identified as cleared that are on those boundaries or adjacent to the boundaries, how is it possible to tell whether they are actually on Chess Park as in lot 5 of WK207?

MR GOULEVITCH: In terms of whether they’re on Chess Park, I would say anything – anything within the most conservative of those two boundaries you could reasonably say is definitely on Chess Park. In terms of splitting hairs between that 10-metre uncertainty zone, no, I – I can’t – I can’t say one way or another. But I can say that the clearing has continued up to the fence line on the western boundary and along the northern boundary. So wherever that fence is, that’s where the clearing has gone up to, your Honour.

MR HUNTER: So you say you’ve allowed for a 10-metre – was it 10-metre uncertainty area. What do you mean by that?

MR GOULEVITCH: In terms of – there’s uncertainty between – well, there’s discrepancy or difference between the DCDB location on the ground and fence lines. As I said, I would give weight to the fence lines on major corners like the north-west corner because they would have been surveyed. A large survey post would have been located and my experience from doing rural surveys is the landholder will pull that post out and put a new post in if the fencing needs to be redone. If the fencing doesn’t need to be redone obviously they won’t do that. Sometimes you’ll see the survey posts within half a metre, two metres, five metres, 10 metres from the fence post, but this is just the nature of fencing in rural areas.[226]

MR HUNTER: Sorry. You said you’re pretty comfortable and then you used the word ‘definite’. Can you – what do you mean? You’re pretty comfortable that they’re definitely inside Chess Park I think was the quick paraphrase of what you said?

MR GOULEVITCH: Perhaps change definite. The only way to be 100 per cent sure is to perform a cadastral survey, but given the current survey regulations requirement that you can – it will tolerate a 10 to 20 metre error in the cadastral reinstatement that you do on – from the DCDB which the DCDB section said has got a five metre accuracy on the external boundary relative to the proximity as we can observe on screen. Perhaps not of the deviation around the creek, but the other boundaries are quite close. So if I come 10 metres inside those boundaries, the polygons are within the DCDB extent of Chess Park as well as the physical on ground fence line of Chess Park.[227]

The appellant’s contentions 

The respondent’s contentions 

MR HUNTER: And so – and it’s, in our submission, absent some evidence before you that this was a genuine error by counsel below. Why would your Honour permit a defendant on appeal to rely upon such technical points about admissibility, in circumstances where counsel below didn’t take the point, arguably, because it wasn’t a matter of any dispute and he knew that, if, put to proof, the Crown could prove these things.

HIS HONOUR: Yes.

MR HUNTER: I mean the – for example, the accuracy statement about the DCDB; I mean the Crown could have put into evidence the map that exists that shows, with colour codes, the various levels of accuracy across the state, varying between 30 metres and centimetres. But the Crown could have put that in if there was thought to be a genuine dispute about it, but the point wasn’t taken. The Crown could have led a lot more evidence about how the ArcReader and ArcMap software worked, about the extent to which it is used across the world for precisely the sorts of exercises, that – exercise that was being undertaken by Mr Goulevitch. So there is, in our submission, something desperately unattractive about the idea that an appellant can come before this court, having made what appear, on their face, to be forensic decisions not to object to evidence because it wasn’t in dispute, and then come here and argue that, for technical reasons, the evidence ought not to have been received.[233]

Analysis 

The inadmissible hearsay evidence

Adequacy of evidence as to boundaries

Her Honour’s reasons

The following remarks of Henry LJ in Flannery v Halifax Estate Agencies Ltd[241]relating to expert evidence were referred to with approval in the reasons of Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd:[242]

“It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eyewitness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: see Bingham LJ in Eckersley v Binnie (1988) 18 ConLR 1 at 77–78:

‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...’” And:

“... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other ...”.

The publication point

 

The regional ecosystem map point

 

CHALLENGES TO MR DILLEWAARD’S EVIDENCE 

Background

 

Mr Dillewaard’s evidence

 

General evidence on methodology

MR HUNTER: So from 1999, 2000 or thereabouts, what was the way in which the mapping of Queensland regional ecosystems was undertaken?

MR DILLEWAARD: The – the mapping is a process of mapping out what we call the pre-clearing extent of regional ecosystems across the landscape and then deriving – and that’s mainly done from the interpretation of stereo air photographs normally around the 1960s era, because that particular time there was a consistent coverage of aerial photography across the state, and it also picks up a fair amount of – of vegetation prior to large amounts of clearing that had occurred. Now, with the availability of Landsat imagery, we then also derive what we call remnant regional ecosystem coverages, and that starts from about 1995. And about every two years we revise the remnant regional ecosystem mapping based on – on the availability of the new Landsat imagery. So then we start to pick up a picture of the extent of clearing that occurs over a time period. So we have 1995, 1997, 1999 right up until the current version, which is based on 2013 Landsat imagery, and we’re just about to start on the revision for – based on 2015 Landsat imagery.

MR HUNTER: Now, what’s the resolution of the Landsat imagery that’s used?

MR DILLEWAARD: It’s 30 metre pixels.

BENCH: Sorry, didn’t hear?---Sorry? How many pixels?---Thirty metre.

MR HUNTER: So the determination of the extent of native vegetation, for example, in a particular place on Queensland, is that done by reference to someone actually being on the ground, or is it done by reference to the remotely-sensed images from Landsat?

MR DILLEWAARD: No. It’s a combination that vegetation communities, particularly where you can examine them under stereo microscope, reflect threedimensional properties of both the landscape and the vegetation. So based on that initial examination that you – you pick up on environmental variables that reflect normally the – the – what type of vegetation might be growing in that particular area, and then that - - -

BENCH: What are these communities? I just don’t quite - - -?---So these – these are vegetation communities - - - Yes?--- - - - your Honour. And you started the mapping primarily because of those. Where is the information coming from?

MR DILLEWAARD: So from the – from the – a combination of looking at this imagery and looking at the different patterns that that imagery reflects on that imagery. And those patterns relate to either different vegetation community types, which then reflect – which also reflect things like different landform types, whether they’re on flats or on hills and that sort of information. And we also at geology, soils and also land systems data, which is – it’s, essentially, prior or additional information that reflect the environmental variables that vegetation responds to. So you get different vegetation communities growing on the creek flats to what might be growing on a hilltop or on those sort of things or, yeah, depending on where you are in the landscape. And those sort of patterns are quite distinguishable on – on imagery. So you start there, and you, essentially, just are mapping different patterns, your Honour, and then you follow that up with field work in order to both quantify and describe what those particular patterns are relating to. So if you come across a particular pattern – and we call them unique mapping units because they have a particular set of criteria in terms of their – their colour, their texture, their – their – just their general sort of appearance on the imagery. And then when you sample that particular community, you then sort of pick up both variation within that signatures, and then you can extrapolate that – that information to areas that you haven’t sampled.

MR HUNTER: And is the extrapolation of what you have seen in one place to areas that you haven’t sampled, is that a scientifically valid exercise?

MR DILLEWAARD: This – this is a technique that is used around the world and has been for quite some years. It’s the same technique that primarily was used in order to even map other attributes like geology, landform and soils, and there’s various data sets associated with that. But, yeah, it is a world-recognised method for – for mapping vegetation, and – and, yeah, a common thing in Australia. And it’s, yeah, something that we’ve been doing since, as I said, yeah, the mid-’70s.[244]

[Underlining added]

MR HUNTER: Can you explain what that meant in terms of the way you went about looking at the various areas on Chess Park?

MR DILLEWAARD: In order to determine, first of all, the class or the vegetation management class associated with the regional ecosystem, I – whether it’s a leastconcern, of-concern or endangered regional ecosystem, you do need to identify what the regional ecosystem is. So based on the definition of a regional ecosystem, which is a vegetation community within a bioregion characterised by geology, landform and soils, I determined, first of all, what the regional ecosystems were or are, and that was based on both the application of a whole method in order to assess that. And I refer to a methodology that the Herbarium has that is used to map regional ecosystems and describe regional ecosystems in Queensland.[248]

MR DILLEWAARD: GIS software. So you can access all the imagery and the Shakefiles, but that tablet also has its own GPS and you can set it up so you can have real-time tracking with you, in the field. So based on – on that you can determine exactly where you are. We never get lost in – in the bush, your Honour, because we know exactly where we are – unless the computer breaks – and you can then sort of relate issues that you’ve determined, both through your desktop exercise or new – new information based on imagery that – or, you know, that you’re – you’re seeing in – in the field, to – to, yeah, you know, essentially what – what you can – what you can see. So you’re always trying to relate the – the – the two together.[251]

Specific evidence on Chess Park inspection  

[44 is the]… most south-western point, 45 is the middle one that’s half covered and 46 is pretty much where label 45 is adjacent to - - -

… 

So what did you find?---At that point, I – I found – and I measured crown cover associated with – with my transect. I found across that particular area that the crown cover was 31.5 per cent. I took a – a number of height measurements associated with the species in the predominant layer. Those measurements – and I only took a – a – a – a few of these, but those measurements were 33.6 metres, 24.1 metres and 20.3 metres, to get an average of approximately 22.6 metres. And what species?---The species – the common names?

