Baker v Smith [2019] QDC 242 | Case summary

Baker v Smith [2019] QDC 242 | Case summary | Zoe

[59]

[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.

[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).

[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.

[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.

[104]

[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]

[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])

[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]

[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]

[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]

[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]

[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]

[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.

[105]

[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.

[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).

[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.

[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.

[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]

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

[119]

[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]

[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]

[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.

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

[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]

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

[132]

[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]

[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]

[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]

[140]

[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]

[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.

[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.

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

[149]

[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.

[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] HCA 26; (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.

[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].

[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]

[155]

[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] VicLawRp 72; [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.

[156]

[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.

[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]

[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]:

[256]

[138] I assume for the purposes of this analysis, that her Honour's conduct on 18 November 2016 in finding Mr Baker guilty of all charges could have comprised "the conviction" of Mr Baker on all charges in the sense contemplated by s. 157. The question raised by this first issue is whether there was no such conviction because Mr Baker was not personally present in Court on that day.

[139] In my view, Mr Baker did not have to be personally present for there to be a conviction on 18 November 2016. There are three preliminary points to note.

[140] First, there is no statutory provision which comprehensively deals with the necessity for Mr Baker's personal presence at the hearing of a complaint (including conviction and sentence). This is in contrast to the position for trials on indictment, which are dealt with by s. 617 Criminal Code. That provision requires an accused person to be present for the trial, subject to the specific exceptions identified:

(a) Where the accused person behaves in a manner which makes their presence impractical;

(b) Where there are more than one person charged on indictment and one of the parties is ill; and

(c) Where a person is charged with a misdemeanor the Court may permit the person to be absent on such conditions as the Court thinks fit.

[141] The last exception is of particular note because it involves a recognition even in the context of trials on indictment, that it is not essential that a person be present for the whole of the trial where the offence is a less serious one.

[142] Second, the issue is whether Mr Baker was required to be personally present for conviction in the context of the facts as they existed on 18 November 2016. To recap, those facts are, relevantly, that:

(a) Mr Baker had previously appeared on the hearing of the trial by his lawyers and had been excused from personally attending at the trial on a number of occasions; and

(b) Mr Baker appeared on 18 November 2016 by his lawyer and there is no suggestion his personal attendance had been required by the Court on that date.

[143] Third, the respondent submits that it starts with an advantage when it comes to construing the provisions of the Justices Act as to the requirement for the defendant to be present for conviction. The respondent submits that there is a common law principle that criminal proceedings must be conducted in the presence of the defendant. Accordingly, it seems, the respondent submits I should approach the construction of the provisions relating to conviction in a person's absence on the basis that a clear indication of the intent of Parliament to abrogate or curtail the right to be present on conviction is required.[80]

[144] No authority in support of the common law principle was cited. The starting point for the modern common law on the subject seems to be Lawrence v The King [1933] AC 699 at 708 where the Privy Council observed:

[258]

[145] The judgment distinguished between a felony and a misdemeanor and confined the right to be present to the former.

[146] However, that case does not fully state the principle, at least as it has been developed in Australia in non-Code states. It has since been recognised that if an accused absents himself during a trial so as to be taken to have waived his right to be present, then the Court may proceed in the accused's absence, though the discretion ought to be exercised with care. It has also been recognised that the distinction between misdemeanours and felonies should not be maintained, except that the exercise of the discretion if a defendant absents himself or herself from the trial might be informed by the seriousness of the offence charged.[81]

[147] It can be seen that the common law principle has not been stated as applying to simple offences tried by a Magistrate or Justice. I found no specific authority for the proposition that the common law principle applied to summary trials before a Magistrate and none was cited. I do not accept there is any such principle. Bearing those matters in mind, it seems to me that, read as a whole, the relevant provisions of the Justices Act support the inference that there was no requirement for Mr Baker to be personally present to be convicted, particularly as he appeared by his lawyer.

[148] That is supported by the following matters.

[149] First, s. 142(1)(a) expressly provides that if the defendant does not appear at all pursuant to the summons, one option for the Court is to hear and determine the case as if the defendant was present. That subsection clearly contemplates proceeding to conviction and sentence (subject to the limits on sentences which may be imposed) without the defendant if he or she does not appear. It is hard to see how one could infer that there is no power to convict in the defendant's absence when he did appear at some stage in the proceedings, given that express provision where the defendant fails entirely to appear, especially given the terms of s. 147.

[150] Second, s. 142A (which is expressly relied upon by the respondent) does not lead to any other conclusion. That section operates to assist proof at the trial in the absence of a defendant where the complainant is a public officer or police officer. It is otherwise consistent with the position communicated by s. 142(1)(a), that if the defendant does not appear the Court may hear and determine the matter including conviction and sentence (again subject to the limits on sentence in the section).

[151] Third, s. 147 also supports the conclusion that the Court may proceed in the defendant's absence. It provides for the situation where, relevantly, the defendant has appeared on the summons initially (i.e. s. 142 would not be strictly applicable) but does not appear either in person or by a lawyer on the adjourned date. Again in that case the Court may proceed with the hearing of the complaint as if the defendant was present.

[152] Each of these sections contemplate the Court proceeding in the absence of the defendant or his or her lawyer. The prospect of a conviction occurring in the absence of the defendant in one or more of those situations is also expressly contemplated by s. 150(3). Thus the Act clearly contemplates in a number of provisions the power of the Court to proceed to conviction absent the defendant or his lawyer, either on the date of the summons or on any adjourned date.

[153] A fortiori, one would think, if the defendant was in fact present by his lawyer even though not personally present, as was the case on 18 November 2016. That inference is put beyond doubt in my view by s. 144 which expressly permits the Court to proceed to hear and determine the complaint if, relevantly, the defendant appears by his or her lawyer.

[154] Accordingly, I conclude that Mr Baker did not have to be present in Court on 18 November 2016 for her Honour to convict him of the offences in the four Complaints.

[261]

[156] The starting point is to recognise the malleable nature of the words "convict" and "conviction" when used in a statute.

[157] Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 is a convenient starting point. The facts of that case are instructive in the analysis of s. 157. It involved an appeal from the decision of a special magistrate hearing a summary trial for offences against the Road Traffic Act 1967 (SA) arising out of a car accident caused by the defendant while intoxicated following which he left the scene. Three charges were brought for: driving while intoxicated, leaving the scene and failing to drive with due care and attention. The magistrate convicted Mr Liddy and imposed various penalties for the second and third charges comprising a fine, costs and a lengthy disqualification from driving.

[158] A particular issue arose, however, on the first charge. Mr Liddy had previously been convicted of driving while intoxicated. The effect of s. 47 Road Traffic Act was that for a second offence, the provisions under the heading "Penalty" provided (inter alia) a sentence of imprisonment of a minimum of one month was to be imposed. Section 47(4) sought to ensure the minimum sentence was not undermined by other enactments. It provided, relevantly, that notwithstanding any other Act, the minimum period of imprisonment in s. 47(1) was not to be reduced in any way.

[159] However, s. 4(1) of the Offenders Probation Act 1963 (SA) relevantly provided that where a person was charged with a summary offence, and the Court "thinks that the charge is proved, but is of the opinion that, having regard to [various factors] it is expedient... the court may... I. without convicting the person charged dismiss the information or complaint". Item II provided a discretion to convict, but discharge without penalty.

[160] The Magistrate found the offence of driving while intoxicated proved. Specifically, he found Mr Liddy "guilty as charged"[82] and/or he announced that he found that the prosecution had proved beyond reasonable doubt that the defendant was guilty. However following that announcement, counsel submitted the Magistrate should exercise his discretion under s. 4(1) I. of the Offenders Probation Act to dismiss the complaint. His Honour did so.

