Baker v Smith (No 1) [2019] QDC 76

DISTRICT COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: DELIVERED AT: Baker v Smith (No 1) [2019] QDC 76 MICHAEL VINCENT BAKER (appellant) v BRIAN ARTHUR CONWAY SMITH (respondent) 4984 of 2016 Crime s 222 Appeal District Court at Brisbane 17 May 2019 Brisbane HEARING DATE: 11-13 April 2018 27-30 August 2018 JUDGE: Porter QC DCJ ORDER: (1) The Court will hear the parties as to the proper form of ord orders. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – where appeal is brought under s 222 Justices Act 1886 (Qld) – whether error of law at trial is established. CRIMINAL LAW – PROCEDURE – JURISDICTION – where four separate complaints were brought to trial in the Magistrates Court in relation to alleged land clearing offences – where the complaints made blanket averments excluding a range of exceptions to the offences – where certain complaints did not include certain particulars – whether the complaints articulated essential elements of an offence – whether the complaints were valid – whether the complaints attracted the jurisdiction of the Magistrates Court. CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – where the statutory regime contains an exemption where land clearing is performed for essential management – exemption where the -- 1 of 242 -- 2 trial judge commented that the “essential management” exemption to the offence is the only realistic exemption – whether trial judge’s comment reflected a failure to apply the appropriate standard of proof – whether the trial judge erred in finding that the “essential management” exemption had been excluded by the prosecution. CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – where the Forestry Act 1959 (Qld) contains exceptions for interference with forest products performed under and in compliance with statutory authority – whether the defendant bears the onus of establishing the statutory authority exception – whether interference with forest products performed under and in compliance with statutory authority. CRIMINAL LAW – PROCEDURE – LIMITATION OF TIME FOR PROSECUTION – where statutory limitation periods require proceedings to be instituted within certain time periods after the offence comes to the complainant’s knowledge – where the alleged offending occurred over a period of time – where the charges contained averments as to the date the alleged offending came to the complainant’s knowledge – at what point the complainant had reasonable grounds to believe that the offence had been committed – whether the averments comprised conclusive evidence – whether the charges were brought after the expiry of statutory limitation periods. EVIDENCE – ADMISSIBILITY – HEARSAY – where the prosecution relied upon mapping data published under the Survey and Mapping Infrastructure Act 2003 (Qld) – where mapping data was adjusted following further surveying – where various mapping and geographical data was collated into an interactive database through specialised software – whether the mapping data was sufficiently accurate to sustain convictions in relation to charge areas on or near the boundaries – whether the statutory status of certain mapping data was lost upon adjustment – whether the output of the software comprised inadmissible documentary hearsay. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where expert evidence was given at trial – where certain evidence was alleged by the appellant to be inadmissible – where no objection was raised at trial – whether a trial judge relying on inadmissible evidence tendered without objection amounts to an error of law – whether material unfairness arises from the admission of inadmissible evidence tendered without objection. APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL -- 2 of 242 -- 3 LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REAONS – where the trial judge’s reasons adopted in substance large parts of the prosecution submissions – whether the trial judge failed to give adequate reasons for finding that the prosecution excluded an exception to the alleged offending. Legislation Acts Interpretation Act 1954 (Qld), s 32A Criminal Code Act 1899 (Qld) s 564 Evidence Act 1977 (Qld), s 95 Forestry Act 1959 (Qld), s 33, s 39, s 54, s 63, s 88, s 95 Justices Act 1886 (Qld), s 46, s 47, s 76, s 222, s 223, s 225 Survey and Mapping Infrastructure Act 2003 (Qld), s 46, s 47, s 131 Sustainable Planning Act 2009 (Qld), s 7, s 10, s 231, s 342, s 578, s 584 Sustainable Planning Regulations 2009 (Qld), reg 9, sched 3, sched 24, sched 26 Vegetation Management Act 1999 (Qld), s 3, s 19O, s 19P, s 20A, s 20AK, s 20AL, s 20AM, s 20AN, s 20AO, s 22LA, s 22LB, s 22LC, s 68, s 68A Cases A Child v Andrews (1994) 12 WAR 552 Agius v R (2011) 80 NSWLR 486 Beavan v Wagner Industrial Services Pty Ltd [2017] QCA 246 Brinkworth v Dendy [2007] 97 SASR 416 Chugg v Pacific Dunlop (1990) 170 CLR 249 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 Conde v Gilfoyle [2010] QCA 109 Croft v Blair Unreported No. C.A. 275 of 1989, Queensland Court of Criminal Appeal, 15 December 1989 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 De Bray v Cohen [2008] QDC 275 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 Fletcher Construction Australia Limited v Line MacFarlane & Marshall Pty Ltd (No. 2) [2002] 6 VR 1 Fox v Percy (2003) 214 CLR 118 -- 3 of 242 -- 4 Harrison v President of Industrial Court of Queensland [2017] 1 Qd R 515 HG v The Queen (1999) 197 CLR 144 Hunt v Australian Associate Motor Insurers Ltd [2012] QCA 183 John L Proprietary Limited v The Attorney-General for NSW (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Joseph v Morthington & Anor [2018] VSCA 102 Karimbala Construction Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Kyluk v The Chief Executive NSWCCA [2013] 114 LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 Macarone v McKeon [1986] 1 Qd R 284 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Marshall v Averay [2006] QDC 356 McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (No. 2) (2002) 54 NSWLR 39 McDonald v Queensland Police Service [2017] QCA 255 McGregor Lowndes v Collector of Customs (1968) 11 FLR 349 McKay v The King (1935) 54 CLR 1 MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 N K Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304 Nudd v R (2006) 225 ALR 161 Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QCA 333 Phillips v Spencer [2006] 2 Qd R 47 PQ v Australia Red Cross Society [1992] 1 VR 19 R v Ali (2005) 214 ALR 1 R v Birks (1990) 19 NSWLR 677 R v Fennell [2017] QCA 154 -- 4 of 242 -- 5 R v Hess [2008] QCA 48 R v Hinchey [2019] QCA 3 R v McPartland [2017] QCA 35 Robert Bax & Associates v Cavenham Pty Ltd [2013] 1 Qd R 476 Smith v Baldwin [1979] Qd R 380 Stevenson v Yasso [2006] 2 Qd R 150 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 Teelow v Commission of Police [2009] 2 Qd 489 TKWJ v The Queen (2002) 212 CLR 124 Vines v Djordjevitch (1955) 91 CLR 512 Walker v Hay [1973] QSCFC 9 Witheyman v Van Riet [2008] 2 Qd R 587 COUNSEL: G Allan, S Trewavas and A Thomas for the appellant J Hunter QC and G Dann for the respondent SOLICITORS: Marland Law for the appellant Department of Natural Resources and Mines for the respondent -- 5 of 242 -- 6 Contents SUMMARY .......................................................................................................................... 11 BACKGROUND .................................................................................................................. 13 Chess Park ........................................................................................................................ 13 The statutory framework: the Forestry Act offences ................................................... 13 The statutory framework: the SPA offences ................................................................. 18 The offence creating provision ..................................................................................... 18 Identifying assessable development .............................................................................. 19 Assessable development under the Regulations ........................................................... 20 The VMA ....................................................................................................................... 26 Justices Act 1886 .............................................................................................................. 32 THE COMPLAINTS ........................................................................................................... 33 Complaint 1 ...................................................................................................................... 33 Complaint 2 ...................................................................................................................... 37 Complaint 3 ...................................................................................................................... 39 Complaint 4 ...................................................................................................................... 39 THE TRIAL ......................................................................................................................... 39 Overview of the prosecution case ................................................................................... 39 The course of evidence ..................................................................................................... 42 The parties’ submissions at trial ..................................................................................... 42 The written submissions................................................................................................ 42 The addresses ................................................................................................................ 44 Conviction, reasons and other orders ............................................................................ 45 The appeal......................................................................................................................... 46 THE TRIAL JUDGE’S REASONS ................................................................................... 47 The limitations issue and Mr Goulevitch’s evidence .................................................... 47 Her Honour’s consideration of Mr Dillewaard’s evidence .......................................... 53 Her Honour’s consideration of Mr Tran’s evidence .................................................... 55 The Forestry Act offences ............................................................................................... 57 The SPA offences: general............................................................................................... 58 The SPA offences: consideration of each charge .......................................................... 60 THE AMENDED NOTICE OF APPEAL ......................................................................... 61 Ground 1: Jurisdiction .................................................................................................... 61 Ground 2: Lack of jurisdiction to amend ...................................................................... 62 Ground 3: Reasons ........................................................................................................... 62 Ground 4: Essential management exemption not excluded ......................................... 62 Ground 5: Limitations issues .......................................................................................... 63 Ground 6: Forestry Act exemptions ............................................................................... 63 APPEALS UNDER S. 222 JUSTICES ACT ..................................................................... 64 GROUND 1: JURISDICTION (COMPLAINTS 2 AND 4 ONLY) ................................ 66 Summary of the appellant’s position.............................................................................. 66 -- 6 of 242 -- 7 Ground 1A ..................................................................................................................... 66 Ground 1........................................................................................................................ 67 Some general principles ................................................................................................... 67 Ground 1A: Complaints 2 and 4 identify an offence known to the law ...................... 72 The legal elements......................................................................................................... 72 The necessary factual ingredients ................................................................................ 79 Conclusion on Ground 1A ............................................................................................ 88 Ground 1: Particulars under s. 68A SPA ...................................................................... 89 Introductory comments ................................................................................................. 89 The appellant’s contentions .......................................................................................... 90 The respondent’s contentions ....................................................................................... 92 Analysis.......................................................................................................................... 93 Conclusion on Ground 1............................................................................................... 96 GROUND 2: JURISDICTION TO AMEND (COMPLAINTS 2 AND 4 ONLY) ......... 97 GROUND 4: EXCLUSION OF ESSENTIAL MANAGEMENT EXEMPTION .......... 97 Introduction ...................................................................................................................... 97 Ground 4/1A: Erroneous approach to burden of proof ............................................... 97 The parties’ contentions................................................................................................ 97 Analysis.......................................................................................................................... 98 Ground 4/1B: Errors in concluding essential management exception excluded........ 99 Introductory comments ................................................................................................. 99 Paragraph (a): protection of infrastructure................................................................. 99 Paragraph (c): Imminent risk exception ................................................................... 103 Paragraph (e): Necessary to maintain infrastructure ............................................... 104 Conclusion on Ground 4/1B ....................................................................................... 104 GROUND 5: LIMITATION DEFENCES (COMPLAINTS 1 AND 4) ........................ 104 Introductory comments ................................................................................................. 104 The appeal as it relates to Complaint 1 ...................................................................... 104 The appeal as it relates to Complaint 4 ...................................................................... 106 The factual context...................................................................................................... 107 The appellant’s contentions .......................................................................................... 110 Relevant principles ...................................................................................................... 110 Impugned charges in Complaint 1 ............................................................................. 110 Impugned charges in Complaint 4 ............................................................................. 112 The respondent’s contentions ....................................................................................... 113 Relevant principles ...................................................................................................... 113 Impugned charges in Complaint 1 ............................................................................. 114 Impugned charges in Complaint 4 ............................................................................. 115 Analysis: Complaint 1.................................................................................................... 115 When the impugned charges came to the respondent’s knowledge .......................... 115 Charges 1 and 2 brought out of time.......................................................................... 117 Charges 4 and 5 brought within time ......................................................................... 117 Analysis: Complaint 4.................................................................................................... 121 GROUND 6: THE FORESTRY ACT OFFENCES ....................................................... 123 Introduction .................................................................................................................... 123 The statutory context ..................................................................................................... 123 -- 7 of 242 -- 8 The error by the prosecution at trial............................................................................ 123 The appellant’s contentions .......................................................................................... 124 The onus of proof ........................................................................................................ 124 Prosecution could not discharge the onus of proof on appeal .................................. 125 Respondent’s contentions .............................................................................................. 126 Analysis ........................................................................................................................... 126 The onus to exclude statutory authority ..................................................................... 126 Prosecution may contend that the defendant bears the onus on authority issues on this appeal.................................................................................................................... 130 Authority under s. 39(1) is excluded on the evidence ................................................ 132 Conclusion ...................................................................................................................... 135 MESSRS GOULEVITCH, DILLEWAARD AND TRAN: GENERAL OBSERVATIONS .............................................................................................................. 135 Introduction .................................................................................................................... 135 Relevant but inadmissible evidence .............................................................................. 136 The parties’ positions .................................................................................................. 136 Analysis of the authorities .......................................................................................... 137 Adequacy of the Amended Notice of Appeal: Goulevitch and Dillewaard............... 148 ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE RELIED UPON BY GOULEVITCH .................................................................................................................. 149 Introductory comments ................................................................................................. 149 The computer records point.......................................................................................... 151 The appellant’s contentions ........................................................................................ 151 The respondent’s contentions ..................................................................................... 152 Analysis........................................................................................................................ 153 The DCDB point............................................................................................................. 155 Some background to the DCDB ................................................................................. 155 The appellant’s contentions ........................................................................................ 160 The respondent’s contentions ..................................................................................... 161 Analysis........................................................................................................................ 162 The publication point..................................................................................................... 166 The regional ecosystem map point ............................................................................... 166 CHALLENGES TO MR DILLEWAARD’S EVIDENCE............................................. 167 Background .................................................................................................................... 167 Mr Dillewaard’s evidence.............................................................................................. 168 General evidence on methodology .............................................................................. 168 Specific evidence on Chess Park inspection .............................................................. 171 Identifying the character of cleared vegetation ......................................................... 173 Cross examination....................................................................................................... 175 The appellant’s submissions.......................................................................................... 175 The respondent’s submissions ...................................................................................... 178 Analysis ........................................................................................................................... 179 Relevant principles ...................................................................................................... 179 What is the error alleged? ........................................................................................... 185 Sufficient to prove native vegetation was cleared? .................................................... 186 Some preliminary considerations ............................................................................... 187 -- 8 of 242 -- 9 Mr Dillewaard’s methodology .................................................................................... 188 Mr Dillewaard’s reasoning for each charge .............................................................. 189 Other issues ................................................................................................................. 190 The regional ecosystem mapping point ........................................................................ 192 Appeal in relation to Mr Dillewaard’s evidence is dismissed .................................... 192 THE LOWEST COMMON DENOMINATOR ISSUE ................................................. 192 CHALLENGES TO MR TRAN’S EVIDENCE ............................................................. 193 Introduction .................................................................................................................... 193 Summary of Mr Tran’s evidence.................................................................................. 194 General evidence ......................................................................................................... 194 Evidence on Complaint 1 ............................................................................................ 197 Evidence on Complaint 2 ............................................................................................ 199 Evidence on Complaint 3 ............................................................................................ 203 Evidence on Complaint 4 ............................................................................................ 204 Cross examination of Mr Tran ................................................................................... 207 Submissions at trial and her Honour’s reasons .......................................................... 213 Approach to the appellant’s submissions .................................................................... 214 Criticism of Mr Tran’s area of expertise ..................................................................... 215 Criticism relating to the factual basis for Mr Tran’s evidence ................................. 215 Criticism of Mr Tran’s evidence interpreting satellite images .................................. 216 Alleged inconsistency of evidence about existing fire trails ....................................... 216 Failure to produce at trial scientific papers referred to in evidence ......................... 217 Criticisms of the idealised fire plan .............................................................................. 218 Criticisms of the evidence as to width of fire trails ..................................................... 219 Failure to personally inspect ......................................................................................... 219 Conclusion ...................................................................................................................... 220 Ground 6 Issues .............................................................................................................. 220 GROUND 3: ADEQUACY OF REASONS ..................................................................... 221 Introduction .................................................................................................................... 221 Reasons on native forest practice ................................................................................. 222 The issue as litigated at trial ....................................................................................... 222 Relevant principles ...................................................................................................... 226 Appellant’s submissions.............................................................................................. 229 Respondent’s submissions .......................................................................................... 230 Analysis........................................................................................................................ 230 The “cut and paste” contention .................................................................................... 233 The extent of her Honour’s adoption of prosecution submissions on contentious issues ............................................................................................................................ 233 The appellant’s submission ........................................................................................ 234 The respondent’s submission...................................................................................... 236 Reasons were adequate ............................................................................................... 236 Reasons for accepting experts ....................................................................................... 238 Conclusion ...................................................................................................................... 238 DISPOSITION ON THE APPEAL .................................................................................. 239 ANNEXURE A ................................................................................................................... 240 -- 9 of 242 -- 10 ANNEXURE B ................................................................................................................... 242 -- 10 of 242 -- 11 SUMMARY [1] This is an appeal against conviction by the appellant, Mr Baker. He was convicted of 46 offences arising out of the clearing of vegetation on a rural property called Chess Park, near Eidsvold1 in the North Burnett region. The charges fell into two categories. [2] The first category of charges was charges arising under the Forestry Act 1959 (Qld) (the Forestry Act). Sections 39 and 54 prohibits, in general terms, interference with forest products on land regulated by the Forestry Act unless there is statutory authority to do so. The Forestry Act applied to three areas of land under the control of the defendant at the relevant times: (a) Forest Entitlement Area 34 (FEA 34), an area on the western boundary of Chess Park; (b) Dyngie State Forest (DSF), an area enclosed by Chess Park; and (c) The Lone Pine Redbank road reserve on the boundary of the DSF and Chess Park (the road reserve). [3] The second category of charges was charges arising under the Sustainable Planning Act 2009 (Qld) (the SPA). Section 578(1) of the SPA, prohibited (relevantly in this appeal) clearing of native vegetation without a development permit. That prohibition was subject to various exemptions and exclusions. [4] The prosecution’s case was that Mr Baker: (a) Cleared (or otherwise interfered with) forest products in each of the FEA 34 and the DSF in breach of s. 39 Forestry Act, and in the road reserve in breach of s. 54 Forestry Act. Seven charges were brought in two complaints in respect of distinct areas of clearing in those three areas; and (b) Cleared native vegetation without a development permit on the leasehold/freehold of Chess Park in breach of s. 578(1) SPA. Thirty-nine charges were brought in two complaints in respect of distinct areas of clearing. [5] At trial, Mr Baker put the prosecution to proof. He did not give or call evidence. In broad terms, the defence case was as follows: (a) In respect of the Forestry Act offences, the prosecution had not excluded that the clearing was justified by the need to prepare for, and respond to, bush fire; (b) In respect of the SPA offences, that the prosecution had not excluded that the clearing was permitted as part of a native forest practice for the purpose of a forestry business or (under various statutory guises) had not excluded that the clearing was not justified on bushfire management grounds; and (c) That a number of the offences were statute barred. [6] The learned Magistrate heard evidence over 20 days in two tranches of hearings which took place between 15 February 2016 and 19 July 2016. The prosecution 1 Named for Eidsvold Station, which was in turn named for Eidsvoll, Norway where the constitutional assembly met to draft the Constitution of Norway signed there on 17 May 1814. The station was named by one of the seven Archer brothers, significant early Queensland settlers whose parents immigrated to Norway from Scotland in 1825. The youngest brother, Colin Archer, returned to Norway to become a successful ship builder, building Fram, the ship used by both Nansen and Amundsen in their voyages of polar exploration. -- 11 of 242 -- 12 adduced mapping evidence derived from satellite imaging through a witness said to be expert in Geographical Information Systems (GIS) and surveying (Mr Goulevitch), expert botanical evidence (from Mr Dillewaard) and expert evidence on fire management and fire ecology (from Mr Tran). It also called a number of officers of the relevant department. [7] Her Honour received very extensive written submissions and heard oral addresses on 17 August 2016. On 18 November 2016, she gave brief ex tempore reasons. She gave written reasons on 24 November 2016, which she later corrected for certain oversights identified by the appellant. Mr Baker was convicted of all 46 offences. Her Honour later dealt with sentence and costs. [8] Mr Baker appealed all 46 convictions under s. 222 Justices Act 1886 (Qld). The issues arising on the appeal are numerous. They can be grouped generally under the following themes: (a) First, that the form of the complaints was such as to fail to attract the jurisdiction of the Court to hear and determine them under the Justices Act; (b) Second, that her Honour erred in concluding that certain offences were not statute barred; (c) Third, that (for many distinct reasons) her Honour erred in accepting and acting on the evidence of the prosecution’s expert witnesses; (d) Fourth, that her Honour erred by failing to give sufficient reasons; and (e) Fifth, there were a number of other discrete legal and factual errors. [9] The appellant’s submissions on the appeal ran to well over 350 pages, the respondent’s some 132 pages. Both parties also relied on their extensive trial submissions. Numerous individual issues arose. With the exception of the limitations point, some aspects of the fire management issues and some points raised on the reasons ground, the matters raised in the appeal were not raised before her Honour. [10] By way of overview, for the reasons which I will give, I have concluded as follows: (a) The complaints were valid; (b) Her Honour, erred in her conclusion that Charges 1 and 2 of Complaint 1 were not statute barred. Otherwise her Honour’s conclusions on the limitations issue were correct; (c) Her Honour did not err in acting of the evidence of Mr Goulevitch, Mr Dillewaard and Mr Tran; (d) Her Honour did not err in law by giving inadequate reasons; and (e) None of the remaining discrete errors alleged justified setting aside any charge, (though the appellant made good some of the errors alleged). [11] The consequence of these conclusions is that: (a) The convictions on Charges 1 and 2 on Complaint 1 should be set aside and the charges dismissed; (b) The appeal in relation to the remaining charges is dismissed. [12] In these reasons, references to the transcript at trial are articulated by reference to the day of the trial. That format is used because the numbering of the days in the -- 12 of 242 -- 13 transcript provided were not continuous. A schedule identifying what occurred when in the course of the trial by reference to this numbering convention is located Annexure A. BACKGROUND Chess Park [13] On 17 March 2011, the appellant Mr Baker purchased Chess Park. Chess Park is a rural property of approximately 8000 hectares noted on Lot 5 Plan WK207 in the Parish of Dyngie, County of Wicklow. He initially acquired it as a Grazing Homestead Freehold Lease (GHFL), but converted it to freehold on 15 July 2011. (Nothing of substance is said to turn on whether he was a lessee or registered proprietor from time to time). [14] The DSF is Crown land declared as a state forest by the Governor in Council. It is located within, and entirely surrounded by, the leasehold/freehold area of Chess Park. At the time of purchase of Chess Park, Mr Baker also became the lessee of the DSF. He surrendered the lease of the DSF on 15 October 2012. [15] FEA 34 is located on the western boundary of Chess Park. FEA 34 was a reservation on the leasehold of Chess Park. The grant of the GHFL provided relevantly that the Crown reserved rights over the forest products in the FEA. [16] As noted above, the road reserve is on the boundary of the DSF and Chess Park. It was and is an area reserved for a road. [17] Annexure B to these reasons shows the locations of Chess Park, the DSF, FEA 34 and the road reserve. The statutory framework: the Forestry Act offences [18] The DSF, FEA 34 and road reserve were at the relevant times regulated by the Forestry Act. The long title of the Forestry Act describes its general purpose: An Act to provide for forest reservations, the management, silvicultural treatment and protection of State forests, and the sale and disposal of forest products and quarry material, the property of the Crown on State forests, timber reserves and on other lands; and for other purposes. [19] “Forest products” is broadly defined in the dictionary contained in Schedule 3 of the Act to mean: all vegetable growth and material of vegetable origin whether living or dead and whether standing or fallen, including timber, and, in relation to a State forest, timber reserve or forest entitlement area the term includes— (a) honey; (b) all form of indigenous animal life; (c) any nest, bower, shelter or structure of any form of indigenous animal life; (d) fossil remains; (e) relics; (f) quarry material; but does not include grasses on a stock route under the Land Protection (Pest and Stock Route Management) Act 2002, or grasses (indigenous or introduced) or crops -- 13 of 242 -- 14 grown on a Crown holding by the lessee or by the licensee or on a forest entitlement area by the lessee or owner. [20] The Forestry Act regulates forest products, relevantly: (a) In a “State forest” which is defined to mean “land set apart and declared under this [Forestry] Act as a State forest”. DSF was a State forest so declared; (b) In a “forest entitlement area” which is defined as having the same meaning as the meaning given to that phrase in the Land Act 1994 (Qld). That Act defines forest entitlement area as meaning “a reservation of commercial timber, and the land on which it stands, to the State in a deed of grant or freeholding lease”. FEA 34 comprised such a reservation to the deed of grant for Chess Park; and (c) On any land reserved for public purposes, including (relevantly here) any road. The road reserve was such land. [21] Part 4 of the Forestry Act deals with management of, relevantly, State forests and forest entitlement areas. Section 33 identifies the cardinal principle of management of State forests as follows: (1) The cardinal principle to be observed in the management of State forests shall be the permanent reservation of such areas for the purpose of producing timber and associated products in perpetuity and of protecting a watershed therein. (2) The chief executive must ensure each State forest is used and managed in the way the chief executive considers appropriate to achieve the purposes of this Act, having regard to— (a) the benefits of permitting grazing in the area; (b) the desirability of conservation of soil and the environment and of protection of water quality; (c) the possibility of applying the area to recreational purposes. [22] The balance of Part 4 makes specific provision for particular aspects of management of State forests. Relevantly, it provides in s. 35(5) for the granting of a term lease under the Land Act over land in a State Forest on the conditions identified therein. The lease of DSF referred to above was a term lease granted to Mr Baker under the Land Act2 under this section. [23] Part 4 also contains one of the two Forestry Act offence provisions relevant to this matter. Section 39 provides: (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 Rescue Service Act 1990, section 65. Maximum penalty— (a) for a first offence—1000 penalty units; and 2 Exhibit 14.1. -- 14 of 242 -- 15 (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. [24] “Interfere with” is defined as follows: interfere with, used in relation to any forest products, earth, soil, or quarry material, includes destroy, get, damage, mark, move, use, or in any way interfere with. [25] “Destroy” is further defined as follows: destroy, used in relation to any tree, means cut down, fell, ringbark, push over, poison or destroy by any means whatsoever. [26] Section 39 is the provision relevant to the offences in the DSF and FEA 34 which are the subject of this appeal. [27] Part 6 regulates forest products on Crown land not covered by Part 4. Section 45 effectively provides that forest products on all Crown lands and analogous tenures (such as land reserved for public purposes) are the property of the Crown. [28] Section 54 is the equivalent provision to s. 39 in respect of Crown land regulated by Part 6 of the Forestry Act. It provides: (1) A person shall not interfere with, or cause to be interfered with, any forest products, any quarry material, or any earth or soil— (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. [30] Section 54 is the provision relevant to the offences in the road reserve. [31] It was common ground at trial and on appeal that the scope of the exemption in s. 39(2)(a) Forestry Act included a person performing duties imposed by s. 63 Forestry Act. Section 63 appears in Part 7 of the Forestry Act dealing with fires on, relevantly, State forests and forest entitlement areas. That section relevantly provides: (1) Every person holding any lease, licence, permit or other authority or entitled to any right or privilege under an agreement or contract granted or made under this or any other Act over or in respect of the whole or any -- 15 of 242 -- 16 part of any State forest, timber reserve or forest entitlement area or the forest products thereon (the holder), shall at the person’s own cost and expense— (a) at all times make all reasonable provision for preventing, detecting, controlling and extinguishing bush, grass, or other rural fires on the State forest, timber reserve or forest entitlement area or, as the case may be, part thereof, over or in respect whereof or the forest products thereon, the lease, licence, permit, authority, agreement or contract was so granted or made; and (b) on becoming aware of any fire burning on the State forest, timber reserve or forest entitlement area, or as the case may be, part thereof as aforesaid, or burning elsewhere, which is likely to spread to such State forest, timber reserve or forest entitlement area, or as the case may be, part thereof (such not being a fire authorised under the provisions of the Fire and Rescue Service Act 1990, part 7), promptly do everything reasonably within his or her power to extinguish the fire whether or not there is immediate danger of it causing damage, and shall forthwith cause the nearest forest officer or person performing duties under this Act to be notified of the fire and of the measures taken by the person to extinguish the same, and if, at the time of so notifying the forest officer or person performing duties under this Act, the fire is not extinguished, the person shall continue so far as possible to control and endeavour to extinguish the fire until it is brought under control or extinguished or until the person obtains the approval of the forest officer or person performing duties under this Act to desist. (2) Any person refusing, neglecting or failing to comply with the provisions of this section shall be guilty of an offence against this Act and shall be deemed to have committed an offence. (3) False statements as to whereabouts Any holder or agent who makes a false statement as to his or her whereabouts or makes a statement knowing the same to be false as to the whereabouts of any of the employees or agents of the holder at the time of the outbreak of any such fire shall be guilty of an offence against this Act. (4) Nothing contained in this section shall be read as to relieve any person from any liability or obligation to which the person may be subject under the person’s lease, agreement, contract, permit, licence, other authority, or under any other Act or law, and the provisions of this section shall be read as in addition to and not in derogation from the provisions of any other Act. (5) This section does not apply to a plantation licensee or plantation sublicensee or any manager, supervisor or other person acting in the general management or control of the business of the plantation licensee or plantation sublicensee carried on in or on a licence area. [32] Section 63(a) is concerned with preventing fires in a State forest or forest entitlement area and s. 63(b) is concerned with extinguishing fires which are burning in or might spread to those areas. The section is concerned with protecting the Forestry Act areas. It is not concerned with protecting adjoining non-Forestry Act areas as such (like Chess Park itself). -- 16 of 242 -- 17 [33] Part 8 of the Forestry Act deals with miscellaneous matters. Section 88 relevantly provides: Offences generally (1) Any person who contravenes or fails to comply with any provision of this Act shall be guilty of an offence against this Act. (1A) Every person who attempts, aids, abets, counsels, or procures, or is in any way knowingly concerned in, the commission of an offence against this Act shall be deemed to have committed that offence, and shall be punishable accordingly. (1B) Where by this Act any authority is given to any person to direct anything to be done or to forbid anything to be done and anything so directed to be done is not done or anything so forbidden to be done is done, then every person who has offended against such direction or, as the case may be, prohibition shall be guilty of an offence against this Act. … Summary proceeding (3) All offences against this Act may be prosecuted and all amounts of fees, royalties, stumpages, charges, or other moneys payable under this Act and not paid may be recovered in a summary way under the Justices Act 1886 on complaint by— (a) if the offence happened in, or related to, a licence area—a plantation officer; or (b) generally—any forest officer or any other person authorised for the purpose either generally, or in the particular case, by the chief executive. Time for commencement of prosecutions (4) A prosecution for an offence against this Act may be instituted at any time within 12 months after the commission of the offence or within 6 months after the commission of the offence comes to the knowledge of the complainant, whichever is the later period. [34] Section 95 is also relevant to the issues which arise on this appeal. It relevantly provides: Facilitation of proof In any proceedings under or for the purpose of this Act— … (c) it shall not be necessary to prove the limits of any area or locality whatsoever, or that any place is within a State forest or timber reserve, or an area or a locality, or part thereof, but this shall not prejudice the right of any defendant to prove the limits of the area or locality or that any place is not within the State forest or timber reserve, area, or locality, or part thereof; … (e) a document purporting to be made by the chief executive and stating that at any specified time there was or was not in force a lease, agreement, contract, permit, licence, certificate, or other authority, as described therein granted, given or made under this Act to or with a specified person, and, if stated therein, that such lease, agreement, contract, permit, licence, certificate, or other authority was or was not subject to terms, conditions, or restrictions, or was or was not issued or made subject to the provisions, conditions, and restrictions set out in that document, or that at -- 17 of 242 -- 18 any specified time a specified person was or was not exempted from any specified provisions of this Act, shall, upon its production in evidence, be evidence of the matters in that document, and in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such matters; … (g) the averment in any complaint of the date on which the commission of any offence under this Act came to the knowledge of the complainant shall be evidence of that matter and in the absence of evidence in rebuttal shall be conclusive evidence of such matter; … (i) a map or plan purporting to be made by the chief executive or by a person performing duties under this Act, or purporting to be issued or published by any department of the government or any officer thereof, shall, upon its production in evidence, be evidence of the matters stated or delineated thereon, and in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such matters; ... The statutory framework: the SPA offences [35] Clearing of vegetation on Chess Park (excluding the areas regulated by the Forestry Act) was regulated by the SPA3 and the Vegetation Management Act 1999 (Qld) (the VMA). The statutory scheme is a complex one. The offence creating provision [36] It is convenient to begin with the key offence creating provision: s. 578(1) SPA (located in Chapter 7 Part 3 SPA). It provides: 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. [37] This deceptively simple provision calls up many other provisions for the purpose of identifying “assessable development”. Before turning to that matter, it is convenient to deal with the carve-out provisions in s. 578(2). [38] Section 578(2)(a) refers the reader to Subdivision 2, which is headed “Exemptions”. It contains three statutory exemptions to the offence created by s. 578(1) in relation to emergency situations. Section 584 contains a general exemption. It provides: General exemption for emergency development or use (1) Sections 575, 576, 578, 580, 581, 582 and 583 do not apply to a person if— 3 Sustainable Planning Act 2009 (Qld) (reprinted as in force on 5 May 2011) (Reprint No. 1H revised edition). -- 18 of 242 -- 19 (a) the person carries out development or a use, other than operational work that is tidal works or building work to which section 585 or 586 applies, because of an emergency endangering— (i) the life or health of a person; or (ii) the structural safety of a building; and (b) the person gives written notice of the development or use to the assessing authority as soon as practicable after starting the development or use. (2) However, subsection (1) does not apply if the person is required by an enforcement notice or order to stop carrying out the development or use. [39] There are similar specific exemptions in relation to emergency tidal works (s. 585) and building work on heritage places (s. 586). Neither at trial nor on this appeal has the appellant contended that any of these exemptions arose on the evidence tendered before her Honour. [40] Section 578(2)(b) refers the reader to s. 342(3) SPA. That provision provides: When approval lapses if development started but not completed—general (1) Subsection (2) applies if— (a) a condition requires assessable development, or an aspect of assessable development, to be completed within a particular time; and (b) the assessable development, or aspect, is started but not completed within the time. (2) The approval, to the extent it relates to the assessable development or aspect not completed, lapses. (3) However, even though the approval has lapsed, any security paid under a condition mentioned in section 346(1)(f) may be used in a way stated by the approval, including, for example, to finish the development. (4) This section does not apply to a preliminary approval to which section 242 applies. [41] Again, neither at trial nor on this appeal has the appellant contended that this provision arises on the evidence tendered before her Honour. Identifying assessable development [42] The starting point is the definition of “development” in s. 7 SPA which provides: Development is any of the following— (a) carrying out building work; (b) carrying out plumbing or drainage work; (c) carrying out operational work; (d) reconfiguring a lot; (e) making a material change of use of premises. [43] Relevant to this case is “operational work”. That term is relevantly defined in s. 10 SPA as follows: 1 Operational work means— … -- 19 of 242 -- 20 (f) clearing vegetation, including vegetation to which the Vegetation Management Act applies 2 Operational work does not include … (b) clearing vegetation on— … (iii) an area declared as a State forest or timber reserve under the Forestry Act 1959; or (iv) a forest entitlement area under the Land Act 1994. [44] The effect of item 2 in the definition is to confirm the exclusion of areas regulated by the Forestry Act from the SPA regime. [45] The next step is to identify what is assessable development. Section 231 identifies the categories of development. It provides: Categories of development under Act (1) The categories of development under this Act are as follows— (a) exempt development; (b) self-assessable development; (c) development requiring compliance assessment; (d) assessable development; (e) prohibited development. (2) Under this Act, all development is exempt development unless it is— (a) self-assessable development; or (b) development requiring compliance assessment; or (c) assessable development; or (d) prohibited development. [46] Assessable development is defined in the dictionary in Schedule 3 SPA as being development prescribed under s. 232(1)(c) to be assessable development. That subsection in turn directs attention to the regulations which prescribed assessable development. Assessable development under the Regulations [47] The Sustainable Planning Regulations 2009 (Qld) (the Regulations)4 set out an extended scheme for identifying assessable development. [48] Regulation 9 relevantly provides: Assessable development, self-assessable development and type of assessment— Act, s 232 (1) For section 232(1) of the Act— (a) development stated in schedule 3, part 1, column 2 is assessable development; … [49] The relevant part of Schedule 3 is as follows: 4 Sustainable Planning Regulation 2009 (Qld) (Reprint No 2C as in force on 4 February 2011). -- 20 of 242 -- 21 [50] The exclusions from the definition of operational works identified in [43] above will apply in Table 4. Thus clearing of vegetation in a State forest or forest entitlement area will not be within the scope of the prohibition in s. 578(1). [51] It can also be seen that clearing of native vegetation otherwise caught by the part of Schedule 3 Column 2 will not be assessable development if the clearing is clearing to which paragraphs (d), (e) and (f) apply. [52] Of relevance to this matter are Schedule 24 Part 1 and Part 2. Given certain contentions by the appellant as to the requirements for a valid complaint, it is necessary to set out the whole of Schedule 24 Part 1. It provides (as set out in Reprint No 2C): Part 1 Clearing and other activities or matters – general 1 Clearing and other activities or matters for land generally (1) Clearing under a development approval for a material change of use or reconfiguring a lot, if the approval is given for a development application— (a) made after 4 October 2004; and (b) for which the chief executive administering the Vegetation Management Act is a concurrence agency. (2) Clearing an area of vegetation that is less than 0.5ha within a watercourse or lake for an activity (other than an activity relating to a material change of use of premises or the reconfiguring of a lot) that is subject to an approval process and is approved under the Act or another Act, or is carried out under the document called ‘Guideline—Activities in a watercourse, lake or spring carried out by an entity’ approved by the chief executive of the department that administers the Water Act 2000, if the area is— (a) a least concern regional ecosystem— -- 21 of 242 -- 22 (i) shown on the regional ecosystem map or remnant map as remnant vegetation; or (ii) shown on a PMAV as a category B area; or (b) shown on a PMAV as a category X area; or (c) shown on the regional ecosystem map or remnant map as other than remnant vegetation. (3) Clearing vegetation in an area declared under the Vegetation Management Act, section 19F if the clearing is carried out under the management plan for the area. (4) Clearing vegetation under a land management agreement for a lease under the Land Act 1994. (5) A traditional Aboriginal or Torres Strait Islander cultural activity, other than a commercial activity. (6) A mining activity or a chapter 5A activity. (7) Any aspect of development for geothermal exploration carried out under a geothermal exploration permit under the Geothermal Exploration Act 2004. (8) Any aspect of development for core airport infrastructure on airport land. (9) An activity under the Fire and Rescue Service Act 1990, section 53, 68 or 69. (10) An activity under— (a) the Electricity Act 1994, section 101 or 112A; or (b) the Electricity Regulation 2006, section 17. (11) For a State-controlled road under the Transport Infrastructure Act— (a) road works carried out on the State-controlled road; or (b) ancillary works and encroachments carried out under section 50 of that Act. (12) Clearing, for routine transport corridor management and safety purposes, on existing rail corridor land, new rail corridor land, non-rail corridor land or commercial corridor land (within the meaning of the Transport Infrastructure Act) that is not subject to a commercial lease. (13) Any activity authorised under the Forestry Act 1959. [53] Of these provisions, only item 13 is relevant to this matter. The effect of that provision is that clearing of native vegetation authorised by s. 63 Forestry Act will fall outside the scope of Schedule 3. It is important to bear in mind, as identified in [32] above, that s. 63 authorises clearing to protect Forestry Act areas from fire. Clearing of native vegetation on freehold or leasehold land to protect that land from fire in a Forestry Act area will not fall within the scope of that exclusion. [54] There were various amendments to Part 1 over the relevant period adding further exemptions. They are set out in her Honour’s reasons at [204] to [207]. Those changes have no material impact on this matter. -- 22 of 242 -- 23 [55] Schedule 24 Part 2 contains further exceptions specifically for freehold land (which included Chess Park at all relevant times by reason of the nature of the lease held prior to freeholding by Mr Baker). It relevantly provides:5 Part 2 Clearing for particular land 2 Freehold land For freehold land, clearing that is— (a) clearing of vegetation to which the Vegetation Management Act does not apply; or (b) for a forest practice; or (c) residential clearing; or (d) necessary for essential management; or (e) in an area shown on a PMAV as a category X area; or (f) in an area for which there is no PMAV and the vegetation is not regulated regrowth vegetation or shown on the regional ecosystem map or remnant map as remnant vegetation; or (g) for urban purposes in an urban area and the vegetation is regulated regrowth vegetation, or an of concern regional ecosystem or a least concern regional ecosystem— (i) shown on a PMAV for the area as a category B area; or (ii) if there is no PMAV for the area—shown on the regional ecosystem map or remnant map as remnant vegetation; or (h) for urban purposes in an urban area in a wild river high preservation area and the vegetation is— (i) remnant vegetation, shown on the regional ecosystem map or remnant map, that is an of concern regional ecosystem or a least concern regional ecosystem; or (ii) shown on the regional ecosystem map or remnant map as other than remnant vegetation; or (iii) regulated regrowth vegetation; or (i) necessary for routine management in an area of the land and the vegetation is regulated regrowth vegetation, or a least concern regional ecosystem - (i) shown on a PMAV for the area as a category B area; or (ii) if there is no PMAV for the area – shown on the regional ecosystem map or remnant map as remnant vegetation; or (j) in an urban development area; or (k) on airport land and the operational work – 5 There were different reprints of Schedule 24 over the relevant period. Nothing was said to turn on the version adopted as I recall it. This version is from Reprint No 2C. -- 23 of 242 -- 24 (i) is consistent with the land use plan approved under the Airport Assets (Restructuring and Disposal) Act 2008, chapter 3, part 1 for the land; and (ii) is carried out on land that is not stated, under the land use plan, to remain undeveloped land; or (l) clearing of regulated regrowth vegetation under the regrowth vegetation code or a regrowth clearing authorisation, other than if the vegetation is shown on a PMAV for an area of the land as a category A area; or (m) for development that is for an extractive industry under the Vegetation Management Act, section 22A(3) in a key resource area to the extent it involves clearing regulated regrowth vegetation, other than if the vegetation is shown on a PMAV for an area of the land as a category A area; or (n) for development that is a significant community project to the extent it involves clearing regulated regrowth vegetation, other than if the vegetation is shown on a PMAV for an area of the land as a category A area. [Underlining added to identify provisions materially relevant to this appeal] [56] Part 2 was re-enacted in December 2012, but without any material impact on the issues in this case. Schedule 24 Part 2 requires further explanation and definition. The expressions “essential management” and “routine management” are themselves defined in Schedule 26 of the Regulations as follows: essential management means clearing native vegetation – (a) for establishing or maintaining a necessary firebreak to protect infrastructure other than a fence, road or vehicular track, if the maximum width of the firebreak is equivalent to 1.5 times the height of the tallest vegetation adjacent to the infrastructure, or 20m, whichever is the greater; or (b) for establishing a necessary fire management line if the maximum width of the clearing for the fire management line is 10m; or (c) necessary to remove or reduce the imminent risk that the vegetation poses of serious personal injury or damage to infrastructure; or (d) by fire under the Fire and Rescue Service Act 1990 to reduce hazardous fuel load; or (e) necessary to maintain infrastructure including any core airport infrastructure, buildings, fences, helipads, roads, stockyards, vehicular tracks, watering facilities and constructed drains other than contour banks, other than to source construction material; or (f) for maintaining a garden or orchard, other than clearing predominant canopy trees to maintain underplantings established within remnant vegetation; or (g) on land subject to a lease issued under the Land Act 1994 for agriculture or grazing purposes to source construction timber to repair existing infrastructure on the land, if— (i) the infrastructure is in need of immediate repair; and (ii) the clearing does not cause land degradation as defined under the Vegetation Management Act; and (iii) restoration of a similar type, and to the extent of the removed trees, is ensured; or -- 24 of 242 -- 25 (h) by the owner on freehold land to source construction timber to maintain infrastructure on any land of the owner, if— (i) the clearing does not cause land degradation as defined under the Vegetation Management Act; and (ii) restoration of a similar type, and to the extent of the removed trees, is ensured. … routine management, for clearing native vegetation on land, means the clearing of native vegetation— (a) to establish a necessary fence, road or vehicular track if the maximum width of clearing for the fence, road or track is 10m; or (b) to construct necessary built infrastructure, including core airport infrastructure, other than contour banks, fences, roads or vehicular tracks, if— (i) the clearing is not to source construction timber; and (ii) the total extent of clearing is less than 2ha; and (iii) the total extent of the infrastructure is on less than 2ha; or (c) by the owner on freehold land to source construction timber for establishing necessary infrastructure on any land of the owner, if— (i) the clearing does not cause land degradation as defined under the Vegetation Management Act; and (ii) restoration of a similar type, and to the extent of the removed trees, is ensured; or (d) by the lessee of land subject to a lease issued under the Land Act 1994 for agriculture or grazing purposes to source construction timber, other than commercial timber, for establishing necessary infrastructure on the land, if— (i) the clearing does not cause land degradation as defined under the Vegetation Management Act; and (ii) restoration of a similar type, and to the extent of the removed trees, is ensured. [Underlining added to identify provisions materially relevant to this appeal] [57] Other relevant terms in the dictionary in Schedule 3 of the SPA are: forest practice— (1) Forest practice means planting trees, or managing, felling and removing standing trees, on freehold land or indigenous land, for an ongoing forestry business in a— (a) plantation; or (b) native forest, if, in the native forest— (i) all the activities are conducted in a way that is consistent with the native forest practice code; or (ii) if the native forest practice code does not apply to the activities, all the activities are conducted in a way that— (A) ensures restoration of a similar type, and to the extent, of the removed trees; and -- 25 of 242 -- 26 (B) ensures trees are only felled for the purpose of being sawn into timber or processed into another value added product (other than woodchips for an export market); and (C) does not cause land degradation as defined under the Vegetation Management Act. (2) The term includes carrying out limited associated work, including, for example, drainage, construction and maintenance of roads or vehicular tracks, and other necessary engineering works. (3) The term does not include clearing native vegetation for the initial establishment of a plantation … infrastructure includes land, facilities, services and works used for supporting economic activity and meeting environmental needs native forest practice means a forest practice other than in a plantation. native forest practice code means the native forest practice code under the Vegetation Management Act, section 19O(1). native vegetation means vegetation under the Vegetation Management Act. The VMA [58] There are several references in the SPA scheme to the VMA. Aspects of the VMA provisions are given considerable weight in the appellant’s submissions. [59] Section 3 identifies the purpose of the Act. It relevantly provides: (1) The purpose of this Act is to regulate the clearing of vegetation in a way that— (a) conserves remnant vegetation that is— (i) an endangered regional ecosystem; or (ii) an of concern regional ecosystem; or (iii) a least concern regional ecosystem; and (b) conserves vegetation in declared areas; and (c) ensures the clearing does not cause land degradation; and (d) prevents the loss of biodiversity; and (e) maintains ecological processes; and (f) manages the environmental effects of the clearing to achieve the matters mentioned in paragraphs (a) to (e); and (g) reduces greenhouse gas emissions. (2) The purpose is achieved mainly by providing for— (a) codes for the Planning Act relating to the clearing of vegetation that are applicable codes for the assessment of vegetation clearing applications under IDAS; and (b) the enforcement of vegetation clearing provisions; and (c) declared areas; and (d) a framework for decision making that, in achieving this Act’s purpose in relation to subsection (1)(a) to (e), applies the -- 26 of 242 -- 27 precautionary principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage; and (e) the phasing out of broadscale clearing of remnant vegetation by 31 December 2006; and (f) the regulation of particular regrowth vegetation. [60] Part 2 VMA deals with vegetation management. Within that part, the following relevant provisions appear. [61] Section 8 defines vegetation under the Act (note the definition of native vegetation in the SPA at [57] above). It provides: Vegetation is a native tree or plant other than the following— (a) grass or non-woody herbage; (b) a plant within a grassland regional ecosystem prescribed under a regulation; (c) a mangrove. [62] Subdivision 1 of Division 4B of Part 2 deals with certain codes for vegetation management. It relevantly deals with the native forest practice code (see Schedule 24 Item 2(b) at [55] above). It relevantly provides: 19O Native forest practice code (1) The native forest practice code is the document called ‘The Code applying to a Native Forest Practice on Freehold Land’ approved by the Minister, as amended or replaced from time to time under this section. (2) The Minister may amend or replace the document mentioned in subsection (1) or any amendment or replacement of it. (3) However, the amendment or replacement does not take effect until it is approved under a regulation. (4) A reference to the native forest practice code is taken to include any amendment or replacement under subsection (2) that has taken effect. 19P Content of native forest practice code (1) The native forest practice code may provide for any matter about conducting a native forest practice the Minister considers is necessary or desirable for achieving the purpose of this Act. (2) The native forest practice code may provide for required outcomes and practices for producing, managing and removing commercial timber in native forests. (3) The native forest practice code must not be inconsistent with the State policy. [63] Division 5AA deals with Vegetation management maps (see Schedule 24 Part 2 Items 2(e) and (i) at paragraph [55] above). It deals with certain maps of remnant vegetation in a part of the State, relevantly in this matter, regional ecosystem maps6 and PMAVs. [64] As to the former, s. 20A provides: 6 Regional ecosystem maps were renamed by amendments to the VMA but nothing turns on this change in this appeal: see reasons at paragraph 222. -- 27 of 242 -- 28 The regional ecosystem map is a map certified by the chief executive as the regional ecosystem map for a part of the State and showing for the part— (a) areas of remnant vegetation that are— (i) an endangered regional ecosystem; or (ii) an of concern regional ecosystem; or (iii) a least concern regional ecosystem; and (a) the regional ecosystem number for each of the regional ecosystems mentioned in paragraph (a); and (b) areas the chief executive decides under section 20AH to show on the map as remnant vegetation. Note— The chief executive may decide under section 20AH to show an area on the regional ecosystem map as remnant vegetation even though the vegetation is not remnant vegetation. [65] The dictionary in the VMA relevantly provides: regional ecosystem means a vegetation community in a bioregion that is consistently associated with a particular combination of geology, landform and soil. regional ecosystem map see section 20A. regional ecosystem number, for a regional ecosystem, means the regional ecosystem number that is established under the Regional Ecosystem Description Database. Note— The Regional Ecosystem Description Database is a database containing regional ecosystem numbers and descriptions of the regional ecosystems that is maintained by the Queensland Herbarium. The database is available on the department’s website at <www.derm.qld.gov.au>. [66] As a matter of practice, a particular regional ecosystem is identified by three figures which are linked to the vegetation, geology and soil which distinguish a particular system. Exhibit 34.4 (all references to exhibits will be to trial exhibits unless otherwise noted) shows the regional ecosystem numbers for the regional ecosystems present on Chess Park according to the relevant regional ecosystem maps as reviewed by Mr Dillewaard. [67] Division 5A provides for maps of remnant vegetation for a particular owner’s land. Such a map is called a property map of assessable vegetation (PMAV). Division 2A provides relevantly: 20AK What is a property map of assessable vegetation (or PMAV) (1) A property map of assessable vegetation (or PMAV) is a map certified by the chief executive as a PMAV for an area and showing for the area the following— (a) category A areas; (b) category B areas; (c) category C areas; (d) category X areas; (e) areas subject to a regional ecosystem map, remnant map or regrowth vegetation map. (2) The map may also show for the area the location of the boundaries of, and the regional ecosystem number for, each regional ecosystem in the area. -- 28 of 242 -- 29 (3) Each of category A area, category B area, category C area and category X area is called a vegetation category area. Note—The effect of sections 20AL to 20AO, 20BA and 20CA is that there is no overlap of the boundaries of the vegetation category areas. (4) The chief executive may certify a map as a PMAV by certifying— (a) a hard copy of the map; or (b) a digital electronic form of the map. 20AL What is a category A area A category A area is an area that— (a) is any of the following— (i) a declared area; (ii) an offset area; (iii) an exchange area; or (b) has been unlawfully cleared; or (c) is, or has been, subject to— (i) a restoration notice; or (ii) an enforcement notice under the Planning Act containing conditions about restoration of vegetation; or (d) has been cleared of native vegetation and in relation to the clearing a person has been found guilty by a court, whether or not a conviction has been recorded, of a clearing offence; or (e) the chief executive decides under section 20BA is a category A area. 20AM What is a category B area A category B area is an area, other than a category A area— (a) shown on a regional ecosystem map or remnant map as remnant vegetation; or (b) that, if section 20AN does not apply to the area, is a Land Act tenure to be converted under the Land Act 1994 to another form of tenure and is or contains an endangered regional ecosystem, of concern regional ecosystem or a least concern regional ecosystem. 20AN What is a category C area A category C area is an area, other than a category A area, that contains regrowth vegetation that is— (a) an endangered regional ecosystem, of concern regional ecosystem or a least concern regional ecosystem that has not been cleared since 31 December 1989; and (b) either— (i) shown on a regional ecosystem map or remnant map as remnant vegetation; or (ii) shown on a regrowth vegetation map as high value regrowth vegetation. 20AO What is a category X area (1) A category X area is an area, other than a category A area or category C area, in which clearing of vegetation has happened and that, when a PMAV applying to the area was made, did not contain remnant vegetation -- 29 of 242 -- 30 or vegetation shown on the regional ecosystem map or remnant map as remnant vegetation. (2) However, an area is not a category X area if the chief executive decides under section 20CA the area is not a category X area. [68] It can be seen that regional ecosystem maps and PMAVs map “remnant vegetation” and regional ecosystem maps also include three categories of ecosystem: endangered, of concern and least concern regional ecosystems. [69] Remnant vegetation was defined in the dictionary in the Schedule to the VMA as follows: remnant vegetation means vegetation, part of which forms the predominant canopy of the vegetation— (a) covering more than 50% of the undisturbed predominant canopy; and (b) averaging more than 70% of the vegetation’s undisturbed height; and (c) composed of species characteristic of the vegetation’s undisturbed predominant canopy. [70] The different categories of regional ecosystems are defined in Division 7A of Part 2 as follows: 22LA Endangered regional ecosystems (1) A regulation may declare a stated regional ecosystem to be an endangered regional ecosystem. (2) The Minister must not recommend to the Governor in Council the making of a regulation under subsection (1) unless the Minister is satisfied— (a) the area of remnant vegetation for the regional ecosystem is less than 10% of the pre-clearing extent of the regional ecosystem; or (b) the area of remnant vegetation for the regional ecosystem is— (i) 10% to 30% of the pre-clearing extent of the regional ecosystem; and (ii) less than 10000ha. (3) However, failure to comply with subsection (2) in relation to a regulation does not affect the regulation’s validity. 22LB Of concern regional ecosystems (1) A regulation may declare a stated regional ecosystem to be an of concern regional ecosystem. (2) The Minister must not recommend to the Governor in Council the making of a regulation under subsection (1) unless the Minister is satisfied— (a) the area of remnant vegetation for the regional ecosystem is 10% to 30% of the pre-clearing extent of the regional ecosystem; or (b) the area of remnant vegetation for the regional ecosystem is— (i) more than 30% of the pre-clearing extent of the regional ecosystem; and (ii) less than 10000ha. (3) However, failure to comply with subsection (2) in relation to a regulation does not affect the regulation’s validity. 22LC Least concern regional ecosystems -- 30 of 242 -- 31 (1) A regulation may declare a stated regional ecosystem to be a least concern regional ecosystem. (2) The Minister must not recommend to the Governor in Council the making of a regulation under subsection (1) unless the Minister is satisfied the area of remnant vegetation for the regional ecosystem is— (a) more than 30% of the pre-clearing extent of the regional ecosystem; and (b) more than 10000ha. (3) However, failure to comply with subsection (2) in relation to a regulation does not affect the regulation’s validity. The next part of the VMA relevant to this matter is Part 4, headed “Reviews and legal proceedings”. It makes specific provision for a “vegetation clearing offence”. The Schedule defines “vegetation clearing offence” to mean an offence against a “vegetation clearing provision”, which is then defined as meaning “the Planning Act, section 578(1), 580(1), 581, 582 or 594(1) to the extent the provision relates to the clearing of vegetation”. It is to be recalled that the offences under the SPA which are the subject of this appeal are against s. 578(1) SPA. [71] Thus the VMA regulates aspects of the law and practice relating to that offence. It relevantly provides: (a) In Division 3 “Proceedings”: (i) By section 68: (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. (ii) By section 68A: -- 31 of 242 -- 32 (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. Justices Act 1886 [72] There are a number of provisions of the Justices Act which are relevant. [73] Section s. 76 deals with proof of a negative. It 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. [74] The following provisions regulate this appeal: 222 Appeal to a single judge (1) If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge. … 223 Appeal generally a rehearing on the evidence (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. (3) If the court gives leave under subsection (2), the appeal is— (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced. 225 Powers of judge on hearing appeal (1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just. -- 32 of 242 -- 33 (2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration. (3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against. (4) An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order. 226 Costs The judge may make such order as to costs to be paid by either party as the judge may think just. [75] Other relevant statutory provisions will be set out in the course of these reasons. THE COMPLAINTS [76] As noted above, the trial involved 46 offences articulated in four separate complaints. Some of the charges comprised in the complaints were amended at trial as to date ranges and areas cleared. These amendments are not of substantive relevance to disposition of the appeal.7 The below analysis is of the amended complaints. Complaint 1 [77] The first complaint (Complaint 1), articulated five offences alleged to have occurred during various periods during March to December 2012. It was sworn on 17 August 2013. The first four offences related to clearing of areas contrary to s. 39 Forestry Act: (a) Charges 1 and 2 related to clearing in FEA 34; (b) Charges 3 and 4 related to clearing in the DSF. [78] Charge 5 related to clearing in the road reserve contrary to s. 54 Forestry Act. [79] Given the issues raised by the appellant, it is necessary to set out an example of the form in which charges in Complaint 1 were articulated. Charge 1 is an example of the form of the s. 39 charges. It provided: Charge One On a date or dates unknown in the period between 30 29 March 2012 and 17 13 May 2012 at “Chess Park” in the Magistrates Courts District of Maryborough in the said State MICHAEL VINCENT BAKER interfered with forest products on the Forestry Entitlement Area 34 otherwise than under the authority of and in compliance in every respect with the requirements of – (a) a lease, license, permit, agreement or contract granted or made under the Forestry Act 1959, 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 license area under the Fire and Rescue Service Act 1990, section 65; contrary to sections 39 and 88 of the Forestry Act 1959. Particulars That at the place and time aforesaid: 7 See paragraph [352] below. -- 33 of 242 -- 34 1. Michael Vincent Baker (Mr Baker) was registered owner of a parcel of land called “Chess Park”, being Lot 5 on W207 and situated at 16555 Redbank Road, Eidsvold in the State of Queensland. 2. “Chess Park” had, on its western boundary, and within its boundaries an area totalling 213.2 hectares being a forest entitlement area under the Land Act 1994 and described as FEA34 and WK219 (FEA34). 3. “Chess Park” was subject to FEA34 as provided on Crown Plan Number WK207. 4. FEA34 contained forest products, within the meaning of that term in Schedule 3 of the Forestry Act 1959 being: (a) Living vegetable growth; (b) Dead vegetable growth; (c) Standing timber; and (d) Fallen timber. 5. No person may deal with forest products on FEA34 unless they hold: (a) a lease, license, permit, agreement or contract granted or made under the Forestry Act 1959, 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 Rescue Service Act 1990, section 65; to do so. 6. FEA 34: (a) Was cleared of vegetation along the length of almost its entire western boundary, being approximately 2.5 kilometers in length, in widths varying from approximately 50 metres to approximately 86 metres; (b) Had, on it, piles of cleared vegetation which had been pushed by mechanical means into piles with the clearing in (a); (c) Had an area of standing vegetation approximately 20 metres wide running the length of and parallel to the clearing described in (a); and (d) Was cleared of vegetation parallel to the cleared area in (a) at a distance of approximately 90 to 100 metres from its western boundary, with the clearing being approximately 20 metres wide and approximately 2.5 kilometres in length; (e) Had, in places on it, cleared vegetation pushed by mechanical means up against the standing vegetation on the eastern side of the cleared area in (d); (f) Was cleared at the approximate places marked Charge01_a and Charge 01_b on the attached overview map marked C; (g) Had been cleared in a total area of approximately 18.8 hectares in the cleared areas particuarlised in (a) and (d). 7. The cleared areas particularised in paragraphs 6(a) and (d) were identified as proximate to the following Global Positioning System (GPS) waypoints: (a) 145 56J 0251102 7182971; … [paragraphs (b)-(o) comprise further GPS waypoints] 8. Included in the piles referred to in paragraphs 6(b) and (e) was timber suitable for milling and habitat timber. 9. There was no: -- 34 of 242 -- 35 (a) lease, license, permit, agreement or contract granted or made under the Forestry Act 1959, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or (b) permit to light a fire on a license area under the Fire and Rescue Service Act 1990, section 65; for the clearing of vegetation particularised in paragraph 6. 10. FEA34 was not a license area under the Forestry Act 1959. 11. The clearing of the vegetation in paragraph 6 destroyed that vegetation, within the meaning of Schedule 3 of the Forestry Act 1959. 12. The destruction of that vegetation was an interference with forest products within the meaning of that term in Schedule 3 of the Forestry Act 1959. 13. In breach of section 39 of the Forestry Act 1959 Michael Vincent Baker: (a) Cleared the vegetation as particularised in paragraph 6, save and except to the extent of the area identified as proximate to GPS waypoints 147 56J 0251313 7181910, 153 56J 0251425 7181820 and 163 56J 0251422 7181892 which was a clearing along an internal fence line running from the western boundary of FEA34 in a general west-east direction for approximately 100 metres from the western boundary of “Chess Park” and forms part of the area described in Charge 2 of the complaint; (b) Did not have: i. a lease, license, permit, agreement or contract granted or made under the Forestry Act 1959, the Land Act 1994, the Mining Acts, the Geothermal Act or the GHG Storage Act; or ii. a permit to light a fire on a license area under the Fire and Rescue Service Act 1990, section 65; for the clearing of vegetation particularised in paragraph 6; (c) Thereby destroyed that vegetation, within the meaning of Schedule 3 of the Forestry Act 1959; and (d) Thereby interfered with forest products within the meaning of that term in Schedule 3 of the Forestry Act 1959. 14. Mr Baker was not a person to whom section 39(2) of the Forestry Act 1959 applied. I, Brian Arthur Conway Smith further say that the matters contained in Charge One of the complaint came to my knowledge on 18 February 2013. [80] As is evident from paragraphs 6 and 7 of this charge, specific areas of unlawfully cleared land were identified by narrative description. Paragraph 6(e) of the complaint also refers to an overview map: in that case Map C. This map shows the areas comprised in each charge as pink areas, referred to in the proceedings a polygons or charge polygons. Map C identified the charge polygons on a satellite image upon which was superimposed boundaries of the DSF, FEA 34 and Chess Park. Those boundaries were taken from Digital Cadastral Database (DCDB) maintained by DNRM. Map C in A3 format is included in Exhibit 17. [81] Charge 5 is an example of the form in which offences against s. 54 were pleaded: On a date or dates unknown in the period between 29 March 2012 and 12 December 2012 at “Chess Park” in the Magistrates Court District of Maryborough in the said State MICHAEL VINCENT BAKER interfered with forest products on any land reserved for or dedicated to public purposes, namely the road reserve passing through the Dyngie State Forest, otherwise that: -- 35 of 242 -- 36 (a) under the authority of any other Act or law; or (b) under the authority of and in compliance in every respect with the requirements of a permit, lease, license, agreement or contract granted or made under the Forestry Act 1959; contrary to sections 54 and 88 of the Forestry Act 1959. Particulars That at the place and time aforesaid: 1. Michael Vincent Baker (Mr Baker) was registered owner of a parcel of land called “Chess Park”, being Lot 5 on WK207 and situated at 16555 Redbank Road, Eidsvold in the State of Queensland. 2. “Chess Park” had, contained entirely within its boundaries, an area of land set apart and declared a state forest under the Forestry Act 1959, called the Dyngie State Forest, and described as State Forest 49 on Crown Plan FTY1194 (Dyngie State Forest). 3. Dyngie State Forest was owned by the State of Queensland. 4. Dyngie State Forest contained a road reserve as provided on Crown Plan Number WK207. 5. The road reserve contained forest products, within the meaning of that term in Schedule 3 of the Forestry Act 1959 being: (a) Living vegetable growth; (b) Dead vegetable growth; (c) Standing timber; and (d) Fallen timber; 6. No person may deal with forest products on the road reserve unless: (a) under the authority of any other Act or law; or (b) under the authority of and in compliance in every respect with the requirements of a permit, lease, license, agreement or contract granted or made under the Forestry Act 1959. 7. The road reserve: (a) Was cleared between approximately GPS waypoints 267 56J 0254826 7182316 and 271 56J 0254930 7182243; (b) Was cleared to a width of approximately 37 metres wide between approximately GPS waypoints 270 56J 0254912 7182211 and 271 56J 0254930 7182243; (c) Was cleared from approximately south of GPS waypoint 276 56J 0255738 7181479 to approximately GPS waypoint 279 56J 0255941 7181033; (d) Was cleared to a width of approximately 31 metres between approximately GPS waypoints 278 56J 0255970 7181044 and 279 56J 0255941 7181033; (e) Was cleared at the approximate places marked Charge05_a, Charge05_b, Charge 05_c, Charge 05_d and Charge 05_e on the attached overview map marked C; (f) Had, on it, along the length of the clearing, piles of cleared vegetation including timber stacks which had been pushed by mechanical means. 8. The cleared areas particularised in paragraph 7 were identified as proximate to the following Global Positioning System (GPS) waypoints: -- 36 of 242 -- 37 (a) 267 56J 0254826 7182316; … [paragraphs (b)-(i) comprise further GPS waypoints] 9. Included in the piles referred to in paragraph 7(e) was timber suitable for milling and habitat timber. 10. There was no authority, permit, lease, license, agreement or contract granted Michael Vince Baker or made under the Forestry Act 1939 for the interference with forest products particularised in paragraph 7. 11. Mr Baker did not have authority under any Act or law to interfere with forest products particularised in paragraph 7. 