Cohen v Macefield P/L & Ors [2010] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION: Cohen v Macefield P/L & Ors [2010] QCA 95

PARTIES: COHEN, John Norman (complainant/respondent/applicant) v MACEFIELD PTY LTD ACN 010 360 166 (third defendant/second appellant/first respondent) DE BRAY, Maurice Joseph (first defendant/first appellant/second respondent) DE BRAY, Lorraine Margaret (second defendant/appellant/third respondent)

FILE NO/S: CA No 1 of 2009 / CA No 2 of 2009 / CA No 3 of 2009 / DC No 80 of 2006 / DC No 79 of 2006 / DC No 166 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Southport

DELIVERED ON: 30 April 2010

DELIVERED AT: Brisbane

HEARING DATE: 23 February 2010

JUDGES: Holmes and Chesterman JJA and Daubney J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Each of the applications for leave to appeal in appeal numbers 1/09, 2/09 and 3/09 is refused with costs.

CATCHWORDS: MAGISTRATES – JURISDICTION AND PROCEDURE GENERALLY – PROCEDURE – INFORMATION AND COMPLAINT – FORM AND SUFFICIENCY – DUPLICITY AND UNCERTAINTY – IN GENERAL AND POWER OF AMENDMENT – where first and second respondent charged in the same count of damaging and permitting to be damaged protected vegetation – where first and second respondent found guilty as charged – where first and second respondent agreed to the formulation of the charge – where first and second respondent suffered no unfairness in the way the matter proceeded – where first and second respondent claimed, on appeal, that the charge and convictions were duplicitous – whether an objection based on duplicity can be raised for the first time on appeal – whether the section on which the charge relied created two separate offences or one offence with several characteristics – whether applicant’s complaint duplicitous – whether the Justices Act 1886 (Qld) operated to save the duplicitous complaint – whether the first and second respondents’ convictions duplicitous – whether Court of Appeal should order the amendment of the convictions / LOCAL GOVERNMENT – LEGAL RELATIONSHIPS AND PROCEEDINGS – PROCEDURE RELATING TO LEGAL PROCEEDINGS BY AND AGAINST COUNCILS – AUTHORITY TO PROSECUTE OR COMMENCE PROCEEDINGS – where first and second respondent found guilty of damaging and permitting to be damaged protected vegetation – where the Local Government Act 1993 (Qld) provided that the act of damaging protected vegetation had to occur within one year of the complaint – where damage meant the destruction of vegetation or interference with its natural growth – where no findings were made by the Magistrate that damage occurred within the limitation period – whether damage occurred within the limitation period – whether the matter should be remitted to the Magistrates Court for further hearing / MAGISTRATES – JURISDICTION AND PROCEDURE GENERALLY – PROCEDURE – ORDERS AND CONVICTIONS – PARTICULAR ORDERS – ORDERS FOR COSTS – COSTS AGAINST PROSECUTOR – INFORMANT OR COMPLAINANT – DISCRETION OF COURT – where proceedings against the third respondent in the Magistrates Court were unsuccessful – where third respondent sought a costs order in her favour – where Magistrate found that the third respondent’s conduct had precluded the availability of such an order – where third respondent successfully appealed this order – whether District Court judge on appeal erred in substituting a costs order in favour of the third respondent / District Court of Queensland Act 1967 (Qld), s 119(2) / Justices Act 1886 (Qld), s 43(1)(b), s 43(2), s 43(3), s 158A(2)(e), s 158A(2)(f) / Local Government Act 1993 (Qld), s 1080 / Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481; [1928] HCA 10, cited / B v R [2008] NSWCCA 85, cited / Brinkworth v Dendy (2007) 97 SASR 416; [2007] SASC 120, considered / Environment Protection Authority v Bathurst City Council, (1995) 89 LGERA 79, considered / Environment Protection Authority v CSR Ltd t/as CSR Woodpanels (2001) 114 LGERA 217; [2001] NSWLEC 41, considered / Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338 cited / Iannella v French (1968) 119 CLR 84; [1968] HCA 14, considered / Mallon v Allon [1964] 1 QB 385, considered / Miller v Quinn [1977] 2 NSWLR 198, considered / R v Bartalesi (1997) 41 NSWLR 641, considered / R v Castles (2007) 17 VR 329; [2007] VSC 561, cited / R v Hamzy (1994) 74 A Crim R 341, cited / R v Manwaring [1983] 2 NSWLR 82, cited / R v Tait [1996] 1 VR 662, considered / R v Traino (1987) 45 SASR 473, cited / R v Von Snarski (2001) 121 A Crim R 205; [2001] QCA 71 , cited / Rixon v Thompson [2009] VSCA 84, cited / Romeyko v Samuels (1972) 2 SASR 529, considered / S v The Queen (1989) 168 CLR 266; [1989] HCA 66, considered / Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, cited / Wellington v Police (2009) 105 SASR 215; [2009] SASC 294, cited

