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Lasker v Holeszko[2021] QDC 270

DISTRICT COURT OF QUEENSLAND

CITATION:

Lasker v Holeszko [2021] QDC 270

PARTIES:

BENJAMIN JON LASKER

(Appellant)

v

CHRISTOPHER JOHN HOLESZKO

(Respondent)

FILE NO:

BD208/20

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

5 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2021

JUDGE:

Jarro DCJ

ORDER:

  1. The appeal is dismissed.
  2. Costs are to be agreed by the parties.  If the parties cannot resolve the issue of costs, I direct that the appellant and respondent file and serve written submissions within 21 days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was charged with four offences against the Sustainable Planning Act 2009 (Qld) in the magistrates court – where the magistrate found that the appellant should be found guilty in respect of each of the four charges and imposed a penalty of $75,000 – where both the conviction and sentence is appealed under s 222 of the Justices Act 1886 (Qld) on various grounds – whether the evidence adduced by the prosecution was insufficient to establish the defendant’s guilt beyond reasonable doubt in relation to each of the four charges – whether expert evidence was inadmissible as it relied on evidence not before the court – whether an exhibit was inadmissible as it was a copy, not an original – whether the prosecution was not required to prove that the vegetation that was allegedly cleared was “remnant vegetation” of a particular regional ecosystem – whether erroneous weight was placed on the evidence of an expert on the basis that they failed to comply with the established scientific method – whether the learned magistrate correctly applied s 76 of the Justices Act 1886 (“JA”) in the application of Schedule 24 of the Sustainable Planning Regulation 2009 (“SPR”) – whether the sentence was manifestly excessive.

LEGISLATION:

Acts Interpretation Act 1954 (Qld)

Evidence Act 1977 (Qld)

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

Sustainable Planning Act 2009 (Qld)

Sustainable Planning Regulation 2009 (Qld)

Vegetation Management Act 1999 (Qld)

CASES:

Gallagher v The Queen (1986) 160 CLR 392

Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Marshall v Averay [2006] QDC 356

McDonald v Holeszko [2019] QCA 285

Ross v Commissioner of Police [2018] QDC 99

R v Miller [2003] QCA 404

COUNSEL:

Mr S W Trewavas for the appellant

Mr B J Power for the respondent

SOLICITORS:

Marland Law for the appellant

Queensland Department of Natural Resources, Mines & Energy, Legal Division for the respondent

  1. [1]
    Following a six-day summary trial, the appellant was found guilty of four offences of carrying out assessable development without an effective development permit contrary to s 578(1) of the Sustainable Planning Act 2009 (“SPA”) in an extensive written decision of 16 August 2018.  Following that decision and the receipt of submissions regarding penalty, in a written decision of 17 December 2019, the appellant was fined $75,000 in respect of the four offences, with no conviction being recorded.  The appellant appeals against the conviction and sentence.  Eight grounds of appeal have been pressed in the amended notice of appeal namely as follows:
    1. (a)
      Ground 1 – the learned magistrate erred in law and/or fact when he convicted the defendant as the evidence adduced by the prosecution was insufficient to establish the defendant’s guilt beyond reasonable doubt in relation to each of the four charges.  This ground has been particularised as follows:

“where evidence was improperly admitted (as set out in grounds 2 – 6 of the notice of appeal), and then relied upon by the learned magistrate, the magistrate erred in law and/or fact.  On consideration of all of the evidence that should have been admitted (excluding evidence that should not have been admitted), the evidence was insufficient to establish the defendant’s guilt beyond reasonable doubt in relation to each of the four charges”.

  1. (b)
    Ground 2 – the learned magistrate erred in law and/or fact admitting the evidence of Dr Butler.  This ground has been particularised as “the evidence of Dr Butler was inadmissible as it relied on evidence that was not before the court”.
  2. (c)
    Ground 3 – the learned magistrate erred in law and/or fact in admitting exhibit 51 (an evidentiary certificate under the Vegetation Management Act 1999).  This ground has been particularised as “the certificate was inadmissible as it was a copy, not an original”.
  3. (d)
    Ground 4 – the learned magistrate erred in law and/or fact in holding that the prosecution was not required to prove that the vegetation that was allegedly cleared was “remnant vegetation” of a particular regional ecosystem. 
  4. (e)
    Ground 5 – the learned magistrate erred in law and/or fact in placing any weight on the evidence of Mr Batstone on the basis that he failed to comply with the established scientific method or identifying remnant vegetation of a particular regional ecosystem in Queensland.
  5. (f)
    Ground 6 – the learned magistrate erred in law and/or fact in applying s 76 of the Justices Act 1886 (“JA”) in the application of Schedule 24 of the Sustainable Planning Regulation 2009 (“SPR”).  This ground has been particularised as follows:
    1. Schedule 24 of the SPR provides the “Clearing of native vegetation – not assessable development under schedule 3, part 1, table 4, item 1.”
    2. Part 2 “Clearing for particular land”, 2 Freehold land: outlines the activities that can be undertaken on freehold which are not assessable development.
    3. Properly constructed, Schedule 24 does not list “exempt activities” but activities which are not “assessable development”.
    4. The application of what activities can be undertaken pursuant to Schedule 24 is a question of law as they relate to the facts.
    5. The learned magistrate erred in applying the principles established in Macarone v McKone[1] and invoking s 76 of the JA as the facts of the application of Schedule 24 are not peculiarly within the defendant’s knowledge or of which he is supposed to be cognisant.
    6. Schedule 26 defines “essential management” as clearing of native vegetation for a number of activities.  The definition does not include the word “exemption” but directly relates to clearing activities which are not assessable development.
    7. Accordingly, the prosecution had the onus of proving, as a question of law as they applied to the facts, that the clearing was “assessable development” including negativing any activities listed in Schedule 24.
  6. (g)
    Ground 7 – was abandoned and not pressed.  
  7. (h)
    Ground 8 – the sentence was manifestly excessive. 
  1. [2]
    Before dealing with each of the grounds of appeal, I will briefly set out a number of background matters. What follows is largely drawn from the reasons of the learned magistrate.[2]
  2. [3]
    “Beechwood” is a property approximately 40km south-east of the Queensland township of Surat.  The property consists of a parcel of land as described as Lot 4 on SP209776 and is approximately 10,290 hectares in size (“the property”).  The registered owners of the property, Mr Benjamin Lasker and Mrs Belinda Lasker are joint tenants.  They conduct a livestock grazing and breeding business on the subject property.
  3. [4]
    It is common ground that there has been some vegetation cleared on the property between June 2014 and April 2015.  An examination and analysis of historical and current aerial photography and satellite imagery of the cleared areas on the property via officers of the Queensland Department of Natural Resources and Mines raised some concerns regarding the size and nature of the clearing.  Telephone conversations with Mr and Mrs Lasker and a visit to the property on 22 April 2015 did not quell those concerns that the clearing on the property may have been undertaken in contravention of the SPA.
  4. [5]
    Because of the evidence gathered by departmental officers in relation to the vegetation cleared on “Beechwood”, Mr and Mrs Lasker were charged with four offences contrary to s 578 of the SPA on 5 April 2016.  The section allegedly contravened provides:

“578 Carrying out assessable development without permit

  1. (1)
    A person must not carry out assessable development unless there is an effective development permit for the development.

Maximum penalty—1665 penalty units.

