Baker v Smith [2021] QCA 66

SUPREME COURT OF QUEENSLAND CITATION: Baker v Smith [2021] QCA 66 PARTIES: BAKER, Michael Vincent (applicant) v BRIAN ARTHUR CONWAY SMITH (respondent) FILE NO/S: CA No 4 of 2020 DC No 4984 of 2016 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane – [2019] QDC 76 (Porter QC DCJ); [2019] QDC 242 (Porter QC DCJ); [2019] QDC 267 (Porter QC DCJ) DELIVERED ON: Date of Order: 19 March 2021 Date of Publication of Reasons: 9 April 2021 DELIVERED AT: Brisbane HEARING DATE: 19 March 2020 JUDGES: Sofronoff P and Morrison JA and Davis J ORDERS: Orders delivered: 19 March 2021 1. Application for leave to appeal refused. 2. Applicant to pay the respondent’s costs of the application for leave to appeal on the standard basis. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED AT TRIAL – GENERAL PRINCIPLES – where the applicant was convicted in the Magistrates Court at Brisbane of 46 charges, contained in four complaints, pursuant to the Forestry Act 1959 (‘Forestry Act’) and the Sustainable Planning Act 2009 (‘Sustainable Planning Act’) – where the charges arose as a result of illegal clearing of vegetation on the applicant’s property known as ‘Chess Park’ – where the applicant appealed the convictions in the Magistrates Court to the District Court pursuant to s 222 of the Justices Act 1886 (‘Justices Act’) – where the appeal to the District Court was partially successful – where the District Court set aside the conviction on two of the charges in complaint 1, reduced the sentence and the amount of costs the applicant was ordered to pay and set aside another ancillary order – where the applicant seeks leave to appeal pursuant to s 118(2) of the District Court -- 1 of 21 -- 2 of Queensland Act 1967 against the remaining convictions – whether the learned District Court judge erred in upholding the remaining convictions in relation to the other 44 charges CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant was fined a total sum of $276,000 in the Magistrates Court at Brisbane – where, on appeal, the District Court reduced the fine to take into account the applicant’s success in having two convictions quashed – where the applicant seeks leave pursuant to s 118(2) of the District Court of Queensland Act 1967 to appeal the fine imposed in the District Court on three bases, including that the sentence was manifestly excessive – whether the learned District Court judge made an error of fact by making findings against the applicant which were not supported by evidence or by placing no weight or insufficient weight upon the facts before the Court – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST ORDER AS TO COSTS – GENERAL PRINCIPLES – where a costs order was made against the applicant in the Magistrates Court at Brisbane in the first instance – where the learned Magistrate did not make a costs order at the time she delivered her reasons for finding the applicant guilty of the offences – where the applicant submitted that, as the costs of the trial were borne by the State therefore, a costs order in favour of the respondent, as complainant, should not be made – whether it was within the jurisdiction of the learned Magistrate to make a costs order at a later date – whether it was within the jurisdiction of the learned Magistrate to make a costs order in favour of the respondent Acts Interpretation Act 1954 (Qld), s 14A, s 14B Criminal Code 1899 (Qld), s 7, s 229 District Court of Queensland Act 1967 (Qld), s 118 Drugs Misuse Act 1986 (Qld), s 5 Forestry Act 1959 (Qld), s 39, s 54 Justices Act 1886 (Qld), s 4, s 39, s 142A, s 158A, s 157, s 222 Penalties and Sentences Act 1992 (Qld), s 49 Sustainable Planning Act 2009 (Qld) Sustainable Planning Regulation 2009 (Qld), s 68, s 618 Vegetation Management Act 1999 (Qld), s 67 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited Baker v Smith (No 1) [2019] QDC 76, related Baker v Smith (No 2) [2019] QDC 242, related Baker v Smith (No 3) [2019] QDC 267, related Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited -- 2 of 21 -- 3 Coleman v Constable Kinbacher (Qld Police) [2003] QCA 575, cited Cross County Realty Pty Ltd v Peebles [2007] 2 Qd R 254; [2006] QCA 501, followed De Bray v Cohen [2008] QDC 275, cited Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Hindeman v Sargent, unreported, District Court of Queensland, Andrews QC DCJ, 5 May 2014, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, cited Lasker v Holeszko [2019] QCA 163, cited Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited McDonald v Holeszko (2019) 2 QR 123; [2019] QCA 285, cited McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited Pickering v McArthur [2005] QCA 294, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited R v A2 (2019) 93 ALJR 1106; [2019] HCA 35, cited R v Barlow (1997) 188 CLR 1; [1997] HCA 19, cited R v Beck [1990] 1 Qd R 30, cited R v Leivers and Ballinger [1999] 1 Qd R 649; [1998] QCA 99, cited R v Roughan & Jones (2007) A Crim R 389; [2007] QCA 443, cited R v Ruddell [2006] 1 Qd R 361; [2005] QCA 346, cited R v Stead; Ex parte Attorney-General (Qld) [1997] QCA 236, cited R v Stewart & Garcia [2014] QCA 244, cited R v Struber [2016] QCA 288, cited S v The Queen (1989) 168 CLR 266; [1989] HCA 66, cited Scriven v Sargent (No 2) [2016] QDC 16, cited Shambayati v Commissioner of Police [2013] QCA 57, cited SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; (2017) 91 ALJR 936; [2017] HCA 34, cited White v Ridley (1978) 140 CLR 342; [1978] HCA 38, cited COUNSEL: A Morris QC, with G Allan and S Trewavas for the applicant B Power with D Whitmore for the respondent SOLICITORS: Marland Law for the applicant Department of Resources for the respondent [1] THE COURT: The applicant for leave to appeal was convicted in the Magistrates Court in Brisbane of 46 charges brought under the Forestry Act 1959 and the Sustainable Planning Act 2009. The charges arose as a result of illegal clearing of vegetation on the applicant’s property known as “Chess Park”. -- 3 of 21 -- 4 [2] The 46 charges were contained in four complaints: Complaint 1 made on 17 August 2013 contained