DISTRICT COURT OF QUEENSLAND
CITATION: Baker v Smith (No 1) [2019] QDC 76 MICHAEL VINCENT BAKER PARTIES: (appellant) v
BRIAN ARTHUR CONWAY SMITH(respondent) FILE NO/S: 4984 of 2016 DIVISION: Crime PROCEEDING: s 222 Appeal ORIGINATING District Court at Brisbane COURT: DELIVERED ON: 17 May 2019 DELIVERED AT: Brisbane HEARING DATE: 11-13 April 2018 27-30 August 2018 JUDGE: Porter QC DCJ ORDER: (1) The Court will hear the parties as to the proper form of ord orders.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT
– where appeal is brought under s 222 Justices Act 1886 (Qld) – whether error of law at trial is established. CRIMINAL LAW – PROCEDURE – JURISDICTION – where four separate complaints were brought to trial in the Magistrates Court in relation to alleged land clearing offences
– where the complaints made blanket averments excluding a range of exceptions to the offences – where certain complaints did not include certain particulars – whether the complaints articulated essential elements of an offence – whether the complaints were valid – whether the complaints attracted the
jurisdiction of the Magistrates Court. CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – where the statutory
regime contains an exemption where land clearing is performed for essential management – exemption where the trial judge commented that the “essential management” exemption to the offence is the only realistic exemption – whether trial judge’s comment reflected a failure to apply the
appropriate standard of proof – whether the trial judge erred in finding that the “essential management” exemption had been
excluded by the prosecution. CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – where the Forestry Act
1959 (Qld) contains exceptions for interference with forest products performed under and in compliance with statutory
authority – whether the defendant bears the onus of establishing the statutory authority exception – whether
interference with forest products performed under and in
compliance with statutory authority.CRIMINAL LAW – PROCEDURE – LIMITATION OF TIME FOR PROSECUTION – where statutory limitation
periods require proceedings to be instituted within certain time periods after the offence comes to the complainant’s knowledge – where the alleged offending occurred over a period of time – where the charges contained averments as to the date the alleged offending came to the complainant’s knowledge – at what point the complainant had reasonable grounds to believe that the offence had been committed – whether the averments comprised conclusive evidence –
whether the charges were brought after the expiry of statutory
limitation periods.EVIDENCE – ADMISSIBILITY – HEARSAY – where the prosecution relied upon mapping data published under the Survey and Mapping Infrastructure Act 2003 (Qld) – where mapping data was adjusted following further surveying –
where various mapping and geographical data was collated into an interactive database through specialised software – whether the mapping data was sufficiently accurate to sustain convictions in relation to charge areas on or near the
boundaries – whether the statutory status of certain mapping data was lost upon adjustment – whether the output of the
software comprised inadmissible documentary hearsay. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where expert evidence was given at trial – where certain evidence was alleged by the appellant to be inadmissible – where no objection was raised at trial –
whether a trial judge relying on inadmissible evidence tendered without objection amounts to an error of law – whether material unfairness arises from the admission of
inadmissible evidence tendered without objection.APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REAONS – where the trial judge’s reasons adopted in substance large parts of the prosecution submissions – whether the trial judge failed
to give adequate reasons for finding that the prosecution
excluded an exception to the alleged offending.Legislation Acts Interpretation Act 1954 (Qld), s 32A Criminal Code Act 1899 (Qld) s 564 Evidence Act 1977 (Qld), s 95 Forestry Act 1959 (Qld), s 33, s 39, s 54, s 63, s 88, s 95 Justices Act 1886 (Qld), s 46, s 47, s 76, s 222, s 223, s 225 Survey and Mapping Infrastructure Act 2003 (Qld), s 46, s 47, s 131
Sustainable Planning Act 2009 (Qld), s 7, s 10, s 231, s 342, s
578, s 584Sustainable Planning Regulations 2009 (Qld), reg 9, sched 3, sched 24, sched 26
Vegetation Management Act 1999 (Qld), s 3, s 19O, s 19P, s 20A, s 20AK, s 20AL, s 20AM, s 20AN, s 20AO, s 22LA, s 22LB, s 22LC, s 68, s 68A
Cases A Child v Andrews (1994) 12 WAR 552 Agius v R (2011) 80 NSWLR 486 Beavan v Wagner Industrial Services Pty Ltd [2017] QCA 246 Brinkworth v Dendy [2007] 97 SASR 416 Chugg v Pacific Dunlop (1990) 170 CLR 249 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 Conde v Gilfoyle [2010] QCA 109 Croft v Blair Unreported No. C.A. 275 of 1989, Queensland
Court of Criminal Appeal, 15 December 1989Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 De Bray v Cohen [2008] QDC 275 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 Fletcher Construction Australia Limited v Line MacFarlane & Marshall Pty Ltd (No. 2) [2002] 6 VR 1 Fox v Percy (2003) 214 CLR 118 Harrison v President of Industrial Court of Queensland [2017]
1 Qd R 515HG v The Queen (1999) 197 CLR 144 Hunt v Australian Associate Motor Insurers Ltd [2012] QCA
183John L Proprietary Limited v The Attorney-General for NSW (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Joseph v Morthington & Anor [2018] VSCA 102 Karimbala Construction Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56 Kirk v Industrial Court of New South Wales (2010) 239 CLR
531Kyluk v The Chief Executive NSWCCA [2013] 114 LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012)
203 FCR 166Macarone v McKeon [1986] 1 Qd R 284 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Marshall v Averay [2006] QDC 356 McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (No. 2) (2002) 54
NSWLR 39McDonald v Queensland Police Service [2017] QCA 255 McGregor Lowndes v Collector of Customs (1968) 11 FLR
349McKay v The King (1935) 54 CLR 1 MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 N K Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304 Nudd v R (2006) 225 ALR 161 Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QCA 333 Phillips v Spencer [2006] 2 Qd R 47 PQ v Australia Red Cross Society [1992] 1 VR 19 R v Ali (2005) 214 ALR 1 R v Birks (1990) 19 NSWLR 677 R v Fennell [2017] QCA 154 R v Hess [2008] QCA 48 R v Hinchey [2019] QCA 3 R v McPartland [2017] QCA 35 Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R
476Smith v Baldwin [1979] Qd R 380 Stevenson v Yasso [2006] 2 Qd R 150 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 Teelow v Commission of Police [2009] 2 Qd 489 TKWJ v The Queen (2002) 212 CLR 124 Vines v Djordjevitch (1955) 91 CLR 512 Walker v Hay [1973] QSCFC 9 Witheyman v Van Riet [2008] 2 Qd R 587 COUNSEL: G Allan, S Trewavas and A Thomas for the appellant J Hunter QC and G Dann for the respondent SOLICITORS: Marland Law for the appellant Department of Natural Resources and Mines for the respondent
Contents
SUMMARY .......................................................................................................................... 11
BACKGROUND .................................................................................................................. 13
Chess Park ........................................................................................................................ 13
The statutory framework: the Forestry Act offences ................................................... 13
The statutory framework: the SPA offences ................................................................. 18
The offence creating provision ..................................................................................... 18
Identifying assessable development .............................................................................. 19
Assessable development under the Regulations ........................................................... 20The VMA ....................................................................................................................... 26
Justices Act 1886 .............................................................................................................. 32
THE COMPLAINTS ........................................................................................................... 33
Complaint 1 ...................................................................................................................... 33
Complaint 2 ...................................................................................................................... 37
Complaint 3 ...................................................................................................................... 39
Complaint 4 ...................................................................................................................... 39
THE TRIAL ......................................................................................................................... 39
Overview of the prosecution case ................................................................................... 39
The course of evidence ..................................................................................................... 42
The parties’ submissions at trial ..................................................................................... 42
The written submissions................................................................................................ 42
The addresses ................................................................................................................ 44
Conviction, reasons and other orders ............................................................................ 45
| The | appeal......................................................................................................................... 46 |
THE TRIAL JUDGE’S REASONS ................................................................................... 47
The limitations issue and Mr Goulevitch’s evidence .................................................... 47
Her Honour’s consideration of Mr Dillewaard’s evidence .......................................... 53
Her Honour’s consideration of Mr Tran’s evidence .................................................... 55
The Forestry Act offences ............................................................................................... 57
The SPA offences: general............................................................................................... 58
The SPA offences: consideration of each charge .......................................................... 60
THE AMENDED NOTICE OF APPEAL ......................................................................... 61
Ground 1: Jurisdiction .................................................................................................... 61
Ground 2: Lack of jurisdiction to amend ...................................................................... 62
Ground 3: Reasons ........................................................................................................... 62
Ground 4: Essential management exemption not excluded ......................................... 62
Ground 5: Limitations issues .......................................................................................... 63
Ground 6: Forestry Act exemptions ............................................................................... 63
APPEALS UNDER S. 222 JUSTICES ACT ..................................................................... 64
GROUND 1: JURISDICTION (COMPLAINTS 2 AND 4 ONLY) ................................ 66
Summary of the appellant’s position.............................................................................. 66
Ground 1A ..................................................................................................................... 66
Ground 1 ........................................................................................................................ 67
Some general principles ................................................................................................... 67
Ground 1A: Complaints 2 and 4 identify an offence known to the law ...................... 72
The legal elements ......................................................................................................... 72
The necessary factual ingredients ................................................................................ 79Conclusion on Ground 1A ............................................................................................ 88
Ground 1: Particulars under s. 68A SPA ...................................................................... 89
Introductory comments ................................................................................................. 89
The appellant’s contentions .......................................................................................... 90
The respondent’s contentions ....................................................................................... 92
Analysis.......................................................................................................................... 93
Conclusion on Ground 1............................................................................................... 96
GROUND 2: JURISDICTION TO AMEND (COMPLAINTS 2 AND 4 ONLY) ......... 97
GROUND 4: EXCLUSION OF ESSENTIAL MANAGEMENT EXEMPTION .......... 97
Introduction ...................................................................................................................... 97
Ground 4/1A: Erroneous approach to burden of proof ............................................... 97
The parties’ contentions................................................................................................ 97
Analysis.......................................................................................................................... 98
Ground 4/1B: Errors in concluding essential management exception excluded........ 99
Introductory comments ................................................................................................. 99
Paragraph (a): protection of infrastructure ................................................................. 99
Paragraph (c): Imminent risk exception ................................................................... 103
Paragraph (e): Necessary to maintain infrastructure ............................................... 104Conclusion on Ground 4/1B ....................................................................................... 104
GROUND 5: LIMITATION DEFENCES (COMPLAINTS 1 AND 4) ........................ 104
Introductory comments ................................................................................................. 104
The appeal as it relates to Complaint 1 ...................................................................... 104
The appeal as it relates to Complaint 4 ...................................................................... 106The factual context...................................................................................................... 107
The appellant’s contentions .......................................................................................... 110
Relevant principles ...................................................................................................... 110
Impugned charges in Complaint 1 ............................................................................. 110Impugned charges in Complaint 4 ............................................................................. 112
The respondent’s contentions ....................................................................................... 113
Relevant principles ...................................................................................................... 113
Impugned charges in Complaint 1 ............................................................................. 114Impugned charges in Complaint 4 ............................................................................. 115
Analysis: Complaint 1.................................................................................................... 115
When the impugned charges came to the respondent’s knowledge .......................... 115
Charges 1 and 2 brought out of time .......................................................................... 117
Charges 4 and 5 brought within time ......................................................................... 117
Analysis: Complaint 4.................................................................................................... 121
GROUND 6: THE FORESTRY ACT OFFENCES ....................................................... 123
Introduction .................................................................................................................... 123
The statutory context ..................................................................................................... 123
The error by the prosecution at trial............................................................................ 123
