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Powe v David Hansen on behalf of Logan City Council[2021] QDC 12

Powe v David Hansen on behalf of Logan City Council[2021] QDC 12

DISTRICT COURT OF QUEENSLAND

CITATION:

Powe v David Hansen on behalf of Logan City Council [2021] QDC 12

PARTIES:

Desmond Gordon Powe

(Appellant)

v

David Hansen on behalf of Logan City Council

(Respondent)

FILE NO/S:

22/19

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

5 February 2021

DELIVERED AT:

Beenleigh

HEARING DATE:

11 September 2020

JUDGES:

Chowdhury DCJ

ORDER:

  1. In respect of file number 136354/17, complaint & summons filed 3 July 2017:

Charge 2: Appeal allowed, conviction set aside;

Charge 3: Appeal allowed, conviction set aside;

Charge 4: Appeal allowed, conviction set aside;

Charge 5: Appeal allowed, conviction set aside, verdict of “Not Guilty” entered;

Charge 6: Appeal dismissed.

Charge 7: Appeal dismissed.

  1. In respect of file number 250669/17, complaint & summons filed 14 December 2017:

 Charge 1: Appeal dismissed.

 Charge 2: Appeal dismissed.

 Charge 3: Appeal dismissed.

 Charge 4: Appeal dismissed.

  1. No order as to costs.

CATCHWORDS:

CRIMINAL LAW – PLANNING ACT OFFENCES – APPEAL FROM MAGISTRATES COURT – Interpreters not sworn – inadmissible evidence tendered – whether miscarriage of justice

LEGISLATION:

Justices Act 1886

Local Government Act 2009

Oaths Act 1967

Planning Act 2016

Sustainable Planning Act 2009

CASES:

Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202

Fox v Percy (2003) 214 CLR 118

Gaio v The Queen (1960) 104 CLR 419

Gold Coast City Council v Lear & Anor [2016] QDC 215

Graham v Queensland Nursing Council [2009] QCA 280

Munday v Gill (1930) 44 CLR 38

R v Brooks (1998) 44 NSWLR 121

R v Labelle (1988) Carswell Ont 6024, 5 W.C.B. (2d) 64

R v Labelle [1986] O.J. No. 1954, 17 W.C.B 178

R v LRG (2006) 16 VR 89

R v Tran [1994] 2 SCR 951

R v Nguyen [2005] BCCA 221

Teelow v Commissioner of Police [2009] QCA 84

The Nominal Defendant v Clements (1960) 104 CLR 476

COUNSEL:

Appellant was self-represented

J. Dillon for the respondent

SOLICITORS:

Appellant was self-represented

Minter Ellison for the respondent

Introduction

  1. [1]
    The appellant was convicted of the following offences, following a five-day hearing in the Beenleigh Magistrates Court:
  1. (1)
    Six breaches of s 578(1) Sustainable Planning Act 2009 (“SPA”) for carrying out assessable development, namely operational works (earthworks), without a development permit;
  1. (2)
    Two breaches of s 580(1) SPA for failing to comply with a development approval; and
  1. (3)
    Two breaches of s 594(1) SPA for failing to comply with an enforcement notice.
  1. [2]
    A total fine of $190,000.00 was imposed, and orders were made pursuant to s 599 SPA and s 176 Planning Act 2016 requiring the appellant to remediate the seven properties the subject of the complaint.
  2. [3]
    By way of an appeal notice filed on 23 September 2019, an appeal is made to this Court on the following grounds:

“A doctor’s certificate was produced twice that I was not to sit on court matters due to health problems being heart and dementia.

Five witnesses gave written statements but would not appear in court; I was denied the right to cross-examine them so case should have been dismissed.

The surveyors were given this survey point which made at the levels wrong.  Fill had been dumped on the sites before I started.  Their [sic] clearly shows on near map as tendered I was under the direction of the property owners at all times.”

  1. [4]
    In response to an application filed by the respondent to strike out that appeal, the appellant filed a new notice of appeal on 14 February 2020.  It states additional grounds as follows:

“The grounds for my appeal are that I believe the magistrate got it wrong at the trail [sic].  Five witnesses gave written statements but would not appear in court.  I was denied my right to cross-examine them so the cases should been dismissed as one was.”

  1. [5]
    Clearly this further appeal notice is well out of time, the time limit of one month after the date of the magistrate’s order is stipulated by s 222 Justices Act 1886 (“Justices Act”).  This Court has power to extend the time for filing a notice of appeal, pursuant to s 224 Justices Act, and in the circumstances it is prudent if I simply consider the merits of each appeal notice.

The prosecution case

  1. [6]
    A brief outline of the case against the appellant was given in an opening address to the learned magistrate by counsel for the prosecution on the first day of the hearing, 14 May 2019.  Relevantly, counsel said:

“Your Honour has before you the two complaints.  I’ll refer to the complaint dated June 2017 as the first complaint, and the December 2017 complaint as the second.  The first complaint essentially relates to four properties on the remaining charges at Chambers Flat Road, Chambers Flat.  There are four charges of carrying out assessable development, one for each of those properties, and, essentially, in a practical sense, the offence consists of carrying out earthworks on the properties to cut and fill but the focus of the crown case is primarily on the fact that there was filling brought into and spread across the properties.

In addition – so that’s the first four of the remaining charges.  In addition, there are two further charges of failing to comply with an enforcement notice.  Essentially, with respect to each of the four properties, two notices were issued, covering the four, and the notices required the works to be removed and the land to be reinstated.  The case is that that didn’t occur and so as a result, the failure to comply with the enforcement notices constitutes a further two offences.

With respect to the second complaint, there are four properties involved.  There’s a property at Scott Lane, North Maclean.  That’s the subject of Charge 1.  There’s a property at Norris Creek Road, Munruben, which is the subject of Charge 2.  There’s a property at Featherstone Road, in Chambers Flat, and that is the subject of Charges 3 and 4.  Now, with respect to Charges 1 and 2, they each, again, relate to the offence of carrying out assessable development without a development permit and, again, in practical terms, the Crown case is essentially that there were earthworks carried out on those properties, and in particular, as part of those earthworks, fill was brought onto those properties.

With respect to Charges 3 and 4 on the second complaint, each of which relate to Featherstone Road, the sub – the nature of the charge is different.  In each case, the allegation is that there was a contravention of the conditions which attach to a development permit.  That development permit essentially allowed the filling out a dam on the property, and the allegation is, in practical terms, that extra fill was brought on, extra earthworks were carried out beyond what was authorised by the permit and the conditions that attached to that permit.  So, in substance, really, in a very practical sense, the issue is still the carrying out of earthworks on the property in a way which was unauthorised.”

  1. [7]
    The evidence in this case is voluminous, with the proceedings lasting over five sitting days.  There were 54 exhibits, and a number of those exhibits contain a number of documents.  Written submissions were filed with the court below by the prosecution and the defendant, and oral submissions were made before the magistrate on 23 August 2019.  The learned magistrate provided detailed written reasons for his decision.

Submissions of the prosecution in the court below

  1. [8]
    Exhibits 1 and 2 comprise two folders containing certificates from the Chief Executive Officer of the Logan City Council.  Those certificates were admissible and became evidence of the things stated therein pursuant to s 251 Local Government Act 2009.  It was submitted that each of those certificates:

“identified the location of each property, the planning scheme provisions and the level of assessment for development involving operational work (earthworks) applying to each property, and the development approvals or permits relating to each property.”

  1. [9]
    It was submitted that Exhibit 1 also established:

“that the enforcement notices relating to the Chambers Flat Road properties were issued to the defendant, consistently with the effect of the oral evidence of Council officer Terry Smith, who gave evidence about the notices and subsequent discussions with the defendant concerning the notices, and with the effect of the evidence of the defendant who acknowledged receiving them.”

  1. [10]
    It was submitted that Exhibit 1 established that:
  1. (1)
    Each of the Chambers Flat Road properties were affected by the flood hazard overlay under the Logan Planning Scheme 2015.
  1. (2)
    Carrying out operational work in the form of filling and excavation, which exceeded 100 metres2 in volume or 2,000 metres2 squared in area, or any work that was carried out within an area affected by the flood hazard overlay, was (code) assessable development, requiring a development permit.
  1. (3)
    There were no effective development permits authorising operational works for each of the Chambers Flat Road properties.
  1. (4)
    Enforcement notices were issued to the defendant for each of the Chambers Flat Road properties.
  1. [11]
    It was submitted that Exhibit 2 established that:
  1. (1)
    For a very short period (23 April 2015 to 18 May 2015), the Norris Creek Road and Featherstone Road properties were subject to the Beaudesert Planning Scheme.  Both properties were affected by the flood and landslide overlay.
  1. (2)
    Carrying out operational work, in the form of filling and excavation, exceeding 10m3 on land affected by the overlay was (code) assessable development requiring a development permit.
  1. (3)
    Since 18 May 2015, all of the properties have been subject to the Logan Planning Scheme 2015.
  1. (4)
    The Norris Creek Road and Scott Lane properties are affected by the flood hazard overlay.
  1. (5)
    Carrying out operational works, in the form of filling and excavation, which exceeded 100m2 in volume, or 2,000m2 in area, or in any work that was carried out within an area affected by the flood hazard overlay, was (code) assessable development, requiring a development permit.
  1. (6)
    There were no effective development permits authorising operational works for each of the Norris Creek Road and Scott Lane properties. 
  1. (7)
    Although there was a material change of use approval for Scott Lane, it specified a very limited area of cut and fill that was permitted with the cut and fill balancing out.
  1. (8)
    In terms of the Featherstone Road property, there was a development permit for operational works, but the conditions of the permit specified exactly what filling was permitted, pursuant to the conditions of the approval, and in particular conditions 1.2, and 4.
  1. [12]
    It was submitted that the certificates of the Chief Executive Officer established that there were no relevant development permits in existence authorising operational works, except for the development permit (including the conditions dealing with cut and fill) relating to Featherstone Road.
  2. [13]
    Submissions were made about the evidence of the particular witnesses, including the Council inspectors, the Council surveyors, and the property owners in question.
  3. [14]
    In respect of the defendant’s evidence, the following submissions were made:

“84. Unusually, the defendant gave evidence-in-chief by way of a pre-prepared statement.

85. In the course of cross-examination, the defendant gave evidence about his decades’ long involvement in the earth-moving business.  He also gave evidence about his awareness of planning regulations and the need to obtain development permits where necessary, although he vacillated at times between suggesting ‘9 out of 10 times’ he did the right thing, and claims that obtaining a permit was all a land owner’s responsibility.

86. In the course of his evidence, the defendant did make various admissions, including:

(1) that he carried out the grading and levelling in relation to each of the properties;

(2) that he received the enforcement notices and that he generally did not act on them; and

(3) that he arranged for the fill to be imported to 165 Featherstone Road.

87. He also appeared to admit that he was responsible for filling in the dam at 114-128 Norris Creek Road.

88. Otherwise, the defendant’s evidence was not generally credible and the court should give it little weight.

89. The defendant’s evidence was generally self-serving.  Key aspects of it were apparent invention, having been raised for the first time in evidence-in-chief while under cross-examination.  Key aspects of it were not fairly put to the Council witnesses.  Other important aspects of the defendant’s evidence were either contradictory, or so fanciful, that they were obvious lies.

90. The evidence of the Council’s witnesses should generally be preferred.”

  1. [15]
    In respect of the land owners, with exception of one, it was submitted that they gave truthful and consistent evidence, that in essence:

“(1) The defendant approached each of the owners and offered to import free fill to their property;

(2)  With the exception of Featherstone Road, the need for permits was either not discussed, or the defendant indicated that a permit was not required;

(3) The defendant (and no-one else), subsequently arranged for fill to be deposited on the land, and that he levelled and graded it.

(4) In at least one instance at Chambers Flat Road, although discussions about filling might have occurred, the defendant did not have the owner’s permission to fill the land when he did.”

  1. [16]
    It was submitted that the evidence of the land owners was generally consistent with the evidence of the Council officers, and with admissions made by the defendant.
  2. [17]
    The prosecution submitted that the court should treat the evidence of the witness Allison Baas with some caution.  It was submitted that while the court should find that she was truthful in that she had arrangements with the defendant to carry out earthworks on her land at Norris Creek Road, and that the works were carried out for free, she was generally hostile to the Council, stood to benefit from filling her property, and that her evidence that she arranged for another company to bring fill in should not be accepted.
  3. [18]
    In respect of the offences concerning failure to comply with an enforcement notice, it was submitted that the evidence established that the defendant had received two enforcement notices in relation to properties and Chambers Flat Road, which directed him to carry out remedial works.  Those notices were not appealed or otherwise challenged, and had not been complied with.