[161] The points taken to the High Court were whether s. 4(1) could ever apply to avoid the minimum penalties under s. 47 Road Traffic Act and, if it could, whether his Honour properly exercised the discretion under I. to dismiss it.

[162] The High Court held in three separate judgments that, given that s. 47 imposed a penalty, and under s. 30 of the relevant interpretation statute a penalty only applied on conviction, it was open to his Honour to dismiss a charge under s. 47 Road Traffic Act prior to conviction despite the express provision protecting the minimum penalties provided. (They also held that his Honour properly exercised his discretion to do so.)

[163] It is interesting that the question of whether the Magistrate had convicted Mr Liddy merely by pronouncing guilt in open court was not an issue in proceedings, even though it appears from the report that that was what had occurred. The majority judgment simply acted on the basis that what had occurred was not a conviction for the purposes of s. 4(1).[83] It is to be noted that none of the three learned judges were troubled by that question on the facts in that case.

[164] The character of the Magistrate's acts were specifically considered by McTiernan and Windeyer JJ in separate judgments. McTiernan J observed (at 267):

[279]

[175] Construing the precise meaning of "the conviction" in ss. 157 and 159 is a difficult task. It is convenient then to first consider whether there is authority on that specific question which either binds this Court or is strongly persuasive as to the approach it should adopt.

[176] There are three cases which must be considered: Bell v Carter, Morley v Senewiratne and Lasker v Holeszko [2019] QCA 163.

[177] Bell v Carter is dealt with in paragraphs [102] to [108] above. The question to be resolved is what the case stands for. It will be recalled that the competing positions turn on the meaning to be attributed to the word "formal" when used by the Court of Appeal in the passage in paragraph [106] above, applied in the context of a conviction:

(a) The appellant contends it means (or includes) a finding of guilt or dismissal given orally in open court. Thus "formal" is taken by the appellant to mean an unequivocal pronouncement in Court, which the appellant submits is the correct characterisation of what occurred on 18 November 2016;

(b) The respondent contends it means that there must be a finding of guilt and some further formal step, such as the imposition of penalty.

[178] In my view, the Court of Appeal intended the word "formal" to modify the word "dismissal" by drawing a distinction between pronouncing the dismissal in Court and recording the dismissal by some formal act. There are four reasons for that.

[179] First, the facts disclosed a formal act which had occurred (the recording of the dismissal on the bench charge sheet) and this fact was identified immediately prior to the key passage.[97]

[180] Second, that approach seems consistent with a practical application of ss. 158 and 159.[98] It is trite that statutory provisions ought to be construed so as to give effect to the purpose evident in the provision and to avoid its impractical operation (subject of course to the plain words of the section).[99] In my view, the obvious purpose of ss. 157 to 159 is to confer on the Court the power to award costs. Where there is ambiguity, the provisions ought to be interpreted in a manner which provides a reasonable opportunity for that power to be exercised. To construe ss. 157 and 158 as applying such that a pronouncement of "guilty" or "not guilty" excludes the power is apt to result in impractical constraints on the power of both complainant and defendant to seek the exercise of the power because (as Robin DCJ observed in Morley) the oral pronouncement can occur without warning and be complete before even the most astute advocate can intervene.

[181] I do not think that the appellant's submission that the Magistrate could give notice of an intention to convict or dismiss is a practical one. Further, such an approach could lead to obscure debates about whether, on the proper construction of the words used, the Magistrate in fact found guilt or dismissed, no matter how careful they might have been.

[182] Third, the principle that some concrete step beyond the mere verdict is necessary for a conviction or dismissal to take effect as such is recognised in the criminal law. Although on a summary trial the same person gives the verdict and the judgment, there is nothing heretical about the idea that, having stated a verdict, the Magistrate presiding in a summary trial must make some formal form of order to give effect to the verdict.

[183] Fourth, I note that, unlike a conviction, there is no mandatory obligation in the Justices Act on a Magistrate in all cases to record a dismissal. Thus, s. 150(2) compels the making of a minute or memorandum of a conviction, while s. 149 contemplates an "order of dismissal" if the Magistrate is required to do so. The latter provision is plainly intended to provide the basis for a plea of autrefois acquit should it be necessary to make one. I accept, however, that it cannot be said on my interpretation of Bell v Carter that the requirement for a "formal dismissal" can be linked to a mandatory statutory obligation to record the dismissal in some specific manner. However, the Court was not concerned with those questions. Rather, it reached the conclusion that some step beyond mere oral dismissal was required to give rise to an "order of dismissal".

[184] Be that as it may, it is much easier to identify formal steps which can accompany or follow a verdict of guilty. They include:

(a) The express provision for mandatory minuting of a conviction in s. 150(2);

(b) The (effectively) mandatory provision for preparation of a verdict and judgment record under s. 151 when read with r. 62 Criminal Practice Rules; and

(c) The requirement for sentence to be imposed on a finding of guilty.

[185] Strictly speaking, the ratio of Bell is confined to the meaning of "order of dismissal" in ss. 158 and 159. However, I should and would follow the approach of the Court unless there was some compelling reason not to do so. No such reason has been identified. Accordingly, I consider that on the authority of Bell v Carter, her Honour did not convict for the purposes of s. 157 and 159 Justices Act by orally stating that she found Mr Baker guilty on all charges on 18 November 2016.

[186] That conclusion is reinforced, in my opinion, by the recent decision of Lasker v Holeszko which concerned a situation factually similar to that which arises in this case. (I am grateful to Mr Trewavas for bringing the case to my attention). There a Magistrate heard a summary trial of offences under the SPA over six days. Some time later, on 16 August 2018, the learned Magistrate listed the complaint and published his written reasons and decision. In his reasons, the Magistrate found that the prosecution had established each charge beyond reasonable doubt. In the reasons under the heading "Court Orders", his Honour ordered that Mr Lasker be found guilty of each charge and ordered that the Court would hear further on the questions of costs and penalty. His Honour then adjourned the matter to consider those issues. A document signed by the Magistrate was sealed by the Court containing those orders.

[187] On 14 September 2018, Mr Lasker filed a notice of appeal under s. 222 Justices Act. The complainant/respondent to the appeal filed an application to strike out the Notice of Appeal. It contended that the appeal was invalid because the complaint had not been disposed of by final orders. That application was heard by Judge Richards and her Honour struck out the appeal. Her Honour's judgment was upheld by the Court of Appeal. Bradley J (with whom Gotterson and Philippides JJA agreed) gave the substantive judgment.

[188] After noting the passage in Maxwell v R above at [173], his Honour analysed the character of the order from which appeal lies under s. 222. His Honour held:

[303]

[192] I draw the following propositions from this decision:

(a) A finding of guilt and a conviction are conceptually distinct steps in the determination of a complaint;

(b) A Magistrate may find a person guilty of a charge in open court, without disabling him or herself from proceeding to deal with costs under s. 157, all the more so where the finding of guilty is objectively identified as being made while reserving that question;

(c) A Magistrate has not completed the hearing and determination of a complaint until he or she has passed sentence; and

(d) The above approach is consistent with Bell v Carter.

[193] In my view, both Bell v Carter and Lasker v Holeszko are inconsistent with the appellant's argument on the construction of "conviction" in ss. 157 and 159 and consistent with the approach of the respondent. The appellant's argument on construction therefore must fail.