  1. (2)
    Subsection (1)—
  1. (a)
    applies subject to subdivision 2; and
  1. (b)
    does not apply to development carried out under section 342(3).”
  1. [6]
    The proceedings were commenced by way of complaint, general purposes made and summons pursuant to s 42(1) of the JA on 5 April 2016 and filed in the Roma Magistrates Court on the same day.  The four charges contained in each complaint are sworn by the same complainant, Christopher John Holeszko, and are in the same terms, save for the identity of the defendant.  
  2. [7]
    Each charge referred to carrying out assessable development without an effective permit on various areas of land on the property.  The overall date range of the charges was between 22 June 2014 and 8 April 2015.  Each of the four offences charged relates to the clearing of native vegetation in particular areas on the property.  The total area of land alleged to have been cleared was approximately 651.8 hectares.
  3. [8]
    The areas of land pertaining to the individual offences where it was alleged that the unauthorised assessable development took place were defined in paragraph eight of the 14 paragraphs of the particulars initially supplied with each of the four formally pleaded charges.  The particulars originally supplied were subsequently supplemented by additional court ordered particulars on 29 June 2017 and 21 July 2017.[3] 
  4. [9]
    The applicable areas were further identified in three maps relevantly identified in particular 8 of each charge and annexed to each complaint as follows:
  • Complaint Map A – Overview of Charge Areas 1 – 4;
  • Complaint Map A1 – Overview of Charge Areas 1, 2 and 3;
  • Complaint Map A2 – Overview of Charge Area 4.
  1. [10]
    As an additional identifier, each of the areas of concern were distinguished by a different coloured, multi-sided, two-dimensional shape in the above maps as well as other documents and exhibits referred to during the proceedings as “polygons”.
  2. [11]
    Subsequent to a plea of “not guilty” being entered by both Mr and Mrs Lasker, the summary trial of the proceedings was commenced on 29 June 2017.  Whilst the proceeding against Mrs Lasker was discontinued on 29 June 2017, the summary trial against Mr Lasker continued for six days until 20 October 2017.
  3. [12]
    The learned magistrate noted that in criminal and quasi-criminal proceedings, the onus of proving a charge and of negativing any exculpatory provision, raised by the evidence, is always on the prosecution.  The onus of proving any statutory defence lies with the defendant.  The prosecution must establish the guilt of the defendant and negative any exculpatory provision raised, beyond reasonable doubt.  The standard of proving any statutory defence raised by the defendant is on a balance of probabilities.
  4. [13]
    The learned magistrate also noted that in order for the defendant in these proceedings to be found guilty of the offences, the prosecution must prove each essential element of each offence proffered against the defendant beyond reasonable doubt.  As all of the offences are of the same nature, the elements that must be proven in respect of each offence are:
  • Element 1 – the defendant “carried out”;
  • Element 2 – “assessable development”;
  • Element 3 – without an effective permit for the defendant.
  1. [14]
    Given this is an appeal under s 222 of the JA, it is conducted by way of rehearing.  I am bound to conduct a real review of the evidence at first instance, together with any additional or fresh evidence (subject to the grant of leave) and of the primary reasons to determine whether the learned magistrate fell into error.[4]  In order to succeed on an appeal, the appellant must demonstrate some legal, factual or discretionary error of the trial magistrate. 
  2. [15]
    In dealing with each ground of appeal, I was invited by Mr Trewavas of counsel, who appeared for the appellant and the defendant below, to address ground 6 first.

Ground 6 – Section 76 the Justices Act 1886

  1. [16]
    This ground relates to the extent of the interplay between s 76 of the JA and Schedule 24 of the SPR.  Section 76 of the JA provides as follows:

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

  1. [17]
    The learned magistrate found the prosecution adduced sufficient evidence to prove beyond reasonable doubt the element of assessable development in relation to each charge.  Not only was such evidence summarised, but it was detailed earlier in the primary reasons.[5]  The learned magistrate also noted the position adopted by the defendant not to give or call evidence.  In addition to reaching the finding that assessable development had been proven, the learned magistrate was:

“…satisfied that the prosecution has negatived any reasonably applicable exemption or exclusion as pleaded in paragraphs 11 to 14 of the particulars supplied with each of the charges against Mr Lasker, or generally available on the evidence adduced beyond reasonable doubt”.[6]

  1. [18]
    Paragraphs 11 to 14 of the particulars supplied with each of the charges recorded as follows:

“11. The clearing was not clearing, or for another activity or matter, mentioned in Schedule 24, Part 1 of the Regulation or clearing mentioned in Schedule 24, Part 2 of the Regulation;

  1. The development did not occur on premises to which a structure plan arrangement applied;
  1. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development; and
  1. The development was not authorised by an effective development permit, within the meaning of that term in the Act.”
  1. [19]
    The learned magistrate took the view that “the purpose of these provisions was to take advantage of s 76 of the JA”.[7]  His Honour determined that given the prosecution “elicited to plead that in respect of each charge, the defendant did not come within the potential exemptions to the definition of “Assessable Development” under the SPA contained in paragraphs 11 to 14 of the particulars supplied with each of the individual charges laid, pursuant [to s 76 of the JA] they are not matters that the prosecution must prove.  Rather they are matters for the defendant to raise should Mr Lasker choose to do so”.[8]  
  2. [20]
    It was submitted on behalf of the appellant that the learned magistrate erred in law and/or fact in applying s 76 of the JA in the application of Schedule 24 of the SPR.  In that respect, Parts 1 and 2 of Schedule 24 of the SPR were relied upon such that it is declared by those parts, in respect of each essential factual element identified therein, that clearing of native vegetation in a particular area or for a particular purpose or under a particular authority or approval is not assessable development.  The word “exemption” does not appear anywhere in Part 1 and Part 2 of Schedule 24.  In contrast, ss 584, 585 and 586 of the SPA all have headings that use the word “exemptions” (which forms part of those provisions).[9]  Subdivision 2 of Part 3 of Chapter 7 (Subdivision 2) is itself headed “exemptions”. 
  3. [21]
    It was argued that the absence of the word “exemption” in Part 1 and Part 2 of Schedule 24 and the inclusion of that word in every section and as part of the heading of subdivision 2 serves to highlight, as a matter of statutory construction, that each of the “clearing activities” set out in Part 1 and Part 2 of Schedule 24 were not intended by parliament to be exemptions that may be relied on to exclude liability under s 578(1) of the SPA.  Rather, each and every one of the “clearing activities” in Part 1 and Part 2 of Schedule 24 had to be proved, beyond a reasonable doubt, by the prosecutor because each of them was an essential factual ingredient of the offence of carrying out “assessable development” under s 578(1) because each was, or was directly concerned with what amounted to “assessable development” as that term is used in the offence creating provision.[10]
  4. [22]
    It was submitted that the question for the Court was whether the prosecutor proved, beyond a reasonable doubt, that the clearing that the defendant was charged with in respect of each charged area comprising the offences in the complaints was not clearing that was the type described or authorised under each and every one of the “items” in Part 1 and Part 2 of Schedule 24.  It was submitted that whilst it was clearly open to the prosecutor to rely on s 76 of the JA to shift the legal burden to the defendant in respect of the exemptions under ss 584, 585 and 586, it was not open to shift the burden of proving each and every one of the “items” in Part 1 and Part 2 of Schedule 24 by the same path.  Accordingly,  the prosecutor was bound to establish beyond a reasonable doubt that the clearing of each of the charged areas by the defendant was not assessable development, as defined in Part 1 and Part 2 of Schedule 24, because properly construed Part 1 and Part 2 of Schedule 24 are not “exemptions” caught by s 76 of the JA, but are defined circumstances that are not assessable development.[11] 
  5. [23]
    These arguments were the subject of a no case submission made the defendant at the conclusion of the prosecution’s evidence.  In another written decision, the learned magistrate gave another set of reasons, which was comprehensive, to dismiss the application.[12]  Relevantly his Honour correctly formed the view that the prosecution had successfully invoked s 76 of the JA to provide prima facie evidence of the facts contained within the complaint in accordance with Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284.[13]
  6. [24]
    My view is that Macarone has established, inter alia¸ that:
    1. (a)
      The onus of proof always lay with the prosecution.
    2. (b)
      An averment does not constitute a matter which has to be accepted if contrary evidence is adduced and does not affect proof.
    3. (c)
      The defendant did not have to prove non-conforming use rights.
    4. (d)
      The blanket averment that the development referred to had not been lawful by the non-conforming use provision was pre-eminently an allegation of a matter of law.
    5. (e)
      No special form was required for the making of averments under legislation (for example in that case relevant Brisbane City Council Ordinances).
    6. (f)
      The matters of fact to be relied on must be alleged in the averment with reasonable clarity and precision.
    7. (g)
      Averments only operate to afford prima facie proof of fact when the prosecutor does not call evidence in relation to the matter to which they relate.
    8. (h)
      The common law test as to whether a matter is an exception to be proved by the defence or a matter to be proved by the prosecution is to be applied in determining the application of the JA.
  1. [25]
    Macarone dealt with a specific legislative framework.  Since then, the Court of Appeal has decided two matters concerning the issue of onus of proof[14] which have been cited in Marshall v Averay [2006] QDC 356, a decision referred to by the learned magistrate.[15]  McGill SC DCJ in Marshall distinguished Macarone and stated at [33] – [39]:

[33]   The respondent cannot rely on that section for the purpose of putting the onus on the appellant to prove that he was carrying on a continuing pre-existing use, which was therefore   lawful,   because   the   requirement   of   the   section,   that   the   complaint negatived  that  proposition,  was  not  complied  with.   There  was  no  allegation  in  the complaint that the use was not a continuing pre-existing use.   That, however, is not the end of the matter, because the section is declaratory of a common law principle which appears not to incorporate the requirement that there be an express negativing in the complaint.

[34]  In this context, the appellant relied on the decision of the Full Court in Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284.   In that case the appellant was charged under what seems to have been essentially the equivalent to this provision in what was then the schedule to the 1978 town plan for the City of Brisbane.  The relevant provision was as follows:

“Subject to the provisions of Part III, no person shall –

... (e) carry out development for a prohibited purpose.”

[35]   What  was  alleged  against  the  appellant  was  that  she  was  using  premises  for  the purpose  of  a  shop,  which  under  the  then  legislation  amounted  to  “carrying  out development”, and because the premises were in a future urban zone the use of the premises as a shop was a prohibited use.  She sought to defend the charge by calling evidence  to  show  that  use  as  a  shop  was  an  existing  non-conforming  use,  that  is, that  use  as  a  shop  had  continued  since  prior  to  the  time  when  the  prohibition  first came  into  operation.   The  court  held  that  the  effect  of  the  provision  which  I  have quoted  was  not  to  prohibit  generally  carrying  out  development  for  a  prohibited purpose, but, because of the introductory words, prohibited such development only where it was not authorised by the provisions of Part III.  The reasoning of the court focused  specifically  on  the  particular  wording  of  that  prohibition,  and  on  the question of whether the relevant activity was prohibited generally, or whether it was prohibited only to the extent that it was not protected by the provisions of Part III.

[36] Reference  was  made  by  Williams J,  with  whom  Kelly SPJ  agreed,  to  the  judgment of  Sir Owen  Dixon  in  Dowling  v  Bowie  (1952)  86  CLR  136  at  140,  where his Honour formulated a test which was said to determine, as a matter of substance not of form, where the burden of proof lies:

“A  qualification  or  exception  to  a  general  principle  of  liability  may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind.  If that is the effect  of  the  statutory  provisions,  considerations  of substance  may  warrant  the  conclusion  that  the  party  relying  on  the qualification or exception must show that he comes within it.”

[37]  His  Honour’s  approach  focused  on  the  scope  of  the  general  rule  of  liability,  or  the general prohibition, and turned on whether the proof of additional special facts will then show a matter by way of defence.  But the determination of the “general rule of liability”  remains  a  matter  of  some  difficulty,  particularly  in  the  common  case where  there  is  a  prohibition  on  doing  something  without  some  statutory  licence  or permission.   It is common enough for a statute to set up a system for permission or licence  to  be  required  for  some  particular  activity,  and  then  to  enforce  the requirement by prohibiting the activity in the absence of the required permission or licence.    Is  that  a  general  prohibition  on  the  activity,  subject  to  an  exculpation, excuse  or  justification  if  there  has  been  the  required  permission  or  licence,  or  is  it only  a  general  prohibition  on  carrying  out  the  activity  without  the  necessary permission  or  licence?   It  seems  to  me,  with  respect,  that  even  that  distinction  can be  said  to  justify  the  comment  on  the  same  page  by  Sir Owen  Dixon  that,  “The distinction  has  been  criticized  as  unreal  and  illusory  and  as,  at  best,  depending  on nothing  but  the  form  in  which  the  legislation  may  be  cast  and  not  upon  its substantial meaning or effect.”

[38] Uninstructed  by  authority,  I  would  have  thought  that  as  a  general  proposition prohibiting  the  carrying  on  of  an  activity  without  a  licence  was  not  a  general prohibition on the activity, but only a prohibition on the activity without the licence, so  that  proof  of  the  absence  of  a  licence  was  a  necessary  part  of  the  prosecution case.    There  are,  however,  numerous  cases  where  courts  have  decided,  under specific  legislation,  that  that  was  not  the  outcome.[16]   In  any  case,  in  Macarone  the court decided this was not a general prohibition on the carrying out of development for  a  prohibited  purpose,  but  only  a  prohibition  on  doing  so  where  that  did  not involve  a  use  which  was  protected  by  Part III  of  the  Act.   I  would,  with  respect, entirely agree with that conclusion on the words of that statute, but it is clear from their Honour’s  reasons  that  that  conclusion  was  arrived  at  by  reference  to  the specific   terms   of   the   legislation,   particularly   the   express   subjugation   of   the prohibition to the provisions of Part III.   On this basis the court distinguished other decisions,  including  one  of  the  High  Court,  where  a  different  conclusion  had  been reached  in  relation  to  other  legislation  dealing  with  the  same  question  of  who  had the onus in relation to an existing non-conforming use.[17]

[39]   The  difficulty  for  the  appellant  is  that  the  particular  features  of  the  section  in question  which  led  to  that  conclusion  in  Macarone  are  not  present  in  s 4.3.5.   Far from being subject to the relevant provisions of the Act preserving continuing prior uses, the section makes no mention of them.   On the face of the section, continuing prior uses are prohibited, and it is only by a consideration of the statute as a whole that  it  can  be  appreciated  that  such  an  outcome  is  too  wide,  and  that  the  other provisions  must  be  regarded  as  providing  at  least  a  ground  of  defence.    It  is, however,  more  difficult  to  see  them  as  operating  so  as  to  read  down  the  “general rule  of  liability”  expressed  by  s 4.3.5,  where  that  has  been  expressed  in  such sweeping terms.