COUNSEL: C L Hughes SC, with A N S Skoien, for the applicant / D H Denton SC, with G R Allan, for the respondents

SOLICITORS: Michael Sing Lawyers for the applicant / Norton Rose for the respondents

[1] HOLMES JA: Two of the respondents, Maurice De Bray and Macefield Pty Ltd, were convicted in the Magistrates Court of damaging or permitting to be damaged protected vegetation, contrary to s 24 of the Gold Coast City Council’s Local Law 6 (Vegetation Management), and were fined. The complaint against the third respondent, Lorraine De Bray, was dismissed, but her application for her costs was refused. On appeal to a District Court judge, the convictions of Maurice De Bray and Macefield Pty Ltd were set aside and the complaints dismissed, while the decision to refuse Lorraine De Bray’s application for costs was set aside and an order in her favour substituted. The applicant, the complainant in the summary prosecution, seeks leave to appeal those decisions.

[2] The hearing before this court proceeded on the basis that the merits of the appeal would be examined in the course of considering whether leave to appeal should be given, and if the court were to decide to grant leave it would proceed to determine the appeal on the arguments already advanced. A difficulty arose as to the latter course when it was discovered that no draft notices of appeal had been furnished. The applicant sought leave to file affidavits containing draft notices in respect of each respondent in accordance with the grounds advanced in the written outlines of argument. The respondents, while conceding their understanding that the application and appeal were to be heard at the same time, objected on the bases that different grounds of appeal might be advanced from those argued, and they were uncertain as to what relief would be sought. The first concern was unfounded, and the applicant had identified in written submissions and over the course of argument the orders proposed in the draft notices of appeal. There is, in my view, no difficulty in the Court now receiving the affidavits annexing the draft notices. Leave to file the affidavits should be granted.

The offence

[3] Section 24(1) of Gold Coast City Council Local Law No. 6 (Vegetation Management) creates the relevant offence:

“A person must not damage or permit to be damaged protected vegetation.”

Section 24(2) provides that an offence is not committed if the damage is permitted under the Local Law, and the circumstances in which damage to protected vegetation is permitted are set out in s 25(2). (There was no evidence that the damage here was so permitted.) Section 3 contains some relevant definitions: “protected vegetation” is defined by reference to either the size of the vegetation or whether it is the subject of a vegetation protection order. “Damage” to vegetation is defined as including,

“destruction of the vegetation or interference with its natural growth including, but not limited to, ringbarking, cutting down, topping, lopping, removing or poisoning”.

[4] Section 1080 of the Local Government Act 1993 (Qld) sets a limitation on the time within which proceedings for such an offence may be started: within one year after the commission of the offence; or within six months after the offence comes to the complainant’s knowledge but, in any event, within two years after the commission of the offence. (In this case, there was no evidence that the offence came to the applicant’s attention at any particular time.)

[5] The complaints were made on 12 February 2004. The offence as charged against each of the respondents at the outset of the hearing was that each:

“… on a date between December 2000 and November 2003 … did, in breach of Local Law damage, or cause to be damaged, protected vegetation (namely trees equal to or in excess of four metres in height and/or in excess of forty centimetres in girth DBH (Diameter Breadth Height) measured at 1.3 metres above average ground level)…”

In his closing address, the prosecutor, without objection from the defence, sought and obtained leave to amend the complaints to substitute the word “permit” for “cause” in each complaint so as to accord with the language of s 24(1).

The evidence

[6] The De Brays, with their son, were directors of Macefield Pty Ltd, and were its only shareholders. They and the company owned adjoining lots, totalling 32 hectares in area. The land had been the subject of council interest over some years. In 2000, the De Brays applied for a permit to clear vegetation in order to create fire access tracks. A permit was granted with certain conditions. Two council officers, Mr Coutts and Mr Hance (an arborist), inspected the property in July 2000 and found that trees had been felled in contravention of the permit conditions and of the Local Law. But there was no evidence at that time of any poisoning, and photographs at the time showed the vegetation generally as healthy and vigorous. Mr Coutts paid a number of other visits to the property in 2000, the last in December, but did not see any signs of vegetation having been poisoned.