12. In breach of section 54(1)(b) of the Forestry Act 1959 Michael Vincent Baker: (a) Cleared the vegetation as particularised in paragraph 7; (b) Did not have an authority or a permit, lease, license, agreement or contract under the Forestry Act 1959 for the clearing of vegetation particularised in paragraph 7; (c) Did not have an authority under any other Act or law for the clearing of vegetation particularised in paragraph 7; (d) Thereby destroyed that vegetation, within the meaning of Schedule 3 of the Forestry Act 1959; and (e) Thereby interfered with the forest products within the meaning of that term in Schedule 3 of the Forestry Act 1959. Contrary to the Acts in such case made and provided. Complaint 2 [82] The second complaint (Complaint 2), articulated 13 offences against s. 578(1) SPA alleged to have occurred during various periods between August 2011 and March 2013. It was sworn on 24 December 2013. Given the issues raised by the appellant, it is necessary also to set out an example of the form in which charges in Complaint 2 were articulated. [83] A sufficient example is Charge 1. It provided: Charge One On a date or dates unknown in the period between 30 May 2011 and 7 September 2012 at “Chess Park” in the Magistrates Court 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. Particulars That at the place and time aforesaid: 1. Michael Vincent Baker (Mr Baker) was a registered owner of a parcel of land called “Chess Park”, described as Lot 5 on WK207 and situated at 16555 Redbank Road, Eidsvold in the State of Queensland. 2. “Chess Park”: (a) Was, in the period 17 March 2011 to 15 July 2011 a Grazing Homestead Freeholding Lease (GHFL) described as Grazing Homestead Freeholding Lease 32/2051; and (b) Since 15 July 2011 was freehold land. -- 37 of 242 -- 38 3. “Chess Park” had, on its western boundary, and within its boundaries an area totalling 213.2 hectares being a forest entitlement area under the Land Act 1994 and described as FEA34 on WK219 (FEA34). 4. “Chess Park” was subject to FEA34 as provided on Crown Plan Number WK207. 5. Development is assessable development within the Sustainable Planning Act 2009 (SP Act) if it is the clearing of native vegetation on freehold land or land subject to a lease, license or permit under the Land Act 1994 unless the clearing is, relevantly, clearing or for another activity or matter mentioned in schedule 24, part 1 or clearing mentioned in schedule 24 part 2 of the Sustainable Planning Regulation 2009 (Regulation). 6. The development consisted of operational work being the clearing of native vegetation on the land comprising “Chess Park”. 7. “Chess Park” was cleared: (a) in the period between 30 May 2011 and 7 September 2012; (b) in a total area of approximately 65.4 hectares; (c) in areas at the approximate place marked Charge01 A and Charge01B on the attached overview map B; (d) in an area running to the north of FEA 34 along the western boundary of “Chess Park” and around the north western corner boundary of “Chess Park” and along the northern boundary of “Chess Park” within the area comprising “Chess Park”; (e) in an area running approximately parallel to the area in (c) approximately 100 metres inside the boundary of “Chess Park” within the area comprising “Chess Park”; (f) at the approximate places marked Charge01 A_a, Charge01A_b, Charge01B_c, Charge01B_d, Charge01B_e, Charge01B_f, Charge 01B_g, Charge01B_h and Charge01B_i on the attached closed upmap marked B3; (g) of native vegetation all of which was classified as remnant vegetation. 8. The clearing was undertaken by mechanical means. 9. The clearing was not clearing or for an activity or matter mentioned in schedule 24 part 1 or clearing mentioned in schedule 24 part 2 of the Regulation. 10. No exemption pursuant to Chapter Seven, Part 3 Subdivision 2 of the SP Act applied to the development. And it is stated that the matter of complaint in this complaint came to the knowledge of the Complainant on 18 February 2013. [84] As is evident from paragraph 7 of this charge, specific areas were again identified by reference to maps, in this case Map B and Map B3. Like Map C, Map B showed the charge polygons for each charge on a map of the same kind as Map C. Map B in turn incorporated three more detailed maps of the same kind: Maps B1, B2 and B3.8 [85] Each of the other charges in Complaint 2 are in substantially the same form as Charge 1, differing only in identification of the relevant area and dates. [86] Paragraphs 9 and 10 of the charge contain averments which negative the exemptions, exclusions and conditions in Schedule 24 and s. 578(2)(b) SPA respectively. The 8 Exhibit 17. -- 38 of 242 -- 39 validity of that form of pleading is challenged by the appellant.9 For convenience, the general averment relating to Schedule 24 will be referred to hereafter as the First Blanket Averment and the averment relating to s. 578(2)(a) SPA will be referred to as the Second Blanket Averment. Complaint 3 [87] The third complaint (Complaint 3), articulated two offences alleged to have occurred during in the periods 25 April 2013 to 30 June 2013 and 27 May 2013 to 4 August 2013 respectively. Complaint 3 was sworn on 24 April 2014. These offences were designated Charge 32 and Charge 33. Charge 32 alleged another offence against s. 39 Forestry Act in FEA 34 and Charge 33 another offence against s. 54 in relation to the road reserve. [88] Charge 32 was in substantially the same form as Charge 1 in Complaint 1, set out in paragraph [79] above. Charge 33 was set out in substantially the same form as Complaint 1 of Charge 5 set out in paragraph [81] above. [89] Both Charges are pleaded by reference to Map A which is also included in Exhibit 17. Complaint 4 [90] The fourth complaint (Complaint 4) is concerned with SPA offences only. It articulates 26 offences against s. 578(1) SPA alleged to have occurred during various periods between May 2011 and March 2014. It was sworn on 28 July 2014. [91] These charges are in substantially the same form as Charge 1 of Complaint 2 set out in paragraph [83] above. The charge polygons relating to the charges in Complaint 4 are also identified in Map A and, depending on where they appear, in Maps A1, A2 or A3 respectively. THE TRIAL Overview of the prosecution case [92] A broad summary of how the prosecution went about the task of proving the charges is necessary. At the trial (amongst other matters) the prosecution: (a) Had to prove in each case that native vegetation protected by the particular statute had been cleared at the times and in the locations alleged for each charge; and (b) Had to exclude the exemptions and exclusions potentially applicable under the statutory regime for each charge. [93] This simple statement masks the complexity of the task before the prosecution. The difficulties of proof included: (a) How to prove that clearing of vegetation had occurred as and when alleged, and in the locations on the ground alleged by reference to the boundaries of each tenure; (b) For the SPA offences, how to prove that native vegetation had been cleared in those areas; and 9 See from paragraph [253] below. -- 39 of 242 -- 40 (c) How to prove the negative propositions which had to be established to exclude the various exceptions and exclusions relating to each of the two categories of offence. [94] Further, from at least January 2016, the defence had taken the position that no admissions would be made. The defence insisted on strict proof of the offences. The prosecution sought to meet its burden of proof by adopting the following overall approach. [95] The prosecution led evidence of various Forestry Officers who visited the relevant areas and observed the clearing on the ground and dealt with the appellant. The most extensive evidence was from Mr Smith, the principal investigator and complainant. His attendances were also relevant to the limitation issues. This evidence was relied upon to prove the fact and extent of the clearing, but was not the sole evidence relied upon in that regard. Rather, the prosecution also relied on mapping and satellite imagery and data. It relied on: (a) Remote sensing images taken over the relevant periods showing the relevant areas. These images largely comprised satellite images. Those images were proved under the facilitative evidentiary provision contained in s. 131 Survey and Mapping Infrastructure Act 2003 (Qld); (b) The Digital Cadastral Database (described from paragraph [733] below) which purported to identify the boundaries of Chess Park, the DSF, the FEA 34 and the road reserve for the purposes of superimposing the location of the clearing areas onto the location of the tenures in question; and (c) Maps made under the VMA which mapped categories of vegetation under that Act including the PMAV for Chess Park and the regional ecosystem maps covering Chess Park. [96] That mapping and imagery required interpretation and analysis to be understood. That interpretation and analysis was carried out largely by Mr Goulevitch. To facilitate interpretation and analysis, Mr Goulevitch utilised a GIS computer program called ArcGIS. The program permitted the integration of all of the geographical information. The integrated data (seemingly referred to at trial as the ArcMap database) could then be viewed in different formats using an application called ArcReader.10 The integrated data was used in a variety of ways. Notably: (a) Mr Goulevitch created a series of maps presented as part of a PowerPoint document using information contained in the ArcMap database.11 The maps were used to seek to prove the clearing in each of the relevant areas at the relevant times. (He also created the maps attached to the complaints in Exhibit 17). As part of this process, Mr Goulevitch relied on his expertise in interpretation of satellite imagery to conclude that various forms of clearing had been undertaken at various identified times; and (b) Mr Goulevitch also integrated various GPS co-ordinates recorded by other witnesses (notably Mr Smith and Mr Dillewaard) into the database and prepared interactive packages in ArcReader showing those GPS co-ordinates along with the other spatial data and photographs taken by witnesses: see 10 Trial Day 4, page 34, lines 34 – 44. 11 Trial Day 4, page 42. -- 40 of 242 -- 41 Exhibits 23 (Mr Smith) and 35 (Mr Dillewaard). This was used to assist in the presentation of the evidence in chief of those witnesses. (c) Maps were also created using that program based on satellite imagery of the fires in Chess Park in 2011 which were used by Mr Tran in giving evidence on certain bushfire management issues. Maps were also created to assist in the presentation of other aspects of Mr Tran’s evidence. [97] Third, the prosecution sought to demonstrate that the vegetation cleared in the charge polygons was remnant vegetation of a least concern regional ecosystem by reliance on evidence of Mr Dillewaard, its expert botanist and the regional ecosystem maps. Mr Dillewaard’s evidence went beyond opining that the vegetation cleared in each charge polygon would have been native vegetation. He gave evidence of his opinion as to whether the vegetation in each case was remnant vegetation of a least concern regional ecosystem. That evidence was based in part on inspection of particular charge areas and in part on other evidence, particularly the satellite imagery and the existing regional ecosystem maps which he updated. [98] Fourth, both the Forestry Act and SPA contained numerous exemptions, exceptions, provisos and conditions. It can be seen from the examples in paragraphs [79], [81] and [83] above that the complaints were in a form which arguably engaged s. 76 Justices Act (to the extent that section applied). However, the relevance of and applicability of s. 76 is contentious in a number of respects in the appeal. [99] In any event, reliance was not expressly placed on s. 76 at trial. Rather, the prosecution led evidence to exclude the potential application of the exemptions and exclusions. [100] The prosecution tendered certificates given by relevant Directors-General negativing the existence of certain exemptions and exclusions. In particular: (a) The Director-General of the Department of National Parks, Sport and Racing executed a certificate under s. 95(e) Forestry Act (reliance on this certificate by the prosecution in final submissions was contentious in the appeal: see from paragraph [495] below);12 (b) The Director-General of the Department of Infrastructure, Local Government and Planning executed a certificate under s. 623 SPA as to the non-existence of a relevant development permit. [101] In addition, the prosecution tendered evidence relied upon as sufficient to negative the exemptions or exclusions. The decision of whether to lead such evidence, and how much, on a particular exception or exclusion appeared to be informed by the issues which the prosecution apprehended were likely to be contentious at trial, and the possibility of such exception or exclusion arising on the evidence as a whole. [102] One of the matters most extensively dealt with (being the main theme of the correspondence from Mr Baker in Exhibit 40) related to, in broad terms, the scope of permitted clearing for bushfire management. This was an understandable focus of prosecution evidence. Much of the correspondence which passed between Mr Baker and various government officers prior to the commencement of the proceedings was concerned with clearing for bushfire management purposes, particularly after the fires which affected Chess Park in September 2011. That correspondence is in 12 Exhibit 14.15. -- 41 of 242 -- 42 Exhibit 40 and is summarised in a schedule of 38 pages attached to the prosecution’s General Outline produced at trial and referred to in paragraph [112](a) below. [103] Evidence was also led from lay witnesses relating to this topic and others from Mr Mossman (the local fire warden) and Messrs Aslin, Stumer, Reinke and Sparrow, departmental officers who had some dealings with Mr Baker in relation to clearing to address fire risk prior to the proceedings. [104] The prosecution also led evidence from Mr Tran, who was presented as an expert in bushfire management and ecology. He gave evidence that related, in broad terms, to the reasonableness of the clearing which had occurred from the perspective of bushfire management. [105] The prosecution also directly addressed the native forest practice exemption by evidence from the witnesses who had been on Chess Park from time to time, with a view to establishing that there was either no native forest practice being undertaken or that if there was, it was not consistent with the relevant code. [106] As already noted, the defence led and called no evidence. The course of evidence [107] The prosecution provided a written opening which, amongst other things, set out the relevant statutory provisions and a summary of how the prosecution intended to prove the case. [108] The witnesses gave evidence and were cross examined as set out in Annexure A to these reasons. The trial was primarily concerned with the evidence of Mr Smith (about two days), Mr Goulevitch (about five days), Mr Dillewaard (about four days) and Mr Tran (about three days). [109] Much of the evidence of those witnesses was taken up with examination in chief in which each witness: (a) First gave evidence in relation to general matters relating to the nature and scope of their evidence; and (b) Second, gave evidence in relation to each of the 46 individual charges. [110] Cross examination of Mr Smith and Mr Dillewaard took about two hours, Mr Tran a bit over half a day and Mr Goulevitch about a day. The parties’ submissions at trial The written submissions The prosecution [111] Both parties made extensive written submissions to her Honour at the conclusion of the trial. [112] The prosecution provided the following written submissions, in addition to its written opening: (a) A “General Outline of Submissions” of some 39 pages summarising the evidence of the witnesses and making submissions as to the reliability of that evidence. That included a summary of those parts of the correspondence in Exhibit 40 relevant to the prosecution case; (b) A submission on limitation period issues; and -- 42 of 242 -- 43 (c) Four specific submissions, one for each complaint, addressing the detailed evidence relevant to each of the charges in that complaint. [113] The prosecution contentions were: (a) That the prosecution witnesses, particularly Mr Smith and the three experts, should be accepted; (b) None of the charges were statute barred; (c) The evidence sustained the particular charges in each case, relying on identified evidence from each relevant witness in respect of that charge; and (d) All relevant exemptions and exclusions were excluded on the evidence. The defence [114] First, the defendant contended that the Court could not be satisfied that some undiscovered or undisclosed permit or authority did not exist that may provide a defence to some or all of the charges.13 [115] Second, the defendant contended that, on various alternative premises, some or all of the charges in each of the complaints was statute barred.14 [116] Third, the defendant challenged the evidence of Mr Goulevitch (though in only brief terms). It was submitted that Mr Goulevitch should not be treated as independent because he was employed by the State. It was also submitted that when excluding cleared areas on the basis of exemptions and exceptions, he did not consider the native forest practice exemption or the “location of buried polyurethane water pipelines”.15 [117] The defendant also challenged Mr Goulevitch’s evidence insofar as he identified categories of clearing other than “total” clearing such as “heavy parkland clearing” or “light parkland clearing”. The defendant contended such forms of alleged clearing were not “clearing” as pleaded in the complaints and, it seems, did not comprise conduct which attracted the offence creating provisions. There was also criticism of the so-called “lowest common denominator” approach to identifying areas of remnant vegetation.16 [118] Fourth, the defendant challenged the evidence of Mr Dillewaard (but only insofar as it was said not to exclude the possibility that the native forest practice exemption applied to some charges).17 [119] Fifth, there was a significant challenge to Mr Tran’s evidence.18 The gravamen of that complaint was that: [170] In summary, the Defendant submits in respect of the evidence of Tran whether characterised as that of an expert or not is that: his opinions and conclusions arrived at from a desktop analysis of the fire weather conditions and therefore the intensity of fires on Chess Park at the relevant times differ in substantial and relevant aspects from that of Mossman who gave direct evidence to the contrary of Tran; his underlying premise that the Defendant’s fire plan consisted of clearing large fire breaks/lines and 13 Defendant’s trial submissions at paragraphs 30 – 33. 14 Defendant’s trial submissions at paragraphs 79 – 83. 15 Defendant’s trial submissions at paragraphs 127 – 129. 16 Defendant’s trial submissions at paragraphs 16 – 22. 17 Defendant’s trial submissions at paragraph 130. 18 Defendant’s trial submissions at paragraphs 134 – 171. -- 43 of 242 -- 44 relying on large volumes of water is a wrong premise and any opinion or conclusions based on that premise must also be wrong; his idealised fire plan for Chess Park was developed without fundamental information and is of little practical use to the Court and of no practical use to a landholder. [171] Tran’s opinions and conclusions are improbable with regard to competing evidence and other considerations. No inference should be made in respect of the guilt of the Defendant of any of the charges before the Court on the basis of Tran’s evidence. [Underlining in original] [120] Sixth, the defendant contended that various limbs of the essential management exemptions in the SPA had not been excluded. In particular, the defendant contended for a construction of that definition (and its incorporated definitions) which gave a wide meaning to the terms “infrastructure” and “imminent risk”.19 This construction was relied upon to contend, on a charge by charge basis, that the prosecution had not excluded the essential management exemption in many instances. [121] Seventh, the defendant contended in respect of the SPA offences that the prosecution had not excluded the native forest practice exemption.20 [122] Finally, the defendant addressed each charge individually, identifying the particular evidence relied upon to sustain the defence to that charge. The specific submissions referred back to the main arguments advanced by the defendant noted above: in particular that one or more of the native forest practice point, limitations point or essential management point justified acquittal on the particular charge. The addresses [123] The addresses occurred on 17 August 2016, following delivery of the written submissions. The addresses were relatively short. The prosecution address focused on the issues specifically raised by the defence submissions. [124] In summary, Mr Hunter QC (who appeared with Ms Dann for the respondent at trial and on this appeal): (a) On the parkland clearing issue, submitted that the form of clearing proved was within the scope of the complaints and met the requirements of the offence creating provisions;21 (b) On the limitations issue, submitted that on the proper construction of the statutes and the evidence, all complaints were sworn within time;22 (c) Met the criticisms of Mr Goulevitch;23 (d) Met the criticisms of Mr Tran;24 (e) On the essential management issues, submitted that they did not answer any of the charges;25 19 Defendant’s trial submissions at paragraphs 190 – 225. 20 Defendant’s trial submissions at paragraphs 226 – 277. 21 Trial Day 22, page 10, lines 3 – 21. 22 Trial Day 22, pages 11-19. 23 Trial Day 22, pages 19-20. 24 Trial Day 22, pages 20-24. 25 Trial Day 22, pages 26-34. -- 44 of 242 -- 45 (f) Dealt with the native forest practice issue;26 (g) Contended that the defendant erred in relying on SPA exemptions and exceptions in answer to Forestry Act offences;27 (h) Otherwise relied on the written submissions in respect of the individual offences. [125] Mr Sheridan (who appeared for Mr Baker) addressed at length on the limitation issues.28 The argument was that: (a) Knowledge for the purposes of the relevant limitation statutes was knowledge of Messrs Reinke and Opperman even though they were not the complainant; (b) Alternatively, the proceedings should be stayed because Messrs Reinke and Opperman and others conducted themselves so as to extend the limitation period by delaying charging then handing the matter to Mr Smith; or (c) Alternatively, Mr Smith had knowledge for the purposes of the limitations provisions at a time which led to most of the complaints being out of time. [126] Mr Sheridan then turned to his criticisms of Mr Tran’s evidence. He referred, amongst other things, to: (a) The defect in the form of that evidence given its non-compliance with relevant rules of the UCPR; (b) The theoretical and irrelevant nature of the idealised fire plan; and (c) The lack of proper appreciation by Mr Tran of the circumstances of Chess Park arising, amongst other things, from his lack of understanding of the activities on the land and the fact that he had not inspected the property in person.29 [127] He briefly addressed on: (a) The scope of the imminent risk limb of the essential management exception;30 and (b) The lack of sufficient evidence to exclude the native forest practice exemption.31 [128] Like Mr Hunter, Mr Sheridan baulked at taking her Honour through the submissions on each of the individual charges. He did, however, address briefly his written submission that the kinds of clearing adopted by Mr Goulevitch short of total clearing were not provided for in the statute. [129] Mr Hunter briefly replied on an aspect of the limitations issue.32 Conviction, reasons and other orders [130] Her Honour stated that Mr Baker was found guilty on all charges on 18 November 2016 and gave short ex tempore reasons dealing with the main issues. There is a 26 Trial Day 22, pages 34-38. 27 Trial Day 22, pages 38-41. 28 Trial Day 22, pages 54-68. 29 Trial Day 22, pages 68-72. 30 Trial Day 22, pages 73-74. 31 Trial Day 22, pages 74. 32 Trial Day 22, pages 77-78. -- 45 of 242 -- 46 debate in the costs appeal about whether her Honour’s conduct on that date meant she was functus officio thereafter and had no power to order costs. [131] The matter was then adjourned for mention, ultimately, to 24 November 2016. On that day, her Honour published her written reasons of some 823 paragraphs (the Reasons) which were consistent with her finding of guilt on all charges. Mr Hunter asked that her Honour not make formal orders until the question of costs were dealt with. No contrary submission was made by Mr Sheridan. Her Honour directed submissions be filed on costs, sentence and statutory restoration and listed the matter for further hearing on 27 and 28 February 2017. [132] The matter ultimately came on for further hearing on 20 March 2017. On that date, her Honour began by informing the parties that she had identified some errors and omissions in her Reasons. She stated the necessary corrections in Court and published revised Reasons of some 840 paragraphs taking in those corrections (the Revised Reasons). The alterations to the Reasons comprised the recording of some conclusory findings consistent with the Reasons and formally stating the fact of conviction where that had been overlooked. There is a suggestion in the appellant’s submissions that her Honour did not have power to make those corrections. Nothing is said to turn on the difference in the two sets of reasons for the purposes of the conviction appeal.33 As nothing is said to turn on the difference, these reasons will also refer to the Reasons. That seems to be the basis upon which the parties acted in this appeal in drafting submissions. [133] On 20 March 2017 her Honour convicted Mr Baker on all charges and imposed a single penalty of $276,000. She also ordered a restorative payment under the Forestry Act of $17,471.01. She also allowed the prosecution’s application for costs, in the process rejecting the contention that she was functus officio on 18 November 2016. The costs ordered were substantial, totalling in excess of $650,000. Convictions were recorded. The appeal [134] On 19 December 2016, Mr Baker filed an appeal against conviction. It might be debated as to whether an order convicting Mr Baker had been made at the time the Notice of Appeal was filed given the matters discussed in the previous section of these reasons, though nothing seems to turn on this issue in the conviction appeal. On 18 April 2017, Mr Baker lodged his appeal against sentence and costs. [135] Submissions were filed by both parties. They are voluminous. The Chief Judge gave leave to amend the Notice of Appeal on 7 March 2018 in the form exhibited to an affidavit of Thomas Allan.34 No amended Notice of Appeal was actually filed, apparently on the basis that the leave operated on the form of document exhibited to the affidavit. An amended Notice of Appeal was filed at my direction on 5 September 2018. 35 It is clean document which does not show the amendments. [136] The appeal was optimistically listed for hearing for three days commencing on 11 April 2018. It was evident by the end of the first day of hearing that the appeal would not be heard within three days. The conviction appeal was adjourned part heard. It 33 Appellant’s Part 1 submissions at paragraph 70. 34 Court Document 11 filed in the Appeal 35 Court Document 28 filed in the Appeal. That version omits the deletions from the original Notice of Appeal. -- 46 of 242 -- 47 was completed over four further sitting days starting 27 August 2018. I ordered that the sentence and costs appeals be adjourned until after the conviction appeal had been determined. THE TRIAL JUDGE’S REASONS [137] Her Honour first set out the background to the various areas and title and then summarised the effect of the four complaints in a manner consistent with my own summary (which is based with gratitude on her Honour’s summary). It is therefore not necessary to set out this part of the Reasons. Her Honour then made two general observations: Overview: Rights of the Land Owner [20] It can be inferred from the Defence case that this matter may be an icon for the right of a land holder to clear his property and to protect assets from being affected by fire by clearing it of trees and vegetation as a particular land owner saw fit. It is not. Without a doubt fires are a dangerous feature of the forests and bush areas and are not to be underestimated. Extensive evidence was given about bush fires, their management and control by an expert witness, Mr Cuong Tran. This matter concerns whether legislation which applies to all citizens has been contravened by Mr Baker. The Ultimate Question [21] The ultimate question tor the court is whether the prosecution have proved beyond a reasonable doubt that Mr Baker has breached the provisions of the FA and the SPA as alleged and whether the prosecution has excluded beyond a reasonable doubt defences available to Mr Baker for breaches of the FA and that whether the Prosecution proved beyond a reasonable doubt that the clearing on the leasehold and the clearing on freehold areas are not exempt as assessable development. The limitations issue and Mr Goulevitch’s evidence [138] Her Honour then rejected the submission that the complaints should be struck out because of the language used in the prosecution submissions which were critical of the defendant’s conduct and motivation. That matter does not arise on the appeal. [139] Her Honour then dealt with the limitations issue. She set out the relevant statutory provisions then made the observation by way of aside, that: [37] The Prosecution have proved by way of evidence from witnesses and by evidentiary aids that the Defendant did not have permits to conduct any of the clearing. I accept that evidence. I do not accept the submissions that there may be some permits that the Prosecution overlooked. [140] Her Honour then returned to the limitations issues. In rejecting the defendant’s contentions, she reasoned as follows. Her Honour started by holding that in applying the references in the limitations provisions to knowledge, only Mr Smith’s knowledge was relevant: Reasons [38] to [41]. That conclusion is not challenged on appeal. She then referred to authority dealing with the meaning of knowledge as follows: [42] The issue of what amounted to “knowledge” was considered in Woods v Beattie ex parte Woods. The Court held that: “This is essentially a question of fact the resolution of which is not advanced by judicial exegesis to substitute another set of words -- 47 of 242 -- 48 for the ordinary language used in the subsection. The critical word used is “knowledge” which, in the context, bears a meaning different from a bare allegation”. [Footnote omitted] [141] After identifying the swearing dates of the four complaints, her Honour turned to consider the circumstances of the investigation and the knowledge of Mr Smith from time to time. [142] Her Honour first dealt with the period up to when clearing at Chess Park was referred to Mr Smith for investigation and he was initially briefed by other departmental officers. She made the following findings: [46] On 16 August 2012 Forestry Officers Messrs Opperman and Reinke were in FEA 34 as part of their duties, when each observed extensive clearing in FEA 34. They noted the clearing continued south into the freehold part of Chess Park. They reported the matter to their superiors. Around that time there had been a departmental reorganisation, and the division of the Forestry arm of the Department of Environment Resource Management ("DERM"), was separated and merged with another department, Department of Agriculture and Fisheries. There were no investigative staff within the Forestry department for that area or even within DERM for that area. [47] Mr Wayne Sparrow from Queensland Parks and Wildlife visited Chess Park on 11 November 2012 in company with Mr Baker. The purpose of the visit was to inspect the boundaries of the DSF. Queensland Parks and Wildlife are responsible for the “custodial” of State forests while Forestry is responsible for the commercial aspect. Therefore Queensland Parks and Wildlife are responsible for the approval of fire permits and approval is given under certain circumstances taking into account a number of matters including the degree of moisture in the vegetation. In any event when Mr Sparrow made his visit he saw clearing in the DSF. [48] His evidence was clear that he was unsure about a number of aspects of it and he referred the matter to his superior Mr Peter Wright. It can be said conclusively at this stage, that Mr Sparrow was in no position to start proceedings against Mr Baker. He simply did not have the knowledge to do so. [49] His evidence was that he and/or his supervisor contacted Forestry and learned there were concerns and the matter was ultimately referred for investigation. In return the matter came to Brian Conway Smith an officer of DERM who was not from that area but from the northern part of the region in Rockhampton. He is the Complainant. [50] The matter was referred to him on 23 November 2012. He then made some desktop investigations and found the owner of the property. He met with the Forestry Officers Messrs Opperman and Reinke on 30 November 2012. The Forestry Officers showed Mr Smith a map where they said the clearing had occurred, and they provided him with photographs and told him that the owner of the property did not have the relevant permits. [51] I specifically find that Mr Smith did not acquire sufficient knowledge to start any proceedings at that point. That is for a number of reasons. Firstly it is unlikely that the Forestry Officers themselves had sufficient knowledge given the dates of the clearing. Their visit was in August 2012. In relation to count 3, the clearing at that stage had not started, and in relation to counts 4 and 5 had not ended. -- 48 of 242 -- 49 [52] Neither of them knew the “specific facts that constituted the elements of a particular offence"36 in relation to counts 1 and 2, although they had observed the clearing and knew there was no permit for that clearing. They had never seen anything like it. It was not minor clearing but something “you could land a 747 on” said Officer Reinke. [53] It is the knowledge of the Complainant that is relevant not the knowledge of the persons who reported the matter to the Complainant even if their positions were official positions within the relevant department. While there is no doctrine of constructive knowledge on the facts they simply did not know enough in any event. [54] The Complainant is Mr Smith and it is his knowledge and when he acquired it that is relevant. He did not acquire it because the matter, even if it was of some substance, was referred to him for investigation. [Footnotes from her Honour’s Reasons retained] [143] Her Honour’s findings reveal that any awareness of potentially unlawful clearing prior to Mr Smith commencing his investigation relates only to areas in the DSF and FEA 34 observed by other officers in the course of other duties. That finding was not challenged. (However, the appellant does contend that Mr Smith had relevant knowledge of all bar one of the Complaint 1 charges from his first meeting on 23 November 2012.) [144] Her Honour then deals with the first visit of Mr Smith to Chess Park in mid-January 2013 (the January 2013 visit) in the following terms: [55] After the meeting on 30 November 2012 Mr Smith wrote to the owner, Mr Baker, telling him an investigation was taking place and he later wrote advising Mr Baker that he would be visiting the property on 15, 16 and 17 January which he did. [56] In January Mr Smith visited a number of places where clearing had occurred on Chess Park including in the FEA and the DSF and other areas on the freehold. This was the first of three visits to the property that Mr Smith made as part of his investigations and location of cleared areas, but it is his first visit which is relevant for the question of knowledge. He ascertained the position and took the extent of the clearing by noting waypoints on his GPS and by taking photographs at almost every waypoint. He took eight photographs at these waypoints starting at the north and continuing through the north-east, east, south-east, south, south- west, west and north-west. [57] At that time in January Mr Smith knew that extensive clearing had occurred. He knew the owner of the property but he did not know when the clearing had occurred and he knew there had been a recent change of ownership in April 2011. He referred the matter to Mr Bruce Goulevitch. Mr Smith said he did not know ''the when or the who”. [145] It was contended at trial that the commission of certain of the offences contained in Complaints 1, 2 and 4 came to Mr Smith’s knowledge during the January 2013 visit. (This was persisted with on appeal for certain charges in Complaints 1 and 437). The locations visited by Mr Smith during the January 2013 visit and his other visits in November 2013 (the November 2013 visit) and April 2014 (the April 2014 visit) were recorded by Mr Smith using a GPS. Those locations and the photographs he took were presented in an ArcReader package prepared by Mr Goulevitch which 36 Witheyman v Van Riet [2008] 2 Qld R 587. 37 See from paragraph [390] below -- 49 of 242 -- 50 incorporated other relevant mapping and geospatial data. Mr Smith’s ArcReader package was Exhibit 23 in the proceedings. [146] Mr Goulevitch having been introduced to the narrative at that point, Her Honour turned to considering Mr Goulevitch’s evidence as a whole. The manner in which her Honour dealt with his evidence is challenged on appeal. She said: [58] Mr Goulevitch is a principal scientist employed by the Department of Science Information Technology Innovation. I am indebted to Counsel for the Prosecution for an accurate summary of his evidence. It was not challenged and I accept it in its entirety. [59] Mr Goulevitch is a licenced surveyor and expert in the interpretation of remotely sensed imagery to detect and monitor changes in landscape management practices. He reviewed lot 5 on plan WK207 which he understood to be a property known as Chess Park, and area known as SF49 on FTY1194 which he knew to be the Dyngie State Forest and an area being FEA34 on WK219 which he knew to be Forest Entitlement Area 34. He also looked at the road running through the middle of Chess Park and the Dyngie State Forest called Lone Pine Redbank Road. He had reference to the landsat series of satellites which is Queensland Governments regular aerial photo capture program and collects imagery over the entire state every 16 days. [60] The imagery is publicly available. He used landsat 5, landsat 7 and landsat 8. The landsat images on interpretation can show an area which is normally vegetated shown as green, an area which is white will be bare earth, and area which is pink will be bare earth with some moisture or other land cover types over it. [61] Vegetation clearing is determined by comparing two consecutive images through time using software to flicker or jump between the images with the human eye being drawn to any change. Mr Goulevitch also had reference to the ALOS prism imagery generated from JAXA which is the Japanese space agency that controls the satellite and distributes the imagery to companies around the world to on-sell. [62] He excluded any area which was shown on any relevant map as a non- remnant area, adopting a lowest common denominator approach to the assessment of areas which were cleared. He developed a classification system to describe the different types of clearing that he observed on the imagery being: (1) Thick woody vegetation clearing commonly known as broad scale clearing. This describes the biggest change in vegetation where the trees were fairly close together. (2) Open woody vegetation clearing, if the trees are more scattered but most have been cleared; (3) Light Parkland clearing where trees have been kept but the understorey shrubs and other ground layer have been cleared or affected in some way; (4) Heavy Parkland clearing where some trees have also been cleared with the shrub layer; and (5) Thinning where one or both layers have been thinned in the vegetation. [63] He excluded natural damage, storm related damage, locust plagues for causing the clearing. He saw evidence of fire in all areas where the fire went through but within a very short time after the fire the canopies could be seen to be still alive. -- 50 of 242 -- 51 [64] His opinion that for the vast majority of charges against the four complaints, the areas have been cleared by mechanical means. There are some areas that had been thinned and in the very light Parkland areas it may not be mechanical. Mr Goulevitch relied upon the digital cadastral database (DCB) as well as the original survey plans and the waypoints identified by Mr Smith. Mr Dillewaard visited the property at a later date. [65] The DCB does not authoritatively delineate the boundaries of the property but the accuracy statement for Chess Park DCBD boundaries was plus or minus five metres. For these proceedings Mr Goulevitch adjusted the DCB western boundary of Chess Park to coincide with the existing fence line. That meant moving the boundary for DCBD by about 12 metres in some places and many places it was less than one metre. [66] Because of the width of the clearing on the western boundary as well as the 10 metre fence line exemption that Mr Goulevitch allowed he could be confident that the cleared areas were actually on Chess Park and not on the neighbouring property. He gave evidence by way of example of complaint 2 charge 3 which is an area on the western border of Chess Park south of the FEA. This issue with respect to the DCBD did not affect the mapping of anywhere else on the property. [67] He used a graphical information system (GIS) versions of the regional ecosystem maps including the updated version prepared by Mr Dillewaard (who was the botanist who visited Chess Park in 2013) to identify the various areas where clearing had either been done or was permissible. He used the lowest common denominator approach so that the charge polygons for the SPA/VMA charges only include areas that definitely contained remnant native vegetation and did not include areas that were plainly the subject of exemptions under the Sustainable Planning Regulations. [147] As her Honour stated, she adopted that summary from the submissions of the prosecution, though with some variations to most paragraphs. Her Honour’s observation that that summary was not challenged was substantively correct, though there were some limited criticisms of Mr Goulevitch’s evidence at trial.38 [148] Her Honour then returned to the limitations issue. She said: [68] The results of Mr Goulevitch's analysis were delivered to Mr Smith on 13 August 2013 and Mr Smith swore Complaint 1 with the averments on 17 August 2013. [69] The Defence's submission is that Mr Smith gained the relevant knowledge at the latest in January 2013 when he visited the property and assessed the clearing. In addition the Defence says that because Mr Smith gained the requisite knowledge in January, Complaint 2 sworn on 24 January [sic December] 2013 is outside the statute times. The Defence further says Mr Smith should have seen the clearing alleged in Complaint 4 when he visited in January 2013 and says it is out of time as sworn on 24 June 2014. [70] That submission has no substance. It was never put to Mr Smith that he saw the clearing and some of the clearing occurred long after January 2013. [71] The allegation about Complaint 2 is as I understand it, because Mr Smith gained the requisite knowledge on 30 November 2012 it is out of time but I have found he did not gain the knowledge then. If the latest date for the gaining of the requisite knowledge is February 2013, Complaint 2 is sworn within time in terms of the SPA. 38 See [116] to [117] above and the Defendant’s trial submissions at paragraphs 127 – 129. -- 51 of 242 -- 52 [72] The only issue for the court is did the time begin to run from January 2013. [149] Her Honour then considered Witheyman v Van Riet [2008] 2 Qd R 587, and concluded that it stood for the proposition that: [74] Witheyman v Van Riet is authority for the proposition that whilst a complainant need not know the identity of the Defendant to have “knowledge” for the purposes of a limitation period, the Complainant does need to know of “specific facts that constitute the elements of a particular offence at a particular place and within a particular period”. [150] On that basis, her Honour concluded that Mr Smith did not have knowledge of the alleged offence until August 2013 when Mr Goulevitch provided him with his GIS analysis, which told Mr Smith when the offences were committed. Her Honour explains as follows: [82] The reality is that the Prosecution was presented in meticulous detail starting with the evidence of Mr Smith and his visit to Chess Park on the three days in January and on his other visits and the provision of photographs from Forestry Officers and from him that presented the extent and nature of the clearing. The court was provided with the opportunity to appreciate the arduous task of gathering evidence in matters where extensive clearing of vegetation has occurred on a large property, where the element of forest products and assessable development has to be proved, when numerous exemptions are available, and can apply, and must be disproved; where there was been recent change in ownership; where there has been change in status in the land tenure and where the legislation may change over periods of time. [83] None of these matters were known with any certainty by Mr Smith in his visit in January 2013; but most importantly the Complainant did not know when the clearing had been undertaken and this could not be determined until spatial analysis had been carried out. [84] The gap in Mr Smith's knowledge relating to ''the when” as he put it, is overwhelmingly important. Mr Smith did not refer the results of his measurements taken during his visit in January to Mr Goulevitch to discover the owner of the property, even though establishing the dates when the clearing had occurred coincidentally enabled certain identification of the ownership of property, subsequent to the change of ownership in 2011. The dates of clearing were more important than that. [85] As described above, Mr Goulevitch's work was not directed towards ascertaining the owner of the property even though the timelines established conclusively that the present owner, Mr Baker, was the owner at the time of the clearing. [86] A crucial aspect of the Complainant's knowledge was when offences had been committed. On a basic level a Defendant if accused of an offence, is entitled to know when the offence has been committed. There had been changes in tenure over the time of the clearing. Once Mr Goulevitch was able to advise the end date for the clearing of the charges, particularly 3, 4 and 5 as September and December 2012, Mr Smith was able to know that he could swear a complaint within 12 months from the end date of the clearing. Mr Goulevitch's evidence provided accurately the extent of the clearing that could have been. [87] Therefore, it was the information given to Mr Smith, the Complainant, by Mr Goulevitch in August 2013 which gave him the knowledge “of specific facts that constitute the elements of a particular offence at a particular place and within a particular period and Mr Smith gained the requisite knowledge to start the complaints at that time. -- 52 of 242 -- 53 [88] As for charges 1 and 2 it was never put to Mr Smith that he falsely swore the averment but on the basis that I have attempted to set out he gained knowledge only in August 2013 and Complaint 1 is sworn within time. [89] It is crucial for an owner of property to know when alleged clearing occurred as I have said, but particularly so with offences against the FA where persons are being charged with interference with forest products which are the property of the Crown. [90] After he received information from Mr Goulevitch, the Complainant was only then in the position to initiate proceedings to allege clearing of areas in relation to Complaint 1. In relation to Complaint 2, the Complainant had another year from 17 August 2013 to institute proceedings pursuant to the SPA. I have already said that on submissions in respect of Complaint 4 being out of time are “without any foundation”. [91] Finally, there is no evidence or any suggestion that Forestry Officers, Messrs Reinke and Opperman delayed investigation either deliberately or negligently. All the evidence is quite to the contrary and that the matter was referred to Mr Smith for investigation in a timely manner and all assistance given to him by the Forestry Officers. [151] Her Honour then dealt with the issue of Mr Baker’s responsibility for the clearing which was observed by Mr Smith, Mr Goulevitch and others. Under the heading “the Prosecution Case”, her Honour observed: [92] There is no other rational inference to be drawn than that the Complainant carried out the clearing on all areas as alleged. He made no admissions about any specific area of clearing, but it was his property during the relevant time and perusal of the correspondence between him and various governmental officers indicate that he intended to clear the property for various reasons including making the property working property and protecting it from fire. [93] Although Mr Baker engaged in correspondence with the various Departmental officers and at length, he did not ever apply for permission to clear vegetation on Chess Park and he did not ever claim exemptions. [94] He conducted the clearing by interference with forest products on Crown Land and on the leasehold and freehold and he waited for the clearing to be discovered and measured and assessed. In his correspondence he invited an injunction advised he would not read Section 39 and to had no intention of doing so at his age and foresaw that he would be in court in some capacity either as Plaintiff or Defendant. He proceeded to clear areas of Chess Park in the face of advice from Departmental officers and from the Rural Fire Warden, Mr Mossman. [152] Her Honour then referred to some evidence of Mr Mossman, the Rural Fire Warden. His evidence concerned conservative fire management processes which her Honour observed related to whether exemptions for the clearing (presumably those relating to clearing for bushfire management) had been proved. Her Honour’s consideration of Mr Dillewaard’s evidence [153] Her Honour then considered Mr Dillewaard’s evidence. She began with the following comment: [98] Mr Dillewaard is a botanist and holds the position of principal botanist for the Queensland Herbarium. He gave expert evidence of great value to the court. It was not challenged and I accept it in its entirety. His evidence was that Mr Smith asked him to provide a detailed assessment of the regional ecosystem mapping associated with lot 5 on plan WK207 in the parish of Dyngie including identifying whether there were areas that -- 53 of 242 -- 54 contained remnant and non-remnant vegetation. He personally visited Chess Park on 26 to 29 November 2013 although he did not go to every area that Mr Goulevitch identified as a charge polygon. While at the property in November he took some GPS waypoints for Mr Goulevitch. [154] Again (bearing in mind the attacks on her Honour’s reasons), that observation was broadly correct, though there were challenges to Mr Dillewaard’s conclusions in a number of respects, mostly focused on his evidence relating to native forest practice issues.39 [155] Her Honour then again largely adopted the summary of his evidence from the prosecution submissions as follows: [99] His opinion as to the vegetation that would have been present on areas which are cleared based on reviewing similarity of signatures on imagery, consideration of landform, geology and soils information and where he has visited a site to data he measured immediately adjacent to a site or investigation of a stock pile. [100] His evidence was that vegetation stratifies itself into tall trees, short trees, shrubs and a ground layer. The predominant strata is the one that contributes to the most biomass to the particular vegetation community, which, in eucalypt dominated communities in Queensland relates to the tree layer typically. There is a further layer called emergent which are trees which for unknown reasons grow to be much taller than the rest of the community. T1 refers to the predominant canopy that is the tallest layer, T2 to the small tree layer, SI to the shrub layer and G to the ground layer. [101] The Tl layer on Chess Park is typically the spotty gum, the rusty gum, the narrow leaf iron bark, the silver leaf iron bark and poplar box. In the T2 there is generally bull oak. In the shrub layer there are generally wattles and minor species. On the ground there are generally mixed grasses, herbs and forbs. In his desktop assessment Mr Dillewaard had reference to Version 6.0b and 8.0 of the Herbariums numbering of vegetation mapping. [102] In the predominant there were only native species, the woody vegetation was native. He made his assessment of the character of the vegetation which had been cleared by reference to a number of consideration being similarities on signatures on imagery, where the landform, geology or soils information is not obviously different, an assessment of vegetation immediately adjacent to some of the cleared areas and investigation of some of the remaining pods of vegetation and further review of imagery particular areas under stereo imagery. [103] Each regional ecosystem has a unique identification number which identifies the bioregion, the land zone and the vegetation community which is found within that particular regional ecosystem. [104] The vegetation on Chess Park is essentially eucalypt woodlands to open forest. He measured the heights of trees during his field investigation using a digital hypsometer. [105] The average height of the vegetation communities was around 22 to 23 metres with the highest about 27 to 28 metres. This was a maximum that he saw. Nothing in the stock piles that he saw or measured was higher than what he had noticed. 39 Defendant’s trial submissions at paragraph 130 and in respect of some specific charges. -- 54 of 242 -- 55 [106] Typical species across the property were iron barks, gum top boxes, spotted gums and river red gums. [107] There are only three categories of remnant native vegetation, least concern, of concern and endangered. It is not possible to have remnant native vegetation that does not fall within one of those categories. When he located areas in his site visit which he considered non-remnant but were mapped as remnant he changed them to nonremnant. Areas he considered remnant but were mapped as non-remnant he changed to remnant. [108] The bull oak species are in the T2 layer. Where he observed these trees had been removed in the woody layer or shrub layer there was no regeneration. Bull oak is a long lived species, he said, which tends to regenerate more from seed. Its response to fire is essentially through regeneration by seed growth. It is long lived and a slow growing species. [109] The community in the way point 47 to 49 transect included a small tree layer and a shrub layer. These layers were missing in the transect from waypoints 44 to 46. They had been totally removed and put in piles. The species in the sub canopy were 10 to 12 metres high. [110] The removal of the sub layers is usually done to promote the ground layer from a grazing potential that is a general reason why people either clear, fell or take out various parts of the structure of that community. [111] Studies of eucalypt show that at greater than 30 years the trees are still not the height to replace the trees that may die in the predominant canopy. It takes decades. No clearing of the eucalypt community has achieved remnant status within 30 years. Nowhere at any place at any time during the period he spent on Chess Park did he see somewhere where both the shrub layer and the sub canopy layer had been destroyed by fire. [156] On this occasion, her adoption of the summary was not expressly stated (though it might reasonably have been inferred from her acceptance of his evidence “in its entirety”). Her Honour’s consideration of Mr Tran’s evidence [157] Her Honour then turned to the evidence of Mr Tran. Her Honour summarised his evidence as follows: [112] Mr Cuong Tran gave evidence over a number of days. His evidence was very important because it was he who gave evidence about essential management as it related to clearing to protect the property from fire. I accept he was an expert witness. [113] Mr Tran presented as a thoughtful, learned and careful witness who has had vast experience and expertise in the field of bushfire ecology and management. He holds an honours degree in science, in plant biology and is qualified in the field of bushfire management. He is currently a PHD candidate having submitted a thesis on the topic of the evolution of flammability of Australian native plants. Throughout his career he has worked in the field of fire ecology and is currently the national science lead in bushfire services manager with ten rivers formerly transfield. [114] He is responsible for the management for 2.9million hectares of bushfire prone land on behalf of the Department of Defence. He is also responsible for area transversed by a coal seam gas pipeline that runs from Chinchilla -- 55 of 242 -- 56 to Curtis Island and he has published widely in the field of bushfire management. [115] His evidence was not the subject of contradiction from many other experts nor were the bases for his opinions undermined. [116] Giving his evidence he was [sic] relied on fire data from the Northern Australia fire information web service from the Bureau of Meteorology and he had regard to the work undertaken by Messrs Goulevitch, Dillewaard and Smith. He presented fire scar maps that depict the fire activity across Chess Park and neighbouring properties at various times during the period within which this matter is concerned. [117] There were a series of maps that Mr Tran prepared as idealised means of managing fire across Chess Park. [118] His significant evidence was there was in fact no point in having a fire trial [sic] that is bigger than 10 metres. CSIRO studies have shown that a six metre fire trial [sic] will arrest between 50 to 90% of fires of moderate intensity. If a fire is of greater intensity than moderate it cannot be attacked directly and embers and spot fires will negate the effectiveness of the fire trail of any width. [119] He said the type of clearing that he saw had been done on Chess Park was something he had never seen before in his professional career. [120] Mr Baker had been issued fire permits to light fires but Mr Tran was not able to link them to any recorded fire activity on the property. [121] Not only had Mr Tran not seen the extent of such clearing before for fire prevention, the wide areas of clearing posed problems in that they would need to be maintained, they would be extremely resource heavy and cost prohibitive exercise. In any event the extent of the clearing was not commensurate with a bushfire risk. [122] In terms of a situation if Mr Baker had limited assistance to fight fires on his property. He said that did not justify wider fire breaks. “My experience with places like forestry where we were able to fight fires two of us were able to pull up fires and save 400 hectare block quite safely. It all comes down to knowing your country, knowing how fires behave and move in the landscape. To be able to come up with some strategies to arrest even moderately intense fires”. [123] Concerning the clearing on the coal seam gas line he said it was excessive. His own management of the Chinchilla CSG pipeline involved 10 metre wide fire break along the pipe itself which he said “is enough to manage the bush fire risk along thousands of kilometres of pipeline to Curtis Island”. [124] He said the dam in the FEA was poorly sited for fire-fighting purposes with only one means of access or regress. It was much larger than required and its steep sides would make access by a fire-fighting vehicle difficult. [125] He said it was not sensible to manage fire on Chess Park by simple reliance on clearing and a lot of water. Plant burn should be part of the management strategy. [126] By way of summary he described what had been done on Chess Park in these terms “the type of clearing and both the extent and size of the clearing is something that I have not seen before in my professional career. So in Defence, the maximum area that we would clear for a perimeter of fire trail is 20 metres and they are typically around explosive ordinance depots. So this is where the Defence stores the bombs and ammunition prior to loading them on to tanks and planes. So we'll always have their – their exceptional circumstances where 20 metre wide clearings are utilised and that's consistent regardless of your location with -- 56 of 242 -- 57 Defence so in some of these areas where the clearing is beyond 20 metres is – I've never seen that in my life. [127] Typically most fire trials [sic] are never more than five, six metres wide - almost across most of the State and we manage about 3000 kilometres of fire trails on behalf of Defence each year. Furthermore the parallel clearing is something I've not seen before in my life either”. [128] He gave evidence that he did not know about any assistance available to Mr Baker or what assistance he could expect from the Rural Fire Brigade but he said no Rural Fire Brigade would have the resources to provide fire suppression for the areas they cover. That is why a landholder needs a well prepared bushfire management plan. [129] He said whilst he understood Mr Baker's intention with respect to the clearing “most of the work that has been undertaken in relation to mechanical removal of vegetation is well beyond what is required for a cohesive integrated bushfire management plan for that part of the land”. [130] There were existing tracks and large already cleared areas. Mr Tran did not know the details of fencing or the number of stock being grazed on Chess Park but his fire management plan was designed to facilitate better production values and in doing so read the guide provided by DAFF in 2007 which was available to Mr Baker at the relevant times. It was entitled “Maximising Productivity in Spotted Gum/Iron Bark Forest”, which is the predominant vegetation on Chess Park. [131] Although the evidence given by Mr Tran was criticised in some respects, it was not contradicted. [132] His reliance on data from the Bureau of Meteorology weather station at Miles was challenged but there was no evidence that it was not an appropriate use of data and in the end was only comment. [133] I accept his evidence in its entirety about the clearing undertaken by Mr Baker on Chess Park as being unsuitable for the management of bush fire for the many reasons he advances including the suitability of an alternative plan and the ongoing need imperative [sic] to monitor and prepare for the possibility of fire. [158] Mr Tran’s evidence was challenged at trial.40 Her Honour expressly did not accept those criticisms undermined the basis of his opinions. He reasons in this regard were mostly taken from prosecution submissions but as will be seen, contained a number of additional paragraphs. The Forestry Act offences [159] Her Honour then turned to considering the evidence on the specific offences under the Forestry Act contained in Complaint 1 and Complaint 3. Her Honour began with an analysis of the most directly relevant parts of the Forestry Act. It was not challenged and does not have to be set out. [160] As already noted, there were seven Forestry Act offences charged. After her general observations, her Honour considered each of the charges individually. As foreshadowed in Reasons [144], her Honour adopted the prosecutions submissions in respect of Complaints 1 and 3 in Reasons [145] to [179]. The consequence of her Honour’s adoption of the prosecution submissions in the specific charges had the result that her reasons did not directly engage with the submissions made by the 40 See paragraph [119] above and the defendant’s trial submissions at paragraphs 134 – 171 and in respect of some specific charges. -- 57 of 242 -- 58 defendant in writing on these charges.41 Those submissions raised two substantive points in respect of each charge in Complaints 1 and 3: (a) That the charge was statute barred; and/or (b) That the clearing was within the scope of parts (c) or (e) of the essential management exemption in Part 2 Item 4 SPA Regulations. [161] Her Honour had already dealt with both propositions; as to the former see [148] to [150] above and as to the latter, see Reasons [139] where her Honour concluded that the Schedule 24 exemptions do not apply to areas regulated by the Forestry Act. No challenge to that conclusion of law is raised on appeal. By adopting the prosecution’s submissions, however, her Honour dealt with the potential defence under s. 63 Forestry Act (even though it was not raised by the defendant) and was plainly conscious of its potential application: see Reasons [137]-[141]. The SPA offences: general [162] Her Honour first set out the statutory schemes which inform s. 578 SPA. Her Honour set out the statutory schemes in largely the same manner as [35] to [71] above. [163] Her Honour then made the following general findings about the VMA issues: [236] As is apparent from the provisions, there are five categories of land pursuant to a PMAV – A, B, C, R and X. The definitions for each category are not entirely straightforward, however it suffices to say that there is a PMAV for Chess Park, which came into existence on 11 August 2010, and contains areas shown as category X, but none shown as category B. [237] To the extent that any clearing occurred in the category X areas on Chess Park, it has not been charged. [238] The PMAV refers, itself, to the regional ecosystem maps. The maps, in this case, contain areas which are shown as remnant vegetation. All of the clearing charged in Complaints 2 and 4 is clearing in those areas. [239] Practically, in this matter, the alterations in the system for maps effected on 2 December 2013 produce no material change in the relevant legal concepts. The critical points are: (a) At all material times for Complaints 2 and 4, there were maps covering the vegetation on Chess Park made under the VMA: a PMAV and a regional ecosystem map (which was subsequently replaced by a remnant vegetation management map); (b) The relevant maps showed areas of Chess Park which comprised of remnant vegetation, typically as “least concern regional ecosystem”; (c) The areas charged in Complaints 2 and 4 are only those which fall within this framework. [Footnotes omitted] [164] Her Honour then turned to the question of exemptions which might apply. She observed: [242] Certain exemptions under SPA apply to all charges in Complaints 2 and 4, and must be excluded beyond reasonable doubt. 41 Defendant’s trial submissions at paragraphs 278 – 368. -- 58 of 242 -- 59 [243] The exemptions do not apply to the charges under the Forestry Act. [244] With respect to the exemptions set out in Schedule 24 SPR 1. No part of Chess Park had been declared pursuant to section 19F of the VMA to be of high nature conservation value or vulnerable to land degradation. 2. No land management agreement existed to land degradation. 3. No area management plan pursuant to section 20J of the VMA was ever in force with respect to Chess Park during the period the subject of the charges. 4. A PMAV existed for Chess Park that identified some category X areas, but no category B. None of the charged clearing took place in category X areas which are the “white” areas on the PMAV. 5. A regional ecosystem map existed for Chess Park and the area surrounding it. The areas which clearing took place are categorized as containing remnant vegetation and are typically within a least concern regional ecosystem. 6. The vegetation cleared was native vegetation, and therefore vegetation to which the VMA applies. 7. In particular no “forest practice”, as defined, was being conducted. Mr Dillewaard's evidence was instructive and persuasive in addition, as well as Mr. Smith, other experienced officers visited Chess Park over the time of the charges, although no person vested every part of Chess Park. [165] From [245] her Honour deals with the defendant’s contention that the forest practice exemption had not been excluded. Her Honour’s analysis extends over Reasons [245] to [261]. The rejection of the defendant’s argument that the forest practice exemption had not been excluded was not directly challenged on appeal, though it was contended that her Honour gave insufficient reasons for doing so. [166] Her Honour then made the general observation that: [262] Most of the exemptions are not available or have been excluded by evidence of searches and admission in evidence because of the application if statutory of Evidentiary aids as proof of matters. [167] Her Honour then grappled with the propositions advanced by the defendant which were summarised in [120] above as to the scope of the meaning of the words “imminent” and “infrastructure” in the essential maintenance exception. Her Honour held: [263] In respect of all the charges on Complaints 2 and 4, “imminent” has its ordinary meaning, Mr Stumer gave evidence that he advised Mr Baker of the meaning in the legislation, which was consistent with its ordinary meaning. The word “imminent” does not require a special definition the meaning is perfectly clear. If the risk described was not meant by the legislation to be “imminent” other words would have been used. [264] For all the charges, a fence road or vehicular track is excluded in the legislation in the definition of essential management for clearing for establishing or maintaining a necessary firebreak. [265] For both complaints, although the definition of infrastructure includes “land” the word is used in the context of “facilities", services and works used for supporting economic activity and meeting environmental needs.” There is nothing in the evidence to raise any suggestion that the clearing related to land in the context, or in any sense. Any reference to clearing -- 59 of 242 -- 60 of land to protect “land", in terms of “essential management", or at all, is excluded. [168] Her Honour then dealt with some further issues which were not raised on appeal. [169] Her Honour concluded her general remarks as follows: [272] The word “imminent” does not require a special definition. The meaning of “imminent” is perfectly clear. If the risk described was not meant by the legislation to be “imminent” other words would have been used in the legislation. In any event Mr Stumer advised Mr Baker about the meaning of “imminent” in clear terms. [273] Because there are so many charges relating to so many areas of clearing, I have addressed every charge in Complaint 2 and 4 and have adopted the submissions from the Prosecution in relation to each charge for clarity and I am indebted. [274] Essential management is the only realistic exemption and it has been conclusively dealt with by Mr Tran and I accept his evidence in relation to every charge in that respect. The SPA offences: consideration of each charge [170] Her Honour then turned to considering each of the individual charges in Complaints 2 and 4. As she foreshadowed, she adopted the submissions of the prosecution on the individual charges. Her Honour’s reasons on the specific charges again do not directly engage with the submissions made by the defendant in writing on these charges. Those submissions raised one or more of the following points in respect of each charge: (a) That the charge was statute barred; (b) That the prosecution had not excluded that the clearing was within the scope of Parts (c) or (e) of the essential management exemption in Schedule 24 Part 2 Item 2 SPA Regulations; (c) That the prosecution had not excluded that the clearing was within the native forest practice exemption; and/or (d) That the prosecution had not excluded that the clearing was within the routine management exemption. [171] The statute bar issues had already been dealt with. Her Honour had also already: (a) Made some observations on the scope of key concepts relied upon by the defendant in respect of the essential management exemption: at Reasons [263]- [265]; and (b) Made findings about the native forest practice exemption (see [165] above). [172] Again, there were individual points raised by the defendant in the course of advancing those arguments which were not directly addressed by her Honour as a consequence of adopting the prosecution submissions. However care must be taken in assuming that material points were not therefore addressed, given that many points raised by the defendant had as their genesis a common proposition which had been rejected elsewhere by her Honour: for example, the acceptance of Mr Tran’s evidence might be thought to have addressed the specific complaints about specific points of his evidence raised by the defendant in its specific submissions. (This observation applies equally to the individual points of detail raised in respect of the -- 60 of 242 -- 61 Forestry Act offences.) Further, many of the points were dealt with in the prosecution submissions which her Honour adopted. THE AMENDED NOTICE OF APPEAL [173] Notwithstanding the Chief Judge’s order, I asked the appellant to file the Amended Notice of Appeal as a standalone document. In the course of argument, the appellant abandoned certain points raised in the Amended Notice of Appeal and certain submissions made in the appeal. Those matters were set out in writing by the appellant.42 The Amended Notice of Appeal maintains the following grounds of appeal. Ground 1: Jurisdiction [174] Ground 1 is entitled as follows: “Lack of jurisdiction to convict in respect of charges for vegetation clearing offences in Complaints 2 and 4 (the Jurisdictional point)”. There are then two sub-grounds articulated. [175] Ground 1A states: The Magistrate erred at law as she lacked jurisdiction to convict the appellant in respect of each offence charged on Complaints 2 and 4 as each of the offences charged under [s. 578(1) SPA] were defective for want of essential legal and factual elements and disclosed no offence known to law. [176] This ground is particularised separately in respect of legal elements and factual ingredients. (a) As to the former, the appellant contends that the articulation of the SPA offences in Complaints 2 and 4 failed to articulate an offence known to the law because it did not include in the statement of the offence for each charge a statement that the assessable development was not development which fell within one or more of the various exclusions and exceptions relating to the offence under s. 578(1) SPA. (b) As to the latter, the appellant contends that if the offence did not have to be articulated in the way contended for to identify an offence known to the law, the same omission meant that the SPA offences as averred lacked “essential factual elements”. [177] Ground 1 then separately contends: The Magistrate erred at law as she lacked jurisdiction to convict the appellant in respect of each [SPA offence] as each [SPA offence was] made unlawfully, in breach of s. 68A(2)(c) and s. 68A(2)(d) [VMA] and s. 47(1) of the Justices Act 1886 and were defective for want of essential factual elements and disclosed no offence known to law. [178] The gravamen of this ground is that on the proper construction of s. 68A(2)(c) and (d) VMA, a valid complaint for a SPA offence: (a) Had to aver the category, type and number of regional ecosystem of the vegetation cleared (to comply with s. 68A(2)(c)); and 42 Concessions made + Submissions Abandoned by Appellant in the course of the hearing of Appeal, dated 5 September 2018 (court document 29). -- 61 of 242 -- 62 (b) Had to aver whether the vegetation was in an area of high nature conservation value or in an area vulnerable to land degradation (to comply with s. 68A(2)(d)). Ground 2: Lack of jurisdiction to amend [179] Grounds 2A and 2B contend that her Honour had no jurisdiction to amend Complaints 2 and 4 (as she did early in the trial). It was accepted that these grounds stand or fall on the resolution of the matters raised by Ground 1. Ground 3: Reasons [180] Ground 3 is in respect of all offences and is described as follows: “Inadequacy of Reasons and failure to discharge judicial function to evaluate the evidence”. [181] By Ground 3/1A(a) and (b) the appellant contends that her Honour erred by: (a) Her wholesale adoption of the prosecution submissions “by copying and pasting more than 80% of those submissions” and “wholesale rejection of the defendant’s submissions without giving adequate reasons”; and (b) By “simply finding the defendant guilty of all charges where the Magistrate was required to evaluate and positively believe and accept beyond reasonable doubt the evidence presented by the prosecution”. [182] Ground 3/1A(c) raises two further distinct points. (a) Ground 3/1A(c)(ii) contends that her Honour erred in accepting Mr Smith’s evidence as to the dates at which he had the requisite knowledge of the commission of the offences the subject of the statute bar contention. (b) Grounds 3/1A(c)(iii) to (v) contend that her Honour erred by accepting the evidence of Messrs Tran, Goulevitch and Dillewaard because their evidence in each case “had no probative value, was inadmissible and should have been accorded no weight”. Ground 4: Essential management exemption not excluded [183] Ground 4 relates only to the SPA offences and is described as follows: “Errors by the Magistrate in finding that the prosecution had proved beyond reasonable doubt that the so described ‘essential management’ exemption did not apply to the charged clearing…” [184] Ground 4/1A contends that her Honour misdirected herself by her finding in Reasons [273] that essential management is the only realistic exemption and that it had been conclusively dealt with by Mr Tran. It was said in the particulars that: (a) Her Honour erred by asking the wrong question: whether the exemption as “realistic”; and (b) Rather her Honour should have evaluated each exemption by reference to the evidence adduced to determine if it had been excluded beyond reasonable doubt. [185] Ground 4/1B contends that because her Honour asked the wrong question, she made three further errors: -- 62 of 242 -- 63 (a) First, the appellant contends her Honour erred in her approach to paragraph (a) of the definition of essential management in that: (i) Her Honour erred in her construing “infrastructure” in the definition of essential management as not including land used for economic activity; and (ii) Her Honour therefore erred in not considering whether the prosecution had excluded the relevant part of the essential management exemption on the basis of that construction and the fact that the September 2011 fire showed that the existing fire breaks were inadequate. (b) Second, the appellant contended that her Honour erred in her failure expressly to adopt a construction of the word “imminent” in paragraph (c) of the definition of essential management and therefore erred in finding that this limb of the definition had been excluded by the prosecution. (c) Third, the appellant contended that her Honour erred in concluding that the prosecution had excluded paragraph (e) of the definition of essential management (clearing necessary to maintain infrastructure) because there was a preponderance of evidence that the clearing was necessary for that purpose. [186] So far as I could determine, arguments were only advanced in respect of the first and second of these grounds. Ground 5: Limitations issues [187] Ground 5 is described simply as “Limitation ground: Complaints 1 and 4”. (a) Ground 5/1(a) contends that Charges 1, 2, 4 and 5 in Complaint 1 were brought after expiry of the limitation period in s. 88 Forestry Act. (b) Ground 5/1(b) contends that all charges in Complaint 4 were brought after the expiry of the time limit in s. 68(3) VMA. [188] The appellant advances three distinct contentions in relation to both grounds: (a) First, in particulars (i) to (iii), that her Honour erred in finding that Mr Smith had to have knowledge of when the offences were committed and who committed them, when all that was required was for the complainant to have knowledge of such information as to give him reasonable grounds for belief that an offence had been committed; (b) Second, in particulars (iv), her Honour erred in Reasons [68] to [70] rejecting the defendant’s submission that Mr Smith gained the requisite knowledge in January 2013 when visiting Chess Park because that was never put to him; and (c) Third, in particulars (v), her Honour erred in concluding in Reasons [88] that the averments in Charges 1 and 2 in Complaint 1 were conclusive in the absence of the defendant putting to Mr Smith “that he had falsely sworn the averments”. Ground 6: Forestry Act exemptions [189] Ground 6 relates to Complaints 1 and 3 and is described simply as “Forestry Act offences”. Ground 6/1 contends that her Honour erred in finding the Forestry Act -- 63 of 242 -- 64 charges proved because the prosecution did not establish beyond reasonable doubt that Mr Baker was not complying with the duty under s. 63 Forestry Act. APPEALS UNDER S. 222 JUSTICES ACT [190] Section 223 provides that this appeal is an appeal by way of rehearing on the original evidence unless leave is given to lead further evidence. No such leave was sought. A useful starting point in considering the character of the appeal is the statement in McDonald v Queensland Police Service [2017] QCA 255. There, Bowskill J, with whom Fraser and Philippides JJA agreed, said (footnotes omitted): [46] A failure on the part of a District Court judge, on an appeal under s 222 of the Justices Act, to conduct a rehearing is an error of law, which would warrant the intervention of this Court to correct an injustice. [47] However, in this case, the District Court judge did conduct the appeal appropriately, in accordance with law, by way of a rehearing, in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing. It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error. [48] It is clear, particularly from [14]-[18] of the decision below, that the District Court judge reviewed the evidence that was before the Magistrate, and formed his own view of it, leading to the conclusion that, in the challenged respects, he could see no basis to overturn the Magistrate’s factual findings – that is, could see no error in those factual findings, which would warrant allowing the appeal. [Underlining added] [191] The underlining emphasises the central place of identifying error in the appeal process. Other cases support the centrality of identification of error in an appeal by way of rehearing. A convenient starting point is Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 where Gleeson CJ, Gaudron and Hayne JJ said: 13. If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. 14. Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is -- 64 of 242 -- 65 required to exercise its powers whether or not there was error at first instance. [Underlining added] [192] In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ relevantly said: 22. The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. 23. The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. ... 25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. [Underlining added, footnotes omitted] [193] Those observations have particular weight in this case, where the trial judge had the advantage of observing witnesses whose credit was challenged (albeit expert witnesses) and, perhaps more importantly, had the opportunity to have the rather complex evidence presented in a coherent and logical manner during the course of the trial. Her Honour will have had an overview of the case developed over the 20 days of evidence which is difficult fully to replicate on a rehearing. Those considerations are reflected in statements such as that in Stevenson v Yasso [2006] 2 Qd R 150 at [162] that an appeal under s. 223 requires the Court to make its own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.43 [194] The next case to consider is Teelow v Commission of Police [2009] 2 Qd 489. In that case, Muir JA with whom Fraser JA and Mullins J agreed, made the following relevant observations, after citing s. 223 (footnotes omitted): [4] It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or 43 See also Commissioner of Police v Al Shakarji [2013] QCA 319 at [7] and note that at [65] White J affirms the requirement for error to be shown before proceeding to agree in the proposition at [7] of the judgment. -- 65 of 242 -- 66 discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance." On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal. [195] Other authorities also identify the necessity of identifying error in the decision below.44 Not only does identification of error provide the foundation for interfering in the judgment under appeal, it is also useful in a complex appeal for identifying (as noted in Fox v Perry) that part of the proceedings below which should be subject to particular scrutiny and reconsideration. GROUND 1: JURISDICTION (COMPLAINTS 2 AND 4 ONLY) Summary of the appellant’s position [196] The appellant’s submissions on the jurisdiction ground were voluminous.45 The broad propositions as I apprehended them are as follows. Ground 1A [197] A complaint which does not articulate the essential legal elements and factual ingredients of a statutory offence does not attract the jurisdiction of the Magistrates Court to hear and determine the complaint. The appellant contended that charges in Complaints 2 and 4 failed in that respect in the articulation of charges for breach of s. 578(1) SPA in the following ways. [198] First, the appellant contended that valid articulation of a charge under s. 578(1) required the charge to set out each item in Schedule 24 Parts 1 and 2 individually in the charge and expressly to state that the clearing of native vegetation identified in the charge was not within that item. The charges failed to do so: rather they dealt with the items in Schedule 24 by the First Blanket Averment. This was said to result in the failure of the charge to articulate the essential legal elements of the offence or, in the alternative, to articulate essential factual elements. [199] Second, the appellant contended that the valid articulation of a the charge under s. 578(1) required the charge to set out each of the exemptions stated in each of sections 584, 585 and 586 and expressly to state that the clearing identified was not within any of those provisions. The charges failed to do so: rather they invalidly dealt with those sections by the Second Blanket Averment. The appellant relied on this contention as giving rise to a failure of the charge to articulate essential factual elements of the offence. It was not relied upon as being relevant to the legal elements of the offence.46 [200] Third, the appellant contended that valid articulation of a charge under s. 578(1) required the charge expressly to refer to s. 342(3) SPA and to state that the clearing did not fall within that provision. (It will be recalled that s. 342(3) is referred to in s. 578(2)(b): see paragraph [36] above). The charges did not refer to that section at all 44 See also Osgood v Queensland Police Service [2010] QCA 242 at [20]; Tierney v Commissioner of Police [2011] QCA 327 at [26]; R v Ruthven [2013] QCA 142 Cf. Forrest v Commission of Police [2017] QCA 132. 45 Appellant’s Part 1 submissions at pages 22-34 with further submissions in Schedule 5 of some 30 pages. 