  1. [26]
    Mr Power of counsel who appeared for the respondent referred to a number of authorities said to support the proposition that the use of the term “exemption” is not necessary for s 76 to have application.[18]  I accept the submission advanced on behalf of the respondent in light of the authorities because the use of the term “exemption” operating within the legislative context is not a necessary precursor for s 76 of the JA.  The learned magistrate relied upon some of the authorities advanced by the prosecution below to properly find that the prosecution successfully invoked s 76 of the JA to provide prima facie evidence of the facts relevant to the complaint.[19]   His Honour determined, based on the relevant authorities, that the use of the term “exemption” is not necessary for s 76 to have application.  I take the view that the learned magistrate was correct to find that the activities listed in Schedule 24 are matters to which s 76 of the JA applied and, despite submissions to the contrary, it was not incumbent for the prosecution below to prove each and every one of the “clearing activities” in Part 1 and Part 2 of Schedule 24, beyond a reasonable doubt.  Moreover the activities listed in Schedule 24 are matters to which s 76 of the JA applied.
  2. [27]
    It therefore follows that this ground is not established. 

Ground 1 – Insufficiency of Evidence

  1. [28]
    This ground relies upon grounds 2 to 6 and argues that there was insufficient evidence to convict the appellant in relation to the four offences given the learned magistrate improperly admitted certain evidence.  I have already dealt with ground 6.  As such, I will now consider each of the matters raised in grounds 2 to 5.  
  2. [29]
    Not unsurprisingly, the respondent relies upon the learned magistrate’s description of the evidence in the primary reasons to demonstrate that the evidence adduced at trial was sufficient to prove each of the elements of the offence under s 578(1) of the SPA.
  3. [30]
    For the reasons to follow concerning grounds 2 to 5, ground 1 of the appeal has not been established. 

Ground 2 – The Admission of the Evidence of Dr Butler

  1. [31]
    Dr Butler gave evidence at the hearing.  He was a science leader for the eco-system survey and mapping group at the Queensland Herbarium within the Department of Science, Information and Technology & Innovation of the Queensland Government.  He had occupied that role for two years and held a Bachelor of Science and a Doctor of Philosophy in the field of botany.[20]  The learned magistrate referred to two reports prepared by Dr Butler dated 26 June and 19 July 2017.  A summary of Dr Butler’s evidence was recorded in the primary reasons.[21]  His Honour’s view of Dr Butler’s evidence was as follows:

“[42] In the court’s view, Dr Butler’s evidence was impressive.  His formal qualifications and his general and specific experience appeared to be impeccable having regard to the nature of the matters he was asked to bring his skills to bear upon.  His opinions seemed to be expressed carefully, cautiously and conservatively after applying necessary professional rigour. 

[43] As his reports indicate, Dr Butler drew from a number of sources in addition to his own expertise and experience with the region in forming his opinions. In reaching the conclusions outlined in his reports, he appeared to fairly concede matters that were not helpful to the prosecution case where it was necessary to do so.  An example of a conclusion made in favour of the defence by Dr Butler was in paragraph five of his addendum report dated 19 July 2017 wherein he stated that the total area of likely non-remnant area was 79.7 hectares.

[44] In the court’s opinion, Dr Butler’s evidence was not weakened or undermined by cross-examination.  There was no admissible evidence adduced from any party to challenge or contest the evidence given by Dr Butler.  The court accepts Dr Butler’s evidence without reservation.”

  1. [32]
    Regarding this ground of appeal, it was submitted on behalf of the appellant that it was not in contention that the expert report of Dr Butler relied upon notes made by Mr Holeszko taken during a field survey and statements of Mr Holeszko, Mr Anderson and Mr Batstone.[22]  These notes were not in evidence.  Objection was taken to the admissibility of the expert report of Dr Butler based on the principles espoused in Makita (Australia) Pty Ltd v Sprowles.[23]  It was submitted that following the objection, the Court, on its own motion ordered that the prosecution tender the witness statements of Mr Holeszko, Mr Anderson and Mr Batstone pursuant to s 19(2) of the Evidence Act 1977.  Such was an error of law, it was submitted, because the section did not permit a court to order a prosecutor to tender documents on its own motion because of an objection to the admissibility of evidence.  It was advanced that notwithstanding the objection to the evidence of Dr Butler, based on the Makita principles, which resulted in the orders for the prosecution to tender the witness statements of Mr Holeszko, Mr Anderson and Mr Batstone, the issue of the admissibility of Dr Butler’s report by virtue of the objection was never conclusively dealt with by the court.  Rather the court simply proceeded to accept the evidence of Dr Butler “without reservation”.[24]  It was submitted therefore that there was an error of law, as the evidence was not admissible because it relied on evidence that was not before the Court. 
  2. [33]
    The respondent identified that the appellant consented to Dr Butler’s evidence in chief to be given by way of the tender of his two reports.  It was accepted therefore that Dr Butler was a suitably qualified expert to provide that opinion evidence.[25]  The appellant’s counsel stated that he reserved the right to object to parts of the evidence which relied upon evidence that had not yet been led.  The appellant’s counsel stated to the learned magistrate: “I’m not saying there will be an issue.  I’d just like to reserve that right if there is”.[26]  The appellant’s counsel then conducted some limited cross-examination of Dr Butler.  On the next day the trial resumed, after an adjournment of three months, the appellant’s counsel for the first time produced at the bar table a written outline arguing that the entirety of Dr Butler’s evidence was inadmissible.[27]  The prosecution made oral submissions in response.[28]  The essence of those submissions was as follows:
    1. (a)
      Dr Butler’s reports have the status of oral evidence given the way in which the appellant consented to the reports representing his oral evidence.
    2. (b)
      It was not a matter of Dr Butler’s evidence being entirely admissible or inadmissible, it depended on a consideration of each part of his evidence and what was relied upon by Dr Butler in coming to that opinion.
    3. (c)
      The material Dr Butler had relied upon to come to his opinion was described in his reports and in each case, it was material or information that had been tendered or otherwise proved in the trial.
    4. (d)
      To the extent that Dr Butler had had access to witness statements, this was standard practice in briefing expert witnesses and there was no basis for concluding that Dr Butler’s opinion was based on anything beyond the evidence proved in the case.
    5. (e)
      All of Dr Butler’s evidence was admissible and it was a matter for the appellant whether they wished to seek to have him recalled for further cross-examination.
  3. [34]
    The appellant’s counsel made no application for recalling Dr Butler or any other witness. 
  4. [35]
    The learned magistrate made a ruling that Dr Butler’s evidence was admissible.  The learned magistrate also made a ruling that the written statements of particular witnesses “be produced to the court for the purposes of assessing compliance with the Makita principles”.[29]  The prosecution made it clear that the prosecution did not rely upon anything in the statements to further the Crown’s case.  His Honour’s ruling as to the purpose of the provision of those statements also made that clear.  The appellant does not now argue that there was anything in any of the statements that prejudiced the appellant or that what was in the statements differed in any meaningful way from the evidence at trial. 
  5. [36]
    Having reviewed the evidence of Dr Butler including the foundations upon which his opinions were made, it was open to the learned magistrate to admit the evidence, which was essentially unchallenged at trial.  I do not accept the submission advanced on behalf of the appellant.  To the extent that it has been necessary to do so, the material on which Dr Butler based his opinion was before the court at first instance in order for Dr Butler’s opinion to be accepted in the manner in which the learned magistrate did.  Indeed, the appellant consented to the expert opinion, by way of evidence in chief, to be tendered by the two reports.  Dr Butler’s qualifications were not challenged, and the cross-examination was limited.[30]  There was a late objection taken below only after Dr Butler’s evidence concluded.  The learned magistrate was required to make a ruling regarding Dr Butler’s opinions.  His Honour made the correct ruling following the late objection taken to the receipt of Dr Butler’s evidence.  Dr Butler’s evidence was admissible.  I am therefore unable to accept this ground of appeal.

