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  4. Christopher Holeszko v Daniel McDonald and Katrina McDonald (No.2) - [2017] QMC 23

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Christopher Holeszko v Daniel McDonald and Katrina McDonald (No.2)[2017] QMC 23

Christopher Holeszko v Daniel McDonald and Katrina McDonald (No.2)[2017] QMC 23

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Christopher Holeszko v. Daniel McDonaldand Katrina McDonald(No 2) [2017] QMC 23

PARTIES:

CHRISTOPHER JOHN HOLESZKO

(Complainant)

v

DANIEL JAMES MCDONALD and KATRINA ANN MCDONALD

(Defendants)

FILE NO/S:

MAG-00243575/15(0), Counts 1 to 6

MAG-00243590/15(9), Counts 1 to 6

DIVISION:

Magistrates Courts

PROCEEDING:

Summarytrial of six (6) charges against each defendant of carryingout assessable development without an effective development permit for the development contrary to section 578(1) of theSustainable Planning Act 2009(Qld).

ORIGINATING COURT:

Charleville Magistrates Court

DELIVERED ON:

10th August 2017

DELIVERED AT:

Charleville Magistrates Court

HEARING DATE:

18th August 2016, 9th September 2016, 1st December 2016,

25th January 2017, 9th February 2017, 27th April 2017.

MAGISTRATE:

HASTED M

ORDER:

  1. The defendant Daniel James McDonald be found “GUILTY” of each of the six offences of carrying out assessable development without an effective development permit contrary to section 578(1) of the Sustainable Planning Act 2009 (Qld);
  1. The defendant Katrina Ann McDonald be found “NOT GUILTY” of each of the six offences of carrying out assessable development without an effective development permit contrary to section 578(1) of the Sustainable Planning Act 2009 (Qld). The six changes preferred against Katrina Ann McDonald are dismissed and Katrina Ann McDonald is discharged;
  1. The court will hear from the prosecution and Daniel James McDonald further in relation to the question of penalty for the offences for which Mr. McDonald has been found “GUILTY”.

CATCHWORDS:

CRIMINAL LAW – SUMMARY TRIAL – EVIDENCE – ELEMENTS OF OFFENCES – whether the complainant has established that the defendants carried out “assessable development” without an effective development permit for the development contrary to section 578(1) of the Sustainable Planning Act 2009 (Qld) beyond reasonable doubt.

CRIMINAL LAW – DEFENCES - Honest claim of right – whether available – right claimed not a defence to charge – no defence available.

REAL PROPERTY GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – ESTATES IN FEE SIMPLE – whether provision in a statutes creating the offence of carrying out “assessable development” without an effective development permit creates an “interest” in land that required registration under the Torrens System of title registration.

COURTS PRACTICE AND PROCEDURE – JURISDICTION – COURTS OF LIMITED JURISDICTION whether Magistrates Court had power to consider the effect of legislation on landholder’s livelihood.

LEGISLATION:

Sustainable Planning Act 2009 (Qld) s 3, 7, 10, 232, 238, 578, 618, Schedule 3.

Sustainable Planning Regulation 2009 (Qld) s 9, Schedule 3 and 24.

Vegetation Management Act 1999 (Qld) s 3, 8, 19Q, 20A, 22LC, 68, 68A, Schedule.

Vegetation Management Regulation 2012 (Qld) s. 8(3), Schedule 3.

Justices Act 1886 (Qld) s 42, 43, 47, 76, 142A, 146.

Criminal Code 1899 (Qld) s 7, 22.

Integrated Planning Act 1997 (Qld) s 1.2.1, 4.3.1.

Land Act 1994 (Qld) s 4.

Property Law Act 1974 (Qld) long title.

Land Title Act 1994 (Qld) s 3.

Legislative Standards Act 1992 (Qld) s 3, 4.

Police Powers and Responsibilities Act 2000 (Qld) s 157.

CASES:

Wilson v. Dobra (1995) 57 WALR 95.

Hunt v. Maloney; Ex parte Hunt [1959] Qd R 164. R. v. Corey (1882) 8 QBD 534.

R. v. Beck [1990] 1 Qd R 30.

R. v. Sherrington [2001] QCA 105. Stuart v. R. 134 CLR 426.

R. v. Oberbillig [1989] 1 Qd R 342.

R v. F; Ex parte A-G [2004] 1 Qd R 162.

R v. Hawke [2016] QCA 144.

R. v. Roughan [2009] QCA 21.

Scriven v. Sargent [2017] QCA 95.

Bone v. Mothershaw [2003] 2 Qd R 600.

Dore & Others v. Penny [2006] QSC 125.

Burns v. The State of Queensland [2004] QSC 434.

Burns v. The State of Queensland & Croton [2006] QCA 235.

Wilson v. Raddatz [2006] QCA 392.

Glasgow v. Hall [2007] QCA 19.

Watts v. Ellis [2007] QCA 234.

Union Steamship Co. of Australia Pty Ltd v. King (1988) 166 CLR 1.

Wright v. Queensland Police Service [2002] QSC 046.

Ousley v. R. (1997) 192 CLR 69. Bunning v. Cross (1978) 141 CLR 54 R. v. Versac (2013) QSC 46.

COUNSEL:

B.J. Power (Of Counsel) for the Complainant.

D.J. McDonald in person.

K.A. McDonald in person.

SOLICITORS:

Queensland Department of Natural Resources and Mines, Legal Division.

D.J. McDonald not legally represented.

K.A. McDonald not legally represented.

INTRODUCTION

  1. [1]
    “Wyrapa” is a property approximately 120 kilometres north-west of the southwestern Queensland township of Charleville situated on Boondoon Road. The property consists of two adjacent freehold parcels of land described as Lot 4 on Crown Plan LO73 (‘Lot 4’) and Lot 7 on Crown Plan LO70 (‘Lot 7’) in the Quilpie Shire local government area. Collectively the property is about 13,727 hectares in size. The owners of the property, Mr. Daniel James McDonald and Mrs. Katrina Ann McDonald are the registered owners of the property as joint tenants.
  1. [2]
    Mr. and Mrs. McDonald conduct a livestock grazing and breeding business on the land. For at least the last five years, Mr. McDonald says that he and his family have been battling the effects of drought. He says the effects of drought have had a devastating effect on the family business. It has left his family physically and emotionally exhausted. In order to moderate the effects of drought on the livestock on the property, it is common ground that there has been some vegetation cleared on the “Wyrapa” property for a two-year period between April 2013 and April 2015.
  1. [3]
    An examination and analysis of historical and current satellite imagery and aircraft photography of the cleared areas on the property by officers of the Queensland Department of Natural Resources and Mines raised some concerns regarding the nature and size of the clearing. A number of approaches by departmental officers, both personal and electronic to Mr. and Mrs. McDonald, including as a number of visits to the “Wyrapa” property during 2014 and 2015 did not assuage those concerns that the clearing on the property had been undertaken in contravention of the Sustainable Planning Act 2009 (Qld) (‘SPA’).

THE CHARGES

  1. [4]
    As a result of the evidence gathered by departmental officers in relation to the vegetation cleared on “Wyrapa”, on the 19th January 2016 Mr. and Mrs. McDonald were jointly charged, by way of complaint sworn and summons with six (6) counts of contravening section 578(1) of the SPA before the Charleville Magistrates Court. The six charges contained in the two complaints sworn by the complainant Christopher John Holeszko for each defendant are in the same terms, other than the identity of the defendant.
  1. [5]
    Each charge referred to carrying out assessable development without an effective permit on various areas of land on Lot 4 and Lot 7 between various dates. The overall date range of the charges was between 21st April 2013 and 29th April 2015. Each of the six offences charged relates to the clearing of native remnant vegetation in particular areas on either Lot 4 or Lot 7. The total area of land cleared was alleged to be approximately 1,838.3 hectares.
  1. [6]
    The areas of land pertaining to the individual offences where it was alleged that the unauthorised assessable development took place were defined in paragraph nine of the 17 paragraphs of the particulars supplied with each of the six formally pleaded charges. The areas of concern were further identified in four maps attached to, and forming part of, each of the complaints as follows: -
    • Complaint Map A – Overview of Charge Areas 1 to 6;
    • Complaint Map A1 – Overview of Charge Areas 1, 3, 4 and 6; Complaint Map A2 – Overview of Charge Area 2;
    • Complaint Map A3 – Overview of Charge Area 5.

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 proceeding as “polygons”.

  1. [7]
    On the 19th April 2016, both defendants pleaded “Not Guilty” to the charges. A summary trial of the charges commenced on 18th August 2016 and continued for six sitting days until 27th April 2017.

BURDEN AND STANDARD OF PROOF

  1. [8]
    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 guilty 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.

THE ELEMENTS OF THE OFFENCES TO BE PROVEN

  1. [9]
    In order for the defendants in these proceedings to be found guilty of all of the offences with which each of them have been charged, the prosecution must prove each essential element of each of the six offences preferred against the defendants 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.

Should the prosecution fail in it’s task of proving every element of every offence charged to the required standard, then the defendants must be found “not guilty” of the offence or offences for which the prosecution does not come up to proof on.

  1. [10]
    As there were no formal admissions forthcoming from the defendants, and they both elected not to give evidence, the prosecution was put to proof of each of the essential elements of all of the charges against both of them. In an effort to prove all of the charges against both of the defendants, the prosecution called the following witnesses: - 
    • Bruce Murray Goulevitch;
    • Christopher John Holeszko;
    • Seamus Patrick Batstone;
    • Donald William Butler;
    • Ivan Gutierrez Feria.

Mr. and Mrs. McDonald both elected not to give evidence and no adverse inference is drawn against them for electing to adopt that course of action.

EVIDENCE IN SUPPORT OF THE ELEMENTS OF THE OFFENCES CHARGED

Element 1 – The defendant “carried out”

  1. [11]
    The first essential element that the prosecution must prove is that each of the defendants “carried out” the clearing of the native vegetation in the charge areas. It is the prosecution case that both defendants either committed the offences directly themselves, or attract criminal liability for the six offences by aiding, counsel or procure another person or persons to undertake the clearing on the “Wyrapa” property during the period 21st April 2013 to 29th April 2015.
  1. [12]
    It is well established both in this state and in Western Australia that the “principal offender” provisions of the Criminal Code 1899 (Qld) (‘the Code’) are of general application to all offences punishable by the criminal law: Wilson v. Dobra (1995) 57 WALR 95; Hunt v. Maloney; Ex parte Hunt [1959] Qd R 164. Relevant to the current proceedings, section seven of the Code relevantly provides: - 

“7 Principal offenders

  1. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—
  1. every person who actually does the act or makes the omission which constitutes the offence;

…

  1. (c)
    every person who aids another person in committing the offence; 
  2. (d)
    any person who counsels or procures any other person to commit the offence.”
  1. [13]
    The prosecution says that there is both direct and circumstantial evidence which establishes that there was clearing by mechanical means in each of the charge areas and that the clearing could not have taken place without the involvement of each defendant directly, or as an aider or procurer of the clearing. The principal oral evidence relied upon to prove this element was that of the complainant, Mr. Christopher Holeszko, who was a senior investigator with the Queensland Department of Natural Resources and Mines.

