Baker v Smith (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:	Baker v Smith (No 2) [2019] QDC 242
PARTIES:	MICHAEL VINCENT BAKER (appellant) v BRIAN ARTHUR CONWAY SMITH (respondent)
FILE NO:	4984 of 2016
DIVISION:	Crime
PROCEEDING:	s 222 Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	4 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	21, 26 June 2019
JUDGE:	Porter QC DCJ
ORDER:	Amended Notice of Appeal filed 5 September 2018  1.   The conviction of the appellant on Charge 1 and Charge 2 of the Complaint sworn on 17 August 2013 be set aside; 2.   Charge 1 and Charge 2 of the Complaint sworn 17 August 2013 be dismissed.  Amended Notice of Appeal filed 30 May 2019 3.   The order made on 20 March 2017 that the appellant pay a fine of $276,000 to the complainant within 3 months of the date of that order and in default to the State Penalties Enforcement Registry be set aside; 4.   The appellant is fined  $250,000 to be paid within 3 months of the date of this order; 5. The order made on 20 March 2017 that the appellant pay $17,471.01 by way of loss and damage pursuant to s. 88 Forestry Act 1959 (Qld) within 3 months of the date of that order be varied such that the amount be reduced to $4,704.05 (including GST) and the date for payment be varied to 3 months from the date of this order; 6. The order made on 20 March 2017 that the defendant pay $541,309.15 costs to the complainant pursuant to s. 157 Justices Act within 3 months of the date of that order be set aside; 7.   The appellant pay the respondent’s costs of the trial in the amount of $495,892.86 within 3 months of the date of this order; 8.   Order 2 of the orders made on 28 February 2017 be set aside; 9.   The appellant pay the respondent’s costs of the conviction appeal in the amount of $224,859.15 within 6 months of the date of this order; 10.  The Amended Notice of Appeal filed 5 September 2018 and the Amended Notice of Appeal filed 30 May 2019 are otherwise dismissed; 11.  I will hear the parties as to costs of the Second Notice of Appeal.
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). CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the learned Magistrate found the defendant guilty on all charges on 18 November 2016 – where the learned Magistrate awarded costs against the defendant on 20 March 2017 – where the defendant was not present in Court on 18 November 2016 – whether the finding on 18 November 2016 constituted a “conviction” for the purposes of s. 157 Justices Act – whether the “conviction” contemplated by s. 157 Justices Act is a formal conviction – whether the “conviction” contemplated by s. 157 Justices Act requires both the finding of guilt and imposition of penalty – whether the defendant could be convicted in absentia. CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the learned Magistrate concluded that for the purposes of s. 158B Justices Act the trial was one of special difficulty, complexity or importance – where the trial involved proving various forms of land clearing arising from disparate areas over a number of years – whether the learned Magistrate erred in concluding that the trial was one of special difficulty, complexity of importance. CRIMINAL LAW – SENTENCE – where the learned Magistrate imposed a fine of $276,000 – where the appellant succeeded on two grounds of appeal against conviction – where the sentencing discretion was to be exercised afresh – where the appellant was convicted of unlawfully clearing 346.6 hectares of land – where the unlawful clearing took place over approximately three years – where departmental officials explained the unlawfulness of the clearing throughout the period in which the clearing took place – where certain land clearing activities were performed to improve the performance of grazing activities – where the appellant demonstrated no remorse, either at trial or on appeal – where an expert report was tendered concerning the environmental harm consequent upon the land clearing – where general and personal deterrence are of significant importance – whether the expert report was admissible – whether the expert report ought be given any weight – whether and in what amount to order a fine – whether a conviction should be recorded. CRIMINAL LAW – PROCEDURE – JURISDICTION – where the learned Magistrate gave orders pursuant to s. 599 Sustainable Planning Act 2009 (Qld) prohibiting the appellant from clearing native vegetation and requiring the appellant to allow departmental officials access to his property to inspect compliance – where the appellant submits that the learned Magistrate did not have jurisdiction to make these orders – whether s. 599 Sustainable Planning Act confers power to make such orders – whether orders in the same terms as the learned Magistrate’s should be made on appeal. CRIMINAL LAW – PROCEDURE – COSTS – where s. 232A Justices Act provides that costs of a conviction appeal may be awarded where it is just to do so having regard to the special difficulty, complexity or importance of the appeal – where the appeal took seven days to hear – where the appellant challenged expert evidence on appeal – where the appeal raised issues which were not considered by the learned Magistrate – where the respondent retained senior and junior counsel – whether the appeal was of special difficulty, complexity or importance – whether s. 232A Justices Act conferred a power to make a costs order in respect of counsel’s fees – whether and in what quantum an order to pay the respondent’s legal costs and disbursements should be made against the appellant. Legislation Australian Consumer Law (Cth), s. 243 Bail Act 1980 (Qld), s 14A Criminal Code Act 1899 (Qld), s 617 Criminal Practice Rules 1999 (Qld), r 59, r 62 Fair Work Act 2009 (Cth), s 545 Forestry Act 1959 (Qld), s 39, s 54, s 88 Justices Act 1886 (Qld), s 88, s 142, s 142A, s 144, s 145, s 146, s 146A, s 147, s 147A, s 149, s 150, s 151, s 152, s 153, s 157, s 158, s 158B, s 159, s 160, s 222, s 223, s 232, s 232A Justices Regulation 2004 (Qld), sch 2 Penalties and Sentences Act 1992 (Qld), s 15, s 49 Sustainable Planning Act 2009 (Qld), s 599 Vegetation Management Act 1999 (Qld), s 20AK, s 20AO, s 20B, s 30, s 31, s 32, s 33, s 36, s 54A, s 54B, s 54C, s 55A, s 68C, s 70B Uniform Civil Procedure Rules 1999 (Qld), r. 367 Cases Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2018) 262 CLR 157 Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128 Bell v Carter [1992] QCA 245 BRB Modular Pty Ltd v AWX Constructions Pty Ltd [2015] QSC 222 Chief Executive, Office of Environment and Heritage v Reitano (No 2) [2019] NSWLEC 39 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Police Service v Spencer [2014] 2 Qd R 23 Coombe v Ashlin and Blinco, unreported, Magistrates Court of Queensland, Magistrate Ryan, 2 September 2015 Cullinan v McCahon [2014] QDC 120 Dever v Creevey; ex parte Creevey [1993] 1 Qd R 232 Director-General, Department of Environment and Climate Change v Rae (2009) 197 A Crim R 31 Fitzgerald v Newing; ex parte Newing [1965] QWN 14 Gibson v Canniffe [2008] QDC 319 George v Rockett (1990) 170 CLR 104 Hickey v Crime and Misconduct Commission [2008] QDC 340 Hili v The Queen (2010) 242 CLR 520 Hill v Holeszko [2017] QDC 35 Hindman v Sargent, unreported, District Court of Queensland, Andrews DCJ, 5 May 2014 Kimlin v Wilson; ex parte Kimlin [1966] Qd R 237 Kimmorley v Atherton; ex parte Atherton [1971] Qd R 117 Kuru v State of NSW (2008) 236 CLR 1 Lasker v Holeszko [2019] QCA 163 Lawrence v The King [1933] AC 699 Lucev v Queensland Police Service [2013] 1 Qd R 518 Lucy v OCC Holdings Pty Ltd (No. 2) [2008] QDC 169 Mareangareu v R [2019] VSCA 101 Maxwell v R (1996) 184 CLR 501 Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753 Morley v Senewiratne & Anor [2008] QDC 296 Morleyv Senewiratne & Anor [2008] QDC 325 R v Billington [1980] VR 625 R v Cross (Patrick) [1973] 1 QC 937 R v Jones (1998) 72 SASR 281 R v Lapa (No.2) (1995) 80 A Crim R 398 R v Milos [2014] QCA 314 R v Rasmussen [2002] 1 Qd R 299 R (Commonwealth) v Elomar (2010) 264 ALR 759; [2010] NSWSC 10 Schloss v Bell [2016] ICQ 17 Scriven v Sargent (No. 2) [2016] QDC 16 Scriven v Sargent (No. 2), unreported, District Court of Queensland, McGill SC DCJ, 21 April 2016 Shield v Topliner Pty Ltd [2004] QCA 476 Stanley v Phillips (1966) 115 CLR 470 Thompson Residential Pty Ltd v Tran [2014] QDC 156 Other Kennedy Allen, “The Justices Acts (Queensland)” (The Law Book Co, 3rd ed, 1956) Pearce and Geddes, “Statutory Interpretation in Australia” (LexisNexis, 8th ed, 2014)
COUNSEL:	G Allan and S Trewavas for the appellant G Dann for the respondent
SOLICITORS:	Marland Law for the appellant Department of Natural Resources and Mines for the respondent

Contents

SUMMARY

HER HONOUR’S REASONS AND ORDERS

The 18 November 2016 hearing
The 24 November 2016 hearing
The 24 November 2016 reasons
Written submissions at trial on penalty, costs and s. 599 SPA

Penalty
Section 599 SPA
Costs of the trial

The 27-28 February 2017 hearing
Her Honour’s judgment on 28 February 2017
Her Honour’s judgment on 20 March 2017

THE COSTS APPEAL

Did her Honour have power to award costs?

Her Honour’s reasoning
The appellant’s submissions
The respondent’s submissions

Analysis
Conclusion of first ground of appeal

Special difficulty, complexity or importance

Her Honour’s reasoning
The appellant’s submissions
The respondent’s submissions

Analysis

Adjustment of trial costs consequent on the May reasons

INVESTIGATION COSTS APPEAL

THE SENTENCE APPEAL

Maximum penalties for each offence

Value of a penalty unit
Maximum penalty: Forestry Act offences
Maximum penalty: SPA offences
Total maximum penalty

Circumstances of the offending

The characteristics of the clearing
Course of the offending and Mr Baker’s dealings with departmental officials

Observations on the character of the offending
Mr Dillewaard’s report on environmental harm

Summary of Mr Dillewaard’s evidence
The position of the parties

Analysis

General deterrence
Personal deterrence
Approach to calculation of penalty

The approach below
The approach on this appeal

The authorities on penalty
Manner in which offences were charged
Conclusion on penalty
Recording of a conviction

THE S. 599 SPA APPEAL

The s. 599 orders
The appeal ground
Context in which the s. 599 appeal arises

The events relating to the Restoration Notices
The nature of the appeal

Statutory scheme
Appellant’s submissions
Respondent’s submissions

Analysis

Section 599(1) is not confined to orders under s. 599(3)
Order 1 is within power
Order 2 is not within power

Discretion

FORESTRY ACT COMPENSATION ORDER

COSTS OF THE CONVICTION APPEAL

The appeal was of special difficulty and complexity and importance
Power exists to award counsel’s fees as such under s. 232A(2)
Quantum of costs of the conviction appeal

Evidence of costs and disbursements on the appeal
Determination of costs and disbursements to be paid

FORMAL ORDERS ON THE CONVICTION APPEAL

ORDERS ON THE SECOND NOTICE OF APPEAL

SUMMARY

1. On 17 May 2019, I delivered judgment in Mr Baker’s appeal to this Court filed 19 December 2016 (the conviction appeal) from his conviction in the Magistrates Court of 46 offences arising out of the clearing of native vegetation on a rural property called Chess Park, near Eidsvold in the North Burnett region (the May reasons).[1]  These reasons are intended to be read together with the May reasons.  Defined terms in those reasons are used in these reasons.

   [1]Baker v Smith [2019] QDC 76.

2. The offences the subject of the conviction appeal fell into two categories: offences against the Forestry Act relating to clearing on areas of land regulated by that Act and offences against the SPA relating to clearing on leasehold and later freehold land. The appeal was upheld in respect of Charges 1 and 2 of Complaint 1, which related to Forestry Act offences. The appeal was otherwise dismissed.

3. By Amended Notice of Appeal filed 30 May 2019[2] (the Second Notice of Appeal) Mr Baker also appealed against sentence and the recording of a conviction (the sentence appeal), the order for costs of the trial (the costs appeal), against two orders under s. 599 SPA consequent on conviction (the s. 599 appeal), an order for payment of investigation costs under s. 68C VMA (the investigation costs appeal).

   [2]Filed in reliance on leave given on 7 March 2018.

4. I adjourned the hearing of the Second Notice of Appeal until after determination of the conviction appeal.[3]  These reasons deal with the Second Notice of Appeal.

   [3]I did not advert to the s. 599 Appeal at the time but neither party suggested that should not be treated as having been adjourned along with the other matters raised in the Second Notice of Appeal.

5. As to the sentence appeal, at first instance her Honour imposed a single fine for all the offences in the amount of $270,000 and recorded a conviction. The sentence appeal was conducted by both parties on the basis that the consequence of upholding the appeal on two of the convictions was that I must exercise the sentencing discretion afresh.  The same must be true of the recording of a conviction.  For the reasons given below, I impose a fine in the amount of $250,000 and record a conviction.  

6. Her Honour ordered Mr Baker to pay costs of the trial in the amount of $541,309.15.  By the costs appeal, that order was challenged on two grounds:

   (a)First, s. 157 Justices Act, relevantly, authorises a justice to order “by the conviction” that the defendant pay the costs of the trial of a complainant.  Mr Baker submitted that by her Honour’s ex tempore reasons on 18 November 2016, the conviction of Mr Baker on each charge occurred without the order for costs being included in the conviction, with the consequence that the power to award trial costs was not exercisable when her Honour purported to award such costs on 20 March 2017; and

   (b)Second, even if her Honour had power to award costs, her Honour erred in concluding that she had discretion to award costs beyond scale costs under s. 158B(2) Justices Act because the case was not one of special difficulty, complexity or importance.