46 Appeal Day 1, page 44. -- 66 of 242 -- 67 with the consequence that the charges failed to articulate the essential legal elements of the offence or, in the alternative, the essential factual elements. Ground 1 [201] As to Ground 1, the appellant contended that valid articulation of a charge under s. 578(1) which alleged clearing of native vegetation required all of the particulars referred to in s. 68A(2) VMA to be pleaded, failure to do so comprising a failure properly to plead the legal elements or alternatively, the factual elements of a charge under s. 587(1). [202] The appellant contended that the relevant complaints (Complaints 2 and 4) failed to include particulars required by s. 68A(2) in the following respects: (a) Contrary to the requirements of s. 68A(2)(c) that the particulars “describe the vegetation”: (i) Complaint 2 failed to include particulars of the class of regional ecosystem to which the vegetation belonged (i.e. least concern, of concern or endangered) and failed to include particulars of the particular regional ecosystem or systems to which the vegetation belonged; and (ii) Complaint 4 failed to include particulars of the particular regional ecosystem or systems to which the vegetation belonged. (b) Contrary to the requirements of s. 68A(2)(d), both complaints failed to include particulars of whether the vegetation was in a high nature conservation area or an area vulnerable to land degradation. Some general principles [203] A valid complaint is required to ground the jurisdiction of the Magistrates Court to hear and determine a complaint under the Justices Act. A complaint which fails properly to articulate an offence known to the law will be invalid and a conviction on an invalid complaint cannot stand.47 [204] The position at common law was authoritatively restated by the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [26] where the majority (Heydon J agreeing in this part of the majority reasons) held (footnotes omitted): The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney- General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offence, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for 47 Johnson v Miller (1937) 59 CLR 467 at 486; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 557. -- 67 of 242 -- 68 particulars. In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant's acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”. [Underlining added] [205] The underlined part of the above passage identifies two distinct matters which a valid charge must address: the identification of the legal nature of the offence charged and the identification of how the offence was committed. In applying these principles, it is helpful to recall the twin purposes to be served by the complaint identified by the above passage: (a) To inform the court of both the nature of the offence and the manner in which it had been committed; and (b) To inform the defendant of the substance of the charge which he or she has to meet. [206] The Justices Act also deals with the form and content of complaints. As to the former, the relevant provisions are sections 46 and 47(1) Justices Act which provide: 46 Description of persons and property Such description of persons or things as would be sufficient in an indictment shall be sufficient in a complaint. 47 What is sufficient description of offence The description of any offence in the words of the Act, order, by-law regulation or other instrument creating the offence, or in similar words, shall be sufficient in law. [207] Section 46 picks up s. 564 Criminal Code Act 1899 (Qld).48 That section relevantly provides: 564 Form of indictment (1) An indictment... must, subject to the provisions hereinafter contained, set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved, and as to the property (if any) in question, as may be necessary to inform the accused person of the nature of the charge. ... (3) It is sufficient to describe an offence in the words of this Code or of the statute defining it... [208] Section 564 requires the charge to address time and place of commission of the offence, the person aggrieved and the property in question. It does not seem to me that this is an exhaustive statement of the particulars which must be included in a charge under the Justices Act. Section 46 is concerned with descriptions of persons and things. Section 564 itself goes beyond those two considerations. In any event, I see no reason why s. 46 would confine the common law principles as to the requirements of a valid charge. It is important to note, however, that the section articulates the standard for particulars as being the particulars necessary “to inform the accused person of the nature of the charge”. Unsurprisingly, the Criminal Code provision reflects the approach in Kirk set out above. 48 Karimbala Construction Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56 at [26]. -- 68 of 242 -- 69 [209] Section 47 is a provision of long standing.49 As can be seen, s. 564(3) of the Criminal Code is in similar, form, though it does not include the alternative of stating an offence in “similar words”. Section 47 and similar provisions do not eliminate the requirement that a valid complaint articulate necessary factual matters. Rather, the provision specifies that use of the words which create an offence (or similar words) are sufficient to identify the legal nature of an offence charged.50 [210] Cases dealing with the legal nature of the offence charged have been concerned generally with the circumstance where the complaint (or indictment as the case may be) has diverged from the words used to create the offence. Venerable examples are given in Kennedy Allen.51 A more recent example relied upon by the appellant is Marshall v Averay [2006] QDC 356. That case also involved a situation where the complaint failed to use the words of the offence creating provision. McGill DCJ concluded that the words used in the complaint were not sufficiently similar to the words of the offence creating provision as to attract the operation of s. 47. [211] The appellant’s case is different from most of those other cases. Here, the respondent sought to use the words of the offence creating provision. Rather, the appellant’s complaint is that the description of the offence by the respondent in the complaints does not include all of the words which, on the proper construction of the SPA, comprise the description of the offence created by s. 578. The appellant’s contention is that “the description of the offence in the words of the Act creating the offence” include: (a) The words in s. 578(1) (which do appear in the SPA charges); (b) All of the words of the Regulations identifying the assessable development and exclusions from it in Schedule 24 Parts 1 and 2; and (c) The words in s. 578(2)(b). [212] This submission raises the question of how the expression “words of the Act … creating the offence” are to be applied to the offence contained in s. 578 SPA. Some light is cast on this issue by McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (No. 2) (2002) 54 NSWLR 39. In that case the Court was considering the validity of a summons in the following form, relevantly: On or about [date] at [place] [the appellant] committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute water contrary to s. 16(1) of the Clean Waters Act 1970. [213] The appellant contended that the summons failed to articulate the nature of the offence charged because it failed to articulate in the charge the act of polluting by the appellant. It was not in dispute that the summons omitted to do so. It was relevant whether the omission went to the identification of the legal nature of the offence or just to the essential factual ingredients because, in the circumstances of that case, an omission going to the legal nature of the offence could not be saved by the saving provisions. 49 According to WK Allen, The Justices Acts of Queensland (3rd ed, 1965, LawBook Co) it was taken verbatim from s. 39 of the English Summary Jurisdiction Act 1879 (see page 116). 50 Ibid; Kirk at [29]. 51 Allen, op cit, 117-122. -- 69 of 242 -- 70 [214] The Court of Criminal Appeal concluded that the omission was not one which went to the articulation of the legal nature of the offence. It held: [11] The charge in the summons alleged that the appellant “did pollute waters contrary to s 16(1)”. Particulars of the place and kind of pollution alleged were provided in the summons. Accordingly, the question in this appeal is whether the omission of an allegation detailing the act of polluting said to have caused the pollution renders the charge fatally defective so as to preclude the curative effect of s 43. [12] The answer to that question depends, in turn, on whether the act of polluting is a legal element of the offence or merely an essential factual ingredient thereof. That is because a charge that omits a legal element of the offence is incurable, whereas, by reason of s 43, a charge that lacks an essential factual ingredient of the offence may still be maintained. [13] The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed. But putting the difference in this way does not necessarily help in the differentiation process. [14] I think it helpful to note that the purpose of the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. If the charge does not allege an offence known to the law, the court has no jurisdiction and the charge must be struck out. [15] The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet: Stanton v Abernathy (1990) 19 NSWLR 656. Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients. [16] This case concerns a statutory offence. The elements of a statutory offence must be discerned from the relevant statutory provisions. In the present instance, these are ss 16(1) and (7a) of the Clean Waters Act. Section 16(1) provides: "A person shall not pollute any waters”. Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the Environmental Offences and Penalties Act 1989. [17] Significantly, the term “pollute", in relation to waters, is defined by the Clean Waters Act (s 5). The definition contains three paragraphs, each of which provides for a different meaning of pollute. Paragraph (a) provides, generally, that pollute means to introduce into waters any matter so that “the physical, chemical or biological condition of the waters is changed”. Paragraph (b) contains a complex definition that broadens the meaning of pollute so that it means (in summary form) to introduce into waters matter which alone or together with other matter makes or is likely to make the waters unclean, etc, detrimental to health of persons, undrinkable to farm animals or is likely to interfere with the enjoyment of rights. Paragraph (c) provides that pollute means to introduce into waters any matter that is -- 70 of 242 -- 71 of a prescribed nature, description or class that does not comply with a prescribed standard. The latter, in effect, is a deemed polluting. [18] It follows that there are several ways in which a person may pollute waters, namely, the ways defined in the statutory definition of “pollute”. That being so, it seems to me, by the language of the statute, the relevant legal element of the offence is the act of “polluting”, as defined, of waters. The particular way in which the defendant is alleged to have polluted the waters concerned will constitute the essential factual ingredients of the charge. [19] In Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 Gleeson CJ said at 83 that an offence of contravening s 16(1) requires the prosecution to prove that the defendant performed some act which resulted in waters being polluted (see also Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82). This, I think, is on the basis that the prosecution relies on “pollute” as defined in either one of paras (a) or (b). The need to prove these matters stems from the statutory definition of “pollute“. The existence of the need, however, does not convert these matters into legal elements of the offence. In my view, they are and remain essential factual ingredients of the legal element of “pollute” in the offence of contravening s 16(1). [20] Accordingly, in my view, the elements of the offence are: (a) a polluting; (b) by a person; (c) of any waters. [21] The charge alleges these three elements. Therefore, the language of the charge, on its face, describes an offence known to the law, namely, a contravention of s 16(1). The court is thereby vested with jurisdiction to hear the prosecution of that offence. [Underlining added] [215] This case is of considerable assistance. The propositions I derive from it are: (a) The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out and the essential factual ingredients concern the time, place and manner in which the offence was committed; (b) The purpose of the rule that requires the legal elements to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge; (c) The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet; (d) Consequently, legal elements are usually static, while factual elements vary from case to case; and (e) Where there are several ways in which a person may commit an act or omission contained in an offence creating provision, it is likely that the act or omission is properly characterised as a legal element, but the manner in which the act or omission occurs is a factual element. -- 71 of 242 -- 72 Ground 1A: Complaints 2 and 4 identify an offence known to the law The legal elements [216] The appellant’s submissions had a tendency on occasion to elide the distinction between legal and factual elements. However, I intend to address the issues separately, starting with the legal element issues. [217] The offence seemingly created by s. 578(1) is amenable to a similar simple statement of the elements of the offence as that articulated in paragraph 20 of the quote from McConnell Dowell above. The elements could be articulated as follows: (a) A person; (b) Must not carry out; (c) Assessable development; (d) Unless there is an effective development permit for the development. [218] The SPA charges contain each of these elements (though they also include many other matters). The respondent contends that this is all that is required for a valid charge of the offence contemplated by s. 578(1). [219] There is a beguiling simplicity to this submission. The appellant contends, however, that the legal elements of the offence go well beyond these four elements and that the balance of the charges do not address the deficiency. Two matters are relied upon. The exceptions in Schedule 24 Parts 1 and 2 [220] The appellant contends that valid articulation of a charge under s. 578 required the charge to set out each item in Schedule 24 Parts 1 and 2 individually in the charge and expressly to state that the clearing of native vegetation identified in the charge was not within that item. That was said to be necessary to identify the legal elements of the offence. [221] There are some preliminary observations to be made about this. [222] First, it is to be recalled that Schedule 24 Parts 1 and 2 contain the exceptions to the form of assessable development identified in Item 1 Table 4 in Schedule 3 to the Regulations (Item 1). Table 4 relevantly identifies as assessable development operational work that is the clearing of native vegetation on freehold, indigenous or Land Act land. (That kind of operational work is just one of 11 items in Schedule 3 Part 1 Table 4.) That multifaceted description of the operational work covered in Item 1 is itself subject to three exceptions: clearing which is on premises to which structure plan arrangements apply, along with clearing covered by Schedule 24 Parts 1 and 2. So it is only if the offence in question is committed by operational work of the kind identified in Item 1 (clearing native vegetation on one of the identified tenures) that the exceptions in Schedule 24 Parts 1 and 2 are relevant to the offence under s. 578 at all. [223] Second, it can be inferred that the appellant does not complain about a failure in the charges to articulate the operational work said to comprise the assessable development in question because the charges do identify it. Each SPA charge recites the terms of Item 1 and then avers that the development consisted of clearing of native vegetation on the land comprising Chess Park. -- 72 of 242 -- 73 [224] Third, if the appellant is correct in its contention that each item in Schedule 24 Parts 1 and 2 must be expressly articulated and excluded in the charge, this means that the “description of the offence in the words of the Act” will be a very, very long description. There are 37 individual items in Schedule 24 Parts 1 and 2, each of which would have to be referred to in describing the offence.52 That unwieldy result seems unlikely to have been Parliament’s intention for description of an offence. [225] Having made those observations, I now turn to the appellant’s contention. The appellant’s contention is shown to be incorrect by McConnell Dowell. As stated in that case:53 The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet...Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients. [Underlining added] [226] The underlined statement provides the answer to the appellant’s argument that the items in Schedule 24 Parts 1 and 2 are legal elements of the offence created by s. 578. [227] There are numerous ways that “assessable development” within the meaning of that expression in s. 578(1) can occur: the acts identified in Item 1 are just one of numerous alternative forms of assessable development contemplated by the SPA. It is to be recalled that there are at least 10 other Items of operational works in Table 4, without considering the other forms of assessable development dealt with in the Regulations. Thus, the identification of assessable development the subject of the particular charge as being Item 1 operational work is an example of one of the different sets of factual ingredients which can give rise to proof of the offence. It is the same circumstance as that applying to the word “pollute” in the statute considered by the Court in McConnell Dowell. Item 1 is in the nature of a (variable) factual ingredient not a constant legal element. A fortiori for the exceptions in Item 1 contained in Schedule 24 Parts 1 and 2, which are relevant only as exceptions to the form of assessable development identified in Item 1. [228] The appellant relied on DPP v United Telecasters Sydney Ltd (1989-1990) 168 CLR 594 in support of its contention.54 In my respectful view, that case was of little assistance on the question of the legal elements of an offence under s. 578. United Telecasters was concerned with where the onus lay in respect of an exclusion from the scope of the offence creating provision, not what was necessary for the valid articulation of that offence. The latter matter did not arise in that case and was not considered.55 In any event, nothing in United Telecasters provides an answer to the difficulty for the appellant’s contention identified in the previous paragraph. 52 See appellant’s conviction submissions at paragraphs 194 – 195. 53 (2002) 54 NSWLR 39 at [15]. 54 Appeal Day 1, page 2, line 25 to page 39, line 26. 55 United Telecasters at 600-601.8 especially at 600.9 -- 73 of 242 -- 74 Section 578(2)(b) [229] The appellant expressly accepted that s. 578(2)(a) did not identify legal elements of the offence. The basis of that concession appears to have been that the provisions in Subdivision 2 are all headed “exemption”.56 [230] However, he contended that the “description of [the] offence in the words of the Act” did include the words in 578(2)(b), and that the charges were invalid for failing expressly to allege that the development was not development under s. 342(3) SPA. None of the SPA charges contained such an averment. Consequently, if the appellant is correct in this contention, all of the convictions under the SPA were in respect of charges not known to the law and must be set aside. [231] The identification of the legal elements of a statutory offence involves a question of construction of the particular statute. Written submissions by the appellant on the particular question of construction were hard to identify, beyond reference to statutory provisions relevant to s. 342(3).57 [232] As I understood it, the oral argument focused primarily on the question of onus.58 The underlying assumption appeared to be that if the onus lay on the prosecution to negative the matter in 578(2)(b), then that matter was an element of the offence and had to be expressly excluded in the charge. I am not certain that that assumption is correct. While the question of onus and the question of identification of the legal elements of an offence will be related, they seem to me to be distinct. And the criminal law is familiar with those being distinct questions, the most obvious example being that the prosecution bears the onus of excluding defences under the Criminal Code, though such defences are plainly not part of the offences to which they can apply. Each case will depend on the statutory context and the terms of the particular offence creating provision. However, even if the appellant’s assumption is adopted, it does not assist the appellant because I do not think that on the proper construction of the sections the onus to exclude s. 578(2)(b) lies on the complainant. [233] The appellant relied on Vines v Djordjevitch (1955) 91 CLR 512. Again, this case was not concerned with identification of the legal elements of an offence. Rather, it was concerned with identification of where the onus of proof lay in respect of a proviso included in the statement of a statutory cause of action against the nominal defendant. The High Court construed the proviso as comprising a condition precedent to the statutory cause of action, and that the onus in respect of the proviso lay on the plaintiff. [234] The High Court dealt with that question at 518–519 as follows: The first question which arises in considering the correctness of this conclusion is whether the burden of proving facts amounting to a compliance with the proviso rests upon a plaintiff in an action brought under s. 47(1) against a nominal defendant. It is said that the form of the sub-section places the burden of disproof on the defendant. For the requirement of prompt notice after the injured party becomes aware of the impossibility of identifying the car inflicting the injuries is expressed in the form of a proviso. “There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not” - per Abbott J. in Steel v. Smith (1817) 1 B & Ald 94, at p 99 (106 ER 35, at p 56 Appellant’s Part 1 submissions at paragraph 185 and Appeal Day 1, page 44, line 18. 57 Appellant’s Part 1 submissions at paragraphs 162 – 166, 172 and 176 – 183. 58 Appeal Day 2, page 118. -- 74 of 242 -- 75 37). The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter... [Underlining added] [235] The appellant relied on the first underlined passage (or parts of it) as articulating a general principle applicable to the identification of the elements of an offence in a statute. I do not accept that that is strictly correct. Despite the general terms in which the Court spoke, it was concerned with a civil claim created by statute, not a criminal offence. However, it can be accepted that the question of whether an exception, proviso or condition is one of the elements of an offence is a question of construction of the particular statute, as was made clear in MacDonnell Dow above and Phillips v Spencer (considered below). It can also be accepted that the observations of the High Court can provide assistance in that process of construction in this case. [236] The appellant relied on Vines as supporting its construction of s. 578 in this way: MR ALLAN: ...But the significant part of this passage which the appellants rely on, we say, applies directly to section 342, subsection (3), and also in respect of the submissions we've made yesterday in respect of the elements of the offence – the legal elements of the offence in respect of schedule 24, part 1 and 2, yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. So in the case of the definition of “assessable development", what facts do you, your Honour, have to find in order to be satisfied of the complete factual situation to make out the offence? On the appellant's case, those facts, whether they be categorised as legal elements or as factual elements, must include whether or not the clearing activity was not one of the activities in schedule 24, part 1 and 2. And we say that the application of this principle, on a proper construction of section 578(1), applies with equal force to – although they are words of negative connotation, does not apply to the development carried out under 342(3). By application of that general statement of principle by the High Court - - - that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a -- 75 of 242 -- 76 right – that's not our situation – or incurs a liability under the provision, and we say that is our situation. And in that context we can readily distinguish applying that statement of general principle, the provision under consideration in Phillips v Spencer, which I'd like to take your Honour to now, if I may.59 [237] It is instructive to look at how the Court resolved the question of construction before it in Vines. The Court focused on the guiding principle articulated in the second underlined passage above and observed: But the operative words express a negative co-extensive with the affirmative imposition of liability in the main provision. In terms the proviso makes it incumbent upon everybody claiming under the main provision to give the notice and to do so as soon as possible after knowledge of the impossibility of establishing the identity of the car responsible for his injury. It is expressed as a statement of a further requirement to be fulfilled by all before the main provision can be availed of.60 [238] In my view, this approach supports the conclusion that s. 578(2)(b) is not an element of the offence. Consideration of the statutory context demonstrates that it is not a general pre-condition to all persons who might breach s. 578(1), but rather “denies the... liability in a particular case by reason of additional or special facts”, those fact being that the development is work which is being carried out after the expiry of the term of an otherwise effective development permit by use of security paid as a condition of the approval: see 346(1)(f) SPA. [239] It is convenient at this point to deal with Phillips v Spencer [2006] 2 Qd R 47. That case dealt with conviction of the applicant on his own plea under a provision creating criminal liability for him as a director of Nino Pty Ltd. The company in turn pleaded guilty to an offence under s. 88(1) Nature Conservation Act. Section 88 relevantly provided: (1) Subject to section 93, a person, other than an authorised person, must not take, use or keep a protected animal, other than under – (a) a conservation plan applicable to the animal; or (b) a licence, permit or other authority issued or given under a regulation; or (c) an exemption under a regulation. Maximum penalty – 3,000 penalty units or 2 years imprisonment (2) Subsection (1) does not apply to the taking of protected animals in a protected area. (3) It is a defence to a charge of taking a protected animal in contravention of subsection (1) to prove that – (a) the taking happened in the course of a lawful activity that was not directed towards the taking; and (b) the taking could not have been reasonably avoided. (4) Subsection (3) does not allow a person to use or keep the animal. (5) In this section - “authorised person” means a person as follows performing functions under this Act in relation to the protected animal – (a) the chief executive; 59 Appeal Day 2, pages 119-120. 60 (1955) 91 CLR 512 at 520. -- 76 of 242 -- 77 (b) a conservation officer, public service officer or other employee of the department acting under the chief executive’s authority. [240] The offences were indictable offences dealt with summarily. The issue which relevantly arose was whether the charge had identified an offence known to the law in circumstances where the charge did not aver in terms of s. 88(2) that the taking of animals had not occurred in a protected area. The applicant contended that in failing expressly to so aver, the company had pleaded guilty to an offence not known to the law because the matter in s. 88(2) was part of the statement of the offence. [241] de Jersey CJ, with whom McMurdo P agreed, held that the exclusion in s. 88(2) was not part of the statement of the offence. His Honour held: [16] Taking in a protected area is dealt with by s. 62. The short question is whether the circumstance that the taking has not occurred in a protected area is part of the statement of the offence. [17] The form of s. 88(1) suggests it is not. The subsection is presented as a comprehensive statement of the elements of the offence, extending to specifying the maximum penalty. Section 47 of the Justices Act provides “the description of any offence in the words of the Act … shall be sufficient in law”. [18] Section 88(2) specifies a situation in which the offence set out by s. 88(1) could not occur. It is up to the complainant, or the prosecuting authority, to select the applicable provision – s. 88 or s. 62. If the charge is brought under s. 88, then once the place where the alleged offence occurred had been established, the court could as a matter of law be satisfied of the applicability of s. 88 by taking judicial notice of regulations establishing protected areas (cf. Nature Conservation Act, s. 14, s. 29). Determining elements of offences in cases like this is rarely crystal clear, as the myriad cases on exclusions and provisos illustrate, but it is the form of s. 88(1), an acknowledgment of the ease with which the legislature could have included the subject matter of (2) in (1) had it been intended that constitute an element of the offence in the formal sense, and the role of s. 88(2) as explained above, which persuade me that s. 88(2) was not intended to establish an element of the offence for which s. 88(1) otherwise provides. [242] His Honour reached this conclusion in the context where he identified that the scheme of the statute was to create two offences: one under s. 62 (where the taking occurred in a protected area) and the other under s. 88(1) (where the taking occurred outside a protected area). [243] Jerrard JA reached the contrary conclusion. It is worth noting that his Honour placed emphasis on the following:61 (a) The distinction between ss. 88(2) and 88(3), the latter cast in the form of a defence, suggested that s. 88(2) was part of the offence; (b) The consideration that the complainant will be an officer of the relevant State Department and will likely know which offence provision applies. [244] The respondent contended that the analogy in the language of s. 578(2)(b) and s. 88(2) Nature Conservation Act and in the statutory context of the two provisions meant that it was appropriate to adopt the same approach as in Phillips v Spencer. The appellant pointed out, correctly, that the reasoning in Phillips was not entirely 61 See paragraph [34]. -- 77 of 242 -- 78 applicable to s. 578 because the interaction between ss. 88 and 62 was not replicated in this case. [245] However, there are aspects of de Jersey CJ’s reasoning which do apply to s. 578(1): (a) Like s. 88(1), s. 578(1) is presented in my view as a “comprehensive statement of the elements of the offence, extending to specifying the maximum penalty”; and (b) Like s. 88(2), the terms of s. 578(2)(b) could have easily been included in the statement of the offence if Parliament intended it to be an element of the offence. [246] There is also an aspect of Jerrard JA’s reasoning which, in my view, favours the position of the respondent. His Honour considered it important that the statute contemplated the choice between ss. 88 and 62 being made by a complainant who, by reason of his or her role in the relevant State department, would be better placed than a defendant to judge where an offence occurred. The opposite is likely to be the case in respect of s. 578. [247] The SPA offence involves development being carried out by a person without a permit. A person doing so in the very specific circumstances provided for in s. 342(3) (i.e. pursuant to authority conferred by a valid but lapsed development approval using funds paid as security) seems likely to be aware of that fact because such person will be acting under the permit. That person is likely therefore to be aware of its terms, whether it has expired and, if so, whether s. 342 nonetheless permits work to be done. It is a very specific situation. The same cannot be said for the likely complainant in respect of offences under s. 578(1). While the range of complainants could be very wide indeed given the range of conduct caught by the offence, it is likely in my view that such complainants would often be persons who are not as well placed as the prima facie offender under s. 578(1) to know if s. 342(3) applies. In many cases (as in this case) therefore, a potential complainant is far less likely to be aware of whether that section applies than the potential defendant. While that is not of itself a factor which compels the conclusion that s. 578(2)(b) was not intended by Parliament to be part of the statement of the offence, it certainly is consistent with that conclusion. [248] The respondent advances a further proposition of construction. He points out that s. 578(1) applies where there is no effective development permit and that s. 342(3) assumes a valid but expired development approval. The respondent then submits that:62 It is apparent from the terms of the SPA that section 578 cannot apply because it, in terms, creates an offence predicted on the absence of an effective development permit. Section 342(3), however, is directed to the circumstance that there is a development permit in place, but development provided for in the permit does not meet a timing condition of that permit. [249] I do not accept that this point assists the respondent’s construction. It turns on the assumption that a development approval which has expired remains an “effective development permit”. That is an inherently improbable construction of s. 578(1) and, if correct, would appear to have made s. 578(2)(b) otiose. 62 Outline of Submissions on Behalf of the Respondent – Conviction, paragraph 81. -- 78 of 242 -- 79 [250] On the other hand, however, it seems to me that the form of the words in s. 578(2)(b) do lend themselves to a similar conclusion. The subsection provides that s. 578(1) “does not apply” to development under s. 342(3). That language is consistent with the conclusion that development under s. 342(3) is entirely outside the scope of the offence creating provision, rather than being a part of the statement of the offence. [251] I reject the appellant’s contention that s. 578(2)(b) comprises part of the statement of the offence created by s. 578. Conclusion on legal elements [252] The form of the SPA charges in Complaints 2 and 4 identified an offence known to the law. The necessary factual ingredients The appellant’s contentions [253] The appellant contended that the complaints in relation to the SPA charges were invalid because proper articulation of the factual elements of a charge under s. 578: (a) First, required that each of the items in Schedule 24 Parts 1 and 2 be expressly negatived and that the First Blanket Averment failed adequately to meet that requirement; (b) Second, required that each of the matters incorporated by s. 578(2)(a) SPA be expressly negatived and that the Second Blanket Averment failed adequately to meet that requirement; and. (c) Third, required that the matter in s. 342(3) be expressly negatived and the charges failed to do so in any form. [254] I found some difficulty in concisely identifying the appellant’s argument as to why those matters had expressly to be pleaded.63 As I apprehended it, the appellant contended that proper articulation required express pleading of those matters because: (a) Each of those matters formed part of the path the prosecution had to take to establish the offence; and (b) The use of blanket averrals was insufficient to notify the appellant of how he committed the offence. [255] As to the former matter, the appellant contended that the onus lay on the prosecution to establish that the clearing alleged was not within one of the exceptions in Schedule 24 and not within the scope of s. 342(3). Accordingly, (as I understood the argument) because the prosecution was required to prove those exemptions did not apply to make good the commission of the offence, the prosecution was required expressly to plead in the complaint that each of those matters was excluded and failure to do so meant that the case to be advanced by the prosecution was not disclosed in the complaint.64 [256] This contention could not assist in respect of s. 578(2)(a) because the appellant conceded that he had the onus of establishing those matters. The argument on that subsection appeared to be that, in the absence of proper pleading of those matters 63 Appeal Day 1, page 77, line 23 to page 92, line 45. 64 Appeal Day 1, page 77, line 23 to page 78, line 33. -- 79 of 242 -- 80 under s. 76 Justices Act, they remained essential factual matters to be articulated in the complaint.65 [257] As to the latter matter, the appellant contended that the blanket averments were ineffective to articulate the factual matters required to be pleaded (on its case) because they comprised allegations of law or allegations of mixed law and fact. The appellant relied on Macarone v McKone [1986] 1 Qd R 284. [258] Further, the appellant rejected the suggestion that s. 76 Justices Act assisted the prosecution in respect of the onus in relation to Schedule 24 matters because that section did not apply where the onus of proof in respect of a matter was on the prosecution as a matter of law. The appellant relied on Marshall v Averay.66 The respondent’s contentions [259] The respondent submitted that there is a distinction between what is required for factual ingredients necessary to articulate a valid charge and the particulars to which a defendant might be entitled. He submitted that cases such as Johnson, GPI and indeed Kirk itself, involved circumstances where there was inadequate particularisation of the charge such that the charge in the form which went to trial was inadequate. He submitted that the cases demonstrate that sufficiency of pleading of factual ingredients turns on the context of the particular case and the course of the proceedings. [260] The respondent therefore rejected the gravamen of the appellant’s core argument that pleading of factual ingredients required the prosecution to plead every matter upon which it has the onus of proof. [261] The respondent pointed out that the charges did in each case adequately identify the factual ingredients of the charge. It identified in each case, relevantly: (a) That the assessable development in question was operational works comprising clearing of remnant native vegetation on certain tenures in certain areas and at certain times; (b) That the clearing was undertaken by Mr Baker; and (c) That the clearing was not for any purpose in Schedule 24 or excluded by the s. 578(2)(a) exemptions. [262] The respondent noted (correctly) that at no stage in the trial was any complaint made by the appellant as to the adequacy of this articulation of the manner in which the offence was committed. This was said to be strongly indicative, in a practical sense, that the factual nature of the case to be advanced was sufficiently identified to meet the requirements of communicating to the defendant how the offence was committed and what case he had to meet. [263] As to the blanket averments, Mr Hunter submitted that they were effective to communicate the respondent’s case, being that none of the exceptions and exclusions referred to applied in this case. He asked, rhetorically, how would the extensive pleading called for by the appellant have improved the appellant’s knowledge of the case to be advanced? Whether articulated in a blanket averment or item by item, it is plain what the respondent’s case would be at trial: none of the exceptions applied. 65 Appeal Day 1, page 82, lines 5-15. 66 [2006] QDC 356. -- 80 of 242 -- 81 [264] The respondent’s contentions made the question of onus of proof as a criterion for the form of pleading largely irrelevant to the circumstances of this particular case. Mr Hunter did not need to rely on the blanket averments and s. 76 Justices Act to sustain the validity of the charges. However, he did not accept that s. 76 only applied to cases where the onus of proof in relation to a matter was on the defendant. [265] As to s. 342(3), Mr Hunter submitted that even if the onus lay on the prosecution in relation to excluding that matter, it was not necessary for a valid charge expressly to allege that that section did not apply for the charge to allege the necessary factual ingredients. He submitted, consistent with the approach described so far, that it was plain from the factual case identified in the charge, that the prosecution’s position was that that section was inapplicable because no charge could be laid if it did apply. Analysis [266] In my view, it is not the law that a complaint fails to sufficiently articulate the factual ingredients of a charge if it fails specifically to allege each and every matter which the prosecution has to prove (or exclude) to establish the commission of the offence. No such inflexible principle is stated in any of the cases to which the parties referred. Rather, the question of whether a complaint is valid in this respect depends on a practical assessment in the particular circumstances of whether the complaint sufficiently identifies how the offence has been committed to permit the defendant to understand the substance of the case against him or her. [267] A convenient starting point in the authorities is Johnson v Miller (1937) 59 CLR 467. In that case, a publican was charged with breaching a statutory prohibition directed at regulating Sunday trading hours. The particular provision made it an offence by a licensee if any person was seen coming out of the premises other than during certain hours on a Sunday unless the licensee proved that the person’s presence on the premises was explained by various exculpatory provisions. [268] The form of the charge was initially that certain persons had been seen leaving the premises during the proscribed periods. The complainant Miller initially gave particulars of some 30 persons who had been identified as leaving the premises in the relevant time periods. At trial Miller amended the complaint to allege that “a certain person” was seen coming out of the premises. The defendant sought particulars to show which of the 30 men previously identified was the subject of the complaint. Miller refused to give further particulars despite the Magistrate calling upon Miller to do so. Miller maintained it was permissible to lead evidence of all 30 instances to make good the single instance pleaded in the charge, [269] Statutory context must be kept in mind when considering all cases relating to validity of complaints. In Johnson v Miller, s. 181 of the then current Justices Act 1921 (SA) required that a complaint give “the defendant a reasonably clear and intelligible statement of the offence...” Under s. 182 of the relevant Act, no objection was to be taken to any defect in substance or form of a complaint but the Magistrate had power to dismiss the complaint, relevantly, if it appeared to the Magistrate that the defendant was prejudiced by the defect or the complaint failed to disclose any offence. The Magistrate dismissed the complaint under s. 182. That judgment was upheld in the SA Supreme Court and the Full Court. [270] The High Court by majority (Latham CJ dissenting) concluded that the complaint was properly dismissed. Various issues are dealt with in the judgment. Of interest is the approach of the majority to the character of the defect in the complaint. -- 81 of 242 -- 82 [271] Dixon J observed relevantly as follows (at 486 and 490 respectively): In stating the offence, the complaint described it in the words of sec. 209 (1) of the Licensing Act without specifying or negativing the excuses, and the Justices Act 1921-1936 (secs. 55 and 56) provides expressly that such a description shall be sufficient in law. But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions (Smith v. Moody). The complaint did in fact state the day, the place and the circumstances of the offence, and, until it appeared that according to the complainant during the time particularised many persons were seen coming from the licensed premises, the sufficiency of the complaint would be taken for granted. But, if the complainant were to prove that many persons unknown issued from the hotel during the period given in the particulars on the day, at the place and in the circumstances mentioned in the complaint, it is evident that it would become quite uncertain which of them was the person unknown to whom the complaint referred. In other words, the facts or the alleged facts disclosed a latent ambiguity in the complaint... By doing so he necessarily raised the question, What is the consequence of a complainant's declining to indicate which of a plurality of transactions covered by the complaint is that upon which the charge is based or upon which he relies to make out the charge? If in the absence of such an indication, whether it is expressed in an amendment, in particulars, or by election, the actual application of the complaint to the known or the alleged circumstances is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and distinguish it from other like occasions, transactions or occurrences indifferently answering the description contained in the complaint, then I think there is a defect in the complaint within the meaning of sec. 182. Although on its face the complaint may have appeared sufficient, yet when applied to the facts it is found to contain a latent ambiguity, and this, in my opinion, is a defect in particularity. [272] Evatt and McTiernan JJ gave separate reasons though reached the same conclusion. Evatt J relevantly observed (at page 495): It may be that the prosecutor has been placed in some difficulty because he could only prove the fact that thirty persons emerged from the licensed premises during the course of the two hours here in question, so that, if, in advance of the evidence, the prosecutor selected one person only, his case might break down so soon as convincing matter of exculpation was proved by the defendant in relation to the particular person selected. It is for this reason that the apparent recalcitrance of the prosecutor in declining to provide better particulars is readily explained. Probably he was not in a position to be reasonably sure that the single instance he might select would not be satisfactorily accounted for by the defendant. The prosecutor wished (the Crown Solicitor's letter makes this clear) to place the defendant in the position of having to exculpate himself in reference to thirty separate charges, so that, at the end of all, the prosecutor could “elect” or “select” the charge where the defendant's answer had turned out to be the weakest. In my opinion, the course of action proposed by the prosecutor is contrary to recognised principles of law, and, so long as a defendant insists from the outset on being informed of the specific offence with which he is charged, so transparent a device will be defeated. In substance, the prosecutor was trying to convert the court exercising a strictly judicial function—that of determining guilt or innocence of a single offence—into an administrative commission of inquiry into the question whether, in respect of the Sunday morning mentioned, when there were thirty possible occasions when an offence might have been committed, the defendant could exculpate himself in respect of all thirty occasions. The prosecutor planned that, after the court had acted as such commission of general inquiry, it would resume its normal function, the prosecutor would graciously “elect,” i.e., “select,” his strongest case, and obtain a conviction. -- 82 of 242 -- 83 In my opinion, the learned magistrate perceived the object of the manœuvre, and was justified in frustrating it. His action was justified in law upon two independent grounds. In the first place, I consider that, in the circumstances, the complaint, as amended, although it related to one offence, did not give the defendant “a reasonably clear and intelligible statement of the offence or matter with which he is charged.” This extract from sec. 181 of the Justices Act occurs in a provision which in form defines what is a sufficient, not an insufficient, complaint. None the less, the positive statement in sec. 181 carries with it the negative proposition that a complaint which does not give the defendant information of the defined character may be treated as defective; in which case it becomes the duty of the court, pursuant to sec. 183, to cause the complaint to be amended. Further, I think that, when an amendment is rendered impossible because a prosecutor, after full consideration, refuses to give sufficient particulars, by which the complaint, when amended, will “give the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged,” prejudice to the defendant has arisen from the defective complaint and the court is authorized to dismiss the complaint pursuant to the proviso to sec. 182. [Underlining added] [273] McTiernan J observed (at 501): Although the complaint itself disclosed one offence only, the result is that the letter could not but put the appellant in doubt as to the person whose egress from the premises was being charged as the incriminating matter which the appellant would be bound to explain in order to exculpate himself. The letter read as a whole informed the appellant that such person is any one of a number of people to whom the description, “a person whose name is unknown to the police,” would apply and who were seen leaving the premises during the period mentioned in the new particulars. When read with the letter the complaint cannot be understood as referring to one particular person, but to any one of a number of persons. For this reason it fails to comply with the standard imposed by the well-established rule of practice in criminal proceedings now embodied in sec. 181 of the Justices act, which requires that fair information and reasonable particularity as to the nature of the offence charged must be given to the defendant (See Smith v. Moody). [274] As can be seen, the analysis of the High Court focused on whether the complaint failed to give the defendant reasonable particularity as to the nature of the offence charged by reference to the specific circumstances of the case and in the context of a challenge by the defendant to the adequacy of the charge made by reference to those circumstances. The case provides no support for the approach articulated by the appellant. [275] The appellant’s written submissions place reliance on the underlined passage in the extract from Evatt J’s judgment.67 This reliance is misplaced. Evatt J’s observation is relevant because of the specific circumstances identified by the defendant in that case which gave rise to the unfairness of the course which the complainant sought to take. Like all the other cases to be considered, it was this identification of inadequacy in articulation of the manner of commission of the offence, in the context of the particular prosecution, which supported the conclusion of the High Court that the complaint was defective as to factual articulation. [276] The appellant’s submissions do not identify any concrete omission or ambiguity, latent or patent, in the articulation of the manner of commission of the offences under s. 578 which in a concrete and practical manner actually prejudiced his ability to understand the case advanced against him or to meet that case. As Mr Hunter 67 Appellant’s Part 1 submissions at paragraph 106. -- 83 of 242 -- 84 submitted, there was no complaint of that kind advanced at trial, despite the appellant being represented by counsel (with experience in the area of land clearing litigation) over the course of the trial. That remains the position even now. The appellant’s complaint about the factual articulation of the offence is theoretical. In the absence of some concrete objection at trial, it is hard to see how it can properly be concluded that the complaint was invalid on this basis. A fortiori where even on appeal, no specific matter of actual ambiguity or prejudice is raised. [277] The next case to consider is John L Proprietary Limited v The Attorney-General for NSW (1987) 163 CLR 508. In that case, a Mr Clayton laid an information against the appellant John L alleging an offence against s. 32(1) Consumer Protection Act. The gravamen of the offence was publishing a statement intended to promote the supply of goods which was, to the knowledge of the publisher false or misleading, in a material particular. The complaint referred to an advertisement offering 1000 litres of free fuel to persons who bought a car over $3000 on a certain weekend. The complaint failed to identify the material particular which was false or misleading. [278] In dealing with whether that failure made the complaint defective, the majority made the following frequently quoted observations (at 519-520): The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: “an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence” (Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153, at p 166). The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 11 & 12 Vict. c.43, ss.1 and 3 and the Summary Jurisdiction Act 1879 42 & 43 Vict. c.49, s.39) was substantially adopted in New South Wales (see the discussion in Ex parte Lovell; Re Buckley, at pp 167-174 and, in particular, Justices Act 1902 (N.S.W.), ss.65 and 145A). One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence (see, e.g., Smith v. Moody (1903) 1 KB 56, at p 60; Johnson v. Miller [1937] HCA 77; (1937) 59 CLR 467, at pp 486-487, 501; Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270, at p 280). It is, however, unnecessary to pursue that particular question here since, putting to one side s.6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J. was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence. In De Romanis v. Sibraa (1977) 2 NSWLR 264, at p 291, Mahoney J.A. correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. -- 84 of 242 -- 85 [279] Importantly, the majority went on to analyse the specific defect alleged by the appellant in the articulation of the charge. Their Honours observed:68 As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the “material particular” in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental. The impugned statement was the expression of a present intention to engage in future conduct, namely, to give 1000 litres of free petrol to customers “buying a car over $3,000.00” during the coming week-end. It would appear from the transcript of submissions made in the Court of Criminal Appeal that the informant relied upon the failure of the appellant to give some or all of those customers the promised free petrol. But those facts, even had they been included in the information, would not have indicated whether the statement was alleged to be false or misleading because at the relevant time the appellant lacked the intention to carry out its promise or for some other reason. The relevant time was, as the information recognized, the time at which the statement was made. At the most those facts would, in the absence of explanation of them, amount to evidence of lack of intention. But any number of supervening events could have frustrated the performance of a promise genuinely made. Whether it was the absence of intention or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence. In other words, the information failed to specify the “manner of the (appellant's) acts or omissions” (cf. per Dixon J., Johnson v. Miller, at p 486) or to provide “fair information and reasonable particularity as to the nature of the offence charged” (per McTiernan J., ibid., at p 501). In the result, the information was defective and insufficient to found proceedings against the appellant in respect of the alleged offence unless its failure to identify the “material particular” in which the alleged statement was false or misleading was cured or overcome by some applicable statutory provision. [280] Again, the analysis focuses on a specific defect and the substantive consequences of that defect for the ability of the defendant to understand and defend the charge brought against it. [281] Kirk itself shows a similar approach. After the statement of principle set out above, the majority observed:69 The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged. The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk 68 (1987) 163 CLR 508 at 520-521. 69 (2010) 239 CLR 531 at [27]-[28]. -- 85 of 242 -- 86 company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable. [282] Again, the approach of the Court was concerned with difficulties arising from the identified omission. It was concerned with how a specific omission impacted on the ability of the defendant to understand and respond to the offence charged, in this case with a focus on the ability of the defendant to take advantage of defences which might be available, a matter which also arose in Johnson. [283] The last case to which I will briefly refer is N K Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304. In that case, the question arose as to whether, as in Kirk, a valid complaint alleging an offence of, in general terms, failing to ensure workplace health and safety had to articulate the act or omission said to comprise the failure to meet the obligation imposed by the statute. [284] The complexities of the statutory scheme analysed by Holmes JA (as the Chief Justice then was and with whom Fraser JA and Wilson J agreed) do not have to be considered fully here. It is sufficient to note that the gravamen of the offence was to impose an obligation to ensure the safety of a person’s employees was not affected by conduct of a person’s business. The statute further provided that the obligation could be discharged if a person’s employees were not exposed to safety risks arising out of the conduct of the business. It then provided for alternative ways that obligation could be discharged. [285] A worker was killed while felling timber. He was killed when a tree with rotten roots fell on him. It was apparent he had just felled a nearby tree when the accident happened. There was no other evidence as to how the death occurred. The relevant Act also included a defence where, relevantly, an employer managed exposure to a risk in accordance with a code of practice or if no such code existed, otherwise adopted an appropriate way to prevent the contravention. [286] At the outset of proceedings in the Industrial Magistrates Court, counsel for the applicant sought particulars of the alleged failure to ensure the workplace health and safety of workers, asking to be told “what act or omission it is alleged by the prosecution either has been done or has been omitted to have been done”. The Magistrate, following decisions of the Industrial Court, declined to order the giving of particulars. He accepted the second respondent’s argument that the complaint did not require the identification of any act or omission by the applicant; the breach consisted in the exposure of workers to risk. The correctness of that argument was the relevant issue in the appeal. [287] Holmes JA rejected that argument. Her Honour relevantly concluded that the necessity for particulars arose from the practical necessity for the particulars sought to permit the appellant to take advantage of specific defences. This was particularly so because of the reliance by the prosecution, in final submissions, on certain codes said to be relevant to the management of the particular risks. Her Honour’s detailed analysis at paragraphs [51] to [59] provides yet another example of how factual sufficiency must be determined by reference to the particular circumstances of the case in question. [288] In this appeal, each of the SPA charges identified the manner in which the offence was committed relevantly: -- 86 of 242 -- 87 (a) By identifying that the assessable development in question was operational works comprising clearing of remnant native vegetation on certain tenures in certain areas and at certain times; (b) That the clearing was undertaken by Mr Baker; and (c) That the clearing was not for any purpose in Schedule 24 or excluded by the s. 578(2)(a) exemptions. [289] This pleading of the factual ingredients seems to me prima facie to adequately state the manner of the commission of the offence. Nothing raised by the appellant leads to a contrary view. [290] Take first the complaint about the lack of pleading of each of the individual items in Parts 1 and 2 of Schedule 24. How was the lack of pleading of each of those items individually causative of such ambiguity as to the manner of the commission of the offence as to leave the Court and the defendant unable to understand the case against him? There was certainly no complaint at trial about that matter. Neither was there any difficulty which I could identify which arose from that matter in the course of the trial. A review of the conduct of the trial and the submissions made at trial shows in my view that the appellant was able to respond to the case he had to meet. Even now, on the appeal, the appellant does not identify a substantial difficulty which was encountered by the appellant in the conduct of the trial by the form of the charge. [291] Further even if further details might have been required in respect of a particular item in Schedule 24 Parts 1 and 2, such details could properly have been provided by the respondent as particulars. Given that, I agree with the respondent’s submission that pleading out each of the items in Parts 1 and 2 would have made the charge extremely long, but would not have materially added to the understanding of the charge by the appellant. The charge informed the appellant that none of the exceptions applied. Listing each one out would not have improved his understanding of the complainant’s position. If clarification were required on a particular item, it could have been provided as particulars. The fact that a charge requires further particularisation does not mean that it fails properly to articulate the necessary factual ingredients of an offence, particularly where the purpose of the particular is to refine an allegation already present in the charge.70 [292] This reasoning applies equally to the pleading of s. 578(2)(a). However, the adequacy of pleading of the exemptions called up by s. 578(2)(a) seems a moot point given the appellant’s concession that he bore the onus at trial on these matters. If the onus of proof lay on the appellant in respect of those matters, I cannot see why it was necessary to a valid complaint that the complainant expressly negative the exceptions incorporated by that subsection. [293] That leaves the question of s. 342(3), which it will be recalled was made relevant by s. 578(2)(b). I have already concluded that s. 578(2)(b) did not comprise a legal element. [294] Further, I agree with the respondent’s submission that the charge was not invalid for failure to articulate necessary factual elements because it did not expressly negative the exception in s. 342(3). The adequacy of pleading of necessary factual elements 70 De Romanis v Sibraa [1977] 2 NSWLR 264 at 291, referred to with approval by the majority in John L at 520 and see Kirk at [26]-[30] where the Court recognised that particulars can later be given to ensure factual validity. -- 87 of 242 -- 88 depends on the particular context of the offence and the manner in which it is said to have occurred. Here, as Mr Hunter contended, it was necessarily implied by the laying of the charge that the circumstances in s. 342(3) were not engaged. Further, there was no suggestion in the evidence or in the course of the trial that the circumstances of that section might be engaged. [295] This is a sufficient basis to conclude that the complaint validly articulated the manner in which the SPA offences were alleged to have been committed. However, I should deal with some other matters raised by the appellant. [296] First, I will deal with Macarone v McKeon [1986] 1 Qd R 284. The appellant relied on this case to establish the proposition that the blanket averrals were ineffective. In my view, that case is irrelevant to the issue raised in this appeal. Macarone was relied upon as authority for the proposition that an averment which was properly characterised as an averment of a matter of law was not able to be treated as prima facie evidence under an enabling provision which made every allegation or averment contained in a complaint of breach of the extant Brisbane Town Plan. The case does support that proposition.71 However, that is not the issue which arises here. The relevance of the blanket averments is that they communicate in a substantive sense the manner in which the offence was committed by making plain the prosecution’s position that none of the excuses for clearing contained in Schedule 24 Parts 1 and 2 apply. Whether these averments would be effective to take advantage of prima facie evidence provisions is not the issue. [297] Second, I need to deal briefly with the arguments about s. 76 Justices Act. In submissions I raised the possibility that, if the onus was on the prosecution to exclude the Schedule 24 and 578(2)(a) matters, that onus might be reversed by the blanket averments, with the consequence that any factual inadequacy in the pleading in respect of those matters became irrelevant. This is a moot point given my reasoning on factual validity in which s. 76 plays no part. [298] However, it seems doubtful that s. 76 Justices Act can have the substantive effect of reversing the onus of proof where it would otherwise lie on the prosecution. The better view seems to be that the section is declaratory of the common law and therefore applies only where the onus of proof lies in any event on the defendant,72 though the possibility that it goes further than the common law rule seems to still be open.73 [299] Further, if the section were to apply, I think it unlikely its application would be constrained by the requirement that the averment not comprise or include allegations of law. The terms of an “exemption, exception, proviso...etc” could well comprise or include matters of law, or at least mixed law and fact. The proper construction of s. 76 seems to contemplate the complaint negativing the exemption in terms. The applicability of the approach in Macarone to s. 76 seems doubtful to me. Conclusion on Ground 1A [300] Ground 1A of the Amended Notice of Appeal is dismissed. 71 See Macrossan J at 292-293, with whom Kelly SPJ and Williams J agreed. 72 See Allen, op cit, 212-213; Marshall v Averay [2006] QDC 356 at [32]-[33]. 73 Macarone v McKeon at 297.27-.30 per Williams J. -- 88 of 242 -- 89 Ground 1: Particulars under s. 68A SPA Introductory comments [301] It is necessary to set out some more statutory and factual context to be able properly to understand the contentions of the parties on Ground 1. Some relevant statutory context [302] Section 68A VMA is set out in paragraph [71] above. The issues which arise relate to s. 68A(2)(c) and (d). Section 68A(2)(c) refers to a “description of the vegetation”. The section includes an example, which is part of the Act.74 The example has three components: (a) It describes the vegetation (which, it will be recalled, under the VMA is native vegetation other than grassland and mangroves) by reference to its status as remnant vegetation; (b) It describes the vegetation by reference to its status as an endangered regional ecosystem; and (c) It describes the vegetation by reference to its status as essential habitat for protected wildlife. [303] It is to be noted that these three aspects call up different ways that vegetation could be categorised under the VMA. (a) As to the first aspect, the VMA classifies vegetation by whether it is remnant vegetation or regrowth vegetation. All vegetation under the VMA is one or the other. The statute operates differently in a number of respects depending on whether native vegetation is one or the other. (b) As to the second aspect, the VMA also classifies vegetation by reference to the class of regional ecosystem to which it belongs. A regional ecosystem is a “vegetation community in a particular bioregion that is consistently associated with a particular combination of geology, landform and soil.” While there are numerous individual regional ecosystems identified in the State (there are some 1500), regional ecosystems are of only three classes in the VMA: endangered, of concern and least concern.75 The statute operates differently in a number of respects depending on the class to which vegetation belongs. Relevantly, a regional ecosystem map under s. 20A VMA is a map for part of the State showing areas of remnant vegetation classified as endangered, of concern or least concern. Remnant and regrowth vegetation can belong to any of the three classes. (c) As to the third aspect, another way which the VMA classifies vegetation is by whether it is essential habitat. Essential habitat is an area of remnant vegetation which, in brief, is important for the protection of wildlife. Essential regrowth habitat is a similar area of regrowth vegetation. Each is therefore a subset of remnant and regrowth vegetation. Such areas can be recorded on essential habitat maps. 74 Acts Interpretation Act 1954 (Qld) s. 35C(1). 75 VMA ss. 22LA, 22LB and 22LC respectively. -- 89 of 242 -- 90 [304] The example in s. 68A(2)(c) does not exhaust the ways that vegetation is classified under the Act. There are, for example, sub-categories of regrowth vegetation identified in the Act. Further, vegetation can be described by reference to the area in which it is located in the way identified in s. 68A(2)(d). Section 68A(2)(d) refers to whether the vegetation is in “an area of high nature conservation value” or in “an area vulnerable to land degradation”. The declaration of such areas is dealt with in Division 4 of Part 2 VMA. Areas may be so declared by the relevant Minister or the Governor in Council: (ss. 17 and 18) or on application by a land owner (s. 19E), or by the chief executive (s. 19F). A declaration may only be made if the area meets statutory criteria: ss. 19 and 19G. They are not linked to classifications of the vegetation in the area under the VMA. [305] In each case, a form of management plan is prepared for the area and the declaration is recorded by the Registrar of Titles in a manner which links it to a title search for the land which includes the area. [306] Some of those forms of description of vegetation are picked up in Schedule 24 Parts 1 and 2 of the SPA Regulations. Part 1, Items 2 and 3 refer to classification of vegetation under the VMA. For Part 2, all items apart from (c), (k) and (j) relate in some way to the VMA. Relevant allegations in Complaints 2 and 4 [307] Complaints 2 and 4 relate to the SPA offences. It is only those complaints for which particulars under s. 68A(2) are relevant. [308] Paragraph 7(g) of Complaint 2 Charge 1 is the only allegation in that charge which describes the vegetation cleared. That paragraph alleges Chess Park was cleared “of native vegetation all of which was classified as remnant vegetation”. The other charges in Complaint 2 adopt the same description. [309] Paragraph 6(e) of Complaint 4 Charge 1 is the only allegation in that charge which describes the vegetation cleared. That paragraph alleges Chess Park was cleared “of native vegetation all of which was classified as remnant vegetation, a least concern ecosystem”. The other charges in Complaint 4 adopt the same description. The Complaint 4 charges therefore provide more particularity than Complaint 2 charges on the character of the vegetation cleared. [310] It should also be recalled that the First Blanket Averment in each SPA Charge expressly negatives each of the items in Schedule 24 Parts 1 and 2, including those which create exceptions defined by reference to matters arising under, or affected by, the VMA. The appellant’s contentions [311] The appellant’s contention was developed as follows. [312] First, the appellant contended that on its proper construction, s. 68A imposed a mandatory requirement that a complainant for a vegetation clearing offence must include the particulars specified in s. 68A(2), such that failure to do so rendered the complaint invalid. The invalidity arose either because the section imposed additional legal elements for a vegetation clearing offence under s. 578(1) or, alternatively, mandatory factual ingredients for pleading such a charge. [313] The factors supporting that construction were as follows: -- 90 of 242 -- 91 (a) The plain meaning of the opening words in s. 68A(2) “It is enough...” is that the particulars identified are the minimum requirement for identification of the vegetation cleared; (b) This is supported by two matters: (i) The heading to s. 68A is part of the VMA76 and therefore relevant to construction of the provision. The phrase “Particulars to be stated” in the heading is consistent with a mandatory construction of s. 68A; and (ii) The use of the phrase “whether the vegetation was in...” which opens s. 68A(2)(d) communicates in its ordinary meaning that the particulars must state whether or not the vegetation was in one of the areas identified;77 (c) The mandatory construction was said to be consistent with “settled principles of statutory construction”. These principles were articulated in a general manner by the appellant by reference to the summary statement in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] to [71]. It was also said to be consistent with the purposes of the VMA identified in s. 3 (see paragraph [59] above). [314] Second, the appellant contended that Complaints 2 and 4 failed to include particulars required by s. 68A(2)(c). [315] The particulars said to have been omitted from both complaints were the identification of the declared regional ecosystem (or systems) to which the vegetation identified in each charge belonged. That is, the appellant contended that a valid charge which alleged clearing of remnant native vegetation had to state the type of regional ecosystem and the regional ecosystem number as declared under the Vegetation Management Regulation for each regional ecosystem in the area of cleared vegetation the subject of the charge. This was alleged to be required either as a matter of law under the statute or alternatively to identify the necessary factual ingredients of these specific charges.78 [316] Why, one might ask, would that information be necessary to comply with s. 68A(2)(c) or necessary to identify how the offence was committed? The answer given by the appellant seemed to be that the only way to identify a least concern regional ecosystem (or indeed an of concern or endangered system) is by reference to the categorisation of the individual declared regional ecosystems as one of the three classes under the Regulations. This seems to be technically correct: see Regulation 8(3) and (6) of the VMR. Whether it leads to the conclusion that a valid charge must specify each specific regional ecosystem is another matter. [317] Third, the appellant contended79 that Complaint 2 was invalid because it failed to include the class of regional ecosystem of the remnant vegetation in each charge (in contrast to the position under Complaint 4). The appellant appeared to contend that where the vegetation was said to be remnant vegetation, the class (least concern etc) had to be included. It submitted the example demonstrated the scope of particulars 76 Acts Interpretation Act 1954 (Qld) s. 35C(1). 77 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at [10]. 78 Appellant’s Part 2B submissions at paragraphs 489 – 490. 79 Appellant’s Part 1 submissions at paragraphs 239 – 244. -- 91 of 242 -- 92 contemplated for compliance with s. 68A(2)(c) included the class. The appellant also contended that a description of vegetation which referred to the vegetation without indicating whether it was least concern, of concern or endangered under the VMA was meaningless. Therefore it must have been Parliament’s intent that sufficient particulars of remnant vegetation included its class. [318] Fourth, in relation to s. 68A(2)(d), the appellant submitted as follows. The specific averment required by section 68A(2)(d) serves to distinguish for the defendant and the Court whether the clearing occurred in or outside a declared area. Thus:80 ...if unlawful clearing is alleged to have taken place on land that is partly within and partly outside, that part of the clearing which is outside a declared area is an essential factual ingredient of any charge specifically referable to the place where the vegetation was cleared for a vegetation clearing offence that must, as required by s 68A(2)(d) be averred on the complaint for the particular charge in question. That is because (as explained below), a vegetation clearing offence can only pertain to an offence under s. 578(1) of the SPA [All forms of emphasis in original] [319] The appellant conceded that only chief executive declarations under s. 19F would be relevant in practice because these declarations are the only kind referred to in Schedule 24. The particular item is Part 1 Item 3 which excludes clearing vegetation in a declared area under s. 19F if the clearing is consistent with the management plan. The ultimate contention seemed to be that unless the defendant knows that vegetation is or is not within a declared area, he cannot know whether the prosecution contends that the exception in Item 3 is excluded. The respondent’s contentions [320] The respondent contended as follows. [321] First, he submitted that s. 68A did not mandate how a complaint must be particularised to be valid. This is said to be evident from the phrase “it is enough”. The respondent submits that the proper construction of s. 68A in this respect is that it identifies what particulars will make a complaint properly particularised. However, the section contemplates that proper particularisation might exist without specifying those matters in each case. This is so because of the character of particulars being to enable a party to know the case it has to meet. The section permitted the appellant to require further particulars in terms of 68A(2)(c) and (d) but did not compel their provision as a matter of law. [322] Second, on that basis, the respondent submitted in relation to all the complaints of the appellant as to alleged non-compliance in this regard, that there was no basis to conclude that the complaints were not properly particularised because the defendant sought no further particulars in respect of the matters in those subsections and made no complaint about the particularity of this aspect of the complaints at trial. [323] Third, apart from the lack of complaint at trial, he submitted that the form of pleading could be seen to be sufficient when regard was had to the relevance of vegetation description to the particular offence. The link between the description and the offence arose from Schedule 24. Item 2 in Part 1 was the only one which touched on the class of the vegetation. Mr Hunter correctly pointed out that that Item related to very specific circumstances not applicable in any view to this case. He 80 Appellant’s Part 1 submissions at paragraph 216. -- 92 of 242 -- 93 made similar submissions about the other links between vegetation class and the Items in Part 2. [324] He further submitted that the offence otherwise comprised clearing of remnant native vegetation and it was not necessary to demonstrate that the vegetation was of a particular declared regional ecosystem to make good the commission of the offence. [325] Third, in respect of the omission of any reference in Complaint 2 to the class of regional ecosystem (least concern etc), Mr Hunter submitted, again, that no complaint was made about lack of particularity in this respect at trial. Further he submitted it could be inferred that occurred because it was understood that the areas cleared were in the least concern category. So much was evident, he submitted, from the fact that the PMAV for Chess Park81 and the related regional ecosystem maps82 showed that all the charge areas were in areas shown as least concern. Further, he pointed to evidence which suggested the appellant was familiar with that mapping. He referred to a letter from Mr Baker to an officer of DNRM that he wanted to clear in the “green areas”.83 The least concern areas are marked in green on the regional ecosystem maps [326] Fourth, the respondent submitted as to s. 68A(2)(d), that by negativing the exceptions in Schedule 24 Parts 1 and 2, the prosecution clearly communicated to the defendant that its case was that no part of any of the areas the subject of charges in Complaints 2 and 4 were declared under s. 19F. Mr Hunter submitted that as a matter of substance the prosecution’s position on the issue raised by s. 68A(2)(d) was clear. Analysis Compliance with s. 68A(2) is not a statutory condition for validity [327] Section 68A(2) does require provision of the particulars in s. 68A(2)(c) and (d) as a condition for a valid complaint for a vegetation clearing offence. [328] First, the section refers to particulars. Particulars have an established common law meaning, both in civil and criminal pleading. They are concerned with defining the case being advanced, not with articulating the essential legal elements of an offence or cause of action.84 Parliament ought to be assumed prima face to have intended to adopt that meaning by the use of that word. Indeed the accepted distinction between particulars and material facts/legal elements is so well established that it would take in my view some clear language to elevate the imposition of “particulars” so described to a matter which must be pleaded in order that a charge be valid.85 [329] Second, the language of the provision overall does not support the contrary view. The key phrase relied upon by the appellant is, at best, equivocal. In my view, by saying “it is enough” Parliament is communicating that providing the particulars in s. 68A(2) will be sufficient, but not necessary. If a different intention existed, one 81 Exhibit 14.23. 82 Exhibits 14.17 to 14.19. 83 Exhibit 14.14. 84 Harrison v President of Industrial Court of Queensland [2017] 1 Qd R 515 at [163]-[165]; Karimbla Construction Services Pty Ltd v President, Industrial Court of Queensland [2014] QSC 56 at [39]; S Kidman v Lowndes CM [2016] 314 FLR 358 at [133]. 