Hadfield v Commissioner of Police
[2024] QDC 223
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hadfield v Commissioner of Police[2024] QDC 223
- Add to List
Hadfield v Commissioner of Police[2024] QDC 223
Hadfield v Commissioner of Police[2024] QDC 223
DISTRICT COURT OF QUEENSLAND
CITATION: | Hadfield v Commissioner of Police [2024] QDC 223 |
PARTIES: | RICHARD JOHN HADFIELD (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | DC No 897 of 2024 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane – Unreported, 6 March 2024 |
DELIVERED ON: | 13 December 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 October 2024 |
JUDGE: | Moynihan KC DCJ |
ORDER: | In relation to the Notice of Appeal filed on 3 April 2024:
|
CATCHWORDS: | APPEAL – APPEAL AGAINST CONVICTION – WILFUL DAMAGE – BONA FIDE CLAIM OF RIGHT – where the appellant was convicted after a summary trial of a single count of wilful damage pursuant to s 469(1) of the Criminal Code Act 1899 (Qld) – where the appellant contends the Magistrate failed to consider s 22 of the Criminal Code Act 1899 (Qld). |
LEGISLATION: | Criminal Code Act 1899 (Qld) Justices Act 1886 (Qld) Biosecurity Act 2014 (Qld) |
CASES: | Allesch v Maunz (2000) 203 CLR 172 Fox v Percy (2003) 214 CLR 118 R v Kelleher [2024] QCA 99 R v MEB [2024] QCA 188 |
COUNSEL: | M L Longhurst for the appellant K J Simpson for the respondent |
SOLICITORS: | Sibley Lawyers for the appellant The Office of the Director of Public Prosecutions for the respondent |
The Conviction
- [1]On 6 March 2024, in the Magistrates Court at Brisbane, the appellant was convicted after a summary trial of a single count of wilful damage pursuant to s 469(1) of the Criminal Code Act 1899 (Qld) (the Code).
- [2]The learned Magistrate ordered that the appellant pay a bond in the sum of $250 on the condition that he be of good behaviour for a period of three months. No conviction was recorded.
The grounds of the appeal against the conviction
- [3]The appellant filed a Notice of Appeal on 3 April 2024, appealing his conviction on the following grounds –
- “1.The Learned Magistrate erred in convicting the Appellant for the charge of Wilful Damage, as the verdict was unreliable or unsafe;
and/or
- 2.The Learned Magistrate erred in law in finding that there was ‘damage’ to the property.”
- [4]On 31 May 2024, the appellant filed an outline of submissions in which he sought leave to add the following grounds of appeal –
“Ground 3 That the particularised charge was bad for latent duplicity, resulting in miscarriage of justice.
Ground 4 That the Magistrate failed to adequately consider [s 22] of the Code (Bona Fide Claim of Right).”
- [5]At the hearing of the appeal the appellant abandoned grounds 1, 2 and 3.
- [6]The respondent was granted leave to add ground 4.
The Act
- [7]The appellant appeals his conviction under the Justices Act 1886 (Qld) (the Act). The Act relevantly provides –
- “222Appeal to a single judge
- (1)If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court Judge.
- 223Appeal generally a rehearing on the evidence
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- 225Powers of judge on hearing appeal
- (1)On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
- (2)If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
- 226Costs
The Judge may make such order as to costs to be paid by either party as the judge may think just.”
- [8]In Allesch v Maunz (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ, at p.180 [23], when defining the difference between an appeal by way of rehearing and a hearing de novo, said –
“… the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.” (All footnotes omitted).
- [9]In Fox v Percy (2003) 214 CLR 118, where the appeal to the Court of Appeal was by way of rehearing with a power to receive further evidence, Gleeson CJ, Gummow and Kirby JJ said at p.127-128 [27] –
“Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
The facts
- [10]The appellant and the complainant were neighbours who shared a dividing fence between suburban properties at Morningside. The complainant had various trees growing on his property, including three African Tulip trees and a Poinciana tree (the trees). The trees were situated next to the fence line between the properties.
- [11]The act relied on by the prosecution as constituting the offence was that the appellant did cut branches off the trees (the act) on the complainant’s side of the fence, damaging the trees.
- [12]The complainant gave evidence that on 20 November 2022, he heard a chainsaw being used near the front of his house. He looked out the window and saw the appellant using a chainsaw on a pole to cut off the top of the African Tulip trees on his property. The complainant went outside and told the appellant that he was not entitled to do that and asked him to stop. After a short pause, the appellant used the chainsaw to cut a branch off the Poinciana tree which was also on the complainant’s property. The complainant’s evidence was that he had not given the appellant permission to cut the trees. When cross-examined, the complainant admitted that he had not planted the African Tulip trees and that they had likely been there for a long time. He was unsure whether they had come from the appellant’s property or whether they originated from his property. The branches that were cut off the trees fell on the ground next to the trees on the complainant’s property.