Yes, please?---Narrow-leaved ironbark, gum top box, rusty gum and a pink bloodwood.

Are they all native species?---All native species.

Was that the canopy layer?---That was the canopy layer.

And what was the - - -?---I - - - sub-canopy?---Yeah, there was only one tree that I – was left remaining and that was a soap wood, Alphitonia excelsa.

Okay. And there’s only one of those left?---There was only one of those left and there was also a – a few wattle species, acacia species.

All right. Well, are they all native species?---They’re all native species.

And what about in the canopy layer; were they all native?---In – in the canopy, yes, they were all native.

All right. What was the height of the sub-canopy?---I didn’t measure that.

All right?---I didn’t measure that, but I’ve got on my notes here - - -

All right. And you also noticed some ground cover?---Yes, there was kangaroo grass and a – a saw sedge. The kangaroo grass, you want the scientific name?

No, no - - -?---No.

- - - just kangaroo grass is fine?---Yeah.

MR HUNTER: And you, again, you examined the geology of the scene as – of the area as well?---Yeah. I – I also record issues about soils; that there were, essentially, sandy soils which is – is one of the characteristics of – of – of land zone 5. It’s – it’s not the only characteristic - - -

Well, perhaps can we move to you telling us about the Regional Ecosystem code, if any, that applied to that area?---Now, that particular area I attributed it to Regional Ecosystem 11.5.20.

So what does the 20 refer to?---Now, that’s – that’s a different – it’s – it’s the same bioregion, it’s the same land zone as previously but it’s more dominated by the gum top box than it is the – the narrow-leaved ironbark, hence it’s – it’s a different Regional Ecosystem; it’s a – a different vegetation community and its correct name is – or number is 11.5.20. 

Identifying the character of cleared vegetation 

All right. Thank you. You can put that back. Now did you make digital versions of those maps?---I did.

And are they more detailed than is possible to reproduce at A3 size?---Yes.

And did you provide those digital maps to Mr Goulevitch?---I did.

All right. And did you undertake a comparison between the areas that you had mapped in your two amendments, that is the updated 6.0b and 8.0 and compare the areas that you had mapped with the areas that Mr Goulevitch had identified in what had been referred to in these proceedings as the charged polygons?---That’s correct.

And did you then go on to identify what, in your opinion, was the applicable regional ecosystem within each of the charged polygons?---That’s correct. Yeah.

All right. Is that a - - -?---You – you mentioned previously that – that there was that remnant, non-remnant updating that had occurred. That also applied to the regional ecosystem mapping of all types that were present originally. I see?---And based on my field work I was able to refine those.

Do you mean in terms of the regional ecosystems in the coding that we referred to?--The [indistinct] Yes. Yes. In – in the – the composition of the – those polygons or – yeah, mapping areas that you can see on – on those maps. Yeah.

All right. Thank you. Is that a convenient time, your Honour?

BENCH: Did I understand that? As a result of your field trip you also refined and identified the regional ecosystems in the charged polygons, not just whether they were a remnant or a non-remnant?---Oh definitely, your Honour. Yes.

But the system?---That’s – that’s correct. Yes.

All right. Now, the regional ecosystem isn’t particularly relevant in relation to a charge under the Forestry Act, which is what we are dealing with here, but in terms of your categorisation of the regional ecosystems, obviously we are dealing with areas that had been cleared so how did you work out what had been in those areas before the clearing took place?---By relating the imagery that showed the vegetation before the clearing and relating that to the areas cleared I was able to determine that those areas did contain remnant native regional ecosystems at the time of the clearing so it was a process of relating all the analyses that I had done, the desktop analysis, the field validation of patterns and signatures that I could see on the imagery, back on to the imagery post the clearing and then determine, based on an intersect between the clearing polygons and my updated mapping, what areas of regional ecosystem existed there. 

All right. Now, with what level of precision is it possible to break the areas down into the different regional ecosystems? So I’m not talking about areas that are of least concern generally but areas that are specifically - - -?---Related - - - 11.5.1 as opposed to 11.5.20. Is there some bright 5 line that delineates the two types of ecosystem?--No. As I went through the imagery and looked at the site data,  the variation between different regional ecosystems is very subtle on – almost  non-existent on the signatures that you get from the imagery that I looked at. It is still beyond the capacity of remote sensing to identify a large number of species just from remote sensing itself and you do need to rely on your ecological knowledge, your assessment of the various natural resource information layers that are available, like geology and soils, and the land form in the form of topography, relating that also to your field notes and also your field knowledge of the area. 

However, on my reading of the transcript it appears that both her Honour and Mr Sheridan understood explanations given by reference to the technical exhibits.[259]The photographs taken by Mr Dillewaard and referred to in evidence are Exhibit 34.2.  (I should add that the version of Exhibit 35 which I used for these Reasons did not appear to allow me to review the photographs taken by Mr Dillewaard and explained in his evidence.  This did not impact on my ability to consider the issues which arose, particularly as the information I did have included both the location of the photographs and Mr Dillewaard’s description of what he could see.)

Cross examination  

The appellant’s submissions

 

explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.[266] 

(2001) 52 NSWLR 705, as well as Kyluk v The Chief Executive NSWCCA [2013] 114 for this proposition.

Note: where the Magistrate’s First Decision indicates that DILLEWAARD “recognized” the charge area, or he was familiar with the polygons” or he visited waypoints “proximate” or “in the vicinity” of the chare area, this is taken to mean he did not actually physically visit the charge area. 

be noted that Exhibit 35 was apparently prepared and tendered at the request of the defence at trial and tendered without objection.)  

Regional ecosystem linework has been compiled at a scale of 1:100 000, except in designated areas where a compilation scale of 1:50 000 is available. Linework should be used as a guide only. The positional accuracy of RE data mapped at a scale of 1:100 000 is +/- 100 metres. The extent of remnant regional ecosystems as of 2011, depicted on this map is based on rectified 2011 Landsat TM imagery (supplied by SLATS, Department of Natural Resources and Mines). 

Disclaimer: While every care is taken to ensure the accuracy of this product, the Department of Natural Resources and Mines makes no representations or warranties about its accuracy, reliability, completeness or suitability for any particular purpose and disclaims all responsibility and all liability (including without limitation, liability in negligence) for all expenses, losses, damages (including indirect or consequential damage) and costs which you might incur as a result of the product being inaccurate or incomplete in any way and for any reason.

The respondent’s submissions

 

Analysis

 

Relevant principles 

In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached:

that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.

The opinions of Mr McCombie were never expressed in admissible form. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.

[Underlining added]

If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. In Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39–40, Lord President Cooper, in a case concerning liability for damage to dwelling houses allegedly caused by blasting operations in the course of constructing a sewer, said: 

“The only difficulty experienced by the Lord Ordinary and developed before us arose from the scientific evidence regarding explosives and their effect. This evidence was given by Mr Teichman, one of the technical staff of the ICI, with whom a fellow employee, Mr Sheddan, was taken as concurring. Mr Sheddan was cross-examined on his qualifications with considerable effect, and the point was taken that Mr Teichman was truly uncorroborated. I do not consider that in the case of expert opinion evidence formal corroboration is required in the same way as it is required for proof of an essential fact, however desirable it may be in some cases to be able to rely upon two or more experts rather than upon one. The value of such evidence depends upon the authority, experience and qualifications of the expert and above all upon the extent to which his evidence carries conviction, and not upon the possibility of producing a second person to echo the sentiments of the first, usually by a formal concurrence. In this instance it would have made no difference to me if Mr Sheddan had not been adduced. The true question is whether the Lord Ordinary was entitled to discard Mr Teichman’s testimony and to base his judgment upon the other evidence in the case. 