[7] In May 2001, Mr Hance visited the area again. He was not able to go onto the property, but along the fence line he noticed a number of dead trees and a strong smell of either diesel or Tordon, a herbicide. (There was evidence that diesel could be combined with Tordon so as to enhance the absorption of the latter chemical into trees to which it was applied.) He saw that some trees had been chopped into with a tool like a pick axe and appeared to have been poisoned. Tordon would, he said, be transmitted to the trees’ roots; the effects could, in drought conditions, be seen “within a couple of weeks”.

[8] Mr Hance’s next visit to the property was on 19 June 2003, when he, with Mr Coutts and another council officer, Mr Brooks, carried out an inspection of the trees on the property. On that inspection, Mr Hance found most of the trees of significant size had chop marks in their trunks, and there was “still some remnant smell” of Tordon or diesel. Necrosis around the chop marks indicated the herbicide had been applied directly to the cuts. The marks on the trees were not “obviously fresh”. Other trees without chop marks were also dying, probably because of the transference of the effects of the chemical between tree roots. Most of the significant vegetation was then dead, dying or in a state of serious decline. Mr Hance described what he had seen by way of cutting and poisoning of the trees to Maurice De Bray, who informed him that he had done the work, but did not say when.

[9] On their arrival at the property on 19 June 2003, Mr Coutts and Mr Brooks spoke to Lorraine and Maurice De Bray. Lorraine De Bray informed her husband that he did not have to say anything. During their inspection, Mr Coutts and Mr Brooks, like Mr Hance, observed dead and dying trees with indications of damage in the form of cuts at their base. Later they spoke again to Mr De Bray, in a conversation which his wife tape recorded. He said that he had conducted some poisoning of trees and foliage in the area of damage. A memorandum prepared by Mr Coutts was tendered by the defence without objection. In it he described the inspection of 19 June 2003 and said:

“No new breaches of Local Law No. 6 were detected but a great number of trees appeared to have died ... . The trees were long dead and Joe Hance said it was impossible to determine when the trees had been poisoned.”

The memorandum went on to say that Maurice De Bray admitted to having poisoned the trees before he was initially investigated for the breach of the Local Law concerning his contravention of the vegetation clearing permit in 2000.

[10] In November 2003, an agricultural scientist, Mr Ison, went to the property to examine damage. There had recently been a fire; probably, he thought, in about August 2003. He observed that large numbers of the trees had had incisions made into their bases with a sharp instrument, with, apparently, herbicide applied through the incisions. Herbicide applied in that way would make its way to the tree roots, interfering with their growth and eventually leading to the death of the tree. The damage to the trees was greater than would be consistent with mere spraying for woody weeds.

[11] Mr Ison took some photographs of damaged trees, on which he commented when he gave evidence. One of the photographs showed a stump which had received a saw cut prior to the fire and had been completely felled after it. He was asked whether the photograph confirmed interference both before the fire and during the interval of three months after it and said:

“… it was further damage subsequent to the fire, so in the last three months.”

Two other photographs showed, respectively, another stump which similarly had been partially sawn before the fire and felled after it, and a tree which had been cut down.

[12] In January 2004, Mr Hance returned to the area. The vegetation was in a similar state of decline to what he had seen in 2003. On the property adjacent to the lots owned by the De Brays and Macefield, he selected six areas of vegetation comparable in density to what he had observed on their properties in 2000. He counted the trees on the adjoining property and arrived at an average; on the basis of it, he estimated that 34,956 trees were damaged on the De Bray-Macefield land.

[13] Dr Olsen, a botanist, inspected the De Bray and Macefield properties from the adjoining road in December 2004. He saw extensive areas where trees had been killed by artificial means. The bases of the dead and dying trees had penetrating wounds caused with something like a pick or an axe. He thought a systemic poison such as Tordon had been used on the trees rather than the type of poisons (such as Glyphosate) which would be used to spray woody weeds. In his view, 90 per cent of the canopy was dead, and had been dead for at least 12 months, and possibly two years, prior to his visit.