[194] It remains to analyse Morley v Senewiratne. When properly analysed, it also supports the respondent's position. Morley is discussed at paragraphs [122] to [127]. I refer to paragraph [127] above. As concluded there, Robin DCJ's decision is consistent with the construction of "conviction" advanced by the respondent: that is that "conviction" in ss. 157 and 159 means the verdict of guilt and sentence. However, while his Honour proceeded on the basis that it was open to him to award costs on the setting aside of the sentence, his Honour did not specifically analyse how this approach was supported by Bell v Carter, or how it arises from the language of the sections. That makes the decision somewhat less persuasive then it otherwise would be.

[195] Nonetheless, it does support the position adopted by the respondent as to the construction of "conviction".

[196] I did not think either of the other cases relied upon by the respondent is of assistance. Schloss v Bell turned on use of the slip rule, a device which I do not think is legally effective under the Justices Act. As to Gibson v Canniffe, with respect to Devereaux SC DCJ, I cannot see how the circumstances of the Magistrate's actions consequent on the decision to dismiss take the case outside Bell v Carter. The case is in any event concerned with dismissal not conviction.

[305]

[197] If I am wrong to apply Bell and Lasker to resolve this point in favour of the respondent, I should consider how I would construe the sections if free from those authorities.

[198] The starting point is, as always, the recognition in the authorities of the malleable character of the meaning of "convict" and "conviction". In my view, those authorities justify approaching the construction of the sections without any presumption that the words should be given the narrow meaning contended for by the appellant.

[199] It is next important to recognise the appellant's point at [102] above that there is authority in Queensland for the proposition that once a Magistrate has convicted a person or dismissed a charge in open court, the Magistrate is functus officio. Mr Allan pressed these cases with vigour as providing a complete answer to the respondent's case. In my view, they do not.

[200] Those cases establish that if a Magistrate has convicted or dismissed a charge in open court, the Magistrate cannot vacate the conviction or dismissal. That is the sense in which functus officio is used in those cases. However, those cases are not concerned with the particular issue which arises in ss. 157, 158 or 159. Nor do they preclude a construction of those sections which contemplates conviction or dismissal requiring more than the mere pronouncement of a verdict. Such a construction does not seek to vacate the verdict.

[201] Further, in the context of convictions at least, being functus officio in the manner contemplated in those cases does not make the Court functus officio in respect of the complaint. There is no suggestion that the Magistrate is not free to adjourn proceedings pending sentence and the determination of the complaint in that sense is incomplete until sentence is passed (as was clearly confirmed in Lasker). In that circumstance, it does not seem to do any harm to the integrity of the authorities referred to by the appellant to construe ss. 157 and 159 in a way that preserves the power to award costs despite the giving of a verdict of guilt in court.

[202] For the same reason, I cannot see why "conviction" must be used in the same way everywhere in the Justices Act. The language of the Act relevant to this matter is far from consistent:

(a) Section 147A introduces the expression "record a conviction", then speaks of setting aside or vacating the conviction, as if the conviction comprises the recording of the conviction. It provides no clear statement of when a conviction is recorded. In its ordinary meaning, "recorded" means making some record and is inapt to refer to an oral finding of guilt;

(b) Section 150(3) imposes an obligation on the clerk of the Court to give written notice to a person not present when the conviction is "pronounced". The appellant relied on this as supporting the oral finding of guilt argument. However, if conviction in this part of the Act meant an oral finding of guilt, why is the word "pronounced" included? The purpose for its inclusion is ambiguous at best; and

(c) Section 151 introduces the expression "formal conviction", being a conviction which is drawn up in proper form. In effect, this is the verdict and judgment record required under r. 62 Criminal Practice Rules. Thus the Act contemplates a formal conviction as opposed presumably to an informal conviction.

[203] Mr Allan submitted that conviction (in the sense of a verdict of guilt) has always been recognised as giving rise to a right of appeal under that section separately from orders imposing a penalty. Thus he said, the Act in that section recognises conviction as being a distinct order from sentence. Even if so, this would be only of limited relevance to the question of construction in this appeal. Lasker v Holeszko has held to the contrary.

[204] In my view, the considerations which most tellingly inform the construction of the word "conviction" are these.

[205] First and foremost is the matter outlined in paragraph [180] above. Reading "the conviction" as referring to the completion of the determination of the complaint by final orders, including in particular sentencing, promotes the obvious purpose of s. 157 specifically and the Divison generally to give parties a reasonable opportunity to seek costs.

[206] Second, it seems orthodox to focus on the final determination of the whole complaint up to the completion of the sentencing process when looking at a costs provision which is concerned, like sentencing, with a consequence of a finding of guilt.

[207] Third, such a construction does no violence to established authority and is of course consistent with Lasker and (as I read it) Bell.

[208] Finally, the construction which includes sentence permits costs of sentence to be included in the costs of the trial. As the sentencing process is part of the determination of the complaint, I can see no good reason to construe the section in a manner which would exclude those costs from the scope of the power conferred by s. 157.

[336]

[233] It is convenient here to address the adjustment of the costs awarded by her Honour to account for the appellant's success on Charges 1 and 2 of Complaint 1.

[234] No submission was made to me in writing or orally that the upholding of the appeal on Charges 1 and 2 meant that I should determine again the calculation of costs generally. The submission made was as to the specific consequence of success on Charges 1 and 2 as set out in paragraph [222] above. In any event, having read the submissions on the calculation of costs and disbursements and her Honour's reasons, the approach of her Honour was in my own view just and reasonable in the circumstances.

[235] Her Honour's award comprised legal professional costs and disbursements. The legal professional costs were calculated by reference to the scale costs for each complaint. The amount awarded in respect of Complaint 1 was $67,500 (scale costs for the trial of that complaint multiplied by three). Given the prosecution failed on two of the five charges, it seems just and reasonable to reduce the amount payable on that Complaint by 50 per cent. This seems a reasonable approach bearing in mind that, while Charges 1 and 2 involved more than half the cleared area of Complaint 1, they also involved clearing of large areas on the fenceline which, based on my knowledge of the way the trial was conducted, would very likely have been easier to identify and prove than smaller areas involving narrower areas of clearing. Thus the award of professional fees is reduced by $33,750.

[236] The disbursements are harder to separate out. The fair and reasonable course to take in that case is to reduce the amounts awarded proportionately by reference to the relative success by the appellant. I intend to identify relative success by reference to the number of charges on which the appellant succeeded as against those on which it failed on appeal: i.e. two out of 46. While simplistic, I cannot see a better basis for determining relative success.

[237] On that basis, Mr Baker had success on appeal of 4.3 per cent. That results in a reduction of the amount awarded for disbursements (excluding the investigation costs which are dealt with next) of $271,309.15 x .043 = $11,666.29.

[238] Thus, I set aside her Honour's order in respect of the trial and instead order the appellant to pay costs of ($541,309.15 - $33,750 - $11,666.29 =) $495,892.86.

[350]

[251] The total area unlawfully cleared was 346.6 hectares. That comprised:

(a) 9.4 hectares cleared in the DSF and FEA 34[126] and 4.4 hectares cleared in the road reserve; and

(b) 332.8 hectares cleared in Chess Park proper.

[252] That is not a large area compared to the areas cleared in some of the other decisions in this Court to which I have been referred. However, I reject the appellant's submission that it should be characterised as relatively minor because it represents a relatively small percentage of the total area of the relevant regional ecosystems in the brigalow bioregion. While that comparator is not irrelevant, and I keep it in mind, to my mind a more useful comparator to give scale to the extent of the clearing for the purpose of assessing the seriousness of the offending is by reference to the amount of native vegetation on Chess Park of which Mr Baker is custodian. The parties informed the Court by email that the total area of native vegetation on Chess Park, excluding FEA 34 and the DSF (but including the road reserve) is 3,562 hectares. The appellant therefore unlawfully cleared approximately 9.3 per cent of the total area covered by native vegetation on Chess Park (not all of this involved clearing of all vegetation).[127]

[253] The clearing took place over an extended period, being May 2011 to December 2013:

(a) Mr Baker acquired Chess Park on 17 March 2011.