five charges against ss 39 and 54 of the Forestry Act 1959. Complaint 2 made on 20 December 2013 contained 13 charges against s 578(1) of the Sustainable Planning Act 2009. Complaint 3 made on 24 April 2014 contained two charges against ss 39 and 54 of the Sustainable Planning Act 2009. Complaint 4 made on 28 June 2014 contained 26 charges against s 578(1) of the Sustainable Planning Act 2009. [3] An appeal to the District Court pursuant to s 222 of the Justices Act 1886 was partially successful.1 The District Court set aside the conviction on two of the charges in Complaint 1, reduced the sentence and the amount of costs the applicant was ordered to pay and set aside another ancillary order. [4] The applicant sought leave to appeal to the Court of Appeal pursuant to s 118(2) of the District Court of Queensland Act 1967 (‘District Court Act’) against the remaining convictions, the sentence and the costs order. [5] Leave was sought to mount a total of eight grounds of appeal: five against conviction, one against sentence and two against the costs order. [6] On 19 March 2021 we refused the application with costs because: (a) the learned District Court judge who heard the appeal: (i) correctly directed himself about the principles relevant to appeals under s 222 of the District Court Act; (ii) applied those principles correctly; (b) no question of law is sought to be raised on an appeal to this Court as to: (i) the nature of appeals from the Magistrates Court to the District Court under s 222 of the District Court Act; (ii) the substantive offences charged except by ground 5 which clearly has no merit; (iii) any point of criminal procedure apart from grounds 1A and 5 and the applicant’s submissions there have no merit; (c) no question of construction of any of the statutes is raised apart from: (i) the two grounds challenging the costs order. The submission made on the first costs ground is contrary to a recent decision of this Court and the decision on the second costs ground has no merit; and (ii) ground 5 where it was submitted that a provision which enabled the respondent to particularise the areas unlawfully cleared ought to be construed so that if there was a failure to prove a clearing of the entire 1 Baker v Smith (No 1) [2019] QDC 76, Baker v Smith (No 2) [2019] QDC 242, Baker v Smith (No 3) [2019] QDC 267. -- 4 of 21 -- 5 area particularised, or at least a substantial part of it, the charge failed. That construction was incorrect. (d) many of the arguments now sought to be raised were not raised before the Magistrates Court or the District Court; (e) all the grounds lacked merit so there was no serious suggestion that a miscarriage of justice has occurred.2 Ground 1A: Charged as a principal convicted as an accessory [7] The applicant made three submissions: 1. The prosecution charged the applicant “as a principal” and so he could not be convicted “as a party”.3 2. The prosecution set out to prove that the applicant was the principal offender but the magistrate convicted on the basis that he may have been a party to the offences. 3. The magistrate convicted the applicant on a finding that “It was Mr Baker … who carried out the clearing or it was someone at his direction”. However, the magistrate could not be satisfied beyond reasonable doubt that the applicant did the clearing himself rather than by using a contractor to perform the clearing. It followed that the magistrate should have had a reasonable doubt as to guilt. [8] The first submission is misconceived. An example of one of the charges is: “Charge One On a date or dates unknown in the period between 31 May 2011 and 18 June 2012 at ‘Chess Park’ in the Magistrates Courts District of Maryborough in the said State MICHAEL VINCENT BAKER carried out assessable development without an effective development permit for the development, contrary to section 578(1) of the Sustainable Planning Act 2009.”4 [9] Section 2 of the Criminal Code defines “offence” as follows: “2 Definition of offence An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.” [10] Chapter 2 of the Criminal Code codifies the law as to the criminal liability of parties for an “act or omission”. Section 7(1) provides: “7(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—” (emphasis added) 2 Shambayati v Commissioner of Police [2013] QCA 57 at [19], Pickering v McArthur [2005] QCA 294 at [3]. 3 This argument was not raised below. 4 Complaint 2, charge 1. -- 5 of 21 -- 6 [11] The section then lists, as the relevant persons, the person who does the act or makes the omission (the actor),5 and persons who enable or aid6 or counsel or procure7 the actor to do the act or make the omission.8 [12] Consequently, whether the applicant physically cleared the vegetation himself or procured a contractor9 to do so, the charges were in the correct form. [13] The second submission ought to be rejected because it is factually incorrect. The prosecution case was not limited in the way submitted. Nor did the applicant submit, either to the Magistrates Court or the District Court, that the case against him was limited in the way now submitted. [14] The third submission fundamentally misunderstands the criminal process. [15] What was necessary for a conviction was for the learned magistrate to be satisfied of the elements of the various offences. Sections 39 and 54 of the Forestry Act 1959 provide as follows: “39 Interfering with forest products on State forests etc. (1) A person shall not interfere with, or cause to be interfered with, any forest products on any State forest, timber reserve or forest entitlement area except under the authority of and in compliance in every respect with the requirements of— (a) a lease, licence, permit, agreement or contract granted or made under this Act, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or (b) a permit to light a fire on a licence area under the Fire and Emergency Services Act 1990, section 65. Maximum penalty— (a) for a first offence—1000 penalty units; and (b) for a subsequent offence—3000 penalty units. (2) This section does not apply to— (a) a person performing duties under this Act acting in the administration of this Act; or (b) a person acting under a plantation licence, plantation sublicence or related agreement or in accordance with an agreement entered into with a plantation licensee or plantation sublicensee. 