7. I am unpersuaded by both grounds of appeal. Her Honour still had power to award costs on 20 March 2017 and was correct in her conclusion that s. 158B(2) was engaged. I have adjusted the costs awarded to take account of the appellant’s successes on the conviction appeal.

8. The appellant challenged two orders made under s. 559 SPA:

   (a)An order which prohibited any further clearing of native vegetation in the charge areas; and

   (b)An order which compelled Mr Baker to grant access to departmental officers to Chess Park on notice to check on compliance with the first order.

9. The appellant submitted both orders were beyond the scope of the power conferred by s. 599 SPA. I have rejected that proposition in respect of the first order, but accept it in respect of the second order.

10. As to the investigation costs appeal, I was not persuaded her Honour erred in making the order for investigation costs. 

11. Two matters remain to be resolved in respect of the conviction appeal.  I need to make orders consistent with the May reasons and I need to deal with costs of the appeal.  As to those:

    (a)The formal orders upholding the appeal on two charges are made below; and

    (b)I order the appellant to pay the respondent’s costs of the appeal in the amount of $224,859.15.

12. I have also reduced the compensation orders made under the Forestry Act by her Honour for the loss and damage from clearing in the Forestry Act areas to take account of the success on the conviction appeal.

13. Unlike the position on the conviction appeal, an appeal book was prepared for the Second Notice of Appeal (the Appeal Book).  I have also had regard on occasion to material in respect of the conviction appeal. The Appeal Book did not include the material on the conviction appeal.

HER HONOUR’S REASONS AND ORDERS

14. Her Honour’s dealings with the complaints after trial began with the hearing on 18 November 2016.  Those events were summarised in the May reasons.[4]  It is necessary for the purposes of these reasons to set out those events in greater detail, with the grounds of appeal in mind.

    [4]May reasons [130] to [133].

The 18 November 2016 hearing

15. This was the first hearing post-trial.  Mr Hunter QC attended for the respondent and a Mr T. Allen attended for the appellant.

16. The proper characterisation of her Honour’s decision communicated on that day is disputed.  The discussion which preceded it can be relevant to construing the legal character of her statements.  The following relevantly transpired:[5] 

    [5]18 November 2016, TS 1-2.25 to 3.39. Exhibit DTM-1 of affidavit of Marland filed 1 February 2017 in the Magistrates Court proceedings, added to the Appeal Book material by leave (Marland Affidavit).

    BENCH: What happened, if I can explain, is that a fortnight ago I understood parties were advised that the decision would be given today. I found out very close, I think Thursday or Wednesday, that parties hadn’t been advised. And then there’s been a flurry of miscommunication since then.

    Now, I would like to give the decision today, and mention the matter, then, if necessary on Wednesday.

    MR HUNTER: [indistinct] yes, your Honour.

    BENCH: Now, are you – both parties content with that: if I give the outline of my decision today, so you know what it is?

    MR HUNTER: Yes, your Honour.

    BENCH: Mr Hunter?

    MR ALLEN: Mr Allen, your Honour. I don’t have instructions for that. I’m just appearing on behalf of my principal, who is out west today. And - - -

    BENCH: Who is your – but you – I thought you – I thought it was well understood that you knew – I’ve got an email saying can you appear by telephone because of the late notice. I understood that the problem was there was late notice for you, which I accepted because you’re in Bundaberg - - -

    MR ALLEN: [indistinct]

    BENCH: - - - and your counsel’s in Victoria, and you asked to appear by telephone.

    MR ALLEN: As I understood, your Honour – I’m Thomas Allen, a law graduate.

    As I understood, I was appearing for a mention on behalf of Marland Law, and you were handing down the decision next Wednesday.

    BENCH: Well, I want to hand down the decision today.

    MR ALLEN: Okay. Yes, your Honour.

    BENCH: I don’t want to delay it. I think that you can – you’ve wanted to appear; I think you can accept the decision, can you? And if any further submissions are to be made, they can be made on Wednesday.

    MR ALLEN: Yes, your Honour. I’ll make a note of that.

    BENCH: Do you have any views, Mr Hunter?

    MR HUNTER: Well, in my submission, there should be no impediment to your Honour handing down a decision today. The result of it can be communicated to parties or to Mr Baker and his qualified legal representatives, and we can sort out any matters that need to be sorted out next week.

    BENCH: I don’t want to delay - - -

    MR HUNTER: No. I understand.

    BENCH: - - - with communicating the decision.

    MR HUNTER: Yes, your Honour.

    BENCH: That’s the only thing.

    MR HUNTER: Yes.

17. Her Honour was concerned to give her “decision” or an “outline of her decision” and to “communicate the decision” that day and contemplated that any matters that needed to be sorted out could be sorted out on the next hearing intended for the following Wednesday. 

18. Her Honour then gave reasons.  The reasons cover less than three pages of transcript. 

19. Her Honour began as follows:[6]

    BENCH: This is the decision in the matter of Smith and Baker most of which I’ve left upstairs. In this matter there are four complaints before the Court alleging that the defendant, Mr Michael Vincent Baker, engaged in unlawful clearing of property at Chess Park in contravention of the Forestry Act, the Sustainable Planning Act and the Vegetation Management Act, but essentially, the complaints 2 and 4 relate to breaches of the Sustainable Planning Act over a period of time from May 2011 until April 2014.

    The only rational inference to be drawn on all the evidence which was extensive is that it was Mr Baker, the defendant, who carried out the clearing or it was someone at his direction who did so between the dates alleged on the complaints 1, 2, 3 and 4 and at the places alleged.

    [6]18 November 2016, decision TS 2.1 to .12. These reasons were not included in the Appeal Book but were referred to in submissions and were provided to the Court during the hearing of the conviction appeal.

20. Her Honour then briefly rejected a submission as to the conduct of the prosecution and turned to the limitation submissions.  Her Honour dealt with the limitations points over the following six paragraphs which occupied most of the reasons.  Having concluded that the complaints were filed in each relevant case in time, the balance of her Honour’s reasons were as follows:[7]

    [7]18 November 2016, decision, TS 3.38 to 4.25.

    So the questions, then, are the – relate to whether the prosecution have proved beyond reasonable doubt the charges and have excluded beyond reasonable doubt any defences that are available. In relation to complaint 1, the – just excuse me one moment. The exemptions under the SPA were not – under the Sustainable Planning Regulations were not available to the complaints 1 or 3. Mr Baker clearly carried out the clearing. The allowance that might be available under sections 63 and 65 of the Forestry Act are not available.

    In clearing the FEA 34, the road reserve and the Dyngie State Forest the defendant interfered with forest products and did so unlawfully.  There are on defences available to him.  The forest products are the property of the Crown and he is found guilty as he has no defence to – in relation to all of the charges on complaint 1 and 3.

    In relation to counts 2 and 4, I accept the evidence and in relation to all the complaints I accept the evidence of the Crown witnesses without reservation.  In relation to complaints 2 and 4, I accept the evidence of the expert, Mr Dillewaard, the botanist from Queensland Herbarium and the evidence from Mr Tran.  His evidence was given in terms of his vast experience and was a scientific basis.  I do not accept any criticism of his evidence led to any change in his opinion which I accept.

    The prosecution have excluded any exemptions that are available to the clearing alleged in complaints 2 and 4. There were particularly – in particular, relying on the evidence of Mr Dillewaard, there was no forest practice. Imminent means has its usual meaning and it means about to happen in terms of essential management. Routine management has – was – routine management has been excluded. Therefore, the prosecution, on evidence as I’ve found have excluded the possibility that any of the clearing – and of the clearing conducted by Mr Smith on Chess Park in its freehold capacity or in the leasehold was not exempt under the provisions of the regulations to the Sustainable Planning Act in schedule 24 and he is found guilty in relation to complaints 2 and 4.

    That is the decision.

    [Underlining added]

21. Her Honour then immediately stated:[8]

    BENCH: That is the decision.

    …

    BENCH: I simply wanted to convey that I have found Mr Baker guilty. In the rush of changing courts, in not knowing that you were not going to – I did not bring all my notes. So - - -

    …

    BENCH: - - - it’s to an extent ex tempore, but not – it doesn’t change my decision.

    MR HUNTER: No. Well [indistinct] will your Honour formally pronounce the orders on Wednesday? Is that your Honour’s intention?

    BENCH: That was my intention. I was hoping that I could have an appearance on Wednesday.

    [Underlining added]

    [8]18 November 2016, TS 1-4.18 to .39.

22. Mr Hunter then further discussed with her Honour what she intended to be resolved at the hearing proposed for the next Wednesday.  Her Honour makes plain that her intention was to try to deal with costs, sentence and reparation.  Mr Hunter told her Honour that the complainant would not be ready to deal with those matters for some time because of the need to obtain evidence and so on.  Her Honour then agreed to hear from Mr Hunter on when those matters could be dealt with at a hearing the next week.[9]  There was then some discussion of the day upon which the matter would be further mentioned for that purpose.  There was then this exchange about the issue of costs specifically:

    [9]18 November 2016, TS 1-6.9 to 7.34.

    BENCH: The idea was – my idea was to give you the decision today, and then perhaps there might be some conversations about costs.

    MR HUNTER: Yes.

    BENCH: Yes.

    MR HUNTER: Well, just so as I – just to be absolutely certain that I’m preserving my position: to the extent that your Honour’s given orders today, the prosecution formally apply for costs. And the question should in our submission be [indistinct]

    BENCH: You’re – yes. You have to apply once I’ve convicted. Yes.

    MR HUNTER: Well, I’m not sure that the prosecution do. But certainly the [indistinct] principle applies to the defence, and the - - -

    BENCH: That’s true.

    MR HUNTER: I’m just concerned that it might apply to the prosecution. So I - - -

    BENCH: If it applies to the prosecution, you’re applying today. Yes.

    MR HUNTER: I’m formally applying for costs.

    BENCH: All right. And we’ll adjourn - - -

    MR HUNTER: I just ask that the question be adjourned to get - - -

    BENCH: I’ll adjourn that question of costs.

    [Underlining added]

23. The matter was left on the basis that on the next occasion Mr Hunter would report on when his client would be able to address costs, sentence and reparation.  Save for this: when the matter of Mr Baker’s attendance at the next hearing come up, her Honour indicated that Mr Baker could appear by legal representatives but added “[a]nd Mr Baker, convicted, is at large”.[10] This shorthand expression was presumably meant to communicate that Mr Baker was permitted to be at large without bail pending the further hearing of the complaints contemplated by her Honour under either or both of s. 14A(1)(b) Bail Act 1980 (Qld) or s. 88 Justices Act.  Interestingly, both provisions apply where the Magistrates Court adjourns the hearing of a charge.  In each case it seems improbable that the sections would be construed so as to exclude the sentencing of a defendant from the scope of the hearing of a charge, particularly as there does not seem to be any other express power in either statute permitting a defendant to be at large pending sentence after being found guilty.

    [10]18 November 2016, TS 1-11.24.

The 24 November 2016 hearing 

24. On 24 November 2016, Mr Hunter and Mr Sheridan appeared.  Her Honour stated her intention to publish written reasons for her decision stated on 18 November.  Her Honour put it like this: “On [18 November] the decision was given to find Mr Michael Vincent Baker guilty of all the charges on complaints 1, 2, 3 and 4 that were before the court”.[11]  Her Honour and the representatives of both parties then agreed that the the purpose of the mention was to arrange time for the provision of submissions on costs, penalty and reparation.[12]

    [11]24 November 2016, TS 2.29 to .31.

    [12]24 November 2016, TS 2.38 to .45.

25. Mr Hunter then consciously sought to clarify the position on the costs issue as follows:[13]

    [13]24 November 2016, decision TS 3.1 to .27 at Exhibit DTM-2 to the Marland Affidavit.

    MR HUNTER: And, your Honour, from this end of the bar table, the prosecution asks that your Honour refrain from formally pronouncing orders in relation to the matter until such time as your Honour imposes sentence and makes other orders in relation to costs.

    BENCH: Yes.

    MR HUNTER: We’re just anxious to preserve our position in respect of costs and

    - - -

    BENCH: Yes.

    MR HUNTER: - - - avoid a situation where - - -

    …

    MR HUNTER: - - - your Honour’s functus officio - - -

    BENCH: I have made no orders - - -

    MR HUNTER: Thank you.

    BENCH: - - - about that - - -

    MR HUNTER: All right.

    BENCH: - - - and any questions around costs are adjourned.

26. Of course, whether her Honour had made orders is not strictly the question.  The question is whether her Honour’s statements on 18 November comprised “the conviction” of Mr Baker of the charges in the complaints, although the context in which her Honour gave the decision (including statements made by her Honour contemporeanous with it) might inform the answer to that question.

27. The parties then agreed directions for the filing of material on costs, sentence and reparation and her Honour listed the matter for hearing on these issues on 27 and 28 February 2017.  Her Honour told the parties she would provide her written reasons (the Reasons) by email later that day, which she did.