The appellant’s contentions .......................................................................................... 124
The onus of proof ........................................................................................................ 124
Prosecution could not discharge the onus of proof on appeal .................................. 125
Respondent’s contentions .............................................................................................. 126
Analysis ........................................................................................................................... 126
The onus to exclude statutory authority ..................................................................... 126
Prosecution may contend that the defendant bears the onus on authority issues on
this appeal .................................................................................................................... 130 Authority under s. 39(1) is excluded on the evidence ................................................ 132
| Conclusion | ...................................................................................................................... 135 |
MESSRS GOULEVITCH, DILLEWAARD AND TRAN: GENERAL
OBSERVATIONS .............................................................................................................. 135
Introduction .................................................................................................................... 135
Relevant but inadmissible evidence .............................................................................. 136
The parties’ positions .................................................................................................. 136
Analysis of the authorities .......................................................................................... 137
Adequacy of the Amended Notice of Appeal: Goulevitch and Dillewaard............... 148
ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE RELIED UPON BY
GOULEVITCH .................................................................................................................. 149
Introductory comments ................................................................................................. 149
The computer records point .......................................................................................... 151
The appellant’s contentions ........................................................................................ 151
The respondent’s contentions ..................................................................................... 152
Analysis........................................................................................................................ 153
The DCDB point ............................................................................................................. 155
Some background to the DCDB ................................................................................. 155
The appellant’s contentions ........................................................................................ 160
The respondent’s contentions ..................................................................................... 161
Analysis........................................................................................................................ 162
The publication point ..................................................................................................... 166
The regional ecosystem map point ............................................................................... 166
CHALLENGES TO MR DILLEWAARD’S EVIDENCE ............................................. 167
| Background | .................................................................................................................... 167 |
Mr Dillewaard’s evidence.............................................................................................. 168
General evidence on methodology .............................................................................. 168
Specific evidence on Chess Park inspection .............................................................. 171Identifying the character of cleared vegetation ......................................................... 173
Cross examination....................................................................................................... 175
The appellant’s submissions.......................................................................................... 175
The respondent’s submissions ...................................................................................... 178
Analysis ........................................................................................................................... 179
Relevant principles ...................................................................................................... 179
What is the error alleged? ........................................................................................... 185
Sufficient to prove native vegetation was cleared? .................................................... 186
Some preliminary considerations ............................................................................... 187Mr Dillewaard’s methodology .................................................................................... 188
Mr Dillewaard’s reasoning for each charge .............................................................. 189
Other issues ................................................................................................................. 190
The regional ecosystem mapping point ........................................................................ 192
Appeal in relation to Mr Dillewaard’s evidence is dismissed .................................... 192
THE LOWEST COMMON DENOMINATOR ISSUE ................................................. 192
CHALLENGES TO MR TRAN’S EVIDENCE ............................................................. 193
Introduction .................................................................................................................... 193
Summary of Mr Tran’s evidence.................................................................................. 194
General evidence ......................................................................................................... 194
Evidence on Complaint 1 ............................................................................................ 197
Evidence on Complaint 2 ............................................................................................ 199
Evidence on Complaint 3 ............................................................................................ 203
Evidence on Complaint 4 ............................................................................................ 204Cross examination of Mr Tran ................................................................................... 207
Submissions at trial and her Honour’s reasons .......................................................... 213
Approach to the appellant’s submissions .................................................................... 214
Criticism of Mr Tran’s area of expertise ..................................................................... 215
Criticism relating to the factual basis for Mr Tran’s evidence ................................. 215
Criticism of Mr Tran’s evidence interpreting satellite images .................................. 216
Alleged inconsistency of evidence about existing fire trails ....................................... 216
Failure to produce at trial scientific papers referred to in evidence ......................... 217
Criticisms of the idealised fire plan .............................................................................. 218
Criticisms of the evidence as to width of fire trails ..................................................... 219
Failure to personally inspect ......................................................................................... 219
| Conclusion | ...................................................................................................................... 220 |
Ground 6 Issues .............................................................................................................. 220
GROUND 3: ADEQUACY OF REASONS ..................................................................... 221
Introduction .................................................................................................................... 221
Reasons on native forest practice ................................................................................. 222
The issue as litigated at trial ....................................................................................... 222
Relevant principles ...................................................................................................... 226
Appellant’s submissions .............................................................................................. 229 Respondent’s submissions .......................................................................................... 230
Analysis........................................................................................................................ 230
The “cut and paste” contention .................................................................................... 233
The extent of her Honour’s adoption of prosecution submissions on contentious
issues ............................................................................................................................ 233
The appellant’s submission ........................................................................................ 234
The respondent’s submission...................................................................................... 236
Reasons were adequate ............................................................................................... 236
Reasons for accepting experts ....................................................................................... 238
| Conclusion | ...................................................................................................................... 238 |
DISPOSITION ON THE APPEAL .................................................................................. 239
ANNEXURE A ................................................................................................................... 240
ANNEXURE B ................................................................................................................... 242
SUMMARY
[1] This is an appeal against conviction by the appellant, Mr Baker. He was convicted of 46 offences arising out of the clearing of vegetation on a rural property called Chess Park, near Eidsvold[1] in the North Burnett region. The charges fell into two categories.
[1] Named for Eidsvold Station, which was in turn named for Eidsvoll, Norway where the constitutional
[2] The first category of charges was charges arising under the Forestry Act 1959 (Qld) (the Forestry Act). Sections 39 and 54 prohibits, in general terms, interference with forest products on land regulated by the Forestry Act unless there is statutory authority to do so. The Forestry Act applied to three areas of land under the control of the defendant at the relevant times:
(a) Forest Entitlement Area 34 (FEA 34), an area on the western boundary of Chess Park; (b) Dyngie State Forest (DSF), an area enclosed by Chess Park; and (c) The Lone Pine Redbank road reserve on the boundary of the DSF and Chess Park (the road reserve). [3] The second category of charges was charges arising under the Sustainable Planning Act 2009 (Qld) (the SPA). Section 578(1) of the SPA, prohibited (relevantly in this appeal) clearing of native vegetation without a development permit. That prohibition was subject to various exemptions and exclusions.
The prosecution’s case was that Mr Baker:
(a) Cleared (or otherwise interfered with) forest products in each of the FEA 34 and the DSF in breach of s. 39 Forestry Act, and in the road reserve in breach of s. 54 Forestry Act. Seven charges were brought in two complaints in respect of distinct areas of clearing in those three areas; and (b) Cleared native vegetation without a development permit on the leasehold/freehold of Chess Park in breach of s. 578(1) SPA. Thirty-nine charges were brought in two complaints in respect of distinct areas of clearing. [5] At trial, Mr Baker put the prosecution to proof. He did not give or call evidence. In broad terms, the defence case was as follows:
(a) In respect of the Forestry Act offences, the prosecution had not excluded that the clearing was justified by the need to prepare for, and respond to, bush fire; (b) In respect of the SPA offences, that the prosecution had not excluded that the clearing was permitted as part of a native forest practice for the purpose of a forestry business or (under various statutory guises) had not excluded that the clearing was not justified on bushfire management grounds; and (c) That a number of the offences were statute barred. [6] The learned Magistrate heard evidence over 20 days in two tranches of hearings which took place between 15 February 2016 and 19 July 2016. The prosecution adduced mapping evidence derived from satellite imaging through a witness said to be expert in Geographical Information Systems (GIS) and surveying (Mr Goulevitch), expert botanical evidence (from Mr Dillewaard) and expert evidence on fire management and fire ecology (from Mr Tran). It also called a number of officers of the relevant department.
[7] Her Honour received very extensive written submissions and heard oral addresses on 17 August 2016. On 18 November 2016, she gave brief ex tempore reasons. She gave written reasons on 24 November 2016, which she later corrected for certain oversights identified by the appellant. Mr Baker was convicted of all 46 offences. Her Honour later dealt with sentence and costs.
[8] Mr Baker appealed all 46 convictions under s. 222 Justices Act 1886 (Qld). The issues arising on the appeal are numerous. They can be grouped generally under the following themes:
(a)
First, that the form of the complaints was such as to fail to attract the jurisdiction of the Court to hear and determine them under the Justices Act;
(b)
Second, that her Honour erred in concluding that certain offences were not statute barred;
(c) Third, that (for many distinct reasons) her Honour erred in accepting and acting on the evidence of the prosecution’s expert witnesses;
(d) Fourth, that her Honour erred by failing to give sufficient reasons; and (e) Fifth, there were a number of other discrete legal and factual errors. [9] The appellant’s submissions on the appeal ran to well over 350 pages, the respondent’s some 132 pages. Both parties also relied on their extensive trial
submissions. Numerous individual issues arose. With the exception of the limitations point, some aspects of the fire management issues and some points raised on the reasons ground, the matters raised in the appeal were not raised before her Honour.
[10] By way of overview, for the reasons which I will give, I have concluded as follows:
(a) The complaints were valid; (b) Her Honour, erred in her conclusion that Charges 1 and 2 of Complaint 1 were not statute barred. Otherwise her Honour’s conclusions on the limitations issue
were correct;
(c) Her Honour did not err in acting of the evidence of Mr Goulevitch, Mr Dillewaard and Mr Tran; (d) Her Honour did not err in law by giving inadequate reasons; and (e) None of the remaining discrete errors alleged justified setting aside any charge, (though the appellant made good some of the errors alleged). [11] The consequence of these conclusions is that:
(a) The convictions on Charges 1 and 2 on Complaint 1 should be set aside and the charges dismissed; (b) The appeal in relation to the remaining charges is dismissed. [12] In these reasons, references to the transcript at trial are articulated by reference to the day of the trial. That format is used because the numbering of the days in the transcript provided were not continuous. A schedule identifying what occurred when in the course of the trial by reference to this numbering convention is located Annexure A.
BACKGROUND
Chess Park
[13] On 17 March 2011, the appellant Mr Baker purchased Chess Park. Chess Park is a rural property of approximately 8000 hectares noted on Lot 5 Plan WK207 in the Parish of Dyngie, County of Wicklow. He initially acquired it as a Grazing Homestead Freehold Lease (GHFL), but converted it to freehold on 15 July 2011. (Nothing of substance is said to turn on whether he was a lessee or registered proprietor from time to time).
[14] The DSF is Crown land declared as a state forest by the Governor in Council. It is located within, and entirely surrounded by, the leasehold/freehold area of Chess Park. At the time of purchase of Chess Park, Mr Baker also became the lessee of the DSF. He surrendered the lease of the DSF on 15 October 2012.
[15] FEA 34 is located on the western boundary of Chess Park. FEA 34 was a reservation on the leasehold of Chess Park. The grant of the GHFL provided relevantly that the Crown reserved rights over the forest products in the FEA.