54 Interfering with forest products on Crown lands etc. (1) A person shall not interfere with, or cause to be interfered with, any forest products, any quarry material, or any earth or soil— 5 Section 7(1)(a). 6 Section 7(1)(b) and (c). 7 Section 7(1)(d). 8 See generally R v Barlow (1997) 188 CLR 1. 9 Perhaps as an innocent agent: Criminal Code, s 7(4) and see generally White v Ridley (1978) 140 CLR 342. -- 6 of 21 -- 7 (a) on any Crown land; or (b) on any land reserved for or dedicated to public purposes (including any road, save a State- controlled road under the Transport Infrastructure Act 1994); except— (c) under the authority of any other Act or law; or (d) under the authority of and in compliance in every respect with the requirements of a permit, lease, licence, agreement or contract granted or made under this Act. Maximum penalty— (a) for a first offence—1000 penalty units; and (b) for a subsequent offence—3000 penalty units. (2) Nothing in this section shall derogate from or otherwise affect any of the provisions of the Transport Infrastructure Act 1994.” [16] Section 578(1) of the Sustainable Planning Act 2009 provides: “578 Carrying out assessable development without permit (1) A person must not carry out assessable development unless there is an effective development permit for the development. Maximum penalty—1665 penalty units. (2) Subsection (1)— (a) applies subject to subdivision 2; and (b) does not apply to development carried out under section 342(3). (3) Despite subsection (1), the maximum penalty is 17000 penalty units if the assessable development is on a Queensland heritage place or local heritage place.” [17] The elements of those offences which are relevant to this ground of appeal were: (a) sections 39 and 54 of the Forestry Act 1959: that the applicant interfered with, or caused to be interfered with, forest products; (b) section 578 of the Sustainable Planning Act 2009: that the applicant carried out assessable development. [18] The legal elements could be established by proof beyond reasonable doubt either that the applicant himself physically cleared the land10 or that he procured a contractor to clear the land.11 10 Criminal Code, s 7(1)(a). 11 Criminal Code, s 7(1)(d). -- 7 of 21 -- 8 [19] It is not uncommon for convictions to be based on proof of one or more possibilities, with satisfaction beyond reasonable doubt that there was no reasonable hypothesis of any other possibility. For example, where two or more offenders jointly attack and kill a victim, it will often not be possible to determine which of them delivered the lethal blow. As a matter of fact one will have done so, and as a matter of law, he is the actor and liable through s 7(1)(a) of the Code and the others are aiders and liable under s 7(1)(b).12 However, if the jury is satisfied beyond reasonable doubt that any particular offender either delivered the fatal blow or aided the one who did, then, subject to proof of any other elements, that offender may be convicted.13 Where there are different hypotheses, but each consistent with guilt, a jury generally not need be unanimous as to which hypothesis is accepted. That is because the critical issue is satisfaction beyond reasonable doubt of the legal element(s).14 [20] There can be no doubt that clearing the land constituted interfering with forest products for the purposes of ss 39 and 54 of the Forestry Act and constituted carrying out assessable development for the purposes of s 578 of the Sustainable Planning Act. If the learned magistrate was satisfied beyond reasonable doubt that the clearing of the land was performed either by the applicant himself or by the applicant’s procuring of a contractor to clear the land then the relevant elements of the various offences were proved. Her Honour was so satisfied. [21] There is no substance in ground 1A. Ground 3: The magistrate’s reasons were inadequate [22] It was argued that the magistrate’s reasons were largely an adoption of large parts of the submissions made on behalf of the prosecution. It was submitted that this gave rise to the inference that the magistrate did not bring an independent mind to bear on the issues before her. [23] It is unnecessary to descend into an examination of the magistrate’s reasons and whether they were adequate. [24] An appeal from the Magistrates Court to the District Court under s 222 of the Justices Act 1886 is an appeal by way of rehearing. The District Court must consider all the evidence and make its own conclusions.15 Judge Porter QC extensively examined the evidence and produced a judgment of 239 pages containing 1,153 paragraphs. On the application to this Court, it was conceded that the learned magistrate’s decision did not turn on credit issues16 and counsel for the applicant was unable to point to any respect where the magistrate, hearing the witnesses, enjoyed any advantage over the judge of the District Court. [25] Even if it were established that the learned magistrate did not provide adequate reasons, that would not justify a grant of leave given the extensive analysis and reasons of the learned judge. An appellable error arising from inadequate reasons does not necessarily mean that a new trial is required. If the appellate court is able to decide 12 R v Beck [1990] 1 Qd R 30. 13 For example, see R v Stewart & Garcia [2014] QCA 244, R v Roughan & Jones [2007] QCA 443, R v Struber [2016] QCA 288. 14 R v Leivers and Ballinger [1999] 1 Qd R 649. 15 See generally McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. 