The 24 November 2016 reasons  

28. The Reasons were the subject of extensive citation and analysis in my May reasons.[14]  As explained there, her Honour dealt with various general matters before turning to individual consideration of each of the charges.  After reviewing the specific submissions on each charge, her Honour stated that Mr Baker “is found guilty” of the particular charge.  On some charges she overlooked making that statement, and she added the omitted findings in her Revised Reasons delivered on 20 March 2017.[15]

Written submissions at trial on penalty, costs and s. 599 SPA

Penalty

Complainant’s penalty submissions  

29. Although it is common ground that I must re-exercise the sentencing discretion, it facilitates that task to set out the main arguments on penalty at trial, particularly as they are relied upon to a substantial degree on appeal.

30. The main issues raised by the complainant were as follows.[16]

    [16]Complainant’s submissions on penalty at trial appear at Appeal Book, Vol 1, pp 35-65.

31. The complainant started by identifying the circumstances of the trial and the seriousness of the offences reflected in the maximum penalties ($100,000 or $110,000 for the Forestry Act offences and $166,500 or $183,150 for the SPA offences depending on when they were committed.[17])

    [17]Complainant’s submissions on penalty at trial, paragraphs 22-32 at Appeal Book, Vol 1, pp 39-42.

32. The complainant emphasised the role of general and, particularly, personal deterrence in this case.  It highlighted, in the latter respect, Mr Baker’s dismissive attitude to his legal obligations.  He also submitted that her Honour ought to conclude that the clearing was undertaken to obtain some level of commercial benefit.[18]

    [18]Complainant’s submissions on penalty at trial, paragraphs 13-21 at Appeal Book, Vol 1, pp 36-39.

33. The complainant submitted that the Court ought to characterise the offending as comprising four distinct courses of conduct related to four distinct temporal phases of clearing.  Each phase, it was argued, involved more serious offending because Mr Baker had been told from time to time about the lawfulness of the clearing in increasing detail.  The four phases were:

    (a)Clearing prior to the visit by the departmental officers on 16 November 2011 (by which time, it was said, relevant prohibitions in the legislative schemes had been brought to Mr Baker’s attention);

    (b)Clearing after that visit and before 24 February 2012,[19] when Mr Baker was informed that an endorsed  fire management plan did not amount to approval of a vegetation clearing application;

    (c)After 24 February 2012 and before 14 December 2012, when Mr Baker was informed in writing of the investigation into unlawful land clearing; and

    (d)After December 2012, when it was said Mr Baker was fully appraised of the unlawfulness of his conduct.[20]

    [19]As explained below, this letter was dated 24 April 2012.

    [20]Complainant’s submissions on penalty at trial, paragraphs 41-54 at Appeal Book, Vol 1, pp 43-46.

34. The complainant then cited s. 49 Penalties and Sentences Act 1992 (Qld) (which permits a single fine to be imposed for offences of a similar kind) and invited her Honour to impose a single fine, calculated by reference to each phase of offending.

35. The complainant relied on the following aggravating features.

    (a)The area cleared.[21]

    (b)The adverse environmental impact of the clearing.  On this point the complainant relied on Mr Dillewaard’s report dated 8 December 2016 dealing with environmental impact of the clearing.[22]

    (c)Mr Baker’s deliberate and persistent disregard of the law, said to be demonstrated by his conduct despite being warned of the potential unlawfulness of continuing to clear, along with his statements in correspondence dismissive of legal obligations.[23]

    (d)There was no evidence of any remorse or contrition, even at the time of sentence.[24]

    [21]Complainant’s submissions on penalty at trial, paragraph 57 at Appeal Book, Vol 1, p 46.

    [22]Complainant’s submissions on penalty at trial, paragraphs 59-65 at Appeal Book, Vol 1, pp 47-52.

    [23]Complainant’s submissions on penalty at trial, paragraph 66 at Appeal Book, Vol 1, pp 52-53.

    [24]Complainant’s submissions on penalty at trial, paragraph 67 at Appeal Book, Vol 1, p 53.

36. The complainant then sought orders for loss and damage under the Forestry Act in the amount of $17,471.01 in respect of the charges in Complaints 1 and 3. That was based on evidence from departmental officer, Mr Reinke as to the commercial value of cleared timber.[25]

    [25]Complainant’s submissions on penalty at trial, paragraphs 69-72 at Appeal Book, Vol 1, pp 53-54.

37. The complainant contended that there were not cases sufficiently analogous to this one which assisted in setting the fine. For the Forestry Act offences, the complainant relied on two Magistrates Court decisions both said to be much less serious than Mr Baker’s offending. For the SPA and VMA offending, only three cases were relied upon, each of which was said to be less serious than this offending.[26]

    [26]Complainant’s submissions on penalty at trial, paragraphs 98-108 at Appeal Book, Vol 1, pp 58-62.

38. The complainant’s ultimate submission was for a penalty calculated by reference to the  four phases of offending in the amount of 20 per cent, 30 per cent, 40 per cent and 70 per cent of the maximum penalty for the charges included in that phase, being $33,300, $49,950, $83,250 and $110,000 respectively, a total of $276,500.  The complainant sought the recording of a conviction.

Defendant’s penalty submissions  

39. The defendant began with a detailed analysis of two District Court decisions in which first instance fines were reduced on appeal: Scriven v Sargent (No. 2) [2016] QDC 16 and Hindman v Sargent (unreported, District Court of Queensland, Andrews DCJ, 5 May 2014).[27]  In those cases, fines of $40,000 and $15,000 were imposed for larger areas of clearing (1,800 hectares and 1,300 hectares respectively).  The defendant also emphasised that there was no evidence of commercial gain from the clearing. The defendant also relied on an extensive table of previous decisions in the Magistrates Court relating to land clearing offences.

    [27]Defendant’s submissions on penalty at trial, paragraphs 5-23 at Appeal Book, Vol 1, pp 113-117.

40. The defendant then addressed the circumstances of the offending, emphasising:[28]

    (a)Mr Baker’s emotive correspondence was understandable given that the property was affected by fires in September 2011;

    (b)Following those fires Mr Baker made clear he thought a 10 metre fire break was inadequate;

    (c)Although the departmental officers had reason to believe unlawful clearing was occuring from August 2012, they did not issue any notice preventing further clearing until December 2013.  Nor did the department take up his invitation to seek an injunction. If they had, the clearing would not have occurred;

    (d)Mr Baker permitted inspection of Chess Park without a warrant; and

    (e)Mr Baker was within his rights to require strict proof at trial, and it was the prosecution’s fault that the trial was complex given the approach taken to strict proof (while at the same time submitting that clearing offences are well known as being difficult to prove).

    [28]Defendant’s submissions on penalty at trial, paragraphs 24-36 at Appeal Book, Vol 1, pp 117-119.

41. The defendant then addressed deterrence.[29]  The defendant characterised the dealings with the departmental officers quite differently.  He submitted that the circumstances showed:

    (a)Differing views about complex legislation by departmental officers and the defendant;

    (b)Mr Baker, as a new landholder, making every attempt to inform the departmental officers of his intentions and reasons for his actions;

    (c)The ignorance of the departmental officers of the difficulties arising from fires on rural properties; and

    (d)The defendant submitted that the clearing showed a systematic attempt to create fire breaks and that excluded an intention to create more pasture.

    [29]Defendant’s submissions on penalty at trial, paragraphs 37-47 at Appeal Book, Vol 1, pp 120-122.

42. As to mitigation, the defendant submitted, inter alia:[30]

    (a)His request for fire mitigation assistance from his purchase in April 2011 were ignored with the September 2011 event then occuring;

    (b)Mr Baker is of retirement age, with little experience of a large rural property and little local fire support; and

    (c)Little of the clearing was clear felling.

    [30]Defendant’s submissions on penalty at trial, paragraphs 48-49 at Appeal Book, Vol 1, pp 122-123.

43. As to environmental effects, the defendant submitted that Mr Dillewaard’s evidence was so flawed and inconsistent as to be of no weight in assessing environmental impact.[31] As to the loss and damage claim under the Forestry Act, the defendant submitted Mr Reinke’s evidence failed to provide a reliable basis to assess the value of the timber cleared in those areas.[32]

    [31]Defendant’s submissions on penalty at trial, paragraphs 52-62 at Appeal Book, Vol 1, pp 124-126.

    [32]            Defendant’s submissions on penalty at trial, paragraphs 63-70 at Appeal Book, Vol 1, pp 126-127.

44. No submission was made as to what penalty should be imposed.

Complainant’s reply

45. The complainant replied in detail to the defendant’s submissions, caviling with most matters raised.  It is sufficient to note the following specific matters.

46. The complainant emphasised that Scriven and Hindman were not relevantly comparable and challenged the relevance of the defendant’s table of cases given changes in the sentencing regime. The complainant also met in detail the attacks on the opinions of Mr Dillewaard and Mr Reinke.

47. The complainant also disputed most of the factual submissions made by the defendant.  He submitted that:

    (a)There was evidence that some of the clearing had been for the commercial purposes of increasing pasture or assisting in the operation of the property as a cattle property;

    (b)Mr Baker was given advice on bush fire management early on and he chose to ignore it;

    (c)Mr Baker was not consistent in setting out his intentions in correspondence;

    (d)Mr Baker did not cooperate with the administration of justice in any material way, and in particular, only the first visit by Mr Smith was without a warrant; and

    (e)Mr Baker was repeatedly told of his legal obligations.  It could not be inferred that if he was restrained by some injunctive type order that he would have ceased his conduct. 

Section 599 SPA

48. The submissions on s. 599 SPA were brief. The complainant noted the intention of the chief executive to make a PMAV including the cleared areas and to require restoration under a restoration notice under s. 54B VMA. In support of that process, the complainant sought orders under s. 599 which in general terms:

    (a)Prohibited the defendant from clearing any native vegetation in the areas of clearing subject to SPA;

    (b)Required the defendant to allow departmental officers access to Chess Park to set up photographic monitoring points;

    (c)Caused monitoring photographs to be taken at certain intervals; and

    (d)To permit access to departmental officers to check compliance with the orders.

49. (As is explained in paragraph [66] below, the second and third of the orders above were not pressed at the hearing.)

50. The defendant’s response was to the effect that the physical elements of the proposed orders were oppressive, dangerous and uncertain.  Those matters were not pressed on this appeal and related primarily to obligations in the proposed order not pressed at the hearing.[33] 

Costs of the trial

Key statutory provisions

51. It assists understanding of the matters relevant to the costs appeal to set out the key statutory provisions. The relevant provisions are ss. 157, 158B, 159 and 160 Justices Act, which provide:

    157       Costs on conviction or order

    In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.

    158B      Costs for division

    (1) In deciding the costs that are just and reasonable for this division, the justices may award costs only—

    (a) for an item allowed for this division under a scale of costs prescribed under a regulation; and

    (b)        up to the amount allowed for the item under the scale.

    (2) However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.

    159 The sum allowed for costs to be specified in the conviction or order

    The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction.

    160       Costs how recoverable

    The sum allowed for costs in a conviction or order by which a penalty or sum of money is adjudged to be paid shall be recoverable in the same manner and under the same warrants as the penalty or sum of money adjudged to be paid by the conviction or order is recoverable.

Complainant’s cost submissions 

52. The complainant contended that an uplift for costs above scale under s. 158B(2) Justices Act was justified on the basis of special difficulty, complexity or importance.  The complainant contended that the complexity of the case, arising from the number of separate areas, the different forms of clearing, the multiple complex statutory schemes and the character of the defence (being focused on fire management in each case) demonstrated special difficulty.  It was also submitted that the fire management defence made the matter of some importance.  The complainant also relied on the complexities of proof given the timing, location and disparate character of the clearing, the extent of the correspondence between the appellant and the respondent and the complexity arising from the limitations arguments.[34]

    [34]            Complainant’s submissions on costs at trial, paragraphs 1-10 at Appeal Book, Vol 2, pp 688-693.

53. The complainant recognised that in assessing the costs which were just and reasonable under s. 158B(2) regard was to be had to the scale of costs in the Justices Act, and contended for scale costs for professional fees at $20,750.  Adopting an approach based on Morley v Senewiratne & Anor [2008] QDC 296, the complainant contended for this to be multiplied by four to allow for the four complaints and then multiplied by three to allow for the complexity of the case, giving a total of $249,000.

54. Disbursements primarily comprising transcript fees and witness expenses for Mr Tran were claimed at $114,851.04.[35] The complainant contended hearing fees of counsel could be added as a disbursement and that senior and junior counsel were justified.  Evidence showed counsel’s fees amounted to $155,250.[36]

    [35]            Complainant’s submissions on costs at trial, paragraph 23 at Appeal Book, Vol 2, p 699.

    [36]Complainant’s submissions on costs at trial, updated scale costs, paragraph 10 at Appeal Book, Vol 2, p 712.

55. The complainant separately sought investigation costs under s. 68C(1) VMA of $165,369.55.[37]

    [37]            Complainant’s submissions on costs at trial, paragraphs 28-32 at Appeal Book, Vol 2, pp 702-703.

Defendant’s costs submissions

56. The defendant submitted that her Honour did not have power to order costs after 18 November 2016, because “the conviction” of Mr Baker on all charges occurred on that date with the consequence that the time for ordering costs under s. 157 Justices Act had passed.  The defendant’s submissions developed that point in detail.[38]  Those submissions are repeated in this appeal and dealt with below.  

    [38]            Defendant’s submissions on costs at trial, paragraphs 3-86 at Appeal Book, Vol 2, pp 619-633.