Founding upon the fact that no counter evidence on the science of explosives and their effects was adduced for the pursuer, the defenders went so far as to maintain that we were bound to accept the conclusions of Mr Teichman. This view I must firmly reject as contrary to the principles in accordance with which expert opinion evidence is admitted. Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court … Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.” 

Lord Carmont expressed “complete agreement” with those views. Lord Russell said (at 42)

“… The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science. If it appears to be based on a sufficiency of research directed accurately and relevantly to a particular issue and to be so supported as to convince a Court of its fundamental soundness and applicability to the particular issue, a Court is entitled, although not obliged, to accept it, even if unsupported by any corroborative expert opinion. Secondly the defenders argued that in the absence of any counter evidence of expert opinion in the science professed by Mr Teichman the Court is bound to take his opinion as conclusive, and as decisive of the issue. I am clearly of opinion that that argument must be rejected as being contrary to the principles by which the rules of evidence are regulated, and as constituting an unwarrantable encroachment on the judicial function of the Court. I respectfully agree with your Lordship’s observations on that topic.” 

Lord Keith concurred with all the opinions expressed.

It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (51)) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita (52), that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. 

s. 222, I refer again to paragraph [696] above.

The use of the phrase "strictly speaking" in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing. It would probably lead to further difficulties in the appellate process.

In Queensland the practice has been that, where a party wishes to confine the evidentiary use which may be made of a document which is admissible for a limited purpose, counsel for that party states that there is no objection to the document being admitted for that purpose or objects to the document being admitted for any other purpose… To the extent that the consequences of a failure to object are determined by the operation of the doctrine of waiver, the effect of the practice in Queensland is that, generally speaking at least, a party who fails to object to inadmissible hearsay evidence contained in a document which is admissible as original evidence will have waived its right to limit the use to which the evidence may be put.

What is the error alleged?  

Sufficient to prove native vegetation was cleared?

Some preliminary considerations  

Location of waypoints proved

Regional ecosystem maps were of high probative value

Mr Dillewaard’s methodology  

   [Emphasis in original, footnotes omitted]

Mr Dillewaard’s reasoning for each charge  

Other issues

Alleged failure to prove the location of specific regional ecosystems

Mapped RE

VM Class

Cleared Area (ha)

Total for charge (ha)

11.5.1

Least Concern

6.4

 

11.5.20

Least Concern

32.0

 

11.7.6

Least Concern

27.0

65.4

Does your table set out the three categories of regional ecosystem that you mapped in the area?---That’s correct. Yes.

And each of those is a least concern regional ecosystem?---That’s correct.

And so this is something that’s mapped as green on the map 6.0b?---That’s correct.

All right. And you’ve set out the area of each of the three regional ecosystems?--That’s correct.

And the total area that you observed?---That’s correct.

All right?---Those areas are based on a proportion that is allocated to those regional ecosystems within the specific polygon that that charge areas – polygon or polygons that that charge area may intersect so it’s purely an analytical GIS exercise to relate the proportions of those mixed polygons to the area of that particular charge.

All right. But regardless of the proportions of the different areas of the regional ecosystems, was the whole of the charged polygon an area of least concern?--Definitely. Yes.

The regional ecosystem mapping point

 

Appeal in relation to Mr Dillewaard’s evidence is dismissed

 

THE LOWEST COMMON DENOMINATOR ISSUE 

CHALLENGES TO MR TRAN’S EVIDENCE 

Introduction

 

Summary of Mr Tran’s evidence

 

General evidence

Okay. The type of clearing in both the extent and size of the clearing is something I've never seen before in my professional career. So in Defence, the maximum area that we would clear for a perimeter fire trail, your Honour, is 20 metres and they're typically around explosive ordnance depots. So this is where the Defence Department store their bombs, ammunitions prior to loading them onto tanks and planes. So we'll have always there - there are exceptional circumstances where 20metre wide clearings are utilised and that's consistent, regardless of your location with Defence. So in some of these areas where the clearing is beyond 20 metres is - I've never seen that in my life. Typically, most fire trails are never more than five, six metres wide in - across most of the estate, and we manage about 3000 kilometres of fire trails on behalf of Defence each 40 year. Furthermore, the parallel clearing is something I've not seen before in my life either where there - there's a wider area of vegetation modification followed by a standing strip of - of standing vegetation and then a smaller area of - of clearing and vegetation modification. I'm not a - a fire manager on the ground, like DEWANs, but for me that would cause confusion if you were to send fire crews into fighting a fire because you don't know where to send them to. If you say, go to the western perimeter firebreak, there's a multitude of fire trails there that can cause confusion.[309]

Evidence on Complaint 1 

MR TRAN: Working with State Forest, you would implement a 10 metre perimeter break particularly given the fact that your neighbouring property also has a fire access track along their boundary. It would've been more than sufficient to provide bush fire mitigation or an advantage in this case.

MR HUNTER: Some people might argue that the bigger the fire break, the better. You did touch on this a little bit earlier. Can you explain whether or not that's true?

MR TRAN: There's been a fair amount of research looking at vegetation modification and its effectiveness to arresting fires or stopping fires. They do work up to a certain extent but beyond your normal 10 metre along the perimeter width, once the fires - once the fire danger index reaches a particular threshold, high, or very high, and they're associated with wind speeds above 24 kilometres an hour, it really doesn't matter what width of firebreak you have because the potential for embers, spot fires, radiant heat exposure, all contribute to advancing the movement of that fire beyond the fire access track.

MR HUNTER: How far in advance of the fire front can there be embers?

MR TRAN: It can be in the tens of kilometres. So the most pertinent example in south-east Queensland is the 1994 Beerburrum fires in and around Caboolture where the pine plantations are, your Honour. Those fires spotted over the bay to Bribie Island. So that's 20-odd kilometres. The 2009 Black Saturday fires, they found live embers from infra-reds from their helicopters many, many kilometres in front of your fire front. So in those cases and instances, rare as they are, no fire trail or fire break is sufficient to stope embers.

MR HUNTER: You heard the evidence of Mr Re[i]nke that this sort of vegetation didn't really lend itself to a crown fire because of its density or lack thereof. What do you say about that?

MR TRAN: Certainly looking at the photographic evidence, the discontinuous hill structure from the under [indistinct] from the ground into the canopy certainly reduces the chances of crown fire development. That, coupled with lower productivity of this landscape in the western country where rainfall is lower, that obviously has an impact on grass growth. The prevalence of ironbarks is a good sign that you have lower productivity country and less likely for canopy fires to develop… simply because you don't have that laddering fields to allow fire to propagate into the canopy. I will also say that you don't ever get a crown fire unless you have a ground fire. So fires don't jump top to top and people might say that is the case but there's always an associated running fire on the ground to facilitate that heating element as the heating pushes through and dries that canopy to make it more volatile to combustion.[318]

Evidence on Complaint 2 

MR HUNTER: All right. Now, in terms of your fire management strategy – or the fire management strategy that – management strategy that you would employ on this property?

MR TRAN: Yes.

MR HUNTER: Does it make – does the availability of help in fighting fires make any difference in terms of the way in which you would approach the issue of fire management?

MR TRAN: I think cooperation with neighbours always helps with fire management. MR HUNTER: But let’s say the situation where you have a fire going on the property, but Mr Baker, for example, was left to himself… to deal with the fire as he could, perhaps with the help of a couple of neighbours, but… no response or no assistance from any rural fire service or anything like that. Does that make any difference in the way in which the fire should be managed on this property?

MR TRAN: Yes. The ability – your self confidence and knowledge of fire and how fires may work across the landscape has a very big influence on landholders’ ability to fight a fire.

MR HUNTER: But, for example, if Mr Baker was, essentially, on his own, would that mean that wide clearing such as that which we see here becomes a more reasonable strategy?

MR TRAN: No. No. My experience with places like forestry where we were able to fight fires, two of us were able to pull up fires in, say, a 400 hectare block quite safely. It all comes back down to knowing your country, knowing how fires behave and move in the landscape, to be able to come up with some strategies to arrest even moderately intense fires.[326]

MR HUNTER: What do you say about the desirability or otherwise of putting a fire trail through there?

MR TRAN: In this current location, it’s an astute place to put a fire trail. It helps with breaking up a contiguous area of potential risk. It also provides fallback lines from both the FEA and into the State Forest boundary. There are – there’s water points close to this particular location further to the east, so that provides good egress and access to those particular water points – I think that’s actually one in that location there. It’s a good place to have a fire trail and, in fact, I have identified it also as an internal fire trail in my idealised fire map.