[14] On being shown aerial photographs taken in 2001, March 2003 and October 2003 Dr Olsen said that the majority of the trees had been killed before 2003, but there had been loss of canopy between the March 2003 photograph and the October 2003 photograph. He had himself taken some photographs in December 2004. Most of the canopy trees depicted in them were “long dead”, but there were some where the foliage had recently turned brown, which, in his view, had been poisoned “in relatively recent months prior to [his] inspection”.

[15] Maurice De Bray gave evidence for the defence. In 2000, having obtained a permit to make fire access tracks on the property, he had set about destroying trees for that purpose by using a pick axe on them and applying Round-up (Glyphosate). He had used Tordon, but only to kill undergrowth such as lantana and groundsel. He and his helpers had sprayed three to four times a year ever since July 2000. Some of the trees might also have been inadvertently sprayed, but he had not intended to apply any herbicides to them.

[16] A nephew of the De Brays who had assisted them with clearing in 2000 described his contribution: working off a single fire trail, he had made holes in trees using a pick axe and hatchet and then sprayed Round-up into each hole. He had no knowledge of any clearing since early 2000. Mr Dye, a handyman employed by the De Brays, gave evidence of using a spray pack to spray weeds such as lantana over a period of about three years from July 2000. He had not applied poison to any trees, although he had cut some down on the fence line, including one which was the subject of a photograph Mr Ison had taken and referred to in his evidence.

The Magistrate’s decision

[17] The Magistrate identified as the matters in dispute:

“(1) Was the damage done with a pick to the trees, after the year 2000.

(2)Was there a deliberate intention by Maurice Debray [sic], to destroy trees, as defined in Local Law 6, Vegetation Management Act, and;

(3)Whether or not the defendant’s [sic] have any possible defence pursuant to Section 25 of the local by-law.”

[18] The Magistrate found that trees had been damaged and poisoned after the council inspections in 2000. The photographic evidence showed marked changes between 2001 and 2003. The damage done was consistent with an attempt to clear the area of all vegetation. The Magistrate did not accept that the trees were killed by accident; Maurice De Bray intended to destroy them. He found Mr De Bray and Macefield Pty Ltd “guilty as charged”. The Magistrate proceeded to sentence on the basis that Macefield Pty Ltd and Mr De Bray had damaged or destroyed 34,956 trees. He convicted and fined both.

The District Court judge’s decision on the appeals by Maurice De Bray and Macefield

[19] The District Court judge allowed appeals by Maurice De Bray and Macefield Pty Ltd on a number of grounds, of which it is only necessary to consider two. The first was that the complaints on which the company and De Bray were convicted were bad for duplicity; the second, that the Magistrate had not found, and the evidence did not establish, any damage occurring within the limitation period.

Duplicity

[20] The applicant argued on the basis that the learned District Court judge had found duplicity in two respects: in the charging and conviction of the respondents of damaging or permitting damage to protected vegetation; and in the charging of a series of acts (cuts and application of poison to a number of trees). As to the former, it was contended the learned judge was wrong because the complaint was not, in fact, duplex; as to the latter, the applicant argued that s 43(1)(b) of the Justices Act 1886 (Qld) permitted a series of acts done in the prosecution of a single purpose to be charged in a single count, thus saving the complaint from duplicity. In any event, s 43(3) made it clear that duplicity could not be raised for the first time on appeal.

[21] Section 43 of the Justices Act, so far as is relevant, is in the following terms:

“43 Matter of complaint

(1) Every complaint shall be for 1 matter only, and not for 2 or more matters, except—

…

(b) in cases other than cases of indictable offences—if the matters of complaint—

(i) are alleged to be constituted by the same act or omission on the part of the defendant; or

(ii) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or

(iii) are founded on substantially the same facts; or

(iv) are, or form part of, a series of offences or matters of complaint of the same or a similar character;

…

(2) When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.

(3) At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section—

(a) if an objection is taken to the complaint on the ground of such noncompliance—the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing;

(b) if no such objection is taken to the complaint—the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination…”

[22] The applicant relied on sub-sections 43(1)(b)(ii) and (iv). But those sub-sections do not authorise the charging of a series of acts done in the prosecution of a single purpose, or a series of offences of the same or a similar character, in a single count; they merely permit joinder of such matters in a single complaint. Where such joinder is permitted, s 43(2) requires that each be the subject of a separate paragraph or count. Unless the series of acts relied on here can properly be charged as a single activity of destruction and thus as a single matter of complaint, s 43(2) requires each act to be charged in a separate count.