(b) Unlawful clearing started in May 2011, when Mr Baker cleared 3.0 hectares in the style of open woody clearing substantially to expand some existing narrow cleared areas (that is, some scattered trees have been retained) in the vicinity of some cattle yards but greatly in excess of what was reasonable or lawful.[128]

(c) Also during May 2011 he cleared most of a total of 5.3 hectares in the style of open woody clearing in a number of smaller parcels generally on the edges of remnant vegetation areas.[129] The purpose cannot be objectively discerned. It is certainly hard to see how the purpose was fire management.

(d) During June 2011, he also cleared some 0.8 hectares in the style of thick woody clearing (clear felling) on the Western boundary of Chess Park.[130] The purpose cannot be objectively discerned. Again it is hard to see how the clearing was for fire management.

(e) Clearing then began in a more substantial way from mid-August and particularly from September 2011, around the time of the first fire on Chess Park.[131] It occurred on a more or less continual basis until about December 2013.[132]

[254] It can be seen that Mr Baker's offending was protracted and involved numerous and continuous decisions to clear individual areas.

[255] The clearing was almost entirely native vegetation of a least concern regional ecosystem. I recognise that this is the least serious of the categories of regional ecosystem, the others being 'of concern' and 'endangered'.

[256] The clearing did not always involve clearing all the vegetation. Trial Exhibits 19 to 22 identify the form of clearing for each offence. It can be seen that much of the clearing was thick woody clearing and open woody clearing, which resulted in removal of most, if not all, of the native vegetation. However, most of the larger areas cleared to the west of the DSF (seen most easily on Map A2[133]) was light or heavy parkland clearing. It will be recalled that light parkland clearing involved "partial felling of woody vegetation in an area of any density, predominantly clearing the majority of the understorey shrub layer, but not clearing any of the overstorey tree layer".[134] Heavy parkland clearing involved the same definition except that it also included "the clearing of some but not all, of the overstorey layer".[135]

[257] These areas were cleared from about mid-2012 and involved clearing of some 96.6 hectares, over a quarter of the total clearing for SPA offences. They comprise the charged areas for Complaint 4, Charges 3, 20, 21, 23, 24, 30 and 31. For ease of reference I will refer to this as the 2012/13 clearing, though there was other areas cleared in that period.

[352]

[258] This is not a case where there was a single act of clearing over a relatively short period which was later detected by departmental officials. Rather, over the approximately three years during which clearing occurred, Mr Baker was involved in correspondence and dealings with departmental officials about clearing.

[259] The respondent relies on those dealings as demonstrating that Mr Baker acted in increasing disregard of the statutory framework which regulated Chess Park. The proposition is conveniently articulated in the trial submissions by the prosecution on sentence as follows:[136]

Specific deterrence is very important in this case. The evidence accepted at trial was that Mr Baker acted with complete disregard for the statutory framework which regulated the various different tenures on or in 'Chess Park' throughout the entire period of the offending, despite being aware of that framework and having significant communications with various public servants who explained his rights and obligations to him. In that regard, some examples of that conduct include that Mr Baker:

Made a statutory declaration prior to acquiring 'Chess Park' that he knew about current property management plans affecting the leases (which included the PMAV specifically for 'Chess Park')[137]. The PMAV identifies the different categories of vegetation under the SPA on 'Chess Park'.

Was repeatedly advised by letters through 2011 about the regulatory framework applicable to 'Chess Park'[138] and also had a meeting with departmental officers at 'Chess Park' on 16 November 2011[139];

Wrote to the Department on 25 September 2011[140] in terms that included the following: "I am going to build fire breaks as big as I think the circumstance warrant. You can shove you 10 metre rule and take me to court as I definitely will not under any circumstances comply with it - not now, not ever. They will be 100 metres"';

Wrote to the Department on 18 July 2012[141] in terms that included the following: "At this juncture I am not inclined to lodge a vegetation clearing application for the reasons as stated: this is my land. I own the fee simple...";

Wrote to the Department on 8 August 2012[142] in terms that included to following: "... I am fast approaching [the FEA over Lot 5 WK207] which a neighbour thinks is the FEA. In you continued "do nothing policy" I will address this area as I see fit in order to make it productive in terms of a working cattle property ... We are only a matter of weeks off clearing up this mess";

Continued to unlawfully clear areas of land in accordance with the statements made in this and other correspondence[143];

Continued commencing new areas of clearing both in the FEA and on 'Chess Park' itself after being advised in writing by Mr Smith by a letter dated 14 December 2012[144] that he was conducting an investigation into allegations of interfering with forest products on FEA34 and the Dyngie State Forest and into a vegetation clearing offence on 'Chess Park'.

[260] Each of the matters in the subparagraphs above are made out by the footnoted references.

[261] The course of the clearing and Mr Baker's contemporaneous dealings with the departmental officials are more fully explained in the prosecution's trial submissions on sentence at paragraphs 40 to 53.[145] There the prosecution identifies the course of clearing by reference to the extent to which Mr Baker was informed of the unlawfulness of his conduct and by reference to Mr Baker's conduct in response (which comprised continuing to clear). Nothing in that summary was challenged as factually inaccurate by the appellant. However, given the place of that chronology in my decision, it is necessary to summarise it in this judgment and to some extent expand upon it by reference to my own analysis of the evidence.

[433]

[299] Second, I reject the submission that Mr Baker's clearing was explicable by fire management concerns. As noted in paragraph [253] above, a number of specific areas cleared even in early periods of clearing appear hard to explain by reference to fire risk management. That is all the more true for the 2012/2013 clearing to the west of the DSF explained from paragraph [289] above. In my view, that clearing was carried out for some other purpose. The only credible other purpose was to improve commercial grazing operations. To avoid any misunderstanding, I recognise that there is no evidence of an increase in value of the property from the clearing. However, the point is that a substantial part of the clearing was done for a commercial purpose, because it was done to improve the commercial grazing operations on the property.

[300] The appellant's submissions seemed at times to elide the question of whether there was evidence that the clearing increased the value of the property with the question of whether the clearing was done for a commercial purpose. The latter inference is the one which arises on the evidence, at least for the clearing to the west of the DSF.

[301] Third, I reject the submission made on behalf of the appellant that Mr Baker was frank as to what he was undertaking with the departmental officers. The evidence demonstrated that that was most certainly not the case in respect of the clearing to the west of the DSF and there was little other evidence to support that submission.

[302] The effect of these findings is that, at least at the time of sentencing below, her Honour was correct to consider that personal deterrence was a very significant consideration for Mr Baker. His overall conduct showed a disregard of the law for a protracted period, in which he pursued unlawful clearing without justification or excuse, including for commercial purposes. Further, even the clearing which was probably for fire management purposes was undertaken with a disregard for the law and with no effort to obtain advice as to how properly to undertake fire management within the scope of the law, despite his ignorance on the subject.

[434]

[303] Mr Dillewaard's report was tendered without objection at the sentence hearing before the learned Magistrate.[184] The report dealt with two topics: the environmental harm consequent on the clearing[185] and the considerations relevant to the restoration of the cleared vegetation.[186] This part of my reasons focuses on the first topic. Mr Dillewaard also gave evidence before her Honour which was generally consistent with the report. He was cross examined.