[16] As noted above, the road reserve is on the boundary of the DSF and Chess Park. It was and is an area reserved for a road.
[17] Annexure B to these reasons shows the locations of Chess Park, the DSF, FEA 34 and the road reserve.
The statutory framework: the Forestry Act offences
[18] The DSF, FEA 34 and road reserve were at the relevant times regulated by the Forestry Act. The long title of the Forestry Act describes its general purpose:
An Act to provide for forest reservations, the management, silvicultural treatment and protection of State forests, and the sale and disposal of forest products and quarry material, the property of the Crown on State forests, timber reserves and on other lands; and for other purposes.
“Forest products” is broadly defined in the dictionary contained in Schedule 3 of the
Act to mean:
all vegetable growth and material of vegetable origin whether living or dead and whether standing or fallen, including timber, and, in relation to a State forest, timber
reserve or forest entitlement area the term includes—
(a) honey; (b) all form of indigenous animal life; (c) any nest, bower, shelter or structure of any form of indigenous animal life; (d) fossil remains; (e) relics; (f) quarry material; but does not include grasses on a stock route under the Land Protection (Pest and Stock Route Management) Act 2002, or grasses (indigenous or introduced) or crops grown on a Crown holding by the lessee or by the licensee or on a forest entitlement area by the lessee or owner.
[20] The Forestry Act regulates forest products, relevantly:
(a)
In a “State forest” which is defined to mean “land set apart and declared under this [Forestry] Act as a State forest”. DSF was a State forest so declared;
(b) In a “forest entitlement area” which is defined as having the same meaning as the meaning given to that phrase in the Land Act 1994 (Qld). That Act defines
forest entitlement area as meaning “a reservation of commercial timber, and the land on which it stands, to the State in a deed of grant or freeholding lease”.
FEA 34 comprised such a reservation to the deed of grant for Chess Park; and
(c) On any land reserved for public purposes, including (relevantly here) any road. The road reserve was such land. [21] Part 4 of the Forestry Act deals with management of, relevantly, State forests and forest entitlement areas. Section 33 identifies the cardinal principle of management of State forests as follows:
(1) The cardinal principle to be observed in the management of State forests shall be the permanent reservation of such areas for the purpose of producing timber and associated products in perpetuity and of protecting a watershed therein. (2) The chief executive must ensure each State forest is used and managed in the way the chief executive considers appropriate to achieve the purposes of this Act, having regard to—
(a) the benefits of permitting grazing in the area; (b) the desirability of conservation of soil and the environment and of protection of water quality; (c) the possibility of applying the area to recreational purposes.
[22] The balance of Part 4 makes specific provision for particular aspects of management of State forests. Relevantly, it provides in s. 35(5) for the granting of a term lease under the Land Act over land in a State Forest on the conditions identified therein. The lease of DSF referred to above was a term lease granted to Mr Baker under the Land Act[2] under this section.
[2] Exhibit 14.1.[23] Part 4 also contains one of the two Forestry Act offence provisions relevant to this matter. Section 39 provides:
(1)
A person shall not interfere with, or cause to be interfered with, any forest products on any State forest, timber reserve or forest entitlement area except under the authority of and in compliance in every respect with the
requirements of—
(a)
a lease, licence, permit, agreement or contract granted or made under this Act, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or
(b)
a permit to light a fire on a licence area under the Fire and Rescue Service Act 1990, section 65.
Maximum penalty—
(a) for a first offence—1000 penalty units; and (b) for a subsequent offence—3000 penalty units. (2) This section does not apply to—
(a)
a person performing duties under this Act acting in the administration of this Act; or
(b)
a person acting under a plantation licence, plantation sublicence or related agreement or in accordance with an agreement entered into with a plantation licensee or plantation sublicensee.
“Interfere with” is defined as follows:
interfere with, used in relation to any forest products, earth, soil, or quarry material,
includes destroy, get, damage, mark, move, use, or in any way interfere with.“Destroy” is further defined as follows:
destroy, used in relation to any tree, means cut down, fell, ringbark, push over,
poison or destroy by any means whatsoever.
[26] Section 39 is the provision relevant to the offences in the DSF and FEA 34 which are the subject of this appeal.
[27] Part 6 regulates forest products on Crown land not covered by Part 4. Section 45 effectively provides that forest products on all Crown lands and analogous tenures (such as land reserved for public purposes) are the property of the Crown.
[28] Section 54 is the equivalent provision to s. 39 in respect of Crown land regulated by Part 6 of the Forestry Act. It provides:
(1) A person shall not interfere with, or cause to be interfered with, any forest products, any quarry material, or any earth or soil—
(a) on any Crown land; or (b) on any land reserved for or dedicated to public purposes (including any road, save a State-controlled road under the Transport Infrastructure Act 1994); except—
(c) under the authority of any other Act or law; or (d) under the authority of and in compliance in every respect with the requirements of a permit, lease, licence, agreement or contract granted or made under this Act. Maximum penalty—
(a) for a first offence—1000 penalty units; and (b) for a subsequent offence—3000 penalty units. (2) Nothing in this section shall derogate from or otherwise affect any of the
provisions of the Transport Infrastructure Act 1994.
[30] Section 54 is the provision relevant to the offences in the road reserve.
[31] It was common ground at trial and on appeal that the scope of the exemption in s. 39(2)(a) Forestry Act included a person performing duties imposed by s. 63 Forestry Act. Section 63 appears in Part 7 of the Forestry Act dealing with fires on, relevantly, State forests and forest entitlement areas. That section relevantly provides:
(1)
Every person holding any lease, licence, permit or other authority or entitled to any right or privilege under an agreement or contract granted or made under this or any other Act over or in respect of the whole or any part of any State forest, timber reserve or forest entitlement area or the
forest products thereon (the holder), shall at the person’s own cost and
expense—
(a)
at all times make all reasonable provision for preventing, detecting, controlling and extinguishing bush, grass, or other rural fires on the State forest, timber reserve or forest entitlement area or, as the case may be, part thereof, over or in respect whereof or the forest products thereon, the lease, licence, permit, authority, agreement or contract was so granted or made; and
(b)
on becoming aware of any fire burning on the State forest, timber reserve or forest entitlement area, or as the case may be, part thereof as aforesaid, or burning elsewhere, which is likely to spread to such State forest, timber reserve or forest entitlement area, or as the case may be, part thereof (such not being a fire authorised under the provisions of the Fire and Rescue Service Act 1990, part 7), promptly do everything reasonably within his or her power to extinguish the fire whether or not there is immediate danger of it causing damage, and shall forthwith cause the nearest forest officer or person performing duties under this Act to be notified of the fire and of the measures taken by the person to extinguish the same, and if, at the time of so notifying the forest officer or person performing duties under this Act, the fire is not extinguished, the person shall continue so far as possible to control and endeavour to extinguish the fire until it is brought under control or extinguished or until the person obtains the approval of the forest officer or person performing duties under this Act to desist.
(2)
Any person refusing, neglecting or failing to comply with the provisions of this section shall be guilty of an offence against this Act and shall be deemed to have committed an offence.
(3) False statements as to whereabouts Any holder or agent who makes a false statement as to his or her whereabouts or makes a statement knowing the same to be false as to the whereabouts of any of the employees or agents of the holder at the time of the outbreak of any such fire shall be guilty of an offence against this Act.
(4)
Nothing contained in this section shall be read as to relieve any person from any liability or obligation to which the person may be subject under
the person’s lease, agreement, contract, permit, licence, other authority, or under any other Act or law, and the provisions of this section shall be read as in addition to and not in derogation from the provisions of any other Act.
(5)
This section does not apply to a plantation licensee or plantation sublicensee or any manager, supervisor or other person acting in the general management or control of the business of the plantation licensee or plantation sublicensee carried on in or on a licence area.
[32] Section 63(a) is concerned with preventing fires in a State forest or forest entitlement area and s. 63(b) is concerned with extinguishing fires which are burning in or might spread to those areas. The section is concerned with protecting the Forestry Act areas. It is not concerned with protecting adjoining non-Forestry Act areas as such (like Chess Park itself).
[33] Part 8 of the Forestry Act deals with miscellaneous matters. Section 88 relevantly provides:
Offences generally
(1) Any person who contravenes or fails to comply with any provision of this
Act shall be guilty of an offence against this Act.(1A)
Every person who attempts, aids, abets, counsels, or procures, or is in any way knowingly concerned in, the commission of an offence against this Act shall be deemed to have committed that offence, and shall be punishable accordingly.
(1B)
Where by this Act any authority is given to any person to direct anything to be done or to forbid anything to be done and anything so directed to be done is not done or anything so forbidden to be done is done, then every person who has offended against such direction or, as the case may be, prohibition shall be guilty of an offence against this Act.
… Summary proceeding
(3)
All offences against this Act may be prosecuted and all amounts of fees, royalties, stumpages, charges, or other moneys payable under this Act and not paid may be recovered in a summary way under the Justices Act 1886
on complaint by—
(a) if the offence happened in, or related to, a licence area—a plantation officer; or
(b) generally—any forest officer or any other person authorised for the purpose either generally, or in the particular case, by the
chief executive.
Time for commencement of prosecutions
(4) A prosecution for an offence against this Act may be instituted at any time within 12 months after the commission of the offence or within 6 months after the commission of the offence comes to the knowledge of the complainant, whichever is the later period.
[34] Section 95 is also relevant to the issues which arise on this appeal. It relevantly provides:
Facilitation of proof
In any proceedings under or for the purpose of this Act—
…
(c)
it shall not be necessary to prove the limits of any area or locality whatsoever, or that any place is within a State forest or timber reserve, or an area or a locality, or part thereof, but this shall not prejudice the right of any defendant to prove the limits of the area or locality or that any place is not within the State forest or timber reserve, area, or locality, or part thereof;
… (e)
a document purporting to be made by the chief executive and stating that at any specified time there was or was not in force a lease, agreement, contract, permit, licence, certificate, or other authority, as described therein granted, given or made under this Act to or with a specified person, and, if stated therein, that such lease, agreement, contract, permit, licence, certificate, or other authority was or was not subject to terms, conditions, or restrictions, or was or was not issued or made subject to the provisions, conditions, and restrictions set out in that document, or that at any specified time a specified person was or was not exempted from any specified provisions of this Act, shall, upon its production in evidence, be evidence of the matters in that document, and in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such matters;
… (g)
the averment in any complaint of the date on which the commission of any offence under this Act came to the knowledge of the complainant shall be evidence of that matter and in the absence of evidence in rebuttal shall be conclusive evidence of such matter;
… (i) a map or plan purporting to be made by the chief executive or by a person performing duties under this Act, or purporting to be issued or published by any department of the government or any officer thereof, shall, upon its production in evidence, be evidence of the matters stated or delineated thereon, and in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such matters;
...
The statutory framework: the SPA offences
[35] Clearing of vegetation on Chess Park (excluding the areas regulated by the Forestry Act) was regulated by the SPA[3] and the Vegetation Management Act 1999 (Qld) (the VMA). The statutory scheme is a complex one.
[3] Sustainable Planning Act 2009 (Qld) (reprinted as in force on 5 May 2011) (Reprint No. 1H revised edition).