Summary of Holeszko’s Evidence

  1. [14]
    Mr. Holeszko’s oral evidence was that one of the first steps he took in relation to these matters was to obtain the records relating to the ownership and the nature of title to the two properties comprising “Wyrapa” by obtaining a number of documents from the Titles Office. The first being a certified copy of the title showing Mr. and Mrs. McDonald to be the owners of Lot 4 on Plan 73 which became exhibit 9. Exhibit 10 tendered to the court was a certified copy of the title for the other property that was referred to as Lot 7 on Crown land LO70. That document also showed Mr. and Mrs. McDonald to be the owners of that parcel of land as joint tenants.
  1. [15]
    He said that on the 4th of March 2014 he had a telephone call with a person who identified himself as Mr. Daniel McDonald. He said that he rang Mr. McDonald’s residence and Mr. McDonald later called the witness back. The purpose of the phone call was to discuss satellite-detected changes, which had been identified, on his property.  
  1. [16]
    He said that they discussed the areas being mapped as regulated vegetation. Mr. Holeszko explained to Mr. McDonald that he had done some searches of departmental records and had not been able to identify any permits or authorities, which may explain the changes that were seen in the satellite imagery. He said that he had also searched the department records to see if there had been any interactions or records of interactions with Mr. McDonald and the department in relation to vegetation management.  Mr McDonald during the discussion then went on to say words to the effect that he didn’t believe that he needed to contact anyone as his property was freehold property. 
  1. [17]
    Mr. Holeszko said that Mr. McDonald indicated to him that he had done some pulling on the property. The witness took that to mean by a chain attached to two dozers. He said that activity was most likely within the time frame of the permit. Mr. McDonald indicated, after that, he had only done fodder harvesting with either a chainsaw or a single dozer. Mr. McDonald said that he had been undertaking fodder harvesting activities and that he had left a lot of the larger trees on the property.
  1. [18]
    They then had further discussions in relation to some of the new amendments to the Vegetation Management Act and the fodder harvesting self-assessable code as well as the self-assessable code for thinning in the mulga lands, which were applicable to his property. The period of time that they were talking about with relation to the satellite images at the time that the witness spoke to Mr. McDonald was between 2006 and 2010.
  1. [19]
    They then had further discussions where Mr. Holeszko said that he’d like to undertake a property inspection because the witness indicated to Mr. McDonald that, based on the satellite imagery, it was hard to determine exactly what had occurred on the ground, and that, for the purpose of trying to identify how much vegetation had been left on the site, they would like to do a property inspection. Mr. McDonald indicated to the witness in words to the effect that he would be agreeable to an inspection.
  1. [20]
    The witness agreed that he sent an email to an email address “wyrapa” – with the subject “Veg Management Reforms 2013 and Property Maps” and containing information in relation to some maps that he intended to send Mr. McDonald and in the body of the document there were bolded sections – map A, map B and map C. In relation to each of those maps, the email attempted to explain what those maps showed. At the time that he created those maps he was unable to identify any permits or authorities that would have helped to explain any changes in vegetation cover on the property.
  1. [21]
    On 29th April 2015, he and other officers of the department, namely, Warren Raddatz, Greg Field and Seamus Batstone, attended at the two properties concerned and conducted a field inspection. On arriving there and exiting the vehicle, the witness came across a male person who was in a shed.  The witness introduced himself and the male introduced himself as Dan McDonald. Shortly after that, a female person came from the residence area and Dan McDonald introduced that person to the group as Katrina, his wife.  They then had a discussion in relation to why the officers were attending his property on that day which was recorded and became exhibit 15. Relevantly at 14.00 minutes into the conversation Mr. Daniel McDonald said:

“I’ve explained to you over the phone why the clearing is taking place. It’s still taking place cause we’re still in drought. We are still feeding now OK”

At 14.16 minutes into the conversation, Mr. Daniel McDonald said: -

“You know why there’s changes...” 

A little further into the conversation Mr. McDonald states: -

“Obviously it’s inconsistent with the way your guidelines would like it to happen. I explained to you why it’s happening the way it’s happening and if it’s inconsistent, well it’s inconsistent. I’m not going to deny that… I’m not denying anything that’s happening…I don’t really need to see maps because I know exactly what’s on the ground cause I’ve done it right”.

  1. [22]
    On 9th of October 2015 Mr. Holeszko made an arrangement to speak with Mr. and Mrs. McDonald at the Charleville Police Station. Prior to the commencement of the formal interview, the witness recorded an exchange between himself and Mr. Daniel McDonald. That exchange and the further conversation between the witness and Mr. McDonald was admitted as exhibit 18. Relevantly the recording provided: -

Holeszko:  The clearing of vegetation on the property, who is responsible for making decisions about what goes on?

Daniel McDonald:   We as owners of the property.

The recording relevantly continues at about 1.56 minutes: -

Daniel McDonald:  So, as far as who is responsible we are all responsible. We all own the property. We all undertake works on the property. It’s our home. .. we won’t be interviewed separately, we are all here to discuss it. But as I say, there are some questions that remain unanswered. I’d like to ask the questions now … initially.

Daniel McDonald’s Liability

  1. [23]
    Therefore, having regard to the following items of evidence –
  • Exhibit 9 – Deed of Grant – Lot 4 on LO73;
  • Exhibit 10 – Current Title Search – Lot 7 on LO70;
  • The extent of clearing that had occurred on “Wyrapa”;
  • The time period over which the clearing took place on “Wyrapa”;
  • The oral evidence of Christopher Holeszko regarding the telephone conversation between himself and Mr. McDonald on 4th March 2014 concerning the clearing that had occurred on “Wyrapa” up to that point in time;
  • Exhibit 14 - The letter dated 28th July 2014 to the Minister by Mr. McDonald annexing two letters to the complainant Mr. Holeszko by Mr. McDonald dated 3rd April 2014 and 28th July 2014 respectively regarding clearing that had occurred on “Wyrapa”;
  • Mr. McDonald’s recorded responses on 29th April 2015 regarding what land clearing had occurred on “Wyrapa”;
  • Mr. McDonald’s recorded responses on 9th October 2015 concerning responsibility for land clearing decisions on “Wyrapa”.
  1. [24]
    It is clear that Mr. McDonald was intimately involved in the day-to-day operation of the livestock grazing business conducted on the “Wyrapa” property. Section 7 of the Code provides that criminal liability is attached not only to the person who actually does an illegal act, but also to those individuals who aid, counsel, or procure another to commit an illegal act.
  1. [25]
    Having regard to the above evidence, it is highly implausible that the clearing could have occurred over the land area or the time period set out in exhibit two on the property owned by, and with which Mr. McDonald had such a close connection, unless he actually undertook the clearing himself, or he counselled, procured or aided another individual to carry out the clearing.
  1. [26]
    The court is therefore satisfied that the prosecution has proven this element, in respect of each of the six charges against Mr. McDonald, beyond reasonable doubt.

Katrina McDonald’s Liability

  1. [27]
    The prosecution argues that Mrs McDonald is criminally responsible for the six offences with which she has been charged on two bases. Firstly, the period over which the clearing was carried out as well as the area of land over which the clearing was carried out. The prosecution argues that as a co-owner of the “Wyrapa” property, the clearing could not have occurred unless Mrs. McDonald at least counselled or aided another to do the clearing. The prosecution submits this may have been constituted by as little as explicit or tacit approval as a positive active step.
  1. [28]
    The second ground on which the prosecution rely is the comments by Mr. McDonald in his recorded conversation with Mr. Holeszko at the Charleville police station on 9th October 2015, which occurred in the physical presence of Mrs. McDonald. In relying on R. v. Roughan [2009] QCA 21 at [28] to [36] it is said that Mr. McDonald’s comments at 1.56 minutes into the conversation that both he and Mrs. McDonald were “responsible” and that they both “undertake works on the property …” in the presence of Mrs. McDonald but without demur or correction by her is indicative of her criminal liability. By her presence with her husband at the Charleville police station, and the context of the circumstances of her silence at the time Mr. McDonald made the comments is clear confirmation of her adoption of the truth of Mr. McDonald’s remarks.
  1. [29]
    In the court’s view, the case against Mr. McDonald is strongly suggestive of an intimate knowledge of, and deep involvement in, the clearing activity over the period of time alleged. His comments on the 29th April 2015 are indicative of a direct personal involvement in the process. However, his comments on the 9th October 2015 at the Charleville police station need very careful analysis if they are to be a ground on which criminal responsibility is also ascribed to Mrs. McDonald.
  1. [30]
    Aside from being a co-owner of “Wyrapa” there would seem to be two responses by Mr. McDonald relied upon by the prosecution to criminally implicate Mrs. McDonald. The first was the reaction to the question “who is responsible for making decisions about the clearing of vegetation?” – to which the reply was “We as owners of the property”. The other response relied upon came later in the conversation and was more in the form of an explanation: -

“So, as far as who is responsible we are all responsible. We all own the property. We all undertake works on the property. It’s our home…”

  1. [31]
    In the court’s view, the first response of Mr. McDonald is qualified by the second. The use of the word “we” in the first response is explained by the repeated use of the term “we all” in the phrases “… we are all responsible. We all own the property. We all undertake works on the property…” in the second response. Mr. McDonald does not use the phrase “we both” which would be suggestive of him and Mrs. McDonald being the ones solely responsible for decision making in relation to the “Wyrapa” property. The use of the term “we all” is arguably indicative of Mr. McDonald referring to his family members collectively. That is, he is referring to not only himself and Mrs. McDonald but also to their children. In that sense, Mr. McDonald’s responses are capable of more than one meaning. In one sense, they may refer to him and Mrs. McDonald. However, there is also an alternate meaning reasonably open that Mr. McDonald is referring to both himself and Mrs. McDonald and also to his children, persons who are not subject of the current proceeding.
  1. [32]
    In respect of the provisions of section 7(1)(c) of the Code relied upon by the prosecution, it has been held that mere presence at the commission of an offence will not of itself be sufficient to constitute aiding. There must be, at least, positive encouragement: R v. Corey (1882) 8 QBD 534. In R. v. Beck [1990] 1 Qd R 30 it was said by Macrossan J at 38:

“It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided”

His Honour went on to say at Qd R 37 that despite the above passage, voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. Intentional encouragement may also come from expressions, gesture or actions intended to signify approval.

  1. [33]
    In R. v. Sherrington [2001] QCA 105 it was said in respect of s 7(1)(c) that the word “aids” means assists or helps. Aiding and abetting means doing one or other of three things while being aware that a crime is being committed:
    1. (1)
      Intentionally helping the principal in the first degree to commit the crime; or
    2. (2)
      Intentionally encouraging him by one’s presence or behaviour to commit it; or
    3. (3)
      Intentionally conveying to him by words or presence and behaviour that one is assenting to and concurring in the commission of the crime.
  1. [34]
    The other provision on which the prosecution relies -  section 7(1)(d) of the Code - whether the defendant has counselled another to commit an offence - requires a consideration of what the former urged or advised the latter to do: Stuart v. R. (1974) 134 CLR 426 at 445. In appropriate circumstances, “counsel” may mean “urge”. “advise” or “solicit”: R. v. Oberbillig [1989] 1 Qd R 341 at 345.
  1. [35]
    In R. v F; Ex parte A-G [2004] 1 Qd R 162 it was held that the term “procure” is a plain English word and is not a term of art. It means no more than “enabling” or “facilitating”. Williams J quoted with approval at [33] the new Shorter Oxford English Dictionary which relevantly defined the term “procure” as:

“Bring about … cause to be done … prevail on or persuade … try to induce.”

His Honour also quoted with approval at [34]:

“To procure means to produce by endeavour. You procure a thing by setting out to see that it happens taking the appropriate steps to produce that happening.”

  1. [36]
    In R v. Hawke [2016] QCA 144. Philippides JA said at [59]:

“In the context of s 7(1)(d) of the Code, it has been held that “procure” means more than “mere encouragement” and means successful persuasion to do something”

  1. [37]
    In the court’s view, the evidence adduced against Mrs. McDonald in this proceeding by the prosecution does not rise to the level of involvement contemplated by the above authorities to attract criminal responsibility in respect of either section 7(1)(c) or 7(1)(d) of the Code as an aider, counsellor or procurer of the offences with which she has been charged. The cases are, in the court’s view, suggestive that there must be some overt indication of involvement on behalf of the defendant in the offence, as opposed to passive acquiescence, to be caught by the provision.
  1. [38]
    The factual situation in R. v. Roughan [2009] QCA 21 is immediately distinguishable from the present case. In that case, there were conversations that were a mixture of silence at certain points of time and at other points of time, disagreement. The present proceeding involves nothing but absolute silence on Mrs. McDonald’s behalf during the crucial interactions with the prosecution witnesses. Her mere presence at the property during the period the clearing was being undertaken, and presence when Mr. McDonald’s inculpatory responses were recorded both at the “Wyrapa” property and the Charleville police station, without more, is insufficient to establish this element of the six charges against Mrs. McDonald to the necessary criminal standard in the court’s view.
  1. [39]
    The court is therefore not satisfied that the prosecution has proven this element, in respect of each of the six charges against Mrs. McDonald beyond reasonable doubt.