[23] Having said that, I do not think that the learned judge did conclude (as the applicant asserted) that the complaint was bad because a series of acts was charged in one count. What he said was that, depending on appropriate findings (not made by the Magistrate in this case) it might be possible to charge a series of acts as a single offence, which “could possibly be described as ‘continuing’”. In the passages in the judgment with which the applicant took issue, his Honour distinguished Environment Protection Authority v CSR Ltd t/as CSR Woodpanels,¹ in which it was held that the limitation period commenced to run from the last day of a continuing offence, of negligently causing a substance to leak. His Honour’s reasons in this regard concerned, not questions of duplicity, but whether the limitation period should be approached as it was in that case, given the different nature of the offence involved there.² It was duplicity in the allegation of damaging or permitting to be damaged which caused the learned judge to find that the complaint and the conviction were bad. The Magistrate had drawn no distinction between the two, and it was uncertain of what criminal act each had been convicted.

[24] Whether the charging in a single count of both damaging protected vegetation and permitting protected vegetation to be damaged did result in a count which was duplex depends, of course, on whether s 24(1) of the Local Law created a single offence or two offences. In a statement which is commonly cited as representing a correct approach,³ Bray CJ in Romeyko v Samuels⁴ offered the following guide:

“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics.”⁵

[25] The applicant relied on R v Bartalesi,⁶ in which the offence was the doing of any act:

“intending to procure, persuade or otherwise cause any person called ... as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness ...”

Hodgson AJA expressed the view that the section specified alternative ways of committing a single offence. The other members of the court did not express any view on the matter. I consider, however, that analogies may more aptly be drawn with the provisions under consideration in Mallon v Allon⁷ (admitting persons to or allowing them to remain on premises), Miller v Quinn⁸ (driving or travelling in a motor car without a seatbelt) and Iannella v French⁹ (wilfully demanding or wilfully recovering rent); in each case with a conclusion that separate offences were created.

[26] Section 24(1) of the Local Law creates, in my view, two distinct offences. The first is that of damaging vegetation: directly, or through an agent, destroying it or interfering with its natural growth. Alleging that a defendant permitted damage is not merely an alternative way of describing the offence of damaging; its elements are different. Permitting damage entails, on the part of the person charged, knowledge or reason to anticipate or suspect that the act of damage will or is likely to be done; power to prevent it; (as a minimum) default in some duty of control or duty to interfere; and failure to prevent it.¹⁰

[27] In the present case, the complaint as originally formulated charged that each of the respondents damaged or caused to be damaged the vegetation in question. The addition of the words “caused to be damaged” might properly have been regarded as a mere particular of damage, indicating that the defendant in question had committed the offence by directing others, rather than acting in person. The substitution of the word “permit”, however, introduced a further offence, rendering the count defective. It may be, given the disjunctive form of the charge (“damage, or permit to be damaged”), the defect is more correctly described as one of uncertainty than duplicity,¹¹ but the term used does not matter for the purposes of this appeal.

[28] It is worth mentioning at this point that the respondents added a further argument as to duplicity: that the complaint gave rise to latent duplicity because it did not specify whether the offence of damage was committed by “destruction of the vegetation or interference with its natural growth”. It is not necessary to decide the point, but that instance would, in my view, fall within the second of the categories described in Romeyko: the damage might possess the characteristic of destruction or that of interference; but in either event it would be a characteristic of a single offence of damage.

[29] The applicant contended that the District Court judge had erred in allowing the respondents to raise the issue of duplicity for the first time on appeal. Had the point been taken before the Magistrate, the applicant said, he would have had the opportunity to make an election under s 43(3) of the Justices Act. The defence had taken no objection at the summary hearing and indeed had assented to an amendment containing the alternatives. Even if there were some elements of duplicity in the form of the complaint, in the absence of objection, s 43(3)(b) of the Justices Act gave the Magistrate the power to hear and determine it.

[30] As the learned judge noted, there is authority for the proposition that an objection based on duplicity may be taken for the first time on appeal: Walsh v Tattersall;¹² R**v Traino¹³ and R v Hamzy.¹⁴ It is true that the amendment to insert the word “permit” was assented to, if not encouraged, by counsel for the defence at first instance, and, in the absence of objection, there was no occasion for the court to require the applicant to elect on which charge he would proceed, as s 43(3)(a) contemplates. Consequently, the Magistrate was entitled pursuant to s 43(3)(b) to

“proceed with the hearing and ... determine the matters of complaint, and ... convict or acquit the defendant[s] in accordance with such determination.”