Submissions of the Defence in the Court below

  1. [19]
    A 10-page outline was provided by the defendant.  In respect of the charge involving 1277 – 1287 Chambers Flat Road, the owner, Raquel Ciuzelis, gave evidence to the effect that she employed the defendant to do works on the property, to level out the land, remove rubbish and level a dirt mound left by SEQ.  It was submitted that in an interview between the land use investigator for the Logan City Council, Terry Smith, and Ms Ciuzelis, she was definite that the defendant did not bring any fill onto her property.  The defendant gave evidence that he simply was a contractor who spread some soil with his grader on the land. The defendant denied organising fill to be put on the property.
  2. [20]
    Detailed submissions were made in respect of the charge concerning 165 Featherstone Road, Chambers Flat, owned by Mr Ken Ngai Nguyen and his father, Mr Ngai Nguyen Snr.  The details of the submissions are set out at [9] – [22] of the defendant’s outline.  In essence, it was submitted that the defendant had advised Mr Nguyen Snr that a development permit would be required to fill in a dam on his property.  The defendant believed he had abided by all the conditions of the operational works permit.  As he was not the holder of the development approval for that address, the defendant considered he should not be held responsible for works done outside its terms.
  3. [21]
    In respect of 1253 - 1263 Chambers Flat Road, also called “The Cucumber Farm” the defendant was approached by the owner to spread soil on the land.  There was some over-spill on that property but that existed before the defendant went onto the land.  The defendant pushed the over-spill back onto the land.  The defendant concedes he did offer some soil on his property for free by way of compensation, but that a permit was not required because he was intending to do only 100m2, allowable under the Sustainable Planning Act 2009, without a permit.
  4. [22]
    In respect of the property at 114 – 128 Norris Creek Road, Munruben, belonging to Allison Baas, the defendant was simply asked by her to spread existing soil onto her property and level some of her existing property.  The defendant gave evidence that he did not organise for any fill to be put on her property, nor did he charge her money for spreading the existing soil.
  5. [23]
    In respect of this charge, the defendant submitted that there had been a gap of three years and eight months between datum surveys on Ms Baas’ property.  It was submitted that during that time there had been flooding, and there was no survey done on the property that the defendant graded, and as a result no quantification of how much area and how much fill he graded.  Consequently there was no evidence to support the allegation that the defendant had put fill onto this property. 
  6. [24]
    In respect of the property at 86 – 98 Scott Lane, belonging to Rami Tiwari, that owner had a site engineer and project manager, Mr Deepak Kumar.  It was submitted that Mr Tiwari’s evidence was that he had fill coming into the property by other trucks, and had a small bobcat on site.  Because they could not keep up with the earthworks, Mr Tiwari contacted the defendant through the trucking company to come and spread gravel and the transport company would pay him on a per cubic metre rate.  It was submitted on behalf of the defendant that he was never shown the development approval to perform those works, and he believed any works he did were lawful as they had an engineer project manager on site.
  7. [25]
    The Council Inspector, Terry Smith, was criticised for being biased in his investigation.  Criticism was also made of the four year and five month gap between surveys, and that there was not a “square meterage survey on the actual work Des Powe did on site”.
  8. [26]
    In respect of the enforcement notices, it was submitted that those notices were “appealed or otherwise challenged in the fact that Mr Powe rang, organised and attended meetings with the Council regarding the enforcement and show cause notices.”  It was further submitted that the defendant did not comply with those notices as the evidence establishes he was not the responsible person concerned.
  9. [27]
    It was submitted that the charges had not been proved and they should be dismissed.

Reasons of the Magistrate

  1. [28]
    The learned Magistrate provided a written judgment, 22 pages in length.  At the commencement of his judgment His Honour noted that the defendant was not legally represented at the hearing, but did have a “McKenzie friend” during the course of the hearing.
  2. [29]
    The Magistrate stated that he had explained the court process to the defendant, including the requirement for witnesses to give evidence in court, and for the cross‑examination of witnesses on issues or facts which are disputed or different from the defendant’s version of events.  The Magistrate explained to the defendant that there may be consequences if the defendant did not put his version of issues in dispute to witnesses.
  3. [30]
    The learned Magistrate referred to the onus of proof being upon the prosecution, and that the standard of proof was proof beyond reasonable doubt.
  4. [31]
    It was noted that the defendant gave evidence-in-chief by way of a prepared written statement.  The Magistrate noted that he accepted that form of evidence “with some reluctance”, at the request of the defendant, and with the consent of counsel for the prosecution.
  5. [32]
    It was noted that the defendant “raised the defence that he was not responsible for the fill delivered to the properties, and he was not the owner of the various properties.  He was a grader driver, and spread the fill on the properties, and he did not comply with the enforcement notices because he did not do the work associated with the enforcement notices.  The accused denied making an application to Council for development approval at 165 Featherstone Road, asserting he merely assisted the owner; he did not make the application.  In summary Mr Powe suggested that the persons responsible were the various owners in the properties.”
  6. [33]
    It was noted that the defendant asserted that he suffered from dementia, and had a short term memory problem.  No medical records or reports were provided to support these assertions.
  7. [34]
    The Magistrate observed that in respect of the first complaint, six alleged offences contrary to s 578(1) SPA were in the same terms, as follows:

“That Desmond Gordon Powe carried out assessable development, namely operational work, by importing material, and thereby materially affecting the land or its use by changing the ground level of the land without an effective development permit for the development, contrary to section 578(1) of the Sustainable Planning Act.”

  1. [35]
    In respect of the second complaint, the two charges contrary to s 594(1) SPA read as follows:

“That Desmond Gordon Powe was a person given an enforcement notice did not comply with that enforcement notice by failing to remove imported fill from relevant premises and deposit at a lawful disposal location; providing Logan City Council with a plan of survey demonstrating the reinstatement of the pre-existing ground contour levels to the Australian height datum as recorded in the relevant LIDAR data held by the Council; or restore, as far as practicable, the relevant premises to the condition the premises were in immediately before the development was started by 30.9.2016 as required by the notice.

  1. [36]
    The first offence charged pursuant to s 580(1) SPA read as follows:

“That Desmond Gordon Powe contravened a condition of a development approval by filling in excess of the Australian height datum provided in the survey level showing the current supply level of a dam in contravention of condition 1.2 of the development approval OW/122/2015.”

  1. [37]
    The second charge pursuant to s 580(1) SPA read as follows:

“That Desmond Gordon Powe contravened a condition of a development approval by filling on a part of 165 Featherstone Road other than where it was shown on the approved plans for the development approval in contravention of Condition 4.1 of the development approval OW/122/2015.”

  1. [38]
    The learned Magistrate set out the elements that had to be proved of the seven charges laid pursuant to s 578(1) SPA:

“1. The accused.

  1. Carried out or caused to be carried out through his actions.
  1. Development.
  1. That was assessable development.
  1. Without an effective development permit.”
  1. [39]
    The elements of the two charges pursuant to s 580(1) SPA were:
  1. There was development approval that approved development subject to conditions.
  2. The accused contravened one or more of those conditions.
  1. [40]
    The elements of the two charges pursuant to s 594(1) SPA were:
  1. The accused.
  2. Was given an enforcement notice containing requirements requiring the accused to do certain acts and a period within which to do those acts.
  3. Failed to comply with one or more of those requirements within the required time.
  1. [41]
    The Magistrate observed the prosecution case included two folders of Council certificates and records which were tendered and marked as Exhibits 1 and 2.  Oral evidence was adduced from Council investigators Terry Smith, Cameron Leigh‑Cooper and Nadiem Daniels.  Oral evidence was also adduced from Council surveyors Robert Nantes and Scott Grattan.  The following property owners were called: Ken Van Nguyen, Ram Tiwari, Samrith Owng, Racquel Ciuzelis, Allison Baas, Duc Van Bui, Hung Nguyen and Bihn Nguyen.  Some of the property owners had non-English speaking backgrounds, and four of the witnesses had interpreters during the hearing. 
  2. [42]
    The magistrate summarised the defence case as follows:
  • The Logan City Council was corrupt;
  • The Council investigators were corrupt;
  • The Council surveyors were incompetent;
  • The Council records were incomplete and wrong, and did not contain all the relevant approvals;
  • There was a conspiracy against the accused between Council investigator Terry Smith, and with Council officer Daniel Smith, and a third person with the name of Smith who works for “Pink”;
  • The Council, through their officers, intimidated and threatened the property owners;
  • The Council regulations were too strict, difficult to interpret, and apply;
  • There was a conspiracy between Pink Plant Hire and Haulage, and Tip Truck Solutions to incriminate the accused;
  • The accused was victimised by the Council prosecution, no-one else had been prosecuted;
  • The invoice documents purportedly tendered on behalf of haulage contractors were fraudulent; and
  • That he suffered from short-term memory loss.
  1. [43]
    The defendant maintained that he was not responsible for fill being brought onto properties.  That was the owners’ responsibility.  He was acting at all times under the instructions of the owners.  In respect of the Featherstone Road property, he did not make an application for development approval to Council, he merely assisted with that process.  The defendant maintained he was not required to comply with the enforcement notices, because he did not do the work in the first place that was the subject of the notices.
  2. [44]
    In respect of the evidence of Terence Smith, the learned Magistrate found that that witness evidence was “open, clear and detailed”.  He considered that the defendant’s cross-examination of Mr Smith was limited, and “punctuated by broad statements by Mr Powe which interrupted the witness’s [sic] responses, and it appeared that Mr Powe did not address some of the critical factual issues and evidence in dispute.”
  3. [45]
    The learned Magistrate accepted that Mr Smith was a critical witness for the prosecution, and he accepted that this witness made some “inappropriate comments during the investigation concerning the general character of Mr Powe”.  The Magistrate went on to state that he did not consider that conduct was fatal to the credibility of Mr Smith.  He overall found him to be an honest and truthful witness.
  4. [46]
    Nadiem Daniels was a development compliance officer with Logan City Council in 2016.  He had conducted investigations in May 2015 in respect of the property at Featherstone Road.  That investigation commenced after a complaint of noise associated with trucks depositing dirt on that property. 
  5. [47]
    The Magistrate accepted Mr Daniels’ evidence that he had a conversation with the defendant about earthworks on the site.  During that conversation the defendant admitted he was the person contracted to import soil onto the site.  Again he found the defendant’s cross-examination of Mr Daniels to be limited, and did not address some of the critical factual issues.  Ultimately he found Mr Daniels to be an honest and truthful witness. 
  6. [48]
    Cameron Leigh-Cooper was a land-use investigation officer with the Logan City Council; at the time of the hearing he was a technical services co-ordinator with the Council.  He gave evidence that he attended Chambers Flat Road on 6 July 2016 following a complaint.  Upon his arrival he observed earthworks and concluded that fill had been imported onto the properties.  He met with the defendant, and property owners and occupiers.  Conversations were recorded, and they were tendered as exhibits in the proceedings.  According to Mr Leigh-Cooper, the defendant made admissions as to carrying out earthworks, arranging to import fill to the properties, and to the spreading, grading and levelling of fill onto the properties.
  7. [49]
    Mr Leigh-Cooper stated that during that inspection the defendant provided a business card, which listed a series of activities which included land fill; that business card was marked as Exhibit 42.
  8. [50]
    The Magistrate accepted that Mr Leigh-Cooper was a critical witness for the prosecution, and found him to be an honest and truthful witness.
  9. [51]
    Scott Grattan was the first surveyor to give evidence.  He was employed by the Logan City Council.  He confirmed that he attended the property at 86-98 Scott Lane, North Maclean in 2017.  He attended the property to calculate the volume of any fill introduced to the site, using source information from the site and applying Council’s software to develop a surface model.  Mr Grattan described the process by using LIDAR – airborne laser scanning data to calculate the relevant information.
  10. [52]
    Mr Grattan concluded that the net input of soil onto that one site was 9,850 m3.
  11. [53]
    The learned Magistrate accepted the qualification of Mr Grattan as a registered surveyor in the state of Queensland.  The defendant had no questions for this witness. The Magistrate found Mr Grattan to be an honest and truthful witness.
  12. [54]
    The second surveyor called was Robert Nantes.  He was also employed as a surveyor with the Logan City Council.  He gave evidence of carrying out surveys for properties on Chambers Flat Road, Norris Creek Road and Featherstone Road.  He described the survey process undertaken and the results of those surveys, depicting estimates of the volume in area of fill on the relevant properties.
  13. [55]
    The defendant did ask questions of this surveyor, and Mr Nantes confirmed that there might be slight variations, confirming that floods, cyclones and other natural events could affect ground levels.
  14. [56]
    The learned Magistrate found Mr Nantes to be an honest and truthful witness.
  15. [57]
    Mr Owng was the owner of property at 1241-1251 Chambers Flat Road.  He had a discussion with the defendant, in which the defendant offered to place landfill on that property at no cost.  Further, the defendant told Mr Owng that there would be “no problems with Council”.  Mr Owng did not give approval for the fill owner’s property, and he had subsequently requested that the fill be removed.
  16. [58]
    Mr Duy Bihn Nguyen stated that the defendant had approached him and his wife, and offered to deliver fill on to the property at 1253-1263 Chambers Flat Road.  Mr Duy Bihn Nguyen observed the defendant doing work at neighbouring properties, and saw him coordinating trucks delivering fill to his property.  The witness’s son, Tan Hung Nguyen, provided support in evidence to corroborate his father that the defendant offered and provided free fill to the property, and there was no suggestion that Council approval was needed for that.
  17. [59]
    In respect to the property at 1265-1275 Chambers Flat Road, the owner Mr Duc Van Bui said that he had met the defendant once.  The defendant was seeking permission to enter his property; there was no mention of “pouring dirt”.  Subsequently, Mr Bui saw the defendant working on the neighbouring properties, but did not see the defendant carry out any earthworks on his property.  He stated that earthworks were carried out near his boundary.  Mr Bui said that he did not give permission to the defendant to carry out any work on his property, and fill that had been placed on his property had not been removed.
  18. [60]
    The Magistrate summarised the evidence of Ms Raquel Ciuzelis namely that her partner had arranged with the defendant to help with the property at 1277-1287 Chambers Flat Road.  That referred to rubbish removal and general clean up, including topsoil being brought in to level the land.  Ms Ciuzelis indicated that the defendant had bought in topsoil, and levelled the land.
  19. [61]
    It was observed that in cross-examination, Ms Ciuzelis confirmed that she did not see the earthworks being carried out, but did see the defendant’s “offsider” with a truck and trailer with a bobcat.
  20. [62]
    The Magistrate noted that the survey report indicated 6,200 m3 of soil was imported on to Ms Ciuzelis’ property.
  21. [63]
    Mr Ken Nguyen gave evidence that he was approached by the defendant, who wanted to fill in the dam on the property, and he would look after the Council approval. Mr Nguyen stated that he was not intending to pay the defendant for any of the works, but that he did pay the Council fees for the development permit for the works at 165 Featherstone Road.  In cross-examination Mr Ken Nguyen said he was not happy with the works done by the defendant, indicating it was “left messy and overfilled”.
  22. [64]
    Mr Ram Tiwari stated that he was introduced to the defendant after talking with an unknown lady about obtaining fill for a carpark.  That lady made arrangements for the defendant to contact Mr Tiwari, and it was made clear that he could not make payment for any fill.  After discussions with the defendant “many trucks came to the property, Mr Tiwari observed Mr Powe counting the trucks making deliveries of soil, and observing Mr Powe working on a grader at the property”.[1]
  23. [65]
    The learned Magistrate discussed the evidence of Allison Baas briefly.  It was stated that the defendant had done some levelling at her property at 114-128 Norris Creek Road for free, with him suggesting “they” deposited soil for them.  There was no payment, and no permits because it was filled.  There were no discussions with the defendant as to importing fill.  She said that the defendant “just levelled the ground”.
  24. [66]
    The Magistrate observed that Ms Baas was critical of the actions of the Council, and that she produced images and a video of an incident near her property.  The Magistrate noted that the survey report indicated 3,840 m3 of soil was imported onto that property.
  25. [67]
    The Magistrate noted that in re-examination Ms Baas identified the company in respect to depositing the fill on her property, suggesting it may have been called “Pink”.
  26. [68]
    The learned Magistrate found the evidence of the property owners to be honest and truthful.
  27. [69]
    The learned Magistrate had regard to the written statement of the appellant, which was marked Exhibit 49.  Unusually, it was agreed that this exhibit would form the evidence-in-chief of the appellant.  The Magistrate observed that this statement was written in the third person, and did not appear to be the direct evidence of the appellant.  The learned Magistrate accepted that the appellant indicated during the course of the trial that he had some difficulty with writing, and with providing oral evidence in the proceedings.  The statement appeared to have been prepared before 17 July 2019 by reference to the deletion on page 5, being reference to one charge which had been previously dismissed on 15 May 2019.
  28. [70]
    The learned Magistrate observed that the appellant in the statement indicated he was working under the direction of the owners of the various properties.  It was apparent that:

“Mr Powe personally believes that he is not responsible for fill bough [sic] onto the properties.  His sole purpose was to spread the pre-existing fill already on site.  At each property, at all times Mr Powe was under the direct instruction of the property owners.  It should have been the responsibility of the owners to comply with the Council guidelines.”