The offence creating provision
[36] It is convenient to begin with the key offence creating provision: s. 578(1) SPA (located in Chapter 7 Part 3 SPA). It provides:
Carrying out assessable development without permit
(1) A person must not carry out assessable development unless there is an effective development permit for the development. Maximum penalty— 1665 penalty units. (2) Subsection (1)—
(a) applies subject to subdivision 2; and (b) does not apply to development carried out under section 342(3). (3) Despite subsection (1), the maximum penalty is 17000 penalty units if the assessable development is on a Queensland heritage place or local heritage place.
[37] This deceptively simple provision calls up many other provisions for the purpose of
identifying “assessable development”. Before turning to that matter, it is convenient
to deal with the carve-out provisions in s. 578(2).
[38] Section 578(2)(a) refers the reader to Subdivision 2, which is headed “Exemptions”.
It contains three statutory exemptions to the offence created by s. 578(1) in relation to emergency situations. Section 584 contains a general exemption. It provides:
General exemption for emergency development or use
(1) Sections 575, 576, 578, 580, 581, 582 and 583 do not apply to a person if—
(a)
the person carries out development or a use, other than operational work that is tidal works or building work to which section 585 or
586 applies, because of an emergency endangering—
(i) the life or health of a person; or
(ii) the structural safety of a building; and
(b)
the person gives written notice of the development or use to the assessing authority as soon as practicable after starting the development or use.
(2) However, subsection (1) does not apply if the person is required by an enforcement notice or order to stop carrying out the development or use.
[39] There are similar specific exemptions in relation to emergency tidal works (s. 585) and building work on heritage places (s. 586). Neither at trial nor on this appeal has the appellant contended that any of these exemptions arose on the evidence tendered before her Honour.
[40] Section 578(2)(b) refers the reader to s. 342(3) SPA. That provision provides:
When approval lapses if development started but not completed—general
(1) Subsection (2) applies if—
(a) a condition requires assessable development, or an aspect of assessable development, to be completed within a particular time; and (b) the assessable development, or aspect, is started but not completed within the time. (2) The approval, to the extent it relates to the assessable development or
aspect not completed, lapses.(3) However, even though the approval has lapsed, any security paid under a condition mentioned in section 346(1)(f) may be used in a way stated by the approval, including, for example, to finish the development. (4) This section does not apply to a preliminary approval to which section
242 applies.
[41] Again, neither at trial nor on this appeal has the appellant contended that this provision arises on the evidence tendered before her Honour.
Identifying assessable development
[42] The starting point is the definition of “development” in s. 7 SPA which provides:
Development is any of the following—
(a) carrying out building work; (b) carrying out plumbing or drainage work; (c) carrying out operational work; (d) reconfiguring a lot; (e) making a material change of use of premises.
[43] Relevant to this case is “operational work”. That term is relevantly defined in s. 10
SPA as follows:
1 Operational work means—
…
(f)
clearing vegetation, including vegetation to which the Vegetation Management Act applies
2 Operational work does not include
…
(b) clearing vegetation on— …
(iii) an area declared as a State forest or timber reserve under the Forestry Act 1959; or (iv) a forest entitlement area under the Land Act 1994.
[44] The effect of item 2 in the definition is to confirm the exclusion of areas regulated by the Forestry Act from the SPA regime.
[45] The next step is to identify what is assessable development. Section 231 identifies the categories of development. It provides:
Categories of development under Act
(1) The categories of development under this Act are as follows—
(a) exempt development; (b) self-assessable development; (c) development requiring compliance assessment; (d) assessable development; (e) prohibited development. (2) Under this Act, all development is exempt development unless it is—
(a) self-assessable development; or (b) development requiring compliance assessment; or (c) assessable development; or (d) prohibited development.
[46] Assessable development is defined in the dictionary in Schedule 3 SPA as being development prescribed under s. 232(1)(c) to be assessable development. That subsection in turn directs attention to the regulations which prescribed assessable development.
Assessable development under the Regulations
[47] The Sustainable Planning Regulations 2009 (Qld) (the Regulations)[4] set out an extended scheme for identifying assessable development.
[4] Sustainable Planning Regulation 2009 (Qld) (Reprint No 2C as in force on 4 February 2011).[48] Regulation 9 relevantly provides:
Assessable development, self-assessable development and type of assessment—
Act, s 232
(1) For section 232(1) of the Act—
(a) development stated in schedule 3, part 1, column 2 is assessable development; …
[49] The relevant part of Schedule 3 is as follows:
[50] The exclusions from the definition of operational works identified in [43] above will apply in Table 4. Thus clearing of vegetation in a State forest or forest entitlement area will not be within the scope of the prohibition in s. 578(1).
[51] It can also be seen that clearing of native vegetation otherwise caught by the part of Schedule 3 Column 2 will not be assessable development if the clearing is clearing to which paragraphs (d), (e) and (f) apply.
[52] Of relevance to this matter are Schedule 24 Part 1 and Part 2. Given certain contentions by the appellant as to the requirements for a valid complaint, it is necessary to set out the whole of Schedule 24 Part 1. It provides (as set out in Reprint No 2C):
Part 1 Clearing and other activities or matters – general 1 Clearing and other activities or matters for land generally
(1) Clearing under a development approval for a material change of use or reconfiguring a lot, if the approval is given for a development
application—
(a) made after 4 October 2004; and (b) for which the chief executive administering the Vegetation Management Act is a concurrence agency. (2) Clearing an area of vegetation that is less than 0.5ha within a watercourse or lake for an activity (other than an activity relating to a material change of use of premises or the reconfiguring of a lot) that is subject to an approval process and is approved under the Act or another Act, or is
carried out under the document called ‘Guideline—Activities in a watercourse, lake or spring carried out by an entity’ approved by the chief
executive of the department that administers the Water Act 2000, if the
area is—
(a) a least concern regional ecosystem— (i) shown on the regional ecosystem map or remnant map as remnant vegetation; or
(ii) shown on a PMAV as a category B area; or
(b) shown on a PMAV as a category X area; or (c)
shown on the regional ecosystem map or remnant map as other than remnant vegetation.
(3) Clearing vegetation in an area declared under the Vegetation Management Act, section 19F if the clearing is carried out under the management plan for the area. (4) Clearing vegetation under a land management agreement for a lease under
the Land Act 1994.(5) A traditional Aboriginal or Torres Strait Islander cultural activity, other
than a commercial activity.(6) A mining activity or a chapter 5A activity. (7) Any aspect of development for geothermal exploration carried out under a geothermal exploration permit under the Geothermal Exploration Act 2004. (8) Any aspect of development for core airport infrastructure on airport land. (9) An activity under the Fire and Rescue Service Act 1990, section 53, 68 or
69.(10) An activity under—
(a) the Electricity Act 1994, section 101 or 112A; or (b) the Electricity Regulation 2006, section 17. (11) For a State-controlled road under the Transport Infrastructure Act—
(a) road works carried out on the State-controlled road; or (b) ancillary works and encroachments carried out under section 50 of that Act. (12) Clearing, for routine transport corridor management and safety purposes, on existing rail corridor land, new rail corridor land, non-rail corridor land or commercial corridor land (within the meaning of the Transport Infrastructure Act) that is not subject to a commercial lease. (13) Any activity authorised under the Forestry Act 1959.
[53] Of these provisions, only item 13 is relevant to this matter. The effect of that provision is that clearing of native vegetation authorised by s. 63 Forestry Act will fall outside the scope of Schedule 3. It is important to bear in mind, as identified in [32] above, that s. 63 authorises clearing to protect Forestry Act areas from fire. Clearing of native vegetation on freehold or leasehold land to protect that land from fire in a Forestry Act area will not fall within the scope of that exclusion.
[54] There were various amendments to Part 1 over the relevant period adding further
exemptions. They are set out in her Honour’s reasons at [204] to [207]. Those
changes have no material impact on this matter.
[55] Schedule 24 Part 2 contains further exceptions specifically for freehold land (which included Chess Park at all relevant times by reason of the nature of the lease held prior to freeholding by Mr Baker). It relevantly provides:[5]
[5] There were different reprints of Schedule 24 over the relevant period. Nothing was said to turn on the
Part 2 Clearing for particular land 2 Freehold land For freehold land, clearing that is—
(a)
clearing of vegetation to which the Vegetation Management Act does not apply; or
(b) for a forest practice; or (c) residential clearing; or (d) necessary for essential management; or (e) in an area shown on a PMAV as a category X area; or (f)
in an area for which there is no PMAV and the vegetation is not regulated regrowth vegetation or shown on the regional ecosystem map or remnant map as remnant vegetation; or
(g)
for urban purposes in an urban area and the vegetation is regulated regrowth vegetation, or an of concern regional
ecosystem or a least concern regional ecosystem—
(i) shown on a PMAV for the area as a category B area; or
(ii) if there is no PMAV for the area—shown on the
regional ecosystem map or remnant map as remnant
vegetation; or
(h) for urban purposes in an urban area in a wild river high preservation area and the vegetation is—
(i) remnant vegetation, shown on the regional ecosystem map or remnant map, that is an of concern regional ecosystem or a least concern regional ecosystem; or (ii) shown on the regional ecosystem map or remnant map as other than remnant vegetation; or (iii) regulated regrowth vegetation; or (i) necessary for routine management in an area of the land and the vegetation is regulated regrowth vegetation, or a least concern regional ecosystem -
(i)
shown on a PMAV for the area as a category B area; or
(ii) if there is no PMAV for the area – shown on the regional ecosystem map or remnant map as remnant
vegetation; or
(j) in an urban development area; or (k) on airport land and the operational work –
(i)
is consistent with the land use plan approved under the Airport Assets (Restructuring and Disposal) Act 2008, chapter 3, part 1 for the land; and
(ii)
is carried out on land that is not stated, under the land use plan, to remain undeveloped land; or
(l)
clearing of regulated regrowth vegetation under the regrowth vegetation code or a regrowth clearing authorisation, other than if the vegetation is shown on a PMAV for an area of the land as a category A area; or
(m)
for development that is for an extractive industry under the Vegetation Management Act, section 22A(3) in a key resource area to the extent it involves clearing regulated regrowth vegetation, other than if the vegetation is shown on a PMAV for an area of the land as a category A area; or
(n)
for development that is a significant community project to the extent it involves clearing regulated regrowth vegetation, other than if the vegetation is shown on a PMAV for an area of the
land as a category A area.
[Underlining added to identify provisions materially relevant to this
appeal]
[56] Part 2 was re-enacted in December 2012, but without any material impact on the issues in this case. Schedule 24 Part 2 requires further explanation and definition.