[31] To that extent, s 43(3)(b) may save a duplex complaint, but it does not follow that it entitles a magistrate to record an ambiguous conviction, such as this undoubtedly was. The Magistrate found Maurice De Bray and Macefield Pty Ltd guilty as charged; that is to say, of both damaging vegetation and permitting it to be damaged. That failure to identify to which of the offences the conviction related gave rise to the problems of uncertainty explained by Gaudron and McHugh JJ in S**v The Queen:¹⁵

“... in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict ...”¹⁶

[32] The applicant, however, argued that there was no unfairness to Mr De Bray or Macefield Pty Ltd in the way the matter proceeded. Each was aware at all times of the nature of the case being prosecuted. To that, the respondents riposted that the absence of unfairness was irrelevant to whether duplicity existed, citing Rixon v Thompson.¹⁷ It may be accepted, as the Victorian Court of Appeal pointed out in that case, that the absence of unfairness is not determinative of whether a charge is good or bad; but it may be relevant to disposition of the application and appeal. In the present case, I think it is clear that the case presented was one of damaging rather than permitting damage, and that the Magistrate convicted on the former basis. The proper course, then, might be amendment of the conviction to reflect that fact, using the broad power to make orders conferred by s 119(2) of the District Court of Queensland Act 1967 (Qld).¹⁸ However, for other reasons which will become apparent, this is not an appropriate case for such an approach.

The limitation period

[33] The second of the learned District Court judge’s conclusions which led to the respondent’s success below was that the prosecution had to prove that the act of damage (in the present case poisoning) occurred within the limitation period; that is to say between 13 February 2003 (12 months before the date of the complaint) and November 2003 (the concluding date for the commission of the offence in the complaint.) The Magistrate had not made any finding as to what damage, if any, had been caused between 13 February 2003 and November 2003, and the evidence did not establish any such damage in that time frame. There was, therefore, no point in remitting the matters for further hearing.

[34] The applicant contended that the learned judge should not have allowed this point to be raised for the first time on the District Court appeal; had it been raised, he could have given evidence as to when the offence came to his notice, and perhaps taken advantage of the extended period allowed by s 1080 of the Local Government Act. In fact, however, in the course of arguing that the Magistrate should not permit amendments of the complaint (on the basis that to do so would amount to allowing the bringing of a fresh prosecution out of time), the defence pointed out that the allegation of conduct on an unspecified date between December 2000 and November 2003 was “plainly and clearly outside any 12 month time limit”.

[35] In any event, any failure of Maurice De Bray and Macefield Pty Ltd to raise the point before the Magistrate could not render a conviction lawful if in fact the alleged offences fell outside the limitation period. In R v Tait,¹⁹ the Victorian Court of Appeal upheld an appeal against conviction where the appellant had pleaded guilty to sexual offences, some of which had been commenced outside the relevant limitation period. A fortiori, the respondents’ failure to take the point in contesting the charges before the Magistrate could not preclude its consideration on appeal.

[36] Section 1080 of the Local Government Act required that the offence be committed within the limitation period: between 13 February 2003 and November 2003. The charge as it stood was not properly framed, because it alleged offending over a wider period; and the Magistrate, as the learned District Court judge observed, failed to make any finding of an offence committed within the limitation period. The learned judge properly set the convictions aside. There remains the question of whether he was also correct in declining to remit the matter for further hearing to the Magistrates Court. Its resolution requires consideration of whether the evidence put before the Magistrate was capable of sustaining a finding, made beyond reasonable doubt, that protected vegetation had been damaged within the limitation period.

Whether the case should have been remitted for further hearing

[37] What the prosecution alleged by way of damage was not the subject of particulars; the most precise articulation of the prosecution case in the opening was this:

“…that damage includes, among other things, ringbarking and poisoning.”

The Magistrate was addressed on the basis that the trees had been poisoned by the method illustrated by the photographs taken on 19 November 2003; those photographs showed incisions in the tree bases which could not, the prosecutor said, been made as long ago as 2000, as Maurice De Bray asserted.