[304] Mr Dillewaard's report sought to identify relevant environmental values in the cleared areas and determine the impacts of the clearing in those areas on those values in order to define the impact of the clearing. His method was to interrogate public data sets that were said to identify values associated with the cleared areas. His report then identified the sources of data on biodiversity and other environmental values. These are set out in the report. They include Queensland Herbarium databases (which the appellant accepted he had the expertise to interrogate and explain) and other databases relating to, in particular, endangered fauna maintained by the Queensland and Commonweath governments.[187] He then opined on the impacts of the clearing on the basis of direct or indirect impacts on those values.

[305] His report also addressed other environmental issues such as carbon emissions caused by the clearing (ultimately not pressed by the respondent on appeal), ecological processes affected by clearing and land degradation.

[306] The evidence relating to environmental harm was relied upon by the respondent at trial and again on appeal to establish a circumstance of aggravation of the offending.

[307] On the subject of biodiversity Mr Dillewaard referred to databases relating to flora and fauna. On fauna he interrogated the Queensland and Commonwealth databases for the area of Chess Park and reported the threatened species for which "species or species habitat may occur within the area". He did the same for flora species. He recognised that no specific study had been done for Chess Park on fauna, and readily accepted he did not have the expertise to do so.

[308] He also reported on the area of the regional ecosystem represented by the clearing in the subregion and the bioregion as compared to the area cleared. The table shows the cleared areas to be miniscule compared to both figures (the largest proportion being 0.46 per cent of the subregion area).[188]

[309] It included a calculation of the carbon emissions "associated with the charge areas" calculated seemingly on the basis disclosed at page 3 of the report.

[310] He then turned to identifying ecological processes "identified as being affected by the clearing":[189]

(a) He identified a series of habitats in the bioregion, which were of concern. It is evident from the regional ecosystem numbers that the vast majority of these habitats were not at Chess Park, nor the subject of clearing;

(b) He stated that fragmentation of habitat has been implicated in the decline of biodiversity and notes the clearing fragmented areas of native vegetation (which it unquestionably did);

(c) He stated that ecosystems are dynamic and are naturally disturbed but that human clearing is outside that natural pattern and tends to harm an ecosystem. He notes that the clearing will have had that effect in the areas where it occurred;

(d) He stated structural complexity is a key factor in species diversity. Structural complexity refers to the different kinds and heights of living and dead vegetation. He notes that the clearing, including the less extreme clearing which occurred, still impacted on structural complexity. The report includes an example of the effect of understorey clearing in Charge 20 of Complaint 4, which I will refer to below;[190]

(e) He states that clearing negatively affects hydrological patterns of native vegetation and "hydrological patterns across the property have been disturbed by the clearing" in all charge areas. No further justification of this conclusion is given; and

(f) He stated that established patterns of nutrient cycling are relevant to species growth and survival. Human activity disrupts natural nutrient cycling and causes loss of natural nutrients, with fertilisers tending to increase but still disrupt that effect. He states that there is no detailed data for the cleared areas, but that there would be a detrimental effect from the clearing in all areas.

[311] Mr Dillewaard then turned to make some observations about land degradation which included loss of topsoil, vegetation and increased salinity and many other factors. He noted that regional ecosystem 11.7.6 was particularly susceptible to degradation because the soil structure makes it susceptible to erosion.[191]

[312] Mr Dillewaard then addressed the impact assessment of the clearing by reference to site specific and general effects (including those already noted).

[313] In my respectful view, his section dealing with site specific impacts identifies very few matters which meet that description. Generally, Mr Dillewaard's evidence is to the effect that the clearing would have aggravated or caused, to some degree, the kinds of harm he has already identified. The only truly specific observation is that noted in paragraph [311] above. The gravamen of this part of the report is in thi[192]aragraph:192

[438]

[319] As he did at length in the conviction appeal, the appellant again sought to challenge the admissibility of evidence which had been admitted at trial without objection and on which the appellant's solicitor had cross examined at length. There was some technical debate as to whether it was open to the appellant to take the objection in the sentencing hearing before me. I do not think it is. Although I am exercising the sentencing discretion afresh, it is occurring in the course of an appeal by way of rehearing. That occurs on the record below, subject to the admission of fresh evidence. For the reasons given in my May reasons at paragraphs [659] to [697] it is too late to object to admissibility with a view to excluding the report entirely from the record.

[320] Further, the basis of the objection was that Mr Dillewaard did not have the expertise to give the evidence that he did. However it was accepted that he is an expert botanist. Much of his evidence involved discussing the impact of land clearing on native vegetation. There is no reason to think that he did not have expertise in this area, particularly given his particular expertise demonstrated at the trial included the native vegetation of this State and the regional ecosystems into which it is classified. The same observation applies to his broader expertise on the impact of disturbance on regional ecosystems. I note in that respect that nearly every general point he made was supported by references. None of those references were investigated or challenged as irrelevant or as failing to support the propositions he advanced.

[321] Of course, his expertise might have been challenged in cross examination on these specific points, but so far as I could see it was not. This highlights the unfairness of raising such points for the first time on the appeal. The situation might be different where the evidence is plainly outside the possible scope of the expert's field of expertise, but this was not such a case.

[322] The exception is in relation to Mr Dillewaard's evidence about the impact on threatened species. However, he readily agreed that he was not an expert in assessing the presence and status of threatened species. That was not what he was doing. On the fauna issues, as I have explained, he presented the evidence available from public databases maintained by the State and Commonwealth. I see no reason to doubt he had the knowledge and experience properly to interrogate those databases and present the results. The question in relation to the documents produced by those searches was the weight to be given to them in circumstances where they included disclaimers of various kinds. In my view, it was open to her Honour at the trial and is open to me on appeal to give them appropriate weight as material received on sentence.[195]

[323] The above observations, however, are moot given my view as to what use properly can be made of Mr Dillewaard's report.

[324] In my view, having read the whole report on the environmental harm topic, it can be characterised as demonstrating that the clearing which occurred in this case would have contributed in some way to environmental harm of the kinds identified in the report. However, it is not possible to identify the extent of that impact in any particular respect. Further, the report identifies no acute or direct environmental impact from any specific clearing.

[325] It seems to me that the harm demonstrated by the report is the kind of harm likely to attend on any clearing of native vegetation of a least concern regional ecosystem, the prevention of which is the purpose of the restrictions on clearing imposed by Parliament. It is therefore neither a harmless instance of clearing (which might be thought to be a mitigating factor), nor one which involved a specific and significant environmental impact which would aggravate the offending.

[449]

[330] At trial, and again on appeal, the respondent emphasised the importance of personal deterrence in Mr Baker's case. For the reasons summarised in paragraphs [296] to [302] above, I conclude her Honour had good reason to consider personal deterrence required a substantial sentence be imposed to dissuade Mr Baker from future offending. Further, before her Honour there was no evidence of any remorse by Mr Baker, nor recognition by him of the unlawfulness of his conduct. The trial submissions on penalty sought to shift responsibility and blame to the departmental officers, in a manner which was unsustainable based on my reading of the evidence (particu[196]ly Trial Exhibit 40).196

[331] The situation has not improved since then. The submissions on the sentence appeal as initially filed, largely maintained the case on sentence put below. So much might have been expected when the conviction appeal was also on foot. More revealing, however, is the manner in which the sentence argument was conducted before this Court. Judgment on the conviction appeal was handed down on 17 May 2019. The sentence appeal was heard on 21 June 2019. However, despite failing on the conviction appeal almost entirely, and succeeding on two charges only on a limitations ground, still nothing was put before the Court on the sentence hearing which demonstrated remorse by Mr Baker or recognition by him of the unlawfulness of his conduct. This remained the position even after this situation was specifically raised on the first day of the two day hearing.[197]

[332] In a lighter moment, Mr Trewavas submitted that personal deterrence was lessened in significance because Mr Baker was 72 years old and therefore unlikely to be driving a bulldozer, the implication being he would be unlikely to further offend. I rejected that submission.[198] In any event, of course, Mr Baker could always employ another to do the clearing. More important from a personal deterrence perspective is that Mr Baker remains the owner of Chess Park, and the native vegetation which remains continues to be at risk from illegal clearing.