16 Fox v Percy (2003) 214 CLR 118 at [22]-[31], Lee v Lee (2019) 266 CLR 129 at [53]-[55]. -- 8 of 21 -- 9 the matter on the evidence available, then the matter need not go to a new trial.17 Judge Porter QC performed that task and there is nothing to suggest that his Honour could not do so. Ground 4: Exclusion of Sustainable Planning Regulation 2009 exemptions [26] This ground only concerns the Sustainable Planning Act charges which are contained in Complaint 2 and Complaint 4. [27] There are exemptions contained in the Sustainable Planning Regulation 2009 in Schedule 24, Parts 1 and 2. A party falling within any of these exemptions does not commit an offence against the Act. The learned magistrate found that the exemptions had all been excluded. No appeal was made against that finding to the District Court. Now the applicant wishes to argue in the Court of Appeal that the prosecution failed to exclude all of these exemptions. [28] Similarly, the magistrate found that the exemptions in the Forestry Act had been excluded. On appeal to the District Court, the applicant submitted that these exemptions had not been excluded but Judge Porter QC held that they had been. His Honour relied upon the letter which the applicant sent to the Department in which he explained the reasons for the clearing and which showed that he did not fall within any of the exemptions.18 That evidence was capable of excluding the exemptions, not only under the Forestry Act, but also under the Sustainable Planning Act. [29] In any case, s 76 of the Justices Act 1886 provides: “76 Proof of negative etc. If the complaint in any case of a simple offence or breach of duty negatives any exemption, exception, proviso, or condition, contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in the defendant’s defence.” [30] Probably it was the applicant who bore the onus of proving the exemptions,19 but that need not be decided. This ground was not raised on the appeal to the District Court in relation to the Sustainable Planning Act and the evidence suggests that no exemptions were available to the applicant. There is, therefore, no serious suggestion of either error or any miscarriage of justice and this ground should not attract a grant of leave to appeal. Ground 5: The prosecution did not prove clearing of the entirety of the particularised areas [31] This ground only concerned the convictions on the charges in Complaint 2 and Complaint 4 which were all laid under the Sustainable Planning Act. [32] The charges under the Sustainable Planning Act were particularised by reference to identified areas and acreage of vegetation cleared. Judge Porter QC, in considering one of the exemptions available to a person who has cleared vegetation, said this: 17 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA. 18 Baker v Smith (No 1) [2019] QDC 76, paragraphs [548]-[550]. 19 Baker v Smith (No 1) [2019] QDC 76, paragraphs [537]-[547]. -- 9 of 21 -- 10 “It is sufficient to convict if any material part of the alleged cleared area is shown to have been cleared;”20 Later, his Honour said this: “I also make this preliminary observation. The prosecution particularised areas of clearing in hectares. For the appellant to be convicted lawfully it is not necessary that the respondent have proved the entire area particularised at trial. The appellant specifically conceded (rightly in my view) that proof of approximate areas of clearing was legally sufficient. In my respectful view, so long as some material part of the particularised area was shown to have been cleared on the tenure averred, it was open lawfully to convict.”21 [33] The applicant submitted to this Court that the acreage allegedly cleared became an “essential factual ingredient of the charge”. Therefore, so the argument ran, even if the prosecution proved some clearing within the areas particularised, the charge would fail unless the prosecution proved “an approximation” of the area particularised.22 It was also submitted that if the prosecution could particularise the case by reference to acreage but could prove the charges by proof of clearing of only part of that particularised area, the trial would be unfair because the applicant would not know the case he was to meet. [34] Reliance was made upon R v Ruddell.23 That case concerned a hairdresser who, over a period of time, had stolen different sums of money from her employer. She was charged with one count of stealing the total sum taken, notwithstanding that there was a single act of stealing on each occasion that she misappropriated money. Macpherson JA observed: “[9] Charging in a single count the stealing of separate sums has long been the practice in Queensland. When it is done, it is sufficient for the prosecution to prove the stealing of any one of them in order to sustain the charge, without proving all or more than one of them: R v Lindsay [1963] Qd R 386, 400–401. His Honour explained this to the jury. It might on one view perhaps be thought to offend against the decision or some of what is said by the High Court in Walsh v Tattersall (1996) 188 CLR 77. But, as was also submitted by Ms Bain, such a course is expressly authorised by s 568(1) of the Code. It says: ‘(1) In an indictment against a person for stealing property the person may be charged and proceeded against on 1 charge even though – (a) the property belongs to the same person or to different persons; or (b) the property was stolen over a space of time; or (c) different acts of stealing took place at different times, whether or not the different acts can be identified.’ 20 Baker v Smith [2019] QDC 76 at [380]. 21 Baker v Smith [2019] QDC 76 at [769]. 22 T 1-27. 