[38] The applicant argued that the offending conduct was properly regarded as a single offence constituted by multiple acts over time, and it was only necessary for the prosecution to prove that some elements of the offence had occurred during the limitation period. Thus if the poisoning had occurred, for example in 2000, it would suffice if the trees died in 2003; and the evidence was that trees were dying over that period. Counsel pointed to the decision of the Full Court of the Supreme Court of South Australia in Brinkworth v Dendy²⁰ in which the defendants were charged with clearing native vegetation from what was particularised as 27 separate areas of an allotment. Doyle CJ, with whom the other members of the court agreed, said that the charge did not involve any patent duplicity, and whether there was latent duplicity would depend on whether the evidence demonstrated a single activity of clearance or separate acts of clearance.

[39] The applicant also relied on Environment Protection Authority v Bathurst City Council,²¹ in which the offence was one of polluting waters. Manure had been dumped leading to pollution of a nearby creek. There was no evidence that the dumping had occurred within the 12 month limitation period. Hunt CJ at CL, delivering the leading judgment, said that polluting waters was a “result offence”: it consisted of a physical act, of placing the material in the waters, and a particular consequence, the pollution of the waters. He rejected the defence contention that the prosecution had to show both the act and the consequence occurred within the limitation period: rather, the prosecution had to show that the offence became complete at a time within the limitation period. It did not matter when the act was done; the offence was complete and committed as soon as the pollution occurred.

[40] I do not think the evidence here was sufficiently clear about what occurred when to show a single activity of chopping and poisoning, but one can put that issue aside for the moment. Assuming the analysis in Environment Protection Authority v Bathurst City Council to apply here, the physical act under s 24(1) of the Local Law is that of damaging, the prescribed result being the destruction or interference with the natural growth of the vegetation. The relevant act here was poisoning, with, as a result, interference with the natural growth of the trees. None of the prosecution witnesses was explicit about the time frame for the chemical’s impact on growth, but Mr Hance spoke of its effects being visible within a couple of weeks. It seems, then, that the act of poisoning and the result of interference were likely to have been very close in time. The offence was complete once there was interference with growth; the fact that trees continued to be affected and to die after the February date does not assist if they had already suffered interference with growth by then.

[41] Because poisoning and interference with growth went, more or less, hand-in-hand, it does not make much difference whether the prosecution had to prove the act, or the result, or both, within the limitation period. But it follows that if one could be satisfied that poisoning occurred between the relevant dates, one could also be satisfied that the consequent interference with growth occurred in that time period. Here, counsel for the applicant was asked to identify the evidence which supported commission of the offence between February and November 2003, and pointed to a number of passages from the testimony of the prosecution witnesses.

[42] Mr Hance recalled a “remnant smell” of Tordon or diesel in trees of significant size which had chop marks in their trunks when he inspected the property on 19 June 2003. (The effect of that evidence was somewhat undermined by his observation that the chop marks were not “obviously fresh” and that Mr Coutts indicated, in his memorandum describing the inspection, that the trees were “long dead”.)

[43] When Mr Olsen was referred to the photographs which he said showed a loss of canopy between March and October 2003, he was asked:

“And what does that tell us about the likelihood of when poison was applied or whether was [sic] poison was applied in the period prior to or between when those photographs were taken?--As I said, I think the majority of canopy individuals on parts of the site had been removed in the interim. And there were – there were progressive periods of canopy death exhibited on the site.”

The answer does not really seem responsive to the question. While observing that trees had died, Mr Olsen does not seem to have addressed the issue of when poison might have been applied, culminating in that result. The only evidence he gave in that regard was his statement that trees had been poisoned “in the relevantly recent months prior to [his December 2004] inspection”; which could not assist the prosecution, since it post-dated the end of the relevant limitation period.

[44] When Mr Ison was shown the November 2003 photographs, he was asked,

“…I take it from those photographs, you were satisfied that some of the interference to these trees was recent, aged within three months of your visit?”

and answered,

“Yes, some of that damage – a lot of the damage would have occurred progressively from – there had been some evidence of further damage in the last few months.”

That answer, however, as the learned District Court judge observed, is somewhat equivocal as to whether Mr Ison was referring to the infliction of damage or the effects of what had been done; the use of the word “progressively” tends to suggest the latter. The reference in the last part of the answer to “damage in the last few months” in context seems likely to have related to the three trees felled after the August 2003 fire. It is consistent with Mr Dye’s evidence that he had cut down trees on the fence line. But it was not the prosecution case that the cutting of those trees constituted the damage the subject of the charge.

[45] The applicant suggested that the conviction could be sustained on the basis of Maurice De Bray’s admission in evidence that the trees might have been “sprayed too many times”, but again, that was not the prosecution case. And, indeed, Mr Ison’s evidence was that chemical applied on the outside of the bark of the tree would not readily penetrate the tree itself, and that woody weed control techniques would not normally result in the death of mature trees.