  1. [71]
    The Magistrate observed that in cross-examination the appellant was:

“Very direct and forthright in responding to some questions, but was also vague and general in responses to other questions put to him by Mr Dillon.  Mr Powe also appeared to be somewhat confused in cross-examination, particularly to the correct identification of works carried out on some the subject properties and to the correct identification of the property owners.  However Mr Powe did explain he had memory difficulties, which sometimes affected his short-term memory.”[2]

  1. [72]
    The appellant in his evidence stated that his business was not to arrange any delivery of fill to properties, he was simply contracted to spread fill.  He stated he did not own any trucks and never directed any trucks.  He further denied signatures on invoice documents were his, and denied that a hand-written letter to the Council was written by him.  The appellant said he could read, but could not write.
  2. [73]
    The learned Magistrate made these observations:

“Mr Powe made general and unsupported statements citing the Council investigation and investigators were wrong.  The Council records were wrong and incomplete; the survey results and conclusion were wrong; the Council procedures were complex; and the Logan City Council was not helping and was very corrupt.

Mr Powe further indicated that the property owners were frightened, and have been threatened.

It was apparent that Mr Powe raised a substantial number of issues in the form of broad and general statements which were not corroborated by any evidence.  It would appear that the majority of responses in cross-examination were self-serving statements.”

  1. [74]
    At pages 15 – 16 of his judgment, the learned Magistrate considered some objections to the admissibility of evidence.  He upheld the appellant’s objections to interviews with persons who were not called as prosecution witnesses.  The Magistrate noted that objections were raised by the appellant to the admissibility of invoices, being Exhibits 30, 46 and 47.  The learned Magistrate held that these invoices were not admissible to prove the truth of the contents of the invoices, but were admissible as to the existence of the invoices and to the relevance of the following factors:
  • The credit of the accused;
  • The relationship between the accused and earthmoving companies, particularly at the relevant time;
  • Evidence supporting the accused’s involvement with particular properties particularly at the relevant time; and
  • In respect to Exhibit 30, the hand-writing of the accused.
  1. [75]
    The learned Magistrate observed that the appellant struggled in his defence to the alleged offences.  It appeared to him that the appellant had not sufficiently prepared for the trial, particularly for the cross-examination of the witnesses on relevant and disputed critical issues.  He observed that there was:

“A critical failure by Mr Powe to put his version to prosecution witnesses so the prosecution witnesses, particularly the Council investigators, could respond or comment on versions of disputed facts, events or conversations.”

  1. [76]
    The Magistrate observed that the appellant had some difficulty with the process of questioning witnesses who gave their evidence through interpreters.
  2. [77]
    The Magistrate considered the written submissions of the prosecution which were received on 7 August 2019, and the oral submissions of the appellant.  Written submissions of the appellant were also provided and received on 23 August 2019.  The Magistrate observed that those submissions raised a number of issues which were not raised during the course of the trial. 
  3. [78]
    The Magistrate noted that in respect of the charge involving the property at 1277 – 1287 Chambers Flat Road, the prosecution was a circumstantial one. 
  4. [79]
    The Magistrate found that there was no dispute to the following:
  • The identification of the registered owners of the subject property;
  • The identification and description of the subject properties;
  • That enforcement notices had been issued to the appellant;
  • There was non-compliance with the terms of the enforcement notices;
  • The fill identified on the properties had not been removed by the appellant or any other person.
  1. [80]
    The Magistrate found that the planning schemes for the relevant properties applied, at the relevant time, included the Beaudesert Planning Scheme 2007 and the Logan Planning Scheme 2015.
  2. [81]
    In respect of the evidence of the surveyors, the learned magistrate made the following finding:

“I find that the surveys conducted by Council officers to identify changes in ground levels for the properties were undertaken by qualified and professional surveyors, and the surveys produced accurate representations over the seven properties.  I accept the survey results summarised in Annexure B to Mr Dillon’s submissions; the relevant factors in this prosecution are identified as ‘volume of fill to be removed (cubic metres)’:

1241 – 1251 Chambers Flat Road

     350

1253 – 1263 Chambers Flat Road

  1,690

1165 – 1270 Chambers Flat Road

    425

1277 – 1287 Chambers Flat Road

  6,200

89 – 98 Scott Lane, North Maclean

  9,850

114 – 128 Norris Creek Road, Munruben

  3,840

165 Featherstone Road, Chambers Flat

55,780”

  1. [82]
    The learned Magistrate considered that as he had excluded some of the prosecution evidence involving earthmoving company representatives, the failure of the prosecution to call the earthmoving representatives was not fatal to the prosecution of the offences against the appellant.
  2. [83]
    The learned Magistrate considered that the Council officers provided clear and detailed evidence of their investigations, setting out conversations and admissions by the appellant to the importation of fill into the properties, and the role undertaken by the appellant at all seven properties.
  3. [84]
    He considered that the evidence of the civilian witnesses, in particular the relevant property owners, appeared to be honest and truthful.  In particular, the evidence of Ken Nguyen, Ram Tawali, Samrith Owng, Duy Nguyen, his son Tan Nguyen and Duc Van Bui appeared to be generally consistent and corroborative in nature.  His Honour found that these witnesses indicated that:
  • The appellant approached each of the owners and offered to import free fill to their properties;
  • The issues of permits were either not discussed or the appellant indicated that permits were not required (excluding the Featherstone Road property);
  • All works undertaken by the appellant were free of charge to the registered owners;
  • That after discussions with the appellant the fill was deposited on the subject land;
  • The appellant graded the fill and levelled the fill on the properties;
  • The appellant was given permission to import the free fill to the properties (excluding one property 1265 – 1275 Chambers Flat Road, Chambers Flat – where consent was not given).
  1. [85]
    In respect of the evidence of Raquel Ciuzelis, the Magistrate considered that she confirmed that the appellant was directly involved in the operations on her property.  He was engaged to clean up the property, to topsoil the land and level the topsoil on the land.  In pursuance of that the appellant had “brought in” topsoil.
  2. [86]
    In respect of Allison Baas, the Magistrate found that the appellant was directly involved in the operations at her property, and that work was done for free.  Ms Baas arranged for the soil to be delivered, and the appellant levelled the deposited soil.
  3. [87]
    The learned Magistrate did not accept the appellant’s evidence that he was simply a grader operator, and following instructions of the owners of the subject properties.  He considered that the evidence of the prosecution witnesses:

“Supports a finding that Mr Powe was directly responsible for the facilitation, arrangement, or co-ordination of fill deposited onto the subject properties by third parties.  I find that Mr Powe procured the importation of fill onto the properties.”

  1. [88]
    The Magistrate rejected the appellant’s suggestion that the fill was illegally dumped by earthmoving companies without his knowledge.  It was observed that the evidence of the property owners supported the finding that the appellant was engaged in similar conduct in respect of a number of the separate properties.
  2. [89]
    The learned Magistrate made the following findings:
  1. (a)
    the transportation of the fill was by way of independent earthmoving companies;
  1. (b)
    the appellant did not directly transport fill onto the subject properties;
  1. (c)
    the appellant was not under the direction of the property owners when he carried out works on the subject properties;
  1. (d)
    the appellant did organise and manage the delivery of fill onto properties, and once the fill was delivered the appellant directly participated in the grading of the fill and the levelling of the properties.
  1. [90]
    The Magistrate considered that the evidence:

“Supports a finding that Mr Powe’s direct actions and conduct in the co-ordination of the importation of fill onto the subject properties, combined with the process of grading and levelling the imported fill constituted carrying out of assessable development, namely operational works without a development approval pursuant to the Act.”

  1. [91]
    The Magistrate found that the appellant’s facilitation and co-ordination of fill being imported onto the subject properties, combined with the grading and levelling of that fill, was unlawful.  He did not consider there was any credible evidence of any prior importation of fill onto those properties, which may have changed the ground levels as described by the Council surveyors.
  2. [92]
    The Magistrate found that all elements of the offences laid pursuant to s 578(1) SPA had been proved to the criminal standard.  He considered that the evidence of the prosecution witnesses negatived the defences raised by the appellant, and he was found guilty of all of the six offences laid under that section.
  3. [93]
    In respect of the address at 165 Featherstone Road, Chambers Flat, the Magistrate found that there was a development approval granted for that.  He found that the works carried out by the appellant were in contravention of the conditions of that development approval.
  4. [94]
    The Magistrate found that the appellant was directly involved in that development application, and that he guided the owner.  He considered that the appellant had a substantial involvement in, and personal interest in, the development application, and was therefore fully aware of the terms and conditions of the development approval granted for that property.
  5. [95]
    He found that the actions of the appellant at 165 Featherstone Road, Chambers Flat contravened conditions 1.2 and 4.1 of the development approval, namely by the quantity and placement of the fill on the property.  He found all the elements of the offences laid pursuant to s 580(1) SPA had been proved to the criminal standard.
  6. [96]
    The Magistrate found that the enforcement notices were issued and served upon the appellant for the works carried out in respect of the two properties at Chambers Flat Road, and directed him to carry out remedial works.  The Magistrate found that those notices were not appealed against or otherwise challenged by the appellant.  The remedial works were not undertaken within the specified timeframe allowed by the notices, and those works remain undone.
  7. [97]
    While the Magistrate accepted there was some discussion with the Council after the issue of the notices, that level of discussion between the appellant and Council officers could not in any reasonable manner be considered to be an appeal or challenge to the issue of the enforcement notices.  The Magistrate had regard to Gold Coast City Council v Lear & Anor [2016] QDC 215, and considered that the proper process to appeal or lawfully challenge the issue of the enforcement notices was not done by the appellant.  Consequently the enforcement notices were validly issued.  The Magistrate found that the appellant was responsible for the initial works carried out at 1241 – 1251 Chambers Flat Road and 1277 – 1287 Chambers Flat Road, and therefore he was required to comply with the enforcement notices. 
  8. [98]
    The Magistrate found that all the elements of the charges laid pursuant to s 594(1) SPA had been proved to the criminal standard.

The appellant’s submissions

  1. [99]
    The notice of appeal filed on 14 February 2020 attached a 10-page hand-written outline.  The first complaint is that some witnesses who had provided statements were not called as witnesses, and therefore the appellant was denied “my rights to cross-examine them on every case”.  It is submitted in effect, that these witnesses had some relevance to the charges that actually proceeded.
  2. [100]
    In respect of the property belonging Samrith Owng, at 1241 – 1251 Chambers Flat Road, the appellant submitted the following:

“I had the soil removed it was pushed back up onto the boundary where we were living [sic] for the owner to put up a new fence-line.  No Councillor had been back to check also the Council had dug a drain up the boundary of this property dumping up to 2,000 metres of soil in this area which is flood zone allowing Samrith Owng to build a new home on it.  Not true that no-one can’t add soil there.  Wrong decision by the magistrate.  Ownisss [sic] is on the property owner at all times not the grader driver.”

  1. [101]
    In respect of the property at 1253 – 1263 Chambers Flat Road, owned by Duy Nguyen, the appellant submitted the following:

“Wrong disson [should be ‘decision’] by the magistrate.  The gravel was brought in by Pink contractors under the supervision of Steve Hogan from the Council pump station.  Council has to know where the soil is going as contractors have to have fire and permits.  BMD have the contract to do the road.  Pink had the contract to dispose of the gravel.  Powe Contracting was paid $1 - $2 per metre to spread under the supervision of the landowner.  I only bring the grader driver, spread the gravel in his driveway, cleared and levelled the fence-line, spread soil up from middle of property by owner.  Duy Bin Nguyen owner admitted at trial under oath he filled front and boundary line, the owniss [sic] is on the owner as I was only the grader driver under instructions from the owner.  I believe this was the wrong [decision] by the magistrate.”

  1. [102]
    In respect of the property at 1265 – 1275 Chambers Flat Road, the owner being Duc Van Bui the appellant made the following submissions:

“Mr Duc Van Bui is not telling the truth.  Not only does he speak good English but needed an interpreter in court he asked me clear all the trees on his property, I declined and told him he would have to get permission from the Council that I could only clear a 3 metre strip down the boundary line for a new fence any soil that was put on his property was by his neighbour to stop the water going in his hot houses, I did no work on his property I believe a wrong [decision] by magistrate.”