Elements 2 – Assessable Development

  1. [40]
    The second element that the prosecution must prove in respect of the six charges against both defendants is that the actions they 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 to be considered is the term “development”. This term is relevantly defined in section 7(c) of the SPA to mean “carrying out operational work”. “Operational work” is defined by section 10(f) of the SPA to relevantly mean clearing vegetation, including vegetation to which the Vegetation Management Act 1999 (Qld) (‘VMA’) applies.
  1. [41]
    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.
  1. [42]
    “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. Grass or non-woody herbage;
  2. A plant within a grassland regional ecosystem prescribed under a regulation;
  3. A mangrove.”
  1. [43]
    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) of the Act to be assessable development. Section 232(1)(c) of the SPA provides that a regulation may prescribe that development is assessable development. 
  1. [44]
    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 -

  1. 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.”
  1. [45]
    The term “native vegetation” is defined in the dictionary in Schedule 3 of the SPA to mean vegetation under the VMA. Paragraph 10 of the particulars supplied with each charge classifies the vegetation cleared as “remnant vegetation” a term defined in the VMA to relevantly mean a “least concern regional ecosystem” 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]
    “Least concern regional ecosystem” is further defined in the dictionary of the VMA to mean a regional ecosystem declared to be a least concern regional ecosystem under section22LC of the Act. Pursuant to section 8(3) of the Vegetation Management Regulation 2012(Qld) (‘VMR’). Schedule three of that Regulation lists “Least Concern Regional Ecosystems” as defined in section 22LC of the VMA.
  1. [47]
    In addressing this element of the six offences, the prosecution called four witnesses:  – Bruce Goulevitch;
    • Bruce Goulevitch;
    • Dr. Donald Butler;
    • Seamus Batstone;
    • Christopher Holeszko.
  1. [48]
    The witnesses’ evidence can be broadly grouped into those witnesses that provided “analytical” evidence, and those that provided “observational or corroborative evidence” of the cleared regions within the charge areas on the “Wyrapa” property. Mr. Goulevitch, Dr. Butler and Mr. Batstone provided expert analysis of aerial photography and satellite imagery, and Mr. Batstone and Mr. Holeszko actually attended a number of locations either on or close to the “Wyrapa” property to observe and record instances of vegetation clearing. 
  1. [49]
    Mr. Batstone who identified the “Least Concern Regional Ecosystems” present on Lot 4 and Lot 7 in accordance with Schedule 3 to the VMR. His oral evidence was that there were the following ecosystems present at the property: -

Regional ecosystem

Regional ecosystem number

Acacia cambagei low woodland on braided channels or alluvial plains

6.3.6

Acacia aneura + Eucalyptus populnea + Eremophila gilesii tall open shurbland on Quaternary sediments

6.5.14

Acacia aneura + Eucalyptus populnea + E. melanophloia +Eremophila mitchellii low open woodland on plains

6.5.18

Eucalyptus thozetiana + Acacia aneura open woodland on scarps and slopes

6.7.6

Acacia catenulate + Eucalyptus thozetiana and/or A. ensifolia low open woodland with Triodia spp. And/or A. petraea + A. aneura on scarps and plateaus

6.7.7

Summary of Goulevitch’s Evidence

  1. [50]
    Mr. Bruce Goulevitch gave evidence that he was a Principal Scientist attached to the Department of Science, Information, Technology and Innovation within the Queensland Government. He agreed that in that role that he performed with the department, he was asked to examine spatial images in relation to two land parcels - Lot 4 on Plan LO73 and Lot 7 on plan LO70 in the locality of Adavale in the Quilpie Shire.
  1. [51]
    He agreed that he had created a 32-page document labelled “BMG4” containing 30 maps in respect of the land parcels the subject of the charges. The maps contained a series of “polygons” that identified areas of clearing the subject of the six charges. The document became exhibit 2 in the trial.
  1. [52]
    The witness explained charges 1 through 6 were essentially in a chronological order of the change in the vegetation that he had mapped.  Charge 1 was a light blue polygon along the northern boundary of Lot 7 just a little bit to the east of the centre of that northern boundary.  Yellow polygons designated the charge 2 area. The charge 2 area was wholly on Lot 4 on plan LO73, and adjacent to, but not abutting the western boundary of Lot 4. The light green polygons on Lot 7 represented the charge 3 areas. They were in two groups. Polygon 1 abutted directly to the south and south-west of the charge 1 light blue polygon. The second group towards the southeast was adjacent to but clearly not abutting the eastern boundary of Lot 7. The darker green polygon was representative of the charge 4 area and was immediately to the north of the charge 3 polygons he had just described and sat between that southeastern group of charge 3 polygons and the charge 1 polygons in the blue.  Moving to the south of Lot 7, the grey group of polygons were representing the charge 5 areas. Finally, the orange polygons representing charge 6 were adjacent to the northern boundary of Lot 7 and immediately to the west of the charge one blue polygons. 
  1. [53]
    By going through the satellite images and aerial photographs of the charge areas between the charge dates, and applying his expertise and experience, he concluded that the changes in the vegetation he observed were the result of man-induced clearing of woody native vegetation. He also confirmed, in respect of each of the charge areas, that the areas of concern were in the “remnant least concern category” within the boundaries of the relevant regional ecosystems map. He also checked to ensure that each of the charge areas were within category B of the current Regulated Vegetation Management Area.
  1. [54]
    The witness then had reference to exhibit 41, a presentation titled “BMG 5”. The document was 35 pages in length with a cover sheet similar to that prepared for BMG4.  It again recorded that it related to Lot 4 on plan LO73 and Lot 7 on plan LO70, at Adavale in the Quilpie Shire local government area. He stated that the clearing polygons depicted in the images were created by him and that the polygons in the later presentation were identical to those depicted in presentation “BMG4”, exhibit 2.
  1. [55]
    He explained that exhibit 41 was essentially a chronology of the changes that had occurred in the various charge areas as captured by satellite images. Page 1 of the document was an image of charge area 1 taken on the 22nd April 2013 Page 6 showed the completion of the clearing up to the 28th of August 2013 for the charge area 1.
  1. [56]
    He said that page 7 through to 14 of the presentation showed a progression of Landsat images for the charge 2 areas. Page 7 was the commencement for the area for charge 2, as at the 12th August 2013. Page was the completion of the clearing within the charge two polygons areas between the period 18th of December 2013 and the 19th of January 2014.
  1. [57]
    He said page 15 showed the start of the charge 3 periods on the 19th January 2014. Page 18 showed the completion of clearing of native woody vegetation in that north-west polygon between the 8th of March 2014 and the 9th of April 2014.
  1. [58]
    Page 19 showed the commencement date for the charge 4 areas as at the 27th May 2014. Page 21 showed the completion on the western side of the polygon as at 28th June 2014. The clearing of the charge 5 areas commenced at page 22 on the 14th July 2014. He said the north-westernmost island polygon had been cleared between the 23rd of February 2015 and the 12th of April 2015 completing the charge 5 areas.
  1. [59]
    Page 33 was the commencement of charge 6, the last of the charges, with a start date of the 23rd of February 2015. Page 35 showed the balance of the polygons within charge 6 to the north had been cleared up to the 28th of April 2015. 
  1. [60]
    He said even quickly going through it, the nature of that clearing being linear on the consecutive edges in some cases, it would be impossible for any natural occurrence to act like that in such a continuous time period and have linear boundaries.

Summary of Butler’s Evidence

  1. [61]
    Dr. Butler gave evidence that he was a Science Leader working with the Department of Science, Innovation and Technology, Queensland Government. In his current role as a science leader, he worked with an organisation called the Queensland Herbarium and he managed the ecosystem survey and mapping team. He said that he was asked by the Department of Natural Resources and Mines to give his opinion about whether vegetation contained within the six charge areas contained remnant native vegetation.
  1. [62]
    He was provided with a copy of a document entitled “Complaint Map A Overview of Charge Areas 1 to 6”. The document showed certain areas on Lot 4 on LO73 and Lot 7 on LO70. In relation to each of the six charge areas, he conducted an investigation looking back at historical aerial photography of those areas and then moving forward through satellite imagery. In particular, he looked at aerial photography from 1969, 1980 and 1994.
  1. [63]
    He said that he examined the photography using a piece of equipment called a “stereoscope”, which allows you to get a three-dimensional view of the landform and the vegetation on those photographs.  He was looking for distinct discontinuities in the height cover of the vegetation. He compared the vegetation from the 1969 photographs that he’d seen in stereoscope that he could see in 1980 and 1994, and then moving forward from there he examined more recent satellite imagery through to the present day. 
  1. [64]
    With regard to charge areas 2 and 5, when he did that examination, the observations that he made were that he could not discern any evidence of extensive clearing within those charge areas at any time. So, in his opinion, that meant the vegetation was remnant vegetation.
  1. [65]
    Moving to charge areas 1, 3, 4 and 6 he said that there was evidence of clearing particularly within charge area 6. He said he thought it was in the western most area in that little cluster on the 1969 photography. He said that he detected subsequent activity to the east of charge area 6 on the 1969 photography. He concluded that it looked as if there had been tree-clearing going on in that vicinity at least prior to 1969.
  1. [66]
    He said he conducted an assessment with regard to charge area 6 where he could see some historical disturbance. He said you could see the significant change in height of the vegetation and cover as you moved into charge area 6 from the west. Then when you looked again at the 1980s photographs, there was further clearing in that area. Then, with the 1994 photographs, you could see the vegetation cover, and on into the satellite records -  so much so that, in his opinion, the height and cover and composition was sufficient for it to be remnant vegetation at the time of the recent clearing. He said that the predominant native vegetation was Mulga and Poplar Box.
  1. [67]
    Moving to the remaining charge areas - that is 1, 3 and 4 he said that he did not see any clear evidence of past clearing. But he said that he wouldn’t be surprised if there was clearing that occurred early in the 20th century, particularly prior to the oldest photographs.  But again, considering the height and cover of the vegetation in those photographs and the subsequent satellite imagery, it was his opinion that those areas also contained remnant vegetation at the time of recent clearing.