Ground 3 – Admission of Evidentiary Certificate

  1. [37]
    The appellant contends that the learned magistrate erred in law and/or fact in admitting exhibit 51 which was an evidentiary certificate under s 67 of the Vegetation Management Act 1999 (“VMA”).  It was submitted that the tender of the certificate was objected to on the basis that the document was a copy, and the requirements of s 116 of the Evidence Act 1977 were not complied with.  It was highlighted that the learned magistrate found that s 116 of the Evidence Act 1977 was impliedly repealed by s 27A(15) of the Acts Interpretation Act 1954 and, further, that compliance with the Evidence Act 1977 was not relevant when the copy of a document was evidence of delegation.[31]  It was submitted that such analysis was wrong in law and the impact of this finding was such that if the evidentiary certificate did not render the documents admissible pursuant to the Act, the evidence of all witnesses who relied on the information to give evidence as to the location of the areas cleared was also inadmissible based upon the Makita principles, and principally the assumption of proof rule as explained in Bevan v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542.[32]   
  2. [38]
    Section 67 of the VMA deals with evidentiary aids and permits a duly issued certificate by the chief executive to certify evidence of certain things.   Exhibit 51 was a certificate issued by a regional manager, said to have delegation, annexing a map of assessable vegetation.[33]  An application however was brought below to exclude the certificate because it was not signed by the chief executive.
  3. [39]
    In making the ruling to dismiss the application to exclude the certificate, the learned magistrate considered the relevant authorities[34] and the application of ss 27A(13) – (15) of the Acts Interpretation Act 1954.  His Honour took the view that the provisions related specifically to instruments of delegation whereas s 116 of the Evidence Act 1977 related to copies of documents and ultimately concluded that ss 27A(13) – (15) of the Acts Interpretation Act 1954 overrode s 116 of the Evidence Act 1977 so far only as they applied to instruments of delegation and the word “document” should be read widely to include a copy of an instrument purporting to be a delegation.[35]  Therefore the learned magistrate permitted the receipt of the evidentiary certificate under s 67 of the VMA.[36] 
  4. [40]
    I discern no error in the approach taken by the learned magistrate.  Section 116 of the Evidence Act 1977 provides:

“116 Copies to be evidence

Notwithstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without—

  1. (a)
    proof that the copy was compared with the original document; and
  1. (b)
    notice to produce the original document having been given.”
  1. [41]
    Section 27A of the Acts Interpretation Act 1954 provides for delegation of functions and powers and, among other matters, states the following:
  1. “(13)
    Writing purporting to be, or to contain, a delegation, or the revocation of a delegation, is evidence of the delegation or revocation.
  1. (14)
    A certificate signed by the delegator (or, if the delegator is a body, by a person authorised by the body for the purpose) stating anything in relation to a delegation is evidence of the thing.
  1. (15)
    A document purporting to be a certificate mentioned in subsection (14) is taken to be the certificate, and to have been properly given, unless the contrary is established.”
  1. [42]
    All the learned magistrate did was to rule, only insofar as it related to an instrument of delegation, that a copy of the delegation was permissible under the Acts Interpretation Act 1954 as sufficient proof of the regional manager’s ability to provide certification under s 67 of the VMA.  I do not accept the submission advanced by the appellant because the learned magistrate was correct to rule, as it related to the evidence led below, that the certificate was admissible under s 67 of the VMA.[37]  There was sufficient evidence of delegation given by the chief executive to the regional manager who issued the certificate under s 67 of the VMA for the certificate to be admissible.  This ground is therefore not established. 

Ground 4 – Proof of Remnant Vegetation – An Essential Factual Ingredient

  1. [43]
    It is said that the learned magistrate erred in law and/or fact in holding that the prosecution was not required to prove that the vegetation that was allegedly cleared was “remnant vegetation” of a particular regional ecosystem.  It was highlighted that the purpose of the VMA is to protect remnant vegetation.[38]  Given the complaint alleged that the defendant cleared remnant vegetation, it was submitted that an element of the offence, for which the prosecution ought to have proved beyond a reasonable doubt, was that the vegetation cleared by the defendant was remnant vegetation.[39]  It was submitted that the ‘particular’ (or an essential factual ingredient of the offence) in the complaint summons was required to be proved by the prosecution beyond reasonable doubt. 
  2. [44]
    I disagree because what must be proved were the elements to the offence.  Particulars are not an element to an offence.  They merely serve to, among other things, provide an accused with a sufficient indication of what is alleged to have been done.[40]  The offences for which the appellant was charged pursuant to the complaint related to the four charges under s 578(1) of the SPA.[41]  It was this section that the prosecution was required to prove beyond reasonable doubt.  This is what was precisely identified by the learned magistrate at the outset of his Honour’s reasons regarding the elements for an offence under s 578(1) of the SPA.  The particulars did not have to be proven, beyond reasonable doubt, for the prosecution to be successful in its complaint against the defendant. 
  3. [45]
    The learned magistrate considered the necessary elements required to be proved to the requisite standard.  His Honour correctly identified them as threefold.  The first was that the defendant “carried out”; the second being, “assessable development”; and the third, “without an effective development permit”.  The prosecution was not required to prove, beyond reasonable doubt, remnant native vegetation of a particular regional ecosystem as asserted by the appellant.  Rather it was only necessary for the prosecution to prove that the vegetation was native vegetation and was not exempted by some legislative exception.  Relevantly the learned magistrate properly recorded at [26] – [31]:

“[26] The second element that the prosecution must prove in respect of the six charges against the defendant is that the actions he undertook constituted “Assessable Development”.  To obtain an understanding of the term within the context of the offence provision created by section 578(1) of the SPA requires a consideration of the interaction between several legislative provisions contained within various Acts and Regulations.  The first concept is to be considered is the term “development”.  This term is relevantly defined in section 7(c) of the SPA to mean “carry out operational work”.  “Operational work” is defined by section 10(f) of the SPA to relevantly mean clearing vegetation, including vegetation to which the management the Vegetation Management Act 1999 (Qld) (‘VMA’) applies. 

[27] The term “clear” has a specific meaning ascribed to it by the dictionary in the Schedule to the VMA:-

 

  1. (a)
    Remove, cut down, ringbark, push over, poison or destroy in any way including by burning, flooding or draining; but
  2. (b)
    Does not include destroying standing vegetation by stock, or lopping a tree.

[28] “Vegetation” is defined by section 8 of the VMA as:-

8  What is vegetation

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

  1. (a)
    Grass or non-woody herbage;
  1. (b)
    A plant within a grassland regional ecosystem prescribed under a regulation;
  2. (c)
    A mangrove.”

[29] The term “Assessable Development” is defined in the dictionary in Schedule 3 to the SPA to generally mean development prescribed under section 232(1)(c) to be assessable development.  Section 232(1)(c) of the SPA provides that a regulation may prescribe that development is assessable development.

[30]  Regulation 9(a) of the Sustainable Planning Regulation 2009 (Qld) (“SPR”) provides that for the purposes of section 232(1)(c) of the SPA, development stated in Schedule 3, part 1, column 2 is assessable development.  Schedule 3 part 1 contains a number of tables.  Table four in that part is headed “Operational Work”.  Item 1 in that table is associated with an entry in Column 2 that provides:-

 

“Operational work that is clearing of native vegetation on –

(a)  Freehold land; or

Unless the clearing is-

  1. (d)
    On premises to which structure plan arrangements apply; or
  2. (e)
    Clearing, or for another activity or matter, mentioned in schedule 24, part 1; or
  3. (f)
    Clearing mentioned in schedule 24, part 2 for particular land.”