57. The defendant also submitted that the jurisdiction to award costs above scale costs was not enlivened because although the case was of some difficulty and was subjectively important, it was not of special difficulty, complexity or importance under s. 158B(2).

58. The defendant finally submitted that the amounts sought by the complainant were not just and reasonable.

59. The first two issues arise on this appeal and the arguments before her Honour were put again in this appeal.  They are considered below.  No more need be said about those points at this stage.

60. The last issue was not pursued on this appeal.

The 27-28 February 2017 hearing

61. The hearing before her Honour over 27 and 28 February 2017 dealt with penalty, costs and the s. 599 SPA application. It is necessary for the purposes of the appeal to highlight certain matters which occurred during the hearing (despite the extensive written submissions).

62. Mr Hunter raised the fact that her Honour had omitted to state that Mr Baker had been found guilty of eight offences in the Reasons despite accepting the prosecution submissions on those matters (which led to the Revised Reasons: see the May reasons at [132]).[39]

    [39]            27 February 2017, TS 1-5.8 to .12 at Appeal Book, Vol 2, pp 456.

63. Mr Marland for the defendant, stated that a Restoration Notice pursuant to s. 54B VMA had been served just prior to the hearing. He sought a stay of that notice pending the sentence and s. 599 SPA decision.[40]  Mr Hunter pointed out that the Magistrates Court had no jurisdiction to stay that notice and the matter proceeded on the basis that the notice was valid.[41]

    [40]            27 February 2017, TS 1-12.3 to 16.2 at Appeal Book, Vol 2, pp 463-467.

    [41]            27 February 2017, TS 1-16.8 to .27 at Appeal Book, Vol 2, p 467.

64. Mr Dillewaard gave evidence. His report was tendered.[42] He gave evidence in chief, was cross examined and briefly re-examined.[43] Aspects of his evidence are relevant on sentence and will be considered further below. Mr Reinke also gave evidence on the loss and damage issue in the Forestry Act areas.

    [42]            See Appeal Book, Vol 1, pp 159-303.

    [43]Examination in chief at 27 February 2019, TS 1-21 to 32 at Appeal Book, Vol 2, pp 472-483; cross-examination at TS 1-32 to 40 at Appeal Book, Vol 2, pp 483-531; re-examination at TS 1-41 to 42 at Appeal Book, Vol 2, pp 532-533.

65. The parties then made oral submissions.[44]

    [44]            28 February 2017, TS 2-47 to 65 at Appeal Book, Vol 2, pp 581-599.

66. Mr Hunter made brief oral submissions on penalty consistent with the complainant’s written submissions, noting in addition that there was no evidence about the defendant’s capacity to pay a fine other than that Chess Park was unencumbered. 

67. He then turned to the draft order under s. 599 SPA. As he had foreshadowed, it differed from that proposed in the written submissions to take account of the Restoration Notice which had been issued. It omitted the provisions for photographic processes for recording compliance but was otherwise similar to the order proposed in written submissions. It prohibited clearing of native vegetation in areas identified in the Restoration Notice (which coincided with the charge polygons).

68. Mr Hunter addressed the costs issue. He emphasised the impracticality of the construction of s. 157 contended for by the defendant if merely saying the words “found guilty” excluded the power to order costs.

69. Mr Hunter added an additional submission as to why the discretion under s. 157 remained on foot: i.e. because Mr Baker could not be convicted as a matter of law unless he was personally present and he had not been present on 18 November. Mr Hunter submitted that the only circumstance provided for in the Justices Act for conviction in the absence of the defendant was under s. 146A.

70. Mr Marland emphasised, as to costs, that Mr Baker told the departmental officers what he was intending to do and asked them to seek an injunction.  He submitted that the bringing of the expensive prosecution was in effect the Department’s choice. 

71. On penalty he submitted that while Mr Dillewaard was a highly regarded expert, the majority of the environmental impacts were potential and difficult to quantify. On the proposed order under s. 599 SPA, Mr Marland submitted that it was in conflict with the Restoration Notice (though it was unclear in what way). That Notice was not tendered before her Honour but was tendered on this appeal.[45]

    [45]            Sentence and Costs Appeal, Exhibit 4.

72. Mr Hunter responded on the point in paragraph [70] in this way:[46]

    MR HUNTER: Just briefly, your Honour, the submission you’ve just heard is that Mr Baker should have been prevented from his course of repeatedly offending by the actions of the department and the submission is that that could have happened as early as 2011. And the problem with that submission is that no one from the – a government agency observed the clearing until August of 2012 and Mr Smith didn’t see it until January of 2013, by which time a large amount of it had occurred. Now, it’s true that a stop work notice could have been issued at that stage but, of course, the matter continued to be under investigation. And Mr Baker can hardly claim, by way of mitigation, that his further deliberate offending could have been stopped by the department telling him not to do it. And that’s in circumstances where he had been told that.

    Now, as to the necessity for an order pursuant to section five-hundred and nine - - -

    BENCH: Excuse me, but a stop work notice did issue - - -

    MR HUNTER: It did, but not until the end of 2013.

    BENCH: But there was some clearing after that?[47]

    MR HUNTER: Yes …

    [46]            28 February 2017, TS 2-64.15 to .35 at Appeal Book, Vol 2, pp 598.

    [47]As explained at paragraph [294] below, although I consider it was open to make that submission on the evidence, I am not satisfied that in fact Mr Baker was necessarily continuing to clear after the stop work notice on 4 December 2013.

Her Honour’s judgment on 28 February 2017

73. Immediately following submissions on 28 February, her Honour gave ex tempore reasons dealing with two matters: the s. 599 SPA orders and the question of power to make an order for costs.

74. As to the former, her Honour dealt with the matter in the following terms:[48]

    BENCH: …I will deal with the application for the order under 599(3)(c) of the Sustainable Planning Act…

    In my view, then, given his demonstrated reluctance to comply with instructions from the departmental officers, he should be ordered not to clear any native vegetation until such time, for five years, subject to – until such time as the order, the – over which I have no jurisdiction, and that is the restoration notice, has been appealed and dealt with. If that happens, if it is struck out or not made, then this order will be of no effect, but until that time, I make that order in terms of the draft order.

    [48]            28 February 2017, decision TS 1-2.1 to .17.

75. Her Honour made orders in terms of the prosecution draft which are set out below at [374].

76. Her Honour also decided to determine the threshold question of her power to award costs under s. 157 Justices Act.  Although not expressly stated, it is plain her Honour wanted to put the parties in the position of knowing whether submissions on costs would be futile or not.  Her Honour determined that she did have power to award costs.  Her reasons were as follows:[49]

    In relation to costs, I am of a firm view that I have jurisdiction. It is argued for the defence that this court does not have jurisdiction to make any order as to costs. I have been the magistrate throughout the hearing of this matter. It was my intention, however inelegantly done, to advise parties as soon as possible that I was persuaded of the Crown case to the extent that Mr Baker was found guilty. I knew that there would be, or I assumed, seeing the conduct of the Crown case and the witnesses called and the detail of the evidence, that there may well be an application for costs, and submissions about that from both prosecution and defence, and given the nature of the complaints, that there would be submissions on penalty and – from both prosecution and defence, that I would have to decide about.

    Mr Baker was not present. He was not convicted. My decision was an indication of the fact that the prosecution case had been proved to the appropriate standard, beyond a reasonable doubt. I had no intention, at that stage, to finish or perfect any order. It was my clear – maybe perhaps not clear, but it was my intention that the – once that indication had been given to the parties, that the matter would be adjourned to enable the parties to prepare to make, if they wish to, an application for cost, and if they wish to, to prepare to make submissions to oppose that application. The order was not finished or perfected, and in any event, Mr Baker was not present. As Mr Hunter has said, it would be really impractical if counsel had to come to court prepared, once the decision about guilty or not guilty was given, to be required immediately, both prosecution and defence, to make application for cost in a complicated matter, which had proceeded – I think it commenced on February 4, had proceeded over the entire year on part heard days, in which a great deal of evidence was given.

    So it was clear, I would have thought, to all concerned that an application would be made, and in any event the parties should have been given an opportunity to make submissions either way. I will give a – that is my decision in the matter, that I have jurisdiction. This court has jurisdiction to hear the application for costs. Now, as for the penalty and costs, I have to adjourn that decision. I should also say, on the – just the jurisdictional point, I was anxious to give a decision sooner rather than later. If I had delayed the decision, it would have been delaying the matter for months.…

    [Underlining added]

    [49]            28 February 2017, decision TS 1-2.20 to 3.5.

77. I analyse her Honour’s reasoning further below.  Her Honour otherwise adjourned the question of costs and penalty.

Her Honour’s judgment on 20 March 2017

78. On 20 March 2017, her Honour gave an ex tempore judgment on the remaining issues of costs, investigation expenses and penalty.

79. Her Honour began, however, by addressing the oversight in her 24 November 2016 reasons identified by Mr Hunter on 27 February 2017 and orally stating Mr Baker was found guilty in respect of the eight charges where that had previously been omitted.  I query whether that was strictly necessary given that her Honour found Mr Baker guilty of all charges on 18 November in any event.  Nothing turns on this in this appeal.

80. Her Honour then asked Mr Baker, who appeared as directed on that occasion to come to the bar table. (Mr Baker had previously failed to appear without excuse on 27 February 2017 and her Honour had issued a warrant.  Mr Baker then arrived during the hearing on 28 February and sought leave to be immediately excused.  Her Honour refused that application.)

81. Her Honour’s reasons dealt first with sentence.  Her reasons were generally in accordance with the prosecution’s submissions.[50] 

    [50]20 March 2017 Decision, TS 3.12 to 11.38 at Appeal Book, Vol 1, pp 9-17.

82. Aspects of her Honour’s reasons are potentially relevant to the question of power under s. 157. In particular:

    (a)Her Honour started her sentencing remarks with the following: “Michael Vincent Baker, you have been found guilty of seven charges of breach of the Forestry Act 1959 and 39 charges of breaches of the” SPA (the appellant emphasises the use of past tense);[51]

    (b)Then, after her sentencing remarks, her Honour stated: “You are therefore convicted and fined a total amount of $276,000 in respect of the 46 offences for which you have been found guilty”.[52]

    [51]            26 June 2019, TS 2-105.43 to 106.6.

    [52]            26 June 2019, TS 2-106.8 to .15.

83. Her Honour then dealt with the loss and damage issue under the Forestry Act and awarded the sum claimed by the prosecution. The basis upon which her Honour made the order, however, was the defendant’s conviction on all of the Forestry Act charges. The appeal against the convictions on Charges 1 and 2 on Complaint 1 has succeeded. Accordingly, the loss and damage calculation should be revisited. The parties are in agreement as to how this should occur. I deal with this further in paragraph [245] below.

84. Her Honour then turned to the question of costs. Notwithstanding that her Honour had determined the challenge to her power to award costs on 28 February 2017, her Honour gave further reasons on the matter:

    (a)Her Honour began as follows:[53]

    [53]            20 March 2017 Decision, TS 11.8 to .18 at Appeal Book, Vol 1, p 17.

    Your solicitor has made a submission that this Court, having found you guilty in November 2016, is functus officio. That is, that it has exhausted its legislative powers to make further orders, and that it is beyond the power of this Court to make a cost order, because you were found guilty in your absence in November 2016. I do not accept that submission. In November 2016, it was my intention to advise the Prosecution and your counsel that I had found the Prosecution case was proved beyond reasonable doubt, and that, therefore, you were found guilty of the offences. That was not the final order of the Court. It was necessary then to adjourn the matter to enable counsel to prepare for submissions on penalty and to prepare for the making of any other submissions, including submissions on costs.

    [Underlining added]

    (b)It is fair to assume her Honour was referring to her findings on 18 November 2016.  After observing that she expected complex submissions on costs and penalty in the circumstances such that no party would have been ready on that day to deal with those matters, her Honour continued:[54]

    [54]            20 March 2017 Decision, TS 12.1 to .6 at Appeal Book, Vol 1, p 18.

    As you were not present in Court, you were not convicted on the day by order of the Court. I adjourned for the purpose of submissions on penalty, submissions on costs, and your appearance, and an order of your conviction. After a hearing of 23 days, most of them full days, and the evidence from three expert witnesses, I anticipated that a costs application would be made, and that costs may be well ordered. The Justices Act provides such orders to be made.

    [Underlining added]

    (c)After discussing the course of events after 18 November 2016 (largely as set out above) her Honour concluded as follows:[55]

    The authorities are clear that this Court is able to adjourn a matter to impose penalty and to make costs order and an order for conviction, that is, to adjourn the matter before a final order is made. There is authority for the proposition that as the Court had not completed its legislative function to proceed to a conviction after the finding of guilty, it may adjourn the matter for that purpose, to hear submissions on the making of costs order and submissions, the making of other orders, and then to proceed to making that order of conviction, and to make orders on that day or even another day. In the matter of Bell v Carter, the [1992] QCA 25 at 1991, it was held:

    If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the Court is in a position to make its final determination on the question of costs.

    This is what happened in this matter. The formal conviction was deferred until this Court was in a position to make its final determination on the question of costs. The statement made in Bell v Carter was approved by his Honour, Judge Robin QC, in the District Court in the matter Morley v Senewiratne on [2008] QDC 296. In this case, the formal conviction was deferred until the Court was in a position to make its final determination on the question of costs.