  1. [103]
    In respect of the property at 1277 – 1287 Chambers Flat Road, owned by Raquel Ciuzelis, the appellant made the following submissions:

“I was asked by contractor Lennie McKay to go see Raquel and Kevin about levelling their property with the grader as soil had been dumped there over many years, plus had old hot house beds also they had material from new foundation service trench excavations plus septic tank soil to spread.  Lennie McKay was doing the earthworks for them digging trenches.  Steve Hogan of Pink Haulage had carted gravel for back driveway for workshop where Kevin Schneider was repairing cars to sell I was paid by Raquel to level the back, Pink Plant Hire paid me to level the gravel brought in from the Council road, this was admitted at trial by Raquel Ciuzelis and I was under instruction from landowners at all times as grader operator the survey could not tell what had been put there recently as mounds of soil was tipt [sic] and moulded several times to get levels, I believe this was the wrong decision by the magistrate.”

  1. [104]
    In respect of the property at 86 – 98 Scott Lane, owned by Ram Tiwari the appellant submitted:

“I believe the magistrate on this property.  I was asked to go to Scott’s Lane to see the Minister Ram Tiwari by the lady from McKay Contracting as they were building a moske [sic] temple and they were carting gravel into the carpark they had a bobcat pushing material but could not keep up and there was no room to dump.  Minister Tiwari and project engineer came out and had showed me the car park area to be levelled and filled also showed me a DA for Stage 1 and 2.  Steve Hogan from Pink had seen Ram Tiwari the Minister to bring the gravel from Council road, Chambers Flats which was getting upgraded to four lanes also tip truck solution was carting their several other contractors were working on the site but excavators, back hoes digging foundations and spreading soil.

Council came into me and I would have to stop work I told them I was in the car park and I still had about 200 to fill, I was paid on a meterage basis at 70 cents a metre.  Steve Hogan asked Ram Tiwari for the DA approval or he would take all his material out as he could not be paid without it which he then gave him a copy.

Terry Smith had meeting with Ram and myself, he asked how much I was charging I said 70 cents a metre he told me I was too cheap and should put my price up.  I thought that’s funny and I left the meeting.  Terry Smith told Ram I was a crook and not to have dealings with me as he did work with 4 other clients.  I have never been charged with anything dishonest ever.  I was under instructions from Ram Tiwari and project manager at all times I feel Steve Hogan and Pink should have been charged on many near map tender at trial proved soil had been dumped there the year before I started.”

  1. [105]
    In respect of the property at 114 – 128 Norris Creek Road, owned by Allison Baas, the appellant made the following submissions:

“I was approached by Steve Hogan of Pink to go to Norris Road to Allison Baas to level top soil she had arranged with Pink by chasing the truck up the road on her own admission at the [trial] Pink paid me by the metre to level also tip truck solutions.  Council officer Nadiem’s was at the site both days to make sure I was nowhere near the creek as it would get him into trouble if soil went into it.  I was under instructions from home owners and Council officers at all times a flood had gone across twice since – taking all top soil off and Mrs Baas too frightened to put top soil back on as she feels they will be penalised by the Council.  I feel the magistrate has made a wrong [decision] on this property as the owniss [sic] is on the property owner.”

  1. [106]
    In respect of the property at 165 Featherstone Road, owned by Ken Nguyen, the appellant made the following submissions:

“Prior to starting to fill dams a survey in the presence of a Council supervisor Nadiem and Des Powe’s engineer there were 2 dams to be filled one on the southern end of the property the second dam was roughly on the northern end of the first dam I was instructed by Councillor Nadiem that both dams were to be filled to grass bank on either side roadway top and bottom of dams this was confirmed by the engineer.  We excavated from the bottom of the dam under the roadway to drain the water out of the dam putting in a pipe under the roadway we then filled dam to grass level, the Council came with a new supervisor he said he was doing a survey he gave the surveyor a starting point which is on the pipe we had put into the drain dam I told him that was wrong as that point was the bottom of the dam he pointed to an area that had not been filled and said it would have to go to that level, I then told him I came here to fill dam not excavate one out.  He never gave the surveyor instructions to measure top dam but treated it as excessive fill it was quite obvious that he was unqualified all works done outside of dams and land planning and levelling existing dam walls was survey by Councillor Nadiem to allow flood waters to flow through and not back up.  The surveying levels grass bank to bank was confirmed at trial by Councillor Nadiem after he left we had 3 other Councillors supervisors, we did have notices about enforcement notices but each time it was with a different officer we had one in the Council office with their solicitor present which they reckoned I was corrupt and a crook, but they were the ones under investigation for corruption.  The levels at Featherstone Road are below fill point the surveyor said at trial he could only go on the points he was given I find the Councillors were incompetent and inexperienced in doing their job.  The Councillors allowed this property owner to build backing sheds on the dam for his market garden which he has growing on it why then is an enforcement notice on me to remove this soil the magistrate did not consider the site engineers and managers direction on multiple sites whilst I did not consider I Desmond Powe’s age of 79 years and mental state of health.  Due to the serious nature of charges brought by Council Desmond Powe should have been offered legal aid as a pensioner he was unable to afford legal representation.”

  1. [107]
    A further two-page outline of argument was filed by the appellant.  It reads as follows:

“Desmond Gordon Powe (Defendant) – I was unable to prepare an adequate appeal as I have been of ill health suffering from dementia and was also admitted to the Logan Hospital for a hip replacement on 30th November 2019.

1241 – 1251 Chambers Flat Road: Samrith Owng had the soil removed.  Council had not come back to inspect once the enforcement notice was received.

1253 – 1263 Chambers Flat Road: the property owner’s cleared the fence line.  The only soil product put in that area was from the neighbour, Duc Van Bui, in order to stop water going into his hot house. 

1265 – 1274 Chambers Flat Road:  gravel drive and graded fence line on the block.  Soil was bought [sic] up from the middle of the property and put up the front on admission at trial by land owned by Duc Van Bui.

1277 – 1287 Chambers Flat Road: Raquel Ciuzelis arranged with Desmond Powe to gravel the driveway and level the property.  Only soil on site was arranged by Steve Hogan of Pink Contracting.

114 – 128 Norris Creek Road: registered owners of the property are Andre Baas and Allison Baas.  Desmond Powe only levelled the site and Pink Contracting supplied the soil, arranged by Allison Baas by her own admission at trial.

86 – 98 Scott’s Lane: Desmond Powe was asked to go and re-level the carpark area at the property by One Kay Contracting, as the one bobcat on site could not keep up on its own pushing the gravel being brought in by Pink Contracting.  The owner of the property, Rami Tiwari, had marked out the carpark area and both himself and site engineer show Desmond Powe the site plans and DA approval.  Steve Hogan also asked to see the DA approval; however, it was not given to him as he wanted to show BMD Contractors (where Steve Hogan was carting the gravel from at a Chambers Flat Road job).  Steven Hogan warned the owner and site engineer that if he could not have a copy of the DA, that he would then proceed to remove the gravel previously carted onto site.  Steven Hogan was then given a copy of the DA approval; however, he then used the DA approval for 86 – 89 Scotts Lane to cart gravel on the neighbouring property to 100 Scotts Lane.

165 Featherstone Road:  Desmond Powe contravened a condition by filling part of the property owned by Ken Nguyen and Noc Nguyen.  Prior to starting work, a survey level was done and Desmond Powe was in attendance with the surveyor who advised Desmond Powe of the site fill points – grass bank either side and the top of the roadway either end, which the Council surveyor stated in court that Desmond Powe had filled to under that level.

Council did a second survey but gave the surveyor the wrong starting point on a pipe at the bottom of the dam, which was installed to drain the dam.  This starting point would mean that no fill could be put in the dam or dirt removed.

All other fill was spread from the existing dam walls – not imported.

In conclusion, these properties have not been surveyed recently to the current survey.  People have been dumping soil on these properties, yet Desmond Powe was being held responsible when it should be the owners’ responsibility.  The magistrate did not consider the site engineer’s and manager’s directions on multiple sites.  The magistrate did not also consider Desmond Powe’s age and mental state.  Due to the serious nature of the charges, Desmond Powe should have been appointed legal aid as he could not afford legal representation.”

Submissions of the respondent

  1. [108]
    A detailed 30 page outline of argument was filed on behalf of the respondent, which was supplemented by oral submissions at the hearing of the appeal.
  2. [109]
    The respondent submitted in respect of the principle ground of appeal advanced by the appellant, that the “Magistrate got it wrong”, the following general matters should be considered:
  1. The appeal is a rehearing on the evidence given below. In places, the appellant’s outline was written in a manner akin to a witness statement, but it should not be treated as such in circumstances where no application for leave to adduce fresh, additional or substituted evidence has been made. Notwithstanding this, there were inconsistencies and apparent admissions within the appellant’s outline which were relevant to matters of credit.
  2. In circumstances where the appellant appeared to challenge each of the 10 convictions, on the grounds that the Magistrate generally “got it wrong”.  Concluding in relation to various findings of fact, the respondent relied generally upon its outline entitled “Outline of The Complaint” dated 5 August 2019, as amended, and the closing oral address of counsel for the respondent in the court below.
  3. The credibility of the appellant, or the lack thereof, was a matter which was highly relevant in this proceeding. The appellant’s evidence was generally inconsistent, self-serving and incredible. Key aspects of the appellant’s evidence were apparently invented in the course of giving evidence, and were not put to the relevant witnesses. Accepting that the appellant was self-represented, the failure to put various matters to the respondent witnesses was contrary to the principles in Browne v Dunn (1893) 6 R 67. As a consequence, the witnesses were denied the opportunity to contradict the appellant, or provide an explanation, or otherwise respond to his version of events. As a corollary, the Magistrate below and this court have been deprived of the benefit of that testimony. The respondent did not submit that the intervention of the court was required in this instance, but it was a matter to be taken into account which is relevant to the credit of the appellant and the witnesses to whom matters were not put.
  4. It was submitted that the Magistrate was correct to find that the appellant was responsible for importing fill onto each of the properties. However, if the court should determine in any particular case that the appellant was not directly responsible for importing the fill, it would remain open to a court to find that the appellant committed the relevant offences by his activities in grading and levelling the properties, or generally as a party to the offence.[3]
  1. [110]
    In respect of the property at 1241-1251 Chambers Flat Road, it was submitted that the evidence led by the prosecution proved the following:
  • The owner of that property, Samrith Owng, had a conversation with the appellant who was working on a neighbouring property to the west. The appellant told Mr Owng that he could fill his land for free and that a permit from the council was not required. Mr Owng told the appellant he was interested but there was no agreement for the fill to be imported at that date. At a later date, Mr Owng discovered that fill from the neighbours to the west had been pushed on to his land. Mr Owng asked the appellant to remove the fill several times but the appellant never removed it;
  • The appellant’s claim in evidence that he had removed the soil that had been pushed on to the land was contradicted by the evidence of Mr Owng, the evidence of the surveyors and the evidentiary certificate which was Exhibit 1.
  1. [111]
    In respect of the property of Duy Binh Nguyen, at 1253-1263 Chambers Flat Road, Mr Nguyen gave evidence that the appellant approached at his property and offered him free fill, this conversation translated by Mr Nguyen’s son. There is no suggestion that a development permit was needed, or that payment was required. Mr Nguyen saw the appellant managing up to 10 trucks, and that too much was fill was coming in. It was submitted that the evidence of Mr Nguyen and his son was corroborated by the evidence of Cameron Leigh-Cooper, the surveying evidence and the evidentiary certificate in Exhibit 1. It was submitted that the evidence of the appellant in the court below on this charge was inconsistent. The appellant at one point said “I did offer him free fill that I’d been grading it out”, but quickly changed that to say that the Pink company offered the fill.[4]
  2. [112]
    In respect of the charge relating to the property at 1265-1275 Chambers Flat Road, belonging to Duc Can Bui, the following was submitted:
  • The appellant gave inconsistent evidence, but did admit on more than one occasion that he carried out earthworks on the land, although he also stated that he pushed any spill back;
  • The evidence of Mr Bui was that no one else had carried out any earthworks on his land;
  • The appellant’s suggestion that the owner of the Cucumber Farm at 1253-1263 Chambers Flat Road (the property of Mr Duy Nguyen), pushed soil onto the property was not put to either Mr Duy Nguyen or his son, or to Mr Bui, and is generally inconsistent with the weight of the evidence;
  • The evidence of Mr Bui is generally corroborated by the weight of the evidence, including the evidence of Mr Cameron Leigh-Cooper, the surveying evidence which was essentially unchallenged, and the evidentiary certificate which was Exhibit 1, which confirms that there were no relevant development permits for building or operational works for 1265-1275 Chambers Flat Road, and that the respondent had not carried out any filling or excavation on that property.
  1. [113]
    In respect of 1277-1287 Chambers Flat Road, the property of Raquel Ciuzelis, the effect of Ms Ciuzelis’ oral evidence was that she and her partner retained the appellant to carry out paid works on their property, including levelling out land, removing rubbish, bringing in top soil and graveling the driveway. She generally dealt with the appellant.
  2. [114]
    In respect of this property, the inspector Cameron Leigh-Cooper gave evidence that he inspected the Ciuzelis property on 3 June 2016. He saw a large grader that was on fill towards the rear of the property, which had been spread out and levelled. At an earlier time, Mr Leigh-Cooper in course of inspecting other Chambers Flat Road properties had a discussion with the appellant, during which he asked the appellant if he had done any other filling in work on any of the other properties. The appellant pointed to the Ciuzelis property and said he did the work on that property, and that “anything that happened there was on their own head or something to that effect and they’re responsible for it. And he said that that owner had provided him with a permit.”[5]
  3. [115]
    The following additional submissions were made:
  • The evidence of the appellant was inconsistent with the evidence of Ms Ciuzelis, including his allegation that the person “Lenny” worked directly for Ms Ciuzelis, and that the Pink company was involved. Neither of those matters were put to Ms Ciuzelis;
  • Although Ms Ciuzelis indicated that the appellant had levelled an 80 metre by 2 metre high earth pile (a total of 160 m3) left on her property by SEQ Water, that does not account for the essentially uncontested surveying evidence that 6,200 cube of fill was brought into the property;
  • The evidence of Ms Ciuzelis is generally corroborated by the weight of the evidence, including the evidence of Mr Cameron Leigh-Cooper and the surveying evidence which was essentially unchallenged. It is also corroborated by the evidentiary certificate which was Exhibit 1, which confirms that there were no relevant development permits for operational works for 1277-1287 Chambers Flat Road, that the only building approval relevant to the land related, and was limited to, to the removal and replacement of the existing house, and that the respondent had not carried out any filling or excavation on that property;
  • In the circumstances, the only rational explanation available was that the appellant imported the fill onto the property at 1277-1287 Chambers Flat Road.
  1. [116]
    In respect of the property 86-98 Scott Lane, the following submissions are made:
  • The effect of Mr Tiwari’s evidence is that it was introduced to the appellant after he made an enquiry of a lady about obtaining fill for the temple carpark. The appellant approached Mr Tiwari and offered to fill the property for free and Mr Tiwari arranged for a copy of the approval to be provided to him. Subsequently, many trucks of fill were imported, and although Mr Tiwari was away for some time in India, he had also observed the appellant counting the trucks as they came in with a pen and paper, and operating machinery to grade and level the earth that came in. Mr Tiwari’s evidence was that five to six trucks of fill may have come on to the property at an earlier date, but apart from that no one had brought in fill, and that prior to the appellant’s involvement, some minor work with a bobcat had been carried out by a devotee in the carpark area. Mr Tiwari’s evidence was that the defendant never removed any fill from the property;
  • Mr Terry Smith, a council officer that attended the property and made a recording of the inspection, gave evidence that was generally consistent with Mr Tiwari. In the course of the conversation between Mr Smith and the appellant, the appellant admitted that he was paid to “yeah, to bring – to bring the stuff in.”[6]
  • The evidence of the appellant was inconsistent with the evidence of Mr Tiwari and Mr Smith; suggestion that Mr Tiwari had made arrangements with Steve Hogan or Pink, or any other earthmoving company, was not put to Mr Tiwari, nor was the suggestion that the appellant was working for Pink and was paid by Pink to grade;
  • The evidence of Mr Tiwari that although some minor earlier work by the devotee had been done in the carpark area, that perhaps five or six trucks of soil having been brought in earlier, and that no other person had imported fill to the property, this did not account for the volume (3,840 m3) or extent of the area fill (6,850m2) which was established by the essentially uncontested surveyor’s evidence;
  • The evidence of Mr Tiwari was generally corroborated by the weight of the evidence, including the evidence of Mr Terry Smith, and the surveying evidence which was essentially unchallenged. It was also corroborated by the evidentiary certificate in Exhibit 2. Exhibit 2 confirmed that there was one building permit dated 22 December 2014 for the temple, which had been constructed at the time of the offence, and one operational works permit dated 28 June 2013 which permitted a very limited area of fill, and a limited area of compensatory fill. Exhibit 2 also confirmed that the respondent had not carried out any filling or excavation on that property;
  • The appellant’s own outline appears to include an apparent admission that the appellant imported fill and was paid for it. It is also inconsistent with the appellant’s statement of oral evidence that he never saw the development approval.
  1. [117]
    114-128 Norris Creek Road is the property of Allison Baas. Criticism is levelled at Ms Baas that she was not favourably disposed to the prosecution. It is submitted that she gave conflicting evidence. It is submitted;
  • The evidence given by the appellant and Ms Baas was inconsistent in part;
  • The inference that a property owner might seek to take advantage of free fill, so as to improve the flood immunity of her property, is reasonably open;
  • The suggestion that the land had previously been eroded, that the fill which had been imported at the time had been eroded, is not borne out by the evidence of the surveyor, which included a comparison of survey levels with earlier 2008 and 2013 levels;
  • Taking into account the entirety of the evidence, including the evidence of Mr Daniels, the inconsistent evidence given by Ms Baas and the appellant, the matters of credit, the court would be satisfied to the requisite criminal standard that the appellant was responsible for importing the fill to the Norris Creek Road property and for grading it.
  1. [118]
    In respect of the property at 165 Featherstone Road belonging to Ken Nguyen the effect of Mr Nguyen’s evidence was that he was approached by the appellant who offered to fill in a large dam on the property and a small area to the north for free. The appellant applied for and obtained the development permit, although Mr Nguyen paid the application fee. The appellant then filled in the dam, and other areas of the land which had not been discussed, including good cropping land. That caused adverse impacts on that cropping land.
  2. [119]
    It was submitted that the appellant gave inconsistent evidence in court in relation to this property. These further submissions were made:
  • The appellant submissions are generally not borne out by any version of the evidence;
  • The evidence given by the appellant was inconsistent with the evidence and in particular Mr Ken Nguyen’s evidence. Significant aspects of the appellant’s version of events were not put to the prosecution witnesses, including Mr Nguyen, Mr Smith, Mr Daniels and the surveyor;
  • The evidence of Mr Nguyen was generally corroborated by the weight of the evidence, including the evidence of Mr Daniels, and the survey evidence which was essentially unchallenged. It was also corroborated by the evidentiary certificate in Exhibit 1, which confirmed that there was an effective development permit for the works, with conditions restricting the amount of fill to the large dam on the property and no other area, even though another small area to the north had been applied for, and that the appellant filled out the application, and that the respondent had not carried out any filling or excavation on the property;
  • Taking into account the entirety of the evidence, including the evidence of Mr Nguyen, the development application material, the inconsistent evidence given by the appellant and matters of credit, the court would be satisfied to the requisite criminal standard that the appellant was responsible for importing the fill to the Featherstone Road property and from grading it in contravention of the development permit conditions.
  1. [120]
    The respondent notes that while the appeal notice relates to the two charges on June 2017 complaint relating to the appellant’s failure to comply with two separate enforcement notices, the appellant does not raise any arguments in his outline concerning these charges. The following submissions are made:
  • The uncontradicted evidence is that the appellant received the two enforcement notices in relation to the four Chambers Flat Road properties but the notices were not appealed;
  • The weight of the evidence establishes that the notices were not complied with, in circumstances where the appellant did not remove any of the fill;
  • As the enforcement notices were not appealed or otherwise challenged, the notices cannot be challenged in a collateral way in the proceeding below or part of this appeal: Gold Coast City Council v Lear & Anor [2016] QDC 215.