23 [2006] 1 Qd R 361. -- 10 of 21 -- 11 Here Ms Bain placed particular reliance on para (c) of s 568(1), which she contrasted with s 408C(2)(d) (fraud) in speaking of ‘the yield to the offender from the dishonesty’.” [35] The argument advanced here is that, but for s 568(1) of the Code, Ms Ruddell should have been charged with individual counts of stealing and the prosecution would have had to prove the taking of each particular sum of money. The applicant submitted that, by analogy, if the prosecution charges a person with clearing a particular area, then, in the absence of an equivalent to s 568(1), the person cannot be found guilty if the prosecution proves only the clearing of part of the area. [36] Section 68A of the Vegetation Management Act 1999 provides: “68A Particulars to be stated for complaint for vegetation clearing offence (1) This section applies to a complaint for a proceeding for a vegetation clearing offence. (2) It is enough, for identifying the vegetation cleared and the place where the vegetation was cleared, for the particulars for the complaint to state the following— (a) the number of hectares of vegetation that have been cleared unlawfully; (b) the location where the vegetation was cleared; (c) a description of the vegetation; Example— remnant vegetation that is an endangered regional ecosystem and essential habitat for protected wildlife (d) whether the vegetation was in— (i) an area of high nature conservation value; or (ii) an area vulnerable to land degradation.” [37] The proper construction of s 68A is to be ascertained from the text of the provision taken in its context and by reference to its purpose.24 Section 68A is a provision contained within a division of the Act which concerns “proceedings” which are criminal in nature. The provision must therefore be construed in the context of the criminal law and procedure of Queensland. [38] As already observed, a criminal offence is defined by s 2 of the Criminal Code as an “act or omission”. Where an offence is constituted by one act or omission, the charging and particularising of more than one act or omission in a single charge will be bad for duplicity25 leading to a necessity for the prosecutor to elect which one of 24 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47], Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at [14] and [35]-[40], R v A2 (2019) 93 ALJR 1106 at [32], Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Acts Interpretation Act 1954, ss 14A and 14B. 25 Johnson v Miller (1937) 59 CLR 467. -- 11 of 21 -- 12 the acts charged or particularised is relied upon.26 Some offences are composite in nature in that they consist of one or more acts or omissions. Trafficking in dangerous drugs is an example27 and usually more than one act or omission is relied upon to prove that the offender was conducting the business of trafficking in dangerous drugs. Maintaining a sexual relationship with a child is another example.28 [39] Offences involving clearing of vegetation can raise issues as to how the charge is particularised. In most cases it will be impossible for the prosecution to particularise the particular trees or other plants that have been cleared. Issues might hypothetically arise as to duplicity in the sense that clearing many trees might potentially be charged as many offences. [40] Section 68A is designed to overcome these problems. The prosecution lays the charge of clearing and then particularises that by reference to stated areas. Nothing in s 68A elevates the particulars to the status of an element of the offence so that the charge fails unless the prosecution proves that the entire area, or approximately the entire area, was cleared. [41] Particularising a clearing case in that way accords with the common understanding of the role of particulars in a criminal case and does not give rise to any unfairness. The particulars delivered in this case performed the function of particulars in a criminal case which were described by Chesterman J in Coleman v Constable Kinbacher (Qld Police)29 in these terms: “[12] The function of particulars in a criminal trial was discussed in a decision of this court, The Queen v Trifyllis (CA No 358 of 1998, delivered 11 December 1998) in which R v Saffron (1989) 17 NSWLR 395 was referred to with approval and it was noticed that ‘the function of particulars is the same in criminal as in civil cases.’ In Saffron Hunt A-JA said (455): ‘The function of particulars in such a case is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded … the relief which is granted to a party at the trial must in the end be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings …’ Reference was also made to what the High Court has said in Dare v Pulham (1982) 148 CLR 658 at 664: ‘… Where there is no departure during the trial from the pleaded cause of action, a misconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence …’ Part of that function is to give the opposing party a sufficiently clear statement of the case to allow him to meet it and to identify 26 S v The Queen (1989) 168 CLR 266 at 269. 27 Drugs Misuse Act 1986, s 5. 28 Criminal Code, s 229B. 29 [2003] QCA 575. -- 12 of 21 -- 13 the issues for decision and thereby enable the relevance and admissibility of evidence to be determined. See Dare at 664.” [42] There was no complaint before the magistrate that any of the charges or the particulars were unclear or ambiguous or that the applicant did not understand the case against him. Of course, the precise quantity of clearing that was proved would be relevant to sentencing, but a failure to prove the precise amount of clearing actually charged did not prevent a finding of guilt. The sentence appeal [43] The applicant was fined a total sum of $276,000 by the magistrate. Judge Porter QC reduced the fine to take into account the applicant’s success in having two convictions quashed.30 That approach may have been overly generous to the applicant. [44] By s 49 of the Penalties and Sentences Act 1992, where a fine is to be imposed in relation to offences which are “of the same or a similar kind” and “form part of a series of offences”, one global fine may be imposed. That was the approach taken by both the magistrate and Judge Porter QC.31 No issue was taken with that approach nor could it have been. [45] It did not automatically follow that because the convictions on two out of 46 charges were set aside that a fine of $276,000 was no longer appropriate to address the criminality represented by the remaining 44 convictions. See, for example, R v Stead; Ex parte Attorney-General (Qld).32 [46] The applicant challenges the fine imposed in the District Court on three bases: 1. The findings made against the applicant were not supported by the evidence. 2. Judge Porter QC “failed to take into account, or placed no or insufficient, weight upon” the fact that an amended restoration notice was issued to the applicant. 