Summary of Batstone’s Evidence

  1. [68]
    Seamus Batstone gave evidence that he was a Senior Natural Resource Management Officer with the Department of Natural Resources and Mines for about seven years. In respect of the current proceeding, he had attended the property “Wyrapa” on two occasions, once on 14th of November 2014, as well as on 29th of April 2015.
  1. [69]
    He said that most of the property was Mulga and Poplar Box. Mulga was the common name for Acacia aneura, and Poplar Box was Eucalyptus populnea, He agreed that in relation to the property “Wyrapa”, it was correct that Acacia aneura - Mulga, and Poplar Box - Eucalyptus populnea, - made up the vast majority of the trees on that property. He said that each of those types of trees were native to Queensland and endemic to the area. He said that other species he saw was some Eremophila Mitchellii or False Sandalwood, which was the common name. There was other Eremophilas. He said that he thought there was Gilesii, which was a Turkey Bush, a low shrub.  The other regional ecosystems there were Gidgee; there was Acacia Cambagei. He said that each of those species were endemic to the area and native.
  1. [70]
    His first visit was a preliminary investigation conducted, on the 14th of November 2014, when he conducted a roadside inspection, taking place from the public roads near the properties in question. When a map was handed to him, he agreed that it showed four locations from which photographs were taken on the 14th of November 2014. On the map was a dotted line, and it also marked the four spots where he stopped and took photographs and made certain observations. The map became exhibit 21 in the proceeding.
  1. [71]
    At the point that was marked as preliminary inspection point 1, he agreed that he could see through the fence into Lot 7 on LO70 on Dan McDonald’s place. He could see that areas had been cleared through into that property, and he could see that there were some trees retained close to the road. He said you could see for several kilometres south and to the south-west. He said that the vegetation he could see to the south was Mulga and Poplar Box.
  1. [72]
    Moving to position PI2, there were lots of Poplar Box and Mulga in those photos in the southeastern corner of Lot 4 on LO73. He said that it was correct that at PI2, if one looked to the north-west of that point, one is looking into some areas that were marked as clearing charge areas in pale blue. He said that the photos facing north and north-west would include some of those areas.
  1. [73]
    With regard to the north-west area, he said that he could see the boundary fence that ran along the edge of Lot 4 - the eastern boundary. He said that he could also see the boundary fence running north. On the eastern side of the boundary fence, there was some trees and shrubs but he could see on the western side of that fence that it was extensively cleared. There were some fallen trees, which looked like they’d been pushed or pulled over by machinery particularly Mulga.
  1. [74]
    He said that there were eight photographs taken from site PI4. He agreed that in respect of MAP F1 that there were some blue marked charge areas to the northeast of PI4. He said that in relation to the photo that looked to the northeast it looked to have been cleared for a few kilometres. He said that close to the road the trees that had been pushed over were lying parallel as if they had been pulled or pushed over with machinery. He said they were similar species – Poplar Box and Mulga.
  1. [75]
    He agreed that on the 29th day of April 2015 he took part in an inspection on the “Wyrapa” property with Chris Holeszko, Warren Raddatz, Greg Field and some other persons. He further agreed that on Map 1 there were sites marked SB1 through to site SB9 with SB standing for Seamus Batstone. He selected the locations as representative places in order to take photographs and record his observations.
  1. [76]
    He agreed that site location SB1 on Map F1 was located within, but close to the western side of certain charge areas. At that location, he saw Poplar Box and Mulga Trees. He saw some standing, but most were lying down; with most of them looking like they’d been pulled or pushed over. He said that they were lying mostly parallel - that was probably the thing that made him think that they’d been pulled or pushed over. He commented that he had observed some regrowth there as well.
  1. [77]
    The next map referred to was map F2. He said this was a close-up of the particular area where site SB1 was located. At that position he said he would be looking down into a part of the landscape that has been designated as part of charge 2. He said that he observed lots of pulled or pushed Mulga and Poplar Box. Once again, there wasn’t enough retention in that area to meet either the area management plans or the self-assessable codes, because those strips that need to be retained, were not retained. He said he could see the species were Poplar Box and Mulga - predominately Mulga - with Poplar Box scattered throughout. By the looks of the logs and things that were lying there, they were all lying similarly, parallel, and he noticed there had been a little bit of burning happening there as well. He said that the way the trees were lying parallel would indicate that machinery was used. 
  1. [78]
    In moving to map F3, if one looked to the northwest and the southwest, one would be looking into the area marked at charge 2. Looking in a southwesterly direction at that location, he said that it looked like a Poplar Box and Mulga community. There were some trees retained and there was some regrowth there. There was a lot of logs on the ground. It looked like the vegetation that was there was either pulled or pushed, just by the fact that they were lying pretty much parallel and with roots in the air. He said that in the area of charge 2, the degree and extent of clearing did not satisfy the Mulga Lands Fodder Area Management Plan. 
  1. [79]
    He said that going back to map F1, it was correct that there was a site location 3 which was effectively a distance south along the border of Lot 4 on plan LO73. He said that map F4 was at a point close to the bottom south-eastern corner of Lot 4 on plan LO73 and near the eastern boundary and very close to the bottom corner of an area that had been marked as part of charge 2. In the charge area, he said once again the species were the same – there was Mulga and Poplar Box there. He noted that there was some regeneration. There was also a few retained shrubs through there. Extensively, it looked like it had been cleared, and just from his experience it looked like it had been cleared with machinery. The trees were generally lying parallel. He noted that there were many of the roots exposed in that area as well. He said that the extended clearing that he could observe to the north and northwest at the site did not satisfy any of those codes. 
  1. [80]
    Returning to map F1 he said that site SB4 was essentially in the middle of the northern boundary of lot 7 on plan LO70. Then moving to map F5, which contained site 4, he said at that location there were three parallel areas that were nominated as charge 6 areas located to the southeast of SB4. He said that he observed mostly Mulga and Poplar Box once again. He said that it looked like it had been pushed or pulled with machinery.  Some of the trees still had leaves on them.  Some of them didn’t have any leaves left because they might have been there a bit longer.  There were some machinery tracks there. He said that you could see some retention of trees off in the distance, which contrasted with the trees that have been pulled over. He said you could see in the southwesterly direction for about a kilometre or so. Once again, he said the retention wasn’t there to meet the self-assessable code or the area management plan.
  1. [81]
    Going back to F1 he agreed that the location for SB5 was in the northeastern portion of Lot 7 on LO70, and located on a roadway, within a number of charge areas. He said that map F6 was where site SB5 was located. He said that there was a roadway on the eastern side and the western side charge areas. He said that the vegetation species present in the area was predominantly Mulga - Acacia Aneura. There was also some False Sandalwood - Eremophila Mitchellii, and some Poplar Box - Eucalyptus Populnea there.
  1. [82]
    He said that to the north-west at that site would show a view into part of charge area 1 that was to the west of the roadway that ran roughly north south at that location. Looking to the north-west into charge area 1 he said he saw trees lying parallel on the ground, mostly Mulga. He said that there was some Poplar Boxes and a little bit of regrowth occurring there. He said that the area was extensively cleared.  Once again, He said that there were not the retained strips that they would expect to see for a code compliant clearing. From that location, he said that you could see for over a kilometre to the north-west.
  1. [83]
    Returning to Map F6 he said that you could see a tree line in the distance, which had been retained, but in close proximity, you could see trees lying parallel. He said they were Mulga trees mostly and there would have been a couple of Poplar Box amongst them. He said that he could see most of the Mulga trees in the foreground. He noticed root bulbs exposed on one side, which was consistent with mechanical clearing. He said in some cases, leaves were still on the trees. He said that in terms of the retention, the extent of clearing and retention did not satisfy any of those codes. He said he would have expected to see more retention.
  1. [84]
    Concentrating on site SB6, he agreed it was correct that SB6 was in the top of the lower third of lot 7 on plan LO70, roughly in the middle of that section of lot 7 on plan LO70. Map F7 which was marked as site 6 showed SB6 taken from a roadway that ran north/south through the property and charge area 5 was both on the eastern and western side of that roadway.
  1. [85]
    He said that the vegetation in the area was predominately Mulga and Poplar Box. Once again, it appeared that they had been mechanically cleared. He said there were leaves on the trees, which once again meant it was relatively recent because those leaves hadn’t had the chance to drop off yet. The trees were lying relatively parallel once again in strips, which indicated pushing or pulling. He said that there was no retention that would have satisfied the relevant codes because the retention he expected to see where it would meet a code was not there.
  1. [86]
    Looking due west and southwest, he said once again, Mulga and Poplar Box were the predominant species there. He observed extensive mechanical disturbance.  He said that there were large Mulga and Poplar Box trees lying on the ground.  Some had been snapped off. Some of the roots were exposed. He said that there were some leaves left on the trees, which indicated relatively recent clearing. He said that there were a few shrubs and things left there. There was Eremophila Mitchellii alive in the background, which was False Sandalwood. He said that he could see in a westerly direction from that point for around a kilometre. Once again, he said that there was no retention that would satisfy the relevant codes. 
  1. [87]
    Moving back to map F1, he agreed that map SB7 was in the southern portion of Lot 7 on plan LO70 near the southern-most boundary, in about the middle of the lot. He then had reference to map F8 which showed site SB7. He agreed that site SB7 was to the west of a track or road running through Lot 7 on plan LO7 in a roughly north-south direction, and to the west of that roadway was an area that formed part of charge 5.
  1. [88]
    Looking west from site SB7, he said that you could see, once again, there was Mulga and Poplar Box. There was also some False Sandalwood and some Eremophila Gilesii - probably the Turkey Bush.  There was a few of them that were fairly similar. He said that they were native and endemic to the area. Looking directly west, he said you could see some trees had been cleared. Once again, they were lying flat, relatively parallel with some of their roots exposed. He commented that this site had quite a lot more retention that the previous sites they had looked at.
  1. [89]
    Referring back to map F1, he agreed that site SB8 was close to the southeast corner of Lot 7 on plan LO70. He agreed that map F9 contained site 8SB. Map F9 showed a dotted line to the southeast marking the corner post of the southeast corner of Lot 7 on plan LO70, and then site location SB8 was slightly north and west of that position inside an area that had been identified as charge 5. Looking north from that point once again the species there were Mulga and Poplar Box.  There had been extensive clearing to the north of the site.  Trees were lying on the ground.  There was Poplar Box right in the foreground and a mixture of Mulga and Poplar Box logs a little further north.
  1. [90]
    He said that he was also asked to consider the charge areas 1 to 6, and based on an examination of historical photographs to determine whether those areas fitted the definition under the Vegetation Management Act of “remnant vegetation”. In order to do this he conducted an examination of the aerial photographs that had been tendered from 1969 through the 1980s and 1994 aerial photographs, and obviously there was all the Landsat and spot imagery more recently.  From that, he could determine that in those charge areas really it hadn’t changed much since 1969, so the canopy cover was pretty much the same from 1969 -  through till when it was cleared, which he thought was around 2013 or 2014.
  1. [91]
    The witness was then handed the annexures to both complaints - Complaint Map A, Complaint Map A1, Complaint Map A2 and Complaint Map A3 - with the key for charges 1 to 6 being a different colour for each of the charge areas. The witness commenced by going through the historical photographs and then finally to the 2012 satellite images that Mr. Goulevitch effectively started with and then tracked through the charge periods. 
  1. [92]
    In respect of the blue-coloured area that was charge 1, from the examination of the aerial photos beginning in 1969 through to the ending in the satellite image of 2012, he said that there were not substantial change in the vegetation that would cause it to cease to be remnant native vegetation. Moving to charge 2, which was the yellow area, in the top red square on complaint map A, again, doing the same process, he said that there were no changes in the vegetation cover between 1969 and 2012 that would cause it to cease to be remnant native vegetation. 
  1. [93]
    Moving to charge area 3, which was the light green area adjacent to charge 1 in map 1A, he undertook the same process and made the same findings. Then charge area 4, which was the dark green area in map A1, he went through the same process for that area and came to the conclusion that there was no change. He said that in respect of charge area 5, which was the southern charge area, he had the same findings - no significant disturbance between 1969 and 1994.
  1. [94]
    Finally, he examined charge area 6, which was the section of striped lines to the left of charge area 1. He said that he did find some disturbance in that area historically. He calculated it at around 38 per cent disturbance in some parts of that charge area 6, but he believed it was still remnant. The area hadn’t been disturbed over 50 per cent of its canopy between 1969 and 1994. As such, he said he thought it remained remnant up until 2012, as there was less than 50 per cent disturbance up until that time.

Summary of Holeszko’s Evidence

  1. [95]
    Christopher Holeszko undertook a similar procedure to that embarked on by Seamus Batstone whereby nine sites were chosen throughout “Wyrapa” and marked location CH1 trough to CH8 on a map. At each location, GPS coordinates were taken as well as video recorded. At each site, he made similar observation to Mr. Batstone, which is that the majority of the woody vegetation at the site appeared to have been pushed or pulled over. Further, he observed that the vegetation appeared to be lying in a similar direction, which suggested that the clearing appeared to have been done by mechanical means.

Particulars Negativing Exemptions

  1. [96]
    At the conclusion of each of the charges contained within the complaint, under the heading “Particulars of Charge …”, the following statements are made amongst others: -

“13. The clearing was not clearing, or for an 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;
  2. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development;
  3. The development was not carried out under section 342(3) of the Act; and”
  1. [97]
    The purpose of these provisions is to take advantage of section 76 of the Justices Act 1886 (Qld) which 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. [98]
    As the prosecution has chosen to plead that in respect of each charge, neither defendant came within the potential exemptions to the definition of “Assessable Development” under the SPA contained in paragraphs 13 to 16 of the particulars supplied with each of the each of the individual charges laid, pursuant to section 76 of the Justices Act 1886 (Qld), they are not matters that the complainant must prove. Rather, they are matters for the defendants to raise should they choose to give evidence. As previously noted above, neither Mr. McDonald nor Mrs. McDonald elected to give or call evidence.
  1. [99]
    Therefore, having regard to the following items of evidence -
    • Seamus Batstone’s oral evidence that the property “Wyrapa” was contained within a number of regional ecosystems and that the vegetation on the property was predominately Mulga and Poplar Box which was native to Queensland and endemic to the area;
    • Seamus Batstone’s oral evidence that on the 14th November 2014 he conducted a preliminary roadside inspection of “Wyrapa” by attending four sites where there was evidence of vegetation clearing particularly Mulga, but also some Poplar Box; Seamus Batstone’s oral evidence that at the 8 sites that he visited at the “Wyrapa” property on 29th April 2015, in and near the charge areas, that there was significant clearing of native vegetation of predominately Mulga, but also some Poplar Box species, by mechanical means that did not meet any the fodder harvesting or vegetation management codes;
    • Seamus Batstone’s oral evidence that after considering the historical aerial photography through to more recent satellite imagery that all of the charged areas where categorised as “remnant vegetation”;
    • Bruce Goulevitch’s oral evidence that the changes in the vegetation that he observed were the result of man-induced clearing of woody native vegetation and confirming that the areas of concern were in the “remnant least concern” category and within category B of the current Regulated Vegetation Management Area;
    • Dr. William Butler’s opinion that the charge areas contained remnant vegetation at the time of recent clearing, and that the predominant species of vegetation were Mulga and Poplar Box;
    • Christopher Holeszko’s evidence that the sites he visited at “Wyrapa” on 29th April 2015, there had been significant clearing undertaken by what appeared to be mechanical means;
    • A visual examination by the court of the 30 maps contained within exhibit 2 – BMG 4 and the 35 maps contained within exhibit 41 – BMG 5 relied upon by the prosecution, which indicates that there had been clearing of vegetation within the land areas depicted in the maps. The incremental, consistent and linear nature of the clearing depicted, in the court’s view makes it highly unlikely that the clearing was due to natural causes, but rather strongly suggestive of human intervention.
    • Paragraphs 13 to 16 of the particulars supplied with each of the charges that stated as follows: –

“13. 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;
  2. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development;
  3. The development was not carried out under section 342(3) of the Act; and”
  • Mr. McDonald and Mrs. McDonald declined to give evidence or call evidence.
  1. [100]
    The court is satisfied that the prosecution has adduced sufficient evidence to prove beyond reasonable doubt in respect of each offence charged against both defendants that the element that “Assessable development” was carried out in each of the charge areas contained within exhibit two – BMG 4 – and particularised at the end of each charge and illustrated by:

- 

  • Complaint Map A – Overview of Charge Areas 1 to 6;
  • Complaint Map A1 – Overview of Charge Areas 1, 3, 4 and 6;
  • Complaint Map A2 – Overview of Charge Area 2;
  • Complaint Map A3 – Overview of Charge Area 5.
  1. [101]
    The court is also satisfied that the prosecution has negatived any reasonably applicable exemption or exclusion as pleaded in paragraphs 13 to 16 of the particulars supplied with each of the charges against both defendants beyond reasonable doubt.

Element 3 - Without an effective permit for the development. 

  1. [102]
    In his oral evidence, Mr. Holeszko said up until 21st March 2014 he could find no development permits for the land the subject of the charges in departmental records. Exhibit 13, which was a printout of the records of the Department of Natural Resources and Mines, indicated that as at 21st March 2014, Mr. McDonald registered for clearing under the selfassessable fodder harvesting code (exhibit 32). However, the evidence of Mr. Seamus Batstone was that in each of the charge areas the clearing failed to leave sufficient vegetation to meet the requirement for code-compliant clearing.
  1. [103]
    In addition, the prosecution has elected to include the following paragraph in the particulars supplied at the end of each charge for each defendant that: -

“17. The development was not authorised by an effective development permit, within the meaning of that term in the Act.”