[31] The term “native vegetation” is defined in the dictionary in Schedule 3 of the SPA to mean vegetation under the VMA.  Paragraph 9A of the particulars supplied with each charge classifies the vegetation cleared as “remnant vegetation” a term defined in the VMA to relevantly mean -

  • an “endangered” regional ecosystem; or
  • an “of concern” regional ecosystem; or
  • a “least concern” regional eco-system; and

and forming the predominant canopy of the vegetation covering more than 50% of the undisturbed predominant canopy; and averaging more than 70% of the vegetation’s undisturbed height; and composed of species characteristic of the vegetation’s undisturbed predominant canopy.”

  1. [46]
    It was only necessary for the prosecution to prove that the vegetation was native vegetation and was not exempted by some legislative exception.  Exemptions for the clearing of native vegetation meant that it was not “assessable development” for the purposes of the SPA.  However, none of those exemptions authorised the clearing of a native tree or plant simply because that native tree or plant was not categorised as being remnant. 
  2. [47]
    Further the evidence before the learned magistrate established with sufficient proof that the vegetation that was cleared was remnant native vegetation.[42]  The learned magistrate was satisfied that remnant native vegetation was cleared in each of the four charge areas.[43]  I accept as the respondent contended that even if only part of the vegetation cleared was native remnant vegetation (and that was in fact an element of the offence), that would not result in an acquittal.[44]
  1. [48]
    This ground has not been established. 

Ground 5 – The Error in Accepting Mr Batstone’s Expert Evidence

  1. [49]
    It is submitted that this ground of appeal related to the weight to be given to the opinion evidence of Mr Batstone, particularly in circumstance where Mr Batstone’s methodology was challenged at trial.  Mr Batstone did not follow the accepted scientific practice to give the expert opinion evidence he gave.  It was submitted that the Court did not consider all of the arguments of the defendant that the methodology used by Mr Batstone to give his expert opinion evidence was unreliable, as Mr Batstone did not apply the accepted scientific methodology, but described the failure as “Mr Batstone did not closely follow the procedures outlined in exhibit 23…”, which was then described as a “caveat”.[45]  In written submissions produced on behalf of the appellant, submissions were made to minimise the weight of the opinion of Mr Batstone to the extent that the ultimate conclusion of this Court would be that the expert opinion evidence of Mr Batstone departed so significantly from the accepted scientific process, such that his evidence was too unreliable to convict a defendant beyond a reasonable doubt.
  2. [50]
    Mr Batstone was a witness who attended upon Beechwood and inspected the clearing. Mr Batstone took notes and photographs of what was said to be the extent of the clearing.  Importantly his evidence was summarised by the learned magistrate.[46]  Upon consideration of Mr Batstone’s evidence, the learned magistrate stated:

“[166] Under cross-examination, it became evident very quickly that in undertaking his field inspection of the property Beechwood on 22 April 2015 Mr Batstone did not closely follow the procedures outlined in Exhibit 23, the “Methodology for Survey and Mapping Regional Ecosystems and Vegetation Communities in Queensland”. 

[167] Aside from the above caveat, the court found Mr Batstone’s evidence to be of a similar character to the other prosecution witnesses.  He appeared to give evidence in conservative and considered way.  His evidence appeared to be credible and convincing.  Under cross examination it appeared that he gave ground to the defence when it was appropriate to do so.  His evidence was not materially undermined by cross-examination in the court’s view.”

(Emphasis added)

  1. [51]
    I do not accept the appellant’s criticism of the learned magistrate’s acceptance of Mr Batstone’s opinion.  After all, the learned magistrate was ultimately invited on behalf of the appellant to admit the opinion of Mr Batstone:

“Yes, your Honour.  I formally withdraw the application and I do understand the implications of withdrawing it means it cannot be raised and can never be raised again.  The objection to the evidence of Mr Batstone is not objected to.  I’ve had discussions with my learned friend, and I take his point.  It’s really a matter that goes to weight.  And in that instance, in full knowledge of the consequences of this action, I have been instructed to withdraw that application.”[47] 

  1. [52]
    I detect no error in the learned magistrate’s reliance upon Mr Batstone’s opinion simply because he did not accept precisely the same methodology as that used by the Queensland Herbarium. On the contrary, the learned magistrate gave detailed consideration for accepting the opinion of Mr Batstone, despite the methodology used by the Queensland Herbarium not featuring significantly into Mr Batstone’s opinion.  The learned magistrate noted that Mr Batstone did not closely follow the procedures outlined in the “Methodology for Survey and Mapping Regional Ecosystems and Vegetation Communities in Queensland”, however found his evidence to be credible.  In particular, the learned magistrate accepted Mr Batstone’s evidence that:[48]
    1. (a)
      The property was situated within a number of regional ecosystems;
    2. (b)
      Of the 15 sites that Mr Batstone visited, in and near a majority of the charged areas, there was significant clearing of native vegetation which was endemic to the area by mechanical means.  The native vegetation cleared included Casuarina cristata (Belah), Eucalyptus populnea (Poplar box), Cadellia pentastylis (Ooline), Acacia catenulate (Bendee) and Eucalyptus Creba (Narrow leaf ironbark);
    3. (c)
      After considering the historical aerial photography through to more recent satellite imagery, the vegetation cleared in the charged areas on the property met the definition of “remnant vegetation” in accordance with the VMA. 
  1. [53]
    Such matters, coupled with other evidence, led the learned magistrate to be satisfied of the necessary element of “assessable development”. 
  2. [54]
    No error has been demonstrated.  

Ground 7 – Essential Management

  1. [55]
    The appellant did not press this ground of appeal. 

Ground 8 – The Sentence was Manifestly Excessive

  1. [56]
    The appellant has highlighted that written submissions on sentence were provided to the learned magistrate and objection was taken to Mr Batstone’s report entitled “Estimated Financial Benefit”.  It was submitted by the appellant:

“To not put a too finer point on it, to allow that type of evidence to be given by a person who purports to base the opinion on the basis of undisclosed conversations with third parties (whom we assume are experts in the area) would be tantamount to allowing anyone to give an expert opinion, regardless of their expertise (or lack thereof).”[49]