The expressions “essential management” and “routine management” are themselves
defined in Schedule 26 of the Regulations as follows:
essential management means clearing native vegetation –
(a) for establishing or maintaining a necessary firebreak to protect infrastructure other than a fence, road or vehicular track, if the maximum width of the firebreak is equivalent to 1.5 times the height of the tallest vegetation adjacent to the infrastructure, or 20m, whichever is the greater; or (b) for establishing a necessary fire management line if the maximum width of the clearing for the fire management line is 10m; or (c) necessary to remove or reduce the imminent risk that the vegetation poses of serious personal injury or damage to infrastructure; or (d) by fire under the Fire and Rescue Service Act 1990 to reduce hazardous fuel load; or (e) necessary to maintain infrastructure including any core airport infrastructure, buildings, fences, helipads, roads, stockyards, vehicular tracks, watering facilities and constructed drains other than contour banks, other than to source construction material; or
(f) for maintaining a garden or orchard, other than clearing predominant canopy trees to maintain underplantings established within remnant vegetation; or (g) on land subject to a lease issued under the Land Act 1994 for agriculture or grazing purposes to source construction timber to repair existing infrastructure on the land, if—
(i) the infrastructure is in need of immediate repair; and (ii) the clearing does not cause land degradation as defined under the Vegetation Management Act; and (iii) restoration of a similar type, and to the extent of the removed trees, is ensured; or (h) by the owner on freehold land to source construction timber to maintain infrastructure on any land of the owner, if—
(i) the clearing does not cause land degradation as defined under the Vegetation Management Act; and (ii) restoration of a similar type, and to the extent of the removed trees, is ensured. … routine management, for clearing native vegetation on land, means the clearing of
native vegetation—
(a) to establish a necessary fence, road or vehicular track if the maximum width of clearing for the fence, road or track is 10m; or (b) to construct necessary built infrastructure, including core airport infrastructure, other than contour banks, fences, roads or vehicular tracks, if—
(i) the clearing is not to source construction timber; and (ii) the total extent of clearing is less than 2ha; and (iii) the total extent of the infrastructure is on less than 2ha; or (c) by the owner on freehold land to source construction timber for establishing necessary infrastructure on any land of the owner, if—
(i) the clearing does not cause land degradation as defined under the Vegetation Management Act; and (ii) restoration of a similar type, and to the extent of the removed trees, is ensured; or (d) by the lessee of land subject to a lease issued under the Land Act 1994 for agriculture or grazing purposes to source construction timber, other than commercial timber, for establishing necessary infrastructure on the land, if—
(i)
the clearing does not cause land degradation as defined under the Vegetation Management Act; and
(ii)
restoration of a similar type, and to the extent of the removed trees, is ensured.
[Underlining added to identify provisions materially relevant to this appeal]
[57] Other relevant terms in the dictionary in Schedule 3 of the SPA are:
forest practice—
(1) Forest practice means planting trees, or managing, felling and removing standing trees, on freehold land or indigenous land, for an ongoing forestry business in a—
(a) plantation; or (b) native forest, if, in the native forest— (i) all the activities are conducted in a way that is consistent with the native forest practice code; or
(ii) if the native forest practice code does not apply to the activities, all the activities are conducted in a
way that—
(A) ensures restoration of a similar type, and
to the extent, of the removed trees; and(B)
ensures trees are only felled for the purpose of being sawn into timber or processed into another value added product (other than woodchips for an export market); and
(C)
does not cause land degradation as defined under the Vegetation Management Act.
(2)
The term includes carrying out limited associated work, including, for example, drainage, construction and maintenance of roads or vehicular tracks, and other necessary engineering works.
(3) The term does not include clearing native vegetation for the initial
establishment of a plantation… infrastructure includes land, facilities, services and works used for supporting
economic activity and meeting environmental needs
native forest practice means a forest practice other than in a plantation.
native forest practice code means the native forest practice code under the
Vegetation Management Act, section 19O(1).
native vegetation means vegetation under the Vegetation Management Act.
The VMA
[58] There are several references in the SPA scheme to the VMA. Aspects of the VMA
provisions are given considerable weight in the appellant’s submissions.
[59] Section 3 identifies the purpose of the Act. It relevantly provides:
(1) The purpose of this Act is to regulate the clearing of vegetation in a way that—
(a) conserves remnant vegetation that is— (i) an endangered regional ecosystem; or
(ii) an of concern regional ecosystem; or
(iii) a least concern regional ecosystem; and
(b) conserves vegetation in declared areas; and (c) ensures the clearing does not cause land degradation; and (d) prevents the loss of biodiversity; and (e) maintains ecological processes; and (f)
manages the environmental effects of the clearing to achieve the matters mentioned in paragraphs (a) to (e); and
(g) reduces greenhouse gas emissions.
(2) The purpose is achieved mainly by providing for—
(a) codes for the Planning Act relating to the clearing of vegetation that are applicable codes for the assessment of vegetation clearing applications under IDAS; and (b) the enforcement of vegetation clearing provisions; and (c) declared areas; and (d) a framework for decision making that, in achieving this Act’s purpose in relation to subsection (1)(a) to (e), applies the precautionary principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage; and
(e)
the phasing out of broadscale clearing of remnant vegetation by 31 December 2006; and
(f) the regulation of particular regrowth vegetation.
[60] Part 2 VMA deals with vegetation management. Within that part, the following relevant provisions appear.
[61] Section 8 defines vegetation under the Act (note the definition of native vegetation in the SPA at [57] above). It provides:
Vegetation is a native tree or plant other than the following—
(a) grass or non-woody herbage; (b) a plant within a grassland regional ecosystem prescribed under a regulation; (c) a mangrove.
[62] Subdivision 1 of Division 4B of Part 2 deals with certain codes for vegetation management. It relevantly deals with the native forest practice code (see Schedule 24 Item 2(b) at [55] above). It relevantly provides:
19O Native forest practice code
(1) The native forest practice code is the document called ‘The Code applying to a Native Forest Practice on Freehold Land’ approved by the Minister, as amended or replaced from time to time under this section. (2) The Minister may amend or replace the document mentioned in
subsection (1) or any amendment or replacement of it.(3) However, the amendment or replacement does not take effect until it is
approved under a regulation.(4) A reference to the native forest practice code is taken to include any
amendment or replacement under subsection (2) that has taken effect.19P Content of native forest practice code (1) The native forest practice code may provide for any matter about conducting a native forest practice the Minister considers is necessary or desirable for achieving the purpose of this Act. (2) The native forest practice code may provide for required outcomes and practices for producing, managing and removing commercial timber in native forests. (3) The native forest practice code must not be inconsistent with the State
policy.
[63] Division 5AA deals with Vegetation management maps (see Schedule 24 Part 2 Items 2(e) and (i) at paragraph [55] above). It deals with certain maps of remnant vegetation in a part of the State, relevantly in this matter, regional ecosystem maps[6] and PMAVs.
[6] Regional ecosystem maps were renamed by amendments to the VMA but nothing turns on this change in this
[64] As to the former, s. 20A provides:
The regional ecosystem map is a map certified by the chief executive as the regional
ecosystem map for a part of the State and showing for the part—
(a) areas of remnant vegetation that are—
(i) an endangered regional ecosystem; or (ii) an of concern regional ecosystem; or (iii) a least concern regional ecosystem; and (a) the regional ecosystem number for each of the regional ecosystems mentioned in paragraph (a); and (b) areas the chief executive decides under section 20AH to show on the map as remnant vegetation. Note— The chief executive may decide under section 20AH to show an area on the regional ecosystem map as remnant vegetation even though the vegetation is not remnant vegetation.
[65] The dictionary in the VMA relevantly provides:
regional ecosystem means a vegetation community in a bioregion that is consistently
associated with a particular combination of geology, landform and soil.
regional ecosystem map see section 20A.
regional ecosystem number, for a regional ecosystem, means the regional ecosystem
number that is established under the Regional Ecosystem Description Database.
Note—
The Regional Ecosystem Description Database is a database containing regional ecosystem numbers and descriptions of the regional ecosystems that is maintained
by the Queensland Herbarium. The database is available on the department’s website
at <www.derm.qld.gov.au>.
[66] As a matter of practice, a particular regional ecosystem is identified by three figures which are linked to the vegetation, geology and soil which distinguish a particular system. Exhibit 34.4 (all references to exhibits will be to trial exhibits unless otherwise noted) shows the regional ecosystem numbers for the regional ecosystems present on Chess Park according to the relevant regional ecosystem maps as reviewed by Mr Dillewaard.
[67] Division 5A provides for maps of remnant vegetation for a particular owner’s land.
Such a map is called a property map of assessable vegetation (PMAV). Division 2A provides relevantly:
20AK What is a property map of assessable vegetation (or PMAV) (1)
A property map of assessable vegetation (or PMAV) is a map certified by the chief executive as a PMAV for an area and showing for the area
the following—
(a) category A areas; (b) category B areas; (c) category C areas; (d) category X areas; (e)
areas subject to a regional ecosystem map, remnant map or regrowth vegetation map.
(2)
The map may also show for the area the location of the boundaries of, and the regional ecosystem number for, each regional ecosystem in the area.
(3) Each of category A area, category B area, category C area and category
X area is called a vegetation category area.Note—The effect of sections 20AL to 20AO, 20BA and 20CA is that there is no overlap of the boundaries of the vegetation category areas. (4) The chief executive may certify a map as a PMAV by certifying—
(a) a hard copy of the map; or (b) a digital electronic form of the map. 20AL What is a category A area A category A area is an area that—
(a) is any of the following—
(i) a declared area; (ii) an offset area; (iii) an exchange area; or (b) has been unlawfully cleared; or (c) is, or has been, subject to—
(i) a restoration notice; or (ii)
an enforcement notice under the Planning Act containing conditions about restoration of vegetation; or
(d)
has been cleared of native vegetation and in relation to the clearing a person has been found guilty by a court, whether or not a conviction has been recorded, of a clearing offence; or
(e) the chief executive decides under section 20BA is a category A area. 20AM What is a category B area A category B area is an area, other than a category A area—
(a)
shown on a regional ecosystem map or remnant map as remnant vegetation; or
(b)
that, if section 20AN does not apply to the area, is a Land Act tenure to be converted under the Land Act 1994 to another form of tenure and is or contains an endangered regional ecosystem, of concern regional ecosystem or a least concern regional ecosystem.
20AN What is a category C area A category C area is an area, other than a category A area, that contains regrowth
vegetation that is—
(a) an endangered regional ecosystem, of concern regional ecosystem or a least concern regional ecosystem that has not been cleared since 31 December 1989; and (b) either—
(i) shown on a regional ecosystem map or remnant map as remnant vegetation; or (ii) shown on a regrowth vegetation map as high value regrowth vegetation. 20AO What is a category X area (1) A category X area is an area, other than a category A area or category C area, in which clearing of vegetation has happened and that, when a PMAV applying to the area was made, did not contain remnant vegetation or vegetation shown on the regional ecosystem map or remnant map as remnant vegetation.
(2) However, an area is not a category X area if the chief executive decides
under section 20CA the area is not a category X area.
[68] It can be seen that regional ecosystem maps and PMAVs map “remnant vegetation”
and regional ecosystem maps also include three categories of ecosystem:
endangered, of concern and least concern regional ecosystems.[69] Remnant vegetation was defined in the dictionary in the Schedule to the VMA as follows:
remnant vegetation means vegetation, part of which forms the predominant canopy
of the vegetation—
(a) covering more than 50% of the undisturbed predominant canopy; and (b) averaging more than 70% of the vegetation’s undisturbed height; and (c) composed of species characteristic of the vegetation’s undisturbed predominant canopy.