BENCH: Yes?

MR TRAN: To maintain that – the five metre width along the fence line is a sound land management practice for bushfire mitigation.

MR HUNTER: How wide would you, consistently with what you say is sound bushfire management, make that?

MR TRAN: I always contend internal fire trails to be five metres in width, and I don’t waver from that width.

MR HUNTER: All right. Thank you. How does five metres compare with the width of your average fire fighting vehicle?

MR TRAN: A fire fighting vehicle is usually – a slip on unit is a LandCruiser or Patrol – Nissan Patrol. So that’s maybe two metres at the wider extent. And you usually allow one metre or one and a bit metres on each side so that in circumstances where you need to pull up next to each other to communicate or, you know, draught water from each other’s tanks, it allows you to do that safely. So usually five metres

– five metres is typically more than sufficient.[327]

Evidence on Complaint 3 

Evidence on Complaint 4 

MR HUNTER: So that’s photograph 221. Now, according to Mr Goulevitch, the 20 area in charge 7 on complaint 4 was cleared between 19 August and 20 September 2011?

MR TRAN: Yes.

MR HUNTER: And we know that there was fire activity in September 2011?

MR TRAN: Yes.

MR HUNTER: Do you say that – what do you say about the clearing here? Was any part of that, in your view, potentially reasonable provision for managing fire?

MR TRAN: Yes. And I said that in my summary report that, potentially, if there was a fire in this locale – and quite clearly in September ’11 there was – the type of clearing that you see in this – that sort of A-shape on its side that I’m running my mouse over could have been required to help arrest the fire. But quite clearly the other vegetation modification along the Dyngie State Forest boundary, as well as the northwest southeast run, suggests something outside of a run of – trying to stop the run of a fire because the width and the systematic clearing nature suggest that there wasn’t a fire in the area at the time of the modification of that vegetation… BENCH: And with – here, where the A-shape - - -?

MR TRAN: Yes. Yes, your Honour.

BENCH: - - - indicates that it was something other than fire?

MR TRAN: No. The - - - I just didn’t quite hear you? - - - Sorry, your Honour. To be clear, the clearing sort of from this point up to here and around here could suggest that the landholder was trying to arrest the fire as it was coming because the nature of the track and the width of it being on seven metres when I measured it may be conducive to trying to pull a fire up in this location. But the clearing, in my view, along this part up to here and then down the boundary with the Dyngie State Forest to me, in my view, suggests more of a systematic vegetation removal outside of a running fire. 

MR HUNTER: Now, even if it was outside of a running fire, is that – excluding the A-shaped area?

MR TRAN: Yes.

MR HUNTER: Was, in your view, that clearing reasonable provision in relation to preventing, detecting, controlling and extinguishing fire in the State Forest?

MR TRAN: No.

MR HUNTER: What about preventing fire getting into the State Forest?

MR TRAN: In my view, no.

MR HUNTER: What measures were already in place prior to the clearing taking place?

MR TRAN: As I’ve indicated in my plan, I would have that 10 metre fire perimeter – fire [indistinct] perimeter along the Dyngie State Forest boundary. Because the area is also well afforded in terms of open area as well as existing fire trails, there’s primary, secondary and tertiary fallback lines in this part of the world, so there’s no need to construct additional fire trail infrastructure.

Given the shape of – not so much the shape of the area, but the vegetation that was left standing, would it have been a straight forward task to get in there and clear out the understorey, if it was being done to arrest a running fire?—No. As I’ve mentioned in previous testimony, if you were able to use a dozer to cut a fire off, it would not be 94 metres wide.  It would be three metres wide, to be able to use one or maybe two dozers at your disposal to be able to link, you know, tracks up to cut that fire off before it impacted on further parts of your landscape.

Cross examination of Mr Tran 

MR SHERIDAN: But doesn’t it suggest though, you look at the vegetation either side and if you imagine it laying flat and if it touches, you should make it wider?

MR TRAN: No. Because you have to understand, in the mitigation of bushfires, a six-metre wide fire trail will stop the forward movement on a fire up to and including two – two and a half thousand kilowatts per metre. Beyond that, most fires are humanly not able to controlled. So in those situations, if there’s a bushfire running, you fall back to asset protection and protection of life and property. You’re not going to be sending crews out into the – fire – into the fire to attack the head of a very intense bushfire. So it – it’s – that’s the reason why you have these networks of fire trails across your landscape.[357]

Maintenance of Fire-Lines – fire lines will be effective if they are properly and regularly maintained. Overgrown and poorly maintained fire-lines will not stop fires, nor will they allow safe access to personnel, making the fire-line useless and dangerous. Fire-lines should be clearly marked on the maps that accompany your fire management plans, and prior to each fire season, they should all be checked to ensure that they remain in good working condition (eg cleared of vegetation, properly graded of adequate width etc.). Firebreaks should be maintained to reduce vegetation that may increase the rate of spread of fire or fire intensity. To determine if the width of the firebreak is adequate, picture the vegetation on each side of the firebreak lying flat – if this can link the two areas separated by the firebreak, then you may need to consider widening the length of the firebreak OR remove more vegetation. If you have ‘habitat’ trees on your property (large tree hollows, generally older trees), then these serve an important ecological role and should be maintained within reasonable fire-risk parameters. The fuel around all habitat trees should be removed to a 2 m radius. This should reduce the chances of fire reaching the tree possibly causing further damage. Other trees that will require additional clearing at the base are those ribbon-barked species (namely eucalypts) and young-hollow stage trees.[363]

[Emphasis in original]

Submissions at trial and her Honour’s reasons

 

I accept his evidence in its entirety about the clearing undertaken by Mr Baker on Chess Park as being unsuitable for the management of bush fire for the many reasons he advances including the suitability of an alternative plan and the ongoing need imperative [sic] to monitor and prepare for the possibility of fire.

Approach to the appellant’s submissions

 

Criticism of Mr Tran’s area of expertise

 

Criticism relating to the factual basis for Mr Tran’s evidence

 

Criticism of Mr Tran’s evidence interpreting satellite images

 

Alleged inconsistency of evidence about existing fire trails

 

Failure to produce at trial scientific papers referred to in evidence

 

Criticisms of the idealised fire plan

 

Criticisms of the evidence as to width of fire trails

 

Failure to personally inspect

 

Conclusion

 

Ground 6 Issues

 

GROUND 3: ADEQUACY OF REASONS 

Introduction

 

Reasons on native forest practice

 

The issue as litigated at trial 

Statutory scheme

The Prosecution’s Trial Submissions

No “forest practice”, as defined[390], was being conducted. In particular, there was no “ongoing forestry business[391], there was no “restoration of a similar type[392] of tree to those that were felled, and the trees were not “felled for the purpose of being sawn into timber or processed into another value added product.[393] Further, the activities being conducted were not conducted in a way required by the code applying to a native forest practice on freehold land[394] in any case: wildlife habitat values of the forest stand[395] had not been maintained[396]; where understory clearing had occurred the clearing did not maintain the natural floristic composition[397] and range of sizes of each species of the regional ecosystem evenly spaced across the cleared areas[398]; where timber was completely removed there was no evidence of maintenance of biodiversity values of ecological processes[399]; and mature trees (bull-oak) were removed where the T2 layer was cleared[400]. Mr Baker’s voluminous handwritten

(Exhibit 30) in 2013, which applied only during the period of the latest five offences in time (Trial Day 5, page 61). Nothing was said to turn on the differences in the Codes.  The Code in Exhibit 30 is presented as an appendix to Guidelines to the Code, giving the entirely wrong impression that the Code is more what you would call guidelines than actual rules. 

Complaint 2, Outline of Closing Submissions on Behalf of the Prosecution dated 9 August 2016 at paragraph 3(g).

The definition is set out at paragraph 71 of the Outline of Submissions on Behalf of the Prosecution – Introduction and Statutory Framework, as it appears in the dictionary of the SPA.

Evidence of Mr Smith: Trial Day 14, page 36, lines 7 – 9, 23 – 24, 28 – 32; evidence of Mr Aslin: Trial Day 14, page 14, lines 20 – 40; evidence of Mr Reinke: Day 16, page 66, lines 43 – 46.