    [Underlining added]

    [55]            20 March 2017 Decision, TS 12.18 to .39 at Appeal Book, Vol 1, p 18.

85. Her Honour then turned to consider the question of whether an award of costs was just and reasonable under s. 157 Justices Act and concluded that it was.  That conclusion is not disputed on this appeal.[56]

    [56]See paragraphs [221] and [234] below.

86. Her Honour then also considered whether the discretion under s. 158B(2) was enlivened. Her Honour concluded the matter was both one of special difficulty and complexity and one of special importance. Her Honour’s reasons can be summarised as follows.[57]

    (a)First, the length of the trial and its complexity was entirely outside the normal run of criminal trials in the Magistrates Court which in her Honour’s (considerable[58]) experience usually ran for at most three days.

    (b)Second, the scope and number of the charges added both difficulty and complexity, involving native vegetation under different statutory schemes and different tenures at different times over four years.

    (c)Third, the statutory scheme to be applied for the SPA offences was difficult and complex, particularly the interrelationship between the SPA and the VMA and given the changes in the scheme over the extended period in which the offending occurred.

    (d)Fourth, the difficulty and complexity arising from the SPA/VMA scheme arose in particular from the need for the prosecution to exclude numerous exemptions and exclusions arising under that scheme and the fact that a number of the exemptions were specifically relied upon by the defence.

    (e)Fifth, the case was of special importance because it engaged questions of the extent to which fire management could be relied upon by landholders, particularly where the legislative scheme for restraining clearing of native vegetation was controversial in some areas of the State. 

    (f)Sixth, the evidence of Mr Tran was in the public interest, extensive and required by the fire management issues raised by the defendant. 

    (g)Seventh, presenting the evidence of the clearing was a herculean task but necessary properly to present the case in an intelligible way.

    (h)Eighth, it was plainly necessary for senior and junior counsel to be briefed to deal with the enormity of the task of presenting the evidence.

    [57]            20 March 2017 Decision, TS 12.41 to 15.16 at Appeal Book, Vol 1, pp 18-21.

    [58]            Her Honour was appointed a Magistrate in 1993.

87. Her Honour then turned to assessing the costs to be awarded in exercising the discretion under s. 158B(2). That assessment is not challenged on this appeal.

88. The ground of appeal in respect of investigation costs is that there was no evidence that the costs claimed were reasonable as to amount or reasonably incurred.  Relevant to that, her Honour identified in her reasons the extent and utility in the trial of the evidence of the departmental witnesses, particularly Mr Goulevitch, Mr Smith, Mr Reinke and Mr Dillewaard.[59]  Her Honour did not expressly consider the amounts claimed for their work, perhaps because the hourly rates identified in Ms Sylvester’s affidavit were, on any view, modest. [60]  Her Honour awarded investigation costs of $165,000.

    [59]            20 March 2017 Decision, TS 17.5 to 18.10 at Appeal Book, Vol 1, pp 23-24.

    [60]            Affidavit of Silvester filed 23 December 2016 at Appeal book, Vol 1, pp 320-325.

89. Finally, her Honour recorded a conviction.  The whole of that matter was dealt with as follows:[61]

    MR MARLAND: We make the application that a conviction is not recorded. Our client’s 71 years of age. It is his first offence. And given your Honour’s decision in relation to the costs and sentencing in – that we have been provided today with, that is already a significant penalty for Mr Baker to have incurred. And there is no benefit of the Court or a further deterrence as a result of recording that conviction.

    So that is our submissions in that regard.

    BENCH: Thank you. Ms Dann, you rely on your submissions?

    MS DANN: Yes, your Honour, we do. Thank you.

    BENCH: Yes. In this matter, in my view, I accept that Mr Baker is 71 years of age. He is clearly a person of great energy and industry in undertaking this clearing and a person who is determined and – to proceed in terms of his beliefs and convictions. He has, however, been found guilty in circumstances that I have stated at length. This matter is an important matter, as I have found. It is – has been especially complex and difficult. It – there – in the sentence, I have emphasised that this is a matter of special and general deterrence, and in relation to Mr Baker himself, he must be further deterred from undertaking any further clearing or behaving unlawfully.

    Despite Mr Baker’s age, in my view it’s appropriate to record a conviction because of the serious nature of the offence. The conviction is recorded. Thank you. 

THE COSTS APPEAL

90. The costs appeal raises two issues:

    (a)Whether her Honour still had power under s. 157 Justices Act to award costs on 20 March 2017 having found made the statements she did on 18 November 2016; and

    (b)Whether her Honour was correct to conclude that the case was of special difficulty, complexity or importance.

Did her Honour have power to award costs?

Her Honour’s reasoning

91. Her Honour dealt with this issue twice, on 28 February 2017 and again on 20 March 2017 (see paragraphs [75] and [84]).  As I read those passages, her Honour’s reasoning can be stated as follows.

92. Her Honour recognised that she had stated that Mr Baker was found guilty of all charges on 18 November 2016. However, that statement did not and could not comprise “the conviction” under s. 157 Justices Act.  It could not comprise “the conviction” because:

    (a)Mr Baker was not present in Court on 18 November 2016 and he could not be convicted as a matter of law in his absence; and

    (b)Her Honour did not intend, by stating Mr Baker was guilty, to make any order.  Rather her Honour intended only to communicate that Mr Baker was found guilty so that the parties could prepare costs and penalty submissions which her Honour expected would take some time.  Her Honour emphasised the impracticality of any other approach where anything other than the simplest orders on costs might be required.

The appellant’s submissions

93. The appellant expressly relied on its submissions below as well as making further written submissions on the appeal identifying specific errors in her Honour’s reasons.[62]  Mr Allan (for the appellant) also addressed on this issue.

    [62]Appellant’s submissions on costs on appeal at Appeal Book, Vol 2, pp 610-633; defendant’s submissions on costs at trial in reply at Appeal Book, Vol 2, pp 647-651.

94. As to error in her Honour’s reasons, the appellant specifically raised two matters.

95. The first was that Mr Baker did not have to be personally present to be convicted.[63]  The appellant submitted that no authority was cited for that proposition and that reading the Justices Act as a whole, the proposition was incorrect.  The appellant relied on a number of provisions,[64] in particular on s. 144 Justices Act, which provides:

    If both parties appear either personally or by their lawyers, then the justices may proceed to hear and determine the complaint.

    [63]            Appellant’s submissions on costs on appeal, paragraph 8 at Appeal Book, Vol 2, p 613.

    [64]            Justices Act ss. 19, 21, 142(1)(a) and (4), 142A, 144, 146(1)(a), 147, 157 and 159.

96. In oral submissions, Mr Allan also relied on s. 150(3) Justices Act.[65]  That subsection speaks of the clerk of the Court giving notice of a conviction if the person or his lawyer or agent is absent when conviction is pronounced.  He contended (as I understood it) this necessarily implied a power to convict in absentia.  He also submitted that the power to convict a person in their absence was supportable as part of the implied powers necessary to permit the Court to act effectively to hear and determine complaints.

    [65]            26 June 2019, TS 2-57.20 to 65.21.

97. The second matter raised was that her Honour’s intention when finding Mr Baker guilty of all the charges was irrelevant because, on the proper construction of the words “the conviction” in s. 157, by finding Mr Baker guilty in open court, her Honour had exercised her judicial power to convict and nothing further remained to be done. That is, her Honour’s conduct admitted of no legal conclusion except that she had convicted Mr Baker. There was no distinction recognised by the relevant provisions between stating a person was found guilty and making an order of conviction.

98. This second proposition reflects the gravamen of the submissions to her Honour at trial.  The trial submissions (relied upon also on this appeal) expanded on the considerations said to support that construction as follows.

99. First, the appellant pointed to authority to support the proposition that “convict” or “conviction” at common law encompasses a finding of guilt rather than a judgment or order based on that finding.  The appellant relied on Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 273 and Toohey J in Maxwell v R (1996) 184 CLR 501 at 519-520.

100. Second, while the appellant recognised that those cases emphasised that the meaning of “convict” or “conviction” in a statute depends on the terms of the statute, he submitted that on the proper construction of the word where it appeared in ss. 157 and 159 Justices Act, there was nothing to indicate that the common law meaning was displaced, rather the contrary.  

101. This was sought to be made good as a proposition of construction[66] by reference to:

     (a)Section 146, which confers the power on a plea of not guilty for the court to convict the defendant or dismiss the complaint; and

     (b)Sections 149 to 153, which provide for the Court to make an order of dismissal or a minute of conviction in language which, the appellant contends, draws a distinction between the act of convicting or dismissing and the subsequent administrative act of recording conviction or dismissal.

     [66]            Defendant’s submissions on costs at trial, paragraphs 62-67 at Appeal Book, Vol 2, p 630.

102. That construction was also said to be supported by the line of authority in Queensland establishing a Magistrate is functus officio once he or she has found a defendant guilty or not guilty in open court: Fitzgerald v Newing; ex parte Newing[67]; Kimlin v Wilson; ex parte Kimlin[68]; Kimmorley v Atherton; ex parte Atherton[69]; Shield v Topliner Pty Ltd[70].

     [67] [1965] QWN 14.

     [68] [1966] Qd R 237 at 242.

     [69] [1971] Qd R 117 at 125.

     [70] [2004] QCA 476 at [15].

103. Third, the appellant’s construction was said to be supported by the decision of the Court of Appeal in Bell v Carter [1992] QCA 245. As that case requires careful consideration, it is convenient to consider it at this point.

104. That case concerned whether a Magistrate had power to award costs in respect of the dismissal of a summary charge.  In that case, the Magistrate on 1 July 1991 dismissed both charges brought by the appellant/complainant against the respondent/defendant.  The dismissal of the charges followed the execution of a deed by the parties on the previous day by which the appellant agreed to consent to dismissal of the charges and Mr Carter (the respondent/defendant) released all claims for costs he might have in relation to the complaint.  The Court found that the deed plainly precluded the respondent from seeking costs upon the dismissal of the charges.

105. Strangely, the police prosecutor knew of the deed but did not raise it as a basis for refusal of costs on dismissal.  The Magistrate endorsed the bench charge sheet as having dismissed the complaint with costs to be paid by the appellant and adjourned the matter of quantum to another day.  The transcript suggested the Magistrate dismissed the charges and adjourned the question of costs to another day.

106. The Court of Appeal held as follows:[71]

     Each of these orders is contrary to s. 159 of the Justices Act of 1886 which provides:

     “The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of prosecution.”

     There can be no doubt that on 1 July 1991 the magistrate dismissed the charges.  The only question in doubt is whether he made an order for costs leaving quantum to be assessed at a later date, or made no order for costs at all on the date notwithstanding an intimation of his intention to do so.  It is not necessary to decide which of these courses he took.  Both were beyond power.  If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the court is in a position to make its final determination of the question of costs.

     [71] [1992] QCA 245 at 4-5.

107. One might think that the reference to formal dismissal is problematic for the appellant’s construction argument.  The appellant deals with that in this manner.  The appellant submits that the Court of Appeal must be taken to have used “formal” merely to mean stating in open court that the complaint is dismissed.  Anything else:

     (a)Would be inconsistent with the proper construction of the relevant provisions of the Act set out in paragraph [100]; and

     (b)Would be inconsistent with the principle at common law that an acquittal pronounced in open court is final.  

108. Thus it is submitted that Bell v Carter “can only be read, for the purposes of section 158 and section 159 as the formal pronouncement in open court dismissing the complaint”.[72]  I note however that neither of the points raised by the appellant are mentioned in the case (much less argued) and the dismissal there had in fact been endorsed on the bench charge sheet.  It is also hard to think of what could comprise an informal dismissal if stating in open Court that a complaint is dismissed is the formal dismissal.

     [72]            Defendant’s submissions on costs at trial, paragraph 76 at Appeal Book, Vol 2, p 632.

109. Fourth, the construction contended for by the appellant is said to be consistent with the construction of the section stated in Kennedy Allen, where at p 401 the learned authors write:

     It is now settled law that subject perhaps to the cases mentioned in the next paragraph infra, a Magistrate is functus officio the moment has had pronounced a conviction by word of mouth.  Lutwyche J. so decided nearly a century ago [now 154 years ago].  See Walsh v Kent (1862) 1 S.C.R.Q. 44 at p. 45 per… Where however justices sitting in petty sessions [a Magistrate] have been surprised into making an order or have done so improvidently, they may, it seems, quia improvide emanavit, alter their judgment during the continuance of the session (that is, on the same day), so as best to answer the purposes of justice… [authorities omitted]… But they have no power to make such an alteration as amounts to a fresh substantive adjudication.  If the alteration goes no further than mere correction of an omission or mistake, that part of the conviction or order may be quashed...

110. In my view, this passage is not as clear as it might be as to what has to be pronounced to comprise a conviction.  The example which follows is one in which the Court had pronounced conviction and sentence and then sought afterwards to vary the sentence in a manner which the appellate Court considered went beyond a mere correction.  The appellant also relied specifically on Green v Sergeant [1951] VLR 500 as supporting its contention that the conviction is complete on a finding of guilt. That case does not support that contention.

111. Fifth, in oral submissions, the appellant relied on the proposition that a conviction is distinct from sentence under the Justices Act because a distinction is drawn between appeals of conviction and appeals of sentence under s. 222 Justices Act.  This was said to support the conclusion that conviction in the Justices Act does not mean finding of guilt and sentence.  Reliance was placed on R v Rasmussen [2002] 1 Qd R 299 at [37]. That case, and the more recent decision of Lasker v Holeszko [2019] QCA 163, are further considered below.