[333] Mr Baker asserted on a number of occasions in his correspondence with the departmental officers that he would do what he wished regardless of their views as to the laws which bound him. He made good on that assertion. I have no reason to think that he has formed a different view in relation to the obligation to comply with the law in relation to the clearing of native vegetation.

[334] In reaching that conclusion, I have not overlooked my unwillingness positively to find that Mr Baker continued clearing after acknowledging the stop work notice. That Mr Baker continued to clear despite all the advice given to him and despite his clear understanding of the requirements of the law until he was stopped by legal action from the departmental officers provides little ground for optimism that he will not undertake clearing again if he considers it useful or necessary to do so according to his own idiosyncratic views. That Mr Baker is likely to approach clearing on this basis tends to be supported by the submissions on sentence in which he contends that it was the department's fault that the trial occurred because they should have stopped him breaking the law.[199]

[335] In considering a just penalty to give effect to the need for personal deterrence, I also need to take into account the resources available to Mr Baker. A penalty which has little financial significance will have little deterrent effect. As to that, such evidence as I have before me strongly supports the conclusion Mr Baker has very substantial means at his disposal. Chess Park is unencumbered and it is seemingly a valuable property in the long run, despite the undoubted present effect of drought.

[336] Perhaps speaking more eloquently of the extent of Mr Baker's personal resources, however, is the extent of the resources committed to the conviction appeal and these appeals. Given the seniority of counsel retained and the extent of the work undertaken on all of the appeals, the costs to Mr Baker of conducting his appeals would have been very, very substantial.

[479]

[364] There are many factors to take into account in reaching a single specific fine. I do not think the authorities involve circumstances sufficiently similar to those extant in this case to provide much assistance. Nor is there a sufficient body of authority to identify principles or approaches to these particular kinds of cases.

[365] One guideline of assistance is the maximum penalties. For the Forestry Act offences, the maximum for each offence is $110,000. Those offences involved relatively small areas of clearing and the value of the timber cleared was modest (see paragraph [437]) below. On the other hand the clearing took place later in the period of clearing and at a time when Mr Baker would have been in no doubt as to the prohibition on clearing in Forestry Act areas. The issues of personal deterrence loom almost as large on these offences as on the SPA offences. One difference is that Mr Baker is no longer lessee of the DSF and he has acquired the Crown's interes[220]n FEA 34.220 Accordingly the former area is not at future risk from Mr Baker's conduct and the latter is now protected by the current scheme for protection of native vegetation on freehold land.

[366] For the SPA offences, all of the considerations in this part of this judgment are engaged. The maximum penalty for the offences is between $166,500 and $183,150. I do not think these amounts identify the maximum single fine on account of the SPA offences. As I have found, the SPA offences were distinct in time, place and character and involved continual disregard of well understood legal obligations. And the latest in time were done to improve the operations of the grazing property. Bearing in mind the acute personal deterrence considerations in particular, I consider that an aggregate penalty for the 39 SPA offences can properly exceed the statutory maximum for an individual offence, even if none of the offences are of the worst possible kind (though that is not a necessary condition for imposing the statutory maximum[221]).

[367] Taking all of the above considerations into account, it seems to me that the penalty imposed by the learned Magistrate when Mr Baker had been convicted of all offences was a reasonable one. Indeed, given the striking lack of remorse shown by Mr Baker before this Court and his financial resources, taken with all the other factors, I might have concluded that a higher fine was appropriate for the whole of the offending if it had been open to me to do so. However, the prosecution did not contend for a higher penalty and the possibility was not raised in the appeal. In those circumstances, her Honour's fine represents the upper limit of the penalty which I may impose.[222]

[368] Given that matter, I consider some adjustment ought to be made for success on Charges 1 and 2 of Complaint 1. It is difficult to adjust her Honour's penalty of $276,000 in a scientific manner for success on those two charges. It seems to me that a fair adjustment is comprehended by a reduction of the overall penalty to $250,000.

[369] No submission was made that I ought to take into account any costs orders made at trial or on appeal in setting the amount of the fine.

[488]

[378] The orders originally sought by written application prior to the 27 and 28 February 2017 hearing were varied during that hearing. There was no written amended application. Rather Mr Hunter handed up the proposed orders during the hearing.

[379] It is accepted that her Honour had the initial Restoration Notice before her when hearing and determining the application for those orders. Indeed I was told without objection that the Restoration Notice referred to by her Honour and contemplated by the orders made was issued a week before the hearing on 27 February 2017. The version of the Restoration Notice before her Honour was not made an exhibit in the hearing and it was not tendered before me. What was tendered, however, was an Amended Restoration Notice (the Amended Notice) which was issued on 16 May 2017.[223]

[380] I was again told from the bar table without objection that the amendments contained in the Amended Notice did not affect the maps referred to in order 1 of the s. 599 orders. It was not explained to me what the amendments comprised, however neither Mr Trewavas nor Ms Dann relied upon any difference in terms of the two notices as being relevant to any submission made.

[381] It seemed to be accepted by both parties that Mr Marland, who appeared for Mr Baker on 27 and 28 February 2017, communicated to her Honour that some form of dispute of, or challenge to, the Restoration Notice was intended or underway. It is unclear to what dispute process he was referring. One might infer that he was referring to an internal dispute process which led to the Amended Notice, given that the Amended Notice was issued less than three months later. That seems to be confirmed by the factual background stated by Boddice J in Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128 (referred to further below) at [8] to [9].

[382] So far as her Honour's position is concerned, it is probably sufficient to find that her Honour had been told Mr Baker was not accepting the lawfulness of the Restoration Notice and was challenging it in some respect which was not further explained.

[383] The Amended Notice has also been challenged by Mr Baker. He brought an application for review of the decisions to issue the Amended Notice and the PMAV in QCAT. Jurisdictional issues in that application raised by the appellant were determined as preliminary issues by the learned President of QCAT. His Honour concluded that QCAT had jurisdiction. The appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appeal by the decision cited in paragraph [381] above.

[384] In that case, the appellant contended, in effect, that the relevant decision makers had no power to issue the restoration notices or the PMAV because their power to do so in each respect depended on the decision maker holding a reasonable belief that a person had committed a vegetation clearing offence. The appellant contended that to know that an offence had been committed (as it was contended was the position here where the decision makers referred to the convictions before her Honour) was not the state of mind called for by the statute because it contemplated reasonable belief.

[385] Boddice J (with whom Gotterson and Philippides JJA agreed) rejected that argument, in short, because "knowledge of a conviction of a vegetation clearing offence is a fact relevant to the forming of the requisite belief that the person had actually committed a vegetation clearing offence. Knowledge of that fact provides a firm basis for a belief that the person has in fact committed the vegetation offence."[224]

[386] Relevant to this case, there was also an argument advanced that to construe the provision as applying where there was in fact a conviction extant was a construction which gives rise to the risk of double punishment. His Honour rejected that contention as follows:

[492]

[388] The parties were not ad idem as to the task before me on this issue in the appeal given the appellant's success on two of the Forestry Act charges on the conviction appeal.