  1. [57]
    It was submitted that the learned magistrate did not rule on objections made or provide any explanation as to why the report was relied upon.  It was submitted that there was an error to rely upon the report and that if it was accepted that there was an error, then this Court is duty bound to re-sentence the offender. 
  2. [58]
    The respondent has submitted the report was admissible pursuant to s 15 of the Penalties and Sentences Act 1992 because that section permits the court to receive any information that it considers appropriate to enable it to impose the proper sentence. 
  3. [59]
    In my view the learned magistrate gave detailed consideration to s 15.[50]  His Honour correctly noted that having regard to that provision, as well as R v Miller [2003] QCA 404, the reports were matters within which the Court could consider in arriving at an appropriate penalty.  There was no error in receiving and placing reliance upon Mr Batstone’s report.  Further it is my view that the extent to which the learned magistrate relied upon that report was relatively minor such that his Honour formed the impression that the land clearing was, in the absence of contrary evidence, undertaken by the appellant to increase the cattle carrying capacity of Beechwood; in other words, for a purely financial gain and not because of any particular pressing need of the appellant or his family.[51]  
  4. [60]
    A further matter agitated by the appellant related to an agreed Property Map of Assessable Vegetation (PMAV) under section 20AK.  The PMAV was in draft form before the learned magistrate at the time of considering the sentence.  The PMAV was issued in final after the sentence.  Accordingly, an application for leave to adduce the agreed PMAV, as fresh evidence, was made by the appellant.
  5. [61]
    To rely on further evidence on the appeal requires the grant of leave under an application for leave to adduce new evidence under section 223(2) of the JA.  As to the approach to be taken with respect to granting leave, the parties referred me to the three main considerations as enunciated in Gallagher v The Queen (1986) 160 CLR 392 being:[52]
    1. (a)
      Whether the evidence relied on could with reasonable diligence have been produced by the accused at trial.
    2. (b)
      Whether the evidence is apparently credible (or at least capable of belief).
    3. (c)
      Whether the evidence, if believed, might reasonably have led a tribunal of fact to a different result. 
  6. [62]
    For me it is the third consideration which militates against leave on this occasion because of the following relevant features some of which have been highlighted by the respondent:
    1. (a)
      It was made known to the learned magistrate that a PMAV would be made.
    2. (b)
      The PMAV in the present case simply followed the consequences of the appellant being convicted of land clearing offences.
    3. (c)
      The PMAV has no effect on the applicant grazing his cattle on the land that he unlawfully cleared of trees.
    4. (d)
      The sole practical effect of the PMAV is that the appellant would have to apply for a permit rather than being able to ‘self-assess’ Routine Management clearing.  If the Routine Management clearing was legitimate, it can be assumed such a permit would be given.  However, given the extent of the unlawful clearing, it is hard to see what further clearing would be required in any event.   
  7. [63]
    I therefore refuse the application to adduce fresh evidence.
  8. [64]
    During oral submissions, Mr Trewavas submitted that the learned magistrate fell into error with interpreting the appellant’s accounting records when considering the appellant’s ability to pay a fine of $75,000 for the offences and the sentence was otherwise manifestly excessive. 
  9. [65]
    At paragraphs [58] to [60] of the primary decision, the learned magistrate stated as follows:

“[58]  The defendant’s financial circumstances are contained within an affidavit tendered on 16 December 2019 which became Exhibit 57 in the proceeding.  At paragraph 12 to 14 [of the] defendant summarises his … difficult financial circumstances are a result of continuing drought thus: -

 “12.  We have sold a large amount of livestock due to selling dry cattle and selling down breeding stock.  All stock that have been sold this year have had to be supplementary fed with custom feeding or pallets.  We are now in the process of weaning all of our calves (approximately 500) which will be fed a Wean 100 pallett from Top Country.  We also feed 470 cows a feedlot ration from Wood Grain.  Unless we receive substantial rain in the next few months, we will sell 230 cows in March and we will retain only 240 cows.

 13.  When it does eventually rain again, we will need to purchase replacement livestock to be able to generate enough income to support our business and also service our bank loan.  We also have our children at boarding school in Toowoomba and we will need to support them for the next five years until they graduate.

 14.  The current drought conditions have been crippling for our business and have had a large financial and emotional toll on our family”

[59]  Notwithstanding the defendant’s deposed difficult financial circumstances in the above paragraphs, Mr Lasker’s financial accounts prepared by his accountant for the year ended 30 June 2019 are annexed to his affidavit.  Whilst acknowledging that the entity that undertakes the grazing business on the property has taken significant loans of around $850,000 on the security of the property, the financial statements include, inter alia, a livestock profit of $1,020,191.35 for the entity that conducts the livestock grazing business on Mr and Mrs Lasker’s property for the last financial year.

[60]  The accounts also reveal that the entity made a small loss of $41.37 which was composed of an accounting entry for depreciation of $256,545.31.  Whilst noting that the total beneficiaries’ equity in the trust that conducts the business on the defendants and his wife’s property is negative, a major contributing factor to that position is the entity’s liabilities owed to Mr and Mrs Lasker and not to external third parties.  As at the 30th June 2019, the entity also had an inventory of cattle and horses of about $970,000.  An examination of the projected cash flows for the near future does not appear to reveal a dramatic deterioration in the cash position of the trading entity run by Mr and Mrs Lasker.”

  1. [66]
    It was not uncontroversial that, in the earlier financial year, the appellant’s business derived a livestock profit of approximately $1,000,000 or that there was $850,000 worth of loans.  So much was evident from the appellant’s affidavit to which the learned magistrate referred.[53]  However the appellant contends that the learned magistrate failed to properly consider the expenses associated with generating the livestock profit because the costs associated in creating that profit exceeded the profit itself.  Regarding the loans, it was contended that, in addition to the $850,000, the learned magistrate failed to take into account other loans such as an equipment loan to the value of $158,934.03 and an unsecured loan to the Laskers of $138,237.58. 
  2. [67]
    It was identified on the appellant’s behalf that the way the appellant’s business was structured was that the family trust owned the property, there was a partnership which ran the cattle business on the property, and individual tax returns for the Laskers were then filed.  Losses were evident in the disclosed partnership and trust records.  The partnership tax return for the financial year had a loss of $3,039; and, the trust generated a $2 loss.[54]  The individual tax return of the appellant showed that he was in receipt of an Australian government allowance and payments in the form of the farm household allowance, with a total income for that year of $11,061.[55]  Therefore the total taxable income for the appellant was $17,205, of which $11,000 was by way of government pensions.  These matters, it was submitted, were not considered by the learned magistrate.
  3. [68]
    The contrary position was adopted by the respondent who submitted that this was a case where it was not correct to suggest that the learned magistrate had misunderstood the effect of the financial documents.  It was submitted by Mr Power that the financial records did not reflect the ‘true asset base’ that was available to the appellant, but the extent to which it did so, demonstrated that a quarter of a million dollars was paid, in what was said to be a drought year, to the appellant and the trust.  It was emphasised that the assets were such that the appellant and his wife could lawfully claim more than a quarter of a million dollars in depreciation (as was recognised by the learned magistrate).  Further regarding the issue of depreciation, it was highlighted by the respondent that the very nature of the depreciation did not mean “actual money leaving the pocket” but rather was merely “an accounting artefact”.  It was submitted that there was no such error on part of the learned magistrate when considering the appellant’s financial circumstances. 
  4. [69]
    Unlike the appellant in McDonald v Holeszko [2019] QCA 285, the appellant in the present instance did not comprehensively disclose his true financial position.[56]  It was submitted that the appellant’s situation was far removed from that of McDonald.  Mr Power also highlighted, among other matters, that the evidence disclosed that the appellant did have significant resources to clear the land itself and by inference was such an expensive thing to do as it was required to be done by contractors (unlike the illegal clearing in McDonald).
  5. [70]
    Whilst the learned magistrate acknowledged the appellant’s deposed difficult financial circumstances, his Honour also had regard to the disclosed financial records.  Revealingly the learned magistrate accepted that the partnership had significant secured loans in order to maintain its business, that the partnership incurred a small loss, which included an accounting entry for depreciation of around $250,000.  His Honour noted the value of the inventory of cattle and horses and appreciated that the business had entity liabilities to the Laskers as opposed to external third parties. 
  6. [71]
    In considering the argument advanced by the appellant in light of the disclosed records, I am unable to discern any mischaracterisation of the defendant’s financial position to warrant appellant intervention. 
  7. [72]
    On the face of it, a global fine of $75,000 is a more than adequate deterrent both personally and generally.  Added to this figure were costs and outlays in the region of about $25,000.  Whilst it is a strong penalty, it is one which, in my view, is not unreasonable or plainly unjust.  Indeed, a different sentencing magistrate or judge may have taken a more sympathetic or lenient view towards the defendant and imposed a smaller monetary penalty.  However, it is not the role of an appellant court to intervene if it considered a marginally different penalty more appropriate.  What must be demonstrated to warrant intervention is governed by the principles laid down in House v The King (1936) 55 CLR 499 at 505.  In this respect, I agree with the observations expressed by Muir DCJ in Ross v Commissioner of Police [2018] QDC 99, where her Honour stated at [8] – [10]:

“[8]   On appeal, it is not a sufficient basis for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion.[57]  It must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499.[58]  If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.[59]

[9] It is not necessary to identify a particular error. As Keane JA (as he then was) observed in R v Ikin[60]:

The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505 has occurred.  In this regard, there may be cases where the sentence is so "unreasonable or plainly unjust" in the circumstances as to give rise to an inference that the discretion has miscarried.  It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive.  But that having been said, as was emphasised by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 341, this Court should allow an appeal against sentence only where the error is clearly apparent.  [Emphasis added]

[10] Despite differing approaches by judges of this court to this task,[61] the crucial question on an appeal under s 222(2)(c) remains, in my view, whether upon a proper review of the original record, the sentence was excessive.