85 D Pearce and R Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) at [4.13]-[4.14]. -- 93 of 242 -- 94 would expect Parliament to have said so in clearer terms. Nowhere does the provision state that the complaint must provide the specified particulars. Even the heading, relied upon by the appellant, does not go so far. [330] Third, the construction contended for by the respondent seems to me consistent with the overall statutory scheme. Section 68A falls to be applied to all vegetation clearing offences. There are five such provisions in the SPA. However those provisions could be breached in numerous different ways, this case being one such example. Whether and to what extent the particulars in s. 68A(2) are necessary, or even relevant, to a particular complaint will vary. That is particularly so for s. 68A(2)(c) and (d). It seems unlikely that Parliament would intend to make a complaint invalid for failure to include one of the particulars in the section where such particulars were not relevant or necessary. [331] Fourth, it seems unlikely that Parliament would intend to make validity of all complaints for all vegetation clearing offences conditional on such a general phrase as “a description of the vegetation”. Such a general phrase can be interpreted in many ways. The analysis of the range of ways that vegetation can be described shown in the example in the provision shows that to be so. If validity was conditional upon compliance with s. 68A(2)(c), it would be very difficult to be certain whether a complaint was valid, and the complaint might be held invalid even if the description was adequate for the purposes of the particular proceeding. On the other hand, approaching the question of validity from the perspective of whether the complaint in context provides adequate particularity to identify how the offence was committed and to communicate the case to be met will solve this difficulty. This is because the adequacy of the description can then be assessed against that standard. Complaints 2 and 4 are otherwise valid [332] The appellant also submits that the failure to provide the particulars it submits should have been provided under s. 68A(2)(c) and (d) meant that the Complaints 2 and 4 were invalid because they failed to communicate the complainant’s case sufficiently to attract the jurisdiction of the Court. [333] I reject that submission. Declared areas: s. 68A(2)(d) [334] It is convenient first to deal with s. 68A(2)(d). In determining whether the SPA charges were invalid for alleged failure to give the particulars in s. 68A(2)(d) it is necessary to focus on the relevance of the matter there identified to the case advanced and the form of the complaint. [335] It was submitted by Mr Hunter that the only link between the SPA offence as pleaded in the charges and a declaration of the kind in subsection (d) was in Schedule 24 Part 1(3). It excludes from the offence creating provision clearing in an area declared under s. 19F unless consistent with the management plan. I do not recall the appellant pointing to any other link and I could identify no other. [336] Mr Hunter submitted that the substantive effect of the First Blanket Averment was to communicate that the clearing did not fall within the scope of Schedule 24 Part 1(3). In my view this is correct. Nor was there any complaint at trial about particularisation in this respect. Indeed even now, the appellant points to no substantive difficulty in the conduct of the trial for the defendant which arises from the failure it alleges in compliance with s. 68A(2)(d). -- 94 of 242 -- 95 [337] Indeed one wonders what else the appellant says the defendant needed to be told. True it is that negativing of Schedule 24 Part 1(3) says nothing about whether the areas of clearing were declared areas made so by the Minister or Governor in Council. However, such areas do not appear to have any relevance to the offences charged. Description of the vegetation: s. 68A(2)(c) [338] The charges in Complaint 2 describe the vegetation as remnant native vegetation. The charges in Complaint 4 adds the words “of a least concern regional ecosystem”. [339] I will start with the omission of the class of vegetation from Complaint 2. Three matters require recognition: (a) First, no complaint was raised at trial about the lack of particularisation of the class of regional ecosystems; (b) Second, as Mr Hunter submitted, all the clearing the subject of SPA charges in Complaint 2 related to least concern ecosystem areas marked on the PMAV and regional ecosystem maps and the case was conducted on that basis and there is some basis to infer the appellant was familiar with at lead the regional ecosystem maps; and (c) Third, even now, the appellant does not explain how the lack of particularisation of the class of the remnant vegetation resulted in the defendant being unable to understand and respond to the case put against him. [340] This is not a promising start for the appellant’s submission that Complaint 2 failed to articulate essential factual ingredients. [341] Further, it is difficult to see how the omission in Complaint 2 was material given the relevance of that form of classification to the trial. As correctly submitted by the respondent, the link between the class of remnant vegetation and the offences as pleaded in Complaint 2 was provided by items in Schedule 24 Parts 1 and 2. Most of those items were plainly irrelevant to the clearing alleged in each charge, see for example: (a) Part 1 Item (2) which was concerned with very specific clearing of a certain type within a watercourse or lake; (b) Part 2 Items (g) and (h) which were concerned with clearing in an urban area. [342] Only Part 2 Item (i) raised the issue of ecosystem class in a manner relevant to the charges. Even there, however, the question is concerned with how the area cleared is shown on a PMAV or regional ecosystem map. By negativing that item by the First Blanket Averment, the defendant communicated that that item did not apply. Given that the charges specified that the vegetation was remnant vegetation, it was communicated that the first limb of the alternative kinds of vegetation identified in that item (“regulated regrowth vegetation” which by definition cannot be remnant vegetation) was not applicable. Thus as a matter of substance, by negativing Item (i), it was substantively communicated that the clearing was not necessary for routine management in a least concern regional ecosystem shown on the PMAV or regional ecosystem map. -- 95 of 242 -- 96 [343] Further, in the course of the trial, the parties joined issue on whether the clearing in each charge in Complaint 2 comprised routine management. This is consistent with the defendant being able to apprehend clearly the issue which arose in respect of that item at the trial. [344] For these reasons, I consider that Complaint 2 sufficiently identified essential factual ingredients of the charge to attract the jurisdiction of the Court despite its omission of express reference to the class of regional ecosystem to which the identified remnant vegetation belonged. [345] I now turn to the appellant’s complaint about the omission of particularisation of each particular regional ecosystem in the charge areas. [346] Once again, the analysis can start with the recognition that the omission was not raised at trial and that even on this appeal the appellant points to no practical consequence for the conduct of the trial resulting from the defendant’s not having the benefit of particularisation of this kind. Further, there is no suggestion that a proper description of the vegetation under s. 68A(2)(c) required particularisation of the specific regional ecosystem. It does not appear in the example. [347] Why then, for the appellant to understand how he was said to have committed the offence, did he need to be appraised of the specific regional ecosystems applicable to the remnant vegetation in each charge area? It is not essential to identify the vegetation cleared: that is said to be remnant native vegetation and, on my analysis of the VMA, the declared regional ecosystem to which remnant vegetation belongs is not essential to the description of such vegetation. [348] So far as I could apprehend, the answer given by the appellant is that stated in paragraph [316] above. While it appears to be true that the classification of vegetation under the VMA as least concern, of concern or endangered occurs by reference to the specific regional ecosystem to which vegetation belongs, that is an insufficient basis for concluding that essential factual ingredients require that to be specified in the charge. [349] In this case, it was evident that the charges related to least concern regional ecosystems. That meant that they necessarily relate to specific ecosystems declared as such. That does not mean, however, that the individual ecosystems had to be particularised for the charges to be valid. If a defendant thought this kind of detail was important, further particulars could have been sought. It is relevant to note that at trial, Mr Dillewaard gave evidence as to the particular regional ecosystems which would have been present in the cleared areas based on the regional ecosystem mapping and his inspections while at Chess Park. No complaint was made about the lack of particularisation in the charges on this issue at trial. [350] In my view, the appellant’s position on this issue goes well beyond what was required to articulate necessary factual ingredients for a valid charge in this particular case. Conclusion on Ground 1 [351] Ground 1 of the Amended Notice of Appeal is dismissed. -- 96 of 242 -- 97 GROUND 2: JURISDICTION TO AMEND (COMPLAINTS 2 AND 4 ONLY) [352] It was accepted by the appellant that if Ground 1 was dismissed, then it follows that her Honour had jurisdiction to amend the complaints as she did at trial. Accordingly Ground 2 is dismissed. GROUND 4: EXCLUSION OF ESSENTIAL MANAGEMENT EXEMPTION Introduction [353] It will be recalled that the essential management exception comprises one of the kinds of clearing of native vegetation without a development permit which is excised from the offence by Schedule 24. It appears in Part 2 Item (d)86 and excludes clearing that is necessary for essential management. It relates only to the SPA Charges in Complaints 2 and 4. Essential management in turn is defined in the Regulations. The definition is set out in paragraph [56] above. It can be seen that it in turn comprises eight sub-items of clearing. [354] Ground 4 of the Amended Notice of Appeal has two sub-grounds. (a) The first relates to her Honour’s approach to the standard of proof relevant to the exclusion of the exemption by the prosecution. (b) The second is concerned with whether certain essential management exceptions were excluded to the necessary standard. There were no written submissions directed specifically to this ground of appeal. In oral submissions, the appellant relied on the particulars in the Amended Notice of Appeal as setting out the argument. Ground 4/1A: Erroneous approach to burden of proof The parties’ contentions [355] Ground 4/1A of the Amended Notice of Appeal states: 1A. The Magistrate erred and misdirected herself at law when she found, at paragraph [273] of the First Decision published on 24.11.2016 (“First Decision”) :- “Essential management is the only realistic exemption and it has been conclusively dealt with by Mr Tran and I accept his evidence in relation to every charge in that respect.” Particulars a. The Magistrate asked herself the wrong questions by evaluating the evidence in respect of the so described exemptions in Parts 1 and 2 of Schedule 24 of the SPR on the basis as to whether they were “realistic” or “relevant” when that distinction has no basis at law. b. What she ought to have done (but failed to do) was to find first, that each and every ‘exemption’ in Parts 1 and 2 of Schedule 24 of the SPR was not an “exemption” but an essential legal element of the offences charged under s 578(1) of the SPA. Secondly, she should have evaluated the evidence adduced by the prosecution to determine whether that evidence (to the extent it existed) in 86 See paragraph [55] above. -- 97 of 242 -- 98 respect of each element [exemption] proved beyond reasonable doubt that the clearing was not clearing undertaken for a specific purpose as provided for in respect of that particular element [exemption]. [356] The reference to Mr Tran’s evidence alludes to a matter raised in a number of grounds of appeal. It is a fundamental contention of the appellant that Mr Tran’s evidence did not and could not establish any matter at trial because it lacked probative value and that all convictions which necessarily relied on his evidence should be set aside. [357] The substantive criticisms on Mr Tran’s evidence are developed in the appellant’s Part 2A submissions at paragraphs [129]-[304]. They are relied upon as supporting this and a number of other grounds. It is useful to deal with the substance of those submissions and the consequences said to flow from them together. That is done below from paragraph [915]. However, it is possible to deal with this ground of appeal separately from the attack on Mr Tran’s evidence. [358] The point made in the Amended Notice of Appeal is this: her Honour’s statement that essential management “is the only realistic exemption” reveals a failure by her Honour to approach the consideration of that exemption on the proper basis i.e. whether that exemption had been excluded beyond reasonable doubt. Her Honour’s error is said to be established by the language she used in her analysis. [359] The respondent submits that, in the context of the issues at trial and of her Honour’s reasons read as a whole, it is plain that her Honour did approach the essential management exemption on the proper basis, being that the essential management exemption had to be excluded by the prosecution beyond reasonable doubt. Analysis [360] The respondent’s submission is correct. Both parties agree on this appeal that the burden lay on the prosecution to exclude the exemptions in Schedule 24 beyond reasonable doubt. In my opinion, any fair reading of her Honour’s reasons demonstrates that she approached the exemptions in Schedule 24, including the essential management exemption, on that basis. [361] First, at the start of her Honour’s reasons, she stated “The Ultimate Question” as set out in Reasons [21] in a manner correctly identifying the onus and standard of proof. That statement carries particular weight as indicating her Honour’s approach, inter alia, to the exemptions in Schedule 24, given that it represents her formulation of the ultimate question at the start of her reasons. Further, at the start of her Honour’s analysis of Complaints 2 and 4, she again expressly stated the need for the exemptions under s. 24 to be excluded beyond reasonable doubt. [362] Given these observations, it would be difficult to sustain the contention that looser language elsewhere in the judgment reflected a failure to approach questions of onus and standard of proof on the correct basis. The appellant did not address these parts of her Honour’s Reasons at all. [363] Second, the observation by her Honour that essential management was the only realistic exemption has to be considered in context. That context is set out in paragraphs [162] to [169] above. It shows that that her Honour’s comment was made at the end of her analysis of the Schedule 24 exemptions. It was in my view no more than a concluding summary comment by her Honour that essential management was -- 98 of 242 -- 99 the only exemption which in her view was credibly raised on the evidence. This ground of appeal is unsustainable. [364] It is necessary at this point to comment on Particular 1A(b) in the Amended Notice of Appeal. That paragraph adds nothing of substance to the appellant’s argument. The first sentence contends that her Honour should have found that each exemption was not an exemption but a legal element. For the reasons I have given, the Schedule 24 exemptions were not legal elements of the offence. The particular is otherwise irrelevant. Her Honour clearly articulated the correct onus and standard of proof as noted above. In that context, to describe the Schedule 24 items as exemptions is a convenient way to describe their effect. I have done the same in this judgment on occasions. In case the contrary is suggested later, I make clear that I use that term merely as a convenient description of the items and sub-items in Schedule 24. Like her Honour, I approach this case on the basis that the prosecution had to exclude each item in Schedule 24 beyond reasonable doubt. Ground 4/1B: Errors in concluding essential management exception excluded Introductory comments [365] Ground 4/1B is articulated as follows: 1B. As a result of the learned Magistrate asking herself the wrong questions as set out in Ground 4 – 1A (above), she then made a series of legal and factual errors when evaluating the evidence in respect of the “essential management” ‘exemption’ before erroneously accepting, in its entirety, Mr Tran’s evidence that in respect of each offence charged in Complaints 2 and 4, the charged clearing was not for essential management. [366] The gravamen of the ground seems to be that her Honour made a “series of legal and factual errors” in her approach to the essential management exemption. The “legal and factual errors” as identified in the particulars related to: (a) Paragraph (a) of the definition: clearing for the protection of infrastructure; (b) Paragraph (c): clearing to remove imminent risk of damage to infrastructure; and (c) Paragraph (e): clearing necessary to maintain infrastructure. [367] It is alleged that these errors caused her Honour erroneously to evaluate the evidence on the essential management ground and to accept the evidence from Mr Tran. The substance of the point seems to be that if the alleged errors were not made, her Honour would not have concluded on the evidence of Mr Tran that the essential management exemption was excluded. Paragraph (a): protection of infrastructure Appellant’s contentions [368] The particulars for this sub-ground cover some 20 paragraphs. The contentions can be summarised as follows. (a) The definition of infrastructure in the SPA includes “land ... for supporting economic activity and meeting environmental needs”; (b) That definition applies to sub-item (a) of the definition of essential management; -- 99 of 242 -- 100 (c) All the land comprised in Chess Park was infrastructure because it was for supporting the economic activity of a cattle grazing undertaking, with the result that the appellant was entitled to establish a fire break necessary to protect the land which was 20 metres wide or equivalent to 1.5 time the tallest adjacent vegetation; and (d) The prosecution did not lead “specific” evidence to establish that the exemption was excluded on that construction. [369] The appellant also contends that her Honour failed to take into account that existing fire breaks and trails in 2011 were inadequate because 90 per cent of the appellant’s land was burnt out in the September 2011 fires. That fact was said to establish that more and wider fire breaks were necessary to protect the land. Respondent’s contentions [370] The respondent contends that the appellant cites no authority that supports the construction of the definition of “infrastructure” as including the appellant’s entire property including areas occupied by native vegetation nor that his clearing was necessary to protect or maintain it. Analysis [371] The first question to determine is whether part or all of the appellant’s land is “infrastructure” within the meaning of that word in the definition of essential management because it is used to graze cattle. In my respectful view, for the following reasons, it is not. [372] The ordinary meaning of infrastructure is not apt to include land, at least large expanses of grazing land. Macquarie Dictionary defines “infrastructure” as follows: 1. the basic framework or underlying foundation (as of an organisation or a system). 2. the roads, railways, schools, and other capital equipment which comprise such an underlying system within a country or region. 3. the buildings or permanent installations associated with any organisation, operation, etc.87 [373] Definitions 2 and 3 are applicable to this context. Land is something upon which infrastructure is built, it is not infrastructure itself, though it is open on that definition in my view for land to be formed into infrastructure such as a dam. [374] The appellant correctly submits that the definition of infrastructure is extended by the SPA. The SPA defines infrastructure in Schedule 3 as including “land, facilities, services and works used for supporting economic activity and meeting environmental needs”. Section 6 SPA provides that the “dictionary in Schedule 3 defines particular words used in this Act”. There is no express proviso about a contrary intention. However, section 32A Acts Interpretation Act 1954 (Qld) (AIA) provides that definitions “in or applicable to an Act apply except so far as the context or subject matter indicates or requires”. In Conde v Gilfoyle [2010] QCA 109 at [20] the Court commented on this provision as follows (footnotes omitted): The role to be played by definitions in a Queensland Act is provided by s 32A of the Acts Interpretation Act 1954 (Qld). That section provides that definitions in an Act apply “except so far as the context or subject matter otherwise indicates or requires.” 87 The Macquarie Dictionary (7th ed, 2017). -- 100 of 242 -- 101 It is not uncommon to find in an interpretation statute a provision to the effect that a definition found in a statute applies unless the context otherwise requires. Section 32A differs from the provision more commonly encountered in two respects. Regard is to be had, not simply to the context, but also to the subject matter of the provision in which the defined term occurs. Moreover, the application of the definition may be affected not only because the context otherwise requires; it may be affected because the context (or subject matter) otherwise indicates. These features evince an intention by the legislature that a more flexible approach be taken to the application of a statutory definition, when interpreting Queensland legislation, than would be required under some other interpretation provisions. That approach is expressed in the language of s 32A. [375] This statutory provision might be thought to give somewhat less weight to a statutory definition than occurs at common law,88 though in practice the difference might be illusory. Section 6 does not apply the Schedule 3 definitions in terms to the Regulations. However, they will apply by force of s. 37 Statutory Instruments Act 1992 (Qld) (SIA): see s. 14 and Schedule 1 SIA. [376] In approaching the application of the SPA definition to the essential management exception it is important to bear in mind that the SPA and the Regulations cover a very broad and diverse range of activities. The range of alternative forms of assessable development is but one example. Further, infrastructure is a term used in many diverse contexts in the SPA and the Regulations.89 These are relevant aspects of context for the purposes of s. 32A AIA which suggests some circumspection in assuming that a definition in the Act applies in a particular context. [377] A second aspect of context is the context in which the exemption appears in the Regulations. That context is provided relevantly by the definition of essential management. In my view, the meaning of infrastructure must be such as to fit with the definition of essential management read as a whole. The following aspects of the definition tell against including land used for grazing as infrastructure in that definition: (a) First, if infrastructure includes grazing land, it is difficult to give a reasonable meaning to the balance of paragraph (a). If the entire property, including the native vegetation areas, is infrastructure, a fire break would be permitted anywhere it could be shown to be necessary to protect some other part of Chess Park from fire. It is hard to see what the limit would be as to how many fire breaks were authorised. Large areas of native vegetation could be cleared to protect other areas of native vegetation on the basis that cattle also graze in those areas. This seems unlikely to be consistent with the subject matter of the exemption which is concerned with defining exemptions to a plenary prohibition on clearing native vegetation. Similar difficulties arise in giving meaning to paragraph (c) of the definition. How does one identify the reasonable limits to clearing under that paragraph where the whole of Chess Park is infrastructure if there is a fire underway? This point alone is sufficient to displace the SPA definition to the extent it refers to land. (An alternative would be that the whole property was one piece of infrastructure, with only a boundary fire break permitted. The appellant did not contend for that interpretation. It would not have assisted in respect of many charge areas.) 88 See Pearce and Geddes, op cit, [6.67]. 89 See for example Chapter 8 SPA. -- 101 of 242 -- 102 (b) Second, paragraph (e) tells against applying the definition in the Act. That paragraph identifies permitted maintenance clearing by reference to “infrastructure” but then lists specific items which would fall within the ordinary definition of infrastructure. Importantly, it also excludes contour banks. It might be debated whether a contour bank is infrastructure in its ordinary meaning. It is difficult to conclude that the intention of the Regulations would be to exclude formed contour banks from infrastructure but include land used for grazing. (c) Third, paragraph (f) deals specifically with land which has been transformed to a garden or orchard, but limits clearing in a material way. Again it is difficult to see how that very specific exception would be consistent with an intention that all grazing land be infrastructure. (d) Fourth, paragraph (g) plainly draws a distinction between land used for grazing purposes and infrastructure on that land. Paragraph (h) is in a similar form. [378] In my view, the context and subject matter of the use of the term infrastructure in the definition of essential management supports the conclusion that the inclusive definition of infrastructure in the SPA does not apply to the extent it includes land as infrastructure. I therefore reject this ground of appeal. [379] Even if I am wrong on the construction issue, in my assessment only a handful of the convictions would be set aside on this basis. While neither the prosecution, nor her Honour, directly addressed at trial the possibility of paragraph (a) of the definition being applicable to all of the grazing land on Chess Park as infrastructure (assuming the appellant did not contend that areas of native vegetation were land in this sense), there was evidence which addressed that matter. [380] Neither party made any submission as to how, if the appellant’s construction was correct, the convictions should be dealt with. However, reviewing the evidence myself, the convictions would be sustained in almost every case. The reasons can be shortly stated: (a) Whatever might be the scope for making fire breaks under paragraph (a) on the appellant’s construction, any fire break would have to be within the limits in that paragraph: 20 metres or 1.5 times the height of the tallest tree; (b) The evidence is that the largest trees on Chess Park were some 20 metres high. On that basis, the largest fire break permitted would be 30 metres. Let that figure be increased to 45 metres to cover even the most extreme examples; (c) It is sufficient to convict if any material part of the alleged cleared area is shown to have been cleared;90 (d) It will not just be sufficient to make out the exemption to demonstrate that the area of clearing is not more than 45 metres, it must be established that the area of clearing together with other adjacent cleared areas, is not more than 45 metres; 90 Coleman v Kinbacher [2003] QCA 575 at [12] to [17]. -- 102 of 242 -- 103 (e) Every charge except Charges 11 and 12 of Complaint 2 and Charges 5, 6, 10 and 24 of Complaint 4 involve areas wider than 45 metres at some part of the cleared area.91 [381] Even for those charges, it is far from clear that the evidence did not sustain some of these convictions. For example, Charge 11 of Complaint 2 involved clearing next to an area already cleared or excluded as an exempt area over 80 metres wide, or both. Accordingly, the clearing was not necessary because there was already a cleared area wider than 45 metres where the clearing occurred.92 This included the CSG pipeline right of way, but it is difficult to see why that negates the effectiveness of the area cleared to protect grazing land on either side. [382] Charges 5 and 6 of Complaint 2 together with the exemption, involve areas of a combined width of over 50 metres. It seems only the first of these areas would be lawfully cleared on the appellant’s construction, as the second involved creating an area wider than 45 metres between grazing land (assuming remnant vegetation areas as part of the grazing land).93 The northern area of Charge 24 of Complaint 4 also involves clearing which, together with uncharged areas, is well over 45 metres.94 [383] Despite these observations, it is possible that a handful of the convictions might not be sustainable if the appellant’s construction is correct. However, as I have found, that construction is wrong. Paragraph (c): Imminent risk exception Appellant’s contention [384] It is convenient to set out the appellant’s contention in full (as contained in the particulars in the Amended Notice of Appeal): The learned Magistrate erred at law (at paragraph [263] of the First Decision by failing, as a threshold matter, to assign a meaning to the word “imminent” (when it was not defined in the SPA) because the word “… did not require a special definition [as] the meaning is perfectly clear…”, when its meaning was not perfectly clear:- the Macquarie dictionary defines the word as meaning “likely to occur at any time” compared to the Oxford dictionary meaning of “about to happen”. By failing to assign a meaning to the word “imminent”, the learned Magistrate erred at law by then finding (expressly or implicitly) that the prosecution had proved beyond reasonable doubt that the clearing as particularised in each of the charges in Complaints 2 and 4 did not fall within the exemption. Respondent’s contention [385] The respondent’s submission was as follows:95 The appellant’s contentions about ‘imminent risk’ requires a strained interpretation of the word “imminent”... [T]he Magistrate made a finding about the meaning of imminent in the Reasons. Apart from two exceptions (which were conceded by the respondent, and found by the magistrate [sic]) there was no evidence that any of the clearing was done in response to an imminent risk of injury or damage. Nor could it have been, given the scale of the clearing. The argument seems to have been that trees that might one day burn and fall onto a fence could be cleared, but this does 91 This can be established using the ruler function to measure width for the charge areas available in Exhibit 23. 92 Exhibit 27, BMG 3 slide 138. 93 Exhibit 27, BMG 5 slide 44a (distance can be measured using the ruler function on Exhibit 23). 94 Exhibit 27, BMG 5 slide 173a. 95 Outline of Submissions on Behalf of the Respondent – Conviction at paragraph 304(c). -- 103 of 242 -- 104 not sit well with the prescription that “routine management” along a fence line is limited to a maximum width of 10 metres. Analysis [386] The appellant’s construction is wrong. The broader meaning of imminent seemingly asserted by the appellant is not consistent with the scheme of the definition which draws a distinction between a fire break to protect infrastructure in paragraph (a) and clearing necessary to remove or reduce imminent risk of damage to infrastructure in (c). In my view, the definition draws a distinction between general preparation to protect infrastructure and specific clearing as an emergency response in the face of a direct threat of damage. [387] In any event, I do not think the Macquarie Dictionary definition has the connotation that the appellant contends for. The current (7th) edition defines imminent “as likely to occur at any moment; impending”. In my view, that is consistent with the Oxford Dictionary definition cited by the appellant and the ordinary meaning of the word. It does not communicate, as the appellant seems to contend, that imminent can mean likely to happen at some time in the future, but not about to happen. No citation is given for the version of the Macquarie said to be the source. Paragraph (e): Necessary to maintain infrastructure [388] The appellant’s contentions are limited to paragraph (v) of the particulars. That paragraph is uninformative as to why her Honour erred and no submissions were made to address the deficiency. This paragraph discloses no error by her Honour. Conclusion on Ground 4/1B [389] This ground of appeal is dismissed. GROUND 5: LIMITATION DEFENCES (COMPLAINTS 1 AND 4) Introductory comments [390] Ground 5 of the Amended Notice of Appeal deals with alleged errors by her Honour in concluding that certain charges in Complaint 1 and Complaint 4 were instituted within the applicable statutory limitation periods. It is convenient at the start to set out some context. The appeal as it relates to Complaint 1 The charges challenged [391] It will be recalled that Complaint 1 contained five charges, two relating to FEA 34 (Charges 1 and 2), two relating to the DSF (Charges 3 and 4) and one relating to the road reserve (Charge 5). The Amended Notice of Appeal alleges error by her Honour only in relation to Charges 1, 2, 4 and 5. It is not contended that Charge 3 was time barred. The relevant statutory provisions [392] Complaint 1 related to offences against the Forestry Act which relevantly provided: (a) By section 88(4): (4) Time for commencement of prosecutions -- 104 of 242 -- 105 A prosecution for an offence against this Act may be instituted at any time within 12 months after the commission of the offence or within 6 months after the commission of the offence comes to the knowledge of the complainant whichever is the later. [Underlining added: note the 12 month period under the VMA for SPA offences] (b) By s. 95(g) Forestry Act: the averment in any complaint of the date on which the commission of any offence under this Act came to the knowledge of the complainant shall be evidence of that matter and in the absence of evidence in rebuttal shall be conclusive evidence of such matter. The two timing scenarios [393] In all of the charges contained in the complaints, the offending is alleged to have occurred over a period, rather than on a specific day. This is the consequence of two matters: first, the clearing was generally of a scale which was likely to have taken more than one day; and second, the complainant was only able to identify that clearing had occurred by reference to remote sensing images. Those images did not always permit identification of the particular day or days when clearing occurred because of the periodic and intermittent way that the relevant satellites captured remote sensing data. [394] The use of particulars which covered periods of clearing meant that the limitations question arose in two different scenarios. [395] The first scenario is where the entire period of clearing alleged in the charge was prior to the date 12 months before the institution of the prosecution. For Complaint 1, Charges 1 and 2 are in this category: (a) Charge 1 particularises the offending as occurring between 29 March and 13 May 2012 (as compared to 17 August 2013, the date Complaint 1 was instituted); (b) Charge 2 particularises the offending as occurring between 11 May 2012 and 5 July 2012. [396] The second scenario is where the period of the clearing alleged is partly within the 12 month period and partly outside that period. For Complaint 1, Charges 4 and 5 fall into this category: (a) Charge 4 particularises the offending as occurring between 29 March 2012 and 12 December 2012. (These dates were amended at trial in the light of evidence given by Mr Goulevitch. The original start date was 22 September 2012, meaning that the offending was wholly within the 12 month period); (b) Charge 5 also particularises the offending as occurring between 29 March 2012 and 12 December 2012. It was also amended in the same way as Charge 4. [397] Different issues arise depending on which scenario applies. It is not in dispute that the evidence at trial conformed to the dates specified in the complaint, though consideration needs to be given to the evidence for Charges 4 and 5, under the second scenario. -- 105 of 242 -- 106 Averments made [398] The timing issues were also affected by whether there was an averment relating to acquisition of knowledge of the offence. Charges 1 and 2 averred that the “matters contained in [the charge] …came to [the complainant’s] knowledge on 18 February 2013”. As will be seen, 18 February 2013 is the date that Mr Smith sent a letter containing particulars of, relevantly, the alleged Forestry Act offences to the appellant. [399] It will be recalled that Complaint 1 was instituted on 17 August 2013. It can be seen therefore that if that averment decided the issue of when the complainant acquired knowledge of the offences in Charges 1 and 2, they were brought within time, based on the second limb of s. 88(4) Forestry Act. [400] There were no averments in Charges 4 and 5. It appears this was because those charges, as originally framed, were within the first limb of s. 88(4), i.e. the clearing occurred within 12 months of the institution of the proceedings. The appeal as it relates to Complaint 4 The charges challenged [401] Complaint 4 contained 26 charges of offences against s. 578(1) SPA. The Amended Notice of Appeal alleges that 21 of those charges were out of time, being Charges 1- 15, 17, 19, 22, 24, 25 and 29. The remaining charges are not challenged on this basis. The relevant statutory provisions [402] The limitation provision applicable to s. 578(1) when it involves a vegetation clearing offence is contained in s. 68 VMA. That section relevantly provides: (3) Despite the [SPA], 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. ... (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. [403] Also raised in the submissions is s. 67(2) VMA dealing with averments. It provides: 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. [404] The parties joined issue as to whether this provision applied to the SPA Charges as they were not offences against the VMA. Ultimately that proved an irrelevant issue as both parties accepted s. 618 SPA was in materially the same terms.96 It provides: 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. 96 Appeal Day 2, page 80. -- 106 of 242 -- 107 The two timing scenarios [405] The comments in paragraph [393] above apply equally to the charges in Complaint 4. Accordingly, like the Complaint 1 charges, the use of particulars which covered periods of clearing meant that the limitations questions in relation to Complaint 4 arose in the two different scenarios identified in paragraph [395] and [396] above. It will be recalled that Complaint 4 was sworn on 28 June 2014. [406] The first scenario applies to Charges 1-15, 17, 19, 24 and 25. It is unnecessary to set out each date range.97 [407] The second scenario applies to Charges 22 and 29: (a) Charge 22 concerned alleged work between 10 February 2012 and 23 December 2013; and (b) Charge 29 concerned alleged work between 10 December 2012 and 13 March 2014. [408] As with Complaint 1, different issues arise depending on which scenario applies. Similarly, it is not in dispute that the evidence at trial conformed to the dates specified in the complaint, though consideration needs to be given to the evidence for Charges 22 and 29, under the second scenario. Averments made [409] All of the charges in dispute except Charge 29 contain a statement that the offence came to the knowledge of the complainant on 13 August 2013 (as will be seen, that is the date that Mr Goulevitch gave Mr Smith an analysis of the spatial imagery which allowed Mr Smith to identify the date on which the offending occurred). [410] Charge 29 specifies 8 April 2014 as the date that that offence came to Mr Smith’s knowledge. The factual context [411] The factual context in which the limitations issues fell to be determined was largely uncontroversial. It was the application of the law to the evidence given at trial which was controversial. The appellant’s appeal submissions contained a useful summary of the relevant matters which appeared to be accepted by the respondent. [412] On 16 August 2012, Mr Reinke visited Chess Park and observed: (a) That the freehold area adjoining FEA 34 had been subject to clearing; (b) Clearing, possibly 30 metres or wider, to the east of the eastern boundary of the FEA 34; (c) Several other fence lines and other vegetation clearing on the freehold was identified; (d) A 70-80 metre wide clearing on the freehold from the boundary fence, with a 20-30 metre retained strip that had not been cleared and then another 20- 30 metre clearing, parallel with the 80 metre clearing. 97 The date ranges are helpfully summarised in Attachment A to the Outline of Submissions on Behalf of the Respondent – Conviction. -- 107 of 242 -- 108 (e) There had been recent clearing in the FEA of 70-80 metres, with a retained strip and a second area of clearing of 20-30 metres.98 [413] On 23 November 2012, Mr Smith was allocated the investigation99 in relation to the clearing at Chess Park as the Department of Agriculture and Forestry did not have the investigators to investigate the matter.100 Mr Smith was aware at this time that Forestry Officers had seen the clearing on the FEA.101 [414] Between 23 November and 30 November 2012, Mr Smith discovered owner details and made arrangements to speak to Mr Reinke and Mr Opperman,102 who were the Forestry Offices who had seen the clearing on the FEA, DSF and road reserve.103 [415] On 30 November 2012, Mr Smith met with Brad Coome, Stuart Olive, Mr Reinke and Mr Opperman at his office in Rockhampton: (a) They told Mr Smith about what they observed within FEA 34, the DSF and the road reserve;104 (b) They provided Mr Smith with a bundle of 41 photographs,105 and two maps showing the clearing on the FEA and also on parts of the freehold of the property;106 (c) Mr Smith was advised that Mr Baker did not have any permits or entitlements to clear timber on the FEA.107 [416] On 14 December 2012, Mr Smith: (a) Was aware, before this date, that there had been interference with forest products in the DSF and the road reserve that runs through it.108 Mr Sparrow provided a map to Mr Smith showing the areas of clearing that he had observed.109 (b) Wrote to Mr Baker advising that the department had “commenced an investigation into allegations of interfering with forest products on the FEA and Dyngie State Forest and a Vegetation Clearing offence on [Chess Park].”110 (c) Gave evidence that he gained knowledge before this date that there had been some disturbance in the vegetation in the road reserve, possibly from Mr Sparrow.111 98 Trial Day 16, pages 30-31. 99 Trial Day 2, page 16, lines 13 – 14; Trial Day 3, page 77, lines 14 – 34. 100 Trial Day 3, page 77, lines 32 – 34. 101 Trial Day 3, page 78, lines 13 – 14. 102 Trial Day 3, page 78, lines 43 – 46. 103 Trial Day 2, page 16, lines 16 – 24. 104 Trial Day 2, page 16, lines 16 – 37. It is not clear what photographs were provided to the complainant at this time. 105 Trial Day 15, page 38, lines 7 – 30; also see Exhibit 46. 106 Trial Day 3, page 79, lines 37 – 39; Trial Day 15, page 41, lines 1 – 3; also see Exhibit 47. 107 Trial Day 3, page 80, lines 21 – 22. 108 Trial Day 3, page 81, lines 2 – 9. 109 Exhibit 55. 110 Trial Day 2, page 16, lines 39 – 41; see also Exhibit 5. 111 Trial Day 3, page 81, lines 2 – 16. -- 108 of 242 -- 109 [417] On 15 to 17 January 2013, Mr Smith conducted a physical inspection of Chess Park.112 [418] On 24 January 2013, Mr Smith received maps describing areas that had been investigated, the waypoints and the locations of the photographs.113 [419] On 29 January 2013, Mr Smith wrote a letter to Mr Baker confirming an investigation into suspected breaches of the Forestry Act (relating to the DSF and the FEA) and also carrying out assessable development on Chess Park without a permit or applicable exemption.114 [420] On 18 February 2014, Mr Smith, following a request for particulars by Mr Baker of the alleged offences set out in the letter sent on 29 January 2013, sent a letter and maps to Mr Baker providing particulars of the alleged interference with forest products and the vegetation clearing offence.115 [421] On these facts, the appellant contends that the Complaint 4 charges came to Mr Smith’s knowledge when he visited Chess Park on 15 to 17 January 2013, or when he wrote the 18 February 2013 letter. The appellant’s chronology therefore ends with the 18 February 2013 letter. [422] However, the respondent relies on the following further events postdating 18 February 2013. [423] Mr Smith gave evidence that prior to 13 August 2013, he did not know when any of the clearing which had been identified up to that time, which relevantly comprised clearing in the DSF, FEA and some clearing in the west of Chess Park, had occurred.116 [424] He gave evidence that he obtained information about when that clearing occurred in a conference with Mr Goulevitch on 13 August 2013. At that conference, Mr Goulevitch provided dates of clearing, relevantly, in the DSF, FEA and areas in Chess Park which became part of Complaint 2 based on Mr Goulevitch’s spatial analysis. Complaints 1 and 2 were sworn soon after. [425] Mr Goulevitch’s analysis delivered on 13 August 2013 also identified new areas of clearing. Mr Goulevitch thereafter also obtained further satellite data up to 1 September 2013.117 [426] On 6 November 2013, Mr Smith wrote to Mr Baker seeking permission to inspect further alleged clearing on freehold areas of Chess Park. [427] On 12 November 2013, Mr Smith sent Mr Baker a letter concerning areas previously inspected and new areas he proposed to inspect.118 [428] Mr Smith inspected those new areas, which gave rise to Complaint 4, on 26 to 28 November 2013 and in April 2014.119 112 Trial Day 2, page 17, lines 45 – 46. 113 Trial Day 15, page 41, lines 38 – 41. 114 Exhibit 7. 115 Exhibit 1. 116 Trial Day 3, page 80, lines 26 – 31. 117 Exhibit 32, lines 166 – 172. 118 Exhibit 13. 119 So much can be inferred from the location of the waypoints at which photographs were taken on during those inspections: Select the Complaint 4 areas and waypoints from the November 2013 and April 2014 -- 109 of 242 -- 110 [429] Mr Smith swore Complaint 4 on 28 June 2014. The appellant’s contentions Relevant principles [430] The appellant argues, unsurprisingly, the test for when the offence “came to the knowledge of the complainant” under s. 88(4) or “came to the complainant’s knowledge” under s. 68(3)(b) VMA is the same: that is, when the complainant had reasonable grounds to believe that the offence had been committed. [431] The appellant submitted that a complainant had reasonable grounds to believe that an offence had been committed once he or she knew of the matters which appeared to establish that an offence had been committed. If the complainant had that knowledge, it was not necessary also to know who had committed the offence, nor when the offence had been committed. The appellant relied on Witheyman v Van Riet [2008] 2 Qd R 587 and the series of cases which preceded it.120 [432] The appellant also submitted that while the authorities recognised a distinction between a complainant being informed of a complaint and receiving independent evidence of the complaint,121 that distinction applies where the informant is an ordinary member of the public but does not apply where information is provided to the complainant by public officers carrying out their duties. Impugned charges in Complaint 1 When offences came to the respondent’s knowledge [433] The appellant submitted that the offences alleged in Charges 1 and 2 had come to Mr Smith’s knowledge on 30 November 2012, when he met with the Forestry Officers, because on this date he was informed of the clearing in the FEA 34 and shown pictures and maps identifying clearing in the areas in Charges 1 and 2. Credible and specific advice from Forestry Officers was sufficient according to the appellant to give Mr Smith reasonable grounds to believe that those two offences had been committed. [434] The appellant submitted further that all four challenged Charges had come to Mr Smith’s knowledge on 14 December 2012 when he was given a further map of clearing in FEA 34 and was told about clearing in the DSF and knew about clearing the road reserve before that date. Credible and specific advice from Forestry Officers was sufficient according to the appellant to give Mr Smith reasonable grounds to believe that those two offences had been committed. [435] Finally, the appellant submitted that all four Charges had come to Mr Smith’s knowledge when, together with the previous information, he inspected those areas (along with the Complaint 2 areas) by 17 January 2013 and when he had inspected and seen the clearing which had occurred for himself. inspections on the ArcReader at Exhibit 23 and see footnote 117; see also the evidence referred to at footnote 436 and 437 of the Outline of Submissions on Behalf of the Respondent - Conviction. 120 Smith v Baldwin [1979] Qd R 380; Woods v Beattie [1995] 1 Qd R 343; Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254. 121 Smith v Baldwin [1979] Qd R 380; Woods v Beattie [1995] 1 Qd R 343. -- 110 of 242 -- 111 Averment issue [436] The appellant submitted that on its proper construction, s. 95(g) Forestry Act did not require rebuttal evidence, in the form of evidence called by the defendant, to prevent the averment from comprising conclusive evidence. The appellant submitted that evidence in rebuttal ought to be given a broader meaning to include evidence answering the averred allegation, whether led by the prosecution or the defence. [437] Accordingly, the appellant submitted, he was correct in his analysis of the evidence as to when knowledge of the offences came to Mr Smith, and the averment in Charges 1 and 2 could not avail the respondent. [438] It is convenient to deal with this issue here. While the respondent contended in its written submissions on appeal that evidence in rebuttal had to be evidence called by the defendant, Mr Hunter did not maintain the proposition orally. He conceded that evidence in rebuttal should be construed as including evidence led by the prosecution. The reason he gave for his concession was as follows: I was going to say, your Honour, I don’t, thinking about it, see how I could possibly contend that evidence in rebuttal should be restricted to evidence called by a defendant, because how on earth would a defendant give evidence about the state of mind of an investigator.122 [439] In my respectful view that concession was correctly made, for reasons including the one Mr Hunter identified. There are other reasons why that construction should be adopted as correct. [440] First, the technical legal meaning of “evidence in rebuttal” does not sit comfortably with the context. In the law of evidence, evidence in rebuttal is evidence called after a party’s case has closed, to answer evidence led by another party.123 This meaning does not make sense in the context of s. 95(g), as evidence led by the defendant in response to the averment in a complaint would ordinarily at least be part of the defendant’s case. [441] Second, it would be a strange situation if a defendant could be convicted on the basis of the averment being conclusive where it was clear on the prosecution case that the averment was wrong. Such an odd result would require clear words to that effect, especially in the context of a prosecution. The section does not contain such clear words. [442] Third, in Walker v Hay [1973] QSCFC 9, the Full Court came to the same view when considering a provision in materially the same terms. That case considered whether a blood specimen could be relied upon as evidence. A blood analyst had provided a certificate that the specimen was fit for analysis. Traffic Regulations 1962 (Qld) Regulation 178(5) provided in relation to such a certificate, that upon its production in evidence “in the absence of evidence of rebuttal thereof be conclusive evidence.” Hoare J held that there was no restriction on what may be “evidence of rebuttal”. The only requirement was that the evidence be credible.124 Williams J held that the statute required an accused to introduce reasonably credible evidence impugning the accuracy of what is deemed to be correct. He stated that “this he may do by cross examination of prosecution witnesses or evidence by him or on his behalf. I think that all that is necessary is that there should be evidence before a 122 Appeal Day 2, page 93, lines 11 – 14. 123 J D Heydon, Cross on Evidence (Lexis Nexis) [17620]. 124 Walker v Hay [1973] QSCFC 9, judgment of Hoare J at 2. -- 111 of 242 -- 112 Court which ‘fairly raises the question of whether the matters deemed correct are in fact so’.”125 [443] In my view the construction contended for by the appellant is the correct one. Charges 4 and 5 [444] Charges 4 and 5, it will be recalled, particularised the clearing over a period which straddle the date one year before Complaint 1 was sworn. In this respect, the appellant submitted orally:126 (a) The respondent was confined to proving its case in accordance with the particulars; (b) The particulars included clearing outside the one year period; (c) Unless the whole of the particularised clearing was within the one year period, the offence was barred (the appellant relied on De Bray v Cohen [2008] QDC 275 at [36] for this proposition) unless it came within the second limb;127 and (d) For the reasons already given, Charges 4 and 5 did not come within the second limb of s. 88(4). [445] The appellant also filed submissions in reply which dealt, inter alia, with this issue (the 10 May 2018 submissions). The appellant submitted that the clearing offence was not a continuing offence. He relied on the general distinction between conduct which goes on from day to day but which constitutes a separate offence each time and conduct of a passive character which consists in an on-going failure to perform a duty.128 He submitted clearing offences should be characterised as the former and that that conclusion is supported by Brinkworth v Dendy [2007] 97 SASR 416, a case relied upon by the respondent. Impugned charges in Complaint 4 When offences came to the knowledge of the respondent [446] The appellant contends that the impugned charges in Complaint 4 came to Mr Smith’s knowledge on completion of the first inspection on 17 January 2013 or alternatively by the time he sent the 18 February 2013 letter. [447] The argument that the Complaint 4 offences came to Mr Smith’s knowledge during the 17 January 2013 inspection is one of the points raised in this appeal which was agitated before her Honour. [448] The submission put to her Honour was dealt with at Reasons [69]-[70] as follows: [69] The Defence’s submission is that Mr Smith gained the relevant knowledge at the latest in January 2013 when he visited the property and assessed the clearing...The Defence further says Mr Smith should have seen the clearing alleged in Complaint 4 when he visited in January 2017and says it is out of time as sworn on 24 June 2014. 125 Walker v Hay [1973] QSCFC 9, judgment of Williams J at 37-38. 126 Appeal Day 2, pages 41-47. 127 See the 10 May 2018 submission at [94]-[95]. 128 Joseph v Worthington [2018] VSCA 102; Agius v R 80 NSWLR 486 at 501. -- 112 of 242 -- 113 [70] That submission has no substance. It was never put to Mr Smith that he saw the clearing and some of the clearing occurred long after January 2013. [449] The passage was criticised on the basis that her Honour had reversed the onus of proof by raising a Browne v Dunn inference against the defendant when the prosecution bore the onus of establishing that the complaint was brought within time. [450] The appellant maintained in this appeal the substantive submission made at trial. It was not explained in any detail, however, how one could raise a doubt that the impugned charges were brought in time on the basis that Mr Smith had seen the areas relating to those charges in January 2013. Paragraph 131 of the appellant’s appeal submissions said only this: The first possible date that the SPA offences contained in Complaint 4 came to the knowledge of Mr Smith was 17 January 2013, when Mr Smith inspected Chess Park, and saw the clearing himself. Mr Smith spent three says inspecting Chess Park, but it was not made clear as to what observations were made on each particular day in relation to each charged area. [Underlining added] [451] Mr Hunter expressly called on the appellant during the hearing to identify the evidence that might support the contention that Mr Smith saw those areas, given that the ArcReader maps in Exhibit 23 show where he went.129 Mr Trewavas, who appeared with Mr Allan for the appellant, responded130 by referring to Mr Smith’s evidence that he did not take photographs at each and every waypoint he visited. The inference seemed to be that if photographs were not taken at every waypoint, it might be reasonably inferred that: (a) Mr Smith went to other waypoints; and (b) At those waypoints he might have seen the Charge 4 clearing areas. [452] The appellant submitted in writing that the impugned offences also came to Mr Smith’s knowledge by the time of the 18 February 2013 letter. This submission was not developed (but see paragraph [492] below). The respondent’s contentions Relevant principles [453] The respondent did not cavil with the appellant’s general principles. However, the respondent submitted that Witheyman v Van Riet was authority for the proposition that a complainant must know when an offence was committed to have knowledge of the offence. The respondent pointed to paragraph [15] of the leading judgment delivered by Fraser JA (which was relied upon by her Honour below). It is useful here to put that paragraph in context: [14] It was submitted on behalf of the applicant that the natural construction of the phrase in s. 68(3)(b) “the offence comes to the complainant’s knowledge” necessarily implies knowledge of the identity of the offender. This was said to follow from the use of the phrase “the offence” rather than more general words such as “an offence”. 129 Appeal Day 2, page 70, lines 1 – 30. 130 Appeal Day 2, page 116; Trial Day 2, page 20, line 27 -- 113 of 242 -- 114 [15] I disagree. The requirement that “a proceeding for a vegetation clearing offence must start … within one year after the offence comes to the complainant’s knowledge …” does not necessarily imply knowledge of the identity of the offender. Where someone knows of specific facts that constitute the elements of a particular offence at a particular place and within a particular period, but is in doubt as to the identity of the offender, it is a perfectly natural use of language to say that the person knows the offence has been committed. It involves no misuse of language to say that the applicant knew of the commission of the offence against s. 4.3.1 of the Integrated Planning Act 1997 described in the complaints once the applicant knew that someone had started assessable development within the specified period in the form of the clearing of trees covering the specified 2,823.9 hectares of the described land without any development permit. [16] That view derives support from a number of considerations identified by the judge. The authorities provide some guidance as to what is required for the relevant “knowledge”, but in none of the authorities is there a clear statement that knowledge of the identity of the offender is required. If the legislature had intended that s. 68(3)(b) required knowledge of the identity of the offender the enactment of s. 68(6) seems particularly odd: s. 68(6) implies that, were it not enacted, a complainant might know of the commission of an offence merely by receiving a remotely sensed image. The one year period specified in s. 68(3) provides ample time for the complainant to investigate the offence and gather the necessary evidence, including in that process identifying the particular offender, before proceedings are commenced in time; that is a relatively generous period when compared with other statutory examples. If the legislature had intended that knowledge of the identity of the offender was required to set time running, the legislature could easily have said so, as legislatures occasionally have done. [454] The respondent relies on the reference to “within a particular period” as supporting its proposition. [455] While accepting that knowledge of who committed an offence is not necessary, the respondent contended that ultimately, whether a matter comes to the knowledge of a complainant is a question of fact which must be determined in each case on the facts. In this case Mr Hunter relied on two matters: (a) He submitted that the complexity of the factual situation in respect of land clearing relevantly informed whether the offence had come to Mr Smith’s knowledge; and (b) He submitted that it was necessary to know when the offence was committed for the offence to have come to his knowledge. Impugned charges in Complaint 1 When charges came to the knowledge of the respondent [456] Consistent with the contention that when the offence was committed was material in knowledge of the offence coming to Mr Smith, the respondent submitted that Mr Smith did not know when the Complaint 1 clearing had occurred until he received the analysis from Mr Goulevitch on 17 August 2013, and accordingly the complaint was sworn well within time. -- 114 of 242 -- 115 Charges 4 and 5 [457] In the alternative, the respondent contended that Charges 4 and 5 were brought within time based on the first limb of s. 88(4). The respondent contended that those offences were continuing offences in the sense that the offence was not completed until the end of the clearing period pleaded (and proved by Mr Goulevitch). The respondent relied on authorities dealing with the character of land clearing offences: Brinkworth v Dendy (2007) SASR 416 and Bentley v BGP Properties Pty Ltd (2005) 139 LGERA 449 which supported the proposition that clearing of a particularised area by a series of acts over time comprised a single offence. [458] The respondent pointed to the evidence from Mr Goulevitch that the clearing was in fact continuing up to a date which was within the limitation period for each of Charges 4 and 5.131 As the offences alleged in Charges 4 and 5 were not completed within the one year period, the respondent submitted that they were sworn in time. Impugned charges in Complaint 4 [459] The respondent submitted that there was no direct evidence that Mr Smith saw any of the cleared areas the subject of the impugned charges in Complaint 4 and that there was no realistic inference that he did. As to the latter, Mr Hunter: (a) Drew attention to the evidence in the correspondence and from Mr Goulevitch that the prospect of clearing in what became the Complaint 4 areas was not drawn to Mr Smith’s attention until Mr Goulevitch raised it in August 2013, and it was only at that point that Mr Smith went to inspect those areas in November 2013 and April 2014; and (b) There was no basis to infer Mr Smith observed the clearing in the Complaint 4 areas when he visited Chess Park in January 2013 because: (i) Few of Mr Smith’s waypoints were in the location of the Complaint 4 clearing; and (ii) The clearing in the Complaint 4 areas would not have been obvious unless pointed out. It did not involve the wholesale clearing seen in other areas. Rather it generally involved partial clearing, generally the light parkland clearing identified by Mr Goulevitch.132 Analysis: Complaint 1 When the impugned charges came to the respondent’s knowledge [460] The only date contended for by the appellant as the relevant date which needs to be considered is 17 January 2013. That is because on 17 January 2013, Mr Smith had both the information provided by the Forestry Officers in November and December 2012 and the benefit of a personal inspection of the charge areas in January 2013. If that was not sufficient to conclude the Complaint 1 charges had come to his knowledge, then the lesser information provided on the two earlier dates will also not be sufficient. 131 See the references at footnotes 429 and 440 of the Outline of Submissions on Behalf of the Respondent – Conviction. 132 Appeal Day 3, pages 50-52. -- 115 of 242 -- 116 [461] The question as distilled by the respondent, correctly in my view, is whether Mr Smith had come to knowledge of the Complaint 1 charges in circumstances where he had reasonable grounds to believe that forest products had been interfered with in the four areas particularised without a permit, but did not know when that had occurred. [462] That question must be answered in the appellant’s favour. [463] I do not agree with her Honour or the respondent that Witheyman v Van Riet is authority for the proposition that a complainant must know when an offence was committed to have knowledge of a particular offence. [464] In my view, when Justice Fraser referred to knowledge of the offence including knowledge of its commission, inter alia, “within a particular period” at paragraph [15], his Honour was not stating as a matter of principle that knowledge of when an offence took place is essential for an offence to come to the knowledge of a complainant. His Honour’s comment was made in the context where it was common ground that the complainant knew that matter (along with the other matters in paragraph [15] of his Honour’s judgment). The issue before the Court in that case was whether a complainant had to know who had committed an offence before he or she had knowledge of an offence. The question of when was not under consideration. [465] In this case, it seems to me that knowledge of when was not required for the Complaint 1 offences to come to Mr Smith’s knowledge. The prosecution’s contentions on this matter do not persuade me to the contrary. [466] First, Mr Hunter submitted the fact that ‘the when’ was important because Mr Baker had only acquired the Forestry Act areas within Chess Park in early 2011. He submitted “if Mr Baker had owned the property since time immemorial, this issue wouldn’t arise”.133 This amounts to a recognition that until Mr Smith knew ‘the when’ he could not determine who the owner was at the time and therefore who was liable. That is just another way of saying that Mr Smith did not know who had committed the offences. The respondent accepted Witheyman established that ‘the who’ was not required to meet the statutory rest. A fortiori in this context where knowledge of ‘the when’ was only relevant to knowledge of ‘the who’. [467] Second, Mr Hunter also seemed to refer in oral argument to the consideration that until Mr Smith knew when the offences had occurred, he could not assess how the limitation provision might apply. I do not find this a persuasive basis for concluding that knowledge of ‘the when’ was required for Mr Smith to come to knowledge of the Complaint 1 claims. [468] While the prosecution bears the onus of establishing that the offending occurred within time, it cannot be said that a complainant does not have reasonable grounds to believe that an offence has been committed if the complainant has reasonable grounds to be believe that all the elements identified in the offence creating provision have arisen, but the possibility of a limitation issue exists. There will always be the possibility of exculpatory provisions upon which the prosecution bears the onus arising in respect of an offence. However, it seems unlikely that Parliament would intend that a limitation period not begin to run until a complainant had sufficient information about all such provisions. That would be apt to complicate determining 133 Appeal Day 3, page 34, lines 37 – 38. -- 116 of 242 -- 117 when a complainant came to knowledge of an offence and also has the potential unreasonably to extend the time limit under the second limb. [469] It must be also kept in mind that the dates identified by s. 88(4) trigger periods within which the complainant will have further time to investigate and determine the particulars of the offence. If Mr Smith is aware of clearing in a specific area prima facie in breach of the Forestry Act, he will have 12 months from the date of the clearing, or six months from coming to knowledge of those elements, to determine if the complaint can be brought in time. [470] Third, Mr Hunter was correct to point out that determining on the ground whether and where clearing had occurred could be a challenging task for a complainant. Information about those matters is likely to develop over time as investigations continue. However, as I read the evidence, Mr Smith was not in that position in relation to the Complaint 1 offences in question after his visit to Chess Park. By 17 January 2013: (a) He had clear advice from reliable sources (other departmental officers who had been on site) of the fact and general area of the clearing; and (b) He had inspected the relevant areas himself, as was demonstrated by the photographs he took which were linked to the waypoints in Exhibit 23. [471] The respondent could not point to any concrete consideration relevant to the clearing for Charges 1, 2, 4 and 5 which left Mr Smith in real doubt as to the basis to believe that forest products had been interfered with, without a permit, in the charge areas by 17 January 2013. All those charges were brought more than six months after that date. Charges 1 and 2 brought out of time [472] As the clearing alleged and proved for Charges 1 and 2 was otherwise outside the one year period, her Honour erred in concluding that Charges 1 and 2 were brought within time. Those charges must be dismissed. Charges 4 and 5 brought within time [473] Despite my finding in paragraph [471], I accept the respondent’s submission that Charges 4 and 5 were brought within time because the clearing proved at trial continued until less than one year before Complaint 1 was sworn. There are two matters to be addressed in demonstrating the basis for that conclusion: (a) That, in fact, some part of the clearing occurred within time; and (b) That, as a matter of law, the consideration has the consequence that those charges were brought within time. Some clearing occurred within one year of the swearing of Complaint 1 [474] In its written submissions, the appellant asserted:134 The prosecution did not prove, or even attempt to prove, what clearing alleged in Complaint 1, charges 4 and 5, occurred after 16 August 2012 that is within the first limb of the limitation period. 134 Appellant’s Part 2B submissions at paragraph 33. -- 117 of 242 -- 118 [475] However, the appellant did not respond to propositions to the contrary advanced by the respondent referred to in paragraph [458] above, either orally or in writing. Mr Goulevitch’s evidence confirmed that clearing continued in the Charge 4 area at the least between 22 September 2012 and 11 December 2012.135 The same is confirmed in relation to Charge 5.136 I therefore find that there was further clearing in those areas within one year prior to the swearing of Complaint 1. Charges 4 and 5 were within time as a matter of law [476] The respondent proved its case as to the period of clearing in accordance with its particulars. The key issue which thus arises is whether the appellant is correct in its contention that unless all of the clearing occurred in the Charge 4 and 5 areas within the one year limitation period, the charge is out of time. [477] The only authority directly relied upon by the appellant to make good that proposition as I understood it was De Bray v Cohen [2008] QDC 275. That case is not authority for that proposition. De Bray involved a prosecution for an offence against a Local Law which provided that “a person must not damage or permit to be damaged protected vegetation”. The issue which arose on the appeal was whether the complaints were sworn within the relevant limitation period, which was within one year after the commission of the offence or six months after the offence came to the complainant’s knowledge but within two years of the offence. [478] The complaints against the appellants alleged the commission of offences against the section on a date between December 2000 and November 2003 on certain land. The complaints were sworn on 12 February 2004. They were convicted. On appeal, it was contended that the prosecution had not established that the complaints were sworn in time. His Honour agreed. His Honour reviewed the evidence given on the limitations issue at trial and the Magistrates reasons and concluded (at paragraph 52): Because the evidence does not in my view establish any damage occurring within the limitation period no point would be achieved by sending the matters back to the Magistrates Court. At best for the prosecution the evidence may have possibly established a reduction in canopy cover during the limitation period as a result of damage caused outside the limitation period. [Underlining added] [479] Importantly, his Honour found (at paragraph 42) that: The magistrate did not at all consider the limitation period or the evidence bearing on it; nor did he make any findings of when particular damage was caused other than that it occurred between the dates charged. He did not refer to the definition of damage or make any finding as to what if any damage had been caused between 13 February 2003 and November 2003. The respondent cannot exclude the fact that damage to the trees – the acts of poisoning – may have been caused or done before 13 February 2003. [Underlining added] [480] The underlined comments demonstrate why De Bray does not assist the appellant. The appellants succeeded because the prosecution did not establish that any damage occurred in the limitation period. That is not this case. Here the evidence established 135 Trial Day 4, page 68, lines 25 – 30 (though that must be read in the context of his evidence on Charge 4 overall). 136 Trial Day 4, page 71, lines 1 – 10. -- 118 of 242 -- 119 that individual acts comprised in the conduct alleged to give rise to the offence occurred in the 12 month limitation period. [481] The appellant’s contention on the continuing offence issue also does not assist it. The general points of principle stated by the appellant can be accepted. His articulation of the distinction drawn between separate offences and continuing offences is supported by the authorities cited. [482] In Joseph v Morthington & Anor [2018] VSCA 102, their Honours adopted the following dicta from O’Brian and Gillard JJ in R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615 at 620: A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied. [483] The same analysis was adopted in Agius v R (2011) 80 NSWLR 486 at [58], where Johnson J, with whom Tobias AJA and Hall J agreed, adopted the following statement by Street CJ in Sloggett v Adams (1953) 70 WN (NSW) 206 at 208: The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis, by Sir Francis Jeune, who said: ‘The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue’. [484] The appellant also submitted correctly that whether an offence is continuing or not according to the approach in Agius and Barelli is a question of construction in each case. [485] However, it is the next step in the appellant’s argument where it falls down. The appellant says that on the approach in those cases, tree clearing is not a continuous offence. That can be accepted as correct. However, that is no proper answer to the respondent’s argument. The appellant’s argument proceeds, at least impliedly, on the basis that the offence of interfering with forest products is a once and for all offence, in the sense in which that expression is used in the extract from Sloggett above. The respondent’s point is that courts have taken a pragmatic approach to identifying the act comprising the clearing of vegetation. The point is helpfully explained in the following passage from the respondent’s submissions, which I respectfully adopt:137 8. Importantly, in each case the offence is a continuing one – that is to say, the activity or course of conduct relied upon to establish the clearing of 137 Outline of Submissions on Behalf of the Prosecution: Limitation Periods. -- 119 of 242 -- 120 vegetation may properly be regarded as one act, albeit that it spans a period of time. 9. In Brinkworth v Dendy138, the defendant was charged in a single count with clearing vegetation over a seven month period. In rejecting a complaint of duplicity, Doyle CJ said: Practical considerations suggest that while the prohibited act is the clearance of plants, it should be possible to charge an offence that consists of the clearance of an unspecified number of plants, and that it should be permissible to lay the charge in a form that identifies the place or area where the plants were before they were cleared. Unless this is so, in many situations the prohibition in s 26(1) will be unenforceable. 10. His Honour also noted, following Walsh v Tattersall139 that the existence or absence of duplicity may not be apparent until the evidence has been adduced. 11. Debelle J, reaching the same conclusion that the charge was not bad for duplicity, approved a statement by Smart JA in Bentley v BGP Properties Pty Ltd140 where his Honour said: [55] Environmental offences are notoriously difficult of proof. While the damage caused to a particular area is often all too evident, the prosecuting authority by its officers, is not present when the actual damage is caused and does not know the precise mechanism by which the damage was caused. The prosecuting authority may be able to ascertain the machinery which the landholder has or used. The landholder may do the work himself or have staff do it or engage contractors. From inspections of the property after the damage has been caused it may be evident that the damage has been caused by an act or acts in that the result produced could not have happened without an act (or, in some circumstances, an omission). However, it may not be possible to identify the particular acts or acts causing the damage. Not infrequently the damage will have been committed by a series of acts, for example, driving a mower or a dozer or grader over an area for an hour or so, or even over some days or weeks. It may be some weeks later before an inspection takes place as a result of intelligence received or gathered by the Service. [56] I would adhere to the statements of principle that for continuing offences and facts so related that they amount to one activity and that where an offence is defined in the terms of a course of conduct or state of affairs, the prosecution can rely on a series of closely related acts (or omissions) and is not confined to relying on one act. Nor would I question that the acts or omissions relied upon by the prosecution may take place continuously or intermittently over a period of time. These principles are of appreciable importance in relation to environmental offences. Damage of consequence may be caused by several acts in combination, whereas damage caused by one act may be inconsequential. 12. Smart JA’s statement of principle is entirely apposite to the present case, where the prosecution can only identify the dates between which the clearing occurred by reference to satellite photographs. It has not been suggested to any witness (particularly to Mr Smith) that any greater precision was possible. Thus it was permissible, on the facts of this matter for the prosecution to charge Mr Baker with 138 (2007) 97 SSR 416. 139 (1996) 188 CLR 77 at 108. 140 (2005) 139 LGERA 449. -- 120 of 242 -- 121 a continuing offence of clearing between two specified dates. The offence is not complete until the latter of them. Time cannot commence to run until the offence is complete, and so it is the latter of the two dates specified in any single count that is significant in any argument about limitation periods. [486] In my view, the reasoning in these cases applies equally to the offences created by ss. 39 and 58 of the Forestry Act. In this case, the clearing alleged in Charges 4 and 5 comprised a series of acts which together amounted to the conduct giving rise to the offences. The offence as formulated in the charges was not complete until the conduct ended. That occurred during the 12 month limitation period. Accordingly Charges 4 and 5 were brought within time. [487] The appeal in relation to Charges 4 and 5 in Complaint 1 is dismissed. Analysis: Complaint 4 [488] I deal first with the appellant’s contention that her Honour erred by shifting the onus of proof. Although I can see the basis for appellant’s complaint, I am not persuaded that her Honour’s observations are fairly characterised as reflecting a shifting of the onus of proof from the prosecution to the defendant in respect of establishing that the impugned charges in Complaint 4 were sworn within time. Her Honour’s observation might be thought to be equally consistent with a shorthand way of observing that there was no evidence that Mr Smith did see the Complaint 4 areas in January 2013 and the appellant had done nothing at trial to address that shortfall. However, this is a moot point on this appeal as, for the reasons I give, I find that the prosecution did establish beyond reasonable doubt that the impugned Complaint 4 charges were brought within time. [489] I identified no submission by the appellant which pointed to direct evidence that Mr Smith observed clearing in any of the impugned Complaint 4 areas when he visited Chess Park in January 2013. Nor did he give evidence that he did not observe any of those areas. The matter was not directly addressed by either party. [490] The prosecution’s case on this point therefore is necessarily a circumstantial one. In establishing a circumstantial matter upon which it bears the onus in a criminal trial, the prosecution must exclude all reasonable hypotheses consistent with innocence.141 Applied to this case, the question is whether the prosecution can exclude as a reasonable hypothesis the inference that Mr Smith observed the clearing in the relevant Complaint 4 areas. In my view the evidence does establish that that hypothesis is excluded as a reasonable one. [491] The matters referred to by Mr Hunter and the evidence recited in paragraphs [421] to [429] above demonstrates: (a) First, that Mr Smith had not had these additional areas brought to his attention by Mr Goulevitch or anyone else prior to his inspection in January 2013. They were brought to his attention by Mr Goulevitch in August 2013 when he delivered his initial analysis. The appellant made no contrary suggestion. (b) Second, there is no basis to believe that that clearing in any of those areas, which were in the vicinity of the areas where Mr Smith took photographs during his January 2013 visit, would have been easily identified by someone 141 R v Perera [1986] 1 Qd R 211 at 217; R v Owen (1991) 56 SASR 397 at 406. -- 121 of 242 -- 122 not alert to that clearing. The Complaint 4 areas around Waypoints 257 to 260 are the ones which were close to areas where Mr Smith took photographs in January 2013. Those areas are all light parkland clearing, as the photographs taken on the later visits at, for example, Waypoints 432 and 433 confirm. Those areas did not involve the obvious kind of broad scale clearing which marked many of the Complaint 1 and 2 areas. The appellant made no contrary suggestion. (c) Third, there are only a few waypoints where Mr Smith took photographs which are near areas in the impugned charges, and the appellant did not suggest that any of the impugned areas could be seen from those photographs. It is also plain that those photographs were linked to specific Complaint 2 areas, which were the focus of Mr Smith’s work during the January 2013 visit. It is impossible reasonably to infer from the photographs that Mr Smith might have seen one or more of the impugned charge areas based on his visits to areas close to the Complaint 4 areas. (d) Fourth, the conduct of Mr Smith after January 2013 is consistent with him only being aware of these later areas after that date. This is particularly supported by the fact that the evidence demonstrates that he attended Chess Park again on two occasions and inspected the Complaint 4 areas specifically. A review of the waypoints at which photographs were taken during the November 2013 and April 2014 visits confirms that to be true.142 Again the appellant made no contrary suggestion. [492] In relation to this last point, it is also necessary to observe that the 18 February 2013 letter did not, so far as I could see, refer to any of the Complaint 4 areas. The appellant did not direct me to any part of the letter that did. [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. [494] On the evidence before this Court, there is no reasonable basis to infer that Mr Smith came to knowledge of any of the impugned Complaint 4 offences in January 2013 or February 2013. No other basis for inferring knowledge prior to 12 months before swearing of Complaint 4 was advanced by the appellant and I can see none. In that regard I note that the areas were raised by Mr Goulevitch in his initial analysis provided in August 2013 and Complaint 4 was sworn within one year of that, on 28 June 2014 and in any event, mere provision of spatial analysis is not sufficient to comprise relevant knowledge: s. 68(6) VMA. This ground is dismissed. 142 See Exhibit 23 with the Field Trip 2 and 3 layers and the Complaint 4 areas only activated. -- 122 of 242 -- 123 GROUND 6: THE FORESTRY ACT OFFENCES Introduction [495] Ground 6 of the Amended Notice of Appeal is not very informative. It alleges only that her Honour erred in fact and/or law in finding the prosecution had proved the Forestry Act charges beyond reasonable doubt. The two particulars provided do not take things much further. The first adds nothing to the principal allegation. The second adds that her Honour erred in concluding that the prosecution had excluded that the acts the subject of Complaint 1 and 3 were in compliance with the appellant’s obligations under s. 63 Forestry Act. [496] The appellant’s submissions on this ground appear in the Part 2A Outline. It develops two specific issues on the Forestry Act convictions. [497] The first issue raised is that the prosecution failed to exclude to the relevant standard that the appellant’s acts of interference with forest products were authorised: (a) Under one or more of the seven specific statutes identified in s. 39(1)(a) Forestry Act; or (b) Under any Act or law other than the Forestry Act under s. 54(1)(c). [498] The second issue raised relates to the second paragraph of the particulars. The appellant contends that Mr Tran’s evidence was an insufficient basis for her Honour to conclude that the appellant’s acts of interference with forest products were act done in performance of the duties imposed by s. 63 Forestry Act. That point is dealt below when I deal with Mr Tran’s evidence. The statutory context [499] It can be seen in paragraph [23] above, that s. 39 contains an exemption143 for conduct interfering with forest products in the relevant areas which occurs, as stated in s. 39(1)(a), under the authority of “a lease, license, permit, agreement or contract granted or made under” the Forestry Act, the Land Act 1994, the “Mining Acts”, the Geothermal Act or the GHG Storage Act. [500] The Mining Acts is a defined expression in the Forestry Act. It is defined as comprising the Coal Mining Safety and Health Act 1999, the Mineral Resources Act 1989, the Petroleum Act 1923, or the Petroleum and Gas (Production and Safety) Act 2004. The Geothermal Act is defined as the Geothermal Energy Act 2010. The GHG Storage Act is defined as the Greenhouse Gas Storage Act 2009. [501] It can be seen in paragraph [28] above that s. 54(1)(c) contains an equivalent exemption for conduct under “any other Act or law”. It is plain from s. 54(1)(d) that s. 54(1)(c) should be read as if it said any other Act or law, other than the Forestry Act itself. The error by the prosecution at trial [502] This point arises out of an error made by the prosecution at trial. It is important to understand exactly what occurred to understand the appellant’s contentions. 143 To avoid any doubt, I use the word “exemption” here in a descriptive manner, and not in a manner which is suggestive of where the onus of proof lies. -- 123 of 242 -- 124 [503] Section 95(e) Forestry Act facilitates proof of, amongst other things, the absence of authority under the Forestry Act for the purposes of ss. 39(1)(a) and 54(1)(c), by a document made under the hand of the chief executive of the relevant department. Such a certificate was tendered in evidence without objection at trial (the s. 95 Certificate).144 No complaint is made on appeal about that document or its effectiveness to exclude authorisation under the Forestry Act for the conduct the subject of the Forestry Act offences. [504] In the written opening of the prosecution at trial headed “Introduction and Statutory Framework”, the prosecution accurately stated the purpose and effect of the s. 95 Certificate, confining its relevance to authority under the Forestry Act.145 Mr Hunter made a similar submission in his oral opening.146 [505] Unfortunately, in closing submissions, the prosecution submitted that the s. 95 Certificate also provided evidence that authority under the other Acts identified in ss. 39(1)(a) or other Acts contemplated by 54(1)(c) was excluded. One example will suffice.147 At paragraph 8(a) of the “Complaint 1 Closing Submissions”, dealing with Charge 1, the prosecution submitted that the appellant: Did not hold a lease license permit agreement or contract granted or made under the Forestry Act 1959, the Land Act, the Mining Acts, the Gethermal [sic] Act of the GHG Storage Act; [506] That submission referred to Exhibit 14.15 as evidence for that proposition: which comprised the s. 95 Certificate. That written submission was incorrect, as was accepted by the prosecution on the appeal. [507] As I understood it, the appellant contended that her Honour adopted that error in her Reasons. The respondent did not really oppose that contention.148 In my respectful view, her Honour did rely on the mistaken submission. In each case where her Honour dealt with the individual Forestry Act charges, she adopted the written submission of the complainant just identified. Her Honour did not expressly refer to Exhibit 14.15, but it is a reasonable inference in the circumstances that she relied on the prosecution submission which itself depended on that evidence. [508] The key question is whether the convictions should be set aside by reason of that error or not. The appellant’s contentions [509] The appellant contended that the convictions must be set aside for the following reasons. The onus of proof [510] The appellant recognised that there were considerations which favoured the conclusion that the onus lay on the appellant at trial to make out the exemption in respect of s. 54(1)(c), and that even for s. 39(1)(c) the question was of some difficulty. The appellant also recognised that the Forestry Act charges contained a 144 Exhibit 14.15 145 See paragraphs 129 to 134 of that submission. 146 Trial Day 1, page 22, line 46 to page 23, line 7. 147 The appellant’s Part 2A submissions at paragraphs 91 to 111 repeats the submission for every Forestry Act charge. 148 Appeal Day 4, page 97, lines 35 – 40. -- 124 of 242 -- 125 statement capable of attracting s. 76 Justices Act in relation to the exemptions under consideration. [511] However, the appellant did not adopt any final position on this issue because he contended that, regardless of where the legal burden lay, the prosecution had undertaken the burden of proof in excluding those exemptions at trial and that it would cause prejudice to the appellant if the prosecution was permitted to alter its position on the matter. The appellant relied on Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QCA 333 at [6] and Smith v Baldwin [1979] Qd R 380 at 390, Purkess v Crittenden (1965) 114 CLR 164 at 167-168. [512] The appellant relied on the prosecution’s closing submissions to make good its proposition that the prosecution had undertaken that burden. A difficulty in that submission is that the prosecution only relied on the s. 95 Certificate in final submissions. The position when the case of was opened did not involve any error. I could not see why the error occurring in closing involved adopting the burden on proof at trial, at least in a way which had any implications for the approach open to the prosecution on this appeal. The prosecution’s oversight occurred well after the close of evidence. It could not have affected the way the defendant conducted the trial or made forensic decisions. [513] In response, Mr Allan seemed to make three points. [514] First, at one point he seemed to submit that by leading evidence to exclude the possibility of authority under the Forestry Act in the form of the s. 95 Certificate, it can be inferred that Mr Hunter had assumed the burden of proof at trial to exclude all other possible sources of statutory authority under ss 39(1)(a) and 54(1)(c). I was left in some doubt as to whether Mr Allan relied on this submission or not.149 In any event, I reject that submission. I cannot see a rational basis to draw that inference. [515] Second, Mr Allan submitted that it was not necessary for the appellant to demonstrate any specific prejudice. The prejudice was comprised in losing the benefit of an acquittal based on the way the trial was run below.150 [516] Third, he submitted that it was not correct to apply any temporal analysis to the prosecutor’s conduct. He submitted that by tendering the s. 95 Certificate and submitting on it at the end of the trial as relevant to all statutory authorities, the conduct overall amounted to adopting the burden of proof.151 Prosecution could not discharge the onus of proof on appeal [517] On the assumption that the prosecution bore the onus of excluding authority under another Act, the appellant submitted that that onus could not be discharged on the evidence at trial. The appellant submitted that the only way to exclude authority under another Act beyond reasonable doubt was to lead evidence of the kind in the s. 95 Certificate. [518] The appellant set out in very considerable detail the equivalent provisions to s. 95(e) Forestry Act in the other Acts mentioned in s. 39(1)(a) Forestry Act which, it contended, permitted proof by certificate from the relevant administering officer in 149 Compare Appeal Day 5, page 7, lines 20 – 26 with Appeal Day 5, page 15, lines 26 – 36. 150 Appeal Day 5, pages 24.13 – 25.23. 