  1. [104]
    By virtue of section 76 of the Justices Act 1886 (Qld) set out above, as the prosecution has chosen to particularise that the development complained of in each charge did not have an effective development permit, the issue is one for the defendants to raise.
  1. [105]
    As Mr. McDonald and Mrs. McDonald elected not to give or call any evidence, the court is satisfied beyond reasonable doubt that in respect of each of the six charges against both defendants, there was not, during the relevant time period for each charge, an effective development permit lawfully in existence.

LEGAL ARGUMENTS RAISED BY THE DEFENCE

1.   Lack of proof of ‘Remnant Vegetation’

  1. [106]
    Mr. and Mrs. McDonald has raised a number of issues concerning the inaccuracy of the classification and amount of remnant vegetation remaining in the various charge area polygons which may be conveniently dealt with under the one rubric. The issues raised by the defendants were: -
  1. (a)
    The prosecution failed to prove the percentage of remnant vegetation in the charge areas;
  2. (b)
    If the classification of the charge areas as remnant vegetation was valid, then in accordance with the definition of “remnant vegetation”, it should be that only 50% of the charge area that was illegal, so why was the prosecution alleging the whole the charge areas were illegal?;
  3. (c)
    The prosecution has failed to prove the extent of dead vegetation in the charge areas prior to the alleged mechanical disturbance.
  1. [107]
    In order to satisfy the definition of “operational work” within the meaning of “assessable development” in the current evidentiary context, the prosecution must prove that native vegetation was cleared on freehold land that did not fall within a category of recognised exemption set out in Item 1 of Table 4 in Part 1 of Schedule 3 to the SPR. Nevertheless, the prosecution has further particularised the type of “native vegetation” that it says was cleared by the particulars supplied with each charge. Particular 10 supplied with each charge provided that: -

“10. The vegetation that was cleared was native vegetation, within the meaning of that term in the Act, namely vegetation under the VMA, and was classified as remnant vegetation, within the meaning of that term in the VMA”

  1. [108]
    The second element of definition of “remnant vegetation” requires that the relevant regional ecosystem identified to: -

“(form) the predominant canopy of the vegetation –

  1. covering more than 50% of the undisturbed predominant canopy; and
  2. averaging more than 70% of the vegetation’s undisturbed height; and
  3. composed of species characteristic of the vegetation’s undisturbed predominant canopy”
  1. [109]
    The evidence of Dr. Don Butler is that the vegetation that was cleared on the property was remnant native vegetation. His evidence on this issue is set out at pages 97 – 99 of the transcript of day 4 of the trial. Seamus Batstone gave evidence that the vegetation that was cleared on the property was remnant native vegetation. His evidence on this point is set out at pages 109 – 113 of the transcript of the evidence for day 3 of the trial.
  1. [110]
    It is immediately apparent that in order to meet the definition of “remnant vegetation”, amongst other requirements, more than 50% coverage of the subject native vegetation area’s undisturbed predominant canopy and an average of 70% of the subject native vegetation area’s average undisturbed height must be present. However, once those respective threshold percentage levels of the two required characteristics are reached it is the whole of the subject vegetation area that is classified as “remnant vegetation” and not simply the percentage levels identified as meeting the two criteria.
  1. [111]
    In order for the prosecution to prove each of the charges against each defendant as particularised concerning the type of native vegetation cleared, the legislative scheme does not require that the prosecution, specify in the charge, or particularise separately, the percentage of remnant vegetation present within the native vegetation area cleared. Nor is the prosecution required to prove the state of health of native vegetation within the cleared area. The prosecution need only prove generally that the vegetation cleared was native vegetation, and specifically that the native vegetation cleared was “remnant vegetation”.
  1. [112]
    Similar considerations applies to the complaint that if the charge areas were correctly classified as “remnant vegetation” then the charge areas have been inflated by 50% more than what they should be. Again, once the subject vegetation areas exceed 50% coverage of their undisturbed predominant canopy, it is the whole of each native vegetation area that is classified as “remnant vegetation” and not just the individual percentage area of each area that is so classified.

2.    Honest belief of right to use of defendant’s real property

  1. [113]
    The defendants argue that they have always acted in the honest belief that they have the right to the effective use of their real property for the purpose of conducting their livestock grazing and breeding business upon the subject property.
  1. [114]
    This issue has recently been squarely dealt with by the Queensland Court of Appeal in Scriven v. Sargent [2017] QCA 95. In a case similar to the current proceeding, the applicant was convicted in the Magistrates Court of carrying out “assessable development” on his rural property without an effective permit, contrary to the predecessor equivalent of section 578 of the Sustainable Planning Act 2009 (Qld), section 4.3.1. of the Integrated Planning Act 1997 (Qld). The applicant was fined and ordered to pay the costs of the investigation and legal costs. No conviction was recorded.
  1. [115]
    An appeal by the appellant against his conviction to the District Court was dismissed on 17th February 2016. However, an appeal against sentence was allowed. The District Court re-sentenced the applicant for the offence.
  1. [116]
    The applicant sought leave to appeal to the Court of Appeal against the decision of the District Court dismissing his appeal against conviction. The grounds of the appeal amongst others were that the State had no registered interest over his freehold land and a defence of honest claim of right based on section 22 of the Code. The relevant part of the judgment dealing with this later contention commences at paragraph [19] (footnotes and citations removed): -

“Discussion

  1. [19]
    Relevantly, s 22 of the Criminal Code provides that a person is not criminally responsible, for an offence relating to property, or 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. Section 22 does not operate if the relevant belief would not constitute a defence to the relevant charge. It also does not operate if the relevant relief merely amounts to ignorance of the law.
  1. [20]
    In Walden v Hensler Deane J observed:

“An honest belief of a special entitlement to do the act with respect to the property, such as belief of ownership, will only constitute a defence under s 22 of the Code if that entitlement would, if well founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know. ... In other words, it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged.”

  1. [21]
    In discussing the ambit of s 22, Deane J considered offences involving the taking of property from the natural environment:

“An example of such a possible offence is that of mining in a natural forest. If the offence charged be the extraction of minerals owned by the Crown or another person in breach of the provisions of royalty legislation, the existence of an honest belief of ownership of the relevant minerals would found a defence of claim of right under s 22 of the Code in that, if the belief were well founded, the offence would not have been committed. On the other hand, if the mining is in breach not of royalty provisions but of a general conservation law intended to protect the forest from all mining activities, including any mining activities of the owner of the minerals, an honest belief of ownership of, or of some more limited claim to, the minerals could not constitute a defence of claim of right under s 22 for the reason that, even if it had existed, ownership of, or the more limited claim to, the minerals would be simply irrelevant. ...”

  1. [22]
    In Walden, the relevant offence imposed a general prohibition upon the taking or keeping of prescribed fauna irrespective of any proprietary or lesser right. That offence was committed regardless of whether a person was exercising rights of ownership or traditional rights of hunting with respect to that fauna. As Deane J observed:

“That being so, a genuine claim of ownership or hunting rights with respect to the fauna no more constitutes the basis of a defence of claim of right than does a genuine belief by a drug trafficker of ownership of the drugs in which he deals. In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights.” 

  1. [23]
    Dawson J reached a similar conclusion. The reasoning of Deane and Dawson JJ in Walden has been expressly adopted and applied by this Court. 
  1. [24]
    The applicant submits that s 4.3.1 does not constitute a general offence as unconditionally fixed natural vegetation is registered as a fixture to real property and accordingly a matter to which the applicant properly has a claim of ownership as the registered owner of the property in question. A defence of claim of right pursuant to s 22 was available because the claim was an entitlement to act in respect of the native vegetation. 
  1. [25]
    That submission cannot be accepted for two reasons. First, the natural vegetation on the applicant’s land was not a fixture for the applicant to use as he saw fit. The IPA and the VMA lawfully protected clearance of that natural vegetation without an effective permit. 
  1. [26]
    Second, that submission fails to accord any significance to the requirement in s 22 for the honest belief, if it had been well founded, to be a defence to the charge. The belief claimed by the applicant amounted to no more than an assertion that he honestly believed he had an entitlement to act in relation to the native vegetation. That assertion amounts to no more than an allegation he was unaware of the effects of the relevant legislation. Such a claim, even if held honestly, is not protected by s 22 as it merely amounts to ignorance of the law.”
  1. [117]
    It is on the basis of the reasoning of the Court of Appeal set out in Scriven (above) dealing with the exact same argument in a similar fact situation that the Court finds that the defendants’ claimed right constitutes no defence to the six charges preferred against each of them and section 22 of the Code has no operation in the present case.

3.     No reservation of the rights to the defendant’s carbon resources by the state.

  1. [118]
    It is argued by the defence that the prosecution must prove that the State has complied with its legislated obligations in it’s role in the administration of real property under the Torrens Title land interest registration system. That is, the prosecution must prove that the State utilised all available options to ensure it’s desired interest in the subject real property was appropriately registered in the freehold land register, and properly notified to the defendants.
  1. [119]
    This argument has been raised in matters coming before the superior courts of this state on many previous occasions. Further, the High Court of Australia has also refused to entertain an appeal based on this contention. The weight of authority from superior courts in this State against this proposition is almost crushing.
  1. [120]
    Arguments such as the present one were rejected by the Queensland Court of Appeal in Bone v. Mothershaw [2003] 2 Qd R 600 in a judgment delivered on 12th April 2002. The grant of special leave on this ground was refused by the High Court in Bone (above) on 25th June 2003 on the basis that there were insufficient prospects of success. At paragraph [19] of Bone (above) McPherson JA addressed the issue in the following terms: -
  1. "[19]
    In addition to historical considerations like these, a mere reference in a statute to an interest in land that is recognised at common law, such as an estate in fee simple, does not have the effect of transforming that interest, or the rights incidental to it, into statutory interests and rights. If it were so, s 24 of the Australian Courts Act 1828 (Imp) in introducing English law into eastern Australia would have had the effect of converting the whole of the common law received here in 1828 into a body of statute law, which, moreover, would have had the status and force under s 24 of an imperial enactment, with all the consequences which that entailed. Quite plainly, that is not what happened. The common law received in Australia under that Act was received as a body of common law and not of enacted law…”
  1. [121]
    An argument on the same basis was presented to the Trial Division of the Queensland Supreme Court in Dore & Others v. Penny [2006] QSC 125 and rejected in a judgment delivered on 5th May 2006. Essentially the same argument was presented in Burns v. The State of Queensland & Croton [2006] QCA 235 and rejected by the Court of Appeal in a judgment delivered on 23rd June 2006.
  1. [122]
    Similar submissions were made in Wilson v. Raddatz [2006] QCA 392 and rejected in a brief judgment of the Court of Appeal delivered on 10th October 2006. With similar brevity (and increasing terseness) in Glasgow v. Hall [2007] QCA 19 the same proposition was again rejected by the Court of Appeal. In that case, Homes JA, as Her Honour then was,  dryly observed at [5]: -

“…The absence of merit of the argument must surely be becoming apparent even to Mr. Walter”.

Notwithstanding Her Honour’s admonishment, the same arguments were raised and the same orders dismissing the appeal resulted in Watts v. Ellis [2007] QCA 234 before the Court of Appeal.

  1. [123]
    Recently the same argument as postulated above was agitated in the matter of Scriven (above). As it had done consistently for the previous 15 years, the Court of Appeal again rejected the argument in the following passage: -
  1. [27]
    Section 184 of the Land Title Act protects a registered proprietor of real property from an unregistered interest affecting the lot. It does not protect the registered proprietor from legal obligations that do not stem from a proprietary interest. Section 4.3.1 of the IPA creates a legal obligation on the registered proprietor of freehold land.
  1. [28]
    Relevantly, s 4.3.1 of the IPA provides:

’4.3.1

  1. A person must not start assessable development unless there is an effective development permit for the development.

Maximum penalty – 1665 penalty units.

  1. (2)
    Subsection (1) applies subject to section 4.3.6.
  2. (3)
    Despite subsection (1), the maximum penalty is 17000 penalty units if the assessable development is –
  1. (a)
    the demolition of a building identified in a planning scheme as a building of cultural heritage significance; or
  2. (b)
    on a registered place under the Queensland Heritage Act 1992.’
  1. [29]
    There is also no substance in the contention that s 4.3.1 constitutes a form of acquisition of a property right. Section 4.3.1 proscribes what may be done in relation to the clearing of vegetation on freehold land throughout the State. It does not purport to create an interest of any type that would be capable of being recorded on the title to the real property held by the applicant. There is therefore no inconsistency between the provisions of s 184 of the Land Title Act and s 4.3.1 of the IPA.” 
  1. [124]
    The proposition that the State of Queensland has somehow acquired a registerable interest in the defendants’ freehold property the subject of the charges as a result of the prohibition contained within section 578 of the SPA because of provisions of section 184 of the in Land Title Act 1994 (Qld) is simply untenable having regard to the above authorities.

4.   Integrated Planning Act, Sustainable Planning Act and Vegetation Management Act inconsistent with principles of Land Act, Property Law Act, Land Title Act, Land Title Practice Manual and Legislative Standards Act and questions the integrity of The Office of the Queensland Parliamentary Counsel.

