Barnes & Anor v Mackenzie

CASES CITED : Ostrowski v Palmer [2004] HCA 30, (2005) 218 CLR 493

Ian Barnes - First Plaintiff PARTIES : Stephen Dodds - Second Plaintiff Scott Mackenzie - Defendant

COUNSEL : Mark Anderson - Plaintiffs Jay Anderson - Defendant

SOLICITORS : Kennedy & Cooke - Plaintiffs Wayne J Boom - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: Nature of proceedings The defendant was charged by the plaintiffs with four offences contrary to regulations made under the Forestry Act 1916. The allegations were that he entered a prohibited forest area on 8, 17 and 21 June 2005 contrary to Forestry Regulation 13 and that on 21 June he erected an obstruction in a forestry area, contrary to Forestry Regulation 15. Those matters were heard by his Honour Mr Bone LCM on 5 October 2007. His Honour dismissed all four matters. 2 The plaintiffs have appealed pursuant to s 56 of the Crimes (Appeal and Review) Act 2001 against his Honour's decision in three of those matters, being the alleged entry into a prohibited forest area on 8 and 21 June 2005 and the alleged erection of an obstruction in a forestry area of 21 June 2005. 3 The appeal grounds are: "1. That the learned Magistrate erred in his interpretation of s45B Forestry Act 1916. 2. That the learned Magistrate erred in holding that the prosecution failed to prove that the defendant was present in an area which was a prohibited area pursuant to Forestry Regulation 2004 on 8 June 2005 and 21 June 2005. The onus was on the defendant to prove that the area was not a prohibited area pursuant to the provisions of sections 36A, 45B Forestry Act 1916. 3. That the learned Magistrate erred in his interpretation of Forestry Regulation 2004 clauses 13(4) and 15(3) as requiring mens rea . The offences are strict liability offences. 4. That the learned Magistrate erred in holding that the prosecution failed to prove the elements of the offence created by clause 15(3) of Forestry Regulation 2004."

Factual background 4 The following summary is taken from his Honour's judgment. The Wandello State Forest is located north-west of Bega on the far south coast of New South Wales. In May 2005, a portion of the forest was set aside for logging operations. That portion became a prohibited area and members of the public had no lawful right to enter it. The accused had an interest in environmental issues and could fairly be described as a long-term protestor. He and others had set up a camp adjacent to the prohibited area. He is alleged to have entered the prohibited part of the forest on three occasions in June, 2005, and also to have partially reconstructed a stone fence which had been erected by protestors for the purpose of preventing loggers' vehicles from entering the area of the logging. 5 On 20 May 2005 Mr Robinson, who was an employee of State Forests erected notices indicating that part of the Wandello State Forest was a prohibited area from 20 May 2005 until further notice. These notices were erected at five locations. Those locations were on road intersections and it was common ground that the notices were placed in conspicuous positions in the forest. Mr Robinson entered the forest on a daily basis after 20 May and noticed on occasions that the notices were either missing or had been defaced. He estimated that he had to use about 45 replacement notices because of thefts and disfigurement of the notices. 6 It was Mr Robinson's evidence that he had seen the defendant on the specified occasions in June in parts of the State forest, which were prohibited to the public as a result of the notices which he had erected. In relation to 21 June, his evidence was that he had seen the defendant with others, rebuilding a small stone fence across a road leading into the forest. 7 The defendant said that he had not seen any notices when he entered the forest on 8 and 21 June and he denied that he had participated in rebuilding the small stone fence on 21 June. 8 In relation to the legal issues before him, his Honour held that s 45B Forest Act 1916 was irrelevant to the proceedings before him. He identified the legal question as follows: "(2) The offences relating to the accused's entry to the forest depend upon his doing so in contravention of the prohibition contained in a notice which is on display at the time of entry." 9 In respect of the alleged entry by the defendant into a prohibited part of the forest on 8 and 21 June 2005 his Honour found that at the time when the defendant entered the forest, the notices were not in position. It followed that the ingredients of the offence were not made out because the notices were not on display at the time of entry. 10 In relation to the allegation of erecting an obstruction, his Honour was not able to decide between the evidence of Mr Robinson and that of the defendant, since both appeared to be witnesses of truth. In those circumstances he could not be satisfied beyond reasonable doubt as to the commission of the offence.