151 Appeal Day 5, pages 27-28. -- 125 of 242 -- 126 each case.152 As noted already, s. 54(1)(c) required the prosecution to exclude beyond reasonable doubt that the appellant had authority under any other Act or law. The appellant did not explain how the prosecution could have addressed this burden in that manner. Respondent’s contentions [519] The respondent submitted that while her Honour may have erred in concluding that authority under Acts other the Forestry Act were excluded in reliance on the s. 95 Certificate, the Court ought to conclude that the prospect of such authority was excluded beyond reasonable doubt on the trial record for the following reasons. [520] First, the respondent submitted that the onus lay on the appellant to make out authority under any relevant Act under ss. 39(1)(a) or 54(1)(c) on the proper construction of those provisions and that the complaints in both cases were in a form which attracted the operation of s. 76 Justices Act in respect of those issues. The respondent submitted that the admitted oversight in the final submissions did not prevent the respondent from relying on those submissions on this appeal. Further, the respondent submitted that neither at trial nor on this appeal had the appellant discharged that onus. [521] Second, the respondent submitted that, whether or not he bore the onus to exclude statutory authority under either section, the evidence at trial established beyond reasonable doubt that no such authority existed. [522] The respondent pointed to the following considerations: (a) Nothing in any of the appellant’s correspondence suggested any such authority; (b) Nothing in the cross examination by the appellant’s counsel suggested any such authority; (c) The evidence as to the activities on Chess Park was that it was used for cattle grazing. There was no suggestion that any activity of the kind contemplated by the various statutes identified in s. 39(1)(a) was occurring; and (d) The relevant documents in relation to the Land Act were in evidence and contained no suggestion of rights or obligations which might respond to the exculpatory provisions of s. 39(1)(a). Analysis The onus to exclude statutory authority [523] Where does the legal onus of proof lie in respect of the statutory authority exemptions? [524] In my opinion, the onus lies on a defendant in relation to s. 54(1)(c). The exemption in that section arises in relation to acts “under the authority of any other Act or law”. As the appellant properly conceded:153 The existence or not of such an authority...is clearly a matter that would be peculiarly within the knowledge of the defendant and provides a strong indication that it a 152 Appellant’s Part 2A submissions at paragraph 65. 153 Appellant’s Part 2A submissions at paragraph 25. -- 126 of 242 -- 127 matter of exception upon which the defendant would, is [sic if] section 76 was enlivened, bear the onus of proof. [525] The parties both referred to Chugg v Pacific Dunlop (1990) 170 CLR 249. In that case the High Court was considering where the onus of proof lay in a prosecution for breach of a provision imposing an obligation on an employer to maintain a safe work place so far as was practicable. The question arose where the onus lay in respect of the obligation of demonstrating practicability. In that context the majority (with whom Brennan J, as his Honour then was, and Deane J agreed) observed (at 256- 258): The primary issue raised by the informant's appeal is whether, in a prosecution under s.21 of the Act, the informant or the defendant bears the onus of proof on the question of practicability. It was unanimously held by the Full Court that the onus is on the informant. The issue upon which Ormiston J. reached his dissenting decision, namely, the relevance of reasonable foreseeability to liability under s.21 of the Act, will be dealt with later. The Act is silent as to the onus of proof in relation to the offence created by s.21. That is not unusual for the rule as to the onus of proof in a criminal proceeding is clear, namely, that "it is the duty of the prosecution to prove (a defendant's) guilt subject ... to the defence of insanity and subject also to any statutory exception": Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462, at p 481. The question thus raised by the informant's appeal is whether the words "so far as is practicable", as used in s.21(1) and (2) of the Act, constitute a statutory exception. For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, at pp 519-520. The distinction does not depend on the rules of formal logic: Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136, at p 147. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v. United Telecasters Sydney Ltd. [1990] HCA 5; (1990) 64 ALJR 181, at p 183; [1990] HCA 5; 91 ALR 1, at p 6. The intention may be discerned from express words or by implication. See Reg. v. Edwards (1975) QB 27 and Reg. v. Hunt (1987) AC 352. … Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined "upon considerations of substance and not of form": Dowling v. Bowie, at p 140. And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s.168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception "whether it does or does not accompany the description of the offence". One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring and Lighterage Co. Ltd. v. Jacobsen [1945] HCA 22; (1945) 70 CLR 635, per Dixon J. at p 644. Such is ordinarily the case where, in the terms used in Reg. v. Edwards, at p 40, there is a prohibition on the doing of an act "save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission -- 127 of 242 -- 128 of specified authorities". See Reg. v. Hunt, at p 375, where Lord Griffiths considered the statement from Reg. v. Edwards "an excellent guide to construction". If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof. [526] Bearing in mind those principles, and those set out in Vines and Phillips v Spencer from paragraph [233] above, the following additional factors support the conclusion that the onus lay on a defendant to bring him or herself within the scope of that exemption: (a) Not only would it be peculiarly within the defendant’s knowledge whether he or she had authority under some other Act or law, it would be very difficult for the prosecution to meet the onus under that provision. Of course it would always be open to the prosecution in a particular case to suggest (as it does here) that in the context of the trial as a whole, there is no realistic prospect that some other statutory authority existed, but that would be a heavier challenge where the prosecution had to exclude that possibility articulated by reference to any other Act or law; (b) The form of the exemption, like the exemption identified by s. 578(2)(b) SPA, is one which does not appear to condition the general liability but to create specific categories of exemption for persons who otherwise would breach the section by their conduct; and (c) While recognising that the exception accompanies the description of the offence in the sense of being included in s. 54(1), and appearing prior to the penalty provision, this is a less persuasive factor where the exception is introduced with the word “except” and articulated separately from the description of the offence in s. 54(1)(a) and (b). [527] I note that s. 54(1)(d) provides a less compelling argument that the onus lies on a defendant. It is reasonable to infer that the complainant in relation to an offence under s. 54(1)(d) would be from the department administering the Act or at least to have access to the records and assistance of that department. That would considerably lessen the difficulty of the task of the prosecution, particularly given the evidential assistance of s. 95(e) Forestry Act. It might also be contended that one should not infer that Parliament would intend the onus to differ between s. 54(1)(c) and 54(1)(d). However, even if that were accepted, the considerations supporting the conclusion that the onus lies on the defendant in relation to s. 54(1)(c) would lead one to apply that construction to s. 54(1)(d), and not the other way around. [528] The position in respect of s. 39(1)(a) is in some respects less compelling. In particular: (a) As a matter of form, the operative terms creating the exception are not distinctly carved out of the offence creating provision in the same way as occurs for s. 54(1)(c) and (d) (and again appear prior to the penalty provision). Although it is a matter of the form of the provision, the fact is that s. 39(1)(a) reads as part of the general offending conduct defined by s. 39(1); and (b) The scope of potential statutory sources of authority is confined to the seven Acts identified therein. The task facing the prosecution in excluding application of that provision is considerably easier. -- 128 of 242 -- 129 [529] Further, for the reasons given in paragraph [527] above, it would be unlikely in my view that Parliament would intend the onus in respect of authority under the Forestry Act to lie on a defendant. If that is so, it would seem odd that there was a different onus for one Act referred to under s. 39(1)(a) as compared to others mentioned in that subsection. [530] There are some factors, however, which do suggest that on the proper construction of the section, the onus lies on a defendant to bring him or herself within the scope of the exemption: (a) First, the exemption relates to “a lease, license, permit, agreement or contract” under the various Acts identified. The scope of the sources of rights there described is very broad. It could be reasonably assumed that the prosecution might still have real difficulties excluding them all (The appellant’s submission on manner of proof referred to in paragraph [518] above might be thought to answer these matters. However, it is far from clear that the evidentiary provisions there identified would apply to a prosecution under s. 39(1) Forestry Act, particularly where the evidentiary provision applies only to proceedings under the particular Act (as is the case for two of the Acts referred to in s. 54(1)(c): see s. 249 Coal Mining Safety and Health Act 1999 (Qld) and s. 431A Land Act 1994 (Qld)). I do not find this a persuasive response to the difficulties of proof which could arise.); (b) Second, it is plain that a defendant who held such an interest would be in a better position than the prosecution to identify such a source of authority; and (c) Third, as with section 54(1)(c), the exemptions identified appear to create specific categories of exemption for persons who otherwise would breach the section by their conduct, although the structure of s. 39(1) is less compelling in that respect because the exceptions appear as part of the paragraph which creates the offence. [531] The point is finely balanced. There is added difficulty when one bears in mind that it might be thought unlikely Parliament would intend a different construction in this point between ss. 39 and 54, which are otherwise analogous provisions. On balance, however, I have concluded that the onus in respect of establishing that there was no authority under the Acts identified in s. 39(1)(a) lies on a defendant, the key consideration being the superior position of the defendant as compared to the complainant in excluding the possibility of authority for the interference under the very wide range of possible sources of authority identified in the section. It is to be kept in mind in that regard that the section includes a contract made under any of the relevant Acts, which might be only known or knowable by the defendant who invokes it as exculpatory. [532] It might be thought that that consideration is not as compelling as it might seem, given that the prosecution was able to exclude s. 39(1)(a) statutes on the evidence (as I find below). However, that occurred in this trial in circumstances where the defendant’s version of events was before the Court despite him not giving or calling evidence. That will not always be the case. The statute must be constructed bearing in mind the range of circumstances where it might fall to be applied. [533] In the end, however, as will be seen below, this appeal does not turn on the question of onus in any event. -- 129 of 242 -- 130 [534] Having reached that conclusion, I now turn to consider the application of s. 76 Justices Act. As already noted, the better view is that that provision is declaratory of the common law and confirms the obligation to notify in a complaint that a defendant has to negative an exemption. Whether failure to do so would have had any substantive consequence for this trial need not be considered because in my view, the section was complied with in the charges in Complaints 1 and 3. That can be seen from the averments expressly negativing authority under s. 39(1)(a) and 54(1)(c) in each charge: see as an example of the former, paragraph 9 of Charge 1, Complaint 1 in paragraph [79] above. An example of the latter appears in paragraph 11 of Charge 5, Complaint 1. [535] The appellant submitted that s. 76 was not properly invoked in respect of the s. 39(1) offences. He submitted that the reference to the “Mining Acts” rather than the individual Acts defined as comprising the “Mining Act” in the Forestry Act meant that s. 76 was not properly complied with. I disagree. The averment is in the form of the words in the exemption alleged. That is what s. 76 requires to be negatived in the complaint. In my view it is consistent with that section to do so in the words used in the offence creating provision. The acts referred to were easily identified from the statute. [536] Assuming that the onus lay on the appellant to exclude the statutory exemptions, the respondent properly invoked s. 76 Justices Act. Prosecution may contend that the defendant bears the onus on authority issues on this appeal [537] In my view, it is open to the prosecution to contend that the defendant bore the onus to establish authority under an Act or law in respect of the s. 54 charges and, if I am wrong on the onus issue for s. 39, in respect of the s. 39 charges. In my opinion, the appellant’s submission that somehow the prosecution took up the onus of proof by conduct at trial is wrong. [538] The starting point is the authorities relied upon by the appellant. There were three: Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QCA 333 at [6], Smith v Baldwin [1979] Qd R 380 at 390 and R v Ali (2005) 214 ALR 1 at [7]. [539] Smith v Baldwin was primarily concerned with limitations issues as already discussed. The appellant referred to page 390 E to G where Andrews J observed: As to the onus of proof as to the time when a complainant has notice of the matter of complaint we were referred to Morgan v. Babcock and Wilcox Ltd. (1929) 43 C.L.R. 163. I think that statements in the joint decision of Knox C.J. and Dixon J. and the provisions of s. 14(3) of the Secret Commissions Act 1919 therein referred to show the case to be distinguishable. However it seems that it was the appellant who undertook the burden of proof here so that the case cited could really add nothing to the matter. His Worship in his decision clearly purported to dispose of the question and in effect found that there was no case to answer on the point. [540] That case supports the proposition that a complainant by its conduct of a trial might undertake the burden of proof in respect of a matter, which would otherwise lay on the defendant. It does not assist the appellant beyond that bare proposition. His Honour’s observation is not developed in a manner which assists in identifying when a complainant would be taken to have done so. -- 130 of 242 -- 131 [541] Palmgrove Holdings takes the matter no further. The appellant relied on paragraph [6] where Holmes JA (as the Chief Justice then was) observed: The complaint did not allege that the s 493A exception as to the conduct’s being authorised by a development approval was negatived, so there was no question of any shift in the burden of proof under s 76 of the Justices Act 1886. Nor did the prosecutor contend that the Environmental Protection Act should be construed as imposing the burden on the applicant to prove on the balance of probabilities that the development approval authorised the discharge. Instead, the prosecution was conducted on the basis that it fell to the complainant to prove that the discharge was not so authorised; that is, that it entailed a contamination level which exceeded that permitted by the development approval. [Footnote omitted] [542] It is to be noted that in that case, no s. 76 averment had been made. That is different from this case and is a matter which has significance to the context of the trial. [543] Finally, the appellant referred to the following observation by Gleeson CJ in R v Ali (2005) 214 ALR 1 at [7] that “[t]he adversarial system is based on the general assumption that parties are bound by the conduct of their legal representatives”. Again, an uncontentious proposition, but not one which assists in applying that principle to the circumstances of this case. [544] These cases leave unanswered the question of why the prosecution should be taken to have undertaken the burden of proof on excluding authority (to the extent it did not already have it) in the circumstances of this case. [545] The answer given in written submissions by the appellant was as follows: This court is not required on this rehearing to embark on any consideration or determination of the question as to whether the prosecutor, in point of law, correctly assumed the burden of proof in respect of the offences charged under section 39(1)(a) and (b) and section 54(1)(c) and (d) of the Forestry Act. To do so would have the potential result of occasioning irreparable prejudice to the appellant. This, in turn, would give rise to a miscarriage of justice because the appellant, by reason of the prosecutor’s conduct of the trial below, did not, because he was not required to, assume and then seek to discharge any legal and/or evidential burden to prove that he held (during the relevant period of the charges for the Forestry Act offences), the requisite permit, lease license or other permission or authority. The obvious prejudice to a defendant in such circumstances, has at least implicitly, been recognized and accepted by the Queensland Court of Appeal and the Full Court of the Supreme Court of Queensland in similar cases where those Courts have determined that a prosecutor is bound by his conduct in the Court below.154 [Underlining added] [546] The underlined part of the submission identifies the defect in the appellant’s submission. Nothing occurred at trial prior to the filing of final written submissions which rationally supports the conclusion that the appellant was not required to discharge the onus to bring himself within the scope of the authority exceptions. To the contrary, authority was expressly excluded by averments in the complaints which attracted s. 76 Justices Act. Further, nothing in the opening or conduct of the trial indicated that the prosecution was undertaking the burden of proof. (Even the oral submissions on closing were ambiguous on the point.) Accordingly, there is no basis to infer that the appellant did not seek to discharge the onus on authority in preparing 154 Appellant’s Part 2A submissions at paragraph 28. -- 131 of 242 -- 132 for, conducting and making forensic decisions about the trial and the evidence to be led. [547] Given those matters, the appellant cannot be prejudiced by the respondent now relying on the fact that the appellant bore the onus. It is still open to the appellant to make submissions on the evidence which was led at trial. Authority under s. 39(1) is excluded on the evidence [548] Ultimately, the onus issue in relation to s. 39(1) Forestry Act is moot. That is because on the evidence at trial, the prosecution excluded authority under the Acts there referred to beyond reasonable doubt. [549] Before turning to the evidence at trial, I will deal with the appellant’s submission that the only way to discharge that onus is by evidential certificates under the relevant statutes. It is wrong as a matter of principle to say that any matter can only be excluded by one prescribed mode of proof.155 Whether a matter is proved to a particular standard depends on a rational assessment of all the evidence relevant to that matter. Further, if that was the only way to discharge that onus, it would not work in those cases where the certificate was only given statutory effect in proceedings under the specific Act: see [530](a) above. [550] In my view, the evidence as a whole excluded beyond reasonable doubt that the appellant had statutory authority for the acts comprised in Complaints 1 and 3. That evidence was recited in the respondent’s submissions as follows, which I set out including footnotes to the evidence and other relevant matters: 376. By way of analogy, in respect of a charge where the prosecution was obliged to prove the defendant appellant did not have the prior express consent of any of the person named to discharge a firearm and proved only that the defendant appellant did not have the consent of an occupier of the premises, the Court noted that the defendant gave evidence and made no suggestion he had the permission for any other relevant person and the circumstances themselves carried the very strong implication that not such consent existed: the conviction was sustained156. 377. Whilst the appellant did not give evidence here, his explanations for the clearing are in evidence contained in numerous pieces of handwritten correspondence contained within Exhibit 40. Those explanations are157: (a) For fire breaks158; (b) He can’t muster rogue cattle and run a tick control program159; (c) Managing, protecting, improving and preserving this portion of the environment to address erosion160; 155 Dixon J in Johnson v Miller: see paragraph [772] below. 156 See Beer v McCann [1993] 1 QD R at 27, lines 4 – 6 and 25 – 30 per Derrington J. See also Dowsett J at 39 lines 15 – 21. 157 See the ‘Smith v Baker Table of Correspondence relevant to charges in complaints – Correspondence’ in Exhibit 40 handed up with the outlines of closing submissions and Annexure A Chronology of Key Events attached to the Introduction and Statutory Framework Outlines of submissions handed up on 15 February 2016 where this correspondence is referred to. 158 Exhibits 40.4, 40.6, 40.13, 40.33, 40.35, 40.36, 40.38, 40.40, 40.43A, 40.43B, 40.44, 40.45, 40.46, 40.47, 40.50, 40.51, 40.55, 40.60, 40.103. 159 Exhibits 40.1, 40.4, 40.14, 40.39A, 40.85A. 160 Exhibit 40.58. -- 132 of 242 -- 133 (d) Mustering in and fencing the Dyngie State Forest161; (e) Clearing pursuant to a fire management plan (in some cases which the appellant claimed had been accepted by the Rural Fire Service at Bundaberg)162; (f) To make the FEA accessible to horses and vehicles163 and productive in terms of a (i) Working cattle property164; (ii) Controlling feral animals165; (iii) Addressing erosion166; and (iv) For creating a dam167 or dams168. 378. The appellant also said he was running cattle operations on Chess Park169. 379. This is entirely consistent with the defence’s cross examination of witnesses at the trial: (a) Counsel for the appellant put to Mr Goulevitch that Chess Park was a dual purpose property, a cattle property as well as having significant forestry assets inside it, given there’s a forestry entitlement area and a state forest170; (b) Counsel for the appellant put to Mr Smith that there were water troughs, stock troughs or takes for watering stock on his inspection and Mr Smith agreed they were throughout the property171; (c) Counsel for the appellant put to Mr Reinke that Chess Park’s a cattle property and the grass is feed for the cattle172; (d) Counsel for the appellant put to Mr Sparrow that Dyngie State Forest was within freehold cattle property which has, as its primary purpose is to grow grass173; and (e) Counsel for the appellant put to Mr Tran that [Chess Park] is now and has been for some time a working cattle property174 and made repeated references to Chess Park being a cattle property175. 380. The other acts referred to in section 39(1)(a) relate to the management of mineral, petroleum and gas resources in the State of Queensland. There was no evidence that there was any mining activity on Chess Park at any time176, 161 Exhibits 40.1A, 40.39A, 40.60, 40.91. 162 Exhibits 40.51, 40.157A, 40.157E. 163 Exhibit 40.40. 164 Exhibit 40.63. 165 Exhibit 40.80. 166 Exhibits 40.92, 40.92A. 167 Exhibits 40.125, 40.129. 168 Exhibit 40.55. 169 Exhibit 40.42 [I comment that that is the obvious implication of the opening page of that letter, though not expressly stated in the terms in this paragraph of the submission]. 170 Trial Day 8, page 8, lines 16 – 18. 171 Trial Day 15, page 50, lines 33 – 34. 172 Trial Day 16, page 88, lines 22 – 23. 173 Trial Day 7, page 49, lines 16 – 17. 174 Trial Day 19, page 54, lines 4 – 5; page 71, line 30; page 73, lines 17, 28 – 30. 175 See e.g. Trial Day 19, page 71, line 30; page 73, lines 16, 26-30; page 106, lines 24 – 25, 42. 176 The Coal Mining Safety and Health Act 1999 identifies a mining lease, a mineral development licence and an exploration permit, each by reference to the definitions under the Mineral Resources Act 1989. Those tenures under the Mineral Resources Act relate to the mining of minerals, mineral occurrences and activities for exploring for minerals. -- 133 of 242 -- 134 any petroleum activity on Chess Park at any time177, any geothermal activity on Chess Park at any time178 or any greenhouse gas storage activities on Chess Park at any time179. In so far as there was a CSG pipeline traversing Chess Park, the evidence was that this was a QGC pipeline and that the appellant made them fence it180. It was not the appellant’s activity. 381. Plainly, some of the clearing was consistent with clearing for a rural property and not consistent with clearing for management of mineral, petroleum or gas resources. For example, the two counts on Complaint 3 were clearing for dams. Whilst Mr Reinke’s evidence was that the dam the subject of Complaint 3 Charge 32 was quite a large stock dam181, the appellant’s correspondence intimates it has a fire fighting purpose182: either way it is plainly not for any purpose regulated by the other acts referred to in s 39(1)(a) of the FA. 382. As noted in the footnote to paragraph 57 of the appellant’s Part 2A outline, certain tenures under the Land Act 1994 (“Land Act”) are in evidence. Leases, licenses or permits for more than 12 months under the Land Act have to be registered183. Certified copies of particulars recorded about a lease, license, permit or reserve are evidence of the particulars recorded184. The historical tenure search for ‘Chess Park’ when it was under the Land Act is in evidence and it shows no lease, license, permit or reserve in favour of the appellant185. The certificate of title for ‘Chess Park’ is in evidence and it shows no interest under the Land Act in favour of the appellant is registered186. 383. Finally, as a part of taking ownership of ‘Chess Park’ the appellant completed a statutory declaration that he was aware of any current agreements under an act affecting the leases (because at that stage ‘Chess Park’ was leasehold land under the Land Act), including any land management agreement187. Nothing was put to any witness in cross examination that any action of the appellant was taken because of, and that it complied in every respect with, any such agreement. [651] Those submissions are sustained by the evidence referred to (subject to a couple of comments I have made in the footnotes). The appellant did not challenge the correctness of those factual assertions. The appellant rather submitted that these facts were not sufficient to discharge the onus of proof beyond reasonable doubt. I 177 A lease within the meaning of the Petroleum Act 1923 is a petroleum lease granted under that Act. The Petroleum and Gas (Production and Safety) Act picks up in the dictionary a mining lease, a geothermal tenure and a GHG lease, GHG permit and a GHG authority by reference to the acts under which those tenures are created and has as its main purpose facilitating and regulating the carrying out of responsible petroleum activities and the development of a safe, efficient and viable petroleum and fuel gas industry which it gives effect to by providing for a number of different authorities. 178 The Geothermal Act 2010 picks up in the dictionary a mining lease, a petroleum lease and a GHG lease, GHG permit and a GHG authority by reference to the acts under which those tenures are created and provides for geothermal tenures which regulate geothermal exploration and geothermal production. 179 The Greenhouse Gas Storage Act 2009 provides for the granting of GHG authorities to explore for or use underground geological formations or structures to store carbon dioxide or carry out related activities and otherwise picks up in the dictionary a mining lease, a petroleum lease and a geothermal tenure by reference to the acts under which those tenures are created. 180 Exhibit 40.50 [I comment that the letter does not appear to refer to the appellant making QGC fence the pipeline]. 181 Trial Day 16, page 62, lines 19 – 20. 182 Exhibit 40.120. 183 Land Act 1994 s. 277A. 184 Land Act 1994 (Qld) s. 285(1). 185 Exhibit 14.4. 186 Exhibit 14.10. 187 Part of Exhibit 14.3. -- 134 of 242 -- 135 disagree. In the voluminous correspondence from the appellant, there was no suggestion that the clearing was authorised under any of the statutes mentioned in s. 39(1) or any other statute. The correspondence made quite clear what the activities were on Chess Park. This correspondence was generally focused on the question of clearing. It included complaints about the condition of the Forestry Act areas. If any of the other activities contemplated by the statutes listed in s. 39(1) were the cause of the applicant’s clearing in the Forestry Act areas, they would surely have been mentioned in the correspondence. Taken with the lack of any other objective indicator that some other activity authorising clearing was underway on the Forestry Act areas, the only reasonable inference which can be drawn is that the clearing in those areas was not authorised by the statutes in s. 39(1). Conclusion [652] Although I am persuaded her Honour erred in concluding that statutory authority was excluded by relying on the prosecution’s mistake, I consider that it was open to the prosecution to contend on this appeal that the onus in respect of the statutory authority issue under both sections lay on the appellant at trial and the appellant did not discharge that onus. [653] Further, that even if the prosecution had the onus in relation to the statutes referred to in s. 39(1), authority under those statutes was in any event been excluded beyond reasonable doubt. MESSRS GOULEVITCH, DILLEWAARD AND TRAN: GENERAL OBSERVATIONS Introduction [654] It is now necessary to turn to the challenges to the evidence of Messrs Goulevitch, Dillewaard and Tran. The Amended Notice of Appeal deals with the evidence of those witnesses, relevantly, in two places. [655] Ground 3, concerning “Inadequacy of Reasons”, contains the following relevant sub- grounds: 1A. The learned Magistrate erred at law and/or in fact when she convicted the defendant on all charges as particularised on Complaints 1, 2, 3, and 4:- ... (ii) by simply finding the defendant guilty of all charges where the learned Magistrate was required to evaluate and positively believe and accept beyond reasonable doubt the evidence presented by the prosecution; (iii) by her unqualified acceptance in its entirety of all the evidence of the prosecution witnesses:- Smith; Goulevitch, Dillewaard and Tran; (b) ... (c) As to Tran – the learned Magistrate erred by accepting his evidence which had no probative value, was inadmissible and should have been accorded no weight; -- 135 of 242 -- 136 (d) As to Goulevitch: the Magistrate erred by accepting his evidence which had no probative value, was inadmissible and should have been accorded no weight; (e) As to Dillewaard: the Magistrate erred by accepting his evidence which had no probative value, was inadmissible and should have been accorded no weight. [656] These sub-grounds appear to be included in the Inadequacy of Reasons ground because, as the argument is developed, the defects in the evidence of those three persons should have been identified and addressed by her Honour in her Reasons and her failure to do so reflected a failure to evaluate the evidence. However, Grounds 1A(iii)(c)-(e) are not articulated as going just to the Reasons. Rather they contain a substantive complaint that her Honour could not reasonably convict on the evidence of those three witnesses. That is the way the appellant primarily developed the argument and that is the way the respondent dealt with it. [657] Mr Tran is also referred to in Ground 6, set out above in paragraph [498] above. It is evident from the appellant’s submissions that particular (ii) of that Ground is concerned with her Honour’s acceptance of Mr Tran’s evidence on the s. 63 Forestry Act issues. [658] The detailed argument on the evidence of these three witnesses is not included in the appellant’s Part 1 submissions. Rather, the detailed argument in relation to Mr Goulevitch and Mr Dillewaard appears in the Part 2B submissions, developed over some 80 pages. The argument in relation to Mr Tran appears in mostly in Part 2A, developed over some 40 pages. Relevant but inadmissible evidence The parties’ positions [659] The appellant’s arguments relating to these three witnesses, particularly Goulevitch and Dillewaard, raise issues of admissibility which were not raised at trial. The parties differ as to how that question should be approached on this appeal. I intend to resolve this question of principle before turning to consider specific arguments by the appellant. [660] The appellant’s position was articulated in writing as follows, in the Part 1 submissions dealing with the nature of the appeal (at [39] –[41]):188 39. The Court’s duty is to satisfy itself that there was sufficiency of legal evidence upon which the Magistrate could be satisfied beyond reasonable doubt of each element of the offences charged. The performance of that duty extends to an examination of the probative value of that evidence. 40. The reception of inadmissible evidence by the Magistrate, in a given case, might produce a ground of appeal, but it does not necessarily mean that there has been unfairness or a miscarriage of justice. 41. Evidence that is improperly admitted should be disregarded by the trier of fact, even if no objection was taken to the admission of that evidence. This is because a magistrate must ensure that a trial is conducted fairly and in accordance with the law. An accused should not be convicted on any evidence but legal evidence. 188 See also appellant’s Part 2B submissions at paragraph 223. -- 136 of 242 -- 137 [661] This submission begs the question of what “improperly” admitted evidence might be. The appellant gives this answer: ‘Improper admission’ in the sense that it was not “legal evidence” because the evidence was of no probative value for the purpose of proving any element of the offence in question.189 [662] The appellant relied on McKay v The King (1935) 54 CLR 1 at 9, R v Hess [2008] QCA 48, Londy Pty Ltd v O’Reilly [2005] WASC 173 at [54] and A Child v Andrews (1994) 12 WAR 552 at [54] for the proposition that “improperly admitted should be disregarded by the trier of fact, even if no objection was taken to the admission of that evidence”. [663] While the appellant appeared to concede that receipt of inadmissible evidence does not, without more, necessarily mean that there has been an unfair trial, the appellant’s position in practice seemed to be to the contrary (indeed paragraphs 40 and 41 of the appellant’s Part 1 submissions appear to be inconsistent). In each case where the evidence was said to be inadmissible though not objected to, the appellant submitted that that evidence, by virtue of its inadmissibility alone, had no probative weight and should have been disregarded by her Honour.190 [664] The respondent disagreed. The respondent submitted that broader considerations intruded in deciding whether reliance on inadmissible evidence not objected to lead to error. He referred to the principle that a party is bound by the conduct of his or her case. The appellant submitted:191 Ordinarily, as a trial such as the one before the Learned Magistrate is adversarial in nature, parties are bound by the conduct of their counsel. Where counsel makes a forensic decision at trial which viewed objectively was rational then an appeal ground gainsaying that decision would not ordinarily succeed. [665] The respondent relied on R v McPartland [2017] QCA 35 at [31], R v Fennell [2017] QCA 154 at [100] and R v Birks (1990) 19 NSWLR 677 at 685. [666] The respondent appeared to contemplate that admission of inadmissible evidence could provide a basis for setting aside a conviction under s. 222, but only where the admission of the evidence was not rationally probative and where the admission of the evidence gave rise to substantive unfairness. Analysis of the authorities Review of authorities relating to criminal proceedings generally [667] It is convenient to begin by reviewing the authorities in chronological order, including authorities referred to by the parties and others I consider relevant. [668] The first case referred to is McKay v The King. That case concerned whether a defendant could be convicted on uncorroborated confessional evidence which the defendant challenged at trial. The High Court found that he could. It appears to have concerned an appeal based on provisions analogous to those in s. 668E Criminal Code. [669] The appellant appeared to rely on Dixon J’s comment that the “ultimate standard of proof required by law in a criminal case is a sufficiency of legal evidence to satisfy 189 See footnote 12 in appellant’s Part 1 submissions. 190 In addition to the submissions referred to in paragraph [660] of these reasons, see Appeal Day 6, page 14, lines 11 and 12 and Appeal Day 6, page 33, lines 1 – 9. 191 Outline of Submissions on Behalf of the Respondent – Conviction at paragraph 12. -- 137 of 242 -- 138 reasonable men to the exclusion of all reasonable doubt”.192 However, that case was not concerned with how the Court should deal with inadmissible evidence which was tendered without objection, a matter frequently dealt with, inter alia, by much more recent High Court decisions. Further, his Honour did not, so far as I can see, explain directly what he meant by “legal evidence”. Isolating sentences in judgments without consideration of the context in which they are made is not a helpful approach to analysis of authority. [670] The next case referred to is R v Birks, a decision of the New South Wales Court of Criminal Appeal comprised of Gleeson CJ (as his Honour then was), McInerney J and Lusher AJ. The case concerned an appeal from conviction on sexual and violence offences. Part of the defence case was that the injuries to the complainant were caused when the accused warded off blows from her and that there had been no anal intercourse. Counsel for the defence failed to cross examine the complainant on those matters. The accused gave evidence. The prosecution cross examined the accused on his instructions to his counsel and on his failure to cross examine on those matters at committal and trial. The accused said he had given instructions. After the jury retired, the defence counsel stated that he had had instructions and had failed to put the matters by oversight. The trial judge refused to discharge the jury. [671] The Court of Criminal Appeal held that there had been a serious miscarriage of justice warranting a new trial. The nature of the appeal in that case was again analogous to that provided for under s. 668E Criminal Code.193 The respondent relied on the following observations by Gleeson CJ (with whom McInerney J agreed) (at 683E to 686C): The appellant contends that all this resulted in a miscarriage of justice. In order to deal with that submission it is necessary to consider with some particularly the features of the matter which are said to give rise to that miscarriage. The first concerns the conduct of the counsel, including his failure to cross-examine the complainant on important issues and his subsequent failure to take steps to deal with the problem after it had become obvious. In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information. As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witness to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate: 192 (1935) 54 CLR 4 at 9. 193 See ss. 5(1) and 6(1) Criminal Appeal Act 1912 (NSW). -- 138 of 242 -- 139 “…His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests are thereby prejudiced.” In Halsbury’s Laws of England, 4th ed, vol 3(1), par 518 at 420, it is stated that: “… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross- examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.” ... There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice. It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running though the cases, however, is that such intervention is a matter about which the courts are extremely cautious. … The relevant principles, may be summarised as follows: 1. A court of Criminal Appeal has power and duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention. -- 139 of 242 -- 140 [672] It is to be observed that his Honour’s observations are apt to apply just as much to a failure to object to inadmissible evidence as to any other act or omission by counsel at trial.194 [673] The appellant for its part sought to rely on the following observations of Lusher AJ: At this point I come to the final observation I wish to make concerning this cross- examination. A trial judge in a criminal trial carries a heavy burden. He must see that the accused has a fair trial. He has an obligation to see the trial is conducted fairly and in accordance with law. He must exclude evidence which is not shown to be admissible. In short, the principle is that an accused should not be convicted on any but legal evidence (R v Gibson (1887) 18 QBD 537 at 543 per Wills J), further, and per the same judge: “… If a mistake had been made by counsel, that would not relieve the Judge from the duty to see that proper evidence only was before the jury”. In Shaw v The Queen (1952) 85 CLR 365 at 381, the joint judgment said plainly that the prosecution must take responsibility for leading inadmissible evidence and the failure of the prisoner's counsel to object did not make it admissible. Similarly, in Stirland v Director of Public Prosecutions [1944] AC 315, it was said an improper question should be disallowed even though no objection be taken, the basis being that justice is to be done as far as possible according to law: see per Viscount Simon (at 327-328) speaking for their Lordships. In the light of these principles it is not to the point to say the accused or his counsel may have sought some tactical or other advantage from the questions being considered by not objecting.195 [674] The appellant appeared to rely on that passage as sustaining the conclusion that a trial judge was obliged to exclude any evidence that was inadmissible, whether objection was taken or not, and that any failure to do so comprised a failure of the trial judge to ensure a fair trial. I do not accept that that was intended to be communicated by Lusher AJ. His Honour’s comments were made in the context of the unusual events at the particular trial identified above. Further, even if that was the intention, they were observations inconsistent with the reasoning of the majority. They were also obiter, in the sense that the case did not concern the admission without objection of inadmissible evidence. That a trial judge in a criminal case has an obligation to see the trial is conducted fairly and in accordance with law can be accepted. But that includes recognising a trial is an adversarial process with the characteristics identified in Gleeson CJ’s judgment. [675] The next case referred to was A Child v Andrews.196 That was a decision of the Supreme Court of Western Australia from a summary conviction of the appellant in the Children’s Court of stealing a jacket from a Jag store. Evidence was given at trial by the store manager that she had been told by her sales staff that the appellant had not paid for the jacket. No objection was taken to this evidence and none of the staff were called to give original evidence. It is unclear exactly what the statutory character of the appeal was in that case, though the appeal is couched in the language of the conviction being unsafe. It is important in correctly identifying what that case established to properly understand the scope of the submission made. Steytler J recited the appellant’s argument as follows: In these circumstances, the appellant says, the conviction was unsafe and should be set aside. Her grounds of appeal are that: 194 These parts of Gleeson J’s judgment were specifically approved in a case involving a wide range of alleged errors in R v Ignjatic (1993) 68 A Crim R 333 at 336-341, including where an argument was made that a confession ought to have been the subject of objection, though the tenor of the judgment is that the Court was not persuaded such an objection would have been successful. 195 (1990) 19 NSWLR 677 at 703-704. 196 (1994) 12 WAR 552. -- 140 of 242 -- 141 (a) the learned magistrate erred in fact and in law in admitting and relying upon hearsay evidence given by Ms Byford to the effect that no other member of the staff of the Jag store had sold the jacket; (b) the learned magistrate erred in fact and in law in admitting and relying upon secondary evidence of records kept by the Jag store, when the original records were not produced or tendered by the prosecution; (c) the learned magistrate erred in fact in finding that the jacket had not been sold and thereby inferring that the jacket had been stolen; and (d) the decision of the learned magistrate was against the evidence and the weight of the evidence. During the course of the appeal I inquired as to the reason for the failure, on the part of counsel who had appeared at the trial, to raise any objection to the admission of the hearsay evidence. As a consequence, and by consent, an affidavit sworn by that counsel was filed. In it she deposed to the fact that she “simply did not advert to the fact that the evidence given by Siobhan Byford was partly hearsay”. She said that if she had realised its hearsay character she would have objected to its admissibility.197 [676] In that context, his Honour undertook a review of authorities dealing with the appellant’s right to appeal on grounds of wrongful admission of hearsay evidence where there was no objection. I observe with respect that his Honour’s review shows the two themes identified in the judgments from Birks, being that a party is bound by conduct at trial on the one hand and that there will be cases where it is proper to intervene in a conviction on inadmissible evidence on the other. It is helpful to set out the last section of his Honour’s scholarly review to pick up the tenor of the authorities (including Birks): The question came again before the Victorian Full Court in R v Gay [1976] VR 577. In that case some pages from a police officer’s notebook were tendered by the Crown to rebut a suggestion that the officer had recently invented part of his evidence. Counsel for the accused (after consultation with the accused) stated that he had no objection to their admission. The pages were admitted in evidence. It was argued, on the appeal, that they should not have been admitted in evidence. The court (comprising Young CJ, Gillard and Murray JJ), after reviewing the authorities (including Stirland v Director of Public Prosecutions and R v Cutter), considered (at 584-585) that, in circumstances in which counsel had made a conscious decision not to object (and said so), the reception of that evidence could not, on the appeal, be impugned. In R v Visser [1983] 3 NSWLR 240 the appellant complained that evidence had been wrongly admitted. However, the evidence complained of had not been objected to. The court considered that, where no objection is taken at a trial to evidence which is claimed to be prejudicial, an appellant bears a heavy burden of persuading an Appeal Court that an occasion arose for the exercise of the trial judge’s discretion to exclude it and an even heavier burden of establishing that the discretion was wrongly exercised. It was said that it would be “a very rare case where a trial judge is justified in intervening to reject evidence where the accused is represented and when no objection has been taken to it”. In R v Roisetter [1984] 1 Qd R 477 the Court of Criminal Appeal in Queensland was called upon to consider a matter in which the appellant had been convicted on counts of indecent assault and rape. At the trial evidence had been admitted in the Crown case that the appellant was given to violence and that he has at times dealt violently with members of the complainant’s family, including the complainant, who gave evidence that she was “terrified” of the appellant. Counsel for the appellant, evidently acting deliberately and as part of a defence strategy, had not objected to the admission 197 (1994) 12 WAR 552 at 555-556. -- 141 of 242 -- 142 of that evidence. It was argued, on the appeal, that this evidence was wrongly admitted. McPherson J, with whom Andrews SPJ and Thomas J agreed, applying Stirland v Director of Public Prosecutions, R v Cutter and R v Gay, concluded (at 479) that it was not open to the accused to disavow, simply because unsuccessful, a form of strategy that was evidently the outcome of a deliberate decision by defence counsel and one that could hardly have been adopted without instructions from the accused himself.198 [677] His Honour then referred to Lusher AJ’s comment in R v Birks then continued: While Lusher J may have gone somewhat further than had been done in the majority of the cases referred to above, there is now a substantial body of authority to support the proposition at least that, in a case of genuine inadvertence, counsel’s failure to object will not, of itself, necessarily be a bar to the raising of the fact of the admission of inadmissible evidence as a ground of appeal. (I should, perhaps, also mention, in this respect, Crudgington v Cooney; Ex parte Cooney [1902] St R Qd 176 and Cahalane v Hop Kee; Ex parte Hop Kee [1926] St R Qd 73, both of which cases involved appeals from decisions given by magistrates.) Each such case will, as was said by Pring J in R v Branscombe depend upon its own circumstances albeit the court will always be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made by counsel at trial.199 [678] With respect, I agree with his Honour’s observation about the statement by Lusher AJ (if indeed Lusher AJ meant it to be read as widely as the appellant contends) and with Justice Steytler’s careful formulation of the proposition which emerges from his review of the authorities. His Honour’s ultimate conclusion was that the conviction had to be set aside. However, that was in the context where his Honour had both evidence of inadvertent failure to object and of other considerations which were unsatisfactory in the evidence. [679] The next case to consider is TKWJ v The Queen (2002) 212 CLR 124. In that case, the High Court was considering an appeal under s. 6(1) Criminal Appeal Act 1912 (NSW), the equivalent of s. 668E(1) Criminal Code. That case is sufficiently described in the headnote which provided, relevantly, as follows: An indictment was presented alleging sexual offences against C and K. C and K were respectively the son and daughter of a woman with whom the accused was living at the time of the alleged offences. To enable separate trials to be conducted, the indictment was amended to allege offences only against C. In the course of the trial, counsel for the accused informed counsel for the Crown that he intended to adduce evidence of the accused's good character. Counsel for the Crown replied that, in that event, he would then apply to call K to give evidence about the allegations relating to her. No character evidence of the accused was adduced. The accused was convicted. Held, that counsel’s decision not to adduce evidence of the accused's character was a legitimate choice that a competent counsel could fairly make and, viewed objectively, was a rational tactical decision made to avoid a forensic risk. Hence failure to adduce that evidence did not give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act. [680] The following statements are relevant: (a) By Gleeson CJ (at [15]): 198 (1994) 12 WAR 552 at 558-559. 199 (1994) 12 WAR 552 at 559. -- 142 of 242 -- 143 It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K. (b) By Gaudron J (at [26]-[27]) (footnotes omitted):200 The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis. (c) By Hayne J (at [107]-[108]): No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence? If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently, even though the conclusion that there could be no reasonable explanation for the course followed at trial would seem to entail the conclusion that counsel did not act competently. 200 See equivalent comments by McHugh J at [95] and Hayne J at [107]. -- 143 of 242 -- 144 [Emphasis in original] [681] The next case is Nudd v R (2006) 225 ALR 161. That case involved an appeal from a conviction of the appellant after a trial for drug trafficking in the Supreme Court of Queensland. In the High Court, the appellant submitted that there was a miscarriage of justice because of the incompetence of his counsel who: “failed to understand and properly advise on the elements of the offence charged; failed to take appropriate instructions; failed to appreciate or advance two lines of defence reasonably open; made admissions of fact in error and/or without instructions to do so; failed to object to inadmissible and highly prejudicial material contained in the telephone intercept tapes being admitted.”201 [682] Despite accepting the incompetence alleged, the High Court dismissed the appeal because the appellant was not deprived of a chance of acquittal because the case against him was unanswerable. There was no miscarriage of justice. [683] Relevant to the issues in this appeal, Gleeson CJ observed (returning to the theme of his judgment in Birks): [7] The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial. [8] Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred. [9] Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with 201 See the headnote to the ALR report. -- 144 of 242 -- 145 its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct. [Underlining added] [684] Those cases provide the background to briefer observations in the Court of Appeal of this state dealing with these issues referred to by the parties.202 [685] The appellant referred to R v Hess [2008] QCA 48. It concerned an appeal from a conviction in this Court of one count of rape. That case involved, relevantly, the admission into evidence, without objection by the appellant’s counsel, of evidence of inappropriate workplace touching by the appellant of the complainant and evidence of use of sexually violent language. Muir JA (with whom Keane and Fraser JJA agreed) found that that evidence was inadmissible because it was irrelevant and prejudicial. His Honour then considered (at [23]) whether the lack of objection could be explained by reference to a considered forensic judgment and rejected that possibility. His Honour then consider other evidence at the trial which served to magnify the potentially prejudicial effect of the evidence. His Honour then concluded at [28]: A trial judge in some circumstances may conclude that the giving of a specific direction in relation to evidence wrongly admitted may be counter-productive in focussing attention on evidence which has achieved no particular prominence. It is not possible to say whether that was a consideration here; there was no request for a redirection and thus no argument in relation to the point. In my view, however, the evidence about improper touching and the workplace banter, as well as being inadmissible, was prejudicial to the appellant for the reasons already advanced. The jury should have been directed to disregard it. Even if the evidence of the banter on 27 August was admissible, which I doubt, its prejudicial effect outweighed any marginal evidentiary value it may have had and it should not have been admitted. [686] His Honour’s ultimate conclusion was as follows (at [46]): Having regard to the prejudicial nature of the wrongly admitted evidence, which was not addressed by appropriate directions, viewed in light of the other matters discussed above, I am unable to be satisfied that the accused was proved guilty beyond reasonable doubt. For the same reasons I have concluded that there was a “miscarriage of justice” within the meaning of s 668E(1) of the Criminal Code Act 1899 (Qld). Accordingly, I would allow the appeal, order that the verdict be set aside and order a re-trial. 202 Paragraph 9 of his Honour’s judgment was applied by the Court of Appeal in R v PBC [2019] QCA 28 at [36] per McMurdo JA with whom Fraser and Morrison JJA agreed. In that case, a forensic decision between two unattractive options forced on the defence by an over enthusiastic crown submission was not accepted as being one which would attract the principle articulated by Gleeson CJ. -- 145 of 242 -- 146 [687] I respectfully observe that this involved an orthodox application of the principles more expressly articulated in cases referred to above. It does not support the appellant’s core contention that any conviction not based on inadmissible evidence should be set aside. [688] The High Court has returned to, and emphasised, these principles in recent cases. In R v Hinchey [2019] QCA 3, Gotterson JA (with whom Philippides and McMurdo JJA agreed), summarised recent cases as follows (Footnotes omitted): [31] Similarly, in Patel v R, French CJ and Hayne, Kiefel and Bell JJ said: “Certainly there must be exceptional circumstances for the Court to grant special leave to appeal where an applicant did not object at trial to the tender of evidence which is subsequently found to have been improperly admitted. Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel. The correctness of their counsel’s decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.” [32] Most recently, in Craig v R, a Full Bench of the High Court observed: “… TKWJ is concerned with challenges to forensic judgments that are within counsel’s remit. The objective test that TKWJ holds is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice. A necessary consequence of that discretion is that the accused will generally be bound by counsel’s forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.” [689] The only cases left to consider are R v McPartland [2017] QCA 35 at [31] and R v Fennell [2017] QCA 154 at [100] referred to by the respondent. In both cases, the Court adopted and applied the principles stated in the passages from Nudd and TKWJ above. They also involve appeals regulated by s. 668E Criminal Code. Appeals by way of rehearing pursuant to s. 223 Justices Act [690] All the authorities above are concerned with s. 668E of the Criminal Code (or cognate provisions in other jurisdictions). That section relevantly provides: (1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal. (1A) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. [691] The Justices Act has no equivalent statutory articulation of the approach to be adopted to a criminal appeal under s. 223. It requires the Court to conduct an appeal by way of rehearing. I have dealt with the general character of such an appeal in -- 146 of 242 -- 147 paragraphs [190] to [195] above. The more specific question in this case is whether the approach developed in the context of criminal appeals under s. 668E and its equivalents to inadmissible evidence admitted without objection (and indeed other issues relating to the manner in which the defendant conducted the trial below) applies in conviction appeals under s. 222. In my respectful view, it does apply. [692] The starting point is to recognise that it is not of itself an error for a Magistrate hearing a summary criminal trial to act on inadmissible evidence which was not objected to by counsel. In the context of a civil appeal by way of rehearing, in Hunt v Australian Associate Motor Insurers Ltd [2012] QCA 183 at [47] Muir JA (with whom White JA and North J agreed) observed:203 Counsel for the respondent submitted that there was no evidence which established that the appellant was given the care which she alleged to have received. The evidence, upon which the appellant relies, for present purposes, is that of Ms Purse and herself. Ms Purse’s report was admitted without objection and, prima facie, the hearsay evidence in it was therefore evidence for all purposes and should have been given the weight the trial judge thought appropriate. [693] His Honour cited as authority for that proposition, amongst other cases, McGregor Lowndes v Collector of Customs (1968) 11 FLR 349 at 357-359 where Hart J considered the authorities at length, including previous decisions of the High Court and Full Court. His Honour reached the conclusion stated by Muir JA. Those cases were both concerned with civil proceedings and the principle was expressed in those terms by Hart J.204 However, the principle in my view has been recognised as being applicable to criminal proceedings. In R v Stewart & Garcia [2014] QCA 244, Fraser JA, with whom Gotterson JA and Jackson J agreed, held (footnotes omitted): [81] The remaining ground of Garcia’s appeal against conviction is that the jury were not instructed as to how Garcia’s interview of 28 May 2009 could be used. In the outline of submissions for Garcia he adopted paragraphs of Stewart’s outline of submissions which contended that Garcia’s attribution of a confession to Stewart was not admissible in Garcia’s trial. Garcia’s counsel did not object to the admission of that evidence in his trial; defence counsel had presumably considered that this exculpatory version advanced Garcia’s prospects of acquittals. In R v Callaghan Pincus JA and Thomas J (as his Honour then was) held that, “if a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents … If inadmissible evidence is let in without objection it may be used by any party ‘to the extent of whatever rational persuasive power it may have’ (Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219; McGregor-Lowndes v Collector of Customs (Queensland) (1968) 11 FLR 349; Walker v Walker (1937) 57 CLR 630).” In any event, Garcia did not contend and it is not the case that the admission of this evidence was unfair to him or created any risk of a miscarriage of justice in his case. [694] This passage also helpfully identifies the next step in the reasoning. While admission of inadmissible evidence is not of itself an error and may be properly acted on to the extent of the probative value it may have, that principle is in my view subject to the duty of a trial judge to ensure that there is a fair trial. Accordingly, if an appellant can establish on a rehearing that the reliance by the trial judge on inadmissible 203 While that observation might now be questioned where the inadmissible evidence comprised hearsay included in an expert report tendered without objection (see the discussion Beavan in paragraphs [859] to [860] below), the principle remains sound and is based on broader examples as the cases relied upon by Muir JA demonstrate. 204 At 359. -- 147 of 242 -- 148 evidence not objected to was such as to cause the trial process not to be a fair, error will be shown. That duty arises in both civil205 and criminal proceedings. [695] Like a trial on indictment, a summary trial is an adversarial process. Accordingly, whether the proceedings have been conducted fairly or not must take account of that matter. In my respectful view, the principles arising from the adversarial nature of the proceedings articulated in the cases set out in the previous section will properly inform that question. Conclusion [696] In conclusion then: (a) It is not an error of itself for her Honour to have relied on inadmissible evidence tendered without objection; (b) Her Honour was entitled to put such weight upon that evidence as she considered appropriate, bearing in mind its probative value; (c) That is subject however to the requirement that the trial be conducted fairly; (d) The onus is on the appellant to demonstrate error by demonstrating material unfairness arising from the admission and use of the evidence not objected to; (e) Where there has been a failure to object, demonstrating unfairness requires the appellant to address the consideration that counsel’s decisions in the conduct of an adversarial trial ordinarily bind the parties; and (f) It may also be established where the character of the evidence is such that it had “no rational persuasive power”. [697] Whether the last point goes to the question of whether the trial was materially unfair, or alternatively goes to the demonstration of an error by the trial judge in making findings of fact based on the inadmissible evidence is probably a moot point. In either case, relevant error will have been demonstrated. Adequacy of the Amended Notice of Appeal: Goulevitch and Dillewaard [698] As noted above, the only ground of appeal relating to Mr Goulevitch is Ground 3/1A(iii) read with subparagraph (d). In substance the ground of appeal is that her Honour erred in accepting Mr Goulevitch’s evidence which had no probative value, was inadmissible and should have been accorded no weight. Mr Dillewaard is dealt with in the same peremptory terms in subparagraph (e). [699] Mr Goulevitch gave evidence for five days by reference to numerous documents and interrogation of the ArcReader program. He dealt with each of the 46 charge areas along with numerous issues relating to the source, character and use made of the data which underpinned his evidence. Mr Dillewaard gave evidence over about four days again addressing each of the 46 charge areas. [700] A Notice of Appeal under s. 223 is required to state the appeal grounds. No more is said. However, the purpose of the Notice of Appeal must be twofold: 205 In the context of civil proceedings it has been invoked, for example, as the basis for appeals by litigants in person where the trial judge is said to have failed sufficiently to assist them in the course of the proceeding: Tomasevic v Travaglini (2007) 17 VR 100 at [141] to [142]; McWhinney v Melbourne Health (2011) 31 VR 285 at [20]-[26]. -- 148 of 242 -- 149 (a) To identify for this Court the errors by the Magistrates Court; and (b) To notify to the other party what those errors are so as to permit the other party to understand the issues which will arise on the appeal. [701] A Notice of Appeal should not be a prolix document. However it should be sufficient to meet the purposes I have identified. To do so it should briefly and specifically identify the errors said to have been committed by the Magistrate. The Amended Notice of Appeal insofar as it relates to Mr Goulevitch and Mr Dillewaard is uninformative. The written submissions relating to their evidence covers some 120 pages and raised numerous specific legal and factual matters, none of which were identified in the Amended Notice of Appeal. The Amended Notice of Appeal in respect of Messrs Goulevitch and Dillewaard failed properly to meet the purpose of such a Notice. ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE RELIED UPON BY GOULEVITCH Introductory comments [702] As has been discussed, there was a great deal of geographical data available (the mapping data). It comprised: (a) Remote sensing satellite images and data (both images and data relevant to clearing and relevant to fire activity); (b) The Digital Cadastral Database and a revised version of the DCDB; (c) GPS points at which Messrs Smith and Dillewaard inspected Chess Park and took photographs; and (d) Regional ecosystem maps to generate maps and plans of Chess Park showing that information. Mr Goulevitch to produce those maps and plans. [703] Mr Goulevitch loaded the mapping data into a database and, using the ArcMap program, produced maps and images and interactive databases which were tendered at trial (the mapping evidence). [704] Key examples are the following: (a) Exhibit 17 which contains the mapping of the cleared areas superimposed on the boundaries of the Chess Park, FEA 34, the DSF and the road reserve. (b) Exhibit 27 which provided, in PowerPoint format, a series of slides showing each individual cleared area, relevant boundary and other features relevant to that area for each charge in each complaint taken from the ArcMap database. (c) Exhibit 23, the ArcReader package which permits interactive interrogation of the database of geographical information in the respects identified on that reader, including mapping showing all charge areas, relevant boundaries, waypoints and other features. (d) Exhibit 28 which showed the fire scar mapping and Mr Tran’s idealised fire management plan. -- 149 of 242 -- 150 (e) Exhibit 34.12A which showed the GPS locations at which Mr Dillewaard undertook inspections of the vegetation on Chess Park for the purposes of giving evidence on the character of that vegetation. (f) Exhibit 35, the ArcReader package which permits interactive interrogation of the regional ecosystem maps and waypoints relevant to Mr Dillewaard’s work against the background of mapping showing all charge areas, relevant boundaries and other features. [705] It is also important to observe that the DCDB data loaded into the ArcMap program and the regional ecosystem maps used were modified to take account of the observations on the ground by Messrs Smith and Dillewaard: (a) In the case of the DCDB, the boundaries as identified in the existing database were varied to take account of the observations by those gentlemen of certain waypoints on the ground linked to boundary fences and tree blazing; (b) In the case of the regional ecosystem maps, the areas shown as remnant and non-remnant vegetation were varied to take account of Mr Dillewaard’s observations. [706] The appellant challenged the admissibility and/or reliability of the mapping evidence on a number of grounds. I found the written submissions a little difficult to distill into specific propositions. The appellant’s arguments were organised in oral submissions in a more accessible manner. The grounds advanced as developed orally were as follows. [707] First, the appellant contended that all output of the ArcMap program was a document or thing produced by that program and therefore comprised inadmissible documentary hearsay unless proved by certificate under s. 95(3) Evidence Act 1977 (Qld) (the Evidence Act) or shown to be admissible at common law. The appellant contended it had not been shown to be admissible on either basis and that, therefore, all documents produced from the ArcMap database, including those which could be viewed on the ArcReader exhibits, were inadmissible. Because they were inadmissible they had no probative weight and her Honour erred in relying on them and I could not do so on this appeal for the same reason (the computer records point). [708] Second, the appellant contended that the DCDB, as adjusted to take account of the observations of Messrs Smith and Dillewaard, was not sufficiently accurate to permit a court to conclude beyond reasonable doubt that clearing occurred within the boundaries of Chess Park or the Forestry Act areas and that the evidence of the boundaries had no probative weight. That submission had two components: (a) The appellant submitted that the adjusted DCDB was not shown to be sufficiently accurate on the facts led at trial to provide probative evidence of the location of any boundary with sufficient precision to sustain any conviction in relation to charge areas on or near the boundaries of Chess Park and the DSF (the DCBD point); and (b) Further, the statutory status the DCDB had when published under the Survey and Mapping Infrastructure Act 2003 (Qld) (SMIA) was lost when it was adjusted because the adjusted map was not proved by admissible evidence to have been published under that Act (the publication point). -- 150 of 242 -- 151 [709] Third, the appellant made an analogous submission in relation to the regional ecosystem maps relied upon to demonstrate where remnant vegetation was located on Chess Park (the regional ecosystem mapping point). The appellant contended that those maps failed to prove with sufficient certainty the location of remnant native vegetation. [710] A further contention was made that part of the mapping data had not been included in a statutory certificate and had not itself been fully proved under s. 131(2) SMIA. It is uncontentious that that section permits satellite and remote sensing imagery of the kind used by Mr Goulevitch to be admitted into evidence pursuant to an evidentiary certificate under that section. It is uncontentious that such a certificate was tendered: see Exhibit 14.16. The appellant contended that some of the primary imagery used by Mr Goulevitch had not been proved under that certificate. That contention was withdrawn in the course of the hearing and that withdrawal was confirmed in written concessions filed by the appellant.206 However the appellant maintained that the certificate under the SMIA only made the specific images admissible, not any map or other output of a computer program which made use of those images as an input and presented them in a different format. The computer records point The appellant’s contentions [711] The appellant contended that the mapping evidence was the output of a device or process in that it was the output of a computer running the ArcMap program. Accordingly, for that evidence to be rendered admissible for the truth of its contents, it had to be brought within an exception to the hearsay rule either at common law or under a certificate under s. 95(3) Evidence Act. That section relevantly provides: 95 Admissibility of statements in documents or things produced by processes or devices (1) In a proceeding where direct oral evidence of a fact would be admissible, a statement contained in a document or thing produced wholly or partly by a device or process and tending to establish that fact is, subject to this part, admissible as evidence of that fact. (2) A court may presume the process or device produced the document or thing containing the statement if the court considers an inference can reasonably be made that the process or device, if properly used, produces a document or thing of that kind. (3) In a proceeding, a certificate purporting to be signed by a responsible person for the process or device and stating any of the following matters is evidence of the matter for the purpose of subsection (2) — (a) that the document or thing was produced wholly or partly by the process or device; (b) that the document or thing was produced wholly or partly in a particular way by the process or device; (c) that, if properly used, the process or device produces documents or things of a particular kind; 206 Concessions made + Submissions Abandoned by Appellant in the course of the hearing of Appeal, dated 5 September 2018 at paragraphs 9 – 11 (court document 29). -- 151 of 242 -- 152 (d) any particulars relevant to a matter mentioned in paragraph (a), (b) or (c). [712] It was not in dispute that the respondent did not tender a certificate under s. 95(3) Evidence Act. The appellant further submitted that the mapping data was inadmissible at common law. It was common ground that to make the output of a computer program strictly admissible for a hearsay purpose at common law, it was necessary to prove the matters stated listed in s. 95(3). The appellant submitted that the prosecution did not do so. [713] The appellant rejected the suggestion that s. 95(2) gave rise to a presumption which could be made by the Court absent positive proof of the matters in s. 95(3) or the tender of a certificate under that section. [714] The appellant submitted that her Honour erred in accepting the accuracy of the mapping evidence in two ways. First it was said that the mere fact that the mapping evidence was inadmissible documentary hearsay meant that her Honour erred in giving it, and therefore the evidence of Goulevitch and Dillewaard, any weight. Alternatively it was said that the failure properly to prove the mapping evidence meant that all the evidence of Goulevitch and Dillewaard was inadmissible because of non-compliance with the Makita principles.207 [715] The appellant submitted that it was irrelevant that no objection was taken to the evidence. He submitted, as explained above, that the appellant can only be convicted on ‘legal’ (read admissible) evidence and that any other conviction results in a trial not conducted fairly and according to law.208 The respondent’s contentions [716] The respondent concedes that no certificate under s. 95(3) was provided in relation to the output of the computer programs utilised by Messrs Dillewaard and Goulevitch. However, every other proposition of the appellant is disputed. [717] First, the appellant submitted that the output of the computer programs was admissible at common law, either because it did not contain documentary hearsay or because, to the extent required, the mapping evidence was established as admissible for a hearsay purpose at trial. [718] Second, the respondent submits that even if the mapping evidence was not technically admissible, the appellant should be bound by its conduct of the trial below in not objecting to the evidence derived from computer programs and forcing the tender of the reports of Mr Goulevitch which contained much of that information. [719] Third, the respondent contends that there is no substantive unfairness in the appellant being bound by that conduct because, if objection had been taken, the evidence could have been made admissible through Mr Goulevitch. It submits that his obvious familiarity and knowledge of the program used would support that inference. The respondent sets out detailed submissions based on evidence at trial which would sustain that submission.209 207 Appellant’s Part 2B submissions at paragraphs 214 – 216. 208 Appellant’s Part 2B submissions at paragraphs 223 – 225. 209 See Outline of Submissions on Behalf of the Respondent - Conviction at paragraph 217. -- 152 of 242 -- 153 Analysis [720] The respondent contended that the mapping evidence could be led because it comprised data or information of the type which experts in the field of expertise of Messrs Goulevitch, Dillewaard and Tran ordinarily treat as data upon which they may rely upon in forming opinions. The respondent relied on PQ v Australia Red Cross Society [1992] 1 VR 19. The point was articulated by McGarvie J in that case at pages 34-35 as follows: An expert witness, in relying on data in authoritative publications, is not confined to confirming or correcting a recollection of what is stated in the data. The witness may rely on the data without a previous knowledge of it. An example is the reliance that may be placed on tables and the like: [ee Borowski v Quayle [1966] V.R. 382, at pp. 387-8. The data relied on may be a statement of fact or opinion. When an expert witness bases evidence on data in an authoritative scientific publication it is the evidence of the witness which is thus put before the court. The publication itself is not evidence of the truth of statements it makes as to data. If the witness refers to or quotes from an authoritative publication as correctly stating a fact, what is referred to or quoted is part of the testimony of the witness: Sussex Peerage Case (1844) 11 Cl and Fin 85, at pp. 114-17; 8 ER 1034, at pp. 1046-7; Collier v Simpson (1831) 5 C and P 73; 172 ER 883; Cocks v Purday (1846) 2 Car and Kir 269; 175 ER 111; Concha v Murrieta (1889) 40 ChD 543, at p. 554; Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1980) 33 ALR 251, at pp. 273-4; Baker, The Hearsay Rule, p. 164 and Gillies, The Law of Evidence in Australia, pp. 354-5. [721] I do not think that this assists the respondent in respect of the admissibility of the mapping evidence. Mr Goulevitch gave evidence that the ArcMap program and the ArcReader were commonly used for viewing and analyzing different kinds of Geographical Information Systems data. That evidence was not challenged and no basis exists to doubt it. However, in my opinion, the output of those programs comprised in the mapping evidence is not general data of the kind referred to by McGarvie J, but specific evidence relevant only to this particular case. [722] However, that does not mean that the mapping evidence was not admissible. As Professor Forbes observes, s. 95(3) is not a code.210 He writes:211 Section 95 is an enabling provision, not a code. At common law information from a computer can be made admissible by giving ordinary evidence of data fed into the device by a person using it as calculator, compiler or classifier, supported by expert evidence that it was working properly at the material time.212 In such cases the computer functions (so to speak) as a sophisticated version of a pencil and a slide rule. In R v Wood213 an expert used a computer to classify the results of metallurgical analyses in order to identify stolen property. Mehesz v Redman (No 2)214 involved blood-alcohol tests, and R v McHardie and Danielson215 concerned voice-analysis tests to identify a blackmailer. Data on a computer constituted admissions in Markovina v The Queen,216 a drug-dealing case. 210 See also Bevan v Western Australia (2012) 224 A Crim R 227 at [129]. 211 J Forbes, Evidence Law in Queensland (12th ed, 2018, Thomson Reuters Westlaw) at [95.7]. 212 Mehesz v Redman (No 2) (1980) 26 SASR 244; R v Weatherall (1981) 27 SASR 238 at 247; R v Wood (1982) 76 Cr App R 23; R v McHardie and Danielson [1983] 2 NSWLR 733. 213 (1982) 76 Cr App R 23. 214 (1980) 26 SASR 244. 215 [1983] 2 NSWLR 733. 216 (1996) 16 WAR 354. -- 153 of 242 -- 154 Provided that the computer is properly programmed, the insertion of raw data and collection of the results need not be done by an expert.217 [723] Here, evidence was given by Mr Goulevitch as to the sources of data entered into the ArcMap database. And while I could not identify where he expressly stated that the program, and the device it was run on, was operating properly at the material times, it was plainly the case that he held that view. There is no other rational explanation of his extensive evidence in reliance on that the output of the ArcMap program. In my view, the mapping evidence was admissible at common law. Further, the extensive evidence relating to the ArcMap database and the ArcReader exhibits given by all three experts, who were all familiar with the program and its use, and the consistency between that evidence and the data amply justified adopting the presumption in s. 95(2). [724] However, even if it were concluded that the mapping evidence was not strictly admissible I consider that the trial was not unfair because of her Honour’s reliance on it. [725] As I have explained, in my view on an appeal by rehearing under s. 222, where evidence has been admitted without objection at trial, establishing that the evidence was inadmissible is not sufficient to make out error. However, that is the substance of the contention made by the appellant. [726] The appellant made no submission addressing the considerations raised in Birks and like cases to sustain the conclusion that the trial was materially unfair because her Honour acted on the mapping evidence. The implied criticism of her Honour in so doing has an air of unreality about it where the appellant’s counsel did not object to the evidence. The onus lies on the appellant to demonstrate error by her Honour in failing to conduct the trial fairly. It has done nothing to discharge that onus. In those circumstances, no error has been shown by her Honour in acting on the mapping evidence. This argument on the appeal can therefore be dismissed. [727] However, there are compelling reasons for positively concluding that the trial was conducted fairly in this respect. [728] First, the decision not to object by Mr Sheridan is a perfectly understandable one in the circumstances. All the reports were disclosed prior to trial. The appellant’s legal advisers would have been well aware of the nature of the mapping evidence to be led. (No complaint about non-disclosure is made on this appeal). Indeed the transcript contains an exchange showing that Mr Sheridan was familiar with the mapping evidence disclosed and sensitive to any change in it at trial.218 It also appears from the transcript that Mr Sheridan had considerable familiarity with cases of this kind.219 There was ample opportunity fro the defendant and his representatives to consider whether there was any forensic advantage to challenging 217 R v McHardie and Danielson [1983] 2 NSWLR 733. 218 Trial Day 4, page 33, lines 6 – 23. 