[70] The different categories of regional ecosystems are defined in Division 7A of Part 2 as follows:
22LA Endangered regional ecosystems (1) A regulation may declare a stated regional ecosystem to be an endangered
regional ecosystem.(2) The Minister must not recommend to the Governor in Council the making of a regulation under subsection (1) unless the Minister is satisfied—
(a) the area of remnant vegetation for the regional ecosystem is less than 10% of the pre-clearing extent of the regional ecosystem; or (b) the area of remnant vegetation for the regional ecosystem is—
Do you know what – do you know what I’m referring to?---Like, a forest plantation,
or anything like that?
Yes, forest plantation, but, you know, spotted gum or some other type of gum
- - -?---Like harvesting spotted gum?
- - - just for – with a specific view of harvesting in the future? I doesn’t - - -?---I’m
aware - - -
Right?--- - - - that – that certain species have timber value, but in terms of specifically managing a – an area for forest products, that’s not my area of expertise, your
Honour.
All right. Thank you.
MR HUNTER: Did you see any evidence of any planting of new trees?---There was no evidence there of plantations, no.
[Underlining added]
[1109] Mr Dillewaard said that managing an area for forest products is not his area of expertise. If he had been giving expert evidence on that issue, that would have been material. But he was not. His evidence in this area related to Code compliance issues and was not concerned with management issues but botanical and ecological issues. They seemed to me to be matters a botanist could give evidence about and no suggestion was made to the contrary. His other relevant evidence was concerned with observations as to whether he saw anything suggestive of commercial timber activities. That is evidence any person who had been on the Chess Park could give. The fact that he had inspected some 80 waypoints, most of which were in the vicinity
of the charge areas, adds weight to those observations. In my view Mr Dillewaard’s
disclaimer of expertise was not a critical matter which called for express treatment
in her Honour’s reasons.
[1110] Once that conclusion is reached, the appellant made no other complaint about any
specific submission or piece of evidence not dealt with in her Honour’s reasons.
[1111] There was rather a generalised complaint (which appeared to be justified by the
appellant at least in part by reference to the failure to deal with Mr Dillewaard’s
disclaimer) about not dealing with the rest of the submissions. I do not consider that
such a submission properly articulates an error in her Honour’s reasons.
[1112] In my view, her Honour’s reasons, while relatively brief given the submissions made
by the appellant at trial, are adequate.
[1113] Further, the appellant’s characterisation of her Honour’s reasoning process as being
primarily reliant on Mr Dillewaard is wrong. It ignores the finding in paragraph 245
of her Honour’s reasons that Mr Baker’s communications tendered at trial did not
mention forest practice and “spoke mainly of fire protection and his cattle”. Her
Honour’s conclusion was not disputed at trial or on appeal and is amply made out on
the face of the correspondence: see Exhibit 40. The documents in relation to notice of native forest practice sent by Mr Baker referred to in [1088] above do not impugn that finding. They do not on their face even hint that any particular forest practice was, or was intended to be, carried out.[411]
[411] See Exhibits 40.19, 40.21, 40.23, 40.29 to 40.30.[1114] In my view, her Honour’s finding in paragraph 245 was the foundation for her
Honour’s conclusion that forest practice was excluded. The tenor of her reasons
thereafter was to consider the other evidence on the subject and find that it supported
that conclusion. The appellant’s submissions at trial that the evidence of some of
those witnesses might not be sufficient by itself to conclude that no forest practice was being undertaken misses the point. The evidence was being considered by her Honour in the context of her entirely justified initial finding based on the correspondence from the appellant.
[1115] The extent of submissions on a subject are not of themselves indicative of their merit or the need to deal with them in detail. On the evidence before her Honour I agree with the submission from Mr Hunter that her Honour understandably gave the argument short shrift.
[1116] Even if the above analysis assumes too much in her Honour’s reasoning process, I
would in any event reach the same view as her Honour.
[1117] The absence of any material mention of forest practice in the extensive contentious correspondence from Mr Baker about the clearing that is the subject of these proceedings makes it incredibly unlikely in my view that any such forest practice was underway. Mr Smith and the other witnesses, including Mr Dillewaard, between them saw large swathes of Chess Park, focusing in most cases on the cleared areas. That they did not see anything which looked to them like a forest practice powerfully supports that conclusion. The only reasonable inference on the whole of the evidence is that none of the clearing was authorised clearing in the course of carrying on a native forest practice.
The “cut and paste” contention
The extent of her Honour’s adoption of prosecution submissions on contentious issues
[1118] The appellant’s submission arises from the uncontentious fact that her Honour
adopted very significant sections of the prosecution’s trial submissions, either word
for word or with minor amendments.
[1119] The appellant produced a very detailed analysis of the extent of the adoption of the prosecution trial submissions (the Comparison Schedule). That submission did not
concern itself with her Honour’s adoption of parts of the prosecution’s submissions
relating to the statutory framework. I infer no complaint was made about her Honour
adopting those submissions.[1120] The Comparison Schedule was filed with leave after completion of the hearing of the
appeal.[412] It purports to identify those parts of her Honour’s judgment which either adopted the prosecution’s submissions with some amendment (marked in yellow) or
[412] Exhibit 4 of the Appeal.adopted the prosecution’s submissions without amendment (marked in green).
[1121] In the former case, the appellant went to the trouble of showing both her Honour’s
reasons and the adopted prosecution submission so that it is possible to see her
Honour’s additions to the prosecution submissions (marked with underlining) and
omissions of matters in those submissions (shown without highlighting on the
adopted prosecution submission).[1122] No challenge was made to the accuracy of the very detailed analysis in the Comparison Schedule, though to check the 186 pages would have been a mammoth job. In any event, the overall picture shown by the Comparison Schedule was not contentious. That overall picture was as follows.
(a)
First, as her Honour expressly stated, her summary of Mr Goulevitch’s evidence at Reasons [58] to [68] adopted the prosecution’s “accurate summary of his evidence”, with some minor additions, rather more omissions and some
adjustments to form.
(b) Second, her Honour’s summary of Mr Dillewaard’s evidence, at Reasons [98] to [111], adopted the prosecution’s submission, with some adjustments of form but also with many paragraphs adopted in terms.
(c) Third, her Honour’s summary of Mr Tran’s evidence appeared at Reasons [112] to [133]. Much of that part of the judgment adopted the prosecution’s submissions, with some adjustments of form. However, Reasons [112], [119], [126], [127] and [131] to [133] were unique. It is to be observed that those paragraphs relate to issues raised in respect of Mr Tran at trial, albeit in a peremptory way, and some parts of the evidence which her Honour obviously considered particularly important.
(d)
Fourth, her Honour’s findings in respect of each of the Forestry Act charges at Reasons [145] to [179] adopted the prosecution’s submission, with some
minor additions, omissions and adjustments of form. Her Honour expressly
flagged this at Reasons [144].(e)
Fifth, her Honour’s findings in respect of each SPA charges, which run from paragraph 275 to the end of the judgment, adopted the prosecution’s
submissions with some minor additions, omissions and adjustments of form in some cases and verbatim in other cases. Her Honour expressly flagged this at Reasons [273].
The appellant’s submission
[1123] The appellant submits that the extent of the adoption of prosecution submissions in relation to the important questions of the reliability and credibility of the evidence of the experts, and of whether the evidence made out the facts necessary to sustain conviction for each charge, demonstrates a failure to give adequate reasons. The appellant submits that this adoption comprises a failure by her Honour to undertake
a proper review and evaluation of the evidence or to reveal her Honour’s reasoning
in concluding that the appellant ought to be convicted.
[1124] The appellant relied in support of this submission on two decisions: LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 and MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154. Each of those cases were concerned with appeals to the Full Federal Court in which the reasons of the relevant administrative decision maker were in the form of a template or standard format.
[1125] In LVR, the Administrative Appeals Tribunal adopted without attribution the submissions of the relevant Minister as virtually the whole of its reasons. After an analysis of the legal issues arising in that kind of situation for administrative decision making bodies, the Court resolved the matter ultimately by reference to the fact that the result of that approach had been that an important affidavit filed late in the proceedings had not been dealt with. The Full Court said this:[413]
[413] (2012) 203 FCR 166 at [5].Although the appeal raises a short and orthodox question, the circumstances in which that question arises are, in our experience, unique. The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. Approximately
95% of the paragraphs of the reasons were so taken from the Commissioner’s written
submissions filed in the Tribunal before the hearing in the Tribunal on 24 June 2010
and a further three or four paragraphs of the Tribunal’s reasons were taken from the
Commissioner’s written reply, dated 14 July 2010, to the written submissions of the
appellants before the Tribunal. Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. That jurisdiction in the present circumstances would include whether or not to exercise the discretion conferred on the Tribunal by s 42A(5)(b) of the AAT Act to
dismiss the applications without proceeding to review the Commissioner’s
decisions. The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction.
[1126] It was the failure to consider that affidavit which ultimately founded the conclusion that the Tribunal had failed properly to evaluate the material before it. The Full Court noted that the analysis of adoption of submissions in an administrative law context is quite distinct from that in a judicial context.[414]
[414] LVR at [98].
[1127] In MZZZW, a member of the Refugee Review Tribunal on a rehearing adopted substantial parts, including credit findings, from the previous decision which was overturned on appeal. Again, there was no attribution of the adoption of the earlier
decision maker’s reasons. Indeed it appears as if the member rehearing the
application after appeal presented the reasons as the member’s own.[415]
[415] MZZZW at [65].[1128] These cases do not much assist in assessing whether her Honour has erred by adopting the submissions of the prosecution in the manner she did. There was some discussion of the adoption of submissions by Courts in LVR in the following terms:
94. In relation to the decisions of courts, in SZMUV v Minister for Immigration and Citizenship [2009] FCA 205 Flick J considered reasons of a federal magistrate who had expressed his reasons for decision over some nine pages but, of those nine pages, over two pages set out verbatim the
submissions of the Minister as to the relevant “background”; one page set
out verbatim the grounds of the Amended Application; and a further two
pages adopted and set out verbatim the Minister’s written submissions on
substantive issues. The balance of the judgment, some four pages, set out the reasons as expressed by the federal magistrate. Flick J concluded that notwithstanding the extent to which the federal magistrate had simply incorporated the submissions, the federal magistrate did carefully review the materials before him and in doing so committed no error.
95. Similarly, in SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 Flick J held that the case before him was an instance where such reasons as had been provided, albeit reasons which largely reproduced the submissions and reasons of others, did disclose the manner in which the federal magistrate proceeded. Flick J said:
[6] The appropriateness of reproducing the work of others may in large part depend upon the circumstances of each individual case. But the repetition of the reasoning and submissions of others has many dangers. At the very least, it may create in the mind of a disappointed litigant the belief that independent judicial consideration has not been given to the legal and factual merits presented for resolution. It may also place in peril the discipline imposed upon a judicial officer of independently recording in writing reasons for decisions. An argument which may initially appear incontrovertible may become more uncertain of resolution as the process of writing reasons for any decision is undertaken.
[1129] I did not find these cases of particular assistance, except to the extent that they identify the uncontentious (I would have thought) points that:
(a) Adopting large parts of a party’s submissions without attribution contributes significantly to the impression that there might not have been an independent
evaluation of the evidence and submissions of the other party; and
(b) Whether adoption of a party’s submissions results in the reasons failing to meet the requirements of the law depends on the circumstances of the particular
case.[1130] It might be added that the position of the appellant in such circumstances is significantly improved if he or she can point to some particular matter that has not been properly dealt with in the reasons, such as the affidavit in LVR.