Matters raised by the Court

  1. [121]
    As the trial in the court below progressed, a number of witnesses gave evidence through interpreters. In respect of the witness Ram Tiwari, he said at the commencement of the appellant’s cross-examination that he could understand English, but accepted the offer of an interpreter. A volunteer in the temple, Dillon Ramaraj, offered to interpret for Mr Tiwari in the Hindi language. The witness Samrith Owng gave evidence through an interpreter in the Khmer language; the interpreter was on the telephone.
  2. [122]
    In respect of the witness Duc Van Bui, an interpreter had been booked but was not able to appear until 1.00pm on 15 May 2019. There was a discussion at 12.20pm, according to the transcript, whether the son of the witness could be the interpreter. The Magistrate asked the appellant if he had any objection to the son interpreting. The appellant replied:

“As long as he’s clear and I can understand him, I don’t mind.”

Consequently, the witness gave evidence with the son acting as an interpreter.[7]

  1. [123]
    The witness Duy Binh Nguyen also gave evidence through a Vietnamese interpreter, who appeared in court by telephone.[8]
  2. [124]
    It was apparent that none of the interpreters were sworn in terms of s 29 Oaths Act 1967, nor required to take an oath or affirmation that they would provide a true interpretation of the questions and answers. I had my associate listen to the recording of the trial, and it was confirmed that the transcript was accurate, that no oath nor affirmation was administered to the interpreters.
  3. [125]
    There was also the issue of whether an interview between council officers and the witness Samrith Owng, which became Exhibit 7, was properly admissible. As a result, my associate sent to both the appellant and the lawyers for the respondent an email on 25 November 2020 requesting submissions on the following:
  1. (1)
    whether the interview between council officers Mr Terry Smith and Mr Daniel Smith and Mr Samrith Owng which is Exhibit 7, was properly admissible; and
  1. (2)
    whether any irregularities stemming from the fact that the interpreters do not appear to have been sworn in accordance with s 29 of the Oaths Act 1967 affects the convictions on the charges that relate to those witnesses who needed an interpreter.

My associate also forwarded by email the guideline entitled “Working with interpreters in Queensland Courts and Tribunals”, issued 28 June 2019, to the appellant and the lawyers for the respondent.

  1. [126]
    No submissions have been received from the appellant. An outline of submissions dated 4 December 2020 was received from counsel for the respondent. Further submissions were sought from the parties on the admissibility of Exhibit 20; the respondent forwarded a submission dated 29 January 2021.
  2. [127]
    The respondent submits that Exhibit 7 was properly admitted, and that no objection had been taken to its admission in the court below. It was submitted that Exhibit 7 was tendered as it was “a record of the discussion between himself [Mr Smith] and Mr Owng”. Mr Owng gave evidence that he took part in that interview, and signed the transcript of that interview, thereby “expressed a clear belief as to its nature and content, a belief that was not shown to have been erroneous or unfounded in any way. By so affixing his signature, Mr Owng adopted the document.”[9]
  3. [128]
    Similarly, the respondent submits that Exhibit 20, an interview with the witness Ken Ngai Van Nguyen, was properly admissible. Alternatively, if it was not admissible the convictions concerning the contraventions of the development approval for 165 Featherstone Road, Chambers Flat were supported by other evidence.
  4. [129]
    Detailed submissions were made on the question of the failure to have the interpreters sworn. In essence, the following submissions were made:
  1. No issue was taken about this matter at first instance or on appeal by the appellant.
  2. The guideline “Working with interpreters in Queensland Courts and Tribunals” is simply that, a guideline, not a binding regulation.
  3. The evidence of the witnesses through interpreters was direct evidence and admissible. An interpreter does not give hearsay evidence, but “rather acts as a means of allowing the direct communication by one party to another (here the parties and the court) from a different language. That is so, whether or not the interpreter is sworn.” Reference was made to the decision of the High Court in Gaio v The Queen (1960) 104 CLR 419.
  4. The appellant raised no objection to the use of the interpreters, or their accuracy, either at first instance in the Magistrates Court, or on appeal, but rather, proceeded on the basis that the use of the interpreters was agreed. Nor was any issue raised by the Magistrate himself. The interpreters were present either in person or by telephone such that any objection could have been dealt with at that time. The accuracy of their interpretations is apparent from all of the circumstances, including a reading of the transcript. The audio recording of the proceedings is available, such that any errors or inaccuracies in interpretation could have been (can still be) checked by the appellant and raised in his grounds of appeal.
  5. In respect of the witness Tiwari, the majority of his evidence was given directly rather than through an interpreter, so it is only parts of his evidence that are affected. The interpreter who attended court with Mr Tiwari was a constituent of his temple, and could be taken to have acted as his agent. Similarly, the person who interpreted for Mr Van Bui was his son, and could also be taken to have acted as his agent.
  6. The position is no different, in principle, from any other case where hearsay evidence is admitted without objection at trial. Reference was made to the decision in R v LRG (2006) 16 VR 89 at [13].
  7. The weight of the admissible evidence, taken as a whole, was and is sufficient to support each of the convictions, taking into account the matter set out in [22] of the respondent’s outline.
  8. Any issue relating to the interpreters does not affect the convictions in relation to the enforcement notices, which depended only upon proof of each notice being given, and of non-compliance with the requirements of each notice.

Consideration of matters raised by the Court

  1. [130]
    The evidence of the witness Samrith Owng was consistent with the statements he made to the council investigators in the interview of Thursday 18 May 2017, which became Exhibit 7. The interview was simply not admissible, nor was the interview in Exhibit 20. The well-known rule is succinctly stated in The Nominal Defendant v Clements (1960) 104 CLR 476, where Dixon CJ said the following at 479:

“The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it.”

  1. [131]
    In the same case, Menzies J said this at 485:

“Notwithstanding the earlier rule, it is now firmly established that an earlier statement is not admissible merely as confirmation of the evidence given by the witness; furthermore, if there be nothing more than that the evidence of a witness has been attacked in the course of cross-examination, that does not of itself render admissible earlier statements by the witness consonant with his evidence.”

  1. [132]
    The defendant’s cross-examination of Mr Owng did not include any suggestion of recent invention or fabrication. He simply cross-examined the witness about other occasions when fill may have been brought on to his property.
  2. [133]
    The fact that the defendant did not object to the admission of Exhibits 7 and 20 is of little consequence. The defendant was representing himself, in particularly complicated proceedings, and he could not be taken to understand the rules of evidence. In cases such as these, lawyers for the prosecution must take great care to ensure that evidence that is tendered is properly admissible at law. The circumstances are different from those in R v LRG, supra.
  3. [134]
    It is the long standing practice in Queensland in civil and criminal proceedings, whatever the jurisdiction, interpreters are required to take an oath or affirmation that they will truly and faithfully interpret for the defendant, or a witness, whatever the case may be. There is a standard form of oath in s 29 Oaths Act 1867 (“Oaths Act”). The guideline titled “Working with Interpreters in Queensland Courts and Tribunals”, issued 28 June 2019, specifically states that it applies to the Magistrates Court of Queensland. It is expressly stated that interpreters working in courts and tribunals will be required to make an oath, or affirmation, in the appropriate form under the Oaths Act before the interpreter commences to undertake their role.[10]
  4. [135]
    There is surprisingly little authority on this issue, presumably because the issue is self-evident. In R v Tran [1994] 2 SCR 951, Lamer CJ said this at 988:

“To meet the standard of protection guaranteed by s. 14 of the Charter, interpretation must be of a high enough quality to ensure that justice is done and seen to be done. This means, at a minimum, that an accused has a right to competent interpretation. While there are, as of yet, no universally acceptable standards for assessing competency … an interpreter must at least be sworn by taking the interpreter’s oath before beginning to interpret the proceedings … Where there is legitimate reason to doubt the competency of a particular interpreter, a court will be well advised to conduct an enquiry into the interpreter’s qualifications.” (references omitted)

  1. [136]
    In R v Labelle [1986] O.J. No. 1954, 17 W.C.B 178, Forget DCJ allowed a prosecution appeal from a provisional court judge’s decision to dismiss charges. The critical issue was that ten of twelve child witnesses called to give evidence required interpretation from French to English, but the interpreter was not sworn.
  2. [137]
    His Honour observed that he had been unable to find a statutory requirement that an interpreter had to be sworn. However, there was a strong common law tradition that an interpreter should be sworn. His Honour then said this:

“[42] Custom and tradition for time immemorial has always been that an interpreter must be sworn so that the court can rely not only as to his competency and accuracy, but also to ensure that the interpreter ‘shall well and truly interpret the oath to the witness and all questions put to the witness and his answers thereto …’ this form of oath is contained at page 26 of the Courtroom Procedure Manual, revised in 1979, and published by the Ontario Ministry of the Attorney-General.