219 See for example the comment by Mr Hunter QC, not cavilled with by Mr Sheridan, at Trial Day 4, page 33, lines 25 – 35; See Mr Sheridan’s evident familiarity with the kinds of clearing involved in previous prosecutions which can be inferred from his question at Trial Day 8, page 4, line 23; Mr Sheridan has appeared in a number of cases of this kind in the past including Witheyman v Van Riet & Ors [2007] QDC 342; Witheyman v Van Riet & Ors [2008] QCA 168; Witheyman v Simpson [2009] QCA 388; Western Queensland v Department of Natural Resources and Water [2007] QLC 15; Doyle v Minister for Natural Resources and Mines [2005] QLC 49; MacKenzie v Minister for Natural Resources and Mines [2005] QLC 47; MacKenzie v Minister for Natural Resources and Mines [2005] QLC 48; Mackenzie v Minister for Natural Resources, Mines and Water [2006] QLC 65. -- 154 of 242 -- 155 the admissibility of that evidence. Even now, the appellant does not point to any substantive reason to doubt the reliability of the mapping evidence. It is a rational forensic decision in those circumstances not to take an objection to the form of the mapping evidence, especially given the evident expertise of Mr Goulevitch and the easy familiarity of the other experts with the mapping evidence. To do so would have been pointless and apt to waste time. As Mr Hunter submitted, “the forensic advantage might be not wasting everybody’s time and upsetting the magistrate”.220 [729] There is nothing from Mr Sheridan before this Court to suggest the contrary (even if that could make a difference, which it probably would not given the matters in the next paragraph). In reaching that conclusion, I bear in mind Chief Justice Gleeson’s statement in TKWJ v The Queen at [15]: For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. [730] Second, the overwhelming inference on the evidence at trial is that, if challenged on the formal admissibility of the mapping data, the prosecutor could have led evidence from Mr Goulevitch and Mr Dillewaard as necessary to address any omission in the establishment of the evidential foundation for the admissibility of the mapping evidence as output of the ArcMap program. That overwhelming inference flows from the matters pointed to by the respondent in its written submissions at paragraph 217, none of which were challenged in this appeal. [731] There is there no realistic basis to think that any unfairness flowed to the appellant from the admission of the mapping evidence (even if it was inadmissible). It would be quite unfair to the prosecution now to permit the appellant to raise the issue. [732] One further point. The appellant might say that it did point to prejudice: the fact that the appellant was convicted. However that of itself is not relevant prejudice unless the conviction can be shown to arise from a matter which rendered the trial unfair. The appellant did not try to do so, and in my view could not do so on the facts of this aspect of the trial. The DCDB point Some background to the DCDB [733] The Digital Cadastral Database is a database created pursuant to ss. 46-47 SMIA. Those provisions provide: 46 State digital cadastral dataset (1) The chief executive must keep a dataset (the State digital cadastral dataset) comprising— (a) a digital graphic representation of each parcel of land in the State; and 220 Appeal Day 6, page 63, lines 16 – 17. -- 155 of 242 -- 156 (b) the following current details about each parcel of land mentioned in paragraph (a)— (i) a unique description of the land, including, for example, its real property description; (ii) the approximate coordinates for the corners of the parcel; and (c) a digital graphic representation of— (i) roads; and (ii) natural features forming a boundary of land; and (d) the approximate coordinates of the roads and natural features mentioned in paragraph (c). (2) The chief executive may, without fee, obtain information necessary to update and improve the dataset from the land registry. (3) Subsection (2) does not limit the sources from which the chief executive may obtain information for updating the dataset. (4) Subsection (1)(a) and (b) do not apply to a parcel of land shown on a building format or volumetric format plan of survey. … 47 Effect and use of information in State digital cadastral dataset (1) The recording, in the State digital cadastral dataset, of information about a parcel of land does not create or affect an interest in the land. (2) If the information in the dataset is inconsistent with information recorded or noted in the land registry, the information recorded or noted in the land registry prevails to the extent of the inconsistency. (3) Information recorded by a public authority, other than in the land registry, about the coordinates of land boundaries must be consistent with the dataset. [734] Mr Goulevitch gave evidence about how, in practice, the DCDB has been developed. That evidence was not challenged at trial. He explained as follows: MR HUNTER: All right. Well, can you explain then what the digital cadastral database is? MR GOULEVITCH: Yes, the digital cadastral database is an administrative tool, I guess, your Honour. It was sort of created about the time when space and information [sic spatial information] was going through a digital upgrade if you like. It – it represents the approximate position of boundaries across Queensland. In different parts of the State, it’s more accurate than other as I was referencing before. The Survey Mapping Infrastructure Act defines the digital cadastral database and why it’s used and it also governs or has legislation where the digital cadastral database, if it differs from survey plans, the survey plans are the true positions of boundaries. BENCH: If you – I didn’t catch where you said was approximate – as you said as a reference before. Where did you say it was approximate? MR GOULEVITCH: The digital cadastral database is – was created by initially digitising big, working maps so it’s quite inaccurate and without any ground control in western and far northern areas of the State, it was fairly inaccurate. But over the decades that that’s been going, ground control has been picked up sometimes from imagery – satellite imagery or aerial photography where you can see fence lines that represent basically where the extent of the property is and DCDB section would have used visible fence lines to adjust the DCDB location to that fence line. BENCH: I see. So it’s been gradually - - -? -- 156 of 242 -- 157 MR GOULEVITCH: Yes. And surveyors also when they go out and do work, they’ll connect into permanent survey marks which are coordinated marks and they will link the survey to that permanent survey mark, hence giving it a more accurate coordinate in the Australian mapping system. [735] Although I could not identify a specific provision which conferred primacy on a survey plan over the DCDB, it was uncontentious at trial that that was so and I have no reason to doubt that is correct. For the sake of completeness, Mr Goulevitch explained the character of a cadastral survey as follows:221 BENCH: The fence isn’t the boundary and the DCDB’s not in the boundary. You’ve got to find something - - -? MR GOULEVITCH: Yeah. To define the actual location of the boundary, you need a cadastral surveyor to go out and measure the location of monuments found on survey plans and reinstate not just that property boundary, your Honour, but ensure that no surrounding property owners are adversely affected by any shortage or excess in measurement. It’s a relative system, the cadastral system and people – when they see the digital cadastral database – because it’s got coordinates tend to think it’s an absolute system but it’s not. It’s a relative system currently to be fair to all landholders abutting a property and cadastral surveyors are obligated to ensure when they do a survey that none of the abutting landholders are adversely affected.222 [736] Mr Goulevitch gave evidence that no cadastral survey had been carried out of the boundary of Chess Park so the “absolute location on the earth’s surface”223 of the boundary on the ground could not be identified. Even if a cadastral survey had been undertaken, it is always theoretically possible given the character of that process (which involves elements of judgment and interpretation of documents of title) that different surveyors might have concluded that the boundary of Chess Park was in a slightly different locations on the ground. [737] It was also evident from the evidence given by Mr Goulevitch (none of which was challenged in cross examination) that the DCDB articulated estimates of accuracy of boundary lines for different entries. Mr Goulevitch gave evidence of such estimates for various areas relevant to this proceeding. The appellant does not dispute the correctness of this evidence as a matter of fact on appeal. It attacks this evidence as being inadmissible hearsay. [738] Mr Goulevitch gave the following relevant evidence on that issue:224 (a) The accuracy statement on the DCDB for the external boundary of Chess Park was five metres (it appeared to be plus or minus five metres); (b) The accuracy statement for the boundary of the DSF was 56 metres prior to the checking of certain fence posts and monuments by Mr Dillewaard with a differential GPS; and 221 The phrase is used but not defined in the Surveyors Act 2003 (Qld) nor in the SMIA, though it has a technical meaning. That tends to be confirmed by the SMI Regulations which sets out requirements for cadastral surveys generally consistent with (but more detailed than) Mr Goulevitch’s evidence. There is also a document entitled Cadastral Survey Requirements Version 7.0 made by the chief executive of the Department of Natural Resources and Minerals pursuant to paragraph 3 of the Survey and Mapping Infrastructure Notice 2015 and s. 6 of the SMIA which contains high levels of detailed specification for the undertaking of such surveys. 222 Trial Day 4, pages 28-29. 223 Trial Day 3, page 29, lines 33 – 35. 224 Trial Day 4, page 26, lines 14 – 38. -- 157 of 242 -- 158 (c) The accuracy statement for the boundary of the DSF after those points were included and the DCDB updated was plus or minus two metres. [739] Mr Goulevitch also gave evidence of adjustments he made to the DCDB boundaries for Chess Park on the western and north-west boundaries of the property. These adjustments are also contentious in the appeal. Mr Goulevitch gave evidence that he observed that the DCDB boundary was not aligned with the fences on those boundaries. He gave evidence as follows: MR HUNTER: Can I ask you some questions about the western and north-western and northern boundary of the property – or boundaries – plural. How did you identify the boundaries of the property in those areas? Obviously, there are cleared areas that you’ve identified and we’ll come to them in due course but there are cleared areas all along the western, north-western and northern boundaries?---Yes. And – and - - - BENCH: Of the forest? MR HUNTER: No, of the property. BENCH: Of the property. MR GOULEVITCH: Yes, it was evidence from the WorldView 2 imagery so the - - - BENCH: Evident from the?---WorldView 2, your Honour. The - - - Yes?--- - - - half-metre resolution - - - Yes?--- - - - imagery. I could actually see the western fence line and the northern fence line and given that I was asked to give a 10-metre exemption on the internal side of that external fence line, I mapped the fence line to apply that 10-metre exemption. When looking at the location of that fence line relative to the 2014 upgrade from the DCDB section, it was pretty close. It varied in different area. By what sort of amounts?---Around that 10-metre mark. Sometimes it’s very close. Sometimes it’s different. And from a surveying perspective, significant corners like the north-west corner fence post, I would put more weight in the position of that than intermediate fence posts and bends along that western boundary and northern boundary. There’s an instance on the northern boundary, your Honour, where the fence actually ducks down to the south to avoid going through a – what looks to be a creek. So that’s an example of commonsense from the landholder rather than trying to establish a fence exactly where the survey says, just avoid the cost of going up and down through a creek and then he’s just ducked down to the south a bit. So I’ve mapped the location of that fence to give the fence line exemption. But between the digital cadastral database representation of the northern and western boundaries, it swings around about so they sort of cross over each other a bit. But in terms of the scale of the property and the accuracy stated on the datasets, it makes sense. So just so I can be clear about this: what are the inner and outer limits of the difference between the fence line as you’ve mapped and the 2014 digital cadastral database?--- In some areas, it’s probably sitting within a metre - - - BENCH: It is what? Sitting?---It would be within a meter of each other - - - Yes?--- - - - your Honour. MR HUNTER: What’s the maximum - - -?---Well - - - departure? MR GOULEVITCH: - - - it’d be around 10 metres. I don’t think any were 15 metres. maybe 12 metres here and there on the odd points but relative to that sort of country, -- 158 of 242 -- 159 the – from my perspective as a licensed surveyor, given that the fences aren’t the boundary and the DCDB’s not the boundary, they relate to each other quite well.225 [740] After this passage, Mr Goulevitch gave the evidence in paragraph [735] above. Thereafter he gave the following evidence as to how he adjusted the DCBD in those areas and why he could tell that clearing on those boundaries was within Chess Park: MR HUNTER: All right. Well, dealing then with areas that you have identified as cleared that are on those boundaries or adjacent to the boundaries, how is it possible to tell whether they are actually on Chess Park as in lot 5 of WK207? MR GOULEVITCH: In terms of whether they’re on Chess Park, I would say anything – anything within the most conservative of those two boundaries you could reasonably say is definitely on Chess Park. In terms of splitting hairs between that 10-metre uncertainty zone, no, I – I can’t – I can’t say one way or another. But I can say that the clearing has continued up to the fence line on the western boundary and along the northern boundary. So wherever that fence is, that’s where the clearing has gone up to, your Honour. MR HUNTER: So you say you’ve allowed for a 10-metre – was it 10-metre uncertainty area. What do you mean by that? MR GOULEVITCH: In terms of – there’s uncertainty between – well, there’s discrepancy or difference between the DCDB location on the ground and fence lines. As I said, I would give weight to the fence lines on major corners like the north-west corner because they would have been surveyed. A large survey post would have been located and my experience from doing rural surveys is the landholder will pull that post out and put a new post in if the fencing needs to be redone. If the fencing doesn’t need to be redone obviously they won’t do that. Sometimes you’ll see the survey posts within half a metre, two metres, five metres, 10 metres from the fence post, but this is just the nature of fencing in rural areas.226 [741] Mr Goulevitch again explained his basis for confidence as to the location of the boundary clearing as follows: MR HUNTER: Sorry. You said you’re pretty comfortable and then you used the word ‘definite’. Can you – what do you mean? You’re pretty comfortable that they’re definitely inside Chess Park I think was the quick paraphrase of what you said? MR GOULEVITCH: Perhaps change definite. The only way to be 100 per cent sure is to perform a cadastral survey, but given the current survey regulations requirement that you can – it will tolerate a 10 to 20 metre error in the cadastral reinstatement that you do on – from the DCDB which the DCDB section said has got a five metre accuracy on the external boundary relative to the proximity as we can observe on screen. Perhaps not of the deviation around the creek, but the other boundaries are quite close. So if I come 10 metres inside those boundaries, the polygons are within the DCDB extent of Chess Park as well as the physical on ground fence line of Chess Park.227 [742] There was no cross examination of Mr Goulevitch as to the reliability of the identification of the relevant boundaries, even though Mr Goulevitch was cross examined for most of Day 8 of the trial. The cross examination insofar as it touched the boundary issues raised in this appeal was very limited.228 As noted above, no submission was made about this issue to her Honour. 225 Trial Day 4, pages 27-28. 226 Trial Day 4, pages 29-30. 227 Trial Day 4, page 32, lines 6 – 16. 228 Trial Day 8, pages 9-10, 35. -- 159 of 242 -- 160 [743] It is worth observing that the explanation given by Mr Goulevitch about the adjustment process described in the transcript at trial was expanded upon by reference to an ArcReader or ArcMap screen which I have not been able fully to recreate from the evidentiary record.229 That highlights the importance of respecting the advantage of her Honour in hearing the evidence unfolding in the ordered way that occurred over the course of the trial. It also gives weight to the consideration that failures to object to evidence which might seem open to debate to those who did not attend the trial can be explicable by forensic judgment of counsel at trial who had the same advantage. At the least it requires the matter to be addressed where error is said to arise from the admission without objection of relevant evidence which is said on appeal to be inadmissible. The appellant’s contentions [744] Again I found it difficult precisely to identify the points made in writing by the appellant. 230 Oral submissions were focused on only some of these matters. As I apprehend it, taken with the oral submissions, the arguments of the appellant are these. (a) First, her Honour erred in relying on inadmissible hearsay from Mr Goulevitch as to the accuracy statements of the DCDB. (b) Second, the work done in reliance on Mr Dillewaard’s GPS points was unreliable because Mr Dillewaard did not use a geodetic receiver. (c) Third, the survey regulations to which Mr Goulevitch referred in evidence were never identified or proved. (d) Fourth, Mr Goulevitch’s evidence was to the effect that there was no evidence as to the location of the so called legal boundary and the only way that boundary could be established at trial was by a cadastral survey. (e) Fifth, the adjustments made to the DCDB based on Mr Dillewaard’s GPS co- ordinates were undertaken by a Mr Stephanos who did not give evidence of that work. Further, there was no evidence that that revised version of the DCDB was “published” for the purposes of s. 65 Evidence Act with the consequence that the revised DCDB based on Mr Stephanos’ adjustments was inadmissible. (f) Finally, the extent of the adjustments (which varied between a few metres and 12 metres) was never linked precisely to each charge area. [745] The effect of these complaints was said to be that there was not sufficient evidence upon which her Honour could be satisfied beyond reasonable doubt that clearing occurred in the place alleged for any of the charges involving areas adjacent to boundary lines of Chess Park, the DSF and the road reserve.231 [746] In oral argument, Mr Trewavas developed the fifth point in more detail. He contended that the evidence failed to explain what Mr Stephanos had done to produce the revised DCDB in relation to Chess Park and that it was unreliable because the Court simply did not know what he had done. In answer to my query as to whether there was any basis to doubt the substantive accuracy of Mr Stephanos’ work given 229 Trial Day 3, pages 32-35. 230 Appellant’s Part 2B submissions paragraphs 242 – 273. 231 Appellant’s Part 2B submissions at paragraph 252 and footnote 196, and paragraph 262 and footnote 218. -- 160 of 242 -- 161 that it was not contentious at trial and was relied upon by Mr Goulevitch (an experienced expert in the field), Mr Trewavas submitted that the inadmissible nature of the evidence of itself meant it should be given no weight. He submitted any other approach involved reversing the onus of proof. As to the question of legitimate forensic judgment, he seemed to contend that the onus lay on the prosecution to demonstrate a legitimate forensic purpose and that, absent that, it should be assumed that the failure to object was a mistake. The respondent’s contentions [747] The respondent sought to organise the written submissions of the appellant in a slightly different way and responded as follows. [748] First, as to all the points raised, the respondent submitted none were raised at trial, and the respondent again invoked Birks and Nudd considerations. This point was emphasised by Mr Hunter in oral argument. He highlighted the fact that the defendant required the tender of Mr Goulevitch’s reports and that the defendant contested the case on the basis of the clearing being lawfully carried out. He submitted that the context distinguished the case from Beavan.232 He submitted that in the absence of some basis to conclude that the admission of the Goulevitch evidence was an error by counsel, the appellant should be bound by the conduct of his counsel. [749] It is worth setting out the way Mr Hunter developed this submission. He said: MR HUNTER: And so – and it’s, in our submission, absent some evidence before you that this was a genuine error by counsel below. Why would your Honour permit a defendant on appeal to rely upon such technical points about admissibility, in circumstances where counsel below didn’t take the point, arguably, because it wasn’t a matter of any dispute and he knew that, if, put to proof, the Crown could prove these things. HIS HONOUR: Yes. MR HUNTER: I mean the – for example, the accuracy statement about the DCDB; I mean the Crown could have put into evidence the map that exists that shows, with colour codes, the various levels of accuracy across the state, varying between 30 metres and centimetres. But the Crown could have put that in if there was thought to be a genuine dispute about it, but the point wasn’t taken. The Crown could have led a lot more evidence about how the ArcReader and ArcMap software worked, about the extent to which it is used across the world for precisely the sorts of exercises, that – exercise that was being undertaken by Mr Goulevitch. So there is, in our submission, something desperately unattractive about the idea that an appellant can come before this court, having made what appear, on their face, to be forensic decisions not to object to evidence because it wasn’t in dispute, and then come here and argue that, for technical reasons, the evidence ought not to have been received.233 [750] Mr Hunter also developed that submission in relation to the accuracy statements issue and the publication issue; contending, for the reasons he gave, that if challenged at trial the matters could have been proved.234 232 Beavan v Wagner Industrial Services Pty Ltd [2017] QCA 246 discussed at [859] to [861] below. 233 Appeal Day 6, pages 41-42. 234 Appeal Day 6, page 44. -- 161 of 242 -- 162 [751] Second, Mr Goulevitch was entitled to rely on the DCDB because it comprised data or information of the kind which experts in his field rely upon: invoking again PQ v Red Cross Australia. [752] Third, Mr Goulevitch’s evidence taken as a whole sustained the proposition that clearing on the western and northwestern boundaries of Chess Park where the DCDB had been adjusted for the fence line demonstrated that the particular clearing was within Chess Park, particularly given the small amount of adjustment (not more than 12 metres) and the large areas of clearing (70 metres wide). That evidence was not challenged in cross examination either for the boundaries or for any other areas of clearing. [753] Fourth, while the boundaries could have been established by cadastral survey, it was wrong to say that they could only be established in that manner. The evidence as a whole sustained the conclusion that the clearing was proved by observation and aerial photography which occurred on the tenures pleaded. Analysis [754] There are two broad propositions advanced by the appellant. The first is that her Honour erred by placing any weight on the evidence because it was inadmissible hearsay. [755] The second is that her Honour erred in any event because the evidence led on the boundaries could not establish beyond reasonable doubt that clearing proved on the ground by the prosecution occurred on the tenures pleaded. [756] There are also a number of subsidiary points advanced. The inadmissible hearsay evidence [757] The alleged inadmissible hearsay pointed to by the appellant was: (a) Mr Goulevitch’s evidence as to the accuracy statements on the revised DCDB; (b) Mr Goulevitch’s evidence of the technical adjustments to the DCDB by Mr Stephanos based on Mr Dillewaard’s observations with his GPS. [758] Mr Goulevitch’s evidence as to the accuracy statement in the revised DCDB relating to Chess Park and the DSF boundaries is prima facie hearsay: he is relying on the accuracy statements for the truth of their content. However, in my view this material could be relied upon by him in expressing his opinions even if not proved strictly: see the discussion in PQ v Red Cross Australia set out in paragraph [720] above. In my view, the statutory character of the DCDB and Mr Goulevitch’s adoption of it as reliable to the extent it articulates accuracy limits is such as to bring it within the scope of “facts and opinions... in statements by public authorities… regarded by such experts as having knowledge and expertise in the relevant area”.235 This was not something done without context. Mr Goulevitch explained how the DCDB is prepared, revised and maintained. He plainly had the expertise to do so and to identify it as a source relied upon by persons in his field. Nothing to the contrary was suggested. The fact that the revised DCDB was not proved to have been published goes only to its admissibility under s. 65 Evidence Act. It does not exclude 235 PQ v Red Cross Australia [1992] 1 VR 19 at 34. -- 162 of 242 -- 163 the application in proper circumstances of the principles articulated by PQ v Red Cross Australia. [759] This analysis applies to the revised DCDB as much as to the unrevised version. Mr Goulevitch made, or caused to be made, adjustments of detail to an otherwise admissible document. He could give original evidence (and did give original evidence) as to how and why those changes were made. That evidence was not hearsay. [760] Further, neither at trial nor on appeal is there any reason to doubt the correctness of Mr Goulevitch’s evidence about the adjustments. The point in paragraph [744](b) does not lead to any such doubt: when looked at in context, Mr Goulevitch never said that Mr Dillewaard used a geodetic receiver, nor that use of such an item was necessary. His evidence was that Mr Dillewaard used a differential GPS which had accuracy to less than two metres. [761] If that conclusion be wrong, and it if be correct that accuracy statements and evidence of adjustment of the DCDB (including the changes made by Mr Stephanos) were inadmissible hearsay, I nonetheless consider that the appellant received a fair trial despite the admission of that evidence. [762] First, the evidence was admitted without objection. It was open to her Honour to rely on it to the extent it was rationally probative. It was plainly considered probative by Mr Goulevitch, who had expertise in the area. Nothing to the contrary was suggested at any stage in the trial or in submissions. No substantive submission is made to persuade me of its lack of probative force on this appeal, other than to suggest, in the case of the Stephanos work, that it is not known how it was done. That of itself is not sufficient to permit the conclusion that the evidence lacked any probative weight in the broader context of this case. [763] Second, the lack of objection is itself a significant consideration. As I have said, it is evident from the transcript that Mr Sheridan was not a novice in cases of this kind, and that he had reviewed reports before trial. It seems to me that when a counsel chooses not to object to admissibility of technical evidence of this kind in that context, there is a strong inference it resulted from a judgment that there was little point in taking the objection. [764] It is telling to note Mr Trewavas’ concession (properly made in my respectful view) that if the revised DCDB had been published for the purposes of s. 65 Evidence Act, the evidence of the revised DCDB would have been admissible in any event.236 Mr Hunter submitted, and I see no reason to doubt, that if the question of publication had been raised at trial, it could have been attended to promptly. [765] These circumstances make this case entirely different from the facts in A Child v Andrews, not least because there is no evidence from Mr Sheridan that he failed by mistake to raise the admissibility of the evidence referred to above. This case is also entirely different from the facts in the Beavan v Wagner Industrial Services Pty Ltd [2017] QCA 246 discussed below. I cannot see how one could realistically infer that Mr Sheridan was reserving to himself the right to object to the allegedly inadmissible parts of the Mr Goulevitch’s evidence while forcing the tender of his reports and not 236 Appeal Day 6, page 29, lines 31 – 39. -- 163 of 242 -- 164 challenging the admissibility of the revised DCDB evidence. That is especially so given that he did not in fact do so in submissions at trial. Adequacy of evidence as to boundaries [766] The next question to be considered is whether, even allowing for the accuracy statements and revised DCDB having probative weight, there was sufficient evidence upon which her Honour could properly conclude that the clearing identified in or by the remote images and photographs occurred on the tenures pleaded in the Complaints. [767] I have articulated the proposition in this way to highlight the real issue raised by the appellant. It was challenged neither at trial nor on this appeal that clearing of the kind identified by Mr Goulevitch by reference to the remote imaging and by reference to the photographs taken by Mr Smith had occurred. The charges in each case alleged clearing to have occurred on one of the particular tenures identified: Chess Park itself, the DSF, FEA 34 or the road reserve. It was necessary for the prosecution to establish that the clearing occurred on those tenures. Each charge also particularised the clearing as having occurred in the approximate places located on attached maps (reflecting the locations identified in the maps in Exhibit 17) and as having occurred in the location of certain waypoints as particularised. Those waypoints are identified on the ArcReader package comprised in Exhibit 23. I did not understand the appellant to dispute that these locations were accurately plotted by reference to GPS co-ordinates. [768] In my view, given the other proof of the clearing and its location on the ground, nothing material turns on the precise location of boundaries of the various areas except the issue of whether the clearing and GPS points are located on the tenures alleged. This seems to have been the unstated framework within which the argument about boundaries developed. [769] 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 view237) that proof of approximate areas of clearing was legally sufficient.238 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. [770] Bearing that in mind, establishing that the prosecution had failed to prove to the relevant standard that all of the particularised clearing had occurred on the relevant tenure is not sufficient for the appellant to succeed. The appellant had to establish that the prosecution had failed to establish that any material part had occurred on the relevant tenure. [771] This had to be done on a case by case basis by the appellant. It was up to the appellant to establish error. The appellant did not seek to do so by reference to the details of any specific charge. Rather it advanced more general propositions. [772] The first proposition was that the only way that the prosecution could establish that clearing, which was alleged to be adjacent to a boundary, was located on a particular 237 Coleman v Kinbacher [2003] QCA 575. 238 Concessions made + Submissions Abandoned by Appellant in the course of the hearing of Appeal, dated 5 September 2018 (court document 29) at paragraphs 6 – 8. -- 164 of 242 -- 165 tenure was by a cadastral survey of that boundary. As has already been stated, the suggestion that a fact may only be proved in one way is wrong: Dixon J in McKay v The King (1935) 54 CLR 4 (at pages 8-9). Whether a cadastral survey would have been sufficient evidence to persuade her Honour that clearing on a boundary was shown beyond reasonable doubt to have occurred on the alleged tenure is not the point. The correct question is whether the evidence which was in fact led at trial was sufficient for that purpose for each such charge. [773] The appellant’s challenge to the sufficiency of that evidence in relation to areas which were located, on the respondent’s case, at or near the border with the DSF depended entirely on its challenge to the accuracy statement evidence that that boundary was accurate to plus or minus 2 metres. Given my conclusion on that issue, there is no further reason to doubt that a material part of the area of clearing identified for those charges was on Chess Park. [774] The other challenge was for the areas on the western and northwestern boundary of Chess Park: this related to Charges 1, 2 and 3 of Complaint 2. The appellant’s arguments on this issue were inspired by Mr Goulevitch’s concession that neither the DCDB boundary in its original orientation nor the fence line were the legal boundary. As he conceded, identification of that boundary with exactitude required a cadastral survey. However, that does not mean that the boundary as shown by the original DCDB or as adjusted to the fence line did not show the approximate location of the boundary. In my view it plainly did provide probative evidence of that matter. [775] Further, whether one took the original boundary or the fence line, it was Mr Goulevitch’s evidence that he could be confident that the boundary clearing was on Chess Park because it was extended well inside both lines. Given the accuracy statement for the Chess Park boundaries and the magnitude of the clearing in the areas on those locations (upwards of 70 metre wide clear felled areas), it seems to me that there was ample evidence to justify Mr Goulevitch’s evidence to that effect.239 [776] In my opinion, her Honour did not err in accepting Mr Goulevitch’s evidence that these areas of clearing occurred on Chess Park. I agree with that conclusion. Her Honour’s reasons [777] Her Honour only referred to the DCDB briefly at Reasons [65] and [66]. Those observations were made by way of summarising the evidence. As has been said many times, none of these issues were raised at trial. [778] The appellant submits that her Honour erred in failing to consider matters raised in this ground (and many others, including the contentions on the regional ecosystem map point considered next) which were not advanced at trial and in failing to deal with them in her Reasons.240 [779] I disagree. This was a complex trial. Extensive submissions were made by the appellant. Her Honour grappled with those submissions. Ought her Honour then have sat in chambers inventing other arguments, not raised by either counsel, and then given reasons about them? When and how would that process ever stop? Should her Honour have given notice of these points to ensure there was no breach 239 See paragraph [752] above and Outline of Submissions on Behalf of the Respondent – Conviction at paragraph 231(e). 240 See appellant’s Part 2B submissions at paragraph 266. -- 165 of 242 -- 166 of procedural fairness in considering them? There is an air of unreality about the appellant’s submissions on this point. [780] The appellant relied on, amongst other cases, Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [45] as authority for its contention. That paragraph is not authority for any proposition. Reference was also made to [65] of the judgment where Muir JA (with whom Holmes JA and Daubney J agreed) said: The following remarks of Henry LJ in Flannery v Halifax Estate Agencies Ltd241 relating to expert evidence were referred to with approval in the reasons of Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd:242 “It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye- witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: see Bingham LJ in Eckersley v Binnie (1988) 18 ConLR 1 at 77–78: ‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...’” And: “... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other ...”. [781] There was no conflict of expert evidence on the DCDB issues, indeed there was ultimately no relevant challenge to Mr Goulevitch’s evidence at all. In any event, Muir JA’s observations were concerned with the necessity of reasons to deal with the issues raised at the trial, as is evident from [59] of his Honour’ reasons (set out below at paragraph [1096]). This case affords no support to the proposition that her Honour erred in not giving reasons about issues not raised at trial in relation to the DCBD. The publication point [782] Given my conclusions on the DCDB point, the publication point does not need to be dealt with. The regional ecosystem map point [783] The existing regional ecosystem maps were also adjusted based on Mr Dillewaard’s botanical observations and on survey information he obtained. These issues are best dealt with in the next section relating to Mr Dillewaard’s evidence. As will be seen, I conclude below that the appellant has not made out its challenge to her Honour’s 241 [2000] 1 WLR 377 at 381–382. 242 (2004) 60 NSWLR 127 at 137. -- 166 of 242 -- 167 acceptance of Mr Dillewaard’s evidence. Accordingly the challenge to Mr Goulevitch’s evidence, which relied on it, also fails. CHALLENGES TO MR DILLEWAARD’S EVIDENCE Background [784] At trial, the complainant had to prove that the clearing in each charged area was clearing of native vegetation. However, Mr Hunter was content to conduct the appeal on the basis that that the complainant was required to (or chose to) prove that the clearing was of remnant vegetation of a least concern ecosystem (relevant vegetation). That was the position pleaded for Complaint 4 and, in part, for Complaint 2. [785] Mr Goulevitch’s expertise extended to determining from a chronological series of remote sensing images that clearing had occurred of varying forms of intensity and at varying times in the locations shown in those images. [786] Further, evidence of the location of remnant vegetation of a least concern regional ecosystem existed in the form of the regional ecosystem maps and the PMAV for Chess Park. Mr Goulevitch’s expertise extended to analysing how those maps related to the cleared areas. He did this by loading those maps in digital form into the ArcMap database, which allowed them to be superimposed over and compared to other data such as boundary and clearing location data. What Mr Goulevitch made plain he could not do was express an opinion on the kind of vegetation cleared: either by reference to remote sensing images or by inspecting the areas cleared (or by a combination of both). [787] Mr Dillewaard’s evidence was primarily relied upon at trial to fill that lacuna. Her Honour’s summary of Mr Dillewaard’s evidence was taken largely from the prosecution submissions at trial. They are set out at paragraphs [153] to [156] above. That summary does not appear to be caviled with by the appellant, so far as it goes. [788] However, the appellant contends on this appeal that Mr Dillewaard’s evidence that the charge areas were cleared of relevant vegetation was inadmissible and that accordingly there was no probative evidence before her Honour of that matter which could sustain conviction. That statement summarises at a very broad level of generality the complaints made by the appellant. The arguments are developed at length in the Part 2B written submission.243 None of the issues raised were raised at the trial. [789] The appellant also contended that the process by which the areas identified as relevant vegetation by Mr Dillewaard were integrated into the geospatial data used by Mr Goulevitch was so defective and objectionable as to make the resulting evidence not probative of the fact of correlation between cleared areas and previously existing relevant vegetation. This is the regional ecosystem mapping referred to in paragraph [709] above. I will consider that after dealing with the attack on Mr Dillewaard’s evidence. 243 See paragraph [818] below. -- 167 of 242 -- 168 Mr Dillewaard’s evidence [790] Mr Dillewaard’s testimony began with general evidence about his methodology and procedure then moved to specific evidence on the identification of relevant vegetation for each and every charge area. The key parts of his evidence for the purposes of this issue in the appeal are as follows. General evidence on methodology [791] Mr Dillewaard was called to give evidence on Day 9 of the trial. He gave evidence that he began his career after obtaining botanical qualifications with the Queensland Herbarium in about 1980. He had various roles in botanical work up to 2003 when he was appointed Principal Botanist for the Queensland Herbarium, where he remained at the time of trial. [792] He gave evidence that he was retained by Mr Smith to provide botanical and regional ecosystem expertise in relation to Chess Park and that, in particular, Mr Smith wanted him to complete a detailed assessment of the regional ecosystem mapping associated with Chess Park to determine the regional ecosystem types and whether there were areas shown as remnant or non-remnant vegetation which should be corrected. [793] He gave evidence of the way in which regional ecosystem mapping had been undertaken in the State. He explained the history of piecemeal mapping of regional ecosystems by the Queensland Herbarium from the mid-1970s until the introduction of the VMA in about 2000. The enactment of that legislation precipitated a more concerted effort to map regional ecosystems across the State, with previous mapping incorporated into the mapping under the VMA. [794] He explained the process for mapping regional ecosystems from remote imagery used in preparing regional ecosystem maps under the VMA: MR HUNTER: So from 1999, 2000 or thereabouts, what was the way in which the mapping of Queensland regional ecosystems was undertaken? MR DILLEWAARD: The – the mapping is a process of mapping out what we call the pre-clearing extent of regional ecosystems across the landscape and then deriving – and that’s mainly done from the interpretation of stereo air photographs normally around the 1960s era, because that particular time there was a consistent coverage of aerial photography across the state, and it also picks up a fair amount of – of vegetation prior to large amounts of clearing that had occurred. Now, with the availability of Landsat imagery, we then also derive what we call remnant regional ecosystem coverages, and that starts from about 1995. And about every two years we revise the remnant regional ecosystem mapping based on – on the availability of the new Landsat imagery. So then we start to pick up a picture of the extent of clearing that occurs over a time period. So we have 1995, 1997, 1999 right up until the current version, which is based on 2013 Landsat imagery, and we’re just about to start on the revision for – based on 2015 Landsat imagery. MR HUNTER: Now, what’s the resolution of the Landsat imagery that’s used? MR DILLEWAARD: It’s 30 metre pixels. BENCH: Sorry, didn’t hear?---Sorry? How many pixels?---Thirty metre. MR HUNTER: So the determination of the extent of native vegetation, for example, in a particular place on Queensland, is that done by reference to someone actually -- 168 of 242 -- 169 being on the ground, or is it done by reference to the remotely-sensed images from Landsat? MR DILLEWAARD: No. It’s a combination that vegetation communities, particularly where you can examine them under stereo microscope, reflect three- dimensional properties of both the landscape and the vegetation. So based on that initial examination that you – you pick up on environmental variables that reflect normally the – the – what type of vegetation might be growing in that particular area, and then that - - - BENCH: What are these communities? I just don’t quite - - -?---So these – these are vegetation communities - - - Yes?--- - - - your Honour. And you started the mapping primarily because of those. Where is the information coming from? MR DILLEWAARD: So from the – from the – a combination of looking at this imagery and looking at the different patterns that that imagery reflects on that imagery. And those patterns relate to either different vegetation community types, which then reflect – which also reflect things like different landform types, whether they’re on flats or on hills and that sort of information. And we also at geology, soils and also land systems data, which is – it’s, essentially, prior or additional information that reflect the environmental variables that vegetation responds to. So you get different vegetation communities growing on the creek flats to what might be growing on a hilltop or on those sort of things or, yeah, depending on where you are in the landscape. And those sort of patterns are quite distinguishable on – on imagery. So you start there, and you, essentially, just are mapping different patterns, your Honour, and then you follow that up with field work in order to both quantify and describe what those particular patterns are relating to. So if you come across a particular pattern – and we call them unique mapping units because they have a particular set of criteria in terms of their – their colour, their texture, their – their – just their general sort of appearance on the imagery. And then when you sample that particular community, you then sort of pick up both variation within that signatures, and then you can extrapolate that – that information to areas that you haven’t sampled. MR HUNTER: And is the extrapolation of what you have seen in one place to areas that you haven’t sampled, is that a scientifically valid exercise? MR DILLEWAARD: This – this is a technique that is used around the world and has been for quite some years. It’s the same technique that primarily was used in order to even map other attributes like geology, landform and soils, and there’s various data sets associated with that. But, yeah, it is a world-recognised method for – for mapping vegetation, and – and, yeah, a common thing in Australia. And it’s, yeah, something that we’ve been doing since, as I said, yeah, the mid-’70s.244 [Underlining added] [795] Mr Dillewaard then gave evidence that he visited some, but not all, of the cleared areas in Chess Park. Mr Hunter asked Mr Dillewaard how he could identify the character of the vegetation cleared when the vegetation was no longer present. Mr Dillewaard explained that he could infer the character of the cleared vegetation by analyzing the adjacent vegetation, analyzing the piles of cleared vegetation and relating characteristic presentation of the particular regional ecosystems in remote imagery to imagery of the precleared areas (consistent with his method identified in the underlined passages above).245 [796] He developed his explanation of how he could identify particular regional ecosystems in that way by explaining how he could infer the height of vegetation in 244 Trial Day 9, pages 5-6. 245 Trial Day 9, page 7, lines 31 – 46. -- 169 of 242 -- 170 a particular area by reference to the science of photogrammetry, which permits determination of the height of trees in remote images by the use of stereo imagery. He gave evidence that the use of that science permitted a judgment to be made as to whether the cleared areas had been previously cleared (at least within any relevant timeframe).246 [797] Mr Dillewaard then gave evidence as to his understanding of remnant vegetation under the VMA and the three categories of regional ecosystem, including the sophisticated part of the definition of remnant vegetation focused on identification of the predominant canopy. His understanding was consistent with the terms of the VMA.247 [798] He went on to explain how he assessed the native vegetation on Chess Park. His evidence in this respect is also relevant to the appellant’s complaints so it is worth setting it out: MR HUNTER: Can you explain what that meant in terms of the way you went about looking at the various areas on Chess Park? MR DILLEWAARD: In order to determine, first of all, the class or the vegetation management class associated with the regional ecosystem, I – whether it’s a least- concern, of-concern or endangered regional ecosystem, you do need to identify what the regional ecosystem is. So based on the definition of a regional ecosystem, which is a vegetation community within a bioregion characterised by geology, landform and soils, I determined, first of all, what the regional ecosystems were or are, and that was based on both the application of a whole method in order to assess that. And I refer to a methodology that the Herbarium has that is used to map regional ecosystems and describe regional ecosystems in Queensland.248 [799] The last two sentences of this quote refer back in my view to the method explained in paragraphs [793] and [794] above. He went on to explain those matters in more detail. He then explained that there was very little non-native vegetation on Chess Park and that the woody vegetation and the dominant canopy were entirely native vegetation.249 [800] Mr Dillewaard then identified the remote sensing data used in his assessment: being Exhibits 34.5 to 34.8. He then gave evidence that the mapping data he initially worked from was the Herbarium’s regional ecosystem mapping relevant to Chess Park, being version 6.0b and 8.0 in digital form. [801] Mr Dillewaard then explained the process he went through when on Chess Park. He explained that “you are always collecting information in order to ensure that the mapping best reflects, you know, what – what is – is there in front of you, bearing in mind, though, you’ve also got this temporal nature associated” with the mapping.250 He explained that he undertook the checking in two ways: by visual inspection and recording of the regional ecosystems (called a quaternary) and, where necessary, a more rigorous botanical analysis called a transect, where a detailed survey is undertaken of a specific area by recording relevant botanical details along a 50 metre line. The survey can be extended if the botanist is not satisfied with the certainty of the analysis over the first 50 metre line. 246 Trial Day 9, page 8, lines 4 – 35. 247 Trial Day 9, page 10. 248 Trial Day 9, page 10, lines 34 – 43. 249 Trial Day 9, page 11, lines 30 – 37 and see Trial Day 9, page 17, lines 1 – 28. 250 Trial Day 9, page 18, lines 41 – 44. -- 170 of 242 -- 171 [802] He also explained that he had with him a GPS and a tablet computer running ArcGIS software. Given the submissions by the appellant, it is important to note the following evidence: MR DILLEWAARD: GIS software. So you can access all the imagery and the Shakefiles, but that tablet also has its own GPS and you can set it up so you can have real-time tracking with you, in the field. So based on – on that you can determine exactly where you are. We never get lost in – in the bush, your Honour, because we know exactly where we are – unless the computer breaks – and you can then sort of relate issues that you’ve determined, both through your desktop exercise or new – new information based on imagery that – or, you know, that you’re – you’re seeing in – in the field, to – to, yeah, you know, essentially what – what you can – what you can see. So you’re always trying to relate the – the – the two together.251 Specific evidence on Chess Park inspection [803] Mr Dillewaard then gave evidence relating to where he carried out quaternary inspections and transects to the clearing areas. He explained that he was provided with mapping of the charge areas sourced from Mr Goulevitch and that Mr Dillewaard overlaid the places he made observations. Those are identified in Exhibit 34.12A. It can be seen from that exhibit that Mr Dillewaard visited a large number of locations related to charge areas. [804] The information in Exhibit 34.12A is included in an ArcReader package like the one prepared for Mr Smith. It appears at Exhibit 35. Like the Smith ArcReader package at Exhibit 23, the Dillewaard ArcReader facilitates a detailed understanding of where Mr Dillewaard carried out his inspections in relation to boundaries and charge areas. [805] It can be observed that: (a) He carried out inspections in numerous areas in the vicinity of almost every charge area. There were some 80 waypoints at which inspections were carried out. (b) There are very few charge areas which were not the subject of a recorded waypoint inspection somewhere in the location of the charge. Without being exhaustive, the main examples are Complaint 2, Charges 3, 4, 7 and 8. [806] After dealing with the GPS points taken by Mr Dillewaard at Mr Goulevitch’s request to assist in boundary identification, Mr Hunter led evidence from Mr Dillewaard as to his observations at each of the waypoints where he carried out quaternary or transect inspections relevant to the charged areas. This was done in an exhaustive manner by Mr Hunter. He first asked Mr Dillewaard to explain his observations at each waypoint and in particular to explain what regional ecosystem he concluded existed in those areas as well as how he reached that conclusion. [807] This evidence was very technical and detailed. Here is one example. This evidence related to three waypoints adjacent to each other, points 44, 45 and 46, where Mr Dillewaard did a transect analysis:252 [44 is the]… most south-western point, 45 is the middle one that’s half covered and 46 is pretty much where label 45 is adjacent to - - - … 251 Trial Day 9, page 19, lines 18 – 26. 252 Trial Day 9, pages 38-39. -- 171 of 242 -- 172 So what did you find?---At that point, I – I found – and I measured crown cover associated with – with my transect. I found across that particular area that the crown cover was 31.5 per cent. I took a – a number of height measurements associated with the species in the predominant layer. Those measurements – and I only took a – a – a – a few of these, but those measurements were 33.6 metres, 24.1 metres and 20.3 metres, to get an average of approximately 22.6 metres. And what species?---The species – the common names? Yes, please?---Narrow-leaved ironbark, gum top box, rusty gum and a pink bloodwood. Are they all native species?---All native species. Was that the canopy layer?---That was the canopy layer. And what was the - - -?---I - - - sub-canopy?---Yeah, there was only one tree that I – was left remaining and that was a soap wood, Alphitonia excelsa. … Okay. And there’s only one of those left?---There was only one of those left and there was also a – a few wattle species, acacia species. All right. Well, are they all native species?---They’re all native species. And what about in the canopy layer; were they all native?---In – in the canopy, yes, they were all native. All right. What was the height of the sub-canopy?---I didn’t measure that. All right?---I didn’t measure that, but I’ve got on my notes here - - - All right. And you also noticed some ground cover?---Yes, there was kangaroo grass and a – a saw sedge. The kangaroo grass, you want the scientific name? No, no - - -?---No. - - - just kangaroo grass is fine?---Yeah. … MR HUNTER: And you, again, you examined the geology of the scene as – of the area as well?---Yeah. I – I also record issues about soils; that there were, essentially, sandy soils which is – is one of the characteristics of – of – of land zone 5. It’s – it’s not the only characteristic - - - Well, perhaps can we move to you telling us about the Regional Ecosystem code, if any, that applied to that area?---Now, that particular area I attributed it to Regional Ecosystem 11.5.20. So what does the 20 refer to?---Now, that’s – that’s a different – it’s – it’s the same bioregion, it’s the same land zone as previously but it’s more dominated by the gum top box than it is the – the narrow-leaved ironbark, hence it’s – it’s a different Regional Ecosystem; it’s a – a different vegetation community and its correct name is – or number is 11.5.20. [808] The examination in chief continued, waypoint by waypoint, over a full day, finishing with Waypoints 114 and 115 mid-morning on Day 10 of the trial. The regional ecosystems at those areas were said by Mr Dillewaard to be regional ecosystem 11.5.1 for the reasons he gave.253 Mr Hunter then took Mr Dillewaard through another seven waypoints (numbered 0 to 6). These were the waypoints he took to assist with boundary identification for Mr Goulevitch (see paragraph [738] above). Mr Dillewaard gave opinions as to the regional ecosystems in the vicinity of those 253 Trial Day 10, pages 18-19. -- 172 of 242 -- 173 waypoints as well (where they were not located in cleared areas as point 0 was).254 Mr Dillewaard also made frequent statements as to the status of the vegetation he observed being remnant vegetation, though this did not occur for every waypoint. [809] Having led evidence of all the examinations undertaken by Mr Dillewaard and his conclusions as to the regional ecosystems he observed, Mr Hunter turned to the next step in Mr Dillewaard’s work. Identifying the character of cleared vegetation [810] Mr Dillewaard then explained how he used the information he had gathered. He explained that he used the information to update the two regional ecosystem maps previously identified, so as to produce versions which were consistent with the observations he had made on site. He produced revised versions of maps 6.0 and 8.0. He did not explain in detail how the carried out each individual change to the existing maps. However, his general methodology and approach to assessing the existing mapping for Chess Park was set out in paragraphs [791] and [802] above. He also gave evidence that he adjusted those maps both to correct areas of remnant and non-remnant vegetation shown on the maps and to correct regional ecosystems identified on those maps based on his inspections. 255 [811] He then explained how he linked that work to cleared areas: All right. Thank you. You can put that back. Now did you make digital versions of those maps?---I did. And are they more detailed than is possible to reproduce at A3 size?---Yes. And did you provide those digital maps to Mr Goulevitch?---I did. All right. And did you undertake a comparison between the areas that you had mapped in your two amendments, that is the updated 6.0b and 8.0 and compare the areas that you had mapped with the areas that Mr Goulevitch had identified in what had been referred to in these proceedings as the charged polygons?---That’s correct. And did you then go on to identify what, in your opinion, was the applicable regional ecosystem within each of the charged polygons?---That’s correct. Yeah. All right. Is that a - - -?---You – you mentioned previously that – that there was that remnant, non-remnant updating that had occurred. That also applied to the regional ecosystem mapping of all types that were present originally. I see?---And based on my field work I was able to refine those. Do you mean in terms of the regional ecosystems in the coding that we referred to?-- -The [indistinct] Yes. Yes. In – in the – the composition of the – those polygons or – yeah, mapping areas that you can see on – on those maps. Yeah. All right. Thank you. Is that a convenient time, your Honour? BENCH: Did I understand that? As a result of your field trip you also refined and identified the regional ecosystems in the charged polygons, not just whether they were a remnant or a non-remnant?---Oh definitely, your Honour. Yes. But the system?---That’s – that’s correct. Yes. [812] Mr Hunter then took Mr Dillewaard through the charged areas for all complaints. Mr Dillewaard gave evidence in respect of the Forestry Act charges in relation to whether he could express an opinion that there had been clearing of forest products. When dealing with Charge 1 of Complaint 1, Mr Dillewaard addressed how he was 254 Trial Day 10, pages 20-22. 255 Trial Day 10, pages 23-24. -- 173 of 242 -- 174 able to express an opinion on the character of vegetation in areas which had been cleared (though recognising that that was not necessary for the Forest Act areas). [813] He said:256 All right. Now, the regional ecosystem isn’t particularly relevant in relation to a charge under the Forestry Act, which is what we are dealing with here, but in terms of your categorisation of the regional ecosystems, obviously we are dealing with areas that had been cleared so how did you work out what had been in those areas before the clearing took place?---By relating the imagery that showed the vegetation before the clearing and relating that to the areas cleared I was able to determine that those areas did contain remnant native regional ecosystems at the time of the clearing so it was a process of relating all the analyses that I had done, the desktop analysis, the field validation of patterns and signatures that I could see on the imagery, back on to the imagery post the clearing and then determine, based on an intersect between the clearing polygons and my updated mapping, what areas of regional ecosystem existed there. All right. Now, with what level of precision is it possible to break the areas down into the different regional ecosystems? So I’m not talking about areas that are of least concern generally but areas that are specifically - - -?---Related - - - 11.5.1 as opposed to 11.5.20. Is there some bright 5 line that delineates the two types of ecosystem?--- No. As I went through the imagery and looked at the site data, the variation between different regional ecosystems is very subtle on – almost non-existent on the signatures that you get from the imagery that I looked at. It is still beyond the capacity of remote sensing to identify a large number of species just from remote sensing itself and you do need to rely on your ecological knowledge, your assessment of the various natural resource information layers that are available, like geology and soils, and the land form in the form of topography, relating that also to your field notes and also your field knowledge of the area. [814] Mr Dillewaard then gave specific evidence on the regional ecosystem (or systems) he identified as having been present at the time of the clearing in each charge area (including each sub-area), whether those were least concern or some other category (there was in fact no materially relevant other category) and occassionally whether the vegetation cleared was remnant vegetation.257 His evidence was given in part by reference to Exhibit 35, and starts from Day 10 at page 31. His evidence was summarised in Exhibit 34.4, which contained a table setting out Mr Dillewaard’s conclusions on those issues.258 [815] Having read this evidence myself, the advantage of the learned Magistrate in having this evidence led in order and with the assistance of both counsel at trial was very significant. While in most instances I can recreate from the exhibits what was being explained in evidence in chief, there are occasions where that is difficult to do. However, on my reading of the transcript it appears that both her Honour and Mr Sheridan understood explanations given by reference to the technical exhibits.259 The photographs taken by Mr Dillewaard and referred to in evidence are Exhibit 34.2. (I should add that the version of Exhibit 35 which I used for these Reasons did not appear to allow me to review the photographs taken by Mr Dillewaard and explained in his evidence. This did not impact on my ability to consider the issues which arose, particularly as the information I did have included both the location of the photographs and Mr Dillewaard’s description of what he could see.) 256 Trial Day 10, pages 28-29. 257 Which continued until Trial Day 11, page 49. 258 Trial Day 10, page 26, line 27. 259 See for example Trial Day 10, page 34, lines 26 – 37. -- 174 of 242 -- 175 Cross examination [816] Mr Sheridan cross examined Mr Dillewaard for about three hours. His first subject, pursued for some time, was whether certain vegetation shown as cleared might have been killed by fire and then cleared when already dead. A number of other topics were covered. However it does not seem necessary to grapple with them for the purposes of this appeal. The appellant did not suggest that Mr Sheridan took the objections now raised by them on the appeal. Reading the cross examination as whole it seemed to me that Mr Sheridan had a good understanding of the issues raised in Mr Dillewaard’s evidence. [817] The appellant’s trial submission made no substantive criticism of the aspects of Mr Dillewaard’s evidence challenged on appeal. As noted above in paragraph [118] above, the trial submissions raised only one point: the relevance of Mr Dillewaard’s evidence to the exclusion of the Forest Practice exemption (dealt with from paragraph [1079] below). The appellant’s submissions [818] Section 6 of Part 2B relates to Mr Dillewaard but refers in paragraph 437 to previous submissions. My assumption was that the appellant referred to paragraphs 282 to 340 of Part 2B. The arguments as I understood them from the appellant’s oral260 and written submissions were as follows. [819] The appellant accepted that Mr Dillewaard was an expert botanist. However, he did not accept that Mr Dillewaard’s methodology for determining remnant vegetation of a least concern regional ecosystem from a combination of existing mapping, remote imaging and site inspection was a valid scientific botanical method.261 [820] However, the primary complaint of the appellant concerned the application of that methodology. The appellant appeared to accept that Mr Dillewaard gave evidence: (a) That he had inspected areas at Chess Park; (b) That he had used that information to update the regional ecosystem maps in accordance with the methodology he had described; and (c) At least by inference from his summary document at Exhibit 34.4 if not expressly in every case, that each charge area had been cleared of remnant native vegetation of a specific least concern regional ecosystem or systems. [821] However, the appellant says that Mr Dillewaard failed to explain specifically for each charge area each step he had gone through in applying methodology to reach his conclusion that relevant vegetation was cleared in each charge area.262 In particular the appellant submitted that to give evidence which sustained his conclusion that relevant vegetation was cleared from each charge area, Mr Dillewaard had to expressly state his opinion and/or observations on each of five elements: (a) As to the identification of the declared regional ecosystem which had been cleared, he had to give evidence of (the RE elements):263 260 The appellant’s oral submissions appear in two tranches: Appeal Day 6, pages 76-106 and Appeal Day 7, pages 73-89. 261 Appellant’s Part 2B submissions at paragraphs 336 – 340. 262 Appeal Day 6, page 87, lines 39 – 45; Appeal Day 6, page 93. 263 See definition of regional ecosystem in paragraph [65] above. -- 175 of 242 -- 176 (i) The particular vegetation community associated with the regional ecosystem identified; and (ii) The particular combination of “geology, landform and soil” associated with that vegetation.264 (b) As to establishing that there was remnant vegetation cleared, he had to give evidence265 (the remnant vegetation elements): (i) That the particular vegetation community cleared comprised species characteristic of the vegetation’s undisturbed predominant canopy; (ii) That vegetation comprised more than 50 per cent of the undisturbed predominant canopy; and (iii) That vegetation averaged more than 70 per cent of the vegetation’s undisturbed height. [822] Further, the appellant submitted, Mr Dillewaard had specifically to explain for each charge area the steps he took in applying his methodology to reach those factual conclusions in respect of each of those five elements for each charge area and sub- area. [823] This evidence was said by the appellant to be necessary because without it Mr Dillewaard failed to: explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.266 [824] The appellant submitted that unless Mr Dillewaard gave evidence of each of these matters and how he determined them for each declared regional ecosystem which had been present in each of the cleared areas using his methodology, the Court was left to guess how that happened. [825] The appellant went so far initially as to say that Mr Dillewaard’s evidence in respect of each charge area was “simply a bare assertion”.267 Mr Allan for the appellant moderated his position in that regard later, accepting that Mr Dillewaard did do more than make a bare assertion that relevant vegetation had been cleared. However, he maintained that the failure properly to address each of the above elements in every case meant that the Court was unable to assess whether the evidence was based on Mr Dillewaard’s specialised knowledge. This, the appellant maintained, was because Mr Dillewaard did not explain all of the necessary steps in reaching his conclusion in each case, leaving the Court impermissibly to guess or infer what those steps were. [826] The appellant submitted that Mr Dillewaard’s evidence that there was remnant vegetation of a least concern regional ecosystem cleared from each charge area was therefore inadmissible expert evidence and, having been wrongly admitted, should be given no weight. The appellant relied on Makita (Australia) Pty Ltd v Sprowles 264 For some reason the third element of the regional ecosystem trifecta, the bioregion, was not included. 265 See definition of remnant vegetation in paragraph [69] above. 266 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. 267 Appeal Day 6, page 91, lines 18 – 22. -- 176 of 242 -- 177 (2001) 52 NSWLR 705, as well as Kyluk v The Chief Executive NSWCCA [2013] 114 for this proposition. [827] The appellant sought to make good its contentions by an analysis of the relevant evidence given by Mr Dillewaard – charge area by charge area and waypoint by waypoint – for each charge in Complaints 2 and 4. The former appears in its Schedule 1 to the Part 2B submissions. The latter appears in Schedule 2 to the Part 2B submissions. No complaint seems to be made about his evidence to the extent it relates to the Forestry Act Charges (presumably for the reason outlined in paragraph [812] above). [828] Schedule 1 to the Part 2B submissions has a particular focus. It is directed primarily to establishing that Mr Dillewaard did not give evidence that he visited the location of many of the charge areas, although there are many other subsidiary points made. So much seems to flow from its conclusions that the total number of charge areas actually visited (underlined in the submission) for the Complaint 4 charges was five (and for Complaint 2, zero or one). However those conclusions adopted the following assumption: Note: where the Magistrate’s First Decision indicates that DILLEWAARD “recognized” the charge area, or he was familiar with the polygons” or he visited waypoints “proximate” or “in the vicinity” of the chare area, this is taken to mean he did not actually physically visit the charge area. [829] Importantly, Schedule 1 does not refer to the evidence relied upon by the prosecution at trial to make out that each charge area was cleared of relevant vegetation. Those submissions identified that Mr Dillewaard did in fact visit and inspect most of the charge areas or areas closely located to them (bearing in mind that in some cases there was no standing vegetation to inspect because it had been cleared).268 Schedule 1 was prepared on a basis which did not take account of the evidence at trial on this key issue. [830] Schedule 1 also identified the occasions in which Mr Dillewaard gave evidence that there was more than one regional ecosystem cleared from a charge area.269 The submission seemed to be that, unless Mr Dillewaard identified which regional ecosystem was located where in the charge area, his evidence was inadmissible. [831] Schedule 2 to the Part 2B submissions criticises Mr Dillewaard’s evidence about observations at each waypoint. It contended that there was no evidence of the location of any waypoint by reference to GPS data. That is wrong. The waypoints were identified by GPS data and plotted on Exhibit 34.12A and Exhibit 35. It was also contended that Mr Dillewaard did not give evidence of the remnant vegetation elements in respect of each waypoint, though it is accepted that he did so on the occasions identified in the Schedule. [832] (The appellant also contended that Exhibit 35 was inherently unreliable. I do not accept that contention. The suggestion that the program behind the ArcReader application could not and did not accurately plot a GPS co-ordinate is not made out by any credible submission made by the appellant which I could locate. It is also to 268 For example see the Complaint 2, Outline of Closing Submissions on Behalf of the Prosecution dated 9 August 2016 in relation to Charge 1 at paragraph 17, Charge 2 at paragraph 33. There are similar submissions in respect of nearly all the charges in Complaints 2 and 4. Only the charge areas in on the northern boundary were not inspected. 269 See the summary at page 12 of Schedule 1 to the appellant’s Part 2B submissions. -- 177 of 242 -- 178 be noted that Exhibit 35 was apparently prepared and tendered at the request of the defence at trial and tendered without objection.) [833] The appellant also contended that the regional ecosystem maps could be given no weight because they were marked as follows:270 Regional ecosystem linework has been compiled at a scale of 1:100 000, except in designated areas where a compilation scale of 1:50 000 is available. Linework should be used as a guide only. The positional accuracy of RE data mapped at a scale of 1:100 000 is +/- 100 metres. The extent of remnant regional ecosystems as of 2011, depicted on this map is based on rectified 2011 Landsat TM imagery (supplied by SLATS, Department of Natural Resources and Mines). Disclaimer: While every care is taken to ensure the accuracy of this product, the Department of Natural Resources and Mines makes no representations or warranties about its accuracy, reliability, completeness or suitability for any particular purpose and disclaims all responsibility and all liability (including without limitation, liability in negligence) for all expenses, losses, damages (including indirect or consequential damage) and costs which you might incur as a result of the product being inaccurate or incomplete in any way and for any reason. [834] The appellant also submitted that the failure to object was irrelevant because the evidence had no probative weight and therefore should have been ignored by her Honour. Further, the appellant relied on Beavan v Wagner Industrial Services Pty Ltd [2017] QCA 246 for the proposition that permitting Mr Dillewaard’s evidence to be tendered did not involve accepting its admissibility.271 The respondent’s submissions [835] The respondent submitted that none of the points raised on appeal were raised at trial. The respondent submitted that Mr Dillewaard’s evidence was not objected to on admissibility grounds nor was there any challenge to it in cross examination. He submitted that there was no reason for her Honour not to accept Mr Dillewaard’s evidence. Reliance was placed again on R v Birks.272 [836] The respondent then turned to the substance of the attacks on Mr Dillewaard’s evidence and made the following points. [837] First, the appellant’s submissions did not do justice to the extent to which Mr Dillewaard actually assessed the vegetation at Chess Park: (a) The respondent pointed out that Mr Dillewaard had made observations about the character of the vegetation on Chess Park at each of the 80 or so waypoints and that many of these were in or very close to the charge areas. The respondent points out that Mr Dillewaard’s evidence about this was included in the trial submissions in relation to the charges in Complaint 2 and Complaint 4. Schedule 2 was quite wrong in submitting otherwise. (b) The respondent pointed out that the area which Mr Dillewaard did not visit (the northern end) was the subject of evidence from Mr Dillewaard by reference to photographs of that area. The appellant had not recognised that evidence was given. 270 Exhibit 14.17, 14.18, 14.19, 14.22. 271 Appeal Day 7, page 89. 272 (1990) 19 NSWLR 677. -- 178 of 242 -- 179 [838] Second, it was not necessary for Mr Dillewaard to personally inspect each charge area and give evidence as to all five elements identified by the respondent. The issue to be proved at trial was whether, on the whole of the evidence, including Mr Dillewaard’s evidence of inspections undertaken, it could be concluded beyond reasonable doubt that the appellant cleared areas of relevant vegetation. [839] As to the latter point, the respondent noted that the offence was complete on the clearing of native vegetation. However, the respondent was content to accept that it had set out to prove that the vegetation cleared was remnant vegetation of a least concern regional ecosystem. It submitted, however, that it was unnecessary to prove the particular regional ecosystems and their location in each charge area. [840] As to the evidence as a whole, the respondent submitted that: (a) The regional ecosystem maps and the PMAV were admissible as prima facie evidence of the matters shown on the maps. Although the regional ecosystem maps might on their own be treated with some reservation because of the accuracy statement, they remain persuasive because most charge areas are well the remnant vegetation areas shown on the maps, such that accuracy limits were irrelevant to the probate force of the maps; (b) In addition to the extensive personal inspections, there was extensive evidence from Mr Dillewaard as to his general observations while at Chess Park in the numerous areas he visited. This evidence demonstrated his detailed grasp of the characteristics of each regional ecosystem and the remnant vegetation elements. There was also evidence, in relation to areas he did not visit, that he considered photographs taken by Mr Smith in the charge areas and gave similar evidence; and (c) The task Mr Dillewaard was engaged on was to start with the existing regional ecosystem mapping and then check it on site to upgrade what it demonstrated. His inspections needed to be sufficient for him to carry out this task. He could then express his final views as set out in Exhibit 34.4 from the revised mapping. [841] This last point was extensively developed in writing at paragraphs 253 to 272 of the respondent’s appeal submissions. Analysis Relevant principles [842] The appellant relied on the well-known statement of principle by Heydon JA, as his Honour then was, in Makita v Sprowles at [85] for the proposition stated in [823] above:273 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a 273 (2001) 52 NSWLR 705. -- 179 of 242 -- 180 proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”. [843] There have been suggestions that care might be taken in approaching the statement at [85] of Makita as conclusively and exhaustively stating the common law rules on admissibility of expert opinion evidence, particularly as to the basis rule being a condition of admissibility at common law,274 however this statement has been accepted without caveat in this state.275 [844] In any event, debate about the place of the basis rule as a condition of admissibility at common law is irrelevant to this part of the appeal. The appellant relies on non- compliance with what might be called the reasoning rule. That rule is enshrined as a condition of admissibility in s. 79(1) of the Uniform Evidence Acts and is inevitably recognised as going to admissibility, not to weight, where that section applies. [845] The starting point for analysis of that rule is the decision of Gleeson CJ in HG v The Queen (1999) 197 CLR 144. That case involved the question of whether evidence said to demonstrate prior sexual experience of a child complainant with another person was admissible in the trial of the defendant. The evidence in question comprised a psychologist’s report provided at committal which included an opinion that the complainant had been assaulted before by another person. The judgments focused on the construction of the relevant provision of the Crimes Act 1900 (NSW) containing exclusory rules and exceptions relating to such evidence. However, Gleeson CJ also considered the admissibility of the report. His Honour relevantly observed at [39] (footnotes omitted): The opinions of Mr McCombie were never expressed in admissible form. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question. 274 See the discussion of the majority judgment in Dasreef Pty Ltd v Hawkar (2011) 243 CLR 588 in I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (5th ed, 2013 Thomson Reuters) at 2.20.140 and the more recent discussion of the differing views in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 at [52]-[62]. 275 R v Mackenzie [2016] QCA 277 at [37]. -- 180 of 242 -- 181 [Underlining added] [846] Similarly, in Makita itself Heydon JA held (at [59]): If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. In Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39–40, Lord President Cooper, in a case concerning liability for damage to dwelling houses allegedly caused by blasting operations in the course of constructing a sewer, said: “The only difficulty experienced by the Lord Ordinary and developed before us arose from the scientific evidence regarding explosives and their effect. This evidence was given by Mr Teichman, one of the technical staff of the ICI, with whom a fellow employee, Mr Sheddan, was taken as concurring. Mr Sheddan was cross-examined on his qualifications with considerable effect, and the point was taken that Mr Teichman was truly uncorroborated. I do not consider that in the case of expert opinion evidence formal corroboration is required in the same way as it is required for proof of an essential fact, however desirable it may be in some cases to be able to rely upon two or more experts rather than upon one. The value of such evidence depends upon the authority, experience and qualifications of the expert and above all upon the extent to which his evidence carries conviction, and not upon the possibility of producing a second person to echo the sentiments of the first, usually by a formal concurrence. In this instance it would have made no difference to me if Mr Sheddan had not been adduced. The true question is whether the Lord Ordinary was entitled to discard Mr Teichman’s testimony and to base his judgment upon the other evidence in the case. Founding upon the fact that no counter evidence on the science of explosives and their effects was adduced for the pursuer, the defenders went so far as to maintain that we were bound to accept the conclusions of Mr Teichman. This view I must firmly reject as contrary to the principles in accordance with which expert opinion evidence is admitted. Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court … Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.” Lord Carmont expressed “complete agreement” with those views. Lord Russell said (at 42): “… The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science. If it appears to be based on a sufficiency of research directed accurately and relevantly to a particular issue and to be so supported as to convince a Court of its fundamental soundness and applicability to the particular issue, a Court is entitled, although not obliged, to accept it, even if unsupported by any corroborative expert opinion. Secondly the defenders argued that in the absence of any counter evidence of expert opinion in the science professed by Mr Teichman the Court is bound to take his opinion as conclusive, and as decisive of the issue. I am clearly of opinion that that argument must be rejected as being contrary to -- 181 of 242 -- 182 the principles by which the rules of evidence are regulated, and as constituting an unwarrantable encroachment on the judicial function of the Court. I respectfully agree with your Lordship’s observations on that topic.” Lord Keith concurred with all the opinions expressed. [847] These statements have been cited with approval in later High Court decisions.276 In Dasreef Pty Limited v Hawchar, the majority observed:277 It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (51)) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita (52), that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. [848] Although these cases apply to s. 79 of the Uniform Evidence Acts, the principle articulated is applicable at common law.278 [849] Three matters can be noted. [850] First, the adequacy of the explanation of how expertise is applied to facts in order to produce an opinion must be judged from the perspective of what is required to permit the Court to assess that question for itself. However, in assessing that question the Court might also consider the fairness to the other party of the presentation of the opinion in the form proffered. As is sometimes said, the other party should not have to undertake the perils of cross examining “in the dark” without knowing the reasoning relied upon by the expert.279 [851] Second, whether an opinion is expressed in a form which meets the requirement will depend on the particular context in which the principle falls to be applied. For example, the majority in Dasreef made clear that the expression of expert opinion about the amount of silica dust to which a worker using a grinder in a certain manner would be exposed was a context which required more detailed explanation than the medical diagnostic example given. 276 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 at [37]; Honeysett v The Queen (2014) 253 CLR 122 at [24]. 277 (2011) 243 CLR 588 at [37]. 278 R v Karl Ernst Kleimeyer [2014] QCA 56 at [31]-[32]. 279 Makita at [62]. -- 182 of 242 -- 183 [852] Third, it is perhaps trite to observe that in assessing that matter it is necessary to identify and focus on the issue to which the opinion is relevant.280 [853] As to the implications of the admission of inadmissible evidence on an appeal under s. 222, I refer again to paragraph [696] above. [854] It can be observed that it is the express terms of s. 79(1) of the Uniform Evidence Acts which compel the conclusion that failure to comply with the reasoning rule makes the evidence of the expert inadmissible. While it might be accepted that at common law an opinion which was merely conclusory with no basis, express or implied, stated in the opinion will also be inadmissible, it will frequently be difficult to draw a clear line between a report which fails to meet the minimum requirement for disclosing reasoning and one which sufficiently articulates the reasoning to be admissible, but does not do so in a manner which makes the opinion persuasive. [855] In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [87], Dowsett and Weinberg JJ observed (referring to the statement in [85] in Makita):281 The use of the phrase "strictly speaking" in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing. It would probably lead to further difficulties in the appellate process. [856] For the reasons I have stated in paragraph [854], the reasoning rule is one which is apt, in my view, to attract the observations in Sydneywide Distributors. In my view, at least where the evidence given by the expert goes beyond mere conclusory statements, the comments in Sydneywide and cases which have followed it would suggest the opinion will be admitted and the adequacy of the articulation of the reasoning process will go to weight. As noted in paragraph [825] above, the appellant ultimately (and correctly in my view) accepted that Mr Dillewaard’s evidence was not properly characterised as a series of conclusory assertions. [857] Ultimately, in my view, where an opinion is not a mere conclusory assertion but includes some articulation how the witness’ expertise is applied to certain assumed or proved facts to produce the expert opinion, the evidence of that opinion will be admissible. Beyond that, the adequacy of the explanation as to how expertise applied to facts produces the opinion will be a matter going to the weight of the opinion. 280 Dasreef at [32]. 281 This approach was approved in the NSWCA in Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 at 138 [631] per Giles JA with whom Mason P and Beazley JA agreed, a position repeated in Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96 at 110-112 [60]-[66] per Hodgson and McColl JJA. -- 183 of 242 -- 184 [858] The identification of the point at which expert opinion falls from being unpersuasive to being inadmissible because of failure to articulate reasoning is moot in this case. The opinions were not objected to. They were admitted into evidence. Applying the principles summarised at [696] above, the appeal on this point will fail unless the appellant can persuade the Court that her Honour’s reliance on those opinions resulted in the appellant failing to have the benefit of a fair trial. [859] I pause here to deal with the appellant’s contention that the failure to object to any of Mr Dillewaard’s evidence did not mean that the evidence became admissible if it otherwise was not admissible. The appellant relied for that proposition on Beavan v Wagner Industrial Services Pty Ltd [2017] QCA 246. That case does not assist the appellant. In that case the Court held that where a party permits the tender of an expert report which contains assumptions of fact upon which the opinion was based, the party not objecting would not be taken to have admitted those facts by permitting the tender without objection. The Court reached that conclusion because of the recognised law and practice in respect of tender of such reports being that they are not admitted for the truth of the assumptions stated: see Fraser JA at [4] to [5] and McMeekin J (with whom Philippides JA agreed) at [57] to [58]. [860] The particular considerations which led the Court to reach its conclusion in that case do not apply here. This case did not involve a written report, and it did not involve the so-called assumption rule. No basis was advanced by the appellant to conclude that the very specific considerations identified in Beavan applied to the reasoning rule and in the context of oral evidence led in this trial. Indeed, Beavan rather supports the conclusion that the evidence was admitted regardless of any shortcomings in the reasoning disclosed. That is because the Court recognised the principle articulated in that case as being an exception282 to the general rule expressed in Robert Bax & Associates v Cavenham Pty Ltd283 where Muir JA held (Holmes JA (as her Honour then was) and Martin J agreeing), after a review of the authorities, that: In Queensland the practice has been that, where a party wishes to confine the evidentiary use which may be made of a document which is admissible for a limited purpose, counsel for that party states that there is no objection to the document being admitted for that purpose or objects to the document being admitted for any other purpose… To the extent that the consequences of a failure to object are determined by the operation of the doctrine of waiver, the effect of the practice in Queensland is that, generally speaking at least, a party who fails to object to inadmissible hearsay evidence contained in a document which is admissible as original evidence will have waived its right to limit the use to which the evidence may be put. [861] In my view, even if the evidence of Mr Dillewaard’s ultimate opinions, as encapsulated in his revised regional ecosystem maps and Exhibit 34.4 was technically inadmissible, the failure to object meant that the evidence was admitted for all purposes. Whether it was sufficiently probative to sustain the convictions is another matter or otherwise meant the trial process was substantively unfair is another matter. 282 See Fraser JA at [3] and McMeekin J at [62] to [66]. 