- [13]The complainant said that following the incident the tree branches have not grown back to the same extent. In particular, he stated that the African tulip trees had not recovered much of their length and that the volume of leaf material is sparse. In the case of the Poinciana tree, the branch that was not cut by the appellant had grown, though the damaged branch had only recovered a third of its height.
- [14]The investigating police officer, Senior Constable Clacher, gave evidence that he attended the scene on 20 November 2022, and his body-worn camera footage of the trees and branches was admitted as exhibit 5. The photographs of the trees taken on 20 November 2022 were admitted as exhibit 3 and photographs of the trees taken on 1 February 2023 were admitted as exhibit 4.
- [15]The parties made the following joint admissions under s 644 of the Code at trial (exhibit 2) –
- “The date and time of the alleged offence is on the 20th November 2022 at approximately 11-11:45am.
- The location is 19 Ison Street, Morningside, the residential address of the complainant.
- The complainant, one Craig CUTTRISS, and the defendant in this matter are neighbours.
- On the aforementioned date and at the aforementioned place, the defendant has cut branches on 4 (FOUR) trees with an electric saw.
- –x1 Poinciana Tree
- –x3 African Tulips (Spathodea Campanulate)
Photographs taken 20th November 2022 are accepted depictions of the property at the time they were taken and are tendered into evidence by agreement. (EX #1)
Photographs dated 1st February 2023 are accepted depictions of the property at the time they were taken and are tendered into evidence by agreement. (EX #2)
- The defendant has wilfully cut these branches.
- These trees were physically located on the property at 19 ISON Street, Morningside.
- It is accepted that parts of some of the branches and leaves from these trees were overhanging onto the defendant’s property.
- It is accepted that African Tulips are a Category 3 restricted species pursuant to the Biosecurity Act 2014.
- At the time of the alleged offence, the defendant was aware neighbourhood dispute matters regarding overhanging trees could be progressed through QCAT. At the time of the alleged offence the defendant had made no application to QCAT.
A copy of a Neighbourhood Disputes Pamphlet located on the relevant government website is accepted and tendered as an aide. (AIDE #1).”
- [16]The appellant did not give or call evidence.
- [17]The defence case at trial was that the prosecution could not prove that –
- (a)the trees were the complainant’s property because –
- (i)the roots may have originally emanated from the appellant’s property; or
- (ii)the complainant was illegally in possession of the African Tulip trees as they are category 3 restricted species under the Biosecurity Act 2014 (Qld) (the BA).
- (b)the trees were damaged as cutting off the branches did not alter their physical integrity. They continued to function and had not been rendered imperfect or inoperative.
- (c)the act was unlawful because –
- (i)the complainant was not the owner of the trees and was therefore incapable of withholding consent to the act; or
- (ii)the BA required and authorised the act.
The charge
- [18]The appellant was charged with the offence under s 469(1) of the Code, which relevantly provides that –
“(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable, if no other punishment is provided, to imprisonment for 5 years.”
- [19]The elements of the offence that the prosecution had to prove were –
- the defendant did the act relied on to constitute the offence, i.e., the defendant did cut the branches off the trees;
- the trees were property;
- the trees were damaged;
- the defendant did the act wilfully; and
- the act was unlawful. That is, the act was not justified, authorised or excused by law.
- [20]Section 458 of the Code relevantly provides –
“(1) An act which causes injury to the property of another, and which is done without the owner’s consent, is unlawful unless it is authorised or justified or excused by law.
(3) It is immaterial that the person who does the injury is in possession of the property injured, or has a partial interest in it, or an interest in it as joint or part owner or owner in common.”
- [21]The appellant accepts that it was open to the Magistrate to find that the prosecution had proved the first four elements of the offence. The appellant admitted the first and fourth elements at trial. The appellant also accepts that the Magistrate was correct to find the act was unlawful because it was not required or authorised by the BA.
- [22]The appellant did not contend at the trial that s 22(2) of the Code was engaged and the Magistrate did not consider it.
The issue
- [23]The appellant now contends that there was evidence in this case that was capable of raising the defence of bona fide claim of right under s 22(2) of the Code for the prosecution to negate, and the learned Magistrate erred in failing to consider the defence.