[43] In our particular case, is there any magic to the words by the learned Trial Judge, namely ‘official interpreter’? Counsel and I have not been successful in finding any special significance to the designation used by the Trial Judge save to determine that the designation is one made by the Ministry of the Attorney-General to indicate that the person is a qualified interpreter (although we do not know in what languages) who is employed as a full-time employee by the Ministry in question.

[44] Pursuant to section 94 of the Court of Justice Act 1984, interpreters are appointed under the Public Service Act of Ontario.

[45] Pursuant to the last mentioned statute section 10 provides that every civil servant shall take an oath of office and secrecy and an oath of allegiance. These oaths make no reference to the position occupied nor to the work to be performed except in the most general term that he or she will faithfully discharge his or her duties.

[46] Section 458 (subsection (4) & (5)) of the Criminal Code refers to duly sworn Court stenographer. I could not find any similar provisions dealing with interpreters.

[47] By analogy, Rule 53.01(5) of the Ontario Rules of Civil Procedure state as follows:

 “Where a witness does not understand the language or languages in which the examination is be conducted or is deaf or mute, a competent and independent interpreter shall, for the witnesses called, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation to the witness, the questions put to the witness and his or her answers.”

[48] As one can readily appreciate, the interpreter was required by that rule to take an oath.

[49] I must accordingly conclude that there being no statutory authority to the contrary, that an interpreter, according to common law and long standing custom and tradition, must take an oath in each case in which his services are requested once the Trial Judge has exercised his discretion that an interpreter is required.”

  1. [138]
    His Honour considered that a proper trial was not held because the trial judge received and acted upon unsworn evidence which he was not permitted to do so.
  1. [139]
    There was an appeal from this decision, which is reported as R v Labelle (1988) Carswell Ont 6024, 5 W.C.B. (2d) 64.[11] According to this note, the Ontario Court of Appeal (Brooke, Morden and McKinlay JJA) accepted that there was a legal requirement that an interpreter be sworn. However, they considered that in this case that requirement was waived by the prosecution and the defence, and as it was agreed that the translation provided by the interpreter was in all respects accurate, Forget DCJ was in error in allowing the prosecution appeal and setting aside the acquittals entered in the provincial court. One wonders whether the same reasoning would have applied if convictions were sought to be restored on appeal.
  2. [140]
    The need for interpreters to be sworn was considered in another Canadian case,   R v Nguyen [2005] BCCA 221.  The appellant had been convicted after a trial by judge alone of trafficking in cocaine.  A ground of appeal was that the appellant’s rights under s 14 of the Canadian Charter of Rights and Freedoms had been violated because the interpreter at the preliminary hearing had not been sworn.[12]  Ryan JA, with whom Hall and Low JJA agreed, said the following:

“[14] The interpreter was required at the preliminary hearing only to assist the appellant; there were no Vietnamese-speaking witnesses who were called to testify before the provincial court judge.

[15] Nothing in the material filed on the certiorari application demonstrated that the proceedings at the preliminary hearing were not properly translated or that the appellant did not understand the interpreter or the proceedings.  The sole basis of the application was that while an interpreter was present and interpreted the proceedings for the appellant, the record did not show that the interpreter had been sworn to do so.

[16] It is conceded by counsel for the Crown that the appellant had difficulty with the English language and required a Vietnamese interpreter.

[17] In dismissing the application for certiorari Madam Justice Baker concluded that standing alone, failure to swear the interpreter did not amount to a breach of the appellant’s s. 14 rights.

[18] Counsel in this Court accepted that the requirement that an interpreter be sworn before performing his or her duties is a practice that has been in existence in our court system since time out of mind.  While both found references to its requirement, neither was able to find the source of the requirement.  Both counsel agreed that in these circumstances the oath is a safeguard meant to ensure that an interpreter will faithfully interpret the proceedings so that that accused may be truly said to be present for his or her preliminary hearing or trial.

[19] For purposes of this appeal, however, it is unnecessary to decide whether a failure to swear the interpreter amounted to a Charter breach in the case at bar.  In the first place, I am of the view that by the time the indictment had been presented and was lodged with the trial court at the opening of the appellant’s trial with a court ready to proceed to trial, it was too late to challenge the regularity of the committal for trial by certiorari. This proposition is found in R. v. Chabot, [1980] 2 S.C.R. 985, 55 C.C.C. (2d) 385.  Second, if there was a breach the appellant has now had a fair trial with the assistance of a sworn interpreter.”

  1. [141]
    In my view s 29 Oaths Act makes it clear that in a criminal trial an interpreter needs to be sworn or affirmed.  This section provides a form of oath in respect of witnesses, one for trial before a jury and one without.  The oath allows for a form of oath to be administered to the like effect.[13]
  2. [142]
    If there were any doubt that s 29 Oaths Act required an oath or affirmation to be administered to an interpreter, such doubt is dispelled by s 35, which reads as follows:

“(1) If in any criminal proceeding in any court of justice it shall be necessary to call an interpreter whether for the purpose of the arraignment of any person accused or for the interpretation of the evidence of witnesses and it shall appear to the presiding judge that the person called as interpreter understands the language of the accused or other person between whom and the court the interpreter is called to interpret sufficiently to be able to make true explanation of the evidence and other proceedings but that such interpreter cannot for any cause be sworn in the form and manner prescribed by the Oaths Act 1867 in that behalf it shall be the duty of the presiding judge to declare in what manner such interpreter shall be sworn or otherwise bound to make true declaration.

(2) And it shall in such case be the further duty of the presiding judge to ascertain that true explanation of the evidence and all other proceedings is made to the accused person.

(3) And if the presiding judge shall be satisfied that such true explanation is so made the trial and any verdict given thereat shall be as valid as if the interpreter had been sworn in the ordinary manner.”

  1. [143]
    The term “presiding judge” is defined to include a person authorised to administer oaths to witnesses: s 1B Oaths Act.
  2. [144]
    In respect of evidence in the Magistrates Court, s 73 Justices Act states as follows:

“Every witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the acts enforced for the time being relating to giving evidence in course of justice.”

  1. [145]
    In my view the interpreters in the court below were required to be sworn or affirmed in terms of s 29 Oaths Act.  If there was some reason why such an oath or affirmation could not be taken, it was incumbent upon the magistrate to bind the interpreter to provide the court true interpretation, in the manner prescribed by s 35 Oaths Act (see also ss. 38 & 40).  In my view the failure to do either is a fundamental error, and therefore I need to consider whether a substantial miscarriage of justice has occurred.
  2. [146]
    In Munday v Gill (1930) 44 CLR 38, the High Court of Australia considered summary convictions for unlawful assembly, and a complaint that the simultaneous hearing of a number of informations was irregular and constituted a serious defect in the mode of conducting a criminal trial.  After referring to a number of authorities, Gavan Duffy and Starke JJ said this at 80 – 81:

“No definite principle can be extracted from these cases.  In some instances, the irregularity is so serious that the consent of the accused will not cure it; in others, consent overcomes the irregularity; whilst in yet others, it is very slight and unattended by any serious consequence to the accused, so that no substantial miscarriage of justice takes place and the Courts refused to interfere. Much must therefore depend upon the nature of the charge, the character of the irregularity, and the conduct of the parties at the hearing.  The fact that the accused person has consented to the irregular procedure is weighty, and one that is often decisive; but it is not conclusive of itself and the court must consider the whole of the circumstances.”

  1. [147]
    This principle has been followed by courts ever since and was discussed by Henry J in Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202.  In that case, His Honour considered, inter alia, a failure of a magistrate to ask a defendant to plead to the charges, in accordance with s 145 Justices Act 1886.  After an extensive discussion of the authorities in Queensland concerning a failure to comply with that provision, His Honour concluded in the circumstances that there was no injustice caused by non-compliance with that section.
  1. [148]
    I do not consider that legal representatives for a defendant can waive the requirement that an interpreter be sworn or affirmed, as required by the Act.  A fortiori, a self-represented defendant who has no legal training cannot be expected to waive the statutory requirements, just as it would be unacceptable to expect that a self-represented defendant could waive the requirement that a witness be sworn or affirmed to tell the truth.[14]
  2. [149]
    The respondent submits correctly that the witness Rami Tiwari gave his evidence in chief without the aid of an interpreter, and that it is evident he had some command of the English language.  The cross-examination of Mr Tiwari by the appellant was with the services of the lay interpreter, and on the face of the transcript the answers of Mr Tiwari appear responsive to the questions asked.  However I do not consider it overcomes the fundamental irregularity. 
  3. [150]
    In the same way, the evidence of Samrith Owng, Duc Van Buy and Duy Binh Nguyen appear on the face of the transcript to have been responsive to questions both in evidence in chief and cross-examination.  If their evidence was the only evidence against the appellant in respect of the relevant charges, I would have set aside the convictions and remitted those charges for rehearing to the Magistrates Court, subject to whether that was in the interests of justice.  It is however submitted by the respondent that there is other evidence that supports the conviction on those charges. 

Proper approach on appeal from Magistrates Court

  1. [151]
    This appeal is brought to this Court pursuant to s 222 Justices Act.  Pursuant to s 223 of the Justices Act, the appeal is by way of rehearing on the original evidence.  The central task of an appellate court in an appeal by way of rehearing is not to analyse the correctness or otherwise of the decision below, although such an analysis may sometimes be helpful; it is to decide the case for itself.  Often it will be do so by considering only the evidence admitted at first instance, subject to any question of leave to admit fresh evidence.  The appellate court must draw its own inferences from the facts established by the evidence while respecting the advantage of the court at first instance in seeing and evaluating the witnesses: Graham v Queensland Nursing Council [2009] QCA 280, per Fryberg J at [69]. 
  2. [152]
    Where findings of fact depend on an assessment of conflicting evidence, it is a duty of the appellate court to conduct a “real review” of the evidence: It is obliged to accord respect to the decision of the trial Magistrate and to bear in mind any advantage the trial court had in seeing and hearing witnesses give evidence.  The appellate court is to weigh conflicting evidence and draw its own inferences and conclusions: Fox v Percy (2003) 214 CLR 118 at 124-129. 
  3. [153]
    On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and law as they stand at the date of the decision on appeal: Teelow v Commissioner of Police [2009] QCA 84. 

Consideration of the evidence

  1. [154]
    There is no question that this was a complicated matter for the learned Magistrate to consider.  The evidence was taken over four days, with a fifth day set aside for submissions and the Magistrate to deliver his decision.  54 exhibits were tendered, a number of which comprised of numerous documents.  The prospects of defending these charges would have been daunting to an experienced lawyer; it is obvious from the transcript of the proceedings that the defendant had difficulties marshalling the evidence, and representing himself.  The learned Magistrate did his best to ensure that the appellant had every opportunity to present his case, and to advise the appellant on rules of procedure and evidence. 
  2. [155]
    The first complaint and summons filed on 3 July 2017 charged four offences of carrying out assessable development without a permit, and two charges of failing to comply with an enforcement notice.[15] 
  3. [156]
    As an example, charge 2 reads as follows:

“On a date or dates unknown in the period between the 29th day of February 2016 and the first day of July 2016 at 1241-1251 Chambers Flat Road, Chambers Flat in the Magistrates Courts District of Beaudesert in the said state DESMOND GORDON POWE carried out assessable development, mainly operational work, by importing material to 1241-1251 Chambers Flat Road, Chambers Flat and thereby materially effecting the land or its use by changing the ground level of the land without an effective development permit for the development, contrary to section 578(1) of the Sustainable Planning Act 2009.”

  1. [157]
    Particulars are specified in the charge, identifying firstly that the property was registered as belonging to Samrith Owng and Sothyga Owng.  Relevantly, it was particularised that the development carried out “consisted of importing approximately 350 cubic metres of material, including soil, clay, earth and rocks, to the land over an area of approximately 1050m2 and changing the ground level of the land (‘the development’).”
  2. [158]
    It was particularised that this development was operational work because it involved excavation or filling that materially affected premises, including land, or their use.  It was further stated that the development was declared to be assessable development under the Planning Scheme because it involved filling or excavation as defined by the Planning Scheme, it occurred within an area covered by “OM-O5.00 Flood Hazard Overlay” and it was not carried out by the local government or in compliance with a material change of use development permit or a preliminary approval to which s 242 SPA applied.  It was further alleged that the development required a development permit, and that the appellant carried out or caused to be carried out the development.  Other particulars were provided, but it is not necessary to set those out. 
  3. [159]
    Charges 3, 4 and 5 are in similar terms, with the different properties and owners specified.  In respect of charge 3, it was particularised that the development carried out consisted of “importing approximately 1,690 cubic metres of material, including soil, clay, earth and rocks, to the land over an area of approximately 5,480 square metres and changing the ground level of the land.”
  4. [160]
    In respect of charge 4, the alleged development consisted of “importing approximately 425 cubic metres of material, including soil, clay, earth and rocks, to the land over an area of approximately 2540 square metres and changing the ground level of the land.”
  5. [161]
    In respect of charge 5, the development that was particularised was importing “approximately 6,200 cubic metres of material, including soil, clay, earth and rocks to the land over an area of approximately 19,700 square metres and changing the ground level of the land.”
  6. [162]
    Charges 6 and 7 relate to the failure to comply with enforcement notices.  In respect of charge 6, it was alleged that the appellant was the recipient of enforcement notice number 42656 which required him to do a number of things, including to remedy the commission of the offence by removing imported fill, the subject of the notice, from the relevant premises stated therein.  It also required him to provide Council a plan of survey demonstrating the reinstatement of the pre-existing ground contour levels to the Australian Height Datum as recorded in the relevant LiDAR data held by Council, and to restore as far as practicable the relevant premises to the condition the premises were in immediately before development started.  The relevant premises identified in the notice were three properties on Chambers Flat Road, Chambers Flat.  It was alleged that the appellant did not by 5.00pm on 19 September 2016 comply with the requirements of the notice. 
  7. [163]
    Charge 7 is in similar terms, and it relates to an enforcement notice issued to the appellant, number 42783.  The relevant premises in this charge was 1277-1287 Chambers Flat Road, Chambers Flat. 
  8. [164]
    A further complaint filed on 14 December 2017 alleged two charges.  Charge 1 relates to the property at 86-98 Scott Lane, North McClean owned by Ram Tiwari.  The assessable development alleged was operational work, importing material to that property.  The particulars alleged that the development consisted of importing approximately 9,850 cubic metres of material, including soil, clay, earth and rocks to the land over an area of approximately 9,805 square metres and changing the ground level of the land.  It was alleged that the appellant carried out or caused to be carried out that development.
  9. [165]
    Charge 2 also alleged that the appellant carried out assessable development without an effective development permit, by importing material to 114-128 Norris Creek Road, Munruben, which was owned by Andre` Baas and Allison Joyce Baas.  The particulars alleged that the development consisted of:
    1. (a)
      “importing approximately 4,065 cubic metres of material, including soil, clay, earth and rocks, to the land over an area of approximately 6,850 square metres and changing the ground level of the land.” 