[46] Although there was, particularly in what Mr Hance said, some evidence suggestive of poisoning in 2003, it was not sufficient, in my view, to overcome the possibility that the relevant damage, in the form of interference to the natural growth of the trees, had already occurred by February 2003; or, it follows, to permit a finding beyond reasonable doubt that the offence of damage became complete during the limitation period, not earlier. The learned judge was correct in declining to remit the matter for further hearing.

The Magistrate’s decision on Mrs De Bray’s application for costs

[47] The complaint against Lorraine De Bray having been dismissed, the Magistrate determined the question of whether she should have her costs by reference to s 158A(2) of the Justices Act, and, in particular, subsections (e) and (f):

**“**158A Exercise of discretion in relation to an award of costs

...

(2) In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example—

...

(e) whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and

(f) whether the defendant unreasonably declined an opportunity before a charge was laid—

(i) to explain the defendant’s version of the events; or

(ii) to produce evidence likely to exonerate the defendant;

and the explanation or evidence could have avoided a prosecution…”

The Magistrate refused to make a costs order in Mrs De Bray’s favour, giving the following reason:

“While a person is not obliged to give a record of the interview and a person has a right to silence, the defendant at that time had an opportunity to give an explanation and as a result in not giving an explanation and being owner of the property brought suspicion on herself.”

The District Court judge’s decision on the appeal by Lorraine De Bray

[48] The learned judge observed that the Magistrate appeared to have reasoned that Mrs De Bray had brought suspicion on herself because, although she was the owner of the property, she gave no explanation. But, his Honour said, that reasoning pre-supposed that she:

“... had a version of events, was given an opportunity to explain that version, unreasonably declined that opportunity and for these reasons brought suspicion on herself.”

He went on to say that in his view, the evidence fell well short of establishing those matters. In any event, the Magistrate had not found that any explanation by Mrs De Bray, even if one were required, “could have avoided prosecution”; nor was there evidence on which he could have done so. There was no evidence that the council officers had sought an explanation from Mrs De Bray on 19 June 2003. No allegations were made against her, so it was not unreasonable for her to say nothing. She had no reason to believe that if she did not say something she might be charged with damaging protected vegetation. Nor were any allegations made against her, or any explanation sought from her, subsequent to 19 June 2003.

[49] Those conclusions were, in my respectful opinion, correctly drawn. Merely being an owner of the property was hardly “conduct engaged in after the events” attracting suspicion, and there was nothing in Mrs De Bray’s encounter with the council officials which would have had alerted her to the fact that she was under investigation or might be expected to give a version of anything. She was not given an opportunity to explain anything or to produce any evidence. Neither of the s 158A(2) circumstances relied on by the Magistrate was made out, and it was not suggested that there was any other basis on which the discretion ought to have exercised against a grant of costs.

Conclusion

[50] The applicant has not, in my view, demonstrated error in either of the judgments below. I would refuse leave to appeal in each application. The respondents should have their costs.

[51] CHESTERMAN JA: I agree that the applications for leave to appeal should be refused, with costs, for the reasons given by Holmes JA.

[52] DAUBNEY J: I respectfully agree with the reasons for judgment of Holmes JA, and would also refuse the applications for leave, with costs.

Footnotes

1. (2001) 114 LGERA 217. ↩

2. Morris Joseph De Bray v John Norman Cohen; Macefield Pty Ltd v John Norman Cohen [2008] QDC 276 at [60]-[65]. ↩

3. See e.g. R v Manwaring [1983] 2 NSWLR 82; B v R [2008] NSWCCA 85; R v Castles (2007) 17 VR 329. ↩

4. (1972) 2 SASR 529. ↩

5. At 552. ↩

6. (1997) 41 NSWLR 641. ↩

7. [1964] 1 QB 385. ↩

8. [1977] 2 NSWLR 198. ↩

9. (1968) 119 CLR 84. ↩

10. Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 per Knox CJ at 487; see also R v Von Snarski (2001) 121 A Crim R 205 at [24]; Hardt v Environment Protection Authority (2007) 156 LGERA 337 at 344. ↩

11. Romeyko v Samuels at 553. ↩

12. (1996) 188 CLR 77 at 82, 109. ↩

13. (1987) 45 SASR 473 at 475.