The respondent’s submission
[1131] Consistent with those propositions, the respondent submitted that the consequence
of her Honour’s adoption of the prosecution falls to be determined in the context of
the trial. Mr Hunter pointed out, correctly, that the main issues raised by the appellant in its trial submissions by way of defence were the essential management issue, the native forest practice issue and the limitations issue.
[1132] He pointed out that her Honour dealt directly with each of those issues. Once those issues were determined by her Honour, it was a question of considering whether the prosecution had made out its positive case on each charge, based on that which was
articulated in the submissions. The nature of her Honour’s dismissal of the defence
cases did not call for specific reconsideration where those points arose on particular charges. Her Honour was entitled to give her reasons based on the prosecution submissions once that point was reached.
Reasons were adequate
[1133] In my respectful view, her Honour’s reasons were not deficient because of her
adoption of prosecution submissions in the way described from paragraph [1122](a)
above.
First, it was plain that her Honour was adopting the prosecution’s submissions where
she did so. In most cases, she expressly stated she was doing so. On the two occasions where she did not, concerning the evidence of Mr Dillewaard and Mr Tran, she made clear that she accepted their evidence. It would not be a surprise in those circumstances to find (as the appellant plainly did) that her Honour had adopted the
prosecution’s key submission on those two witnesses. Further, in the case of Mr Tran
her Honour referred, albeit in short terms, to particular points drafted in her own words relevant to the persuasiveness of his evidence and to certain points relevant to
Mr Tran’s credit. That is consistent with independent thought having been given to
his evidence. Her Honour did not present the prosecution submission as her own
text.
Second, her Honour did not often simply adopt the prosecution’s text. In most cases
there are adjustments, omissions and additions to that text which are consistent with an independent evaluation of those submissions by her Honour. The wholesale adoption of submissions without any change might give a different impression, but that did not occur here.
Third, and perhaps most tellingly, Mr Hunter is correct in his identification of the key issues at the trial. It is important to also observe that her Honour wrote her own independent reasons for rejecting the primary arguments advanced by the defence at trial. We have already seen how her Honour dealt with the native forest practice issue and I have determined that her reasons were sufficient in that regard.
[1137] On the essential management issue, her Honour explained in Reasons [274] that the
defence’s arguments depend on the rejection of Mr Tran’s evidence, and that her
Honour accepted that evidence (as he Honour explained in Reasons [122] to [133]). This in turn raises the question as to whether her Honour did not give adequate
reasons for accepting Mr Tran’s evidence. As I point out below, her Honour’s
reasons in that regard, while not fulsome, sufficiently give adequate reasons for her
acceptance of Mr Tran’s evidence. However, it is to be noted that even if they did
not, I have concluded that Mr Tran’s evidence was admissible, probative and
positively sustained the conclusions reached by her Honour in any event. Her Honour therefore did not err in accepting his evidence. If there was an error in not giving sufficient reasons for doing so, it is not one which has any material consequence in those circumstances.
[1138] We have already seen how her Honour dealt with the limitations points.
[1139] It must also be borne in mind that the basis upon which her Honour resolved each of those matters meant that there was, strictly speaking, no need for her to further explain why she rejected the specific contentions in relation to each charge for those items. Further, other points raised by the defence (the other permits possibility and the categories of clearing point) were also specifically dealt with by her Honour.
In those circumstances, her Honour’s approach of working through the prosecution
submissions on the individual charges was open as a manner of making the required findings on each charge. There were no questions of credit to resolve. There was no contradictory expert evidence to address in any particular respect. There were no
longer any particular questions of reasoning to be exposed. Her Honour’s task was
to ensure that the necessary facts to make good the individual charges had been identified and were sufficient. I see no good reason to think that her Honour did not approach the matter in that way.
[1141] In my view, it is the nature of the case as put at trial by the defence and the manner
it was dealt with by her Honour which answers the appellant’s core complaint that
the reasons do not disclose evaluation of the case put. As I observed from paragraph
[779] above, the appellant’s criticisms of her Honour’s reasons and reasoning are
largely based on her failure to grapple with all the points which occurred to the appellant when preparing the appeal. Almost none of these points were raised at trial. Similarly, few if any of the issues raised in paragraph 84 of the Part 1 Submissions were raised at trial or troubled defence counsel (at least in a way which reached his submissions). Reasons are relevantly required to explain why the Court has reached its conclusion, based on the issues raised at the trial which the reasons address.[416]
[416] Drew v Makita Australia Pty Ltd [2009] 2 Qd R 219 at [59]
Fourth, when it comes to the individual charges, it is to be noted that the appellant did not point to any specific submission which was not dealt with and which should
have been, in the appellant’s submission. There was no important document (as in LVR) or key fact raised on the appeal in respect of her Honour’s extensive reliance on the prosecution’s submissions to deal with the specific charges.
[1143] I respectfully share Justice Flick’s misgivings about adopting the submissions of one
party. However there is no rule that it comprises an error of law in every case. Further, a trial judge, particularly one sitting in the Magistrates Court which is burdened with a particularly heavy workload, must give consideration to the public interest in the prompt preparation and provision of reasons. The public interest in providing reasons which address the matters identified in Drew at [58] must be balanced against the need to efficiently allocate scarce judicial resources.[417]
[417] See the discussion of this balancing of public and private interests in Justice Beaumont’s paper
Reasons for accepting experts
[1144] The last point to be dealt with on this appeal involves the appellant’s specific
contentions that her Honour erred in failing to give sufficient reasons for accepting the evidence of Messrs Goulevitch, Dillewaard and Tran. I reject each of those contentions. Given what has gone before, these points can be dealt with shortly.
[1145] As to Messrs Goulevitch and Dillewaard, I consider her Honour gave sufficient reasons for accepting their evidence for the following reasons.
First, for both gentlemen there was no contradictory expert evidence. It was not a situation of the kind which existed in Drew. There was no call therefore for her Honour to have to explain in detail why she accepted one expert over another.
Second, there was little cross examination of either Mr Goulevitch or Mr Dillewaard directly attacking their credit or the probative value of their opinions. Further, as I
have observed on a number of occasions, no challenge was made in the defendant’s
submissions to the acceptance of their evidence. In that context, having seen and heard the witnesses, it was properly open to her Honour sufficiently to deal with the reasons for accepting their evidence in the peremptory manner in which she did. As explained in paragraph [779] above, I do not agree that the requirement to give sufficient reasons required her to have dealt with all the ideas thought up by the
appellant’s counsel after the trial.
[1148] The first point above applied equally to Mr Tran. As I have explained, there were
challenges to the probative weight of Mr Tran’s evidence. However, as her Honour
rightly observed, his evidence was not contradicted. Further, her Honour did refer, albeit briefly, to some of the points raised in cross examination. In an ideal world, one might think that a more direct response to the individual points raised in cross examination might have been called for in order to fully reassure the appellant as to
why Mr Tran’s evidence was ultimately accepted. However, I do not think her
Honour’s reasons fell below the minimum standard for accepting the evidence of an
expert which was not contradicted by other evidence at trial.
Even if her Honour’s reasons fell below the necessary standard, I have already dealt
with and dismissed the appellant’s substantive challenges to her Honour’s
acceptance of their evidence as probative. In my respectful view, there was no error in her Honour doing so. In those circumstances, it is difficult to see why establishing
that her Honour gave inadequate reasons for accepting the three experts’ evidence
would assist the appellant in setting aside the convictions.
Conclusion
[1150] The submission on the first day of the appeal that her Honour’s approach to her
reasons involved her complete abrogation of her judicial function[418] was unjustified and was properly withdrawn at the start of the second day.[419] Further, in the context of the issues raised at trial and the manner in which they were resolved, I do not agree
[418] Appeal Day 1, page 93, lines 4-5
[419] Appeal Day 2, page 2, lines 8-15
that Her Honour’s reasons were inadequate in a manner which gave rise to an error
of law.
DISPOSITION ON THE APPEAL
[1151] The appeal is upheld in respect of Charges 1 and 2 of Complaint 1. The appeal against conviction is otherwise dismissed. I will hear the parties as to the proper form of orders to give effect to those conclusions.
[1152] I will also hear the parties as to further orders for resolving the remaining costs and sentence appeals as well as on the question of costs in these proceedings.
[1153] I make one final comment. The appellant made a number of personal attacks on the prosecutor and some of the witnesses which were either abandoned at the hearing or shown to be unjustified. Some are mentioned in these reasons. No mention is made, however, of the most serious examples, which involved attacks on the the conduct of prosecution at trial in relation to a particular matter. Those attacks were unjustified and were completely abandoned by the appellant on the hearing of the appeal, as they should have been. It is unnecessary to say more about them here. However, none of the submissions by the appellant involving personal attacks were justified. Much more care must be taken in future with the making of such submissions.