Submissions and consideration 11 Section 56 of the Crimes (Appeal and Review) Act 2001 relevantly provides: "56 (1) The prosecutor may appeal to the Supreme Court against: … (c) an order made by a Local Court dismissing a matter the subject of any summary proceedings, … other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone." 12 It was common ground that these matters were not "environmental offences" and consequently the appeal from his Honour's orders were restricted to grounds which involved a question of law alone. 13 The sections of the Forestry Act 1916 which were relevant were as follows: "36A Control signs (1) In this section, "control sign" means a standard, sign, notice or device in or similar to a form, or generally answering a description, prescribed for the purposes of this section. (2) The commission may give such a direction prohibiting, regulating or controlling the use or enjoyment of a State forest, timber reserve or flora reserve as, in its opinion, may be necessary or desirable and any such direction may be limited as to time, place or subject-matter. (3) A direction given pursuant to subsection (2) shall have effect only while there is erected or displayed upon or near the State forest, timber reserve or flora reserve to which the direction relates a control sign that is notice of the direction. …" "45B Certain allegations in informations (1) An allegation, in an information in respect of an offence under this Act or the regulations, that any lands in question form part of a State forest, timber reserve or flora reserve or otherwise comprise Crown-timber lands shall be sufficient without proof of the matter so alleged unless the defendant proves to the contrary. (2) An allegation, in an information in respect of an offence under this Act or the regulations, that a standard, sign, notice or device was erected or displayed with the authority of the commission, or that a standard, sign, notice or device was erected, displayed, interfered with, altered or removed without the authority of the commission, shall be accepted by the court as evidence of the truth of the allegation, unless the defendant proves to the contrary." 14 Regulation 13 was the relevant regulation under Forest Regulation 2004 and provided: "13 Control of persons, vehicles and machines in forestry area (1) The Commission may, by displaying a notice to that effect in a conspicuous position in or in the immediate vicinity of a forestry area, prohibit: (a) all persons, or all persons of a class specified in the notice, or (b) all vehicles, or all vehicles of a class specified in the notice, or (c) all machines, or all machines of a class specified in the notice, from entering the area or a part of the area specified in the notice. (2) Any such prohibition may be for an indefinite period or for such period or periods as are specified in the notice. (3) The Commission may erect or authorise the erection of such enclosures, gates or ramps as it considers necessary for the purposes of such a prohibition. (4) A person who, without the prior written permission of the Commission: (a) enters a forestry area, or (b) drives a vehicle into a forestry area, or (c) drives a machine into a forestry area, or (d) having entered a forestry area, remains in, drives a vehicle in, or drives or uses a machine in, the area, in contravention of a notice displayed in accordance with subclause (1) is guilty of an offence." 15 The plaintiffs submitted that his Honour had incorrectly interpreted s45B of the Forestry Act 1916. They submitted that subs 45B(2) reversed the onus of proof on the question of whether or not a sign or notice was erected so that once there was an allegation to that effect, it was necessary for the defendant to prove the contrary. 16 I do not so read s45B. I agree with his Honour that s45B deals with matters of a formal kind and relieves the prosecution of the requirement to prove that particular lands form part of a State forest and that a particular sign or notice was erected with the authority of the Commission. It goes no further than that. It does not relieve the prosecution from the task of establishing that there was in fact a sign or notice erected or displayed as required by the Act or Regulation. 17 The plaintiffs submitted that his Honour had failed to give adequate reasons for dismissing the information before him. I do not agree. In relation to the allegation of erecting an obstruction, his Honour made it clear that he could not decide between two competing witnesses on that issue. In those circumstances the prosecution had to fail. It is trite law that reasons need not necessarily be lengthy or elaborate. What they need to do is to indicate the reasoning process of the decision maker identifying, where necessary, what evidence and what findings in relation to that evidence were relied upon in reaching the decision. On the allegation of erecting an obstruction, his Honour's reasons easily met that test. 18 In relation to the entry into a prohibited part of the forest, the basis for his Honour's conclusion was also clearly set out. He made a finding of fact that at the time of the defendant's entry, signs were not in position. When that finding of fact is taken with his Honour's statement of the elements of the offence, ie that entry must take place contrary to a sign which is on display at the time of entry, the basis for his decision is clear. Accordingly, this submission fails. 