Evidence of Mr Dillewaard: Trial Day 9, page 65, lines 45 – 46; evidence of Mr Smith: Trial Day 14, page 36, line 26; evidence of Mr Aslin: Trial Day 14, page 13, lines 30 – 33; evidence of Mr Stumer: Trial Day 14, page 96, lines 22 – 26.

Apart from a reference to a pile of split posts in one place (evidence of Mr Dillewaard: Trial Day 9, page 65, lines 20 – 21; evidence of Mr Smith: Trial Day 15, page 36, lines 11 – 15) no witness gave evidence of seeing anything suggestive of the commercial harvest of timber. Evidence of Mr Aslin: Trial Day 14, page 13, lines 30 – 33; evidence of Mr Stumer: Trial Day 14, page 96, lines 28 – 31, 39 – 47; page 97, lines 11 – 15.  The code applying to a native forest practice on freehold land which applied throughout most of the charge period is that contained at Exhibit 42,19. Exhibit 31, tendered by the defence, which is effective from 2 December 2013, can only relate to clearing in respect of Complaint 4, Charges 23, 29, 30 and 31 which occurred after 2 December 2013.

Required outcome RO2 of Exhibit 42.19.

Evidence of Mr Dillewaard: Trial Day 9, page 64, lines 4 – 8.

Required outcome RO7 of Exhibit 42.19.

Evidence of Mr Dillewaard: Trial Day 9, page 66, lines 23 – 27.

Evidence of Mr Dillewaard: Trial Day 9, page 66, lines 15 – 16.

Evidence of Mr Dillewaard: Trial Day 9, page 66, lines 43 – 47; page 67, lines 1 – 2.

correspondence refers extensively to conducting cattle operations, but not to conducting a forestry business[401]. In any case, in August 2011, prior to any charged clearing commencing in the FEA, Mr Baker was advised in writing by the DNRM that the FEA could not be cleared under a notification of forest practice[402].

The appellant’s trial submissions

Her Honour’s reasons

Relevant principles

LMM submitted in this court that the judge dealt with Fletcher’s submissions by reaching conclusions which necessarily implied the rejection of those submissions. That is no answer to Fletcher’s complaint. The court is required to do more than decide the issues arising in a proceeding: it is also obliged to give reasons for rejecting at least the principal submissions relied upon by the losing party which relate to the issues upon which the result of the proceedings depends. 

The contrast in the manner in which the judge dealt with the submissions of the parties is striking, to the point that it appears that most of Fletcher’s arguments and the evidence supporting its arguments were simply ignored by the judge. If his Honour had any reasoned basis for rejecting the arguments, he did not state them. Fletcher was entitled to complain of that treatment.

In Conder v Silkbard Pty Ltd Beazley JA said that: 

It was incumbent for [the trial judge] to deal with the central contentions advanced by the parties and indicate, even in general terms, whether and why he accepted or rejected those matters. 

Similarly, the New South Wales Court of Criminal Appeal in R v Maxwell said: 

The appellant had a right to expect that the arguments put on his behalf would be dealt with in such a way that he could be satisfied that they had been understood and, either accepted, or, if rejected, that the rejection was based on a clear and rational process of reasoning.

Again in Australian Securities Commission v Schreuder Underwood J said: 

There is a clear obligation upon a judicial officer to deal with relevant submissions made by the parties for litigation. If this is not done, the parties are denied their proper rights of appeal and justice does not appear to have been done.

“… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.”

“… there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”

“It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: see Bingham LJ in Eckersley v Binnie (1988) 18 ConLR 1 at 77–78: 

‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...’”  And: 

“... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other ...”. 

These observations are also apposite, particularly in relation to the appellant’s contribution claim.

Appellant’s submissions

Respondent’s submissions 

Analysis

While you were on the property, did you see anything that was suggestive of the commercial harvest of timber or the conversion of any timber into some sort of commercial product?---The only evidence I saw was a pile of split posts, your Honour, at one location. The only other site I can recall is one we looked at this morning where there was some spotted gum that had been cut, but it would – that particular site would – it would be difficult to relate any specific forest products to – to that, but certainly that pile of split posts is – is – comes to mind.

BENCH: Mr Dillewaard, are you associated or have any knowledge of a forestry initiative – I think it’s a – to grow stands of timber for later harvesting with that - - - ?---Not really, your Honour. That’s – that’s not an area of - - -

Do you know what – do you know what I’m referring to?---Like, a forest plantation, or anything like that?

Yes, forest plantation, but, you know, spotted gum or some other type of gum - - -?---Like harvesting spotted gum?

- - - just for – with a specific view of harvesting in the future? I doesn’t - - -?---I’m aware - - -

Right?--- - - - that – that certain species have timber value, but in terms of specifically managing a – an area for forest products, that’s not my area of expertise, your Honour.

All right. Thank you.

MR HUNTER: Did you see any evidence of any planting of new trees?---There was no evidence there of plantations, no. 

[Underlining added]

The “cut and paste” contention

 

The extent of her Honour’s adoption of prosecution submissions on contentious issues

The appellant’s submission 

Although the appeal raises a short and orthodox question, the circumstances in which that question arises are, in our experience, unique. The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. Approximately 95% of the paragraphs of the reasons were so taken from the Commissioner’s written submissions filed in the Tribunal before the hearing in the Tribunal on 24 June 2010 and a further three or four paragraphs of the Tribunal’s reasons were taken from the Commissioner’s written reply, dated 14 July 2010, to the written submissions of the appellants before the Tribunal. Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. That jurisdiction in the present circumstances would include whether or not to exercise the discretion conferred on the Tribunal by s 42A(5)(b) of the AAT Act to dismiss the applications without proceeding to review the Commissioner’s decisions. The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction.

The respondent’s submission 

Reasons were adequate 

Reasons for accepting experts

 

Conclusion

 

DISPOSITION ON THE APPEAL

ANNEXURE A

Reference

Hearing Date

Event/Witness

Transcript Reference

A.

23 April 2015

Mention – Gayndah Magistrates

 

Trial Day 1.

15 February 2016

Openings

 

Trial Day 2.

16 February 2016

Smith

 

EIC by Mr Hunter

page 15, line 21

Trial Day 3.

17 February 2016

Smith

 

EIC by Mr Hunter

page 2, line 8

 -  EIC by Ms Dann

page 82, line 20

Excused

page 90, line 6

Goulevitch

 

EIC by Mr Hunter

page 102, line 12

Trial Day 4.

22 February 2016

Goulevitch

 

EIC by Mr Hunter 

page 21, line 1

Trial Day 5.

23 February 2016

Goulevitch

 

EIC by Mr Hunter

page 2, line 8

Trial Day 6.

24 February 2016

Goulevitch

 

EIC by Mr Hunter

page 2, line 8

Trial Day 7.

25 February 2016

Goulevitch

 

EIC by Mr Hunter

page 2, line 8

Trial Day 8.

26 February 2016

Goulevitch

 

EIC by Mr Hunter

page 2, line 16

XXN by Mr Sheridan

page 4, line 4

RXN by Mr Hunter

page 86, line 44

Excused

page 93, line 4

Trial Day 9.

29 February 2016

Dillewaard

 

EIC by Mr Hunter

page 2, line 43

Trial Day 10.

1 March 2016

Dillewaard

 

EIC by Mr Hunter

page 2, line 12

Trial Day 11.

2 March 2016

Dillewaard

 

EIC by Mr Hunter 

page 2, line 5

XXN by Mr Sheridan

page 54, line 4

Trial Day 12.

3 March 2016

Dillewaard

 

XXN by Mr Sheridan

page 54, line 4

RXN by Mr Hunter

page 61, line 39

Excused

page 67, line 27

Mossman

 

EIC by Mr Hunter

page 68, line 1

XXN by Mr Sheridan

page 82, line 18

RXN by Mr Hunter

page 92, line 36

Excused

page 98, line 13 

Trial Day 13.

4 March 2016

Aslin

 

EIC by Mr Hunter

page 8, line 39

Excused

page 24, line 11

Trial Day 14.

4 July 2016

Aslin

 
  

EIC by Mr Hunter

page 6, line 14

EIC by Ms Dann

page 36, line 47

XXN by Mr Sheridan

page 52, line 33

Excused

page 82, line 44

Stumer

 

EIC by Mr Hunter

page 82, line 29

EIC by Ms Dann

page 92, line 38

Trial Day 15.