  1. [125]
    The defendants say that there is substantial conflict between these Acts; therefore, for clarity and protection of the property owner’s interest, the principles of the Torrens Title System must be engaged. The defence assert that the State of Queensland have acquired on unjust terms an incident of tenure of the defendant’s real property. This is because the Commonwealth failed to engage the Australian Constitution, the State failed to engage the Legislative Standards Act, section 4(3)(b), (f), (g), and (i). The State failed and continues to fail to address the inconsistencies arising in applying the SPA, VMA to the defendant’s freehold, fee simple real property, pursuant to the Property Law Act 1974, the Land Act 1994, the Land Title Act 1994, the Land Title Practice Manual.
  1. [126]
    The purpose of the now repealed Integrated Planning Act 1997 (Qld), is set out in section 1.2.1: -

1.2.1 Purpose of the Act

The purpose of this Act is to seek to achieve ecological sustainability by—

  1. (a)
    coordinating and integrating planning at the local, regional and State levels; and
  2. (b)
    managing the process by which development occurs; and
  3. (c)
    managing the effects of development on the environment (including managing the use of premises).
  1. [127]
    In replacing the IPA, The purpose of the SPA set out in section 3 is similar but slightly wider with more of an emphasis on accountability: -

“3 Purpose of Act

The purpose of this Act is to seek to achieve ecological sustainability by—

  1. (a)
    managing the process by which development takes place, including ensuring the process is accountable, effective and efficient and delivers sustainable outcomes; and
  2. (b)
    managing the effects of development on the environment, including managing the use of premises; and
  3. (c)
    continuing the coordination and integration of planning at the local, regional and State levels.”
  1. [128]
    The purpose of the VMA is set out in section 3: -

“3 Purpose of Act

  1. The purpose of this Act is to regulate the clearing of vegetation in a way that—
  1. conserves remnant vegetation that is—
  1. (i)
    an endangered regional ecosystem; or
  2. (ii)
    an of concern regional ecosystem; or
  3. (iii)
    a least concern regional ecosystem; and
  1. (b)
    conserves vegetation in declared areas; and
  2. (c)
    ensures the clearing does not cause land degradation; and
  3. (d)
    prevents the loss of biodiversity; and
  4. (e)
    maintains ecological processes; and
  5. (f)
    manages the environmental effects of the clearing to achieve the matters mentioned in paragraphs (a) to (e); and
  6. (g)
    reduces greenhouse gas emissions; and (h) allows for sustainable land use.”
  1. [129]
    The objects of the Land Act 1994 (Qld) are set out in section 4 as follows: -

“4 Object of this Act

In the administration of this Act, land to which this Act, applies must be managed for the benefit of the people of Queensland by having regard to the following principles—

Sustainability

  • sustainable resource use and development to ensure existing needs are met and the State’s resources are conserved for the benefit of future generations

Evaluation

  • land evaluation based on the appraisal of land capability and the consideration and balancing of the different economic, environmental, cultural and social opportunities and values of the land

Development

  • allocating land for development in the context of the State’s planning framework, and applying contemporary best practice in design and land management
  • when land is made available, allocation to persons who will facilitate its most appropriate use that supports the economic, social and physical wellbeing of the people of Queensland

Community purpose

  • if land is needed for community purposes, the retention of the land for the community in a way that protects and facilitates the community purpose

Protection

  • protection of environmentally and culturally valuable and sensitive areas and features

Consultation

  • consultation with community groups, industry associations and authorities is an important part of the decision-making process

Administration

  • consistent and impartial dealings
  • efficient, open and accountable administration
  • a market approach in land dealings, adjusted when appropriate for community benefits arising from the dealing.”
  1. [130]
    Perhaps because of the time that has elapsed since the Act came into force, and the drafting style used, the Property Law Act 1974 (Qld) does not contain and objects or purposes provisions as do more modern enactments. Despite this it’s purpose may be gleaned from it’s long title: -

“An Act to consolidate, amend, and reform the law relating to conveyancing, property, and contract, to terminate the application of certain statutes, to facilitate the resolution of financial matters at the end of a de facto relationship, and for other purposes.”

  1. [131]
    The objects of the Land Title Act 1994 (Qld) is set out in section 3 as follows: -

“3 Object of Act

The object of this Act is to consolidate and reform the law about the registration of freehold land and interests in freehold land and, in particular—

  1. to define the rights of persons with an interest in registered freehold land; and
  2. to continue and improve the system for registering title to and transferring interests in freehold land; and
  3. to define the functions and powers of the registrar of titles; and
  4. to assist the keeping of the registers in the land registry, particularly by authorising the use of information technology.”
  1. [132]
    The purpose of the Legislative Standards Act 1992 (Qld) is set out in section 3 as: -

“3 Purposes of Act

  1. (1)
    The purposes of this Act include ensuring that— 
  1. Queensland legislation is of the highest standard; and 
  2. an effective and efficient legislative drafting service is provided for Queensland legislation; and 
  3. Queensland legislation, and information relating to Queensland legislation, is readily available. 
  1. (2)
    The purposes are primarily to be achieved by establishing the Office of the Queensland Parliamentary Counsel with the functions set out in section 7.” 
  1. [133]
    The purpose of the Land Title Practice Manual as outlined in the “Introduction Section” is to: - 

“(provide) information and guidance to industry practitioners conducting business with the Titles Registry (also known as the Land Registry and the Titles Office)”

  1. [134]
    In Dore v. State of Queensland & Anor [2004] QDC 364 it was held at paragraph [20] that: -
  1. "[20]
    In Queensland the Constitution Act 1867 give the Executive power, with the advice and consent of the Legislative Assembly, to “make laws for the peace, welfare and good government of the colony in all cases whatsoever.” These words have traditionally been used to confer “the widest legislative powers appropriate to a sovereign: Union Steamship Co. of Australia Pty Ltd v. King [1988] HCA 55.”
  1. [135]
    In Burns v. Queensland [2006] QCA 235, Jerrard JA, in quoting the Chief Justice at paragraph [5] of Burns v. State of Queensland and Croton [2006] QCA 235 said at [18]: -
  1. "[18]
    … the sovereign law making power of the Queensland Parliament, considered in a somewhat similar context in the decision in Bone v Mothershaw, included the power to impose upon Mrs Burns the requirement that she have a development permit prior to changing the complexion or presentation of her land by clearing it. He remarked that in a different though analogous way, the Parliament was clearly empowered to authorise planning schemes which restricted what the owners of estates in fee simply might lawfully do with that land…”
  1. [136]
    It would therefore appear unarguable that in respect of each of the above Acts, having regard to the High Court’s interpretation of the width of the power of the executive to make legislation as authorised by provisions similar to section 2 of the Constitution Act 1867 (Qld), that the above Acts are within the law-making power of the Legislative Assembly of Queensland. It would also seem to be the case that both the Supreme Court at first instance and the Court of Appeal clearly acknowledge that State Parliament specifically has the power to pass legislation that restrict what owners of estates in fee simply may lawfully do with their land. Jerrard JA set out the possible consequences if the Parliament did not have such a power in Burns v. Queensland [2006] QCA 235 in [18]: -

“ … If this challenge is correct … Any such title holder could build, clear, or grow what they pleased; which activities would include growing cannabis, opium poppy, or noxious weeds, destroying historic buildings, or constructing buildings of any kind wherever they pleased.”

  1. [137]
    The defendants in their submissions do not appear to set out with any particularity what the alleged inconsistencies between the various Acts actually are. With the exception of the IPA and the SPA, an examination of the objects, purposes or long title of the above enactments would appear to indicate their purposes or objects are quite different and therefore not inconsistent.
  1. [138]
    Any submission that “the State of Queensland has acquired … an incident of tenure of the defendant’s real property” or that the state failed to engage sections 4(3)(i)  of the Legislative Standards Act 1992 (Qld) is dealt with in section 4 above.
  1. [139]
    Any additional argument that the IPA, SPA and VMA breach of sections (4)(3)(b), (4)(3)(f), or (4)(3)(g) of the Legislative Standards Act 1992 (Qld) has again not descended into particulars concerning how those enactments have breached those particular sections. Nevertheless, the comments of the then Chief Justice at paragraph [7] of Burns v. State of Queensland [2004] QSC 434 whilst specifically referring to section 4(3)(g)  also apply generally to the other provisions of the Legislative Standards Act 1992 (Qld) in question: -
  1. "[7]
    … As to s 4(3)(g) of the Legislative Standards Act, and the contention that this requirement to obtain a permit adversely affected Mrs Burns rights, or imposed an obligation, retrospectively, the circumstance that she acquired the land before the obligation was statutorily introduced does not mean that the statute is to be regarded as operating retrospectively in relation to her: the burden was imposed on her prospectively from its enactment. It was a burden upon her, not the land. See Bone v Mothershaw para 25 per McPherson JA… “
  1. [140]
    The submissions that the form and substance of the IPA, SPA and VMA as drafted by the Queensland Parliamentary Counsel calls into question the integrity of that office is not a submission for this court to respond to in any way. In contrast to the Supreme Court (section 58 Queensland Constitution 2001), the Magistrates Court is a court of limited jurisdiction: section 22A Justices Act 1886 (Qld). Section 146 (1) of the Justices Act 1886 (Qld) sets out the duty of a Magistrates Court subsequent to a plea of “Not Guilty” being entered to a charge of an offence by a defendant: -

“146 Where defendant pleads not guilty

  1. If the defendant pleads not guilty then the court may— 
  1. (a)
    proceed to hear the complainant and the complainant's witnesses, and the defendant and the defendant's witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant's general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require; or 
  2. (b)
    upon good reason appearing therefor, before any evidence is adduced, adjourn the hearing.”
  1. [141]
    The Magistrates Court has no general jurisdiction to enquire into the operations of an agency of government. Should there be any issue with the administration of the Queensland Parliamentary Counsel’s office, that is a matter for the organs of the executive arm of government.

5.     The prosecution did not verify the charge areas by physical inspection.

  1. [142]
    The defence argues that the investigator, in carrying out the site inspection on 29th April 2015, did not verify, by visual or any other “ground truth” methods, the perimeter or regions contained within each of the charge areas. Nor did the investigator visually inspect each individual charge area polygon. In total, the defence says that there was approximately 6.28 hectares inspected by Mr. Batstone, approximately .341 per cent of the total charged areas combined of 1,838.3 hectares. The defence concludes that a detailed analysis of such a small area could not possibly produce an accurate assessment sufficient upon which to base a criminal prosecution.
  1. [143]
    The primary evidence that demonstrates that clearing took place at each of the charge areas during the time period alleged in the complaints was the oral evidence and documents produced by the witness Bruce Goulevich. This was presented at the trial through the ‘slide show’ presentation involving the documents BMG 4 and BMG 5. These documents were a collection of maps and satellite images.
  1. [144]
    The page references for the oral evidence given by Mr. Goulevitch which that dealt with each of the charge area was as follows: -
  • Charge 1 – Area on 7LO70 (marked in blue on charge maps) cleared between 21/04/2013 and 29/08/2013 – The evidence of Bruce Goulevitch at pages 24 to 31 and 61 to 63 on day 1;
  • Charge 2 – Area on 4LO73 (marked in yellow on charge maps) cleared between 11/08/2013 and 20/01/2014 – The evidence of Bruce Goulevitch at pages 31 to 40 and 63 to 64 on day 1;
  • Charge 3 – Area on 7LO70 (marked in pale green on charge maps) cleared between 11/01/2014 and 10/04/2014- The evidence of Bruce Goulevitch at pages 40 to 46 and 64 of day 1;
  • Charge 4 – Area on 7LO70 (marked in dark green on charge maps) cleared between 26/05/2014 and 29/06/2014 – The evidence of Bruce Goulevitch at pages 46 to 50 and 64 of day 1;
  • Charge 5 – Area on 7LO70 (marked in pink on charge maps) cleared between 13/07/2014 to 13/04/2015 – The evidence of Bruce Goulevitch at pages 50 to 52 and 64 to 65 of day 1.
  • Charge 6 – Area on 7LO70 (marked in orange on charge maps) cleared between 22/02/2015 and 29/05/2015 – The evidence of Bruce Goulevitch in relation to charge 6 is at pages 52 to 57 and 65 to 66 of day 1.
  1. [145]
    The evidence of Seamus Batstone and Christopher Holeszko concerning the inspections carried out on 14th November 2014 and 29th April 2015 and the photographs they took were corroborative of the satellite imagery and aerial photography contained in documents BMG 4 and BMG 5 and the oral evidence given by Mr. Goulevitch. The evidence was in no way designed to duplicate the work of Mr. Goulevitch. The preliminary inspection conducted on 14th November 2014 was at only four locations looking from the roadside into Lot 4 and Lot 7. Whilst physically attending the property on 29th April 2015 and inspecting nine sites on Lot 4 and Lot 7, for which GPS readings were taken, the purpose of the inspections was to confirm that several of the areas within a number of the charge boundaries as contained within exhibit 42 had been cleared by human intervention as follows: -
  • Site 1 – Map F2 – Charge area 2;
  • Site 2 – Map F3 – Charge area 2;
  • Site 3 – Map F4 – Charge area 2;
  • Site 4 – Map F5 – Charge area 6;
  • Site 5 – Map F6 – Charge areas 1 and 3;
  • Site 6 – Map F7 – Charge area 5; Site 7 – Map F8 – Charge area 5;
  • Site 8 – Map F9 – Charge area 5;
  • Site 9 – Map F10 – Charge area 5.
  1. [146]
    As can be seen from the sites visited, the exercise was not designed to systematically traverse all of the charge areas. The purpose of the visit was to physically attend a number of the charge areas to “sample” the conditions at each site such as to detect the presence or otherwise of native vegetation and it’s condition. 