19 The primary submission made by the plaintiffs was that his Honour had wrongly identified the elements which had to be established by the prosecution in order to give rise to an offence contrary to Regulation 13(4). The plaintiffs submitted that it was not necessary for there to be a temporal connection between the entry of the defendant into a prohibited part of the forest and the display of a notice. They submitted that once a notice had been displayed in accordance with Regulation 13(1), this rendered the relevant part of the forest a prohibited area and thereafter any entry into that part of the forest constituted an offence regardless of whether or not the notice originally displayed remained in position or not. 20 In support of that submission the plaintiffs relied upon Ostrowski v Palmer [2004] HCA 30, (2005) 218 CLR 493. 21 The defendant submitted that in its terms such an interpretation of Regulation 13 was not open. The defendant relied on the words "in contravention of a notice displayed in accordance with subclause (1)" as being indicative of an intention on the part of the legislature that unless a notice was displayed at the time of entry an offence would not occur. The defendant submitted that had the legislature intended otherwise they would have used a more neutral word such as "erected". 22 Absent other considerations, I was inclined to the interpretation put forward by the plaintiffs. It seemed to be a surprising result if persons could remove a notice upon entering a prohibited part of a forest and then when apprehended, rely upon the fact that there was no notice displayed at that time. In those circumstances the prosecution could not prove that a notice was displayed at the time of entry unless it had evidence of the person removing the notice. The interpretation relied upon by the defendant would take any real teeth from the Regulation. 23 It also seemed surprising that the question of whether entry into a prohibited part of the forest was an offence contrary to the Regulation, would depend upon the presence of a sign at the time of entry. One would have thought that once entry to a particular part of the forest had been declared prohibited, that prohibition would remain until lifted regardless of the presence of a notice. 24 The defendants, however, not only relied upon the wording of Regulation 13, but also upon s36A(2) and (3) of the Forestry Act 1916. The defendant submitted that the authority to display the notices referred to in Regulation 13 came from them being a "direction" as referred to in s36A(2). If that were so, the meaning of s36A(3) was that such a direction "shall have effect only while there is erected or displayed … a control sign that is notice of the direction". 25 Again, it is trite law that regulations duly made form part of the law but are subject to any statutory provision under which they are made and are subject to any statutory provision to the contrary. It seems clear that the power to erect notices under Regulation 13 comes from s36A(2) and that such notices will only be effective while they are erected or displayed. That, it seems to me, determines the interpretation of Regulation 13 decisively in favour of the submissions of the defendant, which were in line with the approach followed by his Honour. Accordingly, once his Honour found that the notices were not in place at the time when the defendant entered the prohibited part of the forest, the offence contrary to Regulation 13 could not be made out. 26 There was another matter which arose in the course of the hearing before me and his Honour, which his Honour did not determine. This was probably because it was not necessary for his Honour to do so given his finding of fact in relation to the notices. While it is not necessary for me to decide this issue, I should say something about it for the assistance of the Local Court in future prosecutions. 27 Mr Robinson, the principal witness for the plaintiffs, was unable to remember the precise wording of the notices. His evidence went no further than a general assertion that the notices indicated that until further notice entry to parts of the forest was prohibited without the prior written permission of the Commission. Due to the effluxion of time, no photograph or copy of the relevant notices was available. It was not even possible to place before the court the text of the wording of the notices. Coloured photographs were before the court which indicated that each notice comprised two parts, one an A4 sized piece of paper with writing upon it and the other an A4 piece of paper containing a map. It was not possible to read the text or to identify any detail on the map. 28 On that state of the evidence I find it difficult to see how the ingredients of an offence under Regulation 13 could be made out. I do not see how a court could be satisfied that a notice of the kind described in Regulation 13(1) had ever been displayed. In the absence of the actual text of the notice and some evidence relating that text to the notice which was in fact displayed, I would not have been satisfied on the evidence in this case that a notice having the necessary qualities identified in Regulation 13(1) had ever been displayed. Without being able to prove the display of the notice, no offence contrary to Regulation 13(4) could be proved. 29 For the above reasons, no error in point of law has been established on the part of his Honour and the summons should be dismissed.

Orders 30 The orders which I make are as follows:

(ii) The plaintiffs are to pay the defendant's costs of these proceedings, as agreed or assessed. **********

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