[389] The appellant[225] submitted that the effect of that success was that the exercise of the discretion to make orders under s. 599 SPA had necessarily miscarried and that it fell to me to decide the application for those orders afresh. In short, the appellant contended I should deal with the s. 599 orders in the same manner as for the sentencing appeal.

[390] The respondent submitted that the s. 599 orders related only to the SPA offences and that, thus, the appellant's success on two Forestry Act offences was irrelevant to the exercise of her Honour's exercise of discretion.[226]

[391] The resolution of this question was made more difficult by the ambiguous status of the further matters put before me during the course of argument. As noted above, the Amended Notice was tendered in evidence and I was informed, without objection, about the QCAT review of the Amended Notice and the PMAV. The parties also appeared to treat the decision in Baker v Chief Executive as relevant in this appeal for the fact its outcome left the QCAT review on foot, not just (or even primarily) as authority for any proposition.

[392] Technically, these matters comprise fresh evidence on the appeal of the s. 599 orders for which leave was required. So far as I could identify, neither party turned their minds to that question. However, both parties seemed content for me to receive and act on the evidence of the Amended Notice and of the continuing QCAT review of that notice and the PMAV. To the extent necessary I give leave to adduce the fresh evidence pursuant to s. 223(2) Justices Act.

[393] It might be a fine point as to whether her Honour's discretion must be taken to have miscarried by reason of the setting aside of the two Forestry Act convictions. On the one hand, those convictions are outside the statutory regime which gives rise to the s. 599 orders and are not included in any complaint alleging vegetation clearing offences. Further, her Honour made the s. 599 orders before exercising her sentencing discretion, which strongly suggests that no balancing of the s. 599 orders with any penalty imposed, inter alia, on the Forestry Act offences played a part in the exercise of her discretion.

[394] On the other hand, her Honour when giving brief reasons on the s. 599 orders referred to the fact of conviction on all 46 charges, suggesting she took into consideration the commission of all those offences in exercising her discretion to make the orders. One might reasonably contend however, that the difference between conviction on 46 and 44 charges is de minimis as a factor in the exercise of the discretion (assuming it was a factor), especially as her Honour's main concern as shown in paragraph [74] above was Mr Baker's continued clearing after various advices from the department. Setting aside convictions on the two Forestry Act charges does not change this underlying proposition.

[395] However, I am conscious that I am rehearing the matter on the evidence before her Honour and the further evidence before me. That seems sufficient to justify the conclusion that I should exercise the discretion afresh, even if it were thought that the limited success on the conviction appeal did not justify that approach.

[396] Thus, I approach the matter on the basis that the respondent is seeking: that I make orders in the same terms as those made by her Honour in paragraph [374] above.

[570]

[414] The balance of the majority's analysis focuses on relevant aspects of the statutory context in which s. 545 fell to be considered.

[415] In my view, the case is authority for the proposition that plenary grants of power should not be artificially read down or confined, but must be determined by reference to the statutory context in which they appear. Bearing that in mind, I do not think that s. 599(1) is confined by the express orders in s. 599(3).

[416] I recognise that s. 599(3) does not expressly state that it is "without limiting subsection (1)" as s. 545(2) Fair Work Act did in ABCC v CFMEU. It is common where plenary grants of power are followed by specific examples for such a statement to be included.[231] However, the absence of such a statement does not compel the conclusion that s. 599(3) is exhaustive. Where a plenary grant of power is made, as in s. 599(1), the starting point is that Parliament intends the grant to take effect according to its terms. Indeed, if s. 599(3) was meant to be exhaustive, s. 599(1) would be otiose.

[417] The conclusion that s. 599(3) is not exhaustive is strongly supported by the context in which s. 599 falls to be applied. The application of the section arises after the hearing of a complaint raising any one or more of the development offences identified in Subdivision 1. Further, s. 578 can be breached in various different ways and in diverse circumstances; and that section is just one of at least 10 development offences identified. The range of circumstances in which the section falls to be applied is of the greatest possible breadth. The conferral of a plenary power is consistent with that circumstance, so as to permit efficacious orders to be made in circumstances which might be unforeseeable.

[418] Accordingly, it is irrelevant whether the orders sought by the respondent fall within the confines of one of the orders in s. 599(3) or not. What needs to be established is that on the proper construction of s. 599(1), the power conferred by that subsection can sustain those orders.

[583]

[423] The appellant contends that these observations apply to s. 599. He contends that the Court cannot infer the derogation from the principle of quiet enjoyment by an occupier of that person's residence.

[424] In response, Ms Dann submitted that that case was concerned with the investigation of offences and did not apply with similar force where s. 599 by definition applies: where there has already been a hearing of the complaint about the development offences in question.

[425] Although Kuru does not confine the right to the situation of investigation of offences by the State, the cases referred to by the High Court in the above passage are search warrant cases. However, I do not see that as a relevant point of distinction. In my view, the search warrant cases provide the context for the application of the general principle: see the discussion of the Court in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111. Further, the effect of the order in this case is to require Mr Baker to permit the departmental officers to enter on his premises to check his compliance with order 1. While the circumstances that justify order 1 are (in this case) his conviction, and while inspection will allow departmental officers to check if restoration of the cleared areas is being permitted, it is nonetheless the case that if they find Mr Baker has not complied with order 1, it will arm them with evidence of an offence: see s. 599(5). The effect of the order is therefore not so different from a warrant to enter the land and investigate.

[426] I recognise that the order proposed does not require access to Mr Baker's dwelling (and any order I make could be expressly confined in that way) nor does it have the same capacity for surprise and distress which can arise from the execution of a warrant (because of the requirement for notice). As I observed in argument, those considerations make the extent of the interference with Mr Baker's common law right to quiet enjoyment less than might otherwise be the case (and would be the case for an executed search warrant).

[427] However, the principle articulated by the appellant is well known. It would have taken very little effort for Parliament to expressly state that orders permitting authorities to check on compliance were within power. I also note that there is nothing in any of the express orders identified in s. 599(3) which necessarily implies a power to make orders permitting compliance to be checked.

[428] Further, as has been seen, the VMA contains its own regime providing rights of access in certain circumstances and a warrant process in others. The same is so of the Local Government Act 2009 (Qld)[242] and the City of Brisbane Act 2010 (Qld)[243], pursuant to which most development offences are investigated. It is reasonable in my view to construe s. 599(1) in the context of the express provision in other related Acts which provide for investigation of development offences which deal with rights of access.

[429] In my view, s. 599(1) does not authorise an order in the form of order 2.

[584]

[430] I have found that there is power to make an order in the form of order 1, but no power to make an order in the form of order 2. The next question is whether I ought to exercise the discretion conferred on the Magistrates Court to make order 1.

[431] I have already found that order 1 is apt to address the consequences of the unlawful clearing. That matter also supports exercising the discretion to make the order. As I have found in the part of these reasons relating to sentence, in the period leading up to the trial, Mr Baker showed little inclination to comply with advice from the department nor to make an effort to comply with the law. Since then he has shown no sign of accepting the criminality of his conduct or of remorse for his offending.

[432] What then tells against making order 1? The appellant submits that I should not do so because:

(a) Mr Baker is already bound by the more onerous obligations in the Amended Notice to restore the cleared areas; and

(b) Mr Baker will already commit an offence if he clears any native vegetation in the areas which he previously cleared.