5 July 2016

Stumer

 

EIC by Ms Dann 

page 3, line 1

XXN by Mr Sheridan

page 18, line 15

Excused

page 34, line 37

Smith

 

EIC by Mr Hunter

page 35, line 44

XXN by Mr Sheridan

page 40, line 34

Excused

page 56, line 7

Trial Day 16.

6 July 2016

Reinke

 

EIC by Mr Hunter

page 2, line 37

EIC by Ms Dann

page 61, line 30

EIC by Mr Hunter

page 66, line 14

XXN by Mr Sheridan

page 67, line 6

Trial Day 17.

7 July 2016

Reinke

 

XXN by Mr Sheridan

page 67, line 6

Sparrow

 

EIC by Mr Hunter

page 16, line 16

XXN by Mr Sheridan

page 39, line 30

RXN by Mr Hunter

page 51, line 4

Excused

page 52, line 6

Tran

 

EIC by Mr Hunter

page 52, line 15

Trial Day 18.

8 July 2016

Tran

 

EIC by Mr Hunter

page 2, line 7

Trial Day 19.

18 July 2016

Tran

 

EIC by Mr Hunter

page 4, line 18

XXN by Mr Sheridan

page 49, line 24

Trial Day 20.

19 July 2016

Tran

 

XXN by Mr Sheridan

page 2, line 7

RXN by Mr Hunter

page 104, line 1

Excused

page 107, line 33

Trial Day 21.

20 July 2016

Housekeeping

 

Trial Day 22.

17 August 2016

Closing submissions

 

Trial Day 23.

18 November 2016

Ex tempore decision

 

Trial Day 24.

24 November 2016

Mention – decision published

 

Trial Day 24.

27 February 2017

Sentence/Costs hearing

 

Trial Day 25.

28 February 2017

Sentence/Costs hearing

 

Ex tempore decision – s 599 SPA order

 

Trial Day 26.

20 March 2017

Handing down of decision

 

Decision on penalty 

 

ANNEXURE B

Baker v Smith (No 1) [2019] QDC 76

Footnotes

[1] Named for Eidsvold Station, which was in turn named for Eidsvoll, Norway where the constitutional assembly met to draft the Constitution of Norway signed there on 17 May 1814. The station was named by one of the seven Archer brothers, significant early Queensland settlers whose parents immigrated to Norway from Scotland in 1825. The youngest brother, Colin Archer, returned to Norway to become a successful ship builder, building Fram, the ship used by both Nansen and Amundsen in their voyages of polar exploration.

[2] Exhibit 14.1.

[3] Sustainable Planning Act 2009 (Qld) (reprinted as in force on 5 May 2011) (Reprint No. 1H revised edition).

[4] Sustainable Planning Regulation 2009 (Qld) (Reprint No 2C as in force on 4 February 2011).

[5] There were different reprints of Schedule 24 over the relevant period. Nothing was said to turn on the version adopted as I recall it. This version is from Reprint No 2C.

[6] Regional ecosystem maps were renamed by amendments to the VMA but nothing turns on this change in this appeal: see reasons at paragraph 222.

[7] See paragraph [352] below.

[8] Exhibit 17.

[9] See from paragraph [253] below.

[10] Trial Day 4, page 34, lines 34 – 44.

[11] Trial Day 4, page 42.

[12] Exhibit 14.15.

[13] Defendant’s trial submissions at paragraphs 30 – 33.

[14] Defendant’s trial submissions at paragraphs 79 – 83.

[15] Defendant’s trial submissions at paragraphs 127 – 129.

[16] Defendant’s trial submissions at paragraphs 16 – 22.

[17] Defendant’s trial submissions at paragraph 130.

[18] Defendant’s trial submissions at paragraphs 134 – 171.

[19] Defendant’s trial submissions at paragraphs 190 – 225.

[20] Defendant’s trial submissions at paragraphs 226 – 277.

[21] Trial Day 22, page 10, lines 3 – 21.

[22] Trial Day 22, pages 11-19.

[23] Trial Day 22, pages 19-20.

[24] Trial Day 22, pages 20-24.

[25] Trial Day 22, pages 26-34.

[26] Trial Day 22, pages 34-38.

[27] Trial Day 22, pages 38-41.

[28] Trial Day 22, pages 54-68.

[29] Trial Day 22, pages 68-72.

[30] Trial Day 22, pages 73-74.

[31] Trial Day 22, pages 74.

[32] Trial Day 22, pages 77-78.

[33] Appellant’s Part 1 submissions at paragraph 70.

[34] Court Document 11 filed in the Appeal

[35] Court Document 28 filed in the Appeal. That version omits the deletions from the original Notice of Appeal.

[36] Witheyman v Van Riet [2008] 2 Qld R 587.

[37] See from paragraph [390] below

[38] See [116] to [117] above and the Defendant’s trial submissions at paragraphs 127 – 129.

[39] Defendant’s trial submissions at paragraph 130 and in respect of some specific charges.

[40] See paragraph [119] above and the defendant’s trial submissions at paragraphs 134 – 171 and in respect of some specific charges.

[41] Defendant’s trial submissions at paragraphs 278 – 368.

[42] Concessions made + Submissions Abandoned by Appellant in the course of the hearing of Appeal, dated 5 September 2018 (court document 29).

[43] See also Commissioner of Police v Al Shakarji [2013] QCA 319 at [7] and note that at [65] White J affirms the requirement for error to be shown before proceeding to agree in the proposition at [7] of the judgment.

[44] See also Osgood v Queensland Police Service [2010] QCA 242 at [20]; Tierney v Commissioner of Police [2011] QCA 327 at [26]; R v Ruthven [2013] QCA 142 Cf. Forrest v Commission of Police [2017] QCA 132.

[45] Appellant’s Part 1 submissions at pages 22-34 with further submissions in Schedule 5 of some 30 pages.

[46] Appeal Day 1, page 44.

[47] Johnson v Miller (1937) 59 CLR 467 at 486; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 557.

[48] Karimbala Construction Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56 at [26].

[49] According to WK Allen, The Justices Acts of Queensland (3rd ed, 1965, LawBook Co) it was taken verbatim from s. 39 of the English Summary Jurisdiction Act 1879 (see page 116).

[50] Ibid; Kirk at [29].

[51] Allen, op cit, 117-122.

[52] See appellant’s conviction submissions at paragraphs 194 – 195.

[53] (2002) 54 NSWLR 39 at [15].

[54] Appeal Day 1, page 2, line 25 to page 39, line 26.

[55] United Telecasters at 600-601.8 especially at 600.9

[56] Appellant’s Part 1 submissions at paragraph 185 and Appeal Day 1, page 44, line 18.

[57] Appellant’s Part 1 submissions at paragraphs 162 – 166, 172 and 176 – 183.

[58] Appeal Day 2, page 118.

[59] Appeal Day 2, pages 119-120.

[60] (1955) 91 CLR 512 at 520.

[61] See paragraph [34].

[62] Outline of Submissions on Behalf of the Respondent – Conviction, paragraph 81.

[63] Appeal Day 1, page 77, line 23 to page 92, line 45.

[64] Appeal Day 1, page 77, line 23 to page 78, line 33.

[65] Appeal Day 1, page 82, lines 5-15.

[66] [2006] QDC 356.

[67] Appellant’s Part 1 submissions at paragraph 106.

[68] (1987) 163 CLR 508 at 520-521.

[69] (2010) 239 CLR 531 at [27]-[28].

[70] De Romanis v Sibraa [1977] 2 NSWLR 264 at 291, referred to with approval by the majority in John L at 520 and see Kirk at [26]-[30] where the Court recognised that particulars can later be given to ensure factual validity.

[71] See Macrossan J at 292-293, with whom Kelly SPJ and Williams J agreed.

[72] See Allen, op cit, 212-213; Marshall v Averay [2006] QDC 356 at [32]-[33].

[73] Macarone v McKeon at 297.27-.30 per Williams J.

[74] Acts Interpretation Act 1954 (Qld) s. 35C(1).

[75] VMA ss. 22LA, 22LB and 22LC respectively.

[76] Acts Interpretation Act 1954 (Qld) s. 35C(1).

[77] Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at [10].

[78] Appellant’s Part 2B submissions at paragraphs 489 – 490.

[79] Appellant’s Part 1 submissions at paragraphs 239 – 244.

[80] Appellant’s Part 1 submissions at paragraph 216.

[81] Exhibit 14.23.