3. The sentence was manifestly excessive. [47] There are two findings which were said to be unsupported by the evidence. The first was the finding that the applicant’s financial resources were substantial. His Honour drew that conclusion upon evidence that Chess Park was unencumbered (and evidently valuable), that the clearing was a costly undertaking which had been funded by the applicant and that the applicant was represented at trial and on appeal by a substantial legal team. [48] There was no evidence led and no submission made to the magistrate that any large fine would have a greater than usual impact upon the applicant due to his financial circumstances. After the magistrate had fined the applicant $276,000 he still did not make any such a submission to Judge Porter QC and did not seek to lead evidence to support such a submission. [49] In this Court, the applicant complained that the judge ought not to have drawn the inferences that he did but did not seek to lead evidence to contradict his Honour’s factual conclusions. 30 Baker v Smith (No 2) [2019] QDC 242 at [368]. 31 Baker v Smith (No 2) [2019] QDC 242 at [342]. 32 [1997] QCA 236. -- 13 of 21 -- 14 [50] Chess Park is obviously a valuable property. It is unencumbered. The inference was open. In the absence of evidence that the applicant was not of “very substantial means” a grant of leave on this point is not warranted. [51] The applicant also challenges the finding that the offending was motivated by a desire by the applicant to improve his cattle grazing operations.33 That finding was also open. Chess Park is a grazing property and the applicant grazes cattle on it. In his letters to the Department the applicant raised various matters showing that the clearing was done to facilitate the grazing operations.34 [52] The applicant also became subject to other burdensome orders. These included the amended restoration notice. In considering the quantum of the fine, Judge Porter QC did not expressly refer to the fact that the applicant would be subject to the amended restoration notice and the other restrictions but his Honour was aware of these additional restrictions. Indeed, there was an appeal from the magistrate against some of them.35 [53] In McDonald v Holeszko, Flanagan J, with whom Sofronoff P and Philippides JA, agreed, said: “[81] As to personal deterrence, Mr McDonald ceased clearing once he was issued with a stop work notice under the VMA on 29 April 2015. Subsequent to being sentenced by the magistrate, Mr McDonald is now subject, perhaps for the next 20 years, to the restrictions in clearing on his property arising from the Restoration Notice issued on 26 October 2017 pursuant to s 54B of the VMA. The Restoration Notice is registered on the title and will restrict Mr McDonald’s use of the property into the future. The effect of the Restoration Notice is relevant to the issue of both personal and general deterrence. It was not a consideration that the magistrate was able to take into account as the Restoration Notice was issued after Mr McDonald was sentenced. It is, however, a matter that should be taken into account by this Court in exercising the sentencing discretion afresh.” [54] As is made clear below, Judge Porter QC found that personal deterrence was a weighty consideration. It was open to conclude that, in the applicant’s case, the existence of the restrictions was not much of a mitigating circumstance given the fact that the applicant had defiantly continued clearing despite attention and objections from the Department. [55] Leave to appeal sentence would not be justified anyway unless the sentence could be shown to be manifestly excessive. The learned judge’s approach to the question of sentence was completely conventional. His Honour calculated the maximum penalties available at $550,000 for the Forestry Act offences and $6,709,950 for the Sustainable Planning Act offences. [56] After analysing the relevant evidence, his Honour drew three conclusions. All of them were open to him: 33 Baker v Smith (No 2) [2019] QDC 242 at [366]. 34 Supplementary Appeal Book, Vol 2, p 492 at pp 509-511. 35 Baker v Smith (No 2) [2019] QDC 242. -- 14 of 21 -- 15 “[297] First, I accept that much of the early clearing by Mr Baker was driven primarily by a concern to deal with fire risk as he perceived it. However, I do not find that that materially mitigates the offending conduct. [298] The point was made on the appeal that Mr Baker was not experienced in managing fire in a large western Queensland cattle station. However, that strongly suggests he ought to have sought professional advice on his own initiative, in the same way any person in commerce takes advice on any area of the undertaking which he or she is unfamiliar with. Mr Baker seemed determined not to do this and to consider that it was up to the department or the QFRS to explain how to manage fire risk and that if they did not, he would do it in his own uninformed and idiosyncratic way, regardless of the statutes regulating clearing of native vegetation. Mr Baker plainly had the resources to obtain advice and it was never explained why he was so determined to do what he thought was best, despite his admitted inexperience and his view that the government was not solving the problem. I respectfully agree that the evidence sustains Mr Hunter’s characterisation of Mr Baker’s conduct in submissions as follows: ‘The Appellant’s attempts to contact government departments to address the fire risk were entirely misconceived. As the landholder, he was obliged to manage fire within the framework of the SPA and FA. In particular, although he complained loudly about the risk to his property from Dyngie State Forest, the terms of the FA actually required him to prevent fires within Dyngie State Forest. The Appellant – a former solicitor – acquired Chess Park knowing full well that Dyngie State Forest was completely within its bounds. He cannot plead ignorance of the terms of the FA. To the extent that the Appellant sought advice, he got it. He then complained about it or simply ignored it. He ignored the advice of an experienced neighbour, and