- [24]The appellant submits that –
“… the evidence before the presiding Magistrate fairly raised the prospect that the Appellant was acting in accordance with a belief in the state of the law such that he was entitled to control (by way of trimming) the invasive species in accordance with a foreseeable risk under the Biosecurity Act, in addition to his right of abatement.
Notwithstanding that the defence of s.22 was not explicitly relied on by the Appellant at first instance, it is respectfully submitted that the weight of the evidence required His Honour to engage with the application of s.22.
The failure to engage with s.22 resulted in a miscarriage of justice.”
Consideration
- [25]The relevant legal principles to be applied to determine whether a defence should have been considered are set out in R v Kelleher [2024] QCA 99 by Bond JA, with whom Morrison JA and Crow J agreed, said at p.2-4 [8]-[13] (see also R v MEB [2024] QCA 188) –
- “[8]It is settled law that if there was evidence which fairly raised any of the defences suggested by the ground of appeal, the legal or persuasive burden was on the Crown to exclude beyond reasonable doubt the proposition that the accused was acting in circumstances giving rise to the defence – that is, to exclude any reasonable possibility that that proposition was true.
- [9]As to whether any of the suggested defences were fairly raised on the evidence such that they should have been left to the jury, the question for the trial judge was whether, on the version of events most favourable to the accused that was suggested by the evidence, a properly instructed jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting in circumstances giving rise to the defence. Or, to put it another way, the question for the trial judge was whether, on such a version of events such a jury could be left with a reasonable doubt as to whether the defence had been negatived.
- [10]It should be emphasised that the question for the trial judge – and for the appellate court where it is suggested that the trial judge erred – is a question of law on which there can be only one correct answer. The question posed in the previous paragraph is not to be answered by a prediction of what the trial judge (or the appellate court) thinks that a properly instructed jury acting reasonably would do. The enquiry is as to what such a jury could do.
- [11]That said, the proper analysis must necessarily act on the basis that a properly instructed jury acting reasonably will form logical conclusions by logical reasoning and not by mere speculation. Thus in R v Clarke when considering whether an innocent explanation posited for the first time on appeal should have been left to the jury, Hunt CJ at CL remarked that the jury could not act upon “some fanciful supposition or possibility not reasonably to be inferred from the facts proved”.
- [12]Finally, it is important to appreciate that where a posited defence has both subjective and objective elements, both elements must be considered. If, for example, a defence would exist if the accused relevantly acted while holding a particular belief on reasonable grounds, then the defence would not be fairly raised on the evidence unless there was evidence which fairly raised both the subjective aspect of the hypothesis (namely that the accused actually held the relevant belief when the accused relevantly acted) and the objective aspect of the hypothesis (namely that the belief, if held, could be regarded as held on reasonable grounds). If the evidence fairly raised the defence, the ultimate legal onus on the prosecution would be to prove beyond reasonable doubt either that the accused did not hold the belief or that any such belief was not held on reasonable grounds.
- [13]Thus in R v Markovski, where the issue was whether the defence of aiding in self-defence under s 273 of the Criminal Code together with the excuse of mistake of fact under s 24 of the Criminal Code should have been left to the jury, Bowskill CJ observed (footnote omitted):
“In determining whether such a defence should be left to the jury, the question to be asked is whether there is evidence, direct or inferential, which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the defence had been negatived (that is, to legitimately conclude that there existed a reasonable possibility that the accused held the honest and reasonable, but mistaken belief). But, as was said in CTM v The Queen (2008) 236 CLR 440 at 447 [8]:
“The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact.”
As already noted, evidence of the relevant state of mind may be derived by inference; but “inference must not be confused with speculation”. Whether described as an evidential onus or not, the requirement to point to evidence which raises the issue of mistaken belief for the jury’s consideration is not discharged by reference to speculation or “suppositions about mere possibilities” – there must be some foundation for it. …” (All footnotes omitted).
- [26]Section 22 of the Code relevantly provides –
“Ignorance of the law – bona fide claim of right
- Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
- But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
- [27]The offence of wilful damage under s 469 of the Code is an offence relating to property. In order to engage the defence under s 22(2) of the Code, there must also be evidence capable of raising that the act was done in the exercise of an honest claim of right and without intention to defraud.
- [28]The honest claim of right is said to be that the defendant believed he was entitled to cut the branches off the African Tulip trees because they were a category 3 restricted plant under the BA.
- [29]The issue is whether the evidence fairly raises the hypothesis that at the time the appellant cut the branches off the trees, he honestly believed he could do so. The defence could not be fairly raised unless there was evidence which also raised the subjective aspect of the hypothesis, that is, that the belief was held by the appellant honestly and without an intent to defraud.