[82] Exhibits 14.17 to 14.19.

[83] Exhibit 14.14.

[84] Harrison v President of Industrial Court of Queensland [2017] 1 Qd R 515 at [163]-[165]; Karimbla Construction Services Pty Ltd v President, Industrial Court of Queensland [2014] QSC 56 at [39]; S Kidman v Lowndes CM [2016] 314 FLR 358 at [133].

[85] D Pearce and R Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) at [4.13]-[4.14].

[86] See paragraph [55] above.

[87] The Macquarie Dictionary (7th ed, 2017).

[88] See Pearce and Geddes, op cit, [6.67].

[89] See for example Chapter 8 SPA.

[90] Coleman v Kinbacher [2003] QCA 575 at [12] to [17].

[91] This can be established using the ruler function to measure width for the charge areas available in Exhibit 23.

[92] Exhibit 27, BMG 3 slide 138.

[93] Exhibit 27, BMG 5 slide 44a (distance can be measured using the ruler function on Exhibit 23).

[94] Exhibit 27, BMG 5 slide 173a.

[95] Outline of Submissions on Behalf of the Respondent – Conviction at paragraph 304(c).

[96] Appeal Day 2, page 80.

[97] The date ranges are helpfully summarised in Attachment A to the Outline of Submissions on Behalf of the Respondent – Conviction.

[98] Trial Day 16, pages 30-31.

[99] Trial Day 2, page 16, lines 13 – 14; Trial Day 3, page 77, lines 14 – 34.

[100] Trial Day 3, page 77, lines 32 – 34.

[101] Trial Day 3, page 78, lines 13 – 14.

[102] Trial Day 3, page 78, lines 43 – 46.

[103] Trial Day 2, page 16, lines 16 – 24.

[104] Trial Day 2, page 16, lines 16 – 37. It is not clear what photographs were provided to the complainant at this time.

[105] Trial Day 15, page 38, lines 7 – 30; also see Exhibit 46.

[106] Trial Day 3, page 79, lines 37 – 39; Trial Day 15, page 41, lines 1 – 3; also see Exhibit 47.

[107] Trial Day 3, page 80, lines 21 – 22.

[108] Trial Day 3, page 81, lines 2 – 9.

[109] Exhibit 55.

[110] Trial Day 2, page 16, lines 39 – 41; see also Exhibit 5.

[111] Trial Day 3, page 81, lines 2 – 16.

[112] Trial Day 2, page 17, lines 45 – 46.

[113] Trial Day 15, page 41, lines 38 – 41.

[114] Exhibit 7.

[115] Exhibit 1.

[116] Trial Day 3, page 80, lines 26 – 31.

[117] Exhibit 32, lines 166 – 172.

[118] Exhibit 13.

[119] So much can be inferred from the location of the waypoints at which photographs were taken on during those inspections: Select the Complaint 4 areas and waypoints from the November 2013 and April 2014 inspections on the ArcReader at Exhibit 23 and see footnote 117; see also the evidence referred to at footnote 436 and 437 of the Outline of Submissions on Behalf of the Respondent - Conviction.

[120] Smith v Baldwin [1979] Qd R 380; Woods v Beattie [1995] 1 Qd R 343; Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254.

[121] Smith v Baldwin [1979] Qd R 380; Woods v Beattie [1995] 1 Qd R 343.

[122] Appeal Day 2, page 93, lines 11 – 14.

[123] J D Heydon, Cross on Evidence (Lexis Nexis) [17620].

[124] Walker v Hay [1973] QSCFC 9, judgment of Hoare J at 2.

[125] Walker v Hay [1973] QSCFC 9, judgment of Williams J at 37-38.

[126] Appeal Day 2, pages 41-47.

[127] See the 10 May 2018 submission at [94]-[95].

[128] Joseph v Worthington [2018] VSCA 102; Agius v R 80 NSWLR 486 at 501.

[129] Appeal Day 2, page 70, lines 1 – 30.

[130] Appeal Day 2, page 116; Trial Day 2, page 20, line 27

[131] See the references at footnotes 429 and 440 of the Outline of Submissions on Behalf of the Respondent – Conviction.

[132] Appeal Day 3, pages 50-52.

[133] Appeal Day 3, page 34, lines 37 – 38.

[134] Appellant’s Part 2B submissions at paragraph 33.

[135] Trial Day 4, page 68, lines 25 – 30 (though that must be read in the context of his evidence on Charge 4 overall).

[136] Trial Day 4, page 71, lines 1 – 10.

[137] Outline of Submissions on Behalf of the Prosecution: Limitation Periods.

[138] (2007) 97 SSR 416.

[139] (1996) 188 CLR 77 at 108.

[140] (2005) 139 LGERA 449.

[141] R v Perera [1986] 1 Qd R 211 at 217; R v Owen (1991) 56 SASR 397 at 406.

[142] See Exhibit 23 with the Field Trip 2 and 3 layers and the Complaint 4 areas only activated.

[143] To avoid any doubt, I use the word “exemption” here in a descriptive manner, and not in a manner which is suggestive of where the onus of proof lies.

[144] Exhibit 14.15

[145] See paragraphs 129 to 134 of that submission.

[146] Trial Day 1, page 22, line 46 to page 23, line 7.

[147] The appellant’s Part 2A submissions at paragraphs 91 to 111 repeats the submission for every Forestry Act charge.

[148] Appeal Day 4, page 97, lines 35 – 40.

[149] Compare Appeal Day 5, page 7, lines 20 – 26 with Appeal Day 5, page 15, lines 26 – 36.

[150] Appeal Day 5, pages 24.13 – 25.23.

[151] Appeal Day 5, pages 27-28.

[152] Appellant’s Part 2A submissions at paragraph 65.

[153] Appellant’s Part 2A submissions at paragraph 25.

[154] Appellant’s Part 2A submissions at paragraph 28.

[155] Dixon J in Johnson v Miller: see paragraph [772] below.

[156] See Beer v McCann [1993] 1 QD R at 27, lines 4 – 6 and 25 – 30 per Derrington J. See also Dowsett J at 39 lines 15 – 21.

[157] See the ‘Smith v Baker Table of Correspondence relevant to charges in complaints – Correspondence’ in Exhibit 40 handed up with the outlines of closing submissions and Annexure A Chronology of Key Events attached to the Introduction and Statutory Framework Outlines of submissions handed up on 15 February 2016 where this correspondence is referred to.

[158] Exhibits 40.4, 40.6, 40.13, 40.33, 40.35, 40.36, 40.38, 40.40, 40.43A, 40.43B, 40.44, 40.45, 40.46, 40.47, 40.50, 40.51, 40.55, 40.60, 40.103.

[159] Exhibits 40.1, 40.4, 40.14, 40.39A, 40.85A.

[160] Exhibit 40.58.

[161] Exhibits 40.1A, 40.39A, 40.60, 40.91.

[162] Exhibits 40.51, 40.157A, 40.157E.

[163] Exhibit 40.40.

[164] Exhibit 40.63.

[165] Exhibit 40.80.

[166] Exhibits 40.92, 40.92A.

[167] Exhibits 40.125, 40.129.

[168] Exhibit 40.55.

[169] Exhibit 40.42 [I comment that that is the obvious implication of the opening page of that letter, though not expressly stated in the terms in this paragraph of the submission].

[170] Trial Day 8, page 8, lines 16 – 18.

[171] Trial Day 15, page 50, lines 33 – 34.

[172] Trial Day 16, page 88, lines 22 – 23.

[173] Trial Day 7, page 49, lines 16 – 17.

[174] Trial Day 19, page 54, lines 4 – 5; page 71, line 30; page 73, lines 17, 28 – 30.

[175] See e.g. Trial Day 19, page 71, line 30; page 73, lines 16, 26-30; page 106, lines 24 – 25, 42.

[176] The Coal Mining Safety and Health Act 1999 identifies a mining lease, a mineral development licence and an exploration permit, each by reference to the definitions under the Mineral Resources Act 1989. Those tenures under the Mineral Resources Act relate to the mining of minerals, mineral occurrences and activities for exploring for minerals.

[177] A lease within the meaning of the Petroleum Act 1923 is a petroleum lease granted under that Act. The Petroleum and Gas (Production and Safety) Act picks up in the dictionary a mining lease, a geothermal tenure and a GHG lease, GHG permit and a GHG authority by reference to the acts under which those tenures are created and has as its main purpose facilitating and regulating the carrying out of responsible petroleum activities and the development of a safe, efficient and viable petroleum and fuel gas industry which it gives effect to by providing for a number of different authorities.