6.     The search warrant was defective.

  1. [147]
    It is common ground that exhibit 20, the search warrant dated 24th April 2015 used to authorise the departmental officers entry onto the property “Wyrapa” on 29th April 2015 contained a boxed field for which the issuing magistrate’s name could be inserted, but was left blank. The defendants argue that Mr. Holeszko representing the department, entered upon the “Wyrapa” property in the full knowledge that the warrant was defective. The defendants submit that there was no emergency that required those officers to enter the defendants’ property. The defendants point out that the Department’s investigation had been ongoing for the better part of two years. On the day, or the day before the departmental officers decided to come out, it was Mr. Holeszko’s evidence that he became aware that the warrant was defective. As such, argues the defendants, any evidence gathered by virtue of the warrant should be excluded from consideration by the court in the exercise of it’s discretion based on the illegality of the actions of the investigators.
  1. [148]
    Section 33 of the VMA sets out the minimum requirements for a search warrant. It relevantly provides: -

“Issue of warrant

  1. (1)
    The magistrate may issue a warrant only if the magistrate is satisfied there are reasonable grounds for suspecting— 
  1. there is a particular thing or activity (the evidence) that may provide evidence of a vegetation clearing offence; and 
  2. the evidence is at the place, or, within the next 7 days, may be at the place. 
  1. (2)
    The warrant must state— 
  1. that any authorised officer or stated authorised officer may, with necessary and reasonable help and force— 
  1. enter the place and any other place necessary for the entry; and 
  2. exercise the authorised officer's powers under this division; and 
  1. (b)
    the offence for which the warrant is sought; and 
  2. (c)
    the evidence that may be seized under the warrant; and 
  3. (d)
    the hours of the day or night when the place may be entered; and 
  4. (e)
    the date, within 14 days after the warrant's issue, the warrant ends. 
  1. (3)
    The warrant may, as well as authorising entry of the place, authorise re-entry by stating it on the warrant.
  1. (4)
    A provision of this part applying to entry authorised under a warrant is taken also to apply to any re-entry authorised under the warrant.” 
  1. [149]
    An examination of exhibit 20 would appear to indicate that the search warrant complies with the provisions of section 33(2) of the VMA. 
  1. [150]
    This very issue has been examined by the Queensland Supreme Court in relation to section 156 of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’). That section sets out the minimum information required to be contained within a search warrant issued under that Act and is in very similar terms to section 33 of the VMA. At paragraph [30] of Wright v. Queensland Police Service [2002] QSC 046, Her Honour Homes J., as Her Honour then was, held that there is no reason to suppose that the matters set out in the section do not constitute a complete list: Ousley v. R. (1997) 192 CLR 69 at 83, 111, 128. The assumption being that “when a legislature specifies what must appear in a warrant, it intends its statement to be exhaustive of the matter which the warrant must disclose” (Ousley at CLR 111).
  1. [151]
    In the circumstances of that case where the application for warrant was made by phone under section 800 of the PPRA, it was held that the absence from the copy of the search warrant provided to the occupier of the section 800(1)(b) details as to the name of the issuer and the date and time of issue did not amount to an invalidating defect. In so deciding Homes J, observed that even on the wider view of Gaudron J, in Ousley at CLR 94, that the warrant must state those matters on which it’s validity depends and those which define the extent of the authority conferred, it was difficult to see how those details could affect the ability of those against whom it was executed to ascertain the scope of the authority conferred by it or the jurisdiction by which it was issued.
  1. [152]
    Her Honour observed that in determining the validity of the search warrant, regard must be had to the fact that the Legislature did not see fit to include in (the legislation) the requirement for the name of the issuing magistrate to be endorsed on the search warrant as a minimum for it’s validity. It therefore follows in the present analogous case that the absence of the issuing magistrate’s name endorsed on exhibit 20, the search warrant issued on 24th April 2015, did not invalidate it, or render illegal the entry and search of the property “Wyrapa” on 29th April 2015 by departmental officers on that ground.
  1. [153]
    There is therefore no need for the court to consider whether it should exercise it’s discretion to exclude evidence obtained by virtue of the authority of the search warrant in accordance with principles outlined in High Court authorities such as Bunning v. Cross (1978) 141 CLR 54 or more recent Queensland Supreme Court cases such as R. v. Versac (2013) QSC 46.

7.    Series of questions asked by defendants at pages 6-61.03 to 6-61.33 and 6-62.45 to 6-63.04 of the transcript of 27th April 2017.

  1. [154]
    The defendants say that the court, in considering it’s reasons for judgment for the proceeding must consider the answer to some fundamental questions.  These start with the question “Is the complainant, the Department of Natural Resources and Mines, responsible for the administration of real property in Queensland?” There are then a series of some nine questions finishing with the question, ‘‘Is it appropriate that I and my family should be burdened with any form of penalty as a result of my providing appropriate care?”
  1. [155]
    As stated above, the court’s function in this proceeding is identified by section 146 of the Justices Act 1886 (Qld). If a plea of “Not Guilty” is entered by a defendant, then the court is required to hear the complainant and the complainant's witnesses, and the defendant and the defendant's witnesses, and upon consideration of all the evidence adduced, determine the matter as justice may require”. It has no jurisdiction to entertain or consider “answers to fundamental questions” or to undertake any form of general enquiry.
  1. [156]
    The issues raised by the defendants’ questions are largely policy issues. As an organ of the judicial arm of government, the court is required to hear and determine the charges preferred against the defendants and nothing else. The issues raised by the defendants are matters potentially for the legislative and executive arms of government and those whose function it is to formulate government policy and frame the law, which is beyond the scope of this proceeding and the powers of this court, as a court of limited jurisdiction.

CONCLUSION

  1. [157]
    The court accepts the evidence of all the prosecutions witnesses as being forthright, reliable, accurate and credible. Upon a consideration of all of the evidence adduced in this proceeding and the submissions of the parties, the court is satisfied of the following matters of fact beyond reasonable doubt in respect of the defendant Daniel James McDonald: -

Charge One

  1. Daniel James McDonald was the registered owner of a parcel of land described as Lot 7 on Crown Plan LO70 and situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 7”);
  2. Lot 7 was jointly owned with Katrina Ann McDonald as joint tenants;
  3. Lot 7 was freehold land;
  4. Lot 7 was approximately 6,676 hectares in size;
  5. Daniel James McDonald, with Katrina Ann McDonald, was also the joint registered owner of an adjacent freehold parcel of land described as Lot 4 on Crown Plan LO73 situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 4”);
  6. Lot 7 and Lot 4 were collectively known as “Wyrapa”;
  7. Daniel James McDonald carried out development, namely operational work, within the meaning of those terms in the Act;
  8. The development consisted of the clearing of approximately one hundred and seventy four point eight (174.8) hectares of vegetation within the meaning of those terms in the Vegetation Management Act 1999 (“the VMA”), on Lot 7 in the area at the approximate place marked “Map A1” on the attached map titled “Complaint  Map A – Overview of Charge Areas 1 to 6” and located in the approximate areas marked “Charge01 a” and “Charge01 b” on the attached overview map titled “Complaint Map A1 – Overview of Charge Areas 1, 3, 4 and 6”;
  9. The vegetation that was cleared was native vegetation, within the meaning of the term in the Act, namely vegetation under the VMA, and was classified as remnant vegetation, within the meaning of that term in the VMA;
  10. Lot 7 was cleared of native vegetation all of which was classified as least concern regional ecosystem as defined by the VMA;
  11. The clearing was undertaken by mechanical means;
  12. The clearing was not clearing, or for an another activity or matter, mentioned in Schedule 24, Part 1 of the Regulation or clearing mentioned in Schedule 24, Part 2 of the Regulation;
  13. The development did not occur on premises to which structure plan arrangements applied;
  14. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development;
  15. The development was not carried out under section 342(3) of the Act; and
  16. The development was not authorised by an effective development permit, within the meaning of that term in the Act.

Charge 2

  1. Daniel James McDonald was the registered owner of a parcel of land described as Lot 4 on Crown Plan LO73 and situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 4”);
  2. Lot 4 was jointly owned with Katrina Ann McDonald as joint tenants;
  3. Lot 4 was freehold land;
  4. Lot 4 was approximately 7,051 hectares in size;
  5. Daniel James McDonald, with Katrina Ann McDonald, was also the joint registered owner of an adjacent freehold parcel of land described as Lot 7 on Crown Plan LO70 situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 7”);
  6. Lot 7 and Lot 4 were collectively known as “Wyrapa”;
  7. Daniel James McDonald carried out development, namely operational work, within the meaning of those terms in the Act;
  8. The development consisted of the clearing of approximately four hundred and thirteen point three (413.3) hectares of vegetation within the meaning of those terms in the Vegetation Management Act 1999 (“the VMA”), on Lot 4 in the area at the approximate place marked “Map A2” on the attached map titled “Complaint  Map A – Overview of Charge Areas 1 to 6” and located in the approximate areas marked “Charge02 a”, “Charge02 b”, “Charge02 c”, “Charge02 d”, “Charge02 e”, “Charge02 f” and “Charge02 g” on the attached overview map titled “Complaint Map A2 – Overview of Charge Areas 2”;
  9. The vegetation that was cleared was native vegetation, within the meaning of the term in the Act, namely vegetation under the VMA, and was classified as remnant vegetation, within the meaning of that term in the VMA;
  10. Lot 7 was cleared of native vegetation all of which was classified as least concern regional ecosystem as defined by the VMA;
  11. The clearing was undertaken by mechanical means;
  12. The clearing was not clearing, or for an another activity or matter, mentioned in Schedule 24, Part 1 of the Regulation or clearing mentioned in Schedule 24, Part 2 of the Regulation;
  13. The development did not occur on premises to which structure plan arrangements applied;
  14. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development;
  15. The development was not carried out under section 342(3) of the Act; and
  16. The development was not authorised by an effective development permit, within the meaning of that term in the Act.

Charge 3

  1. Daniel James McDonald was the registered owner of a parcel of land described as Lot 7 on Crown Plan LO70 and situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 7”);
  2. Lot 7 was jointly owned with Katrina Ann McDonald as joint tenants;
  3. Lot 7 was freehold land;
  4. Lot 7 was approximately 6,676 hectares in size;
  5. Daniel James McDonald, with Katrina Ann McDonald, was also the joint registered owner of an adjacent freehold parcel of land described as Lot 4 on Crown Plan LO73 situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 4”);
  6. Lot 7 and Lot 4 were collectively known as “Wyrapa”;
  7. Daniel James McDonald carried out development, namely operational work, within the meaning of those terms in the Act;
  8. The development consisted of the clearing of approximately one hundred and ninety three point three (193.3) hectares of vegetation within the meaning of those terms in the Vegetation Management Act 1999 (“the VMA”), on Lot 7 in the area at the approximate place marked “Map A1” on the attached map titled “Complaint  Map A – Overview of Charge Areas 1 to 6” and located in the approximate areas marked “Charge03 a”, “Charge03 b”, Charge03 c”, “Charge03 d” and “Charge03 e” on the attached overview map titled “Complaint Map A1 – Overview of Charge Areas 1, 3, 4 and 6”;
  9. The vegetation that was cleared was native vegetation, within the meaning of the term in the Act, namely vegetation under the VMA, and was classified as remnant vegetation, within the meaning of that term in the VMA;
  10. Lot 7 was cleared of native vegetation all of which was classified as least concern regional ecosystem as defined by the VMA;
  11. The clearing was undertaken by mechanical means;
  12. The clearing was not clearing, or for an another activity or matter, mentioned in Schedule 24, Part 1 of the Regulation or clearing mentioned in Schedule 24, Part 2 of the Regulation;
  13. The development did not occur on premises to which structure plan arrangements applied;
  14. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development;
  15. The development was not carried out under section 342(3) of the Act; and
  16. The development was not authorised by an effective development permit, within the meaning of that term in the Act.