283 [2013] 1 Qd R 476 at [46]. -- 184 of 242 -- 185 What is the error alleged? [862] The appellant had to identify error in relation to her Honour’s dealing with Mr Dillewaard’s evidence. As noted in paragraphs [654] to [658], the error specifically identified in the Amended Notice of Appeal is inadequacy of reasons. [863] Her Honour correctly observed that his evidence was not challenged (except in relation to the native forest practice point). It was open to her Honour to accept it for that reason. Similarly, she was entitled to accept Mr Dillewaard’s specific evidence on individual charge areas, as she frequently did. The premise of the appellant’s argument is that her Honour’s reasons were inadequate because: (a) Her Honour failed, of her own volition, to imagine the criticisms of Mr Dillewaard’s evidence raised for the first time on appeal; and (b) Her Honour then failed to explain why she accepted Mr Dillewaard’s evidence in the light of those matters. [864] This was said to comprise a failure to evaluate Mr Dillewaard’s evidence. [865] The purpose of her Honour’s reasons were to explain why she found each offence established beyond reasonable doubt. In doing so, it was appropriate that she give reasons which focused on the issues raised in submissions by the defendant. Indeed, in a case as complex as this, any other approach would be apt to produce extremely lengthy reasons, made so by the inquisitorial imaginings of the judge, divorced from the issues raised at the trial. One can imagine that a judge in giving reasons in a summary trial might deal with issues going to the probative weight of evidence not challenged at trial if that evidence was self-evidently very weak or not credible. That was not the case here in respect of Mr Dillewaard’s evidence. [866] The appellant’s real point was that Mr Dillewaard’s evidence “had no probative value, was inadmissible and should have been accorded no weight”. This is not a reasons issue. The appellant’s core proposition developed in argument was that the opinion was inadmissible. However, I do not consider that the mere fact of inadmissibility demonstrates error in the trial. For the reasons I have already given, where inadmissible evidence is admitted into evidence without objection in a summary trial, there is no automatic error by the trial judge, either in admitting the evidence or in acting on it. Rather, to establish error, it is necessary to demonstrate that the learned Magistrate failed to ensure a fair trial. That involves considerations arising from the adversarial nature of the proceedings. [867] By that route we arrive at the first point raised by the respondent in response to the appellant’s argument. To the extent the appellant complains that inadmissible evidence was put before her Honour, the respondent relies on R v Birks and the other cases set out from paragraph [670] above and says that the appellant is bound by the way that he conducted his case. [868] In my view, the failure to object can be inferred to have been a rational forensic decision, bearing in mind the other evidence which tended to prove that the clearing was of relevant vegetation contained in the admissible regional ecosystem maps discussed in paragraphs [879] to [884], particularly bearing in mind the experience of the appellant’s counsel in land clearing matters and the issues he had determined to pursue at trial. -- 185 of 242 -- 186 [869] Further, if challenged on the sufficiency of the reasoning, Mr Hunter could have easily led further evidence on that matter. Given the detailed and specific nature of Mr Dillewaard’s evidence, it is reasonable to infer he could have given ever more specific evidence of how he applied his methodology to produce his ultimate opinions. [870] In those circumstances, it cannot be concluded that her Honour failed to ensure a fair trial for the defendant by relying on the evidence of Mr Dillewaard. However, it is necessary to deal with the matters of substance raised by the appellant going to the probative weight of Mr Dillewaard’s evidence given that the appellant’s substantive contention seems to be that that evidence could not sustain the conviction. Sufficient to prove native vegetation was cleared? [871] Before considering whether the evidence establishes beyond reasonable doubt that relevant vegetation was cleared, it is convenient to consider whether establishing that matter was necessary to sustain the conviction. There is much to be said for the proposition that, strictly speaking, all the prosecution had to prove through Mr Dillewaard was that the charge areas had been cleared of native vegetation. That was all that was required to make out the offence. [872] While Complaints 2 and 4 went further and particularised the conduct by reference to the native vegetation being remnant vegetation of a least concern regional ecosystem, I do not see why the failure to make out those additional matters would preclude the prosecution ultimately submitting that the offence is made out by proving native vegetation was cleared. I can see no unfairness in the prosecution adopting such an approach on this appeal. The appellant’s position in this regard as I understood it was that the prosecution should be held to the full case as pleaded because otherwise the appellant would suffer the prejudice of being convicted other than on the case he was called to meet at trial. However in my view that argument is misconceived in this particular situation. [873] On the approach posited by the respondent, the prosecution had pleaded that the appellant committed the offence by acts A, B and C. If it is enough to make out the offence that the appellant did acts A and B, and A and B are proved at trial, the respondent says it is irrelevant that the prosecution did not make out C at trial. No prejudice flows to the defendant because as it turned out, the offence was proved. In my opinion, that approach is correct in theory. [874] Applied here, that means that if proof of clearing of native vegetation was all that was required, the challenge to Mr Dillewaard’s opinion evidence would fail. He gave evidence that, in all his observations while at Chess Park, he saw no trees other than native trees and that all woody vegetation was native vegetation.284 No suggestion was made to the contrary and the sameness of the vegetation emerges consistently from the satellite imagery, from the similarity of the vegetation described by Mr Dillewaard, and from the regional ecosystem maps. [875] In my view, there was ample evidence to conclude beyond reasonable doubt that the clearing in each SPA charge area was clearing of native vegetation. If there was in fact any error in her Honour’s reliance on Mr Dillewaard’s evidence, I would find it 284 Trial Day 9, page 11, lines 27 – 37. -- 186 of 242 -- 187 established beyond reasonable doubt in any event that the vegetation cleared in each charge area was largely, if not entirely, native vegetation. [876] However, as already noted, Mr Hunter was content to conduct the appeal on the basis that the prosecution had to prove that the clearing was of native vegetation which was remnant vegetation of a least concern regional ecosystem. Accordingly, I will not decide this point in the appeal on this basis. Some preliminary considerations [877] Before grappling with the substance of the appellant’s submissions, there are some preliminary points. Location of waypoints proved [878] As noted in paragraphs [831] to [832] above, the appellant’s submission that (except for five instances) it was unclear where Mr Dillewaard’s waypoints were located on the ground in relation to Charge areas, is wrong. In fact, as the respondent correctly submitted, Mr Dillewaard inspected the vegetation in the vicinity of all but a handful of cleared areas. This can be seen in Exhibit 35. However it was also explained on a charge by charge basis in the respondent’s submissions to her Honour on Complaints 2 and 4 which contained extracts from Exhibit 35.285 Regional ecosystem maps were of high probative value [879] I disagree with the appellant’s blanket submission that the extant regional ecosystem maps were unreliable as evidence of the location of relevant vegetation on Chess Park. The accuracy statement of plus or minus 100 metres needs to be considered in the light of the other evidence. [880] First, many of the charge areas are located well within the areas marked as comprising relevant vegetation, even allowing for inaccuracy of 100 metres either way. The maps themselves, unrevised by Mr Dillewaard, are admissible evidence. By themselves they are evidence that the charge areas were cleared of relevant vegetation, and indeed evidence of the least concern regional ecosystems which were present in the cleared areas. So much can be seen by superimposing the unrevised regional ecosystem maps on the Complaint 2 and Complaint 4 charge areas on Exhibit 35. When that is done is can be seen quite clearly that at least some, if not all, of every charge area is more than 100 metres inside the remnant vegetation shown on the maps (using the ruler function). [881] Second, the accuracy of the unrevised regional ecosystem maps can be assessed on an ad hoc basis in key areas by reference to the remote imagery. In general terms it can be seen that the areas shown as remnant vegetation and non-remnant vegetation on the maps correlate very precisely with the boundary between cleared and uncleared areas on the satellite imagery. Take for example the satellite images for Complaint 2, Charge 7. These show a distinctive and clearly distinguished delineation of bush and pasture which correlates very closely with the regional ecosystem map delineation between remnant and non-remnant.286 A review of the satellite images and regional ecosystem maps for each of the other Complaint 2 and 285 Respondent’s Amended Complaint 2 Outline of Closing Submissions dated 9 August 2016 and Respondent’s Complaint 4 Outline of Closing Submissions. 286 See the image in the Respondent’s Amended Complaint 2 Outline of Closing Submissions dated 9 August 2016 at paragraph 73 and see Slides 105 to 136 in PowerPoint BMG 3 at Exhibit 27. -- 187 of 242 -- 188 Complaint 4 Charge areas and sub-areas demonstrates that that correlation holds true for all those charges.287 [882] Third, these conclusions also hold true for the revised maps produced by Mr Dillewaard, which are very similar to the unrevised maps. Both are shown in Mr Goulevitch’s PowerPoints and in Exhibit 35. [883] (They also hold true for the PMAV for Chess Park, to the extent it maps remnant vegetation.288 On Exhibit 27, this appears to be areas in grey which are themselves based on, relevantly, the regional ecosystem maps already discussed. The correlation between the unrevised regional ecosystem maps and the PMAV is therefore not surprising.) [884] As to the disclaimer, I can see no reason to presume material inaccuracy in the regional ecosystem maps just because the disclaimer is included. The disclaimer is plainly directed at excluding a tortious duty of care to third parties who might seek to make use of the maps. That of itself says nothing about the accuracy of the maps. It speaks to the wish of the publisher to limit legal liability if there is a mistake which affects a use to which the maps are put. It is to be remembered that the disclaimer is in respect of all third party uses, many of which might be quite unforeseen and unforeseeable by the publisher and which turn on points of detail of accuracy quite irrelevant to their reliability for the purposes they are used in this case. [885] Further, the disclaimer states that every care is taken to ensure the accuracy of the maps. Particularly in the light of the matters in paragraphs [880] to [882] above, there is no reason why that statement should not be accepted at face value. [886] For these reasons, on the evidence before the Court in this case, it can be seen that the regional ecosystem maps, both revised and unrevised, are sufficiently accurate properly to conclude beyond reasonable doubt that the clearing in each charge area was of remnant vegetation. I will deal further with the particular character of the revised maps below. Mr Dillewaard’s methodology [887] I disagree with the appellant’s submission that Mr Dillewaard did not establish any scientific basis for his method of updating the regional ecosystem mapping. [888] The appellant went so far as to assert the following: 336. The “scientific validity” that the prosecutor attempted to use at the hearing in order, seemingly, to purportedly justify the gross inadequacies of the extent and nature of Mr Dillewaard’s “field verification” of the existence of remnant vegetation, of one or more declared of least concern regional ecosystem at each and every one of the 122 charge areas on Chess Park was inadmissible expert evidence that did not comply with the common law requirements for expert evidence. 337. As the extracts of his inadmissible testimony that are set out below reveal (and as our subsequent posed questions conclusively establish) Mr 287 See PowerPoints BMG 3 and BMG 5 at Exhibit 27 where Satellite Images and Regional Ecosystem mapping at the same scale can be directly compared. There is some ambiguity in the overlap of the bush and pasture lines on the satellites for Complaint 2 Charges 13 (compare slides 204 to 210) and 21, though not in a manner which materially affects the hypothesis. 288 See PMAV slides for each Charge area in PowerPoints BMG 3 and BMG 5 at Exhibit 27 and see the PMAV at Exhibit 14.23. -- 188 of 242 -- 189 Dillewaard did not establish any scientific, specialist basis as an expert for his sampling and extrapolation exercise. 338. For example, stating, as he did, something is “world recognised” is meaningless. That expression does not attribute, and in turn establish, the “scientific validity” of the particular sampling and extrapolation exercise because there are no facts given that make explicit why the technique is world recognised. The factual basis for the adoption and acceptance of this technique as a scientifically valid method was never explained by Mr Dillewaard. This evidence should have been considered and then disregarded by the Magistrate and given no weight. [Emphasis in original, footnotes omitted] [889] I refer to the last two paragraphs in the quote in paragraph [794] above. There was no cross examination on this issue nor any submission about it by the defence at trial. I cannot understand how the appellant’s submission can be advanced in the face of that unchallenged evidence. Mr Dillewaard’s reasoning for each charge [890] Mr Dillewaard gave evidence that each of the cleared areas were cleared of remnant vegetation and that the vegetation cleared was vegetation of one or more declared least concern regional ecosystems. In some cases, he gave direct evidence in relation to particular charge areas as to one or more of the elements required to establish that the area was cleared of relevant vegetation. [891] However, the appellant is correct that: (a) As stated in its Schedule 2 to Part 2B, Mr Dillewaard did not give specific evidence of each of the three elements required to establish that vegetation was remnant vegetation in relation to each and every one of waypoint observations, (much less in respect of each charge area); (b) He did not give evidence of each of the elements required to identify the regional ecosystems he identified as being previously present in each and every one of the cleared areas; and (c) He did not give specific evidence for each and every charge area of how he applied his methodology to reach his conclusions in Exhibit 34.4. [892] The appellant says these matters made his evidence inadmissible and of no weight. I disagree. [893] The extant regional ecosystem mapping was admissible to prove the location of relevant vegetation on Chess Park. Mr Dillewaard’s primary task was to review that mapping. Mr Dillewaard explained how he went about that task by reference to his methodology. That involved, as the appellant usefully observed, a process of sampling and extrapolation, leading to his revision in some respects of the existing regional ecosystem maps. Mr Dillewaard was not seeking to show by direct evidence each and every fact asserted in the regional ecosystem maps by direct evidence. [894] Further, as I have said, Mr Dillewaard sufficiently explained that the sampling and extrapolation methodology was an accepted scientific technique for vegetation mapping. [895] Even allowing for those conclusions, however, the appellant’s contention remains open in this way: that Mr Dillewaard did not sufficiently explain how he applied his sampling and extrapolation methodology to make each revision to the mapping to -- 189 of 242 -- 190 permit the Court to answer the question of whether his opinion, as stated in his revised mapping and Exhibit 34.4, was based on his expertise. I also reject that submission. [896] Mr Dillewaard went much further than merely asserting that the revised maps were based on his expertise: (a) He explained his methodology in detail; (b) He explained how he carried out his sampling process on site; (c) He gave very detailed evidence of the observations he made at nearly 90 specific points which, when read as a whole, convey the overwhelming inference that he analysed, as he considered necessary and appropriate to express his ultimate opinion, the issues of the mapping of remnant vegetation and declared regional ecosystems in the extant regional ecosystem mapping; (d) Also when read as a whole, it conveys the overwhelming inference of a botanical expert who, as a result of his inspections, was intimately familiar with the various botanical conditions at Chess Park; and (e) While he did not explain the specific steps by which each revision was made based on his methodology, he gave direct evidence that he applied that extrapolation methodology in revising the maps. [897] In my view, by this evidence, he explained how his ultimate opinions were based on his specialised knowledge in a manner which permitted an assessment of that issue by the Court. His evidence was admissible and probative. It was also persuasive. Not only does the evidence sustain the conclusion that the revisions to the mapping and his ultimate opinion expressed in Exhibit 34.4 were based on his botanical expertise, it is difficult to see any other conclusion which could reasonably be drawn. A fortiori where there was no challenge to his evidence on any of these matters at trial such as to suggest any other conclusion. [898] Looked at another way, his methodology and its application to this case was explained in a manner which communicated to the defendant how the ultimate opinions had been formed. A defendant cross examining would not have been left to guess what had been done. Rather, it would have been quite possible for the defendant to explore points of detail in cross examination and seek to demonstrate inconsistency between the evidence given and the methodology described. Other issues Alleged failure to prove the location of specific regional ecosystems [899] The appellant contended that nowhere in his evidence or in his revised mapping did Mr Dillewaard identify the specific location of the individual regional ecosystems which he gave evidence were cleared. [900] This requires some explanation. In Exhibit 34.4, Mr Dillewaard sets out his conclusions on the areas of identified least concern regional ecosystems cleared in each charge area. For example, for Complaint 2, Charge 1, Exhibit 34.4 provides: Mapped RE VM Class Area Cleared (ha) Total for charge (ha) 11.5.1 Least Concern 6.4 -- 190 of 242 -- 191 11.5.20 Least Concern 32.0 11.7.6 Least Concern 27.0 65.4 [901] One might reasonably wonder how Mr Dillewaard could be so precise about the allocation between the three regional ecosystems identified, particularly as the areas were already cleared when he conducted his inspection of Chess Park. [902] The answer is that he inferred those proportions from the revised regional ecosystem mapping, based on the proportions of those regional ecosystems in the areas in which the clearing occurred. He said:289 Does your table set out the three categories of regional ecosystem that you mapped in the area?---That’s correct. Yes. And each of those is a least concern regional ecosystem?---That’s correct. And so this is something that’s mapped as green on the map 6.0b?---That’s correct. All right. And you’ve set out the area of each of the three regional ecosystems?--- That’s correct. And the total area that you observed?---That’s correct. All right?---Those areas are based on a proportion that is allocated to those regional ecosystems within the specific polygon that that charge areas – polygon or polygons that that charge area may intersect so it’s purely an analytical GIS exercise to relate the proportions of those mixed polygons to the area of that particular charge. [903] In my view, it is not possible to be satisfied beyond reasonable doubt that the charge areas were divided up between the identified regional ecosystems in the proportions identified. However, in my view, that is irrelevant. Even at its highest, the prosecution only had to prove that the vegetation cleared was remnant vegetation of a least concern regional ecosystem. The regional ecosystem maps, both original and revised, identified the specific least concern ecosystems in the cleared areas. Which of those regional ecosystems were located in the specific areas cleared is irrelevant. What is relevant is that the areas cleared had contained remnant vegetation of one or more of those regional ecosystems. [904] I accept the respondent’s contention that it was not necessary to show which particular regional ecosystem or ecosystems of those located in the area in which the clearing occurred were in fact cleared. The key fact was that testified to by Mr Dillewaard immediately following the discussion set out in paragraph [902] above:290 All right. But regardless of the proportions of the different areas of the regional ecosystems, was the whole of the charged polygon an area of least concern?--- Definitely. Yes. [905] That evidence is not a bare assertion. It is supported by the mapping, both original and revised and the other investigatory work done by Mr Dillewaard. There is no reason to think it does not apply to each of the entries in Exhibit 34.4. 289 Trial Day 10, page 29, lines 21 – 36. 290 Trial Day 10, page 29, lines 38 – 40. -- 191 of 242 -- 192 The regional ecosystem mapping point [906] The appellant also makes the same argument as to the inadmissibility of Mr Dillewaard’s mapping evidence as made in respect of Mr Goulevitch’s evidence: that it contains the output of a computer program, the evidence was not properly proved and was therefore inadmissible.291 [907] I reject that submission for the reasons given in paragraphs [722] to [731] above. Those observations apply mutatis mutandis to Mr Dillewaard’s computer generated evidence, including the revised regional ecosystem maps and Exhibit 35. Appeal in relation to Mr Dillewaard’s evidence is dismissed [908] The appeal, to the extent it relies on the inadmissibility or lack of probative weight of Mr Dillewaard’s evidence to sustain the convictions, is dismissed. THE LOWEST COMMON DENOMINATOR ISSUE [909] This contention relates to Mr Goulevitch’s evidence, but is more conveniently dealt with here as it involves the manner in which he determined the areas of remnant vegetation cleared in the charge areas, taking into account the regional ecosystem maps, Mr Dillewaard’s revised maps and certain areas of exemption including Category X areas shown in the PMAV and exemptions allowing for clearing around boundary and internal fences and property tracks. [910] In short, Mr Goulevitch gave evidence that, when identifying the cleared areas which comprised areas cleared of remnant vegetation, he resolved any inconsistency between the original regional ecosystem maps and the revised maps produced by Mr Dillewaard in favour of the appellant, by only identifying as remnant vegetation areas which were identified as such on both categories of mapping. [911] Although the appellant appears to have criticised him for this at trial, ultimately, it seemed that there was no complaint about this aspect of Mr Goulevitch’s approach in the trial submissions. It would seem odd if there was. The effect of his decision had no consequence except to reduce the areas of remnant vegetation allegedly cleared. [912] Mr Goulevitch also reduced the charge areas by reference to certain exemptions which Mr Smith instructed were available to the appellant. Again this had the consequence of reducing the areas of remnant vegetation allegedly cleared. The appellant submitted that it was a matter for the Court, not Mr Goulevitch, whether particular exemptions applied. However, it is open to the prosecution to concede that some exemptions unquestionably applied and that the area of unlawful clearing should then be reduced to allow for that. Further, the appellant made the sweeping submission that it was outside of Mr Goulevitch’s expertise to determine if certain exemptions were applicable or not and therefore his entire opinion should have been rejected by the Magistrate.292 [913] The submissions went so far as to allege Mr Goulevitch invested his opinions with the “spurious appearance of authority where none existed”.293 This comment was 291 Appellant’s Part 2B submissions at paragraphs 184 – 194. 292 See appellant’s Part 2B submissions at paragraphs 417, 420. 293 See appellant’s Part 2B submissions at paragraph 417. -- 192 of 242 -- 193 both incorrect and gratuitously disrespectful. All Mr Goulevitch did was to use his expertise in the ArcMap program to exclude certain areas from the charge area. He did so with Mr Smith’s instructions (who was the complainant). It was quite transparent what he did and why. Neither at trial nor on this appeal did the appellant invite the Court not to allow for those particular exemptions. [914] This contention does not affect the admissibility or probative value of Mr Goulevitch’s evidence. CHALLENGES TO MR TRAN’S EVIDENCE Introduction [915] The Amended Notice of Appeal deals with Mr Tran in almost as preremptory terms as Messrs Dillewaard and Goulevitch. [916] Ground 3/1A(iii)(c) is in the same form as the equivalent grounds for Mr Dillewaard and Mr Goulevitch: that is that her Honour erred in her unqualified acceptance of Mr Tran’s evidence which had no probative value and was inadmissible. Further, the particulars to Ground 6 relate in part to Mr Tran on the basis that his evidence informed her Honour’s conclusion on s. 63 Forestry Act (see paragraph [498] above). This ground of appeal and the related appeal submissions are directed only at the Forestry Act charges in Complaints 1 and 3. However, the s. 63 Forestry Act defences apply to the SPA offences as well. The general ground of appeal in Ground 3/1A(iii)(c) is not limited in its scope and can be taken to apply to all of the Complaints. [917] The appellant’s ultimate submission on Mr Tran’s evidence was that it was so unsatisfactory that it ought to have been disregarded by her Honour. With a couple of exceptions, to be dealt with next, the appellant sought to make good that submission by reference to specific parts of his evidence which were said to show partiality, an exceeding of his area of expertise, inconsistent and absurd evidence, evidence given of scientific publications and principles which were not fully identified or tendered and misleading evidence. [918] The appellant also submitted, in writing at least, that it could not be determined: (a) In what area or field Mr Tran was an expert; (b) To what issue his evidence was relevant; and (c) The factual basis of his opinions. [919] The appellant did not endeavor to make any direct submission on the specific evidence Mr Tran gave in respect of each of the 122 charge areas and sub-areas. Rather, the appellant’s submission was that the specific points now raised should have made her Honour reject his evidence entirely and that this Court ought to do the same. [920] The submission was initially taken much further. The appellant submitted in writing: 302. Mr Tran was nothing more than a “hired gun”. He offered opinion evidence on everything asked of him from the prosecutor, from clearing rates of unspecified heavy machinery to overland water flow. He fought hard for the prosecutor’s propositions and gave evidence as he was led through his examination in chief. -- 193 of 242 -- 194 303. Mr Tran reached the conclusions he did with palpable vigour and belief, despite the manifest dearth of admissible evidence and the inherent contradictions in his own testimony. The manner with which Mr Tran was instructed and then went about formulating his opinions was certain to produce but one result, tailored, partial evidence that favoured the prosecution case. The manner in which Mr Trans [sic] evidence was elicited by the Prosecutor and then given by Mr Tran involved a complete departure from well-settled legal principles (set out earlier) governing the presentation and admissibility of expert evidence. [921] At the hearing of the appeal, after having advanced orally the appellant’s (presumably) best points to support the contention that Mr Tran was “nothing more than a hired gun”, the appellant’s counsel abandoned that particular submission. In my view, it was an unjustified and unnecessary personal attack on the witness. However, the appellant maintained that the matters they raised went to the credibility and persuasiveness of Mr Tran’s evidence such that his evidence should have been given no weight.294 [922] Unlike the position with Mr Dillewaard and Mr Goulevitch, Mr Tran’s evidence was challenged at trial both in cross examination and in submissions. The overall approach at trial overlapped to a considerable degree with that pursued on appeal.295 Summary of Mr Tran’s evidence General evidence [923] The appellant’s contentions in that regard cannot be fairly considered without a review of the evidence given. Mr Tran’s evidence in chief commenced at 12.06pm on 7 July 2016, Day 7 of the trial. [924] He first gave evidence of his education, training and experience.296 He holds a Bachelor of Science with first class honours from Griffith University in plant biology. From his curriculum vitae, however, he appears to have focused his professional life on bushfire ecology and bushfire management. Since 1998, he has worked and researched consistently in those areas. At the time of the trial he had submitted his PhD thesis on flammability of Australian native plants. He has published extensively on both bushfire ecology and bushfire management. No suggestion was made at trial, nor on appeal, that the journals in which those publications appeared were not reputable scholarly journals. [925] His professional life has included extensive work both in the public and private sector in bushfire management, including in areas close to Chess Park and areas which have similar environments. He has had direct responsibility for bushfire management for very large areas including managing the areas of bushland controlled by the Department of Defence from 2009 to 2012. His task was to “devise and plan annual bushfire management work schedules for bushfire prone estates” being 35 properties and two million hectares of property.297 He has been involved since 2014 with bushfire management for the pipeline from the gas fields around Chinchilla to Curtis Island. 294 Appeal Day 5, page 104, lines 35 – 37. 295 Defendant’s Trial Submissions at paragraphs 134 – 171. 296 Trial Day 17, pages 52-62. 297 Trial Day 17, page 56. -- 194 of 242 -- 195 [926] Mr Tran also has some modest personal experience with firefighting. He has accreditation as a level 1 firefighter which permits him to be a crew member for burning on the ground and has accreditation as a planned burn supervisor. He has attended at major fires to provide mitigation advice. [927] Mr Tran was engaged by the Crown to undertake an examination of the mapping and tracking of fires in and around Chess Park between 2011 and 2014 and relate that to the clearing of vegetation. He was also retained to examine the way in which the property had been prepared to deal with bushfire risk. [928] Mr Tran then gave evidence as to the material provided to him for the purpose of preparing to give evidence.298 He was briefed with the material prepared by Mr Goulevitch for the trial along with Mr Dillewaard’s vegetation analysis, and satellite imagery showing bushfire activity. He was also briefed with some correspondence and maps apparently sent by the appellant to the department. [929] Mr Tran said that the use of remote sensing imagery to identify and track fires is well-regarded and understood science. He said information about previous fires is always used for future bushfire planning. [930] Mr Tran said that he had not been to Chess Park personally. His evidence was that he likes to visit sites where he is undertaking bushfire planning and “nothing beats kicking the dirt yourself and talking to the land manager and getting a sense and feel for what that landscape is like.”299 However he said that he had more than sufficient information to identify fire activity on Chess Park and to comment on what had been done by the appellant as fire management.300 [931] Mr Tran said he had also obtained and relied on weather information from the Miles weather station over the relevant period to permit him to assess the likely fire danger index (FDI) from time to time. Mr Tran later explained that Miles was some 90 kilometres south from Chess Park but was the nearest weather station.301 The reliability of such information to assess conditions at Chess Park is a matter raised by the appellant. The learned Magistrate queried the distance but did not take the matter further. It was evident that Mr Tran considered that information a reasonable guide to conditions at Chess Park. Mr Tran was challenged on this evidence in cross examination, but he maintained the relevance of the Miles weather station and no evidence was led to undermine his position. [932] Mr Tran then explained how remote sensing imagery permitted a reasonable assessment to be made of the location and extent of bushfires.302 He explained the source of the remote sensing data, though disclaiming being an expert on satellites. Despite that, it was evident from his evidence that he fully understood the imagery generated and how to interpret it. He explained that the data showed both hot spots and areas with fire scarring, the former indicating active fires and the latter indicating the extent of burning. He explained that data can be incorporated into ArcMap software and that that had been done by Mr Goulevitch. 298 Trial Day 17, page 62. 299 Trial Day 17, page 63. 300 Trial Day 17, page 64, lines 5 – 12. 301 Trial Day 17, page 78, line 45. 302 Trial Day 17, pages 64-65. -- 195 of 242 -- 196 [933] Mr Hunter then took Mr Tran to Exhibit 28, which was tendered without objection through Mr Goulevitch.303 It contained two kinds of maps: the first comprised Maps 1 to 5 showing Mr Tran’s idealised fire management plan for Chess Park; the second contained the fire scar mapping for Chess Park between January 2011 and October 2014. [934] Mr Tran gave evidence about his fire plan shown in Maps 1 to 5.304 He described his plans as an idealised fire plan for the property. He agreed that it represented how he would manage the risk of fire on Chess Park, with the caveat that he had not seen the site himself. While that caveat was noted, it did not evidently affect Mr Tran’s judgment sufficiently to prevent him expressing his opinions on the clearing which was in fact carried out. [935] The overall plan is shown on Map 1. He explained the various components (shown in Maps 2 to 5). It is unnecessary to go into the details of these explanations. I do note though that having read them while considering the maps, the evidence as to what he proposed and why seemed credible and consistent with his other evidence. [936] Some relevant points Mr Tran made include: (a) The difference between a fire break and a fire trail is that a fire break is completely cleared of vegetation while a fire trail can have some vegetation, so long as it is maintained. Modern bushfire management favours trails to provide access to the property and to fight fires rather than fire breaks because of the erosion and weed consequences of fire breaks;305 (b) There is no point having a fire break or fire trail of more than 10 metres because research shows that even a six metre wide clearance will stop most moderate fires, while fire breaks and trails have little effectiveness against larger fires pushed by winds because of the effect of embers and spot fires;306 (c) With some caution, he considered the water points identified from the imagery sufficient for bushfire mitigation; (d) That the efficacy of fire breaks and trails can be improved by spot burning along the key parts of the boundary;307 (e) That there should be a program of planned burns to reduce fuel hazard without impacting on other production values of the land i.e. cattle grazing.308 [937] Mr Hunter asked Mr Tran to give an executive summary of his view as to how the clearing by the appellant sat with Mr Tran’s view of appropriate fire management for the property. Mr Tran said: Okay. The type of clearing in both the extent and size of the clearing is something I've never seen before in my professional career. So in Defence, the maximum area that we would clear for a perimeter fire trail, your Honour, is 20 metres and they're typically around explosive ordnance depots. So this is where the Defence Department store their bombs, ammunitions prior to loading them onto tanks and 303 Trial Day 17, page 56. 304 Trial Day 17, pages 66-72. 305 Trial Day 17, pages 67-68. 306 Trial Day 17, page 68. 307 Trial Day 17, pages 69-70. 308 Trial Day 17, pages 70-71. -- 196 of 242 -- 197 planes. So we'll have always there - there are exceptional circumstances where 20- metre wide clearings are utilised and that's consistent, regardless of your location with Defence. So in some of these areas where the clearing is beyond 20 metres is - I've never seen that in my life. Typically, most fire trails are never more than five, six metres wide in - across most of the estate, and we manage about 3000 kilometres of fire trails on behalf of Defence each 40 year. Furthermore, the parallel clearing is something I've not seen before in my life either where there - there's a wider area of vegetation modification followed by a standing strip of - of standing vegetation and then a smaller area of - of clearing and vegetation modification. I'm not a - a fire manager on the ground, like DEWANs, but for me that would cause confusion if you were to send fire crews into fighting a fire because you don't know where to send them to. If you say, go to the western perimeter firebreak, there's a multitude of fire trails there that can cause confusion.309 [938] He added that the fire trail network did not conform to any guidelines used in Australia. He also observed that the cost of maintaining the very large areas cleared for fire protection would involve prohibitive cost, not commensurate with the bushfire risk. [939] Mr Tran then turned to giving evidence about the movement of fire through Chess Park between January 2011 (before Mr Baker acquired the property) and October 2014.310 Maps 3 and 4 showed the significant fire on Chess Park in September 2011. Both fire scar and hot spots for that month were shown on maps and analysed by Mr Tran. He was able to infer how the fire started and progressed through Chess Park, explaining by reference to the maps. He thought it unlikely that the fire started in the DSF and gave reasons for that view.311 [940] Mr Hunter referred to Map 12 showing a fire which stopped on the north-western boundary where the appellant had undertaken significant clearing.312 Mr Tran said that even if one assumed that the boundary clearing had stopped the spread of that fire, the same outcome would have been achieved with a 10 metre wide perimeter.313 Mr Tran also expressed his opinion as to the cause of some of the fires.314 [941] Mr Tran then expressed his view in general terms as to the methodology he would follow to manage fire risk at Chess Park and spoke to his plan in Exhibit 28.315 This included expressing the view that the property was extremely well served by the fire trails which existed prior to Mr Baker’s clearing. He reiterated that he had sufficient information to form his views without actually visiting the site. Evidence on Complaint 1 [942] Mr Hunter then led evidence from Mr Tran about each of the five charges in Complaint 1.316 [943] It will be recalled that Complaint 1 concerned offences against the Forestry Act. It is useful briefly to identify the issues arising in relation to those offences relevant to Mr Tran’s evidence. 309 Trial Day 17, page 71. 310 Trial Day 17, pages 73-93. 311 Trial Day 17, page 85. 312 See Charge 1 on Complaint 2: shown conveniently on Exhibit 17 Map B3. 313 Trial Day 17, page 89, line 25. 314 Trial Day 17, pages 90-93. 315 Trial Day 17, pages 93-97. 316 Trial Day 17, pages 98-111. -- 197 of 242 -- 198 [944] Mr Tran gave evidence in relation to the issues raised by s. 63 Forestry Act (set out in paragraph [31] above). It was uncontentious that that section creates duties under s. 39(2)(a) Forestry Act. It can be seen that s. 63 Forestry Act imposed two distinct duties: (a) Section 63(1)(a), relevantly, required the appellant to make all reasonable provision for preventing, controlling and extinguishing fire in the DSF, FEA 34 and road reserve; (b) Section 63(1)(b), relevantly, required the appellant, on becoming aware of any fire burning in the Forestry Act areas, or burning elsewhere but likely to spread to those areas, to do everything reasonable to extinguish the fire. [945] It is unnecessary to summarise Mr Tran’s evidence on each of the seven charges in Complaint 1. His evidence on Charge 1 is typical of his evidence on each charge. [946] Mr Hunter first confirmed Mr Tran’s familiarity with s. 63 Forestry Act. He then adopted a schedule he had prepared which, in a summary way, addressed his opinions on the s. 63 issues for each charge, which was tendered as Exhibit 57. [947] Mr Tran was taken to Mr Goulevitch’s PowerPoint evidence relating to the Charge 1 area.317 He was then taken to the waypoints in that charge area where Mr Smith took photographs of the cleared areas and adjacent bushland. Those photographs showed the view from those waypoints in each direction. Mr Tran commented on the cleared and uncleared areas shown in the photographs from the perspective of bushfire management and ecology. For example, he identified the adjacent bush as being sparse and without continuous fuel from the ground to the overstorey and he identified an existing adjacent trail on a neighbour’s property. He recognised the area and width of the clearing and the period when it occurred based on Mr Goulevitch’s evidence. He gave evidence that the fire scar maps did not show any fires in Chess Park in that period. [948] He then gave evidence that the clearing in the area identified for Charge 1 was not a reasonable provision for preventing, detecting, controlling or extinguishing bushfires. He explained why in some detail as follows: MR TRAN: Working with State Forest, you would implement a 10 metre perimeter break particularly given the fact that your neighbouring property also has a fire access track along their boundary. It would've been more than sufficient to provide bush fire mitigation or an advantage in this case. MR HUNTER: Some people might argue that the bigger the fire break, the better. You did touch on this a little bit earlier. Can you explain whether or not that's true? MR TRAN: There's been a fair amount of research looking at vegetation modification and its effectiveness to arresting fires or stopping fires. They do work up to a certain extent but beyond your normal 10 metre along the perimeter width, once the fires - once the fire danger index reaches a particular threshold, high, or very high, and they're associated with wind speeds above 24 kilometres an hour, it really doesn't matter what width of firebreak you have because the potential for embers, spot fires, radiant heat exposure, all contribute to advancing the movement of that fire beyond the fire access track. MR HUNTER: How far in advance of the fire front can there be embers? 317 Exhibits 18 and 27: Exhibit 27 being a CD version which contained additional pages to Exhibit 18. It appears Mr Tran was referring to Exhibit 27 in most cases. -- 198 of 242 -- 199 MR TRAN: It can be in the tens of kilometres. So the most pertinent example in south-east Queensland is the 1994 Beerburrum fires in and around Caboolture where the pine plantations are, your Honour. Those fires spotted over the bay to Bribie Island. So that's 20-odd kilometres. The 2009 Black Saturday fires, they found live embers from infra-reds from their helicopters many, many kilometres in front of your fire front. So in those cases and instances, rare as they are, no fire trail or fire break is sufficient to stope embers. MR HUNTER: You heard the evidence of Mr Re[i]nke that this sort of vegetation didn't really lend itself to a crown fire because of its density or lack thereof. What do you say about that? MR TRAN: Certainly looking at the photographic evidence, the discontinuous hill structure from the under [indistinct] from the ground into the canopy certainly reduces the chances of crown fire development. That, coupled with lower productivity of this landscape in the western country where rainfall is lower, that obviously has an impact on grass growth. The prevalence of ironbarks is a good sign that you have lower productivity country and less likely for canopy fires to develop… simply because you don't have that laddering fields to allow fire to propagate into the canopy. I will also say that you don't ever get a crown fire unless you have a ground fire. So fires don't jump top to top and people might say that is the case but there's always an associated running fire on the ground to facilitate that heating element as the heating pushes through and dries that canopy to make it more volatile to combustion.318 [949] The evidence continued at length dealing with the difference between grass and tree fires and linked the fire management issues back to the efficacy of the form of clearing to prevent or control fires in the context of the vegetation shown in the photographs in the particular area. Mr Tran explained why it might have a tendency not to do so.319 [950] He also gave further detailed and specific evidence explaining that clearing of fire breaks or fire trails of the width employed in the Charge 1 area was outside the scope of numerous codes or practice for fire trails around the country and not seen by him elsewhere. He reiterated that fire breaks are not used as much as fire trails because of the burden of keeping them cleared and the invitation they provide to invasive weed species to become established. [951] Mr Tran gave evidence which followed the same general pattern for each of the other charges in Complaint 1. His evidence was specific to each area, developed by reference to photographs taken in each area, and interleaved with quite extensive explanations of general bushfire management principles and specific examples demonstrating the application of those principles. Evidence on Complaint 2 [952] Mr Hunter then took Mr Tran to the charges in Complaint 2, which related to offences under s. 587(1) SPA. It will be recalled of course that there are numerous exemptions for clearing of native vegetation covered by Schedule 24 of the SPA Regulations. Mr Hunter sought to lead evidence from Mr Tran relevant to the following exemptions: (a) Part 1(13): Clearing authorised under the Forestry Act. This ground attracts s. 63 Forestry Act. It is to be recalled that that permitted clearing Chess Park only for the benefit of the Forestry Act areas; 318 Trial Day 17, pages 101-102. 319 Trial Day 17, page 103, lines 21 – 27. -- 199 of 242 -- 200 (b) Part 2(d): Clearing for essential management including, relevantly, clearing necessary to establish a fire management line if less than 10 metres wide; and (c) Part 2(i): Clearing for routine management in PMAV Category B least concern areas being, relevantly, clearing to establish a necessary fence, road or track if less than 10 metres wide. [953] It is relevant to note, given Ground 4/1B dealt with from paragraph [368] above, that with one exception, Mr Hunter did not lead evidence which specifically referred to infrastructure other than evidence about clearing around fences. Infrastructure is the focus of paragraphs (a), (c) and (e) of the definition of essential management: (a) Paragraph (a) includes as essential management clearing to establish a necessary fire break to protect infrastructure (other than a fence, road or track) so long as it is less than 20 metres or 1.5 times the height of the tallest adjacent tree; (b) Paragraph (b) includes as essential management clearing to address the imminent risk that the vegetation poses to infrastructure; and (c) Paragraph (e) includes as essential management clearing necessary to maintain infrastructure (including fences) but excluding contour banks. [954] However, on my review of the evidence, nothing in any of the plans, maps or photographs tendered suggested that there was any infrastructure within, or in the location of, the clearing for charges under Complaint 2 other than fences, roads and tracks and nothing was brought to my attention by the appellant. (This is subject to the appellant’s argument that all land on Chess Park used for grazing was infrastructure within the definition.320) [955] It is unnecessary to summarise all of Mr Tran’s evidence on each charge in Complaint 2.321 His evidence on Charge 1 is typical of his evidence on each charge. [956] As with the charges in Complaint 1, Mr Hunter started the examination by referring Mr Tran to Mr Goulevitch’s evidence identifying the charge area. Mr Tran noted the size and location of the clearing of the areas referred to for that charge (Charge 1 comprised two areas: a long area of clearing around the northwest boundary of Chess Park (Charge Area 01B) and a smaller area of clearing perpendicular to that area extending into Chess Park (Charge Area 01A)).322 The width was between 14 and 155 metres, with most of the clearing at the upper end of that range.323 [957] Mr Hunter then took Mr Tran to the photographs taken at waypoints in the Charge 1 area showing the clearing and adjacent vegetation, fencing and other features. (Photograph 105 taken at Waypoint 230 gives a helpful impression of the nature of the clearing undertaken). He also referred Mr Tran to Mr Goulevitch’s evidence as 320 Note at trial it was contended that specific areas where polypipe was located comprised areas of infrastructure which attracted the essential management exemptions around that specific area. That contention was not raised on appeal. Damage to the polypipe was referred to only as part of the broad argument in Ground 3/1B that because the September 2011 fire damaged the grazing land and the polypipe, the clearing generally was permitted under infrastructure exemptions. 321 Trial Day 17, page 112; Trial Day 18, page 43. 322 Exhibit 17 Map B3. 323 This can be seen inter alia by using the ruler tool on the ArcMap in Exhibit 23. -- 200 of 242 -- 201 to when the clearing occurred. Mr Tran noted that the neighbouring property had a fire trail on its boundary as well. [958] Mr Tran gave evidence that there was no fire in the vicinity of this clearing at the time it occurred. He gave evidence that the clearing gave no advantage in bushfire management that a 10 metre clearing would not have also provided. He also confirmed he had identified from the photographs and material no infrastructure in the area except the fence. Mr Hunter drew Mr Tran’s attention to the location of FEA 34 some 600 metres south. Mr Tran gave evidence that the clearing was not reasonable provision for protecting FEA 34 from fire for reasons he explained. [959] Mr Tran gave similar evidence for each of the other charges in Complaint 2. [960] It was directly relevant to the exemptions in s. 63(1)(a) and (b) as applied to SPA charges and also possibly to the imminent risk limb of essential management whether there had been a bushfire at or around the time the clearing occurred (though for s. 63 the issue was whether the fire threatened any of the Forestry Act areas). [961] Mr Tran addressed this question more broadly in his evidence. Where the photographs for a particular area indicated fire scarring, he expressed an opinion on the timing of the fire as against the clearing and whether it might be inferred that the clearing was in response to a running fire. [962] An example is found in Charge 4. There, Mr Tran identified fire scarring in photographs then expressed the view that the clearing in that charge area was not consistent with fighting an active fire. His reasons were expanded upon with questioning from Mr Hunter, though focused on the magnitude of the clearing compared to the time available to respond to a running fire and the techniques used in that context (smaller breaks pushed through one dozer width wide, unless the fire was intense, in which case no frontal attack is safe or viable).324 Similar evidence was given in other charges where fire scarring was evident. In some cases Mr Tran could infer from the photographic evidence that it was improbable that the fires were at all contemporaneous with the clearing. At other times he expressed the view the clearing was not consistent with a response to a running fire. [963] In Charge 5, Mr Tran addressed the intensity of the fire activity revealed in the photographs. The appellant criticised his evidence on these issues. However, his evidence was given in the context of particular charge areas. His evidence on the intensity of the fire in the location of the clearing of Charge 5 was typical of that evidence. While he relied in part on estimates of fire intensity using the rule of thumb that flame height is about a quarter of scarring height,325 he also relied on detailed ecological analysis related to the nature of regrowth evident, the pattern of scorching on the remaining vegetation and whether there is evidence of fire effects on the canopy along with other indicators of that kind. [964] In the course of his Charge 5 evidence, he also directly addressed the question of the relevance to bushfire management of the number of persons available to fight a fire. He said: MR HUNTER: All right. Now, in terms of your fire management strategy – or the fire management strategy that – management strategy that you would employ on this property? 324 Trial Day 18, pages 10-11. 325 He gave that evidence on Trial Day 17, at page 76. -- 201 of 242 -- 202 MR TRAN: Yes. MR HUNTER: Does it make – does the availability of help in fighting fires make any difference in terms of the way in which you would approach the issue of fire management? MR TRAN: I think cooperation with neighbours always helps with fire management. MR HUNTER: But let’s say the situation where you have a fire going on the property, but Mr Baker, for example, was left to himself… to deal with the fire as he could, perhaps with the help of a couple of neighbours, but… no response or no assistance from any rural fire service or anything like that. Does that make any difference in the way in which the fire should be managed on this property? MR TRAN: Yes. The ability – your self confidence and knowledge of fire and how fires may work across the landscape has a very big influence on landholders’ ability to fight a fire. MR HUNTER: But, for example, if Mr Baker was, essentially, on his own, would that mean that wide clearing such as that which we see here becomes a more reasonable strategy? MR TRAN: No. No. My experience with places like forestry where we were able to fight fires, two of us were able to pull up fires in, say, a 400 hectare block quite safely. It all comes back down to knowing your country, knowing how fires behave and move in the landscape, to be able to come up with some strategies to arrest even moderately intense fires.326 [965] Mr Tran’s evidence on Charge 7 is worth mentioning. The Charge Area comprised a long bow shaped area of clearing some 2.5 kilometres long and between 25 and 77 metres wide. Mr Tran did not consider the area was cleared in response to a running fire (for reasons he gave) or would be of any assistance to FEA 34 or DSF. [966] He was quite willing to offer some positives on the location of the clearing (if not its extent). He said: MR HUNTER: What do you say about the desirability or otherwise of putting a fire trail through there? MR TRAN: In this current location, it’s an astute place to put a fire trail. It helps with breaking up a contiguous area of potential risk. It also provides fallback lines from both the FEA and into the State Forest boundary. There are – there’s water points close to this particular location further to the east, so that provides good egress and access to those particular water points – I think that’s actually one in that location there. It’s a good place to have a fire trail and, in fact, I have identified it also as an internal fire trail in my idealised fire map. BENCH: Yes? MR TRAN: To maintain that – the five metre width along the fence line is a sound land management practice for bushfire mitigation. MR HUNTER: How wide would you, consistently with what you say is sound bushfire management, make that? MR TRAN: I always contend internal fire trails to be five metres in width, and I don’t waver from that width. MR HUNTER: All right. Thank you. How does five metres compare with the width of your average fire fighting vehicle? MR TRAN: A fire fighting vehicle is usually – a slip on unit is a LandCruiser or Patrol – Nissan Patrol. So that’s maybe two metres at the wider extent. And you usually allow one metre or one and a bit metres on each side so that in circumstances 326 Trial Day 18, page 14, lines 16 – 42. -- 202 of 242 -- 203 where you need to pull up next to each other to communicate or, you know, draught water from each other’s tanks, it allows you to do that safely. So usually five metres – five metres is typically more than sufficient.327 [967] Charge 11 is worth specific mention. In the course of evidence about that charge area, Mr Tran gave evidence explaining fire intensity and its relationship to bushfire management and control. He gave evidence that wildfires at the upper end of the intensity range cannot be put out, they instead have to be managed. He explained that an intense fire is one that is at or above 5000 kilowatts per metre and that such fire will cause canopy scorching.328 [968] In his evidence on Charge 13, Mr Tran dealt with the suggestion that the vegetation cleared had died from wildfire. He observed that that suggestion was doubtful because the surrounding remaining vegetation was not affected in that way. In my view, looking at Photographs 65 and 66 at Waypoint 357 to which Mr Tran was referred, that was to understate the improbability of the suggestion. It was submitted on this appeal that the photographs had been taken some time after the fire such that they were unreliable on that question. However, that matter was not taken up with Mr Tran in cross examination, making it speculative as to whether that made a difference or not. Evidence on Complaint 3 [969] There were only two charges in Complaint 3. The first related to a dam constructed in FEA 34 (Charge 32). The second related to a dam constructed in the road reserve (Charge 33). Like Complaint 1, the charges in Complaint 3 raised s. 63 Forestry Act. However, s. 63 fell to be considered in the different context of the construction of a dam. [970] Mr Tran’s evidence followed the same basic pattern as the other two charges: he was referred to Mr Goulevitch’s evidence as to the location and size of the clearing and to the photographs taken from the waypoints. He commented on relevant aspects of the photographic evidence and expressed the opinion that the dams were not consistent with the duty expressed in s. 63(1)(a) for reasons he expanded upon. He also gave evidence that there was no fire evident in the area at the time of the clearing identified by Mr Goulevitch. [971] For the larger dam built in the FEA, he considered that it was much larger than reasonable for firefighting activities, it had access deficiencies because there was only one road in and out (a safety and utility issue for firefighting), it was not located on a fire trail, and it would have required considerable effort to obtain water given the size of the dam if its level was low, as it would likely be in a time of high fire danger. [972] During Mr Tran’s evidence on Charge 32, he also gave some evidence on rates of clearing by a D6 dozer in open and wooded country. This evidence was relevant to his opinion that the clearing in areas where there was evidence of fire which might possibly have been occurring around the time of the clearing was not a response to an extant fire because it involved a much larger task than could properly be done during a fire fighting emergency. This evidence was criticised by the appellant. It was based on Mr Tran’s investigation of published material relevant to fire 327 Trial Day 18, page 22, lines 10 – 32. 328 Trial Day 18, pages 34-35. -- 203 of 242 -- 204 management. It was a broad estimate which provided broad support for his earlier views.329 [973] For the smaller dam built in the road reserve, the reasons for his conclusion were not quite so distinctly stated. He considered there was no reason why it could not have been located outside the road reserve area, which was bounded by areas not subject to the VMA. He also considered access along the road reserve appeared less reliable if, as was stated by other witnesses, it was not well maintained. He also considered the size of the dam meant it would be difficult to draw on in drier times. He thought other water points would be much more effective based on his fire plan. Evidence on Complaint 4 [974] Mr Hunter then took Mr Tran to the charges in Complaint 4, which related to offences under s. 587(1) SPA.330 I refer to paragraphs [952] and [953] above. They apply equally to the evidence on Complaint 4. [975] Again, as with the charges in Complaint 2, my review of the evidence discloses no existence of any infrastructure within, or in the location of, the clearing for charges under Complaint 4 other than fences, roads and tracks in most charge areas. The CSG pipeline did figure near some areas but was not materially relevant to any of the charges. Charge 15 involved cattle yards. [976] No other infrastructure was brought to my attention by the appellant (again subject to the appellant’s argument that all land on Chess Park used for grazing was infrastructure). [977] As with the other complaints, it is unnecessary to summarise all of Mr Tran’s evidence on each charge in Complaint 4. His evidence on each charge followed the same basic pattern as for the earlier charges. Mr Tran was referred to Mr Goulevitch’s map and PowerPoint evidence to identify the location, shape and size of the charge area. Mr Tran was taken to photographs from waypoints relevant to the charge area. He made comments about the relevant matters evident on the photographs such as the location of fences, other fire trails and adjacent open areas, the efficacy of the clearing for controlling fires, the existence or otherwise of fire in the area and the possibility of clearing being in response to a running fire. [978] In each case he expressed an opinion about the exemptions in s. 63(1)(a) and (b) as applied to SPA charges, which was also relevant to the extent it arose to the imminent risk limb of essential management. [979] Some particular observations should be made. [980] First, Complaint 4 contained a number of charges which were made up of sub-areas, in some cases as many as ten. Mr Tran gave evidence about each sub-area specifically. See for example Charge 1, which comprised 10 sub-areas.331 [981] Second, given the appellant’s criticism of Mr Tran’s impartiality, it is useful to note his evidence in relation to Charge 7, a line of clearing in a rough right angle adjoining 329 Trial Day 18, page 49. 330 Trial Day 18, page 52 to Trial Day 19, page 31 and Trial Day 19, pages 38-48. 331 Trial Day 18, pages 52-59. -- 204 of 242 -- 205 in part the boundary of the DSF about two kilometres long and varying in width, with some associated more narrow clearing.332 He gave this evidence: MR HUNTER: So that’s photograph 221. Now, according to Mr Goulevitch, the 20 area in charge 7 on complaint 4 was cleared between 19 August and 20 September 2011? MR TRAN: Yes. MR HUNTER: And we know that there was fire activity in September 2011? MR TRAN: Yes. MR HUNTER: Do you say that – what do you say about the clearing here? Was any part of that, in your view, potentially reasonable provision for managing fire? MR TRAN: Yes. And I said that in my summary report that, potentially, if there was a fire in this locale – and quite clearly in September ’11 there was – the type of clearing that you see in this – that sort of A-shape on its side that I’m running my mouse over could have been required to help arrest the fire. But quite clearly the other vegetation modification along the Dyngie State Forest boundary, as well as the northwest southeast run, suggests something outside of a run of – trying to stop the run of a fire because the width and the systematic clearing nature suggest that there wasn’t a fire in the area at the time of the modification of that vegetation… BENCH: And with – here, where the A-shape - - -? MR TRAN: Yes. Yes, your Honour. BENCH: - - - indicates that it was something other than fire? MR TRAN: No. The - - - I just didn’t quite hear you? - - - Sorry, your Honour. To be clear, the clearing sort of from this point up to here and around here could suggest that the landholder was trying to arrest the fire as it was coming because the nature of the track and the width of it being on seven metres when I measured it may be conducive to trying to pull a fire up in this location. But the clearing, in my view, along this part up to here and then down the boundary with the Dyngie State Forest to me, in my view, suggests more of a systematic vegetation removal outside of a running fire. MR HUNTER: Now, even if it was outside of a running fire, is that – excluding the A-shaped area? MR TRAN: Yes. MR HUNTER: Was, in your view, that clearing reasonable provision in relation to preventing, detecting, controlling and extinguishing fire in the State Forest? MR TRAN: No. MR HUNTER: What about preventing fire getting into the State Forest? MR TRAN: In my view, no. MR HUNTER: What measures were already in place prior to the clearing taking place? MR TRAN: As I’ve indicated in my plan, I would have that 10 metre fire perimeter – fire [indistinct] perimeter along the Dyngie State Forest boundary. Because the area is also well afforded in terms of open area as well as existing fire trails, there’s primary, secondary and tertiary fallback lines in this part of the world, so there’s no need to construct additional fire trail infrastructure. [982] This evidence is similar to much of Mr Tran’s evidence. He plainly considered that fire trails and fire breaks which exceeded 10 metres in width were neither necessary nor reasonable for bushfire management. Mr Baker’s clearing areas almost always 332 Exhibit 27 PowerPoint BMG 5 at slides 65 and 66 (named slide 52a and 52). -- 205 of 242 -- 206 exceeded that width, frequently exceeding it by a factor of 10 or more. The large areas cleared also demonstrated in Mr Tran’s view that most of the clearing was not for fighting a running fire (where the fire scar evidence suggested that possibility given the timing of the clearing) because the large areas cleared would have taken a longer time that usually available when fighting an active fire and were not a useful response in any event. A clear statement of the point was made in Mr Tran’s evidence on Charge 13:333 Given the shape of – not so much the shape of the area, but the vegetation that was left standing, would it have been a straight forward task to get in there and clear out the understorey, if it was being done to arrest a running fire?—No. As I’ve mentioned in previous testimony, if you were able to use a dozer to cut a fire off, it would not be 94 metres wide. It would be three metres wide, to be able to use one or maybe two dozers at your disposal to be able to link, you know, tracks up to cut that fire off before it impacted on further parts of your landscape. [983] Third, Charge 15 included four subareas.334 They included areas to the north of established cattle yards. It was readily accepted that this infrastructure fell within the scope of paragraph (a) of the essential management definition, which permitted clearing of 20 metres or 1.5 times the height of the nearest tree.335 However, Mr Tran expressed the opinion that the clearing in those areas was not necessary to protect that infrastructure and gave reasons for that view.336 It was clear, in any event, from the imagery that some parts of the Charge 15 areas fell well outside the limits in paragraph (a). [984] Fourth, Charges 21 and 23 involved examples of so called clearing of the understorey. Mr Tran expressed the opinion that in the context of those specific areas, the clearing was neither necessary nor reasonable. He explained his reasons as, in summary, understorey clearing while removing fuel load, invites invasive weeds to establish themselves and that cool burning is the correct way to reduce fuel loads in key areas.337 [985] Finally, Mr Tran also gave evidence about further general considerations relevant to Chess Park in fire management and planning. [986] He explained that steep topography made management much more difficult because fires move much faster as terrain becomes steeper and fire trails are hard to establish and maintain. He explained Chess Park had no steep terrain and its undulating terrain was to the north, a matter to be considered in overall fire management.338 [987] He gave evidence that no fires had escaped to private land or state forests from the Defence areas he managed while he was responsible for them.339 [988] He gave evidence in response to a question from the learned Magistrate as to the importance of and place of cool burns in fire management and the low intensity of those fires. He also explained further as to the basis for his ability to judge that most of the fire scarring shown in the photographs indicated less intense fire events on Chess Park based on the response of the vegetation.340 He gave evidence that a fire 333 Trial Day 18, page 92. 334 Exhibit 27 PowerPoint BMG 5 at slides 145 and 146 (named slides 116a and 116). 335 Trial Day 18, page 94, line 30. 336 Trial Day 18, page 94, line 34 to page 95, line 18. 337 Trial Day 19, pages 17-18 and 26. 338 Trial Day 19, pages 4-5. 339 Trial Day 19, pages 6-7. 340 Trial Day 19, pages 32-33. -- 206 of 242 -- 207 management plan which depended solely on clearing large fire trails and storing water and which did not use planned burning was not recommended, apparently because of the necessity to maintain those areas and the reliance on firefighting rather than fire management.341 [989] He provided more detail as to the efficacy of a 10 metre fire trail and the lack of efficacy of wider breaks for intense fires by reference to the impact of the Black Saturday fires on the Puckapunyal Defence area.342 Cross examination of Mr Tran [990] Mr Tran was cross examined over a day and a half. Mr Sheridan started with clarifying the nomenclature as to fire breaks, fire trails and fire lines. Mr Tran accepted that others defined a fire break as clearing designed to slow or stop the spread of fire. However he considered that definition misleading because of the limited efficacy of fire breaks for intense fires. He accepted a fire trail is a road for fire management purposes. A fire track is literally a track through the bush to log a tree. It was not terminology he used. A fire line is a trail or track made during a running fire for fire management. [991] Mr Sheridan challenged Mr Tran on why he did not visit Chess Park for himself. Mr Tran’s responses were unsatisfactory. He said it was not permitted, then that he thought it was not allowed, then that he was not told he could visit the property.343 (One might infer for this and other parts of his evidence that Mr Tran would have preferred to visit the site and simply did not think to ask. However, in my view, given the nature of his evidence and the material he was provided with, his key opinions were credible without doing so.) [992] Mr Sheridan asked Mr Tran how he could express his opinions without visiting Chess Park for himself. He raised specifically issues like assessing fuel load for determining fire risk. Mr Tran said that the information he was provided with was sufficient to assess fuel load potential and fire hazard. [993] Mr Tran then gave evidence as to the different movement of grass fires and woodland fires. He said (as he did in chief) that the former ordinarily moved faster than the latter. [994] Mr Sheridan then suggested to Mr Tran that he should have sought information from Mr Baker personally about conditions on Chess Park and did not (not a credible suggestion in my view where Mr Baker was a defendant in a criminal trial). Mr Sheridan established that Mr Tran had not sought information from Mr Mossman the local fire warden about the 2011 fires. Mr Tran said that he had sufficient information about what occurred for his purposes. [995] Mr Sheridan established that Mr Tran had not inquired about the resources of the local fire brigade. Mr Tran said he was aware of the general level of equipment available, and that it is rarely sufficient to suppress fire in their area: thus good fire management was important. Mr Sheridan then suggested that Mr Baker had done 341 Trial Day 19, pages 33-34. 342 Trial Day 19, pages 48-49. 343 Trial Day 19, page 53. -- 207 of 242 -- 208 exactly that in reducing fire hazard. Mr Tran responded that what was done went beyond what was required for a bushfire management.344 [996] Mr Sheridan suggested that the piles of cleared vegetation might have been killed by fire, not by clearing, and that the appellant had appropriately removed potential fuel. Mr Tran did not accept that was so given that in the photographs, the surrounding vegetation was still alive.345 [997] Mr Sheridan then asked a series of questions about whether the large open areas created by the clearing provided refuge for cattle or people in a fire. Mr Tran considered that the existing fire trail network was adequate overall for people. The examination about refuges for cattle segued into a suggestion from Mr Sheridan that Mr Tran could not prepare a proper idealised fire plan without knowing the number of cattle, location of fences and use of the property. Mr Tran said he had considered guidelines on productivity in the spotted gum/ironbark country like Chess Park for grazing.346 [998] Her Honour then asked Mr Sheridan if he was going to put to Mr Tran that any particular charge area was a refuge area. Mr Sheridan did not do so. He did refer to the parkland clearing areas without going to them specifically. For the areas discussed, Mr Tran did not accept that the clearing was necessary for refuge.347 It might be noted, again, that Mr Tran overstated the position when giving what seemed to be an otherwise credible response by asserting a particular road was sealed when it was not.348 (The relevance of this “refuge” discussion might be questioned. The only relevance it could have seems to be the imminent danger limb of essential management. The questioning did not posit imminent danger or suggest it existed, beyond perhaps the general risk of fire in Chess Park which, as her Honour found and I find, is not within the scope of the exemption: see paragraph [387] above). [999] Mr Sheridan then questioned Mr Tran about his use of the weather data from the Bureau of Meteorology (BOM) weather station at Miles to determine the FDI for Chess Park from time to time during his study period. He put to Mr Tran that he should have inquired with local sources including Mr Baker to obtain weather information. Mr Tran disagreed because he maintained he required verifiable weather data from a reliable source. I could not see where it was put to him that that data would have been inapplicable to Chess Park. Mr Sheridan also established that Mr Tran was not aware of what Mr Baker was doing during the period of the various fire events shown on the fire scar maps.349 [1000] Mr Sheridan then reviewed the extent of the bushfires in September 2011 through Mr Tran. Mr Tran agreed that he could not infer what the firefighting activity was like during that fire. Mr Sheridan then turned to the couple of areas where Mr Tran thought clearing could be reasonable or necessary in response to a running fire. He put to Mr Tran that the clearing in those areas was reasonable for a person like the appellant who had just taken over Chess Park: erring on the side of caution. Mr Tran said that the areas cleared were far in excess of requirements. 344 Trial Day 19, pages 68-69. 345 Trial Day 19, pages 69-70. 346 Trial Day 19, pages 70-72. 347 Trial Day 19, pages 74-75. 348 Trial Day 19, page 75, line 5. 349 Trial Day 19, pages 77-79. -- 208 of 242 -- 209 [1001] Mr Tran agreed with Mr Sheridan that although his opinion as to bushfire management included consulting with neighbours, he had not spoken to the appellant’s neighbours. [1002] Mr Tran was then cross examined about the fires shown on the fire scar maps. Where the fire might appear to have been stopped by the appellant’s clearing, Mr Sheridan again suggested the appellant’s clearing might be responsible. This could only be suggested for a few examples: Map 4 (September 2011: Mr Sheridan asked whether the appellant’s clearing contributed to the unburnt area in the north of the DSF?); Map 12 (September 2013: fire seemingly arrested on the northwestern boundary of Chess Park) and Map 16 (October 2014: fire seemingly arrested to the east of FEA 34). [1003] Mr Tran was unable to agree that any of the appellant’s clearing arrested the fire shown because of uncertainty as to the conditions, direction of the fire, whether it was a controlled burn and so on. [1004] One fire scar area clearly linked in cross examination to a particular charge area was that shown on Map 16, which Mr Tran accepted shows the fire scar boundary lined up with the clearing in the charge area in Charge 7 of Complaint 2. Mr Tran gave evidence that he could not conclude that the clearing assisted in arresting the October 2014 because of uncertainty as to weather, direct of the fire and so on. His evidence as to the reason for not having Miles BOM weather data was unsatisfactory. [1005] Mr Sheridan then went back to Map 12. He suggested Mr Baker’s clearing arrested the fire on that boundary. Mr Tran would not concede that was the case. He thought that the neighbour’s fire trail could have been sufficient. There was some debate as to where that trail was located. Mr Tran also pointed out that the fire in Map 12 appeared to have been arrested to the south by the neighbour’s six metre wide break. Certainly the fire scar follows a straight line to the south.350 [1006] Mr Sheridan then put to Mr Tran that his evidence was that Chess Park was well served by its existing fire breaks. Mr Sheridan suggested that Mr Tran had no idea whether they were well maintained or not. Mr Tran gave evidence that he considered the remote imagery suggested that the tracks were sufficiently maintained. He appeared to accept that some of them did not appear properly maintained; however, he said that the existing network was sufficient, even if it required some maintenance work in places.351 (Mr Sheridan did not suggest that the poor condition of the existing fire trail was an explanation for any of the clearing undertaken by the appellant nor link the questions to any particular charge area.) [1007] Mr Sheridan then suggested to Mr Tran that it was possible that the vegetation cleared in Charge 1 of Complaint 1 was vegetation which had been killed by fire and had been removed and stacked to reduce fire risk from that vegetation. Mr Tran did not agree that was probable based on the photographic evidence and disagreed that that was a reasonable approach to reducing fuel. In any event, he returned to his proposition that a ten metre fire trail achieved what could be achieved in reasonable fire management.352 [1008] Mr Tran was cross examined for the whole of Day 20. 350 Exhibit 28, Map 12. 351 Trial Day 19, pages 97-102. 352 Trial Day 19, pages 102-107. -- 209 of 242 -- 210 [1009] Mr Sheridan took Mr Tran to the appellant’s letter in April 2011 in which the appellant said he had difficulty mustering cattle that ran into the DSF. He suggested that Mr Tran’s evidence on the adequacy of his idealised fire plan’s allowance for cattle mustering was invalidated. Mr Tran rejected that suggestion: he said that the DSF is part of the conditions of Chess Park which have to be taken into account in bushfire planning and which he took into account: he did not directly address the mustering issue (though was not pressed on it). [1010] Mr Tran was then further examined about the adequacy of the existing fire trail. The main new issue raised was Mr Sheridan’s suggestion that a fire trail needed to be wide enough so that it was not blocked by falling adjacent trees particularly if they smouldered after the fire front had passed.353 [1011] Mr Tran rejected the suggestion that fire trails should be that wide. He maintained his evidence as to the limit of useful fire trails at six metres (though he frequently also accepted up to ten metres was reasonable). He explained that smoldering trees were dealt with in post fire cleanup work by individual felling or extinguishment. He rejected that clearing trees by dozer in the way undertaken by the appellant was an appropriate response to this issue.354 [1012] Mr Sheridan then challenged Mr Tran’s evidence on the dam in Charge 32 of Complaint 3. He suggested that Mr Tran did not have a proper basis for considering existing water sources adequate because he had not inspected them. Mr Tran gave evidence that the remote images taken with the continuing presence of the dams was a sufficient basis to infer they could hold the very small quantities of water required for firefighting. [1013] Mr Sheridan suggested that surely more water was better: Mr Tran rejected that proposition, in respect of the dam in Charge 32, because of the difficulty of accessing it in dry periods (due to its size) and its one way access compared to the existing water points. Mr Sheridan suggested that if the appellant had a large pump located at the dam, it could assist easily obtain water (though ultimately he did not exactly put this proposition to Mr Tran). No evidence of any such pump was ever identified. In any event, Mr Tran rejected the proposition that the dam built by the appellant was reasonable or necessary because of the existing water points and its practical limitations.355 [1014] Mr Sheridan then moved to Charge 1 of Complaint 4, clearing on the DSF boundary. This charge was an occasion where Mr Tran contemplated the possibility that the clearing was in response to a running fire but said, even so, it was much greater than required. He accepted he did not know what the situation on the ground was when that area was cleared, but maintained his evidence, including that large areas of clearing were unlikely to be in response to a running fire.356 [1015] Mr Sheridan then moved to Charge 2 of Complaint 4. Mr Tran accepted that involved clearing of the understorey (so-called parkland clearing). It was put to him that the clearing was of the dead Bull-Oak understorey killed by fire. Mr Tran could not agree based on the particular photos at the waypoints. He did accept it was systematic vegetation modification of the understorey. Nothing else was put to him. 353 Trial Day 19, pages 3-8. 354 Trial Day 19, pages 9-16. 355 Trial Day 20, pages 18-21. 356 Trial Day 20, pages 21-23. -- 210 of 242 -- 211 [1016] Mr Sheridan moved to Charge 5 of Complaint 4. This was an area of clearing adjacent to a fence line. Mr Sheridan suggested this was an ideal fire trail comprising an area clearing trees then a fire break next to the fence. Mr Sheridan suggested this was ideal because no tree could fall on the fire break. Mr Tran rejected the proposition because the clearing was excessive (more than six metres). As to the tree risk suggestion, he gave this response: MR SHERIDAN: But doesn’t it suggest though, you look at the vegetation either side and if you imagine it laying flat and if it touches, you should make it wider? MR TRAN: No. Because you have to understand, in the mitigation of bushfires, a six-metre wide fire trail will stop the forward movement on a fire up to and including two – two and a half thousand kilowatts per metre. Beyond that, most fires are humanly not able to controlled. So in those situations, if there’s a bushfire running, you fall back to asset protection and protection of life and property. You’re not going to be sending crews out into the – fire – into the fire to attack the head of a very intense bushfire. So it – it’s – that’s the reason why you have these networks of fire trails across your landscape.357 [1017] Mr Sheridan suggested in an emergency situation, fire trails of six metres would not be enough to protect active fire crews. Mr Tran gave evidence of CSIRO research that a six metre fire break was adequate for crews in a vehicle with protective clothing. Mr Tran again gave evidence that the extent of the clearing for this charge was greater than was appropriate to fight a fire because a fire line was usually one dozer blade wide (three metres). Mr Tran agreed he did not know what equipment Mr Baker had on site. (However it was not suggested to him how clearing of the area in this charge would have been carried out by the appellant in the face of a running fire.)358 [1018] Mr Sheridan then turned to Charge 7 of Complaint 4. He returned to Mr Tran’s evidence that parts of this charge area were potentially necessary to respond to a running fire and that there was a prospect that there was a running fire at the time of clearing but maintained his evidence that the area cleared was excessive for that purpose and unlikely to be able to be cleared in a running fire situation (because it required multiple passes). Mr Sheridan suggested that that depended on the width of the blade of a dozer. Mr Tran accepted that but said that the part of the area under consideration was over 10 metres and he had never seen a dozer that size. This relatively narrow area was only part of the Charge 7 area in any event. [1019] Mr Sheridan also cross examined Mr Tran (in this order) on Charges 13, 10, 11, 15, 17 and 19 of Complaint 4. That cross examination related generally to what could be discerned from the photographs as to the extent of fire’s effect on the areas cleared, where the areas were parkland clearing, whether it could be seen that the understorey cleared was fire killed understorey growth, and a number of other points of detail of those charges. Mr Tran was generally non-committal on the details of the effect of fire but gave evidence of the capacity of the understorey to regenerate. This is not a complete summary of the points raised on these charges. However, it is sufficient for purposes of this appeal. [1020] Mr Sheridan also explored some other issues in this part of the cross examination which deserve specific mention. 357 Trial Day 20, page 28, lines 29-37. 358 Trial Day 20, pages 28-32. -- 211 of 242 -- 212 [1021] First, Mr Sheridan returned to the question of whether a fire break or trail with a dead end is not advisable. He posited that a fire trail which had two-way access was at the same risk where a tree happened to fall over the track. Mr Tran said that is one reason why trails must be maintained. Mr Sheridan posited the scenario where a tree fell during the fighting of a fire. Mr Tran gave evidence that whenever a crew is sent down a fire trail there should be an alternative way out and that trained firefighters adopted that approach. Mr Sheridan then asked about the situation where there were not trained firefighters and suggested Chess Park would be in that situation. Mr Tran responded that there was a system for the Rural Fire Service to operate under a disaster management system (the AIMS). Mr Tran rejected the proposition that this system was not effective for Chess Park based on his involvement in a Queensland Audit Office review.359 [1022] Second, in the course of cross examination on the clearing to the north of the cattle yards in Charge 15 of Complaint 4, Mr Sheridan asked Mr Tran if he was aware of any polythene pipe or water tank infrastructure in Chess Park. Mr Tran said he was not. That was the only mention of this in his cross examination.360 [1023] Mr Sheridan then turned to Charges 1 and 2 of Complaint 1 and Charges 8 and 10 of Complaint 2. Again he asked questions generally directed at establishing that the clearing involved knocking down and stacking vegetation destroyed by fire. Mr Tran generally did not accept that could be inferred. [1024] Third, Mr Sheridan took Mr Tran to a paper referred to in his curriculum vitae entitled the Fire Management Operational Manual authored by Mr Tran and published in 2002 (the Manual).361 Mr Sheridan took Mr Tran to the chapter dealing with fire lines. I comment that a brief review of that Manual shows considerable apparent expertise of the author in bushfire planning and management. [1025] Mr Tran was cross examined on only two parts of the Manual.362 The first related to the need to consider sufficient width in a fire trail to turn around or have passing bays. The Manual advised seeking expert advice if the trails were too narrow. Mr Tran adopted that advice. (I note that he earlier gave evidence that a six metre fire track permits two vehicles to pass). Mr Tran was also referred to this paragraph: Maintenance of Fire-Lines – fire lines will be effective if they are properly and regularly maintained. Overgrown and poorly maintained fire-lines will not stop fires, nor will they allow safe access to personnel, making the fire-line useless and dangerous. Fire-lines should be clearly marked on the maps that accompany your fire management plans, and prior to each fire season, they should all be checked to ensure that they remain in good working condition (eg cleared of vegetation, properly graded of adequate width etc.). Firebreaks should be maintained to reduce vegetation that may increase the rate of spread of fire or fire intensity. To determine if the width of the firebreak is adequate, picture the vegetation on each side of the firebreak lying flat – if this can link the two areas separated by the firebreak, then you may need to consider widening the length of the firebreak OR remove more vegetation. If you have ‘habitat’ trees on your property (large tree hollows, generally older trees), then these serve an important ecological role and should be maintained within reasonable fire-risk parameters. The fuel around all habitat trees should be removed to a 2 m radius. This should reduce the chances of fire reaching the tree possibly causing further damage. Other trees that will require additional clearing at 359 Trial Day 20, pages 49-51; see also Trial Day 20, page 78. 