  1. [73]
    His Honour had due regard to the size of the cleared area, the period over which the clearing occurred, as well as the type of vegetation cleared.  His Honour considered the defendant’s explanation for the offending and that the defendant cleared the land with his own machinery.  His Honour properly considered the defendant’s financial circumstances regarding the capacity to pay a fine in the region of $75,000 and costs.  His Honour comprehensively considered relevant comparable yardstick penalties towards imposing the penalty which he did and properly formed the view that the appellant’s factual matrix, in light of the comparables, was neither the highest nor the lowest end of seriousness of offending.  Like the findings in relation to conviction, the learned magistrate provided yet another set of extensive reasons in respect to imposing the sentence for the four breaches.  I respectfully agree with the learned magistrate’s reasons regarding the aggravating and mitigating features of the case.  I am not satisfied that the sentencing discretion miscarried on this occasion.  No error has been demonstrated to warrant intervention.    

Conclusion

  1. [74]
    The appeal is dismissed.  There should no reason why costs ought not follow the event.  If the parties are unable to resolve the issue of costs by agreement, I direct that the appellant and respondent file and serve written submissions within 21 days.   

Footnotes

[1][1986] 1 Qd R 284

[2]See [1] – [11] of the primary decision relating to conviction.

[3]Because of the evidence given by a prosecution witness together with the contents of Exhibits 55 and 56.

[4]See for instance Robinson Helicopter Inc v McDermott [2016] HCA 22, [43].

[5]See [171] of the primary decision for the summary and [35] – [167] for a detailed analysis of the prosecution evidence. 

[6][173] of the primary decision. 

[7][169] of the primary decision.

[8][170] of the primary decision. 

[9]Section 35C of the Acts Interpretation Act 1954.

[10]See Muscat v Douglas (2006) 162 A Crim R 457 at [65] – [73]. 

[11]See appellant’s written outline, [111].

[12]See Lasker v Holeszko No. 3 [2017] QMC dated 28 February 2018, especially [38] – [65].  The learned magistrate in the primary decision also dealt with these matters: [181] – [185]. 

[13][55]. 

[14]Phillips v Spencer [2005] QCA 317 and Stevenson v Yasso [2006] QCA 40.

[15]Lasker v Holeszko No. 3 [2017] QMC, 28 February 2018, [23] and [45].   

[16]For example, Kirkpatrick v Bartlett [1936] SASR 10; Shillinglaw v Roberts (1891) 17 VLR 136; R v Oliver [1944] KB 68; R v Edwards [1975] QB 27.

[17]Bell v Hyde [1939] VLR 300; Bourne v Marrickville Municipal Council (1954) 19 LGR(NSW) 218; Forrester v Marrickville Municipal Council (1954) 19 LGR(NSW) 232; Davis v Pember (1958) 5 LGRA 78; Morris v Woollahra Corporation (1966) 116 CLR 23.

[18]R v Edwards [1975] QB 27 at 39 – 40; Walsh v Faehrmann [1936] SASR 49 at 54; R v Sheehan [2001] 1 Qd R 198 at 201 [13], 203 [22] and 204 [28]; R (on the application of Grundy & Co Excavations Ltd) & Anor v Halton Division Magistrates Court [2003] EWHC 272 at [28]; Lynch v Attwood [1983] 3 NSWLR 1 at 7B. 

[19]R v Edwards[1975] QB 27 and Lynch v Attwood [1983] 3 NSWLR 1.

[20]See [35] of the primary decision.

[21]See [35] – [41] of the primary decision.

[22]All said to be contained in [9] and [13] of the Exhibit MFI-G.

[23](2001) 52 NSWLR 705.

[24]See [44] of the primary decision.

[25]T4, p 6, l 44.

[26]T4, p 7.

[27]T5, pp 29-31.

[28]T5, pp 30-39.

[29]T6, p 19.

[30]T4, pp 12-15.

[31]T3-18, ll 42 to T3-22, l 14.

[32]At [58] – [60]. 

[33]The delegation was proved below. 

[34]See for instance Dixon v LeKich [2010] QCA 213, especially [26].

[35]See T3, pp 18 – 22. 

[36]See T3, pp 18 – 22. 

[37]Ibid and also T5, p 28.

[38]See s 3(1)(a) of the VMA.

[39]Reliance was placed on Kirk v Industrial Court of New South Wales (2010) 239 CLR 351 at 557-558, [26] and NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373 at [17], [24] and [25].

[40]See for instance R v S [2000] 1 Qd R 445 at 452. 

[41]That was the Act in operation at the time prior to being repealed by the Planning Act 2016.

[42]See for example [171] – [173] of the primary decision. 

[43]See [33] – [173] of the primary decision. 

[44]Crosthwaite v Loader (1995) 77 A Crim R 348, 352 – 353.  

[45]See [167] of the primary decision. 

[46]See [132] – [167] of the primary decision.

[47]T6-14, ll 1 – 6. 

[48]See [171] of the primary decision.

[49]See [114] of the appellant’s written outline of argument.

[50]Holesko v Lasker (No 2) [2017] QMC, [4] – [15]. 

[51]See [51] of Holeszko v Lasker (No 2).   

[52]I was also directed to Brookes v Logan City Council [2020] QDC 24, [13].

[53]Exhibit 57.

[54]Exhibit 57 at pp 37 and 43. 

[55]Exhibit 57 at p 55.

[56]See for instance paragraphs [34] to [42].

[57]R v Lawley  [2007] QCA 243 at [18]; Cf R v Wruck [2014] QCA 39, where the Court of Appeal granted leave to appeal on the basis of the sentencing judge’s error in approach but dismissed the appeal on the basis that the sentence was not manifestly excessive and because as Holmes J (as she then was) stated “I would not reach any different conclusion as to sentence”.

[58]At 504 – 505.

[59]Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4].  In Young v White [2016] QDC 159 at [13] McGill SC DCJ considered that upon the demonstration of a vitiating error (for the purpose of House v The King), the question is whether the appellant has shown that it is appropriate to exercise the residual discretion in favour of allowing the appeal and that the discretion extends to a discretion not to interfere with the original sentence.

[60][2007] QCA 224 at [6].

[61]Berner v MacGregor [2013] QDC at [8] – [18]; Cf Pullen v O'Brien [2014] QDC 92 at [27] to [35]; Lamont v Queensland Police Service [2018] QDC 10 at [4]. [5]; WAA v QPS [2014] QDC 297 at [4]–[6]; TND v Queensland Police Service [2014] QDC 154 at [27] – [33].

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Editorial Notes

  • Published Case Name:

    Lasker v Holeszko

  • Shortened Case Name:

    Lasker v Holeszko

  • MNC:

    [2021] QDC 270

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    05 Nov 2021

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