112. Sixth, in response to the respondent’s contention in reliance on Bell v Carter, that what is required is a formal conviction (in the sense of a conviction recorded in writing), the appellant emphasised that there is no warrant for reading “formal” into ss. 157 and 159.

113. Seventh, the appellant addressed the impracticality argument advanced by Mr Hunter at trial and referred to by her Honour by submitting that all the Court has to do to avoid the inconvenience of s. 157 being conditional on mere pronouncement of guilt is inform the parties that the Court is going to find a person guilty at some future time, and invite submissions to be prepared on that basis.

114. The appellant also responded to the respondent’s submissions to her Honour that:

     (a)It could rely on the alternative of an order (as in the reference to “conviction or order”) to sustain making the costs order even if there had been a conviction; and

     (b)If her Honour had convicted, she could vary the orders on the basis that the comprised an accidental slip.

The respondent’s submissions

115. The respondent maintained its contention that Mr Baker could not be convicted (regardless of how the word “conviction” is construed in ss. 157 and 159) on 18 November 2016 because he was not present in Court on that day. Further, the only occasion when her Honour could have convicted him when he was in Court was on 20 March 2017 when her Honour did so.

116. The respondent contended that the inference that Mr Baker had to be personally present in Court arose from the fact that the Justices Act makes express provision for when the Court may deal with the complaint in the defendant’s absence.  The respondent relied primarily on three sections which show that the Justices Act contemplates hearing and determination of complaints in the absence of the defendant:[73]

     (a)Section 142A, which authorises the Court “to deal with and determine the matter of the complaint” in the absence of the defendant where the complaint is made by a public officer or police officer. That section applies where the defendant fails to appear at the hearing;

     (b)Section 146A, which permits the Court to proceed to hear and determine a complaint in the absence of a defendant who communicates a wish to plead of guilty without appearance; and

     (c)Section 147 which permits the Court to proceed to hear the complaint in the absence of both parties if one or both do not appear on the adjourned hearing date of a complaint.

     [73]Respondent’s submissions on costs on appeal, paragraphs 25-29 at Appeal Book, Vol 2, pp 671-672.

117. While the respondent recognised there is no provision requiring the defendant to be personally present to be convicted, he contended that the above provisions dictate that to be the position by necessary implication because this case falls outside each of the scenarios specifically provided for in those sections where conviction may occur in the person’s absence.

118. The respondent next submitted that her Honour’s finding of guilt of all charges on 18 November 2016 did not have the effect of precluding the making of the costs order on 20 March 2017. The respondent’s argument on this central question had a number of distinct limbs.

119. The first limb involved the submission that what had occurred on 18 November did not give rise to “the conviction” of Mr Baker on the charges for the purposes of s. 157 and 159 Justices Act.  The following points were advanced.[74]

     [74]Respondent’s submissions on costs on appeal, paragraphs 31-61 at Appeal Book, Vol 2, pp 672-682.

120. First, the terms of s. 146(1) did not advance the appellant’s point at all. Section 146(1) is a procedural provision dealing with how a complaint proceeds after a plea of not guilty and the meaning of “convict” in that section is not inconsistent with the meaning contended for by the respondent.

121. Second, Bell v Carter deliberately referred to the requirement for a formal dismissal and that this required something more than merely pronouncing dismissal in Court.  In the context of conviction, this required the finding of guilt and sentence.  In support of that interpretation, the respondent emphasised the variable meaning of “conviction” and “convict” depending on statutory context recognised in Cobiac v Liddy and Maxwell v R.  He emphasised that conviction can mean the finding of guilt by the tribunal of fact or can mean the completion of the process of finding of guilt and sentence.  It was submitted that the latter meaning was consistent with authority as well as the statutory context.

122. As to authority, in addition to Bell v Carter, the respondent also relied on Morley v Senewiratne.  Morley v Senewiratne, involved a trial of four complaints against two defendants (as joint tenants).  In that case, the Magistrate on 8 August 2007 read into the reasons for decision that all the elements of all the charges had been established for, amongst other things, interfering with protected vegetation under the Natural Assets Local Law 2003 (Qld) and then adjourned for submissions on sentence and costs on 20 September 2007. On 20 September 2007, after defence Counsel raised concerns with the impact of the finding of guilt from 8 August 2007 on the commencement of the limitation period for the purposes of a s. 222 appeal, the Magistrate relied on his inherent jurisdiction to set aside his previous order in accordance with either s. 147A of the Justices Act or s. 188 of the Penalties and Sentences Act.  The Magistrate then:

     (a)Restated his finding that the elements had been satisfied for each charge against each defendant before proceeding to find them guilty of each offence and state that this was the order as of that day for the purpose of the conviction;

     (b)Heard submissions and pronounced reasons on penalty and then proceeded to hear an application and submissions on costs as had been foreshadowed earlier by him;

     (c)When the prosecutor made an application for an uplift of costs and there was an objection made, adjourned for a decision on costs. Before this occurred, the unsuccessful party wrote to the Court and advised that the orders the Magistrate had made disabled him from proceeding to make any cost order and cited Bell v Carter; and

     (d)Following that letter, the Magistrates accepted that he had made an error and was functus officio, without jurisdiction to make an award about costs.

123. It can be seen therefore that in Morley, the Magistrate had made a finding of guilt and imposed sentence without having determined costs of the trial.  The complainant appealed.  Robin DCJ initially observed at [2]:

     The main issue in this appeal brought by the complainant under s222 of the Justices Act 1886 arises from the failure of another Magistrate and some (if not all) counsel to have in mind Bell v Carter at the vital moment in the Magistrates Court at Holland Park on 20 September 2007, notwithstanding that they were aware of the case from previous experience. The Magistrate here, when counsel for the parties who were going to have to pay costs took the point, accepted that he had made an error and that he was functus officio, without any jurisdiction to make an order about costs. No submission was made to the contrary. His Honour stated that the matter would have to be rectified on appeal.

124. After setting out the course of events summarised above, his Honour observed (at [9] to [10]):

     … There is no reason why such costs ought not to have been awarded or, indeed, the scale costs under the Justices Regulation, which Mr Allen appeared to acknowledge as appropriate by propounding his schedule. As things stand, because Bell v Carter was overlooked, and because his Honour took the view on 27 September 2007 that there was nothing to be done by way of repetition of the setting aside in reliance on s 147A or s 188 the week before, no costs whatever were awarded. I think it is clear that before the orders were made imposing sentences, the Magistrate had developed an intention to award costs, and probably in a higher amount than the scale.

     The orders the Magistrate made disabled him from proceeding to make the appropriate or any costs order. The appellant/complainant is thus “aggrieved” by the orders made and entitled to appeal them under s 222(1) of the Justices Act 1886. That an appeal may be brought in relation to costs only is indicated by s 222(2)(b).

125. His Honour then proceeded to consider the appellant’s argument that the fines imposed were manifestly inadequate. After dealing with a jurisdictional point on the form of the Notices of Appeal, his Honour turned to assessing the adequacy of the sentences.  In the course of concluding they were not inadequate, his Honour referred to the Magistrate’s obvious intention to award costs.  His Honour said (at [28]):

     Another aspect which I consider significant is the Magistrate’s sentencing on the assumption that there would be a substantial financial detriment to the respondents by way of costs to be paid to the complainant (of course, there was the further burden of having to bear their own costs). The rationale for ordering costs, generally a possibility only in summary prosecutions, is to limit the extent to which a complainant who establishes a case for conviction is out of pocket – rather than punishment of the offender. The costs order, if made, is not really part of the sentence. It cannot have default imprisonment attached. It is established that when the appropriateness of a fine amount is in question, regard may be had to the impacts of an associated costs order.  

126. His Honour relied on Dever v Creevey [1993] 1 Qd R 232 as authority for that proposition. He then continued (at [30] to [32]):

     To the extent that the fines under appeal may appear lenient, I would think this is the explanation. The “comparable sentences” made available show a pattern of the costs exceeding the fine in matters like the present. In Bone v Mothershaw [2003] 2 Qd R 600; SLR B29/2002 however, the fine was $20,000, the costs $6,513.

     There was going to be a substantial costs order (one in excess of $9,750 in my opinion) at first instance, but for his Honour’s confessed error (I do not accept Mr Allen’s submission that the error was solely the appellant’s, in failing to prevent the Magistrate from pronouncing the sentences as he did, without having first identified an amount of costs to award, to satisfy s 159, citing University of Woollongong v Metwally (1984) 158 CLR 447, 483, as quoted in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645. It was said the appellant was bound by the way her case was conducted before the Magistrate. Perusal of the transcript indicates to me that this was nothing like a case of counsel deliberately sitting back while his Honour was obviously running foul of Bell v Carter. It would have required very quick thinking to intervene at that point. I think it is a travesty to present the appellant as now trying to present a different case.

     Although the appellant does not satisfy the court that the fines imposed below were inadequate and so ought to be set aside, it does persuade the court that the relevant orders were made in error by being made when they were with the consequence of preventing his Honour’s implementing his intentions to make an order for costs in favour of the appellant; on this basis, those orders should be set aside.  

127. His Honour then proceeded to re-exercise the discretion to award costs under s. 157. The case supports the respondent because his Honour proceeded on the express basis that if the sentence was set aside, the power to award costs arose, even if the finding of guilt remained unchallenged.

128. The respondent also relied on Schloss v Bell [2016] ICQ 17 and Gibson v Canniffe [2008] QDC 319, considered further below. The former case adopted the expedient initially used by the Magistrate in Morley to vacate orders he had made dismissing a complaint.  In the latter, Devereaux SC DCJ distinguished Bell on the basis that the acts done by the Magistrate in that case did not amount to the formal dismissal called for in Bell, despite the fact that a certificate of dismissal had been issued.

129. The second limb of the respondent’s argument relies on the reference in s. 157 to ordering costs “by the conviction or order”. The respondent submits that an order for costs of the trial is an order within the meaning of the section, and thus it was open to the Magistrate to order costs even if “conviction” has the narrower construction contended for by the appellant. This aspect of s. 157 differs from s. 158, which was the section specifically considered in Bell.

130. The third limb of the respondent’ argument relies on the slip rule approach initially adopted in Morley.  The respondent submits:[75]

     However, if any concerns in this respect remain, it is well established at common law that a Court only loses power to vary an order once it has been perfected and passes into the record.[76] As stated previously, there had been no formal conviction or order.

     There is no equivalent slip provision to s329(e) of the Industrial Relations Act 1999[77]which applies to these types of proceedings in the Magistrates Court. However, the courts have relied on an inherent jurisdiction to correct an error arising from an accidental slip or omission[78].

     [Footnotes in original]

     [75]            Respondent’s submissions on costs on appeal, paragraphs 57-58 at Appeal Book, Vol 2, p 681.

     [76]See R v Cross (Patrick) [1973] 1 QC 937 per Lord Widgery CJ at 940 – 941 which was cited with approval in R v Billington [1980] VR 625 at 639-631 and R v Lapa (No.2) (1995) 80 A Crim R 398 per Clark JA at 402 and 403.

     [77]            This section was relied on as the slip rule by O’Connor DP in Schloss.

     [78]See Commissioner of Police Service v Spencer [2014] 2 Qd R 23 at [63]-[65], [67]-[68].

Analysis

131. The following issues arise:

     (a)Did Mr Baker have to be personally present on 18 November 2016 for there to be convicted?

     (b)If not, did her Honour’s acts on 18 November 2016 give rise to the conviction of Mr Baker on the charges within the meaning of ss. 157 and 159 Justices Act?

     (c)If so, was it still open to her Honour to order costs under s. 157 Justices Act on the basis that her Honour retained power to make an “order” for costs under that section?

     (d)If not, by this appeal can her Honour’s conviction of Mr Baker on 18 November be set aside on the basis of s. 147A or the slip rule so as to enliven the jurisdiction to award costs?

Further provisions of the Justices Act

132. In addition to the sections of the Justices Act set out above at [51] the following provisions are relevant and/or relied upon by the parties.

133. Part 6 regulates proceedings for simple offences and breaches of duty.  Division 2 of that part is headed “Default by complainant or defendant” and relevantly provides:

     (a)By s. 141, that if the complainant does not appear personally or by a lawyer at the date specified in the summons and the defendant is present, the Magistrate (in effect) may dismiss the complaint or adjourn it;

     (b)By s. 142, relevantly:

     142 Proceedings in absence of defendant

     (1) If at the time and place so appointed the defendant does not appear when called and the justices are satisfied, on oath or by deposition as provided in section 56, that the summons was properly served on the defendant a reasonable time before the time appointed for the defendant’s appearance, the justices may—

     (a) proceed ex parte to hear and determine the case as fully and effectually to all intents and purposes as if the defendant had personally appeared before them in obedience to the said summons; or

     (b) if satisfied, from information given on oath, that the matter of the complaint is substantiated, issue their warrant to apprehend the defendant and to bring the defendant before justices to answer the complaint and to be further dealt with according to law; or

     (c) upon the written plea of guilty of the defendant and upon being satisfied that the requirements of section 146A have been complied with in all respects, proceed as prescribed by that section; or

     (d) because of the absence of any witness or any other reasonable cause, adjourn the hearing to a time and place to be then stated or to be determined as hereinbefore in this Act provided before a court constituted in accordance with this Act by such justices as may then be present.