360 Trial Day 20, page 58. 361 Exhibit 58. 362 Trial Day 20, pages 78-85. -- 212 of 242 -- 213 the base are those ribbon-barked species (namely eucalypts) and young-hollow stage trees.363 [Emphasis in original] [1026] Mr Sheridan put to Mr Tran that this meant that a 10 metre fire break will be inadequate where there are trees of 20 metres on either side. Mr Tran responded that: (a) Best practice had moved on since he published the Manual and his view now was that six metre fire trails and 10 metre perimeter trails are sufficient; (b) That the Manual was concerned with particular risks in particular areas, it was not a carte blanche to clear; and (c) That in fact for an intense running fire, the wind will come from one direction and so trees are unlikely to fall from both sides (something one would think he would have realised in 2002). [1027] Fourth, Mr Sheridan took Mr Tran to another document on his curriculum vitae, the State Planning Policy Review.364 This document recorded a state wide review of bushfire risk mapping. Mr Tran assisted the CSIRO and the Public Safety Business Agency in the review. It was published in 2014. Mr Tran accepted he assisted in the hazard mapping. Mr Tran accepted Chess Park was not in a low hazard area. Mr Sheridan asked if Mr Tran had considered the hazard mapping for Chess Park. Mr Tran said first that he did not because he worked from the material briefed to him. That might seem an inadequate response if the hazard mapping was appropriate to his task. However, Mr Tran later said that he also did not use it because he had been briefed to review it and he had concerns about the existing mapping. Mr Tran was cross examined about recommended buffer zones for high risk areas of 100 metres. He rejected the suggestion this was appropriate for areas like Chess Park and said that the Policy Review was to assist planning authorities and local governments.365 [1028] Finally, Mr Sheridan cross examined Mr Tran about the planned burns in his idealised fire plan. He gave evidence that the planned burns occurred over time and had to be adjusted as conditions changed. He accepted that the burning occurred in areas of remnant vegetation. He gave evidence that controlled burning had to recognise environmental requirements of the area as well as reduce fuel. [1029] Mr Hunter briefly re-examined on the Manual. Mr Tran agreed that it was unlikely he was considering the tree clearing legislative regime at the time. Submissions at trial and her Honour’s reasons [1030] At trial, Mr Sheridan submitted to her Honour that she should put no weight on Mr Tran’s evidence. Like the appellant, Mr Sheridan did not address the evidence of Mr Tran in relation to any specific charge area. This was notwithstanding the fact that the prosecution’s submissions identified with precision the evidence from Mr Tran relied upon to make good the offences for each charge in its submissions.366 [1031] Mr Sheridan made the following points: 363 Exhibit 58, page 29. 364 Exhibit 56. 365 Trial Day 20, pages 90-97. 366 By way of example see Complaint 1, Outline of Closing Submissions on Behalf of the Prosecution dated 5 August 2016, in relation to Charge 1 at paragraph 10. -- 213 of 242 -- 214 (a) Mr Tran had not given expert evidence because there was no evidence of compliance with rule 328 UCPR (an odd submission in a criminal trial); (b) Mr Tran had not made all appropriate inquiries because: (i) He used weather information from Miles weather station; (ii) He did not seek information about conditions on the ground at Chess Park particularly about prevailing weather conditions and the character of the 2011 fires; (iii) Mr Tran wrongly characterised the defendant’s fire management plan; (iv) Mr Tran speculated on the production rate of a dozer and was unaware of the dozers available to Mr Baker; (v) His experience with Defence areas was inapplicable to fire management planning for Chess Park; (vi) Mr Tran’s evidence about the deficiencies in the dams constructed by the defendant was not probative because of the logical and factual defects in his reasoning, and his evidence on the existing dams was not credible given his inferences were reached without inspecting those dams; (vii) The idealised fire plan was not of assistance because it did not take into account the purpose of the property and Mr Tran had not inspected the property. Mr Sheridan could not see the purpose of that evidence; (viii) Mr Tran’s evidence about the efforts which should be made for patrolling after a fire did not take into account the size of Chess Park and the resources which would be required; (ix) Mr Tran’s evidence that fire trails of over 10 metres are not effective should be rejected because only a fire trail wider that adjacent trees has no risk of being blocked or breached by falling trees; (x) Mr Tran did not rely on a certain current CSIRO publication which refers to 100 metres for protection from radiant heat. [1032] The prosecution responded to many of these complaints in writing in their General Outline of Submissions.367 [1033] Her Honour’s reasons in relation to Mr Tran are set out at paragraph [157] above. Much of that text was adopted or adapted from the prosecution submissions,368 but her final conclusion was not. It is convenient to recall that it was in these terms:369 I accept his evidence in its entirety about the clearing undertaken by Mr Baker on Chess Park as being unsuitable for the management of bush fire for the many reasons he advances including the suitability of an alternative plan and the ongoing need imperative [sic] to monitor and prepare for the possibility of fire. Approach to the appellant’s submissions [1034] I have considered all the appellant’s complaints. I propose to consider then deal with the main criticisms of Mr Tran one by one. Some of the complaints raised by the appellant were trivial, self-evidently unsustainable or both. I will not deal expressly 367 Prosecution’s General Outline of Submissions at paragraphs 64 to 86, especially paragraph 84. 368 See paragraph [1122](c) below. 369 Reasons [133]. -- 214 of 242 -- 215 with those complaints. They are rejected. I will then address the appellant’s ultimate contention, and my assessment of Mr Tran’s evidence as a whole. Criticism of Mr Tran’s area of expertise [1035] The appellant contended that it was unclear what Mr Tran’s area of expertise comprised. I reject that submission. He was said to be expert in bushfire ecology and bushfire management. Those are ordinary words which were comprehensible to me and evidently to her Honour. Further, the scope of his expertise is further explained by reference to his curriculum vitae and his evidence as to his experience in practice. [1036] It might be that the appellant’s real point was that the precise boundaries of the scope of his expertise were not clear. However, this is true of any expert witness. The fact that an expert witness purports to give evidence which can be rationally understood as falling within his specialised field of knowledge is prima facie sufficient in my view. If there is doubt about the matter, it is always open to the defendant to challenge whether a particular opinion is within the expert’s expertise. The line will often not be a bright one. However, I observe that the matters listed in paragraph 166 of the appellant’s Part 2A submissions, in the manner in which those matters were addressed in Mr Tran’s evidence, did not seem to me to be outside the scope of the expertise of someone who was an expert in bushfire ecology and bushfire management. Criticism relating to the factual basis for Mr Tran’s evidence [1037] The appellant submitted that the entirety of Mr Tran’s evidence was inadmissible and should have been given no weight because he did not properly prove the factual basis of his opinions. [1038] The appellant accepted that the prosecutor led evidence of the materials which were briefed to Mr Tran. However, the appellant’s counsel on appeal stated first, that it was unclear (at least to them) exactly what materials were referred to in the relevant part of the transcript and second, that therefore the prosecution had not proved the evidential basis for the opinions. The appellant then contended that the consequence of this was that all of Mr Tran’s evidence was inadmissible in reliance on Makita and Beavan. [1039] In my view, both propositions fail. [1040] As to the first point, at trial Mr Hunter led specific evidence from Mr Tran of the materials provided to him.370 While the descriptions of those materials seem to me generally comprehensible by reference to the evidence I have seen, it was conceded by Mr Hunter that the descriptions of some of the material was imprecise. However, the fact that counsel on appeal are unsure what is referred to does not mean that I must conclude that the basis rule has been breached. Mr Sheridan at trial gave no indication that he was uncertain what was being referred to and was evidently quite capable of cross examining Mr Tran at length. It is important on an appeal in relation to a complex trial lasting many days and involving a great deal of technical evidence to bear in mind that matters which might seem unclear to later counsel trying to reconstruct the trial from the transcript might not have been unclear to the parties at 370 Trial Day 17, page 18, line 20. -- 215 of 242 -- 216 the time. I am not persuaded that it was materially uncertain to the appellant’s representatives at trial what the material provided to Mr Tran comprised. [1041] That is not the end of the matter. It is also necessary to establish the material referred to, to the extent it provided the basis for any opinion given, had been proved. I accept that there might be some ambiguity as to whether all of the material which was provided to Mr Tran was proved at trial in the form it was provided to him. An example is the reports of Mr Dillewaard which were provided to Mr Tran. Mr Dillewaard’s reports were not tendered. His evidence was led viva voce. As Mr Hunter pointed out on the appeal, a strict application of the basis rule in this context would have made it almost impossible properly to prepare a criminal trial, where experts might have had cause to rely on opinions of other experts on various matters prepared in writing prior to trial. However, quite apart from that, I conclude Mr Tran’s evidence was admissible and probative. That is so for two reasons. [1042] First, and most compelling, the key evidence that Mr Tran gave was his evidence, given charge by charge, on the fire management issues in relation to each of the Forestry Act and SPA charges. As Mr Hunter submitted at the appeal, the basis for this evidence was his expertise in bushfire management applied in the context of photographs of each area and Mr Goulevitch’s materials. He could not recall an example where Mr Dillewaard’s evidence would have been material to the key submissions made, and given the nature of that evidence, there is no particular reason why it should.371 The appellant did not seek to identify any charge where any specific ambiguity or omission in proof of the materials identified in the appeal impacted on any of that evidence. [1043] Second, as Mr Hunter submitted, the appellant was content with the course adopted at trial. Mr Sheridan’s approach was consistent with a counsel adopting the approach that the basis of the material was clear to him and not a matter which, despite his significant preparation and cross examination of Mr Tran, he was concerned enough about to raise (if he was concerned at all). Criticism of Mr Tran’s evidence interpreting satellite images [1044] The main point was that Mr Tran purported to give evidence that the use of certain satellite imagery for fire tracking and assessment was “a well-regarded and understood science”372 and then proceeded to interpret those images as presented by Mr Goulevitch to produce his plans relating to the progress and intensity of the 2011 fires. It was said that there was no evidence he had the expertise to interpret and apply that imagery. However, there was evidence given by Mr Dillewaard that remote sensing imagery has been in use for vegetation management and mapping for many years and it was evident from Mr Tran’s evidence that he understood, and was used to using, such imagery for fire tracking and assessment.373 Given the whole of the evidence at trial, it would be surprising if his expertise in bushfire management did not extend to use of satellite imagery to assist in the process. I accept that it did. Alleged inconsistency of evidence about existing fire trails [1045] The appellant spent some time in oral submissions seeking to establish inconsistency in Mr Tran’s evidence about the adequacy and condition of the existing system of 371 Appeal Day 5, pages 110-112. 372 Trial Day 14, page 63, lines 24 – 25. 373 As pithily summarised by Mr Hunter at Appeal Day 5, page 115, lines 33 – 38. -- 216 of 242 -- 217 fire trails. The difficulty with that complaint, as pointed out by Mr Hunter, was that the two passages referred to related to different matters. In the former, Mr Tran was speaking to his idealised fire plan and in the latter he was speaking to Mr Baker’s proposed plan.374 This criticism indicates the difficulty in making justified ex post facto complaints about points of detail for the first time on appeal. Failure to produce at trial scientific papers referred to in evidence [1046] The appellant initially, orally and in writing, contended that each and every scientific paper or piece of research which Mr Tran referred to had to be precisely identified, produced to the Court and tendered or else evidence relying on that scholarly material was inadmissible. That is wrong as a matter of law.375 Indeed, whether the documents could be tendered at all might be debated, though in Queensland it seems that they could be.376 In oral argument, the appellant dropped the contention that the scholarly material must be tendered, but maintained the balance of the complaint. That concession does not affect the outcome of the objection to the evidence. [1047] It is worth specifically mentioning the pointed and sustained attack on Mr Tran for investigating dozer clearance rates during his evidence.377 The aggressive criticism of Mr Tran focused on the fact that Mr Tran looked up dozer clearance rates during a break but never tendered the research to which he referred. The point of principle in the previous paragraph applies here. But further, it is worth recalling that part “of the expertise of an individual specialist is to know where to look”.378 The application of that expertise quickly to identify relevant sources in the area of expertise, even ones previously unknown, is a normal part of the work of an expert. The criticism of Mr Tran about this matter was unjustified and unnecessary. [1048] Indeed, the appellant’s submissions also commented that the “prosecutor failed to even make a veiled attempt to comply with the Makita principles”.379 That attack was also unjustified and unnecessary. It was not the only unjustified attack on the prosecutor by the appellant. [1049] While dealing with the evidence concerning the dozer clearance rates, it is convenient to note this further point: the importance of the dozer clearance rate evidence related largely to the question, considered by Mr Tran on a number of occasions, of whether the clearing could be essential management on the basis that it was done in the face of a running fire. In that regard (and contrary to the abandoned suggestion that Mr Tran was a partisan hired gun) Mr Tran gave evidence on occasions that some of the clearing could potentially have been for that purpose based on the shape and location of the clearing: see for example the evidence quoted at [981] above. I have read a number of those passages and his overall evidence that, given the size of the cleared areas, the clearing was not in the face of a running fire struck me as credible and indeed correct in the circumstances identified in each case. Again, the appellant never descended into any detail on any charge to suggest the contrary.380 374 Appeal Day 5, page 106, line 39 to page 108, line 5. 375 PQ v Australia Red Cross Society [1992] 1 VR 19 at 34-37. 376 R v Patel (No. 6) [2013] QSC 64. 377 See appellant’s Part 2A submissions at paragraphs 276 – 287. 378 Clambake Pty Ltd v Tipperary Products Pty Ltd (No. 2) [2007] WASCA 244 at [39]. 379 See appellant’s Part 2A submissions at paragraph 282. 380 Nor did the appellant do that at trial, the closest it got so far as I could determine was Trial Day 20, page 36. -- 217 of 242 -- 218 Criticisms of the idealised fire plan [1050] Many of the appellant’s complaints related to the credibility of Mr Tran’s idealised fire plan. I include in that category the complaints about his evidence of the character and movement of the fire in September 2011 based on the remote sensing data and his reliance on weather data from Miles weather station, located some 90 kilometres or more from Chess Park. [1051] Other complaints included attacks on his lack of inquiry about, and lack of information about, the firefighting resources available to the appellant and the firefighting resources of the local Rural Fire Service. There was also a complaint about his evidence that the particular use of Chess Park was not a significant factor in bushfire planning and a complaint that without personal inspection he could not credibly judge the usefulness of the existing water points which could be seen in the remote sensing. [1052] Mr Tran gave responses to each of these complaints. In my view, some of those responses were persuasive and others less so. It is undoubtedly true that the mere fact that there was no contradictory expert evidence does not mean that the Court had to accept part or all of Mr Tran’s evidence. However, where the defendant chooses not to lead any contrary expert evidence and a seemingly credible explanation is given by the expert to material challenges to his or her opinion in cross examination, the Court is left with no alternative expert opinion against which the explanations are to be measured. It is open to the Court in those circumstances to accept the evidence.381 That is the chance the appellant took in not calling expert evidence of its own. [1053] Take the example of the use of the Miles weather station data. To the lay person, it might seem that weather data taken from a weather station some 90 kilometres away from Chess Park is unlikely to have much relevance to what is occurring at Chess Park on any particular day. However, Mr Tran considered it to be sufficiently relevant and opined that it was particularly important to have weather data which was itself reliable (Miles being the nearest BOM station). Whether weather data taken from that far away is or is not probative of conditions at Chess Park depends presumably on many factors, including the topography between the two locations. None of these considerations were explored at trial and no contrary evidence was led. In those circumstances, it is hard to conclude that this matter materially affected the credibility of Mr Tran’s evidence. [1054] However, I am less inclined than the learned Magistrate to accept Mr Tran’s idealised fire plan as being of assistance. Reading the evidence as a whole, I think that there was force in the overall submission that it was based on too many inferences about conditions on the ground. I also think, reading the evidence as a whole, that once he had produced that plan Mr Tran found it hard to fairly concede some of the weaknesses in the inferences and assumptions upon which it was based. While I find that the plan was of some probative value, I consider it needed to be considered with some care when relied upon directly to make out any particular charge. [1055] However, two points need to be made in this regard. 381 See R v Chester [1982] Qd R 252 per WB Campbell J at 256; R v Neilsen [1990] 2 Qd R 578 per de Jersey J at 586-588; R v De Voss [1995] QCA 518. -- 218 of 242 -- 219 [1056] First, her Honour accepted the evidence of the idealised fire plan as identifying an alternative approach which was suitable in concluding as to the unsuitability of Mr Baker’s approach. Her Honour had the advantage, denied to me, of seeing and hearing Mr Tran’s evidence and doing so in the context of the trial as a whole. That is an advantage to which I must have regard. [1057] Second, as Mr Hunter submitted, the idealised fire plan was only occasionally referred to382 in Mr Tran’s evidence on the specific issues relevant to his expertise in respect of each charge: primarily the application of s. 63 Forestry Act and the various essential management exemptions. Mr Hunter submitted that the idealized fire plan was really a separate part of Mr Tran’s evidence. I do not recall that Mr Hunter’s statements as to the place of the idealised fire plan at trial were disputed by the appellant. My reading of Mr Tran’s evidence supports Mr Hunter’s submission. [1058] Even if one thought that her Honour too readily accepted the plan, I would not conclude that that provided a basis to conclude Mr Tran’s evidence on the individual charges was without sufficient probative weight to sustain the convictions. Frankly, it seemed to have little to do with his specific evidence. The appellant made no submission on any individual charge on this appeal in relation to Mr Tran’s evidence. Criticisms of the evidence as to width of fire trails [1059] I mention this point because it was important to Mr Tran’s overall evidence. His evidence was that a fire trail over 10 metres wide served no purpose and that research had shown that even a fire trail over six metres wide was inefficacious.383 His evidence was criticised at trial and on appeal. However, he gave a detailed explanation as to why he held that view and explained why he had changed his view from his position in 2002: see the quote in paragraph [948] above. [1060] He directly addressed some other challenges to the credibility of his assertion. For example, in response to the suggestion that a fire break had to be wider than the tallest trees on both sides, he stated that fires generally came from one direction. I also understood him to explain that the falling of large trees was more common after the fire front had passed. [1061] There was a great deal of explanation given over the course of his evidence to sustain his conclusion. Her Honour did not err in concluding that she should accept his evidence in this regard, as she plainly did, and I agree in that conclusion. Failure to personally inspect [1062] The last of the appellant’s points to be specifically mentioned is the submission that Mr Tran’s evidence could not be accepted because he did not personally inspect Chess Park. As I have already observed, I have some sympathy with the proposition, at least from the perspective of the persuasiveness of the idealised fire plan as a detailed prescription for fire management on Chess Park. As I observed in [991], Mr Tran’s evidence in cross examination about this matter was unsatisfactory. [1063] However, that did not mean that Mr Tran’s evidence that he was able adequately to form his views without personal inspection should be rejected.384 No contrary expert evidence was given to dispute that proposition and, as I have said, I am not persuaded 382 Appeal Day 5, page 113. 383 I have already dealt with the complaint that this study was not produced and tendered. 384 See the evidence in paragraphs [930] to [932] above. -- 219 of 242 -- 220 that the points raised either at trial or on appeal are sufficient to sustain the conclusion that Mr Tran’s evidence was inadmissible or of insufficient probative weight where relied upon to sustain a conviction. Conclusion [1064] The appellant’s attack on Mr Tran’s evidence at trial was not directed at his particular evidence on any particular charge (with the exception of the charges relating to the dams, dealt with next). It was a plenary attack on his overall credit. It failed before her Honour. On appeal, the appellant took the same approach. For the above reasons, I am not persuaded that her Honour erred in accepting Mr Tran’s evidence as an expert in the terms articulated in her judgment, subject to my reservations about the idealized fire plan. [1065] Having read his evidence with the appellant’s complaints in mind, I recognise that there were some aspects of his evidence which were not particularly persuasive or satisfactory. Few experts who gave evidence for as long as Mr Tran did would escape without some such points being made. However, like her Honour, I was unpersuaded that his opinion evidence on the key issues relating to each charge was not relevant, admissible and sufficiently probative to sustain the matters necessary for conviction. I reject the contention that her Honour erred in relying on it in convicting. Ground 6 Issues [1066] One final point should be mentioned lest it be suggested it has been overlooked. I refer to paragraph [916] above. As noted there, the Amended Notice of Appeal contends that her Honour erred in being satisfied that the exculpatory matters identified in s. 63 Forestry Act had been excluded in relation to the Forestry Act Charges in Complaints 1 and 3. [1067] Specific attacks were made only in respect of Complaint 3, Charges 32 and 33. The former related to the very large dam constructed in FEA 34 and the latter to the much smaller dam located on the road reserve. [1068] Her Honour adopted the submissions of the prosecution on these two charges: (a) The evidence in respect of Charge 32 (the larger dam) dealing with whether this dam was within the scope of s. 63(1)(a) or (b) Forestry Act is set out in paragraphs 11 and 12 of the respondent’s Complaint 3 Outline of Closing Submissions. (b) The evidence in respect of Charge 33 (the small dam in the road reserve) dealing with whether this dam was within the scope of s. 63(1)(a) or (b) Forestry Act is set out in paragraphs 21 and 22 of the Complaint 3 Outline of Closing Submissions. [1069] The appellant did not directly engage with these submissions. Further, the submissions the appellant did make do not seem clearly to distinguish between submissions which relate to the Charge 32 dam and those which relate to the Charge 33 dam.385 385 See appellant’s Part 2A submissions at paragraphs 213 – 223. -- 220 of 242 -- 221 [1070] I have, however, considered each of the points made in the appellant’s submissions and do not find any of them to be a basis for concluding that her Honour erred in finding that s. 63 Forestry Act did not avail the appellant. I will not exhaustively deal with those submissions. However, I make the following points. [1071] First, Mr Tran gave evidence that the large dam was much larger than the kind of dam required for firefighting purposes. He explained the basis for his view (i.e. the dams only need to hold sufficient water to refill relatively small water tanks used in active firefighting). That evidence made sense to me and was not, in my view, credibly challenged. He was not saying that one could have too much water to fight a fire. He was commenting on the size of a dam for the particular firefighting purpose that such dams serve based on his experience. The submission in paragraph 216 of the appellant’s Part 2A submission misses the point of his evidence. [1072] Second, as to the large dam, Mr Tran gave evidence as to why it was not fit for the purpose of firefighting. His evidence was supported by Mr Reinke. His reasoning seemed sound to me and was based on his observations of photographs and the mapping evidence.386 The appellant’s suggestion that Mr Tran’s evidence that the large dam was unsuitable for firefighting was an assumption seems unsustainable.387 [1073] Third, as to the smaller dam, even if reasonable minds might differ as to whether Mr Tran’s views were sufficient to sustain the conclusion that the dam was not reasonably useful for firefighting, it seems to me that there is in any event an insurmountable barrier to the appellant in setting aside this conviction. [1074] The respondent made the point in his trial submissions that s. 63(1) does not apply to the road reserve. Thus the small dam must be shown to be a reasonable provision in the sense contemplated by s. 63(1) in relation to FEA 34 (the appellant was no longer lessee of the DSF at that time the small dam was constructed). The road reserve dam was three kilometres from the nearest point of FEA 34 (measured using the ruler function on Exhibit 23). In the absence of some special consideration being raised (none was), it is difficult to see how the small dam could meet the requirements of s. 63(1) in those circumstances. [1075] The appellant has not made out any basis to set aside the convictions under Ground 6 of the Amended Notice of Appeal. The conclusion that neither dam was justified by compliance with s. 63 Forestry Act was correct. GROUND 3: ADEQUACY OF REASONS Introduction [1076] I refer to Ground 3 of the Amended Notice of Appeal set out in paragraph [180] above. [1077] Ground 3/1A(i) and (ii) were developed by the appellant focusing on two matters: (a) First, that her Honour failed to give sufficient reasons for finding that the prosecution had excluded beyond reasonable doubt that the clearing was within 386 Trial Day 18, pages 45-49. 387 Appellant’s Part 2A submissions at paragraph 222(c): I should add I did not find any of the other points made in that paragraph persuasive as grounds materially to impugn Mr Tran’s evidence. -- 221 of 242 -- 222 the scope of the native forest practice exception applying to the SPA charges in Complaints 2 and 4. (b) Second, that in adopting in substance very large parts of the prosecution submissions (as undoubtedly her Honour did), her Honour failed give sufficient reasons which disclosed her reasoning process. [1078] The appellant developed the further grounds relating to the individual witnesses by focusing on her Honour’s reasons (or lack thereof) for accepting the three expert witnesses. They have been dealt with above. The ground relating to Mr Smith was concerned with the limitations point and was dealt with in that part of these reasons. Thus only the two points in the previous paragraph remain to be dealt with. Reasons on native forest practice [1079] There is no express reference to this point in the Amended Notice of Appeal, though it does fall within the general terms of Ground 3/1A. Nor is there an express reference to the native forest practice issue anywhere in the appellant’s written submissions (that I can find). The matter was raised orally. [1080] It was accepted by the appellant that if I found her Honour had given insufficient reasons for rejecting this argument, it was then necessary for me to determine whether, on the evidence at trial, the native forest practice had been excluded beyond reasonable doubt in respect of each charge. The appellant was content to rely on the submissions at trial in that regard. It is therefore necessary to set out in more detail the manner in which the issue was litigated at trial. The issue as litigated at trial Statutory scheme [1081] The very attentive reader might recall that nearly 1000 paragraphs ago, I summarised the submissions by the defendant at trial: see paragraphs [114] to [122]. As seen there, one of the appellant’s positive arguments at trial was the native forest practice argument. The gravamen of the argument was that the prosecution had not excluded beyond reasonable doubt that the clearing in respect of some of the charges was not clearing for a native forest practice within the scope of the exception in Schedule 24 Part 2(b) SPA. [1082] The statutory scheme informing the exemption is set out in part in paragraphs [55], [57] and [62] above. The relevant effect of those provisions is as follows: (a) Clearing of native vegetation that is “for a forest practice” is excluded from the prohibition on clearing native vegetation without a development permit; (b) Forest practice means, relevantly, planting or felling trees on freehold land for an ongoing forestry business in a native forest if certain conditions are met; (c) Those conditions are that, relevantly, all the activities are conducted in a way that is consistent with the native forest practice code (the Code);388 and 388 There is an alternative where the native forest practice code does not apply to the activities but the defendant conducted the trial on the basis that the code did apply. The version of the Code relied upon was tendered by the prosecution at the insistence of the defendant at trial: see appellant’s Trial Submissions at paragraph 233 and Exhibit 50. The Code applied in terms to Chess Park. It was seemingly replaced by a Regional Code relevant to the area in which Chess Park was located (Exhibit 42.19) and a further revised Code -- 222 of 242 -- 223 (d) The term includes limited associated works like clearing tracks but does not include clearing native vegetation for the initial establishment of a plantation. [1083] The Code applicable to all bar the last five offences in time, along with the Guide to the Code, appeared at Exhibit 50, a modest document of 126 pages. The particular parts of that document which were relevant to the issues at trial will be referred to below. [1084] It is sufficient to note that the prosecution was required to exclude beyond reasonable doubt for each charge: (a) That the clearing was for an ongoing forestry business; or if that could not be excluded (b) That the clearing was not conducted in a way consistent with the Code. The Prosecution’s Trial Submissions [1085] The essence of the prosecution submission on forest practice is captured in the following submission (footnotes adapted from original):389 No “forest practice”, as defined390, was being conducted. In particular, there was no “ongoing forestry business”391, there was no “restoration of a similar type”392 of tree to those that were felled, and the trees were not “felled for the purpose of being sawn into timber or processed into another value added product.”393 Further, the activities being conducted were not conducted in a way required by the code applying to a native forest practice on freehold land394 in any case: wildlife habitat values of the forest stand395 had not been maintained396; where understory clearing had occurred the clearing did not maintain the natural floristic composition397 and range of sizes of each species of the regional ecosystem evenly spaced across the cleared areas398; where timber was completely removed there was no evidence of maintenance of biodiversity values of ecological processes399; and mature trees (bull-oak) were removed where the T2 layer was cleared400. Mr Baker’s voluminous handwritten (Exhibit 30) in 2013, which applied only during the period of the latest five offences in time (Trial Day 5, page 61). Nothing was said to turn on the differences in the Codes. The Code in Exhibit 30 is presented as an appendix to Guidelines to the Code, giving the entirely wrong impression that the Code is more what you would call guidelines than actual rules. 389 Complaint 2, Outline of Closing Submissions on Behalf of the Prosecution dated 9 August 2016 at paragraph 3(g). 390 The definition is set out at paragraph 71 of the Outline of Submissions on Behalf of the Prosecution – Introduction and Statutory Framework, as it appears in the dictionary of the SPA. 391 Evidence of Mr Smith: Trial Day 14, page 36, lines 7 – 9, 23 – 24, 28 – 32; evidence of Mr Aslin: Trial Day 14, page 14, lines 20 – 40; evidence of Mr Reinke: Day 16, page 66, lines 43 – 46. 392 Evidence of Mr Dillewaard: Trial Day 9, page 65, lines 45 – 46; evidence of Mr Smith: Trial Day 14, page 36, line 26; evidence of Mr Aslin: Trial Day 14, page 13, lines 30 – 33; evidence of Mr Stumer: Trial Day 14, page 96, lines 22 – 26. 393 Apart from a reference to a pile of split posts in one place (evidence of Mr Dillewaard: Trial Day 9, page 65, lines 20 – 21; evidence of Mr Smith: Trial Day 15, page 36, lines 11 – 15) no witness gave evidence of seeing anything suggestive of the commercial harvest of timber. Evidence of Mr Aslin: Trial Day 14, page 13, lines 30 – 33; evidence of Mr Stumer: Trial Day 14, page 96, lines 28 – 31, 39 – 47; page 97, lines 11 – 15. 394 The code applying to a native forest practice on freehold land which applied throughout most of the charge period is that contained at Exhibit 42,19. Exhibit 31, tendered by the defence, which is effective from 2 December 2013, can only relate to clearing in respect of Complaint 4, Charges 23, 29, 30 and 31 which occurred after 2 December 2013. 395 Required outcome RO2 of Exhibit 42.19. 396 Evidence of Mr Dillewaard: Trial Day 9, page 64, lines 4 – 8. 397 Required outcome RO7 of Exhibit 42.19. 398 Evidence of Mr Dillewaard: Trial Day 9, page 66, lines 23 – 27. 399 Evidence of Mr Dillewaard: Trial Day 9, page 66, lines 15 – 16. 400 Evidence of Mr Dillewaard: Trial Day 9, page 66, lines 43 – 47; page 67, lines 1 – 2. -- 223 of 242 -- 224 correspondence refers extensively to conducting cattle operations, but not to conducting a forestry business401. In any case, in August 2011, prior to any charged clearing commencing in the FEA, Mr Baker was advised in writing by the DNRM that the FEA could not be cleared under a notification of forest practice402. [1086] The footnotes in the above passage demonstrate that the prosecution relied on the evidence of Messrs Smith, Aslin and Reinke to support the conclusion that there was no ongoing forestry business. These gentlemen, particularly Mr Smith, had inspected very large parts of Chess Park including, in Mr Smith’s case, all of the charge areas. [1087] The footnotes demonstrate that the prosecution relied on the evidence of Mr Dillewaard to support the conclusion that the clearing activities were not conducted in a manner consistent with the Code. The appellant’s trial submissions [1088] The appellant submitted, correctly, that a notice of native forest practice, required under the VMA prior to commencement of a native forest practice, had been given by both the previous owner (on 19 August 2010) and the appellant (on 19 July 2011).403 [1089] The appellant’s key submission as to why the Court could not conclude that there was no on-going forestry business, despite the observations of the prosecution witnesses that they saw no evidence of such a business when at Chess Park, was because: (a) There were valuable timber species on Chess Park; (b) The prosecution witnesses’ evidence was not sufficiently persuasive given that forestry businesses were not Mr Dillewaard’s area of expertise, Mr Aslin and Stumer did not know that there might have been a forest practice so did not consider the thinning they observed from that perspective and Mr Reinke (who was familiar with forestry business) did not see the areas where it was said to apply; and (c) Given that forestry businesses might have a 50 year harvest cycle, there might be nothing to see even if a business was being conducted. [1090] The appellant contended further that the Court could not conclude that there was non- compliance with the Code in the areas where native forest practice was relied upon because there was insufficient evidence to exclude compliance with the relevant required outcomes in the charge areas where the matter was raised. The appellant then advanced specific arguments in respect of a number of specific charges. Her Honour’s reasons [1091] As noted in paragraph [165] above, her Honour dealt with the native forest practice submission at paragraphs [245] to [261] of her Reasons. This was not a passage adopted from the prosecution submissions. She said: [245] The content of Mr Baker's communications was the various governmental officers and the type of clearing he carried out is the antethesis [sic] of forest 401 See for example in 40.1, 40.4, 40.11, 40.14, 40.39A, 40.40, 40.60 and 40.91. 402 Exhibit 40.29; evidence of Mr Aslin: Trial Day 14, page 23, lines 15 – 17. 403 Exhibit 40. -- 224 of 242 -- 225 practice as defined and in the Code. Mr Baker spoke mainly of fire protection and his cattle. He did not mention that he was engaging in forest practice. [246] The evidence does not support a finding that Mr Baker carried out or was engaged in forest practice. [247] One of the first visitors to the property Chess Park was Mr David Aslin, a Natural Resource Management Officer with the Department formerly known as DERM. He was accompanied by Mr Paul Stumer on 16 January 2011. Mr Stumer was Mr Aslin’s supervisor. They took with them substantial documentation which was written advice to the Defendant including advice about exemptions under vegetation management framework, regional management, vegetation management code, regional ecosystem map and native forest practice code. [248] When they drove around the property Mr Aslin said he was able to see what work had been undertaken. He saw no evidence of trees being felled for the apparent purpose of milling nor evidence of replanting. When he returned with Mr Smith in January 2013 he saw no evidence of any change. Nothing that he saw was consistent with the conduct of native forest practice. He did see some roles of polypipe but he did not see any actually in the ground. He saw evidence of what the Mr Baker described as thinning, where the entire T3 layer had been removed. [249] Mr Stumer gave evidence that he did not see any sign of activity consistent with the ongoing conduct of a native forest practice. [250] Mr Reinke is a Forestry Officer familiar with the concept of forest practice. He was familiar with the Code which applied. He saw no evidence of a conduct of such a practice on Chess Park. [251] Mr Smith, the Complainant, did not observe any evidence of ongoing timber milling business. He saw a stack of fence posts but he saw no signs of the harvesting of timber or the replanting of trees. He saw no evidence of any equipment for the milling or transport of timber. He saw polypipe only that was buried in the vicinity of waypoint 262. [252] Mr Smith gave evidence of his visits to the property and took photographs. He did not see any evidence of forest practice. [253] Mr Goulevitch who conducted the spatial analysis was able to determine that all of the clearing was done by mechanical means apart from a short small area of poisoning. [254] Mr Dillewaard gave the most compelling evidence about the absence of forest practice. He is an expert botanist and I accept his evidence unreservedly and in its entirety. He saw no evidence of the planting of new trees. He saw a pile of split posts at one location which was the only evidence which could have hinted at the commercial harvest of timber or the conversion of timber into some sort of commercial product. [255] The clearing he observed did not comply with the Code relating to forest practice although that was not the purpose of his visit. Nevertheless as an expert botanist he is best placed to observe what had occurred to the vegetation and the implications of its clearing. [256] Where the understorey clearing had occurred that he saw on his visit his view was the wildlife habitat values had not been maintained. These layers provide both structural diversity and floristic diversity. The clearing he saw did not maintain the floristic composition of the regional ecosystem because the particular layers had in most cases been almost completely removed so that all the values associated with those species and that structure had been removed. [257] The understorey clearing that he saw was not undertaken in a way that prevented the loss of biodiversity to maintain the ecological processes in that -- 225 of 242 -- 226 area where the clearing occurred. The understorey was almost completely removed irrespective of the strata or the species. [258] Where the understorey clearing occurred the clearing did not maintain the natural floristic composition and the range of sizes of each species of the regional ecosystem evenly spaced across the cleared areas. It was a total clearing of all those areas. [259] In areas where the timber was completely removed there was no evidence of maintenance, of biodiversity values or ecological processes. [260] Where there was clearing of the T2 layer in his opinion mature trees were removed. Bull oak is characteristic of the T2 layer and that is usually the only layer they occupy so any species in that layer would have been mature examples of that species. His evidence was that while in some places the shrub layer may have been killed and the lower tree layer branches scorched by fire, in no place at any time during his period at Chess Park did he see an area where both a shrub layer and a canopy layer had been killed by fire [261] The evidence firmly established was no "ongoing forestry business ''there was no ''restoration of a similar type'' of tree to those that were felled, and the trees were not “felled for the purpose of being sawn into timber or processed into another value added product.” The activities being conducted were not conducted in a way required by the code applying to a native forest practice on freehold land in any case: 1. In August 201 i prior to any charged clearing commencing in the FEA, Mr Baker was advised in writing by DNRM that the FEA could not be cleared under a notification of forest practice. 2. Allowances for routine management have been made, (where appropriate). Those are: (a) 10 metre exemptions have been granted along the external fence lines; (b) 5 metre exemptions have been applied on either side of an internal fence line; (c) for internal tracks a 10 metre exemption was applied, essentially five metres either side of the centre line of those existing tracks; (d) Clearing for dams (other than in the FEA and the road reserve) have been excluded. 3. The charged areas all go well beyond what was ''necessary" for routine management. Relevant principles [1092] There are numerous cases of high authority dealing with the obligation to give reasons. The appellant referred particularly to the following cases. [1093] First, Croft v Blair.404 This case involved an appeal from a summary conviction for assault before a Stipendiary Magistrate taken directly to the Court of Criminal Appeal. In that case the Magistrate was hearing a charge of assault particularised as comprising the setting of the appellant’s dog on the complainant. The parties gave differing accounts on that point. The Magistrate did not decide which version he accepted but instead convicted on the basis of certain admissions by the appellant of pushing the complainant. The Court set aside the conviction on the basis that the 404 Unreported No. C.A. 275 of 1989, Queensland Court of Criminal Appeal, 15 December 1989. -- 226 of 242 -- 227 Magistrate had failed to make a finding on a critical factual issue of the particularised charge: i.e. whether the appellant had set the dog on the complainant or not. [1094] Second, the appellant referred to Fletcher Construction Australia Limited v Line MacFarlane & Marshall Pty Ltd (No. 2) [2002] 6 VR 1 at [164]–[166] where the Victorian Court of Appeal held: LMM submitted in this court that the judge dealt with Fletcher’s submissions by reaching conclusions which necessarily implied the rejection of those submissions. That is no answer to Fletcher’s complaint. The court is required to do more than decide the issues arising in a proceeding: it is also obliged to give reasons for rejecting at least the principal submissions relied upon by the losing party which relate to the issues upon which the result of the proceedings depends. The contrast in the manner in which the judge dealt with the submissions of the parties is striking, to the point that it appears that most of Fletcher’s arguments and the evidence supporting its arguments were simply ignored by the judge. If his Honour had any reasoned basis for rejecting the arguments, he did not state them. Fletcher was entitled to complain of that treatment. In Conder v Silkbard Pty Ltd Beazley JA said that: It was incumbent for [the trial judge] to deal with the central contentions advanced by the parties and indicate, even in general terms, whether and why he accepted or rejected those matters. Similarly, the New South Wales Court of Criminal Appeal in R v Maxwell said: The appellant had a right to expect that the arguments put on his behalf would be dealt with in such a way that he could be satisfied that they had been understood and, either accepted, or, if rejected, that the rejection was based on a clear and rational process of reasoning. Again in Australian Securities Commission v Schreuder Underwood J said: There is a clear obligation upon a judicial officer to deal with relevant submissions made by the parties for litigation. If this is not done, the parties are denied their proper rights of appeal and justice does not appear to have been done. [1095] A more comprehensive summary of the applicable principles is provided by Muir JA (with whom Holmes JA, as the Chief Justice then was, and Daubney J agreed) in Drew v Makita Australia Pty Ltd [2009] 2 Qd R 219. In that case, the Court was dealing with an appeal from a judge of this Court in a civil matter. That appeal is, like this one, an appeal by way of rehearing. The appeal concerned a judgment for damages for personal injury arising from the unfortunate loss by the respondent of his hand while using a circular saw. [1096] His Honour summarised the law as follows: [57] A court from which an appeal lies must state adequate reasons for its decision. The failure to give sufficient reasons constitutes an error of law. [58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with “a justifiable sense of grievance” through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide “the foundation for the acceptability of the decision by the parties and the public” and to further “judicial accountability”. -- 227 of 242 -- 228 [59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and “the function to be served by the giving of reasons”. For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said: “… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.” [60] McHugh JA’s view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but “… it is necessary that the essential ground or grounds upon which the decision rests should be articulated”. [61] In Strbak v Newton, Samuels JA said: “…What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.” [62] Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith, said that the decision maker: “…should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.” [63] Meagher JA in Beale v Government Insurance Office of NSW stated these propositions: “… there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.” [64] Whilst, in my respectful opinion, it would be inconsistent with authority to apply the three “fundamental elements” rigidly, and I do not understand his Honour to be suggesting otherwise, they provide useful guidance for a determination of the sufficiency of reasons in the general run of cases. -- 228 of 242 -- 229 [65] The following remarks of Henry LJ in Flannery v Halifax Estate Agencies Ltd relating to expert evidence were referred to with approval in the reasons of Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd: “It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible ... But with expert evidence, it should usually be possible to be more explicit in giving reasons: see Bingham LJ in Eckersley v Binnie (1988) 18 ConLR 1 at 77–78: ‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...’” And: “... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other ...”. These observations are also apposite, particularly in relation to the appellant’s contribution claim. [1097] His Honour concluded in the circumstances of that particular case: [66] The reasons in relation to liability, disclose very little of the primary judge’s reasoning processes. As far as one can tell from the reasons, his Honour’s conclusion about how the accident happened may be derived from intuition as much as from, or in lieu of, any logical reasoning process. [67] The appellant argued at first instance that: the evidence of Dr Coleman should have been treated as more reliable than the respondent’s oral evidence, which was unreliable; it was now only possible to speculate about how the accident actually happened and as to the position of the saw and safety guard at the time of the accident; there was substantial evidence that the accident happened when the respondent was nearing the end of the cut he was making, increasing the likelihood that the outside piece of Weathertex broke and fell; and the saw blade was not proved to be out of the cut in the Weathertex at the time of the accident. These arguments had substance. It was incumbent on the primary judge to explain why they were rejected or did not prevent the respondent’s claim from succeeding. As part of any such explanation, it was necessary for the primary judge to resolve significant evidentiary conflicts or inconsistencies. In that regard, it was desirable that he make findings on credibility for the benefit of an appellate court in the event of an appeal and to obtain the benefit to be gained by submitting himself to the intellectual discipline thereby imposed. Appellant’s submissions [1098] As I have said, the Amended Notice of Appeal does not allege that her Honour erred in concluding that the native forest practice exception did not apply, but rather that her Honour erred in law by failing to give sufficient reasons for reaching that conclusion. The appellant accepted that only if inadequacy of reasons was made out -- 229 of 242 -- 230 would I reconsider the whole of the evidence on that matter.405 As noted, the argument was advanced orally. It can be summarised as follows. [1099] First, her Honour at paragraph 254 of her reasons held that Mr Dillewaard gave the most compelling evidence about the absence of forestry practice. This was done in circumstances where Mr Dillewaard had “disclaimed [forest practice] as an area of his expertise.”406 (That complaint was raised below.) Given the centrality of Mr Dillewaard’s evidence, the need to provide adequate reasons required her Honour to explain the basis for accepting Mr Dillewaard’s evidence despite his professed lack of expertise.407 [1100] Second, in that context, her Honour also had to explain why she rejected the more detailed submissions made on this issue in pages 51 to 65 of the Appellant’s Trial Submissions.408 (Though the particular issues raised there which required reasons properly to meet the duty to give reasons were not identified.) [1101] It also appeared that if I was satisfied that her Honour had failed to give adequate reasons, the appellant relied on the submissions above as sustaining the conclusion that the prosecution had not excluded native forest practice beyond reasonable doubt in those charges where it was raised. Respondent’s submissions [1102] The respondent submitted that while it would have been preferable if her Honour expressed her reasons in more detail, it was submitted that the reasons given were adequate. The respondent emphasised that the extent of the submissions on native forest practice at trial was not a reflection of the credibility of the suggestion that such practice might have been occurring. Mr Hunter emphasised that all the evidence was one way on the issue against any such practice. He then referred again to the evidence raised at trial as justifying the conclusion that native forest practice was excluded beyond reasonable doubt.409 Analysis [1103] Although the appellant put general submissions as to why the prosecution had not excluded native forest practice beyond reasonable doubt in its trial submission, the appellant only advanced that proposition for charges where the nature of the clearing was said to leave the possibility open. The respondent’s counsel helpfully identified the charges where that submission was made at trial as follows: Complaint 2, Charges 10 and 13 and Complaint 4, Charges 2, 3, 12, 14, 19 to 21, 23, 25 and 29 to 31. The appellant made no reference to the trial submissions on these charges in its contentions as to the inadequacy of her Honour’s reasons. [1104] A complaint about inadequacy of reasons is not usually made at large. It is necessary to identify why and in what particular respect the reasons are inadequate (in the context of the issues, evidence, submissions and conduct of the trial). Such discipline is important to prevent plenary complaints about inadequate reasons being relied upon to invoke a rehearing without identifying any error in the judgment below. 405 Inter alia at Appeal Day 7, page 34. 406 Appeal Day 7, page 27, line 44. 407 Appeal Day 7, page 34. 408 Appeal Day 7, page 32. 409 Appeal Day 7, page 48, lines 31 – 34. -- 230 of 242 -- 231 [1105] Here, doing the best I can, the critical complaint appears to be that her Honour failed to explain why she relied on Mr Dillewaard’s evidence in circumstances of an alleged disclaimer of expertise by him. This might be characterised as failure to deal with a critical piece of evidence, or perhaps (where the point was raised below) a failure to give sufficient reasons to explain why the key submissions had not been accepted or a failure to adequately evaluate the evidence, or any combination of the above. [1106] On any of those bases, it fails as a cause to impugn her Honour’s reasons on this issue. [1107] It is important to note the context in which that evidence was given and its specific terms. The evidence was given in the course of Mr Dillewaard’s re-examination about whether the required outcomes called for by the Code could be observed in areas cleared by the appellant. That evidence proceeded over Trial Day 12, page 63, line 41 to page 67, line 2. It was led by Mr Hunter in re-examination because he apprehended from cross examination (correctly as it turned out), that submissions would be made about compliance with the Code. No objection to that re-examination occurred. [1108] It was in the course of that evidence that the following passage occurs. The part relied upon by the appellant is underlined:410 While you were on the property, did you see anything that was suggestive of the commercial harvest of timber or the conversion of any timber into some sort of commercial product?---The only evidence I saw was a pile of split posts, your Honour, at one location. The only other site I can recall is one we looked at this morning where there was some spotted gum that had been cut, but it would – that particular site would – it would be difficult to relate any specific forest products to – to that, but certainly that pile of split posts is – is – comes to mind. BENCH: Mr Dillewaard, are you associated or have any knowledge of a forestry initiative – I think it’s a – to grow stands of timber for later harvesting with that - - - ?---Not really, your Honour. That’s – that’s not an area of - - - Do you know what – do you know what I’m referring to?---Like, a forest plantation, or anything like that? Yes, forest plantation, but, you know, spotted gum or some other type of gum - - -?---Like harvesting spotted gum? - - - just for – with a specific view of harvesting in the future? I doesn’t - - -?---I’m aware - - - Right?--- - - - that – that certain species have timber value, but in terms of specifically managing a – an area for forest products, that’s not my area of expertise, your Honour. All right. Thank you. MR HUNTER: Did you see any evidence of any planting of new trees?---There was no evidence there of plantations, no. [Underlining added] [1109] Mr Dillewaard said that managing an area for forest products is not his area of expertise. If he had been giving expert evidence on that issue, that would have been material. But he was not. His evidence in this area related to Code compliance issues and was not concerned with management issues but botanical and ecological issues. They seemed to me to be matters a botanist could give evidence about and no 410 Trial Day 12, page 65, line 18 – 46. -- 231 of 242 -- 232 suggestion was made to the contrary. His other relevant evidence was concerned with observations as to whether he saw anything suggestive of commercial timber activities. That is evidence any person who had been on the Chess Park could give. The fact that he had inspected some 80 waypoints, most of which were in the vicinity of the charge areas, adds weight to those observations. In my view Mr Dillewaard’s disclaimer of expertise was not a critical matter which called for express treatment in her Honour’s reasons. [1110] Once that conclusion is reached, the appellant made no other complaint about any specific submission or piece of evidence not dealt with in her Honour’s reasons. [1111] There was rather a generalised complaint (which appeared to be justified by the appellant at least in part by reference to the failure to deal with Mr Dillewaard’s disclaimer) about not dealing with the rest of the submissions. I do not consider that such a submission properly articulates an error in her Honour’s reasons. [1112] In my view, her Honour’s reasons, while relatively brief given the submissions made by the appellant at trial, are adequate. [1113] Further, the appellant’s characterisation of her Honour’s reasoning process as being primarily reliant on Mr Dillewaard is wrong. It ignores the finding in paragraph 245 of her Honour’s reasons that Mr Baker’s communications tendered at trial did not mention forest practice and “spoke mainly of fire protection and his cattle”. Her Honour’s conclusion was not disputed at trial or on appeal and is amply made out on the face of the correspondence: see Exhibit 40. The documents in relation to notice of native forest practice sent by Mr Baker referred to in [1088] above do not impugn that finding. They do not on their face even hint that any particular forest practice was, or was intended to be, carried out.411 [1114] In my view, her Honour’s finding in paragraph 245 was the foundation for her Honour’s conclusion that forest practice was excluded. The tenor of her reasons thereafter was to consider the other evidence on the subject and find that it supported that conclusion. The appellant’s submissions at trial that the evidence of some of those witnesses might not be sufficient by itself to conclude that no forest practice was being undertaken misses the point. The evidence was being considered by her Honour in the context of her entirely justified initial finding based on the correspondence from the appellant. [1115] The extent of submissions on a subject are not of themselves indicative of their merit or the need to deal with them in detail. On the evidence before her Honour I agree with the submission from Mr Hunter that her Honour understandably gave the argument short shrift. [1116] Even if the above analysis assumes too much in her Honour’s reasoning process, I would in any event reach the same view as her Honour. [1117] The absence of any material mention of forest practice in the extensive contentious correspondence from Mr Baker about the clearing that is the subject of these proceedings makes it incredibly unlikely in my view that any such forest practice was underway. Mr Smith and the other witnesses, including Mr Dillewaard, between them saw large swathes of Chess Park, focusing in most cases on the cleared areas. That they did not see anything which looked to them like a forest practice powerfully supports that conclusion. The only reasonable inference on the whole of the evidence 411 See Exhibits 40.19, 40.21, 40.23, 40.29 to 40.30. -- 232 of 242 -- 233 is that none of the clearing was authorised clearing in the course of carrying on a native forest practice. The “cut and paste” contention The extent of her Honour’s adoption of prosecution submissions on contentious issues [1118] The appellant’s submission arises from the uncontentious fact that her Honour adopted very significant sections of the prosecution’s trial submissions, either word for word or with minor amendments. [1119] The appellant produced a very detailed analysis of the extent of the adoption of the prosecution trial submissions (the Comparison Schedule). That submission did not concern itself with her Honour’s adoption of parts of the prosecution’s submissions relating to the statutory framework. I infer no complaint was made about her Honour adopting those submissions. [1120] The Comparison Schedule was filed with leave after completion of the hearing of the appeal.412 It purports to identify those parts of her Honour’s judgment which either adopted the prosecution’s submissions with some amendment (marked in yellow) or adopted the prosecution’s submissions without amendment (marked in green). [1121] In the former case, the appellant went to the trouble of showing both her Honour’s reasons and the adopted prosecution submission so that it is possible to see her Honour’s additions to the prosecution submissions (marked with underlining) and omissions of matters in those submissions (shown without highlighting on the adopted prosecution submission). [1122] No challenge was made to the accuracy of the very detailed analysis in the Comparison Schedule, though to check the 186 pages would have been a mammoth job. In any event, the overall picture shown by the Comparison Schedule was not contentious. That overall picture was as follows. (a) First, as her Honour expressly stated, her summary of Mr Goulevitch’s evidence at Reasons [58] to [68] adopted the prosecution’s “accurate summary of his evidence”, with some minor additions, rather more omissions and some adjustments to form. (b) Second, her Honour’s summary of Mr Dillewaard’s evidence, at Reasons [98] to [111], adopted the prosecution’s submission, with some adjustments of form but also with many paragraphs adopted in terms. (c) Third, her Honour’s summary of Mr Tran’s evidence appeared at Reasons [112] to [133]. Much of that part of the judgment adopted the prosecution’s submissions, with some adjustments of form. However, Reasons [112], [119], [126], [127] and [131] to [133] were unique. It is to be observed that those paragraphs relate to issues raised in respect of Mr Tran at trial, albeit in a peremptory way, and some parts of the evidence which her Honour obviously considered particularly important. (d) Fourth, her Honour’s findings in respect of each of the Forestry Act charges at Reasons [145] to [179] adopted the prosecution’s submission, with some 412 Exhibit 4 of the Appeal. -- 233 of 242 -- 234 minor additions, omissions and adjustments of form. Her Honour expressly flagged this at Reasons [144]. (e) Fifth, her Honour’s findings in respect of each SPA charges, which run from paragraph 275 to the end of the judgment, adopted the prosecution’s submissions with some minor additions, omissions and adjustments of form in some cases and verbatim in other cases. Her Honour expressly flagged this at Reasons [273]. The appellant’s submission [1123] The appellant submits that the extent of the adoption of prosecution submissions in relation to the important questions of the reliability and credibility of the evidence of the experts, and of whether the evidence made out the facts necessary to sustain conviction for each charge, demonstrates a failure to give adequate reasons. The appellant submits that this adoption comprises a failure by her Honour to undertake a proper review and evaluation of the evidence or to reveal her Honour’s reasoning in concluding that the appellant ought to be convicted. [1124] The appellant relied in support of this submission on two decisions: LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 and MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154. Each of those cases were concerned with appeals to the Full Federal Court in which the reasons of the relevant administrative decision maker were in the form of a template or standard format. [1125] In LVR, the Administrative Appeals Tribunal adopted without attribution the submissions of the relevant Minister as virtually the whole of its reasons. After an analysis of the legal issues arising in that kind of situation for administrative decision making bodies, the Court resolved the matter ultimately by reference to the fact that the result of that approach had been that an important affidavit filed late in the proceedings had not been dealt with. The Full Court said this:413 Although the appeal raises a short and orthodox question, the circumstances in which that question arises are, in our experience, unique. The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. Approximately 95% of the paragraphs of the reasons were so taken from the Commissioner’s written submissions filed in the Tribunal before the hearing in the Tribunal on 24 June 2010 and a further three or four paragraphs of the Tribunal’s reasons were taken from the Commissioner’s written reply, dated 14 July 2010, to the written submissions of the appellants before the Tribunal. Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. That jurisdiction in the present circumstances would include whether or not to exercise the discretion conferred on the Tribunal by s 42A(5)(b) of the AAT Act to dismiss the applications without proceeding to review the Commissioner’s decisions. The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction. [1126] It was the failure to consider that affidavit which ultimately founded the conclusion that the Tribunal had failed properly to evaluate the material before it. The Full Court 413 (2012) 203 FCR 166 at [5]. -- 234 of 242 -- 235 noted that the analysis of adoption of submissions in an administrative law context is quite distinct from that in a judicial context.414 [1127] In MZZZW, a member of the Refugee Review Tribunal on a rehearing adopted substantial parts, including credit findings, from the previous decision which was overturned on appeal. Again, there was no attribution of the adoption of the earlier decision maker’s reasons. Indeed it appears as if the member rehearing the application after appeal presented the reasons as the member’s own.415 [1128] These cases do not much assist in assessing whether her Honour has erred by adopting the submissions of the prosecution in the manner she did. There was some discussion of the adoption of submissions by Courts in LVR in the following terms: 94. In relation to the decisions of courts, in SZMUV v Minister for Immigration and Citizenship [2009] FCA 205 Flick J considered reasons of a federal magistrate who had expressed his reasons for decision over some nine pages but, of those nine pages, over two pages set out verbatim the submissions of the Minister as to the relevant “background”; one page set out verbatim the grounds of the Amended Application; and a further two pages adopted and set out verbatim the Minister’s written submissions on substantive issues. The balance of the judgment, some four pages, set out the reasons as expressed by the federal magistrate. Flick J concluded that notwithstanding the extent to which the federal magistrate had simply incorporated the submissions, the federal magistrate did carefully review the materials before him and in doing so committed no error. 95. Similarly, in SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 Flick J held that the case before him was an instance where such reasons as had been provided, albeit reasons which largely reproduced the submissions and reasons of others, did disclose the manner in which the federal magistrate proceeded. Flick J said: [6] The appropriateness of reproducing the work of others may in large part depend upon the circumstances of each individual case. But the repetition of the reasoning and submissions of others has many dangers. At the very least, it may create in the mind of a disappointed litigant the belief that independent judicial consideration has not been given to the legal and factual merits presented for resolution. It may also place in peril the discipline imposed upon a judicial officer of independently recording in writing reasons for decisions. An argument which may initially appear incontrovertible may become more uncertain of resolution as the process of writing reasons for any decision is undertaken. [1129] I did not find these cases of particular assistance, except to the extent that they identify the uncontentious (I would have thought) points that: (a) Adopting large parts of a party’s submissions without attribution contributes significantly to the impression that there might not have been an independent evaluation of the evidence and submissions of the other party; and (b) Whether adoption of a party’s submissions results in the reasons failing to meet the requirements of the law depends on the circumstances of the particular case. 414 LVR at [98]. 415 MZZZW at [65]. -- 235 of 242 -- 236 [1130] It might be added that the position of the appellant in such circumstances is significantly improved if he or she can point to some particular matter that has not been properly dealt with in the reasons, such as the affidavit in LVR. The respondent’s submission [1131] Consistent with those propositions, the respondent submitted that the consequence of her Honour’s adoption of the prosecution falls to be determined in the context of the trial. Mr Hunter pointed out, correctly, that the main issues raised by the appellant in its trial submissions by way of defence were the essential management issue, the native forest practice issue and the limitations issue. [1132] He pointed out that her Honour dealt directly with each of those issues. Once those issues were determined by her Honour, it was a question of considering whether the prosecution had made out its positive case on each charge, based on that which was articulated in the submissions. The nature of her Honour’s dismissal of the defence cases did not call for specific reconsideration where those points arose on particular charges. Her Honour was entitled to give her reasons based on the prosecution submissions once that point was reached. Reasons were adequate [1133] In my respectful view, her Honour’s reasons were not deficient because of her adoption of prosecution submissions in the way described from paragraph [1122](a) above. [1134] First, it was plain that her Honour was adopting the prosecution’s submissions where she did so. In most cases, she expressly stated she was doing so. On the two occasions where she did not, concerning the evidence of Mr Dillewaard and Mr Tran, she made clear that she accepted their evidence. It would not be a surprise in those circumstances to find (as the appellant plainly did) that her Honour had adopted the prosecution’s key submission on those two witnesses. Further, in the case of Mr Tran her Honour referred, albeit in short terms, to particular points drafted in her own words relevant to the persuasiveness of his evidence and to certain points relevant to Mr Tran’s credit. That is consistent with independent thought having been given to his evidence. Her Honour did not present the prosecution submission as her own text. [1135] Second, her Honour did not often simply adopt the prosecution’s text. In most cases there are adjustments, omissions and additions to that text which are consistent with an independent evaluation of those submissions by her Honour. The wholesale adoption of submissions without any change might give a different impression, but that did not occur here. [1136] Third, and perhaps most tellingly, Mr Hunter is correct in his identification of the key issues at the trial. It is important to also observe that her Honour wrote her own independent reasons for rejecting the primary arguments advanced by the defence at trial. We have already seen how her Honour dealt with the native forest practice issue and I have determined that her reasons were sufficient in that regard. [1137] On the essential management issue, her Honour explained in Reasons [274] that the defence’s arguments depend on the rejection of Mr Tran’s evidence, and that her Honour accepted that evidence (as he Honour explained in Reasons [122] to [133]). This in turn raises the question as to whether her Honour did not give adequate -- 236 of 242 -- 237 reasons for accepting Mr Tran’s evidence. As I point out below, her Honour’s reasons in that regard, while not fulsome, sufficiently give adequate reasons for her acceptance of Mr Tran’s evidence. However, it is to be noted that even if they did not, I have concluded that Mr Tran’s evidence was admissible, probative and positively sustained the conclusions reached by her Honour in any event. Her Honour therefore did not err in accepting his evidence. If there was an error in not giving sufficient reasons for doing so, it is not one which has any material consequence in those circumstances. [1138] We have already seen how her Honour dealt with the limitations points. [1139] It must also be borne in mind that the basis upon which her Honour resolved each of those matters meant that there was, strictly speaking, no need for her to further explain why she rejected the specific contentions in relation to each charge for those items. Further, other points raised by the defence (the other permits possibility and the categories of clearing point) were also specifically dealt with by her Honour. [1140] In those circumstances, her Honour’s approach of working through the prosecution submissions on the individual charges was open as a manner of making the required findings on each charge. There were no questions of credit to resolve. There was no contradictory expert evidence to address in any particular respect. There were no longer any particular questions of reasoning to be exposed. Her Honour’s task was to ensure that the necessary facts to make good the individual charges had been identified and were sufficient. I see no good reason to think that her Honour did not approach the matter in that way. [1141] In my view, it is the nature of the case as put at trial by the defence and the manner it was dealt with by her Honour which answers the appellant’s core complaint that the reasons do not disclose evaluation of the case put. As I observed from paragraph [779] above, the appellant’s criticisms of her Honour’s reasons and reasoning are largely based on her failure to grapple with all the points which occurred to the appellant when preparing the appeal. Almost none of these points were raised at trial. Similarly, few if any of the issues raised in paragraph 84 of the Part 1 Submissions were raised at trial or troubled defence counsel (at least in a way which reached his submissions). Reasons are relevantly required to explain why the Court has reached its conclusion, based on the issues raised at the trial which the reasons address.416 [1142] Fourth, when it comes to the individual charges, it is to be noted that the appellant did not point to any specific submission which was not dealt with and which should have been, in the appellant’s submission. There was no important document (as in LVR) or key fact raised on the appeal in respect of her Honour’s extensive reliance on the prosecution’s submissions to deal with the specific charges. [1143] I respectfully share Justice Flick’s misgivings about adopting the submissions of one party. However there is no rule that it comprises an error of law in every case. Further, a trial judge, particularly one sitting in the Magistrates Court which is burdened with a particularly heavy workload, must give consideration to the public interest in the prompt preparation and provision of reasons. The public interest in 416 Drew v Makita Australia Pty Ltd [2009] 2 Qd R 219 at [59] -- 237 of 242 -- 238 providing reasons which address the matters identified in Drew at [58] must be balanced against the need to efficiently allocate scarce judicial resources.417 Reasons for accepting experts [1144] The last point to be dealt with on this appeal involves the appellant’s specific contentions that her Honour erred in failing to give sufficient reasons for accepting the evidence of Messrs Goulevitch, Dillewaard and Tran. I reject each of those contentions. Given what has gone before, these points can be dealt with shortly. [1145] As to Messrs Goulevitch and Dillewaard, I consider her Honour gave sufficient reasons for accepting their evidence for the following reasons. [1146] First, for both gentlemen there was no contradictory expert evidence. It was not a situation of the kind which existed in Drew. There was no call therefore for her Honour to have to explain in detail why she accepted one expert over another. [1147] Second, there was little cross examination of either Mr Goulevitch or Mr Dillewaard directly attacking their credit or the probative value of their opinions. Further, as I have observed on a number of occasions, no challenge was made in the defendant’s submissions to the acceptance of their evidence. In that context, having seen and heard the witnesses, it was properly open to her Honour sufficiently to deal with the reasons for accepting their evidence in the peremptory manner in which she did. As explained in paragraph [779] above, I do not agree that the requirement to give sufficient reasons required her to have dealt with all the ideas thought up by the appellant’s counsel after the trial. [1148] The first point above applied equally to Mr Tran. As I have explained, there were challenges to the probative weight of Mr Tran’s evidence. However, as her Honour rightly observed, his evidence was not contradicted. Further, her Honour did refer, albeit briefly, to some of the points raised in cross examination. In an ideal world, one might think that a more direct response to the individual points raised in cross examination might have been called for in order to fully reassure the appellant as to why Mr Tran’s evidence was ultimately accepted. However, I do not think her Honour’s reasons fell below the minimum standard for accepting the evidence of an expert which was not contradicted by other evidence at trial. [1149] Even if her Honour’s reasons fell below the necessary standard, I have already dealt with and dismissed the appellant’s substantive challenges to her Honour’s acceptance of their evidence as probative. In my respectful view, there was no error in her Honour doing so. In those circumstances, it is difficult to see why establishing that her Honour gave inadequate reasons for accepting the three experts’ evidence would assist the appellant in setting aside the convictions. Conclusion [1150] The submission on the first day of the appeal that her Honour’s approach to her reasons involved her complete abrogation of her judicial function418 was unjustified and was properly withdrawn at the start of the second day.419 Further, in the context of the issues raised at trial and the manner in which they were resolved, I do not agree 417 See the discussion of this balancing of public and private interests in Justice Beaumont’s paper Contemporary Judgment Writing: The Problem Restated (2000) 4 TJR 347. 418 Appeal Day 1, page 93, lines 4-5 419 Appeal Day 2, page 2, lines 8-15 -- 238 of 242 -- 239 that Her Honour’s reasons were inadequate in a manner which gave rise to an error of law. DISPOSITION ON THE APPEAL [1151] The appeal is upheld in respect of Charges 1 and 2 of Complaint 1. The appeal against conviction is otherwise dismissed. I will hear the parties as to the proper form of orders to give effect to those conclusions. [1152] I will also hear the parties as to further orders for resolving the remaining costs and sentence appeals as well as on the question of costs in these proceedings. [1153] I make one final comment. The appellant made a number of personal attacks on the prosecutor and some of the witnesses which were either abandoned at the hearing or shown to be unjustified. Some are mentioned in these reasons. No mention is made, however, of the most serious examples, which involved attacks on the the conduct of prosecution at trial in relation to a particular matter. Those attacks were unjustified and were completely abandoned by the appellant on the hearing of the appeal, as they should have been. It is unnecessary to say more about them here. However, none of the submissions by the appellant involving personal attacks were justified. Much more care must be taken in future with the making of such submissions. -- 239 of 242 -- 240 ANNEXURE A Reference Hearing Date Event/Witness Transcript Reference A. 23 April 2015 Mention – Gayndah Magistrates Trial Day 1. 15 February 2016 Openings Trial Day 2. 16 February 2016 Smith - EIC by Mr Hunter page 15, line 21 Trial Day 3. 17 February 2016 Smith - EIC by Mr Hunter page 2, line 8 - EIC by Ms Dann page 82, line 20 - Excused page 90, line 6 Goulevitch - EIC by Mr Hunter page 102, line 12 Trial Day 4. 22 February 2016 Goulevitch - EIC by Mr Hunter page 21, line 1 Trial Day 5. 23 February 2016 Goulevitch - EIC by Mr Hunter page 2, line 8 Trial Day 6. 24 February 2016 Goulevitch - EIC by Mr Hunter page 2, line 8 Trial Day 7. 25 February 2016 Goulevitch - EIC by Mr Hunter page 2, line 8 Trial Day 8. 26 February 2016 Goulevitch - EIC by Mr Hunter page 2, line 16 - XXN by Mr Sheridan page 4, line 4 - RXN by Mr Hunter page 86, line 44 - Excused page 93, line 4 Trial Day 9. 29 February 2016 Dillewaard - EIC by Mr Hunter page 2, line 43 Trial Day 10. 1 March 2016 Dillewaard - EIC by Mr Hunter page 2, line 12 Trial Day 11. 2 March 2016 Dillewaard - EIC by Mr Hunter page 2, line 5 - XXN by Mr Sheridan page 54, line 4 Trial Day 12. 3 March 2016 Dillewaard - XXN by Mr Sheridan page 54, line 4 - RXN by Mr Hunter page 61, line 39 - Excused page 67, line 27 Mossman - EIC by Mr Hunter page 68, line 1 - XXN by Mr Sheridan page 82, line 18 - RXN by Mr Hunter page 92, line 36 - Excused page 98, line 13 Trial Day 13. 4 March 2016 Aslin - EIC by Mr Hunter page 8, line 39 - Excused page 24, line 11 Trial Day 14. 4 July 2016 Aslin -- 240 of 242 -- 241 - EIC by Mr Hunter page 6, line 14 - EIC by Ms Dann page 36, line 47 - XXN by Mr Sheridan page 52, line 33 - Excused page 82, line 44 Stumer - EIC by Mr Hunter page 82, line 29 - EIC by Ms Dann page 92, line 38 Trial Day 15. 5 July 2016 Stumer - EIC by Ms Dann page 3, line 1 - XXN by Mr Sheridan page 18, line 15 - Excused page 34, line 37 Smith - EIC by Mr Hunter page 35, line 44 - XXN by Mr Sheridan page 40, line 34 - Excused page 56, line 7 Trial Day 16. 6 July 2016 Reinke - EIC by Mr Hunter page 2, line 37 - EIC by Ms Dann page 61, line 30 - EIC by Mr Hunter page 66, line 14 - XXN by Mr Sheridan page 67, line 6 Trial Day 17. 7 July 2016 Reinke - XXN by Mr Sheridan page 67, line 6 Sparrow - EIC by Mr Hunter page 16, line 16 - XXN by Mr Sheridan page 39, line 30 - RXN by Mr Hunter page 51, line 4 - Excused page 52, line 6 Tran - EIC by Mr Hunter page 52, line 15 Trial Day 18. 8 July 2016 Tran - EIC by Mr Hunter page 2, line 7 Trial Day 19. 18 July 2016 Tran - EIC by Mr Hunter page 4, line 18 - XXN by Mr Sheridan page 49, line 24 Trial Day 20. 19 July 2016 Tran - XXN by Mr Sheridan page 2, line 7 - RXN by Mr Hunter page 104, line 1 - Excused page 107, line 33 Trial Day 21. 20 July 2016 Housekeeping Trial Day 22. 17 August 2016 Closing submissions Trial Day 23. 18 November 2016 Ex tempore decision Trial Day 24. 24 November 2016 Mention – decision published Trial Day 24. 27 February 2017 Sentence/Costs hearing Trial Day 25. 28 February 2017 Sentence/Costs hearing Ex tempore decision – s 599 SPA order Trial Day 26. 20 March 2017 Handing down of decision Decision on penalty -- 241 of 242 -- 242 ANNEXURE B -- 242 of 242 --