ANNEXURE A
| Reference | Hearing Date | Event/Witness | Transcript |
| Reference | |||
| A. | 23 April 2015 | Mention – Gayndah | |
| Magistrates | |||
| Trial Day 1. | 15 February 2016 | Openings | |
| Trial Day 2. | 16 February 2016 | Smith |
- EIC by Mr Hunter page 15, line 21
| Trial Day 3. | 17 February 2016 | Smith |
- EIC by Mr Hunter page 2, line 8 - EIC by Ms Dann page 82, line 20 - Excused page 90, line 6
Goulevitch
- EIC by Mr Hunter page 102, line 12
| Trial Day 4. | 22 February 2016 | Goulevitch |
- EIC by Mr Hunter page 21, line 1
| Trial Day 5. | 23 February 2016 | Goulevitch |
- EIC by Mr Hunter page 2, line 8
| Trial Day 6. | 24 February 2016 | Goulevitch |
- EIC by Mr Hunter page 2, line 8
| Trial Day 7. | 25 February 2016 | Goulevitch |
- EIC by Mr Hunter page 2, line 8
| Trial Day 8. | 26 February 2016 | Goulevitch |
- EIC by Mr Hunter page 2, line 16 - XXN by Mr Sheridan page 4, line 4 - RXN by Mr Hunter page 86, line 44 - Excused page 93, line 4
| Trial Day 9. | 29 February 2016 | Dillewaard |
- EIC by Mr Hunter page 2, line 43
| Trial Day 10. | 1 March 2016 | Dillewaard |
- EIC by Mr Hunter page 2, line 12
| Trial Day 11. | 2 March 2016 | Dillewaard |
- EIC by Mr Hunter page 2, line 5 - XXN by Mr Sheridan page 54, line 4
| Trial Day 12. | 3 March 2016 | Dillewaard |
- XXN by Mr Sheridan page 54, line 4 - RXN by Mr Hunter page 61, line 39 - Excused page 67, line 27
Mossman
- EIC by Mr Hunter page 68, line 1 - XXN by Mr Sheridan page 82, line 18 - RXN by Mr Hunter page 92, line 36 - Excused page 98, line 13
| Trial Day 13. | 4 March 2016 | Aslin |
- EIC by Mr Hunter page 8, line 39 - Excused page 24, line 11
| Trial Day 14. | 4 July 2016 | Aslin |
- EIC by Mr Hunter page 6, line 14 - EIC by Ms Dann page 36, line 47 - XXN by Mr Sheridan page 52, line 33 - Excused page 82, line 44 Stumer
- EIC by Mr Hunter page 82, line 29 - EIC by Ms Dann page 92, line 38
| Trial Day 15. | 5 July 2016 | Stumer |
- EIC by Ms Dann page 3, line 1 - XXN by Mr Sheridan page 18, line 15 - Excused page 34, line 37 Smith
- EIC by Mr Hunter page 35, line 44 - XXN by Mr Sheridan page 40, line 34 - Excused page 56, line 7
| Trial Day 16. | 6 July 2016 | Reinke |
- EIC by Mr Hunter page 2, line 37 - EIC by Ms Dann page 61, line 30 - EIC by Mr Hunter page 66, line 14 - XXN by Mr Sheridan page 67, line 6
| Trial Day 17. | 7 July 2016 | Reinke |
- XXN by Mr Sheridan page 67, line 6 Sparrow
- EIC by Mr Hunter page 16, line 16 - XXN by Mr Sheridan page 39, line 30 - RXN by Mr Hunter page 51, line 4 - Excused page 52, line 6
Tran
- EIC by Mr Hunter page 52, line 15
| Trial Day 18. | 8 July 2016 | Tran |
- EIC by Mr Hunter page 2, line 7
| Trial Day 19. | 18 July 2016 | Tran |
- EIC by Mr Hunter page 4, line 18 - XXN by Mr Sheridan page 49, line 24
| Trial Day 20. | 19 July 2016 | Tran |
- XXN by Mr Sheridan page 2, line 7 - RXN by Mr Hunter page 104, line 1 - Excused page 107, line 33
| Trial Day 21. | 20 July 2016 | Housekeeping |
| Trial Day 22. | 17 August 2016 | Closing submissions |
| Trial Day 23. | 18 November 2016 | Ex tempore decision |
| Trial Day 24. | 24 November 2016 | Mention – decision published |
| Trial Day 24. | 27 February 2017 | Sentence/Costs hearing |
| Trial Day 25. | 28 February 2017 | Sentence/Costs hearing |
| Ex tempore decision – s 599 | ||
| SPA order | ||
| Trial Day 26. | 20 March 2017 | Handing down of decision |
| Decision on penalty | ||
| ANNEXURE B |
assembly met to draft the Constitution of Norway signed there on 17 May 1814. The station was named by one of the seven Archer brothers, significant early Queensland settlers whose parents immigrated to Norway from Scotland in 1825. The youngest brother, Colin Archer, returned to Norway to become a successful ship builder, building Fram, the ship used by both Nansen and Amundsen in their voyages of polar exploration.
version adopted as I recall it. This version is from Reprint No 2C.
appeal: see reasons at paragraph 222.
Appeal.
some specific charges.
September 2018 (court document 29).
the requirement for error to be shown before proceeding to agree in the proposition at [7] of the judgment.
[2011] QCA 327 at [26]; R v Ruthven [2013] QCA 142 Cf. Forrest v Commission of Police [2017] QCA 132.
531 at 557.
from s. 39 of the English Summary Jurisdiction Act 1879 (see page 116).
520 and see Kirk at [26]-[30] where the Court recognised that particulars can later be given to ensure factual
validity.
Construction Services Pty Ltd v President, Industrial Court of Queensland [2014] QSC 56 at [39]; S Kidman v
Lowndes CM [2016] 314 FLR 358 at [133].
[4.13]-[4.14].
23.
Respondent – Conviction.
this time.
those inspections: Select the Complaint 4 areas and waypoints from the November 2013 and April 2014
inspections on the ArcReader at Exhibit 23 and see footnote 117; see also the evidence referred to at footnote
436 and 437 of the Outline of Submissions on Behalf of the Respondent - Conviction.
Peebles [2007] 2 Qd R 254.
Conviction.
overall).
suggestive of where the onus of proof lies.
charge.
lines 15 – 21.
Exhibit 40 handed up with the outlines of closing submissions and Annexure A Chronology of Key Events attached to the Introduction and Statutory Framework Outlines of submissions handed up on 15 February 2016 where this correspondence is referred to.
40.50, 40.51, 40.55, 40.60, 40.103.
expressly stated in the terms in this paragraph of the submission].
an exploration permit, each by reference to the definitions under the Mineral Resources Act 1989. Those
tenures under the Mineral Resources Act relate to the mining of minerals, mineral occurrences and activities
for exploring for minerals.
Petroleum and Gas (Production and Safety) Act picks up in the dictionary a mining lease, a geothermal tenure
and a GHG lease, GHG permit and a GHG authority by reference to the acts under which those tenures are
created and has as its main purpose facilitating and regulating the carrying out of responsible petroleum
activities and the development of a safe, efficient and viable petroleum and fuel gas industry which it gives
effect to by providing for a number of different authorities.
GHG permit and a GHG authority by reference to the acts under which those tenures are created and provides
for geothermal tenures which regulate geothermal exploration and geothermal production.
underground geological formations or structures to store carbon dioxide or carry out related activities and
otherwise picks up in the dictionary a mining lease, a petroleum lease and a geothermal tenure by reference to
the acts under which those tenures are created.
pipeline].
lines 11 and 12 and Appeal Day 6, page 33, lines 1 – 9.
errors in R v Ignjatic (1993) 68 A Crim R 333 at 336-341, including where an argument was made that a
confession ought to have been the subject of objection, though the tenor of the judgment is that the Court was
not persuaded such an objection would have been successful.
[36] per McMurdo JA with whom Fraser and Morrison JJA agreed. In that case, a forensic decision between two unattractive options forced on the defence by an over enthusiastic crown submission was not accepted as being one which would attract the principle articulated by Gleeson CJ.
included in an expert report tendered without objection (see the discussion Beavan in paragraphs [859] to
[860] below), the principle remains sound and is based on broader examples as the cases relied upon by Muir
JA demonstrate.
person where the trial judge is said to have failed sufficiently to assist them in the course of the proceeding: Tomasevic v Travaglini (2007) 17 VR 100 at [141] to [142]; McWhinney v Melbourne Health (2011) 31 VR 285 at [20]-[26].
September 2018 at paragraphs 9 – 11 (court document 29).
(1982) 76 Cr App R 23; R v McHardie and Danielson [1983] 2 NSWLR 733.
lines 25 – 35; See Mr Sheridan’s evident familiarity with the kinds of clearing involved in previous
prosecutions which can be inferred from his question at Trial Day 8, page 4, line 23; Mr Sheridan has appeared
in a number of cases of this kind in the past including Witheyman v Van Riet & Ors [2007] QDC 342;
Witheyman v Van Riet & Ors [2008] QCA 168; Witheyman v Simpson [2009] QCA 388; Western Queensland
v Department of Natural Resources and Water [2007] QLC 15; Doyle v Minister for Natural Resources and
Mines [2005] QLC 49; MacKenzie v Minister for Natural Resources and Mines [2005] QLC 47; MacKenzie v
Minister for Natural Resources and Mines [2005] QLC 48; Mackenzie v Minister for Natural Resources,
Mines and Water [2006] QLC 65.
technical meaning. That tends to be confirmed by the SMI Regulations which sets out requirements for
cadastral surveys generally consistent with (but more detailed than) Mr Goulevitch’s evidence. There is also a
document entitled Cadastral Survey Requirements Version 7.0 made by the chief executive of the Department
of Natural Resources and Minerals pursuant to paragraph 3 of the Survey and Mapping Infrastructure Notice
2015 and s. 6 of the SMIA which contains high levels of detailed specification for the undertaking of such
surveys.
September 2018 (court document 29) at paragraphs 6 – 8.
paragraph 231(e).
pages 73-89.
August 2016 in relation to Charge 1 at paragraph 17, Charge 2 at paragraph 33. There are similar submissions in respect of nearly all the charges in Complaints 2 and 4. Only the charge areas in on the northern boundary were not inspected.
Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (5th ed, 2013 Thomson
Reuters) at 2.20.140 and the more recent discussion of the differing views in Kyluk Pty Ltd v Chief Executive,
Office of Environment and Heritage [2013] NSWCCA 114 at [52]-[62].
at [24].
[2003] NSWCA 131; (2003) 179 FLR 1 at 138 [631] per Giles JA with whom Mason P and Beazley JA
agreed, a position repeated in Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96 at 110-112 [60]-[66]
per Hodgson and McColl JJA.
Respondent’s Complaint 4 Outline of Closing Submissions.
2016 at paragraph 73 and see Slides 105 to 136 in PowerPoint BMG 3 at Exhibit 27.
mapping at the same scale can be directly compared. There is some ambiguity in the overlap of the bush and pasture lines on the satellites for Complaint 2 Charges 13 (compare slides 204 to 210) and 21, though not in a manner which materially affects the hypothesis.
PMAV at Exhibit 14.23.
appears Mr Tran was referring to Exhibit 27 in most cases.
was not raised on appeal. Damage to the polypipe was referred to only as part of the broad argument in
infrastructure which attracted the essential management exemptions around that specific area. That contention generally was permitted under infrastructure exemptions.
5 August 2016, in relation to Charge 1 at paragraph 10.
at 586-588; R v De Voss [1995] QCA 518.
made in that paragraph persuasive as grounds materially to impugn Mr Tran’s evidence.
defendant conducted the trial on the basis that the code did apply. The version of the Code relied upon was
tendered by the prosecution at the insistence of the defendant at trial: see appellant’s Trial Submissions at
paragraph 233 and Exhibit 50. The Code applied in terms to Chess Park. It was seemingly replaced by a
Regional Code relevant to the area in which Chess Park was located (Exhibit 42.19) and a further revised Code
(Exhibit 30) in 2013, which applied only during the period of the latest five offences in time (Trial Day 5, page
61). Nothing was said to turn on the differences in the Codes. The Code in Exhibit 30 is presented as an
appendix to Guidelines to the Code, giving the entirely wrong impression that the Code is more what you
would call guidelines than actual rules.
paragraph 3(g).
Introduction and Statutory Framework, as it appears in the dictionary of the SPA.
14, page 14, lines 20 – 40; evidence of Mr Reinke: Day 16, page 66, lines 43 – 46.
36, line 26; evidence of Mr Aslin: Trial Day 14, page 13, lines 30 – 33; evidence of Mr Stumer: Trial Day 14,
page 96, lines 22 – 26.
65, lines 20 – 21; evidence of Mr Smith: Trial Day 15, page 36, lines 11 – 15) no witness gave evidence of
seeing anything suggestive of the commercial harvest of timber. Evidence of Mr Aslin: Trial Day 14, page 13,
lines 30 – 33; evidence of Mr Stumer: Trial Day 14, page 96, lines 28 – 31, 39 – 47; page 97, lines 11 – 15.
period is that contained at Exhibit 42,19. Exhibit 31, tendered by the defence, which is effective from 2 December 2013, can only relate to clearing in respect of Complaint 4, Charges 23, 29, 30 and 31 which occurred after 2 December 2013.
Contemporary Judgment Writing: The Problem Restated (2000) 4 TJR 347.