[433] As to the former, the Amended Notice has an extensive and detailed set of provisions imposing restoration obligations on Mr Baker.[244] Notably, requirement 1 is a more detailed and elaborate version of order 1. Requirements 2 and 3 impose obligations to control weeds. Requirement 4 does not permit use of mechanical means to clear weeds (presumably to avoid collateral damage to re-growing native vegetation). Requirement 5 requires erosion, stock and fire management to foster native vegetation. Requirements 6, 7 and 8 impose reporting obligations including photographic reports. The Amended Notice is to remain in force for 30 years unless restoration is shown to have been completed earlier than that.

[434] The difficulty with the respondent's reliance on the Amended Notice before me, however, is that the respondent is seeking to have the notice reviewed in QCAT. As I have noted, there is no evidence as to what is sought by the review, so I cannot be satisfied that those parts which reflect order 1 are not under challenge. The jurisdictional challenge sought to attack the whole of the notice. I do not think the existence of the Amended Notice to be sufficient to justify not exercising the discretion to make the order.

[435] As to the appellant's second argument, it appears correct that Mr Baker will commit an offence if he clears any native vegetation from the unlawfully cleared areas as it regrows. This matter was not mentioned in the written submissions and was not fully explored in oral argument. However, to be fair to Mr Trewavas who argued this point for the appellant, I did not press him on the detail and his proposition that clearing the Category A areas under the PMAV would be an offence was not disputed by Ms Dann for the respondent. The decision to make the PMAV consequent on the conviction, however, also appears to be under review in QCAT.

[436] Ultimately, I am not persuaded that the existing statutory and regulatory provisions which might protect the cleared areas pending their full regrowth are such as to rob the making of order 1 of any efficacy. Given the other factors favouring the making of the order set out in paragraph [431], I consider it appropriate to make an order in the form of order 1.

[594]

[440] The observations in paragraphs [227] to [229] above apply mutatis mutandis to the identification of special difficulty, complexity or importance in respect of an appeal.

[441] The fact that the trial was of special difficulty does not necessarily mean that the appeal will be such. Indeed, if the appellant had confined the appeal to the limitations issues which it agitated, either generally or in relation just to Complaint 1, the appeal, while still involving some difficult issues, would probably not have qualified as one of special difficulty, complexity or importance. In that situation the appeal would probably have taken less than a day, with submissions of modest proportions, and the broader question of the scope of the right to clear for fire management would not have arisen.

[442] However, that was not what happened. Rather, the appellant chose to raise numerous issues, very few of which were raised at trial. The choice the appellant made as to how to approach the appeal had the following consequences:

(a) The appellant's written submissions on the appeal ran to hundreds of pages;

(b) The appeal took seven days to hear (and frankly much of the detail in the submissions was not covered even in that period);

(c) Many issues raised on the appeal required detailed legal analysis of some complexity to be resolved, without the benefit of any reasons from the trial judge;

(d) The challenges to the evidence of each of Mr Goulevitch, Mr Dillewaard and Mr Tran required me to consider most of the evidence given at trial to be able properly to address the issues raised;

(e) The challenge to the evidence of Mr Tran meant that the question of the scope of a landholder's right to clear for fire breaks was litigated again in this appeal; and

(f) Some of the legal issues raised for the first time on appeal were themselves of importance, particularly those which required the Court to construe for the first time statutory provisions of importance to the VMA scheme and to consider the validity of the complainant's approach to pleading and proving vegetation clearing cases.

[443] Even with my limited experience in hearing s. 222 appeals, the above characteristics are such as to make the appeal one of special difficulty and complexity. Such appeals often take less than an hour to hear[246] and seldom take more than half a day. The practice for listing such matters reflects that. Section 222 appeals are usually listed on a Friday during criminal sittings, frequently with two or even more listed on one day. Appeals of more difficulty or complexity than that do occur, but in my experience they seldom require more than a day or at most two days for hearing and have nothing like the difficulty and complexity of the conviction appeal.

[444] The scope and importance of the legal issues raised, along with the importance of the question of lawfulness of fire break clearing, is separately sufficient to support the conclusion that the appeal was one of special importance.

[445] The appellant nonetheless submitted that the appeal was not one of special difficulty, complexity or importance. That submission was maintained orally.[247]

[446] The one basis for that submission was that I had found in my May reasons that, "...all the prosecution had to prove through Mr Dillewaard was that the charge areas had been cleared of native vegetation. That was all that was required to make out the offence".[248] This was relied upon as a finding. It was then said that as it turned out, it was unnecessary for Mr Dillewaard to give evidence to establish the character of the vegetation cleared.

[447] There are four reasons why I reject this submission as justifying the conclusion that the appeal was not one of special difficulty and complexity.

[448] First, the appellant did not conduct the appeal on the basis that proof of native vegetation being cleared would be sufficient. Rather, it advanced elaborate arguments as to why the prosecution had not established the offences as charged, inter alia, because of defects in Mr Dillewaard's evidence. It also contended that the SPA complaints were invalid because of insufficient pleading of the particulars relating to the native vegetation cleared. Undoubtedly the appellant would say that it was the prosecution's fault that the appeal was conducted in that way because it pleaded the case more broadly than required. However, in that case it was up to the appellant to concede the point (or not appeal on those grounds). Even on the hearing of the appeal, when I raised the issue, the appellant offered no concession.

[449] Second, my view that the offences could have been proved in the manner set out in my May reasons at [871] to [875] was expressly not the basis upon which I decided the appeal (see [876]). That was not the way the prosecution approached the issue (nor of course, did the appellant). The points were not fully argued, nor conceded on the appeal by the appellant. Close consideration might have led to a different conclusion, particularly bearing in mind the need to exclude various exemptions which referred to statutory categories of native vegetation.

[450] Third, even if Mr Dillewaard's evidence could have been shorter, it would still have been required. He would still have had to go to the property and conduct inspections, review the imagery and so on. Given the approach of the appellant to every other issue in the appeal, I have little confidence that even modest evidence from Mr Dillewaard would not have attracted challenges on appeal.

[451] Finally, and most compelling, even if Mr Dillewaard's evidence could have been simpler, the remaining characteristics of the appeal would have been ample for it to qualify as being of special difficulty and complexity.

[452] The appellant also submitted that appeals for the Forestry Act complaints should be treated differently because they did not involve special difficulty or complexity, even if the appeal in relation to the two SPA complaints did. I disagree.

[453] It can be accepted that there was less difficulty and complexity in the appeal so far as it related to the Forestry Act offences as compared to the SPA offences. The jurisdiction arguments related only to the SPA appeals, the evidence of Messrs Dillewaard and Tran was, at the least, less important to making out those offences. On the other hand, most other aspects of the appeal applied to the Forestry Act offences and at least one related only to the Forestry Act offences.[249] Some matters relating to the Forestry Act offences were also abandoned at the appeal, though they still had to be addressed by the respondent in submissions. One such point was substantial and another highly contentious.[250] In my view, the appeal insofar as it can be shown to relate just to the Forestry Act offences remained of special difficulty and complexity. For the same reasons I consider it just to order costs of those complaints (subject to dealing with the appellant's success on Charges 1 and 2 of Complaint 1).

[454] Further, it is not realistically possible to try to separate out the parts of the appeal which related to the Forestry Act offences from those which related to the SPA, especially given the overlap on many significant grounds of appeal: i.e. grounds relating to Mr Goulevitch's evidence, the reasons grounds and the limitations grounds. In my view, ss. 226, 232 and 232A permit a Court to deal with costs in accordance with those provisions on the basis of the appeal as a whole where it is just to do so. This is such a case.

[617]

[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.

[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]

[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.

[618]

[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.

[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.

[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.

[622]

[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.

[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.

Baker v Smith

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