- [30]On the version of events most favourable to the appellant that was suggested by the evidence, the question is whether the Magistrate, acting reasonably, might fail to be satisfied beyond reasonable doubt that the appellant, when he cut the branches off the trees, honestly believed that he could do the act because the trees were a category 3 restricted plant under the BA. Put another way, the question for the Magistrate was whether, on such a version of events, he could be left with a reasonable doubt as to whether the defence had been negatived.
- [31]The defendant did not give evidence. The only evidence capable of raising the defence is that led from the complainant in the prosecution case.
- [32]The complainant gave evidence that he did not give the appellant permission or consent to do the act. Indeed, prior to the act, he had explicitly told the appellant he did not consent to the act in email correspondence. During the act, the complainant told the appellant to stop because “he wasn’t entitled to do that” but the appellant continued to cut a branch off the Poinciana tree.
- [33]The complainant was cross-examined about previous interactions and email correspondence between himself and the appellant concerning the three African tulip trees. These included the appellant previously hiring a contractor to cut branches from a Mango tree that overhung the fence line. That act was done on the appellant’s side of the fence and the branches placed over the fence on the complainant’s side. The complainant said he had no problem with that.
- [34]The complainant accepted that the appellant had –
- sent him an email in early November pointing out that the trees were African Tulip trees, that they were an invasive species under the BA and that he had read an attachment confirming that (see T 1-16.20); and
- forwarded to him an email from an arborist in which the arborist “pointed out” that African Tulip trees are an invasive species under the BA (see T 1-17.11).
- [35]It was put to the complainant that, because of the email correspondence and the attachments, the complainant became aware that he had legal obligations in relation to the trees which were under his control. That is, that the complainant had an obligation to remove the trees. The complainant said he did not see the matter in those terms, and he “never thought for a moment that I was in breach of any Act.” (See T 1-18.13 - 1-19.6, 1-23.14 -.28, 1-24.5). He accepted that he had an obligation to control the trees, but he did not consider the trees to be out of control (see T 1-18.32 -1-19.5; 1-23.11 -.25).
- [36]Finally, it was put to the complainant that –
“Well, isn’t it the case, in fact, that you were aware that you had a legal obligation, and that Mr Hadfield was offering to have those trees removed… for you by his arborist, and you refused that? --- No. So I don’t believe I had an obligation to remove those trees.”
“Right. Well, isn’t it the case that you simply didn’t care about whether you had an obligation or not. You weren’t going to allow Mr Hadfield to have those trees removed?” --- “I was – I saw it as none of his business to do that, or any entitlement whatsoever, and… it didn’t meet the criteria where they needed to be removed.” (See T 1-24.9 -18).
- [37]The critical issue is whether the evidence fairly raised the hypothesis that at the time the appellant did the act, he honestly believed he had a right to do that act.
- [38]I am not satisfied that the defence of honest claim of right under s 22(2) of the Code was fairly raised on the evidence and that on the version of events, the Magistrate could be left with a reasonable doubt as to whether the defence had been negatived for the following reasons.
First, there is no direct evidence that the appellant ever honestly believed that he could cut the branches off the trees that were on the complainant’s property because –
- the appellant did not give evidence of such a belief; and
- the complainant did not give evidence that the appellant had ever expressed or demonstrated that belief.
Secondly, such a claim or belief, and the mental element that it was honestly held, cannot reasonably be inferred from the whole of the evidence because –
- the defence case put to the complainant was that the appellant had told the complainant that the trees were an invasive species under the BA and that it was the complainant who was obliged to remove them.
- It was not suggested to the complainant that the appellant had a right or was entitled to cut off the branches or remove the trees, or that he believed he was entitled to do that.
- The complainant did not agree with the assertion that he had an obligation to remove the trees and there is no evidence that any person had such an obligation.
- Neither the appellant’s case put to the complainant, or their prior interactions and email correspondence, support an inference that the appellant believed he could cut off the branches of the trees on the defendant’s property because they were a category 3 restricted plant under the BA. The inference to be drawn from all the evidence is to the contrary.
- [39]A reasonable Magistrate could not have been left with a reasonable doubt that the prosecution had not negatived either of the elements on which the defence depended, that is, the defendant held such a belief or that the belief was honestly held. It is not an inference that a Magistrate, properly instructing themselves, could on the evidence reasonably draw.
Conclusion
- [40]The result is that the evidence did not fairly raise the elements of the defence under s 22(2) of the Code. A defence under s 22 was not open on the evidence. The Magistrate did not err by not considering the possible application of the defence.
Order
- [41]The appeal is dismissed.
- [42]The order of the Magistrate is confirmed.