did not get professional advice about fire management. [Emphasis in original] [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. -- 15 of 21 -- 16 [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.” [57] His Honour then considered the evidence on the question of environmental harm,36 concluding: “[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.” [58] His Honour directed himself on a question of general deterrence, concluding: “[329] Bearing those observations in mind, in determining the appropriate penalty to meet the requirements of general deterrence it is necessary to consider the class of persons to which Mr Baker belongs. This class is persons who control large 36 Paragraphs [303]-[323]. -- 16 of 21 -- 17 areas of relatively remote native vegetation in properties used for commercial grazing purposes. That class of person frequently has the resources and equipment to clear relatively large areas and to do so in areas where the unlawful clearing is hard to detect. General deterrence carries particular weight in those circumstances.” [59] As to personal deterrence, his Honour concluded: “[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.” [60] There has been no challenge to his Honour’s findings except those with which we have already dealt. [61] The applicant complains that comparatives which were referred to below, namely Hindeman v Sargent37 and Scriven v Sargent (No 2),38 suggest that the fine imposed here is manifestly excessive. [62] Judge Porter QC considered those comparative cases and directed himself to the principle established in Hili v The Queen39 that comparatives “stand as a yardstick against which to examine a proposed sentence”. [63] In argument before this Court, the applicant submitted that in both Hindeman and Scriven the areas of native vegetation that were cleared were much more than in the present case. In Scriven, the total area cleared was 1,814 hectares. In Hindeman, it was 1,300 hectares. Here, it was 346.6 hectares. Scriven was fined $40,000. Hindeman was fined $15,000. [64] As was appreciated by Judge Porter QC, the area cleared is but one of many considerations on sentence. Each of Scriven and Hindeman were convicted of one offence. The present applicant was convicted of 44. Hindeman pleaded guilty. 37 Unreported, District Court of Queensland, Andrews QC DCJ, 5 May 2014. 38 [2016] QDC 16. 39 (2010) 242 CLR 520 at 54 and see also Barbaro v The Queen (2014) 253 CLR 58. -- 17 of 21 -- 18 Although Scriven went to trial, on sentence it was found that his offending was motivated by a desire to feed his cattle during drought. [65] The present is a case of persistent, calculated and obstinate land clearing over a relatively lengthy period of time which resulted in convictions for 44 offences. Judge Porter QC’s findings on personal and general deterrence were not challenged on the present application. Those findings show that this was a very serious case of unlawful vegetation clearing. [66] The sentence is not manifestly excessive. Ground 6: Limitation defence [67] This ground only concerns the charges in Complaint 4 which are charges laid under the Sustainable Planning Act. Section 68 of the Vegetation Management Act provides: “68 Summary proceedings for offences (1) A proceeding for an offence against this Act, or for a vegetation clearing offence, must be taken in a summary way under the Justices Act 1886. (2) Subject to subsection (4), a proceeding for an offence against this Act must start— (a) within 1 year after the commission of the offence; or (b) within 1 year after the offence comes to the complainant’s knowledge, but within 5 years after the offence is committed. (3) Despite the Planning Act, and subject to subsection (4), a proceeding for a vegetation clearing offence must start— (a) within 1 year after the commission of the offence; or (b) within 1 year after the offence comes to the complainant’s knowledge, but within 5 years after the offence is committed. (4) If a Magistrates Court considers it just and equitable in the circumstances, the court may, at any time, extend a time set under this section. (5) Subsection (4)— (a) applies to an offence regardless of whether it was committed before or after the commencement of the subsection; and (b) does not apply to an offence if the time for starting a proceeding for the offence had expired before the commencement of the subsection. (6) A vegetation clearing offence does not come to the complainant’s knowledge merely because the complainant receives a remotely sensed image that may provide evidence of the offence.” -- 18 of 21 -- 19 [68] There are two provisions which authorise averments in relation to charges brought under the Sustainable Planning Act. Section 618 of the Sustainable Planning Act provides: “618 Matter coming to complainant’s knowledge In a complaint starting a proceeding, a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of the matter.” [69] Section 67(2) of the Vegetation Management Act provides: “67 Evidentiary aids … (2) A statement in a complaint for an offence against this Act that the matter of the complaint came to the knowledge of the complainant on a stated day is evidence of the matter stated.” [70] There was some dispute on the appeal to the District Court as to which provision applies but that dispute need not be resolved. Either provision is ample authority for the respondent to make an averment in relation to the time at which he became aware of the commission of the offences. [71] This Court decided in Cross County Realty Pty Ltd v Peebles40 that the relevant knowledge is that of the complainant who swears the complaint pursuant to the Justices Act. Here, that person is the respondent. The knowledge of persons within the Department who may have been involved in the investigation of the alleged offences is irrelevant save to any respect where that knowledge might be relevant to the knowledge subjectively held by the respondent. The applicant does not seek to challenge the correctness of Cross County Realty Pty Ltd v Peebles. [72] The respondent visited Chess Park in January 2013 and inspected the