     Note—
     See section 150A for when the justices may, instead of dealing with the complaint under this division, make an order ending the complaint.

     (2) When the justices proceed as prescribed by subsection (1)(a) or (c) they shall not—

     (a) order that the defendant be disqualified either absolutely or for any period from holding or obtaining any licence, registration, certificate, permit or other authority under any Act or order that any licence, registration, certificate, permit or other authority held by the defendant under any Act be cancelled or suspended; or

     (b) order that the defendant be imprisoned (not being imprisonment in default of payment of any penalty, compensation, sum of money or costs adjudged to be paid by the decision of the justices);

     unless the justices have first adjourned or further adjourned the hearing of the complaint to a time and place appointed by the justices to enable the defendant to appear for the purpose of making submissions on the question of such disqualification, cancellation or suspension or penalty, as the case may be.

     (c)By s. 142A(1), (2) and (4) [there is no (3)]:

     142A Permissible procedure in absence of defendant in certain cases

     (1) Notwithstanding the provisions of this Act or any other Act it shall be lawful to adopt in respect of a complaint of a simple offence or breach of duty made by a public officer or a police officer the procedure prescribed by this section.

     (2) Every step or proceeding to be taken in carrying out such procedure and the making of any order in the course thereof shall be subject to the provisions of this Act (other than of this section) other than so far as this section is inconsistent with the other provisions of this Act.

     (4)        Where—

     (a) a complaint of a simple offence or breach of duty is made by a public officer or a police officer; and

     (b) the defendant is required to appear at a time and place fixed for the hearing of the complaint—

     (i) by a summons issued on the complaint and served at least 14 days before the date on which the defendant is required by the summons to appear; or

     (ii) under a condition of the defendant’s bail or by a notice given to the defendant under the Bail Act 1980; or

     (iii) by a notice of adjournment given to the defendant a reasonable time before the date previously fixed for the hearing of the complaint; and

     (c) the defendant does not appear at the time and place fixed for the hearing of the complaint;

     the court before which the complaint comes for hearing, whether on the return date or an adjourned date, may, if it is satisfied that the facts as alleged in or annexed to or served with the complaint or summons or as stated by the complainant according to law constitute such a simple offence or breach of duty and that reasonably sufficient particulars thereof are set out in or annexed to or served with the complaint or summons or are stated by the complainant, deal with and determine the matter of the complaint as fully and effectually to all intents and purposes as if the said facts and particulars had been established by evidence under oath before it and as if the defendant had personally appeared at the time and place fixed for the hearing of the complaint.

134. Division 3 of Part 6 is headed “Hearing” and relevantly provides:

     (a)By s. 144 that if “both parties appear either personally or by their lawyers, then the justices may proceed to hear and determine the complaint”.

     (b)By s. 145:

     145 Defendant to be asked to plead

     (1) When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.

     (2) If the defendant is legally represented and there is more than 1 complaint before the Magistrates Court, a plea to any number of the complaints may, with the consent of the defendant, be taken at the same time on the basis that the plea to 1 complaint will be treated as a plea to any number of the complaints if the court is satisfied—

     (a) the defendant has obtained legal advice in relation to each of the complaints; and

     (b) the defendant is aware of the substance of each of the complaints.

     (3) If the Magistrates Court takes a plea under subsection (2), the court is not required to state the substance of any complaint before the court to the defendant.

     (4) If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law. 

     (c)By s. 146, relevantly:

     146       Where defendant pleads not guilty

     (1)        If the defendant pleads not guilty then the court may—

     (a) proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant’s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require; or

     (b) upon good reason appearing therefor, before any evidence is adduced, adjourn the hearing.

     (2) A hearing may be adjourned pursuant to subsection (1) from time to time provided no evidence has been adduced before any court in respect of the complaint.

     (3) When a hearing is adjourned pursuant to subsection (1) the provisions of section 88 shall, with all necessary adaptations, apply thereto.

     (d)By s. 146A, relevantly:

     146A Proceeding at the hearing on defendant’s confession in absentia

     (1) This section applies if a defendant, under a summons or a condition of the defendant’s bail or by a notice given to the defendant under the Bail Act 1980, is required to appear before a Magistrates Court or justices to answer a complaint, other than a complaint of—

     (a)        an indictable offence; or

     (c) an offence prescribed by regulation for the purposes of this paragraph; or

     (d) an offence in relation to which another Act requires the court or justices to proceed in a way different from that provided by this section.

     (2)Where the clerk of the court receives a notification (a defendant’s plea notification) in writing purporting to be given by the defendant or by a lawyer acting on the defendant’s behalf that the defendant wishes to plead guilty without appearing before the court and the defendant does not appear at the time and place appointed for the hearing or adjourned hearing of the complaint, then—

     (a) the justices may proceed to hear and determine the case in the absence of—

     (i) the defendant in the same way as if the defendant had appeared and pleaded guilty; and

     (ii) if the complainant consents to the justices hearing and determining the matter in the complainant’s absence—the complainant; or

     (b) if the justices decide not to proceed as aforesaid, they shall adjourn or further adjourn the hearing for the purpose of dealing with the complaint as if the defendant’s plea notification had not been given.

     (e)By s. 147:

     147 Justices may proceed to hearing in absence of both or either of the parties

     If at the time or place to which a hearing or further hearing is adjourned, either or both of the parties does not or do not appear personally or by a lawyer, the justices then present may proceed to such hearing or further hearing as if such party or parties were present, or if the complainant does not appear the justices may dismiss the complaint with or without costs.

     (f)By s. 147A:

     147A Power of justices to reopen proceedings and rectify orders

     (1) This section does not apply to an error in a sentence, or to an error consisting of a failure to impose a sentence, for which a court may reopen a proceeding under the Penalties and Sentences Act 1992, section 188.

     (2) Where justices record a conviction or make an order that is based on or contains an error of fact, those justices or any other justices may, on the application of a party to the proceedings or a clerk of the court reopen the proceedings and after giving the parties an opportunity of being heard, set aside the conviction or vacate or vary the order in either case to conform with the facts.

     Example—

     An order may be varied to correct the defendant’s name.

     (3) The powers conferred by subsection (2) include power to set aside a conviction or vacate or vary an order where the justices are satisfied that—

     (a)the conviction or order has been recorded or made against the wrong person; or

     (b) the summons issued upon the complaint originating the proceedings that resulted in the conviction or order did not come to the knowledge of the defendant; or

     (c) the defendant in the proceedings that resulted in the conviction or order has been previously convicted of the offence the subject of the complaint originating those proceedings; or

     (d) the conviction or order recorded or made against the person was incorrectly ordered or made because of someone’s deceit.

     (4) The justices may, upon the hearing of an application pursuant to this section, take evidence orally or by affidavit.

     (5) An application pursuant to subsection (2) shall be made within 28 days after the date of the conviction or order or such further time as the justices allow upon application made at any time in that behalf.

Power exists to award counsel’s fees as such under s. 232A(2)

455. The appellant appeared to submit that there was no power under s. 232A(2) to award a separate amount for counsel’s fees. [251] The argument proceeded in this way.

     [251]That seems to be the gravamen of paragraph 13 of the appellant’s submissions on the costs of the appeal so far as I could determine.

456. The appellant began by contending that there is no power to award an additional amount for counsel’s fees under the relevant scale of costs.[252]  In my view, that is correct.  Item 2 provides that Part 2 covers all legal professional work, even if the work is done by more than one lawyer.  The appellant submits that the word “lawyer” should be read as including barristers and solicitors.  I agree.  Not only is the word now apt to refer to both because of the Legal Profession Act 2007 (Qld), but also because the work of a barrister and of a solicitor falls within the scope of the expression “legal professional work”.

     [252]            Justices Regulation 2004 (Qld), sch 2.

457. Part 2 then specifies a sum in accordance with that schedule for costs which may be allowed for legal professional work as follows:

     Work for hearing of complaint up to and including day 1

     1Instructions and preparation for the hearing, including

     attendance on day 1 of the hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . up to $1500.00

     After day 1

     2           For each day of the hearing after day 1 . . . . . . . . . . . . . . . . . . . . . . . . up to $875.00

     Other court attendances

     3 Court attendance, other than on the hearing of the
     complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .up to $250.00

458. Part 3 provides for disbursements.  It relevantly provides by Item 5:

     5           Disbursements, other than to witness for attending

     Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.

459. I do not think that Item can be read as permitting payments for legal professional work to a lawyer acting as advocate.  It does not say as much.  Rather it provides that fees and payments including travelling, accommodation and other expenses of a lawyer acting as advocate may be recovered.  This Item is concerned with expenses of an advocate, not fees for acting as advocate.  It says nowhere that payments to a lawyer as advocate may be recovered.  The express provision for legal professional fees in Item 2 and Part 2 confirms this approach.

460. The appellant’s next step is to emphasise that in awarding costs under s. 232A(2) or indeed s. 158B(2), it has been held that a Court ought to use the scale as a guide to determining the amount of costs which is just or just and reasonable respectively. This proposition is supported by authority. One recent statement in this Court was Hickey v Crime and Misconduct Commission [2008] QDC 340 at [42] to [44] where Shanahan DCJ said:

     [42] The respondent submits that the scale should be used as a guide in arriving at a quantum above the scale (Washburn v State Energy Commission (WA) 1992 8 WAR 188 at 193, 194; Durrant v Gardner [2000] QDC 198, McGill DCJ, 23 June 2000 at [46]). It is submitted that the amount awarded should be a small multiple of that scale.

     [43] To my mind, it is clear that the legislature has limited the discretion to award costs to successful defendants in criminal prosecutions as a matter of policy. That policy is based on the public interest of ensuring that the bringing of proper prosecutions is not fettered by the prospects of extensive costs orders being made in the event of unsuccessful prosecutions. Any award of costs above the scale must be made with that principle in mind. No authorities have been placed before me where solicitor/client costs or indemnity costs have been awarded in these circumstances.

     [44] The costs to be awarded must be “just” in relation to the appeal and “just and reasonable” in relation to the summary trial. The amounts to be awarded must be made bearing in mind the policy of the legislation. The scale in the regulation is a clear indication of that policy as it bears little relation to present day economics. However, to my mind, the legislative intent is clear.

461. The appellant’s final step is to challenge the reliance by the respondent on Morley v Senewiratne as justifying an award of a multiple of the amount in Part 2 for legal costs plus counsel’s fees as well. This last step does not do justice to the respondent’s submissions in relation to counsel’s fees.  True it is that Morley did not specifically allow counsel’s fees in addition to the multiple of the Part 2 amount awarded by his Honour.  However, neither did his Honour expressly refuse to do so.

462. Further, the respondent did not rely on Morley as authority that counsel’s fees may be allowed as part of the amount of costs which may be justly allowed under s. 232A(2). Rather it relied on Hickey v Crime and Misconduct Commission which was followed by Schloss v Bell (at [59]). In Hickey, Shanahan DCJ said:

     [47] The Respondent also submits that the amount of costs should be limited to the items set out in Schedule 2 of the Regulation. That may be so when costs are awarded under s 158B(1) and s 232A(1) but I am of the view that no such limitation applies when it is appropriate to award a higher amount under s 158B(2) or s 232A(2). In that regard, the Note to paragraph 1 of the Schedule 2 of the Regulation recognizes the discretion to allow a higher amount for costs which, in my view, qualifies the limitation in paragraph 1.

     [48] The respondent submits that a fair assessment for a global sum may include two days preparation for counsel and solicitor and two days appearing at hearing for counsel and solicitor for the summary trial and one day’s preparation for counsel and solicitor and one day’s appearance for counsel and solicitor at the appeal. That submission appears to overlook that the summary trial took three days of hearing.

     The respondent also submits as an alternative that a daily fee for the appearance of senior counsel (based on the National Guide to Counsel Fees, Registrar, Federal Court of Australia, 27 July 2006) be used to calculate a maximum sum based on the days of hearing. That equates to maximum costs of $17,210 for the summary trial and $6,360 for the appeal.

     I am satisfied that it was appropriate to brief senior counsel in this matter. Any award of costs that is just (and reasonable) should recognise that.

     In relation to the summary trial I am of the view that it is just and reasonable to award costs based on the daily rate for senior counsel as provided by the Federal Court scale but also to award costs for the solicitor’s preparation as a function of the scale set by the Justices Regulation 2004. To my mind a multiple of three times that scale would be appropriate.

     In relation to the appeal I am of the view that is just to award costs based on the daily rate for senior counsel as provided by the Federal Court scale but also to award costs of the solicitor’s preparation as a function of the scale set by the Justices Regulation 2004. Again a multiple of three is appropriate.

463. Judge Shanahan’s reasons are inconsistent with the proposition which seems to underpin the appellant’s argument about counsel’s fees (if that is indeed the point of that part of the appellant’s submissions).  Though I am not bound by that decision, and should bring my own judgment to bear on the matter, considerations of comity suggest I should follow it unless persuaded that is was wrongly decided.[253]  Far from being persuaded it is wrong, I think it the better view. 

     [253]BRB Modular Pty Ltd v AWX Constructions Pty Ltd [2015] QSC 222 per Bond J at 10; Thompson Residential Pty Ltd v Tran [2014] QDC 156 at [17].