Again, it was alleged that the appellant carried out or caused to be carried out the development.

  1. [166]
    Charge 3 alleged that the appellant contravened a condition of a development approval by filling in excess of the Australian Height Datum provided in the survey level of a dam in contravention of Condition 1.2 of Development Approval OW/122/2015, contrary to s 580 (1) SPA.
  2. [167]
    In respect of this charge, the particulars allege that the appellant on behalf of the owners made the development application for assessable development, consisting of operational work, being the filling in of a dam.  That application was approved on 12 May 2015 and the development was subject to conditions.  Condition 1.2 required that before works commenced, a survey level had to be provided showing the current full supply level of the dam, and the filling of the dam must not exceed the Australian Height Datum.  It was alleged that the filling in of the dam caused an excess of the Australian Height Datum, in contravention of Condition 1.2 of the development approval.
  3. [168]
    Charge 4 relates to an alleged contravention of a condition of a development approval in respect of property at 165 Featherstone Road, Chambers Flat, owned by Ken Ngai Van Nguyen and Ngoc Thuy Nguyen.  This charge alleges that the appellant contravened a condition of the development approval by filling in a part of the property other than where it was shown on the approved plans for the development approval, in contravention of Condition 4.1 of Development Approval OW/122/2015, contrary to s 580 (1) SPA.  The particulars allege that the appellant carried out or caused to be carried out development on the land, by filling on parts other than approved.
  4. [169]
    The respondent, in its outline to the court below, headed “Outline of the Complaint”,  consisting of 17 pages, and also in its outline of argument filed on 3 April 2020 for this appeal, submitted:

“if the court finds in any particular case that the defendant was not responsible for bringing in fill, the court should find that the defendant graded and levelled it. …in that respect, Court would still find that the defendant committed the offence of carrying out assessable development (operational work) without a development permit.  Either directly by his activities in grading and levelling the properties, or as a party to the offence of either importing fill, or carrying out cut and fill to level and grade the land, or some combination of the two.”[16]

  1. [170]
    Each of the charges relating to carrying out assessable development without a permit specifically allege that the development in question was the import of material.  There were no alternative charges laid that the assessable development in question was simply grading or moving fill that had otherwise been brought on by others.  It is obvious from the proceedings in the court below that the appellant believed the critical question was whether he was responsible, either as a principal or a party, to bring in fill onto the properties in question.  Importantly, the learned magistrate in his reasons, made a specific finding that the appellant was directly responsible for

“the facilitation, arrangement, or co-ordination of fill deposited onto the subject properties by third parties.”  I find that Mr Powe procured the importation of fill onto the properties.  I reject Mr Powe’s suggestion that the fill was ‘illegally’ dumped by earth-moving companies without his knowledge.”[17]

  1. [171]
    Exhibit 3 before the magistrate was a document entitled “Binding Particulars”.  It states as follows:

“1. The prosecution relies on the particulars contained in the two complaints except to the extent they are modified below.

  1. For Charges 1 – 5 of the complaint filed 3 July 2017, after paragraph 11 of each for those charges, insert –
  1. a. DESMOND GORDON POWE arranged for or directed the development;
  2. b. DESMOND GORDON POWE used machinery to spread out or compact the material, changing the ground level of the land
  1. For Charges 1 and 2 of the complaint filed 14 December 2017, after paragraph 11 for each of those charges insert –
  1. a. DESMOND GORDON POWE arranged for or directed the development;
  2. b. DESMOND GORDON POWE used machinery to spread out or compact the material, changing the ground level of the land.
  1. For Charges 3 and 4 of the complaint filed 14 December 2017, after paragraph 10 for each of those charges insert –
  1. a. DESMOND GORDON POWE arranged for or directed the development.”
  1. [172]
    These further particulars do not alter the main allegation set out in the relevant charges relating to carrying out assessable development without a permit, namely that the relevant operational work was importing fill material.
  2. [173]
    The learned magistrate considered that the civilian witnesses, particularly the relevant property owners, appeared to provide honest and truthful evidence.  The magistrate specifically rejected the appellant’s evidence where it was in conflict with the prosecution witnesses. The appellant’s evidence that he was simply the grader operator, and following instructions of the owners of the subject properties, was specifically rejected.  That finding was clearly open to the learned magistrate, who had the advantage of observing the witnesses give evidence, including the appellant.
  3. [174]
    The rejection of a defendant’s evidence still requires a court to examine carefully the rest of the evidence to see if the prosecution can prove the charges beyond reasonable doubt. 
  4. [175]
    In respect of Charge 5 on the complaint filed 3 July 2017, concerning the property at 1277 – 1287 Chambers Flat Road, Chambers Flat belonging to Mr Schneider and Ms Ciuzelis, and in respect of Charge 2 on the complaint filed 14 December 2017, relating to the property at 114-128 Norris Creek Road, Munruben belonging to Mr and Ms Baas, there is no direct evidence that the appellant brought in fill, or indeed discussed the bringing in of fill.
  5. [176]
    The prosecution, in its submissions entitled “Outline of the Complaint”, submitted that in respect of these two charges the court could rely on “circumstantial evidence” that the appellant arranged for the importation of fill.   
  6. [177]
    Ms Ciuzelis gave evidence between R2-27 to R2-30.  She gave evidence that her partner organized for the appellant to come in and help them with their land on Chambers Flat Road.  She ended up dealing with the appellant after the initial engagement.  She said:

“We had a lot of rubbish and debris, and we bought it knowing that we – it was a stepping stone to where we wanted to be.  So we had to clean it up, and he – we got the rubbish removed and then we wanted a level land, so he helped us with that. …there was a big mound left from the SEQ Water that was installed on – out the front.  It was about 18 metres long and 2 metres high.  It had been there before we bought it.  So, I wanted that all levelled out so we could see and build a fence out the front.  So he levelled that all for me and all the rubbish that we’d taken away.  He levelled all the back yard.  And that was it.”[18]

  1. [178]
    When asked if there was any discussion about bringing any fill onto the site, she said:

“We brought in top soil for when we finished and did the grass, which we did half of it.  And then once Council came in and was threatening and carrying on, we – it’s still not finished.  It’s still sitting there.”[19]

  1. [179]
    Ms Ciuzelis said that persons other than the appellant carried out earthworks on her property, when their property was flooded and their house destroyed.  They brought in a removable home, and they had tanks dug, an electrical trench dug, and “little bits and pieces of our septic tanks”. 
  2. [180]
    In cross-examination, Ms Ciuzelis said that she had stuff brought in for her driveway, mainly bitumen to stop it from getting muddy when the property flooded.  She said that she did not see the appellant organise any trucks or fill coming onto the property.  She stated that other than gravel for the driveway and topsoil for the front, the rest of the soil was already on the property.[20]
  3. [181]
    Cameron Leigh-Cooper was a technical services co-ordinator with the Logan City Council.  He gave evidence that on 3 June 2016 he attended the property of Ms Ciuzelis at 1277-1287 Chambers Flat Road, Chambers Flat.  He observed that there was a substantial amount of fill on the property that had been spread out.  He observed that the fill had also been levelled.[21]
  4. [182]
    Mr Leigh-Cooper gave evidence of a conversation he had with Ms Ciuzelis in the absence of the appellant.  That was simply hearsay and should not have been admitted.  He did state that Ms Ciuzelis advised that there was some doubt about whether fill had been brought onto the property.  Mr Leigh-Cooper then gave evidence that he was inspecting other properties on Chambers Flat Road on 6 and 7 July 2016 and during the course of that he spoke with the appellant.  Mr Leigh-Cooper gave the following evidence of that conversation:

“I asked him – Mr Powe – if he had done any other filling-in work and worked on any of the other properties.  He pointed down to that property and said that he did the work on that property.  He went on to say that anything that happened there was on their own head or something to that effect and they’re responsible for it.  And he said that that owner had provided him with a permit.”[22]

  1. [183]
    Mr Leigh-Cooper also gave evidence that the same grader that was present on the Nguyen’s property on 6 June 2016 was on the property of Ms Ciuzelis on 3 June 2016.[23]
  2. [184]
    In cross-examination, Mr Leigh-Cooper conceded that he did not know who transported fill to the property of Ms Ciuzelis. He stated that he had conversations with Steve Hogan of Pink Plant Hire. He also accepted that he had had conversations with Mr Hogan about bringing fill into the three properties on Chambers Flat Road. There was then the following exchange in cross-examination:

“Q: Are you aware that Rachel’s boyfriend organised the fill?

A: I’m unaware of that. No.

Q: Alright. Who transported the fill to the property, Rachel’s property?

A: My only knowledge to that is what – what – what you told me, and that was … Pink and Coast to Coast.

Q: Pink Transport. So you don’t know who put the fill on the property, who transported it? No? Yes or no?

A: Well, yes, based on what you advised me on 6 and 7th of June 2016.

Q: Ok. Do you know who organised the fill?

A: No, I don’t.

Q: It’s a hearsay – your own – you only think that I organised it? That’s your assuming that I organised it?

A: No, you – you told me that – that those parties brought the fill to the property, as well as the other properties on Chambers Flat Road.

Q: I can’t recall every saying that I organised to fill anywhere. I was there, and you’ve seen me as a grader operator just [indistinct] the fill. Is that right?

A: On – on which property, sorry, Mr Powe.

Q: On Rachel’s property, 1277-1287?

A: I didn’t – I didn’t see anyone operating the grader at their property.

Q: Alright. You didn’t … ?

A: The grader was parked there.

Q: You didn’t see anyone organising the trucks?

A: No, I – I didn’t observe. There was – there was no one there other than Racquel, Kevin, and their – their child.”[24]

  1. [185]
    In my view, there is a lack of evidence to prove to the requisite standard that the appellant brought fill onto the property of Ms Ciuzelis, or counselled or procured someone else to do so. At its highest, there is an admission by the appellant in the conversation with Mr Leigh-Cooper on either 6 or 7 July 2016 that he had done work on the property. It was not an admission that he had brought fill in to the property.
  2. [186]
    It is clear on the evidence that other earthmoving businesses were active in the district. On a circumstantial case, there is the reasonable possibility that another earthmoving business brought in fill, and that the appellant was not involved with that decision. While there is a high degree of suspicion, on the state of the evidence the prosecution cannot prove this charge beyond reasonable doubt. The conviction is set aside and a verdict of acquittal entered.
  3. [187]
    In respect of Charge 1 on the complaint filed on 14 December 2017, I have already noted that the witness Rami Tiwari gave evidence-in-chief in English, and his evidence in cross-examination in Hindi through the unsworn interpreter. In addition, the appellant made admissions to council inspector Smith in the recorded conversation in Exhibit 27. On these admissions alone it was open to the magistrate to convict on this charge, and the conviction is upheld.
  4. [188]
    In respect of Charge 2 of the complaint filed on 14 December 2017, Allison Baas gave evidence which appears in the transcript between R2-31 to R2-40. She was the part owner of 114-128 Norris Creek Road, Munruben. She gave evidence that she met the appellant as he did some levelling work for her for free. She gave evidence that due to a lot of her property getting washed away, as well as having a dam collapse, she contacted an earthmoving company whose sign she noticed on the back of a truck. She did not see the need for any permit from the council, because “as far as we were concerned, it was fill”.[25]
  5. [189]
    She specifically said that there was no discussion with the appellant about bringing fill on to her property. She said that on a separate day the appellant arrived as the property and “he levelled the ground out because it was quite rocky. There were mounds everywhere. As I said, the land was eroded. He helped fill those holes up, and that was it. He filled up the dam and everything for us because, as I said, it collapsed.”[26] She confirmed in evidence in chief that the “scope of works” that the appellant engaged in was simply levelling the ground. She confirmed there was never any discussion with him about importing fill to the property.[27]
  6. [190]
    In cross-examination, Ms Baas conceded that she was concerned about the dam, as she had an autistic grandchild and she was worried that the child might fall into the dam. She accepted that was one of the reasons why the appellant offered to fill the dam in. She reiterated that the appellant did not organise any carting of material onto her property.
  7. [191]
    Ms Baas produced a video of council workers putting soil on to her property.[28] That recording became Exhibit 34. Ms Baas reiterated that she organised the truck to bring fill onto the property, not the appellant.
  8. [192]
    In re-examination, Ms Baas said that the company that brought the soil to fill in the dam must have organised for the appellant to turn up and offer to level the ground for her.[29]
  9. [193]
    It is clear that Ms Baas was not happy with the Logan City Council in respect of its dealings with her and her property. However that does not mean she was not an honest witness; in fact the learned Magistrate found that she was an honest witness.
  10. [194]
    Nadiem Daniels, a development compliance officer at Fraser Coast Regional Council, gave evidence of his investigations concerning a number of the subject properties when he was a development compliance officer with the Logan City Council. He recalled that around August 2016 he attended 114-128 Norris Creek Road, Munruben. The council had received a complaint that some dirt had been deposited on the property, and into a creek that ran alongside the property. He met the property owner on, he thought, two or three occasions and discussed the issue of earthworks being deposited on the site. On one occasion the appellant was present, and the following evidence was given:

“He admitted to – he was the dirt – the person contracted to import the soil onto that site. Basically, as stated; to fill in the dam. Then whenever soil was left – left over, he then spread over the entire site. Just a thin layer and the owners were then going to regrass the area.”[30]

  1. [195]
    Robert Nantes, a surveyor employed by Logan City Council, gave evidence which is between R2-56 to R2-64. He gave evidence of the surveys he did at a number of the properties on Chambers Flat Road, including the property of Ms Baas, and the process he used to assess changes in ground level, therefore determining the volume and area of fill. Exhibit 36 was the finished plan that he did in respect of the property of Ms Baas. They had previous survey results from 2008 and 2013. Mr Nantes gave evidence that when he compared the survey data from the 2008 survey and his 2016 survey, there was a volume of fill of 3630 cubic metres. When he did the comparison with the survey in 2013, the volume was 3800 cubic metres. He accepted that there was a slight variation between those figures, and he could not identify the cause of that variation.[31]
  2. [196]
    Despite this variation, there was clear evidence before the Magistrate that a substantial quantity of fill had been placed on this property between 2008 and 2016. On the evidence it was open to the learned Magistrate to be satisfied beyond reasonable doubt that this charge had been proved.
  3. [197]
    In respect of Charge 3 of the complaint filed on 3 July 2017, this relates to the property of Duy Binh Nguyen at 1253-1263 Chambers Flat Road, Chambers Flat. As discussed above, there is the irregularity that Mr Nguyen gave evidence through an interpreter who was not sworn. However there was other evidence against the appellant in respect of this charge. The son of the owner, Tan Phi Nguyen, gave evidence that he translated for his father when they were approached by the appellant offering soil fill. He recalled that the appellant “just came to our farm, and he’s just offered, like, fill the soil … I just tried to translate for – to my dad. Like, Mr Powe, like, want to fill the soil.”[32]
  4. [198]
    Tan Nguyen could not recall when this conversation occurred, as it was “quite a long time now”. He recalled that the appellant said he had “like, free soil, so he just want – if we want, like, to fill the land.”[33] There was no discussion about payment for soil. Later on that day he saw Mr Powe operating a machine to level out the soil.
  5. [199]
    Exhibit 43 is a recording of a conversation between Cameron Leigh-Cooper, Nadiem Daniels, the appellant and the owner of this property on 7 July 2016. A fifth person, Anh Hamilton was present and he translated for the owner. In the course of the recorded conversation the appellant admitted that he had been asked to bring in fill, and further that he’d been asked to level some mounds on the property, and to bring in “a bit of top soil”.[34]
  6. [200]
    While there is evidence implicating the appellant other than the evidence of the owner given through the unsworn interpreter, the owner’s evidence is significant, considerable weight was placed on it by the Magistrate, therefore the conviction should be set aside.
  7. [201]
    Charge 4 on the complaint filed on 3 July 2017 relates to the property of Duc Van Bui at 1265-1275 Chambers Flat Road, Chambers Flat. As discussed above, Mr Bui gave evidence through his son who offered to be an interpreter for the court. Another interpreter had been booked, however the court proceeded with the son as the interpreter. In cross-examination, Mr Bui stated that he did not see who tipped soil onto his property. He also said that he did not see the appellant organising any trucks to bring soil on to the property, nor did he see the appellant spreading soil with a grader.[35] He said that he saw the appellant driving a plough or tractor on the neighbouring property.
  8. [202]
    The respondent in its outline of argument filed in this court at [53] refers to parts of the appellant’s evidence in the court below, that he did grading work on the adjoining cucumber farm[36] and that any spill that went over the fence line was levelled and put back.
  9. [203]
    Apart from this, there is little evidence to support this charge beyond reasonable doubt. According to the surveying evidence, some 425 cubic metres of fill was placed on this property. Due to the fundamental irregularity of the interpreter not being sworn or affirmed, the conviction on this charge should be set aside.
  10. [204]
    Charge 2 on the complaint filed 3 July 2017 relates to the alleged import of fill onto the property of 1241-1251 Chambers Flat Road, Chambers Flat, belonging to Samrith Owng. The appellant in his evidence admitted that when he was grading the property boundary some “small amount of fill with the dozer blade” went onto the land of Mr Owng, and that he cleaned that up. He also said a builder had dumped “two to three loads” in the driveway of that property.[37]
  11. [205]
    The evidence of the surveyor concerning the quantity of fill on the site does not assist with the question of who deposited that fill. Due to the fundamental irregularity concerning the interpreter, this conviction is also set aside.
  12. [206]
    Charges 6 and 7 on the complaint filed 3 July 2017 relate to failures to comply with enforcement notice 42656 and 42783 respectively. In notices attachments 12 and 13 to evidence certificate 1, which became Exhibit 1 in the court below. Both notices advised the appellant of a right of appeal pursuant to s 473 SPA. On the evidence it is accepted that no such appeal was lodged. It is an offence not to comply with an enforcement notice: s 594 of the Act. In the circumstances it was clearly open to the learned Magistrate to convict of these charges, and there is no basis to set those convictions aside: see Gold Coast City Council v Lear & Anor, supra.
  13. [207]
    Charges 3 and 4 on the complaint filed 14 December 2017 allege contraventions of a condition of a development approval relating to land at 165 Featherstone Road, Chambers Flat, owned by Ken Ngai Van Nguyen. On the evidence the appellant made an application for development approval on behalf of Mr Nguyen, and indeed the application is in the name of “Desmond Powe, Fresh Select Produce, 8 Woodbeck Street Beenleigh”. The application and approval documents are attachment 13 to Evidence Certificate 2, which became Exhibit 2. The development conditions are attached to the decision notice dated 14 May 2015.
  14. [208]
    Mr Ken Nguyen gave brief evidence in chief in the court below. Exhibit 20 was an interview between Ken Nguyen and Terry Smith on 23 May 2017. It is clear that Mr Nguyen gave considerably more detail in that interview. That interview simply was not admissible, for the reasons that I have explained above. However, further evidence was elicited from Mr Nguyen in cross-examination. Having regard to all the evidence in respect of these charges it was open to the magistrate to convict on these charges, and no miscarriage of justice has occurred from the wrongful admission of Exhibit 20.

Other matters 

  1. [209]
    The appellant complained to the Magistrate, and to me, that he was suffering from dementia. There was no medical evidence to support this. The appellant was able to make coherent submissions in the hearing before me, and could respond to the submissions of counsel for the respondent. In the notice of appeal he complains that he should have been offered legal aid as he was unable to afford legal representation. The appellant was obviously at a significant disadvantage by not having competent legal representation, but the courts frequently have to hear cases with self-represented defendants. This factor does not afford a basis for setting aside the convictions.
  2. [210]
    After this judgment was delivered to the parties I realised that I had not expressly stated that I had reached the same conclusion after reviewing the evidence. In respect of each conviction that I have upheld, I am satisfied on the evidence that the prosecution has proved these charges beyond reasonable doubt.
  1. [211]
    I will hear the parties on what further orders should be made pursuant to s 225 Justices Act.

Orders

  1. [212]
    In respect of file number 136354/17, complaint & summons filed 3 July 2017:

Charge 2: Appeal allowed, conviction set aside;

Charge 3: Appeal allowed, conviction set aside;

Charge 4: Appeal allowed, conviction set aside;

Charge 5: Appeal allowed, conviction set aside, verdict of “Not Guilty” entered;

Charge 6: Appeal dismissed.

Charge 7: Appeal dismissed.

 In respect of file number 250669/17, complaint & summons filed 14 December 2017:

 Charge 1: Appeal dismissed.

  Charge 2: Appeal dismissed. 

 Charge 3: Appeal dismissed.

 Charge 4: Appeal dismissed.

Footnotes

[1]Decision of the Magistrate, p 13.

[2]p 15 of Magistrate’s decision.

[3]In the Outline of The Complainant received by the Magistrates Court on 7 August 2019, at [101]-[102], it was submitted that if the court was not satisfied that the appellant was responsible for bringing in fill on to properties there was an alternative basis of conviction for the offences of carrying out assessable development without a development permit, by the appellant’s activities in “grading and levelling the properties, or as a party to the offence of either importing fill, or carrying out cut and fill to level and grade the land, or some combination of the two.”

[4]R 4-45, l30-40.

[5][59] of respondent’s outline.

[6]R4-62, l25 – R4-63, l40.

[7]R2-40, l20.

[8]R2-65.

[9]Further outline of respondent, [7].

[10]See page 11 of the guidelines.

[11]This is not a proper report of a judgment. The Supreme Court Library was unable to find any other report, other than this one page note, which contains illegible parts.

[12]Section 14 of the Charter states: “A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.”

[13]The booklet entitled “Proclamations Oaths and Affirmations” issued to bailiffs has a variety of oaths and affirmations for interpreters.

[14] R v Brooks (1998) 44 NSWLR 121 at 123, 126.

[15]The first charge in this complaint and summons was discontinued by the prosecution.

[16][101] – [102] in “Outline of the Complainant”; Outline of Argument of the Respondent filed 3 April 2020, [33].

[17]Written reasons of Magistrate, p 20.

[18]R2-28, l 3.

[19]R2-28, l 9. The magistrate in his reasons at p.13 stated that Ms Ciuzelis “indicated that Mr Powe had brought in top soil”. In fact, she said that “we brought in topsoil”, which I confirmed by listening to the recording of the evidence. She was clearly referring to herself and her partner, having regard to the language she used in her previous answers.

[20]R2-30, l 6.

[21]R3-7, l 25.

[22]R3-8, l 20.

[23]R3-8, l 30.

[24]R3-21 – R3-22.

[25]R2-31, l 40.

[26]R2-32, l 5.

[27]R2-32, l 16.

[28]R2-36, l 35.

[29]R2–38, l 35.

[30]R1- 70, l 15.

[31]R2-64, l 13.

[32]R2-52, l 30.

[33]R2-53, l 3.

[34]Transcript of Exhibit 43, pp 3 and 5. Unlike the Council interviews with persons in Exhibits 7, 20, 21 and 29, the appellant was not warned of his right to silence. Whether there was an obligation to do so is a matter which may be considered if there is a further trial on the charges that are set aside.

[35]R2-47 to R2-48, l 1.

[36]The property of Duy Binh Nguyen at 1253-1263 Chambers Flat Road, Chambers Flat.

[37]R4-40, l 30.

Close

Editorial Notes

  • Published Case Name:

    Powe v David Hansen on behalf of Logan City Council

  • Shortened Case Name:

    Powe v David Hansen on behalf of Logan City Council

  • MNC:

    [2021] QDC 12

  • Court:

    QDC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    05 Feb 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Browne v Dunn (1893) 6 R 67
1 citation
Jump To
Cite 1 - (1893) 6 R 67
Commissioner of Police Service v Magistrate Spencer[2014] 2 Qd R 23; [2013] QSC 202
2 citations
Jump To
Cite 1 - [2013] QSC 202
Cite 2 - [2013] QSC 202
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Gaio v The Queen (1960) 104 CLR 419
2 citations
Jump To
Cite 1 - (1960) 104 CLR 419
Cite 2 - (1960) 104 CLR 419
Gold Coast City Council v Lear [2016] QDC 215
3 citations
Jump To
Cite 1 - [2016] QDC 215
Cite 2 - [2016] QDC 215
Cite 3 - [2016] QDC 215
Graham v Queensland Nursing Council[2010] 2 Qd R 157; [2009] QCA 280
2 citations
Jump To
Cite 1 - [2009] QCA 280
Cite 2 - [2009] QCA 280
Munday v Gill (1930) 44 CLR 38
2 citations
Jump To
Cite 1 - (1930) 44 CLR 38
Cite 2 - (1930) 44 CLR 38
Nominal Defendant v Clements (1960) 104 CLR 476
3 citations
Jump To
Cite 1 - (1960) 104 CLR 476
Cite 2 - (1960) 104 CLR 476
Cite 3 - (1960) 104 CLR 476
R .v. Chabot (1980) 55 CCC (2d) 385
1 citation
Jump To
Cite 1 - (1980) 55 CCC (2d) 385
R v Brooks (1998) 44 NSWLR 121
2 citations
Jump To
Cite 1 - (1998) 44 NSWLR 121
Cite 2 - (1998) 44 NSWLR 121
R v Labelle (1988) Carswell Ont 6024
2 citations
Jump To
Cite 1 - (1988) Carswell Ont 6024
Cite 2 - (1988) Carswell Ont 6024
R v Labelle [1986] O.J. No. 1954
2 citations
Jump To
Cite 1 - [1986] O.J. No. 1954
Cite 2 - [1986] O.J. No. 1954
R v Labelle (1988) 5 W.C.B. (2d) 64
2 citations
Jump To
Cite 1 - (1988) 5 W.C.B. (2d) 64
Cite 2 - (1988) 5 W.C.B. (2d) 64
R v Labelle [1986] 17 W.C.B 178
2 citations
Jump To
Cite 1 - [1986] 17 W.C.B 178
Cite 2 - [1986] 17 W.C.B 178
R v LRG (2006) 16 VR 89
2 citations
Jump To
Cite 1 - (2006) 16 VR 89
Cite 2 - (2006) 16 VR 89
R v Nguyen [2005] BCCA 221
2 citations
Jump To
Cite 1 - [2005] BCCA 221
Cite 2 - [2005] BCCA 221
R v Tran [1994] 2 SCR 951
2 citations
Jump To
Cite 1 - [1994] 2 SCR 951
Cite 2 - [1994] 2 SCR 951
R. v Chabot [1980] 2 SCR 985
1 citation
Jump To
Cite 1 - [1980] 2 SCR 985
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] QCA 84
Cite 2 - [2009] QCA 84

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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