[178] The Geothermal Act 2010 picks up in the dictionary a mining lease, a petroleum lease and a GHG lease, GHG permit and a GHG authority by reference to the acts under which those tenures are created and provides for geothermal tenures which regulate geothermal exploration and geothermal production.

[179] The Greenhouse Gas Storage Act 2009 provides for the granting of GHG authorities to explore for or use underground geological formations or structures to store carbon dioxide or carry out related activities and otherwise picks up in the dictionary a mining lease, a petroleum lease and a geothermal tenure by reference to the acts under which those tenures are created.

[180] Exhibit 40.50 [I comment that the letter does not appear to refer to the appellant making QGC fence the pipeline].

[181] Trial Day 16, page 62, lines 19 – 20.

[182] Exhibit 40.120.

[183] Land Act 1994 s. 277A.

[184] Land Act 1994 (Qld) s. 285(1).

[185] Exhibit 14.4.

[186] Exhibit 14.10.

[187] Part of Exhibit 14.3.

[188] See also appellant’s Part 2B submissions at paragraph 223.

[189] See footnote 12 in appellant’s Part 1 submissions.

[190] In addition to the submissions referred to in paragraph [660] of these reasons, see Appeal Day 6, page 14, lines 11 and 12 and Appeal Day 6, page 33, lines 1 – 9.

[191] Outline of Submissions on Behalf of the Respondent – Conviction at paragraph 12.

[192] (1935) 54 CLR 4 at 9.

[193] See ss. 5(1) and 6(1) Criminal Appeal Act 1912 (NSW).

[194] These parts of Gleeson J’s judgment were specifically approved in a case involving a wide range of alleged errors in R v Ignjatic (1993) 68 A Crim R 333 at 336-341, including where an argument was made that a confession ought to have been the subject of objection, though the tenor of the judgment is that the Court was not persuaded such an objection would have been successful.

[195] (1990) 19 NSWLR 677 at 703-704.

[196] (1994) 12 WAR 552.

[197] (1994) 12 WAR 552 at 555-556.

[198] (1994) 12 WAR 552 at 558-559.

[199] (1994) 12 WAR 552 at 559.

[200] See equivalent comments by McHugh J at [95] and Hayne J at [107].

[201] See the headnote to the ALR report.

[202] Paragraph 9 of his Honour’s judgment was applied by the Court of Appeal in R v PBC [2019] QCA 28 at [36] per McMurdo JA with whom Fraser and Morrison JJA agreed. In that case, a forensic decision between two unattractive options forced on the defence by an over enthusiastic crown submission was not accepted as being one which would attract the principle articulated by Gleeson CJ.

[203] While that observation might now be questioned where the inadmissible evidence comprised hearsay included in an expert report tendered without objection (see the discussion Beavan in paragraphs [859] to [860] below), the principle remains sound and is based on broader examples as the cases relied upon by Muir JA demonstrate.

[204] At 359.

[205] In the context of civil proceedings it has been invoked, for example, as the basis for appeals by litigants in person where the trial judge is said to have failed sufficiently to assist them in the course of the proceeding: Tomasevic v Travaglini (2007) 17 VR 100 at [141] to [142]; McWhinney v Melbourne Health (2011) 31 VR 285 at [20]-[26].

[206] Concessions made + Submissions Abandoned by Appellant in the course of the hearing of Appeal, dated 5 September 2018 at paragraphs 9 – 11 (court document 29).

[207] Appellant’s Part 2B submissions at paragraphs 214 – 216.

[208] Appellant’s Part 2B submissions at paragraphs 223 – 225.

[209] See Outline of Submissions on Behalf of the Respondent - Conviction at paragraph 217.

[210] See also Bevan v Western Australia (2012) 224 A Crim R 227 at [129].

[211] J Forbes, Evidence Law in Queensland (12th ed, 2018, Thomson Reuters Westlaw) at [95.7].

[212] Mehesz v Redman (No 2) (1980) 26 SASR 244; R v Weatherall (1981) 27 SASR 238 at 247; R v Wood (1982) 76 Cr App R 23; R v McHardie and Danielson [1983] 2 NSWLR 733.

[213] (1982) 76 Cr App R 23.

[214] (1980) 26 SASR 244.

[215] [1983] 2 NSWLR 733.

[216] (1996) 16 WAR 354.

[217] R v McHardie and Danielson [1983] 2 NSWLR 733.

[218] Trial Day 4, page 33, lines 6 – 23.

[219] See for example the comment by Mr Hunter QC, not cavilled with by Mr Sheridan, at Trial Day 4, page 33, lines 25 – 35; See Mr Sheridan’s evident familiarity with the kinds of clearing involved in previous prosecutions which can be inferred from his question at Trial Day 8, page 4, line 23; Mr Sheridan has appeared in a number of cases of this kind in the past including Witheyman v Van Riet & Ors [2007] QDC 342; Witheyman v Van Riet & Ors [2008] QCA 168; Witheyman v Simpson [2009] QCA 388; Western Queensland v Department of Natural Resources and Water [2007] QLC 15; Doyle v Minister for Natural Resources and Mines [2005] QLC 49; MacKenzie v Minister for Natural Resources and Mines [2005] QLC 47; MacKenzie v Minister for Natural Resources and Mines [2005] QLC 48; Mackenzie v Minister for Natural Resources, Mines and Water [2006] QLC 65.

[220] Appeal Day 6, page 63, lines 16 – 17.

[221] The phrase is used but not defined in the Surveyors Act 2003 (Qld) nor in the SMIA, though it has a technical meaning. That tends to be confirmed by the SMI Regulations which sets out requirements for cadastral surveys generally consistent with (but more detailed than) Mr Goulevitch’s evidence. There is also a document entitled Cadastral Survey Requirements Version 7.0 made by the chief executive of the Department of Natural Resources and Minerals pursuant to paragraph 3 of the Survey and Mapping Infrastructure Notice 2015 and s. 6 of the SMIA which contains high levels of detailed specification for the undertaking of such surveys.

[222] Trial Day 4, pages 28-29.

[223] Trial Day 3, page 29, lines 33 – 35.

[224] Trial Day 4, page 26, lines 14 – 38.

[225] Trial Day 4, pages 27-28.

[226] Trial Day 4, pages 29-30.

[227] Trial Day 4, page 32, lines 6 – 16.

[228] Trial Day 8, pages 9-10, 35.

[229] Trial Day 3, pages 32-35.

[230] Appellant’s Part 2B submissions paragraphs 242 – 273.

[231] Appellant’s Part 2B submissions at paragraph 252 and footnote 196, and paragraph 262 and footnote 218.

[232] Beavan v Wagner Industrial Services Pty Ltd [2017] QCA 246 discussed at [859] to [861] below.

[233] Appeal Day 6, pages 41-42.

[234] Appeal Day 6, page 44.

[235] PQ v Red Cross Australia [1992] 1 VR 19 at 34.

[236] Appeal Day 6, page 29, lines 31 – 39.

[237] Coleman v Kinbacher [2003] QCA 575.

[238] Concessions made + Submissions Abandoned by Appellant in the course of the hearing of Appeal, dated 5 September 2018 (court document 29) at paragraphs 6 – 8.

[239] See paragraph [752] above and Outline of Submissions on Behalf of the Respondent – Conviction at paragraph 231(e).

[240] See appellant’s Part 2B submissions at paragraph 266.

[241] [2000] 1 WLR 377 at 381–382.

[242] (2004) 60 NSWLR 127 at 137.

[243] See paragraph [818] below.

[244] Trial Day 9, pages 5-6.

[245] Trial Day 9, page 7, lines 31 – 46.

[246] Trial Day 9, page 8, lines 4 – 35.

[247] Trial Day 9, page 10.

[248] Trial Day 9, page 10, lines 34 – 43.

[249] Trial Day 9, page 11, lines 30 – 37 and see Trial Day 9, page 17, lines 1 – 28.

[250] Trial Day 9, page 18, lines 41 – 44.

[251] Trial Day 9, page 19, lines 18 – 26.

[252] Trial Day 9, pages 38-39.

[253] Trial Day 10, pages 18-19.

[254] Trial Day 10, pages 20-22.

[255] Trial Day 10, pages 23-24.