464. In addition to the point made by his Honour, there is another argument in favour of that view. Each of ss. 158B(2) and 232A(2) confer a power to allow a higher amount for costs. The subsections themselves identify what informs allowing such an amount:

     (a)A judge must be satisfied the higher amount is just; and

     (b)Whether it is just or not must be determined having regard to the special difficulty, complexity or importance of the matter.

465. The construction contended for by the appellant would make the sections read as if they said “the judge may allow a higher amount for costs for an item under the scale”, or some similar reading. The section does not say that. Nor is there any compelling reason to read down the broad discretion conferred in ss. 232A(2) and 158B(2), particularly when the considerations allowing a higher amount for costs are stated in the subsection.[254]

     [254]See the principles stated in paragraph [412] above.

466. Further, the structure of s. 232A tends to support the broader reading. The chapeau provision of s. 232A(1) provides that “a judge may award costs only” then specifies the scale. Section 232A(2) then permits a judge to allow “a higher amount for costs…”. Thus s. 232(2) picks up the chapeau provision of 232(1). In this way the section communicates that in the ordinary case, the judge may award costs calculated in a specific manner but in the exceptional case he or she may allow an amount for costs not so calculated.

467. Of course in some cases, it might be just to award costs in the special case by awarding some multiple of professional costs allowed under the scale, however in others it might be just to allow professional costs calculated by reference to professional fees for solicitors’ work and separately for counsel’s fees.

Quantum of costs of the conviction appeal

468. Sadly, this Court does not have the option of referring the matter for assessment of costs.[255]  Indeed one wonders on what basis that could be done.  In the standard case, the scale applies.  In the special case, the question to be addressed is what is just (or just and reasonable for trial costs) having regard to the special character of the case.  I do not see how a costs assessor could make that judgment.

     [255]Lucy v OCC Holdings Pty Ltd (No. 2) [2008] QDC 169.

469. Some considerations have been identified in other cases which may inform the application of s. 232A(2) and indeed s. 158B(2). They are not necessarily consistent.

470. There is authority for the proposition that the discretion is not unfettered, but rather must be exercised using the scale as a guide.[256]  How the scale provides a guide, however, is difficult precisely to articulate.  In Morley, Robin DCJ considered that the scale identified a cap to which the Court should have regard as providing the starting point for determining how much the costs should be increased. He also opined that he would expect the Court to be more parsimonious in awarding costs in favour of the prosecutor where he or she represents a public authority with responsibility for enforcing the law. 

     [256]            See Lucy v OCC Holdings Pty Ltd (No. 2) at [10].

471. As to the latter point, in Hickey Shanahan DCJ on the other hand emphasised the public interest in limiting costs for successful defendants, reflecting the public interest of ensuring that the bringing of proper prosecutions is not fettered by the prospects of extensive costs orders. He considered that while the scale was far below likely real costs of criminal litigation, that reflected the statutory policy he had discerned. 

472. Together, the two cases support the proposition that the scale is relevant because it identifies a starting point for determining what is just and thereby identifies a statutory intention that costs awards be approached bearing in mind the public interest in not discouraging the prosecution of criminal proceedings nor their defence. 

473. In my opinion, however, to recognise such considerations does not confine the determination of what a just amount might be having regard to the special difficulty of an appeal and the particular circumstances relating to its conduct.  In my view, each case has to be determined on its merits, bearing in mind those considerations.  In this case, there are particular factors which favour a substantial order for costs in favour of the prosecution.

474. First, the conviction appeal was not just of special difficulty, it was of the most difficult and complex kind likely to be encountered on an appeal under s. 222 Justices Act.  So much is clear from a review of the magnitude and breadth of the submissions by the parties (particularly the appellant, who made the running on the issues in the appeal), and the extent of the May reasons.  It is worth noting that none of the other cases referred to by the parties involved an appeal which took anything like seven days to hear.  I would add that the appeal was completed in seven days of hearing only because many of the issues addressed in the written submissions and the evidence required to be considered were not canvassed in oral argument at all. 

475. Second, the appeal was of that magnitude because the appellant chose to make it so.  This is particularly relevant to the assessment of the amount of costs which is just because the appellant’s approach to the appeal means that the public policy of not discouraging the defence (or appeal) of criminal proceedings has less significance in determining the amount which is just.  In this case, the appellant committed vast resources to the appeal.  Further, he did so not by reference to the way the trial was conducted below, but by reference to points exhaustively developed after the trial had been completed.  The burden on the respondent in answering the appellant’s contentions was therefore also vast, despite the efforts of the respondent’s counsel to do so efficiently.

476. It is of course the appellant’s right to appeal on any point which can be ethically advanced.  However, where an appellant adopts the approach adopted in this case, with the resources at his disposal to do so, the public interest in not discouraging the appeal of convictions recedes, probably to vanishing point. 

477. Further, the appellant conducted the conviction appeal in a manner which involved unnecessary and unjustified personal attacks on the prosecutor and witnesses called by the respondent.  The conduct undoubtedly added a gratuitous element of tension and confrontation to what was already a difficult and complex matter.  If I could form the view that that conduct materially contributed to the difficulty and complexity of the appeal, I would have taken it into account.  Such allegations may do so, particularly where allegations of impropriety are made against trial counsel, which can result in new counsel being briefed on an appeal, even where the allegations are baseless.  That did not occur in this case, primarily I suspect because of the self-evidently baseless nature of the allegation raised by the appellant against trial counsel in written submissions (and abandoned on the hearing of the appeal).  Otherwise, it does not appear on the evidence before me to have added materially to the difficulty and complexity of the case.  I therefore do not take that into account.  In other circumstances, however such allegations might be relevant to the determination of the just amount of costs.

Evidence of costs and disbursements on the appeal

478. I now turn to the evidence before me which may inform the determination of the just amount to allow on the conviction appeal. I am conscious that I am not approaching the determination of the just amount under s. 232A(2) working backwards from full indemnity. However, the costs incurred provide useful evidence in making that determination.[257]

     [257]            See Lucy v OCC Holdings Pty Ltd (No. 2) at [7] and [8].

479. Ms Silvester gave the following evidence as to costs. None of the amounts allow for the appellant’s success on Charges 1 and 2 of Complaint 4.

480. Scale costs for the conviction appeal totalled $11,400.

481. Counsel’s fees totalled $221,705 comprising the following:

     (a)Mr Hunter QC:

     (i)Fees paid on the Forestry Act charges: $16,046.25;

     (ii)Fees paid on the SPA charges: $90,928.75;

     (b)Ms Dann:

     (i)Fees paid on the Forestry Act charges: $21,065.00;

     (ii)Fees paid on the SPA charges: $93,665.00.

482. Transcript fees totalled $9,420.65.

483. Document production fees totalled $8,438.20.

484. Ms Silvester also claims an amount described as solicitors’ fees.  She swears she spent 566.3 hours working as solicitor on the appeals, including the seven days of hearing.  This equates to 16 working weeks calculated as seven hours per day, five days per week.  Frankly, given the nature of the appeal, this seems modest.  Also modest is her nominal charge out rates of some $35 per hour.  External solicitors would have charged hourly rates perhaps ten times that rate or more.  Certainly, a solicitor in private practice with the experience necessary to prepare and instruct on these appeals competently would have done so.  At Ms Silvester’s nominal rate, her time is costed at $175,720.50.

Determination of costs and disbursements to be paid

485. I intend first to determine the amount I would award without regard to the success the appellant had on the conviction appeal, then adjust that sum to take that into account.

486. I deal first with counsel’s fees.  In my view, this is an appropriate case to allow specific sums for counsel’s fees.  This was a particularly onerous and difficult advocacy task, quite apart from the necessity for the respondent to deal with the elaborate and mostly new legal and factual issues raised by the appellant’s extensive submissions on the appeal.  For the same reason, the retaining of senior and junior counsel was unquestionably necessary to ensure the presentation of the respondent’s case on appeal in such a manner and to such extent that a just result was able to be achieved.[258]  Further, as I have already said, the scope of the appeal was the choice of the appellant, and the appellant considered that three counsel were required. 

     [258]            Per Barwick CJ in Stanley v Phillips (1966) 115 CLR 470 at 478.

487. In determining what amount of costs is just, therefore, I take into account the costs to the respondent of retaining both counsel.  Ms Silvester’s own time makes up the balance of the legal professional costs of the respondent.  As I have said, both the time taken and the amount allocated to that time was modest given the scope of her task as the solicitor with responsibility for the appeal.

488. The respondent claims legal professional fees in the light of these amounts calculated on the basis of allowing seven days preparation and seven days to appear for each counsel at $5,000 per day and $3,000 per day for senior and junior counsel respectively plus scale fees multiplied by three for the appeal. 

489. While the matter could be approached in a number of ways, I consider that approach to provide an appropriate approach to the question of what is just having regard to the special difficulty, complexity and importance of the appeal.  That is particularly so given that the matter involved appeals in respect of four separate complaints. 

490. In many cases, one might be inclined to reduce the rates or days for counsel’s fees to reflect an enduring consideration for the modesty relating to costs shown in the scale and the policies which underpin the limits on costs in the ordinary case.  However, for the reasons I have given, this is no ordinary case.  I think it just to award the amount sought by the respondent for counsel’s costs of the conviction appeal. 

491. Thus the amount of costs to be allowed for counsel’s fees is:

     (a)Seven days preparation and seven days appearance for senior counsel at $5,000 per day, totalling $70,000; and

     (b)Seven days preparation and seven days appearance for junior counsel at $3,000 per day, totalling $42,000.

492. I next turn to fees in relation to Ms Silvester’s work.  Multiples of scale fees are hardly an adequate or just manner of determining an allowance for her work.  Given the modest rate claimed and the efficiency with which she appears to have carried out the work of preparing the appeal, I consider the amount sought could easily be sustained as a just amount on account of her endeavour.  However, I will limit those costs to $100,000.

493. Total legal professional costs are therefore ordered at $212,000.   

494. As to disbursements, the appellant does not dispute that they should be allowed in full.

495. The next matter to deal with is whether that sum should be further adjusted for any reason.

496. The appellant submits that my observation that the prosecution did not need to prove the regional ecosystem to which the native vegetation belonged meant that there should be an adjustment to the costs of the appeal awarded to the prosecution in respect of the costs of the appeal on issues relating to that matter.  I reject the argument for the reasons given in paragraphs [447] to [451] above.

497. The appellant also submits that there should be an adjustment to take account of their success on Charges 1 and 2 of Complaint 1.  I agree.  However, the appellant lost on every argument that related to those charges except the limitation point.  Further, the appellant failed on the limitations issues on a number of charges.  Finally, the limitation issues were very limited in scope both legally and factually compared to other grounds of appeal which were litigated.  Overall, the success on the conviction appeal represented a proportion of the total costs of the appeal which was small, perhaps vanishingly small.  However, some adjustment should be made for that success.  Accordingly I reduce the respondent’s costs by $5,000 to $207,000.

498. The appellant is ordered to pay the respondent’s costs and disbursements of the appeal in the total amount of ($207,000 + $9,420.95 + $8,438.20 =) $224,859.15.

FORMAL ORDERS ON THE CONVICTION APPEAL

499. I have not yet made orders on the conviction appeal. No specific submissions have been made as to the proper form of the orders on that appeal. It is to be regretted that orders on the appeal have been delayed for so long. However, I formed the judgment, not caviled with by either party, that is would be convenient if all the orders on both notices of appeal were made at the same time so as to facilitate the conduct of a single leave application under s. 118(3) District Court Act 1967 (Qld), should either party be inclined to so apply.

500. It seems to me that the correct orders on the conviction appeal to deal with the success on the two charges are as follows:

     (a)The conviction of the appellant on Charge 1 and Charge 2 of the Complaint 1 be set aside;

     (b)Charge 1 and Charge 2 of the Complaint sworn 17 August 2013 be dismissed.

ORDERS ON THE SECOND NOTICE OF APPEAL

501. It is a moot point whether some of the following orders should be technically made on the First Notice of Appeal or the Second Notice of Appeal. 

502. In any event, the following further orders will be made in the appeals:

     (a)The order made on 20 March 2017 that the appellant pay a fine of $276,000 to the cfomplainant within 3 months of the date of that order and in default to the State Penalties Enforcement Registry be set aside;

     (b)The appellant is fined $250,000 to be paid within 3 months of the date of this order;

     (c)The order made on 20 March 2017 that the appellant pay $17,471.01 by way of loss and damage in relation to the Complaints 1 and 3 pursuant to s. 88 Forestry Act 1959 (Qld) within 3 months of the date of that order be varied such that the amount be reduced to $4,704.05 (including GST) and the date for payment be varied to 3 months from the date of this order;

     (d)The order made on 20 March 2017 that the defendant pay $541,309.15 costs to the complainant pursuant to s. 157 Justices Act within 3 months of the date of that order be set aside;

     (e)The appellant pay the respondent’s costs of the trial in the amount of $495,892.86 within 3 months of the date of this order;

     (f)Order 2 of the orders made on 28 February 2017 be set aside;

     (g)The appellant pay the respondent’s costs of the conviction appeal in the amount of $224,859.15 within 6 months of the date of this order;

     (h)The Amended Notice of Appeal filed 5 September 2018 and the Amended Notice of Appeal filed 30 May 2019 are otherwise dismissed.

503. I will hear the parties as to the costs of the Second Notice of Appeal.

ANNEXURE A