Charge 4

  1. Daniel James McDonald was the registered owner of a parcel of land described as Lot 7 on Crown Plan LO70 and situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 7”);
  2. Lot 7 was jointly owned with Katrina Ann McDonald as joint tenants;
  3. Lot 7 was freehold land;
  4. Lot 7 was approximately 6,676 hectares in size;
  5. Daniel James McDonald, with Katrina Ann McDonald, was also the joint registered owner of an adjacent freehold parcel of land described as Lot 4 on Crown Plan LO73 situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 4”);
  6. Lot 7 and Lot 4 were collectively known as “Wyrapa”;
  7. Daniel James McDonald carried out development, namely operational work, within the meaning of those terms in the Act;
  8. The development consisted of the clearing of approximately sixteen point nine (16.9) hectares of vegetation within the meaning of those terms in the Vegetation Management Act 1999 (“the VMA”), on Lot 7 in the area at the approximate place marked “Map A1” on the attached map titled “Complaint  Map A – Overview of Charge Areas 1 to 6” and located in the approximate areas marked “Charge04 a” on the attached overview map titled “Complaint Map A1 – Overview of Charge Areas 1, 3, 4 and 6”;
  9. The vegetation that was cleared was native vegetation, within the meaning of the term in the Act, namely vegetation under the VMA, and was classified as remnant vegetation, within the meaning of that term in the VMA;
  10. Lot 7 was cleared of native vegetation all of which was classified as least concern regional ecosystem as defined by the VMA;
  11. The clearing was undertaken by mechanical means;
  12. The clearing was not clearing, or for an another activity or matter, mentioned in Schedule 24, Part 1 of the Regulation or clearing mentioned in Schedule 24, Part 2 of the Regulation;
  13. The development did not occur on premises to which structure plan arrangements applied;
  14. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development;
  15. The development was not carried out under section 342(3) of the Act; and
  16. The development was not authorised by an effective development permit, within the meaning of that term in the Act.

Charge 5 

  1. Daniel James McDonald was the registered owner of a parcel of land described as Lot 7 on Crown Plan LO70 and situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 7”);
  2. Lot 7 was jointly owned with Katrina Ann McDonald as joint tenants;
  3. Lot 7 was freehold land;
  4. Lot 7 was approximately 6,676 hectares in size;
  5. Daniel James McDonald, with Katrina Ann McDonald, was also the joint registered owner of an adjacent freehold parcel of land described as Lot 4 on Crown Plan LO73 situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 4”);
  6. Lot 7 and Lot 4 were collectively known as “Wyrapa”;
  7. Daniel James McDonald carried out development, namely operational work, within the meaning of those terms in the Act;
  8. The development consisted of the clearing of approximately one thousand and four point one (1004.1) hectares of vegetation within the meaning of those terms in the Vegetation Management Act 1999 (“the VMA”), on Lot 7 in the area at the approximate place marked “Map A3” on the attached map titled “Complaint  Map A – Overview of Charge Areas 1 to 6” and located in the approximate areas marked “Charge05 a”, “Charge05 b”, “Charge05 c”, “Charge05 d”, “Charge05 e”, “Charge05 f”, “Charge05 g”, “Charge05 h”, “Charge 05 i”, “Charge05 j”, “Charge05 k”, “Charge05 l”, “Charge 05 m”, “Charge 05 n”, “Charge05 o”, “Charge05 p”, “Charge05 q” “Charge05 r”, and “Charge05 s” on the attached overview map titled “Complaint Map A3 – Overview of Charge Area 5”;
  9. The vegetation that was cleared was native vegetation, within the meaning of the term in the Act, namely vegetation under the VMA, and was classified as remnant vegetation, within the meaning of that term in the VMA;
  10. Lot 7 was cleared of native vegetation all of which was classified as least concern regional ecosystem as defined by the VMA;
  11. The clearing was undertaken by mechanical means;
  12. The clearing was not clearing, or for an another activity or matter, mentioned in Schedule 24, Part 1 of the Regulation or clearing mentioned in Schedule 24, Part 2 of the Regulation;
  13. The development did not occur on premises to which structure plan arrangements applied;
  14. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development;
  15. The development was not carried out under section 342(3) of the Act; and
  16. The development was not authorised by an effective development permit, within the meaning of that term in the Act.

Charge 6

  1. Daniel James McDonald was the registered owner of a parcel of land described as Lot 7 on Crown Plan LO70 and situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 7”);
  2. Lot 7 was jointly owned with Katrina Ann McDonald as joint tenants;
  3. Lot 7 was freehold land;
  4. Lot 7 was approximately 6,676 hectares in size;
  5. Daniel James McDonald, with Katrina Ann McDonald, was also the joint registered owner of an adjacent freehold parcel of land described as Lot 4 on Crown Plan LO73 situated at Boondoon Road, approximately 120 kilometres north-west of Charleville in the State of Queensland (“Lot 4”);
  6. Lot 7 and Lot 4 were collectively known as “Wyrapa”;
  7. Daniel James McDonald carried out development, namely operational work, within the meaning of those terms in the Act;
  8. The development consisted of the clearing of approximately thirty five point nine (35.9) hectares of vegetation within the meaning of those terms in the Vegetation Management Act 1999 (“the VMA”), on Lot 7 in the area at the approximate place marked “Map A1” on the attached map titled “Complaint  Map A – Overview of Charge Areas 1 to 6” and located in the approximate areas marked “Charge06 a”, “Charge06 b”, “Charge06 c”, “Charge06 d”, “Charge06 e”, “Charge06 f”, “Charge06 g”, “Charge06 h”, “Charge06 i”, “Charge06 j”, “Charge06 k”, “Charge06 l”, “Charge06 m”, on the attached overview map titled “Complaint Map A1 – Overview of Charge Areas 1, 3, 4 and 6”;
  9. The vegetation that was cleared was native vegetation, within the meaning of the term in the Act, namely vegetation under the VMA, and was classified as remnant vegetation, within the meaning of that term in the VMA;
  10. Lot 7 was cleared of native vegetation all of which was classified as least concern regional ecosystem as defined by the VMA;
  11. The clearing was undertaken by mechanical means;
  12. The clearing was not clearing, or for an another activity or matter, mentioned in Schedule 24, Part 1 of the Regulation or clearing mentioned in Schedule 24, Part 2 of the Regulation;
  13. The development did not occur on premises to which structure plan arrangements applied;
  14. No exemption pursuant to Chapter 7, Part 3, Subdivision 2 of the Act applied to the development;
  15. The development was not carried out under section 342(3) of the Act; and
  16. The development was not authorised by an effective development permit, within the meaning of that term in the Act.
  1. [158]
    The court is therefore satisfied that the prosecution has proven all of the essential elements of each of the six offences of carrying out assessable development without an effective development permit contrary to section 578(1) of the Sustainable Planning Act 2009 (Qld), charged against Mr. Daniel James McDonald. The court is also satisfied that the prosecution has negatived beyond reasonable doubt any applicable exculpatory provision to any of the six offences charged beyond a reasonable doubt.
  1. [159]
    In respect of the defendant Katrina Ann McDonald, the court is not satisfied that prosecution has proven all of the essential elements of the six offences of carrying out assessable development without an effective development permit contrary to section 578(1) of the Sustainable Planning Act 2009 (Qld) beyond reasonable doubt. In particular, for the reasons expressed above, the court is not satisfied that the prosecution has proven the essential element that Mrs. McDonald “carried out” the clearing of the native vegetation in the charge areas. Even with the benefit of the extended criminal liability provisions of section seven of the Criminal Code 1899 (Qld), the court is not satisfied beyond reasonable doubt that Mrs. McDonald’s involvement in the offences are such as to reach the level of attracting criminal liability pursuant to section 7(c) or 7(d) of the Criminal Code 1899 (Qld).

COURT ORDERS

  1. [160]
    It is the orders of the court that: -
  1. The defendant Daniel James McDonald be found “GUILTY” of each of the six offences of carrying out assessable development without an effective development permit contrary to section 578(1) of the Sustainable Planning Act 2009 (Qld);
  1. The defendant Katrina Ann McDonald be found “NOT GUILTY” of each of the six offences of carrying out assessable development without an effective development permit contrary to section 578(1) of the Sustainable Planning Act 2009 (Qld). The six changes preferred against Katrina Ann McDonald are dismissed and Katrina Ann McDonald is discharged;
  1. The court will hear from the prosecution and Daniel James McDonald further in relation to the question of penalty for the offences for which Mr. McDonald has been found “GUILTY”.
Close

Editorial Notes

  • Published Case Name:

    Christopher Holeszko v Daniel McDonald and Katrina McDonald (No.2)

  • Shortened Case Name:

    Christopher Holeszko v Daniel McDonald and Katrina McDonald (No.2)

  • MNC:

    [2017] QMC 23

  • Court:

    QMC

  • Judge(s):

    Hasted M

  • Date:

    10 Aug 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bone v Mothershaw[2003] 2 Qd R 600; [2002] QCA 120
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 600
Cite 2 - [2003] 2 Qd R 600
Bunning v Cross (1978) 141 CLR 54
2 citations
Jump To
Cite 1 - (1978) 141 CLR 54
Cite 2 - (1978) 141 CLR 54
Burns v State of Queensland [2004] QSC 434
2 citations
Jump To
Cite 1 - [2004] QSC 434
Cite 2 - [2004] QSC 434
Burns v State of Queensland [2006] QCA 235
5 citations
Jump To
Cite 1 - [2006] QCA 235
Cite 2 - [2006] QCA 235
Cite 3 - [2006] QCA 235
Cite 4 - [2006] QCA 235
Cite 5 - [2006] QCA 235
Dore v Penny [2006] QSC 125
2 citations
Jump To
Cite 1 - [2006] QSC 125
Cite 2 - [2006] QSC 125
Dore v State of Queensland [2004] QDC 364
1 citation
Jump To
Cite 1 - [2004] QDC 364
Glasgow v Hall [2007] QCA 19
2 citations
Jump To
Cite 1 - [2007] QCA 19
Cite 2 - [2007] QCA 19
Hunt v Maloney; ex parte Hunt [1959] Qd R 164
2 citations
Jump To
Cite 1 - [1959] Qd R 164
Cite 2 - [1959] Qd R 164
Ousley v The Queen (1997) 192 CLR 69
2 citations
Jump To
Cite 1 - (1997) 192 CLR 69
Cite 2 - (1997) 192 CLR 69
R v Beck [1990] 1 Qd R 30
3 citations
Jump To
Cite 1 - [1990] 1 Qd R 30
Cite 2 - [1990] 1 Qd R 30
Cite 3 - [1990] 1 Qd R 30
R v Coney (1882) 8 QBD 534
2 citations
Jump To
Cite 1 - (1882) 8 QBD 534
Cite 2 - (1882) 8 QBD 534
R v F; ex parte Attorney-General[2004] 1 Qd R 162; [2003] QCA 70
2 citations
Jump To
Cite 1 - [2004] 1 Qd R 162
Cite 2 - [2004] 1 Qd R 162
R v Hawke [2016] QCA 144
2 citations
Jump To
Cite 1 - [2016] QCA 144
Cite 2 - [2016] QCA 144
R v Oberbillig [1989] 1 Qd R 342
1 citation
Jump To
Cite 1 - [1989] 1 Qd R 342
R v Roughan [2009] QCA 21
3 citations
Jump To
Cite 1 - [2009] QCA 21
Cite 2 - [2009] QCA 21
Cite 3 - [2009] QCA 21
R v Sherrington & Kuchler [2001] QCA 105
2 citations
Jump To
Cite 1 - [2001] QCA 105
Cite 2 - [2001] QCA 105
R v Versac [2013] QSC 46
2 citations
Jump To
Cite 1 - [2013] QSC 46
Cite 2 - [2013] QSC 46
R. v Oberbillig [1989] 1 Qd R 341
1 citation
Jump To
Cite 1 - [1989] 1 Qd R 341
Scriven v Sargent[2018] 1 Qd R 282; [2017] QCA 95
2 citations
Jump To
Cite 1 - [2017] QCA 95
Cite 2 - [2017] QCA 95
Stuart v The Queen (1974) 134 CLR 426
2 citations
Jump To
Cite 1 - (1974) 134 CLR 426
Cite 2 - (1974) 134 CLR 426
Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55
1 citation
Jump To
Cite 1 - [1988] HCA 55
Union Steamship Co. of Australia Pty Ltd v King (1988) 166 CLR 1
1 citation
Jump To
Cite 1 - (1988) 166 CLR 1
Watts v Ellis [2007] QCA 234
2 citations
Jump To
Cite 1 - [2007] QCA 234
Cite 2 - [2007] QCA 234
Wilson v Dobra (1995) 57 WALR 95
2 citations
Jump To
Cite 1 - (1995) 57 WALR 95
Cite 2 - (1995) 57 WALR 95
Wilson v Raddatz [2006] QCA 392
2 citations
Jump To
Cite 1 - [2006] QCA 392
Cite 2 - [2006] QCA 392
Wright v Queensland Police Service[2002] 2 Qd R 667; [2002] QSC 46
2 citations
Jump To
Cite 1 - [2002] QSC 46
Cite 2 - [2002] QSC 46

Cases Citing

Case NameFull CitationFrequency
McDonald v Holeszko [2018] QDC 20426 citations
McDonald v Holeszko [2019] QCA 285 17 citations
1

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