property over a three day period. If the respondent visited the area charged in Complaint 4, then he would, so the applicant submitted, have seen the clearing and therefore be fixed with knowledge of the commission of the offences at that point. His averment that he became aware of the Complaint 4 offences much later would therefore be disproved. [73] The point taken on the present application by the applicant is based on Jones v Dunkel.41 The applicant submits that no evidence was led from the respondent as to what he did and did not see in the area the subject of the Complaint 4 charges. Therefore, it was submitted that the inference should be drawn “that the complainant could not have given any evidence that would have assisted the prosecutor’s case - and therefore raises reasonable doubt as to when the limitation period commenced”. [74] Judge Porter QC directed himself “… the question is whether the prosecution can exclude as a reasonable hypothesis the inference that Mr Smith observed the clearing42 in the relevant Complaint 4 areas”.43 That was the correct question. His Honour then identified four pieces of evidence which his Honour concluded pointed 40 [2007] 2 Qd R 254. 41 (1959) 101 CLR 298. 42 During the January 2013 visit. 43 [2019] QDC 76 at [490]. -- 19 of 21 -- 20 to the fact that the respondent did not see the clearing in the area charged in Complaint 4 when he visited Chess Park in January 2013. On the present application, there was no challenge to his Honour’s reasoning in that respect.44 [75] His Honour concluded: “[493] In those circumstances, the suggestion that I should infer that Mr Smith saw the clearing in the areas of clearing in Complaint 4 is unreasonable. If Mr Smith had been cross examined about this issue, it is possible he might have given evidence that assisted the appellant’s argument in respect of some of the impugned areas. But he was not cross examined. In those circumstances, the suggestion by the appellant that it might be inferred that Mr Smith might have gone elsewhere at Chess Park and come across the Complaint 4 areas is in my view entirely speculative and inconsistent with other evidence, particularly the fourth point above.” [76] There is nothing to suggest that his Honour’s determination was wrong. [77] A second point was raised, namely that the prosecution had not disproved the possibility that at least some of the clearing had occurred outside relevant periods, even if the prosecution proved that some clearing had occurred within those periods.45 That argument was raised on appeal to the District Court, in relation to charges 4 and 5 on Complaint 146 but not in relation to the Complaint 4 charges.47 Leave should not be granted to argue that new point now. The appeal against costs [78] The authority of the magistrate to make a costs order is found in s 157 of the Justices Act 1886. The magistrate did not make a costs order at the time she delivered her reasons for finding the applicant guilty of the offences. The applicant submitted that it was at that point that the applicant was convicted and her Honour’s jurisdiction to make a costs order only arose at that point. It followed, so it was submitted, that her Honour had no jurisdiction to make a costs order at any later time. [79] This Court rejected a similar submission in Lasker v Holeszko.48 There is no reason to revisit that decision. [80] A second argument was raised by the applicant based on Cross Country Realty Pty Ltd v Peebles.49 As already observed, in that case the relevant limitation period was calculated by reference to the time the commission of the offence came to the knowledge of “the complainant”. “The complainant” was held to be the person who swore the complaint, not anyone else who may have been involved in the investigation within the government department who employed the complainant. Therefore, the applicant argued, it was only the costs of the complainant, here the respondent Mr Smith, which are recoverable. The applicant submitted that, as the 44 At [491]. 45 See De Bray v Cohen [2008] QDC 275. 46 Baker v Smith (No 1) [2019] QDC 76 at [457] and [458], [460]-[472]. 47 At [459]. 48 [2019] QCA 163. 49 [2007] 2 Qd R 254. -- 20 of 21 -- 21 costs of the trial were no doubt borne by the State, no costs order could be made in favour of the respondent. [81] This was not a point which was raised in the District Court.50 [82] Section 157 of the Justices Act authorises the making of a costs order in favour of a successful complainant. It provides: “157 Costs on conviction or order In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.” [83] Section 157 does not expressly limit the costs to those for which a complainant is not indemnified. The only limitation is to “costs as to [the justices] seem just and reasonable”. [84] Various provisions of the Justices Act51 contemplate that complainants may be police officers or “public officers”. The term “public officer” is defined as: “public officer means— (a) an officer or employee of the public service of the State or the Commonwealth; or (b) an officer or employee of a statutory body that represents the Crown in right of the State or the Commonwealth; or (c) an officer or employee of a local government.” [85] Section 157 provides for an order that costs be paid “to the complainant’. However, other provisions contemplate that the complainant may bring the prosecution as a police officer or a public officer and therefore as representative of the State. In that context, there is no reason to read the words “such costs as to [the justices] seem just and reasonable” to be limited to costs for which an official complainant is not indemnified by the State or which the State has already paid. [86] There is no substance to the grounds sought to be raised against the costs order. [87] For these reasons the application for leave to appeal was dismissed with the applicant to pay the respondent’s costs of the application for leave to appeal on the standard basis. 50 Baker v Smith (No 2) [2019] QDC 242 at [56]-[60]. 51 Section 4, definition of “private complainant”, ss 39, 142A, 158A. -- 21 of 21 --