Archer v Neuendorf [2014] QDC 91

DISTRICT COURT OF QUEENSLAND CITATION: Archer v Neuendorf [2014] QDC 91 PARTIES: DAVID LANCE ARCHER (appellant) v ANNE NEUENDORF (respondent) FILE NO: DB161/2014 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Holland Park Magistrates Court DELIVERED ON: 24 April 2014 DELIVERED AT: Brisbane HEARING DATE: 14 April 2014 JUDGE: Smith DCJ ORDER: 1. Leave to appeal is granted 2. The appeal is allowed. 3. The convictions are set aside. 4. The matter is remitted for retrial to the Brisbane Magistrates Court for retrial before a different Magistrate CATCHWORDS: APPEAL- whether sufficient advice given to a self- represented defendant- whether the convictions were based on inadmissible evidence- whether a retrial should be ordered Acts Interpretation Act 1954 (Q) ss 7, 32A Evidence Act 1977 (Q) s 130 Justices Act 1886 (Q) ss 19, 48, 222, 223, 225 Plumbing and Drainage Act 2002 (Q) ss 35, 119, 138, dictionary Plumbing and Drainage Regulations 2003(Q) s 4 Standard Plumbing and Drainage Regulations 2003 (Q) ss 19, 19A, 19B, Schedules 4 and 6 Browne v Dunn (1893) 6 R 67 (HL) -- 1 of 21 -- 2 Foster v R (1982) 38 ALR 599 MacPherson v R (1981) 147 CLR 512 Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 Project Blue Sky Inc v ABA (1998) 194 CLR 355 QBSA v Smart Sewage Pty Ltd [2011] QCAT 425 QBSA v Tankworld Qld Pty Ltd [2001] QBT 180 R v Cox (1996) 66 SASR 152 R v Hartley [1972] 2 QB 1 R v Tait [1999] 2 Qd. R. 667 R v Zorad (1990) 19 NSWLR 91 Stevenson v Yasso [2006] 2 Qd. R. 150 COUNSEL: Mr. D. Archer self represented Appellant Mr. B. McMillan Counsel for the Respondent SOLICITORS: Self represented Appellant Crown Law for the Respondent Introduction [1] This is an appeal by the appellant, Mr Archer pursuant to s 222 of the Justices Act 1886 (Q) (the “JA”) against his convictions of two breaches of the Plumbing and Drainage Act 2002 (Q) (“the PDA”). He applies for leave to appeal out of time. [2] An appeal under this section is by way of rehearing on the evidence given before the learned magistrate (s 223(1) of the JA). The court is required to conduct a real review of the trial and the learned magistrate’s reasons. In doing so the court should give due deference and attach a good deal of weight to the views of the learned magistrate, but it remains for the appellate court to draw its own conclusions on the evidence (Stevenson v Yasso [2006] 2 Qd. R. 150 at [36]). [3] Further the court has wide powers on the hearing of an appeal, including the power to remit the matter to the Magistrates Court for retrial (see s 225 of the JA). The charges [4] The appellant was convicted on 6 December 2013 in the Holland Park Magistrates Court of the following charges: “Charge 1 – Section 119 Plumbing and Drainage Act 2002 On or about 7 June 2013 David Lance Archer (“the defendant”) performed work for which a licence is required, namely on-site -- 2 of 21 -- 3 drainage work, at Chandler in the State of Queensland without holding a licence that entitled him to perform such work. Particulars 1.1 On or about about 7 June 2013 the defendant installed an on-site sewerage facility (the work) at 246 Sunnydene Road, Chandler. 1.2 The work was work which a licence was required. 1.3 At the time the defendant performed the work he did not hold a licence that authorised him to carry out the work. Charge 2 – Section 119 Plumbing and Drainage Act 2002 On or about 20 June 2013 David Lance Archer (“the defendant”) performed work for which a licence is required, namely on-site drainage work, at Belmont in the State of Queensland without holding a licence that entitled him to perform such work. Particulars 2.1 On or about 20 June 2013 the defendant installed an on-site sewerage facility (the work) at 526 London Road, Belmont. 2.2 The work was work for which a licence was required. 2.3 At the time the defendant performed the work he did not hold a licence that would lawfully authorise him to carry out the work. Contrary to the acts in such case made and provided.” [5] I also note that without objection the Respondent amended the word sewage to sewerage on both charges during the hearing of the appeal. I allowed this course as it appeared to me that no injustice was caused by this (s 48 of the JA and 225(3) of the JA). I also note that the use of the word “authorise” in the particulars does not seem in accordance with the words of the section. In the section the word “entitle” is used. [6] On charge 1 a $500 fine was imposed with no conviction recorded. On charge 2 a $1,800 fine was imposed with a conviction recorded. He was ordered to pay $750 cost to the court. Grounds of appeal [7] It is firstly to be noted the Appellant seeks leave to appeal out of time. In light of the ultimate conclusion in this appeal I will grant leave to appeal out of time. Also in my view he adequately explained his reasons for the delay in appealing. The unchallenged reason for delay was he did not receive the transcript until 6 January -- 3 of 21 -- 4 2014. The application and the notice of appeal are dated 10 January 2014 and were filed on 16 January 2014. I next turn to the grounds of appeal. [8] As best as can be summarised they appear to be: 1. The Appellant was charged under the wrong part of the PDA. 2. The matter should have been heard in QCAT. 3. The Learned Magistrate erred in finding the Appellant guilty on charge 1 and 2 as he did not require a licence for the work he was doing. 4. The Appellant was only allowed 20 minutes to “present his case” which was insufficient. 5. The Learned Magistrate impermissibly relied on “expert evidence” as to the interpretation of the legislation is reaching her determination. 6. In the outline the Appellant also argued the court had no jurisdiction to deal with the matter as the PIN was defective; the Magistrate dismissed an ombudsman’s report and building permits were not considered. [9] Also as the argument proceeded a further ground was that the Appellant was not provided sufficient guidance by the Learned Magistrate as to how to conduct the trial such that a miscarriage of justice has occurred. [10] It was further ascertained he challenged the sentence on charge 2 but not on charge 1. Summary of the prosecution case [11] The prosecution alleged charge 1 occurred on 7 June 2013 at a property under construction at 246 Sunnydene Road, Chandler owned by Mr Templeton. Charge 2 occurred on 20 June 2013 at 526 London Road Belmont, another property under construction. [12] It is alleged the appellant ran Smart Sewage Solutions Pty Ltd, which dealt with on- site waste-water management facilities. [13] The defendant’s argument was that he did not need a licence as he was not performing drainage work under the PDA. The evidence Mr Templeton [14] Ian Templeton, the owner of 246 Sunnydene Road Chandler gave evidence that the appellant was contracted through his builder to build a sewage treatment plant (T1- 14.33). The appellant dug holes for the water tanks, installed the tanks and dug the hole and installed the treatment plant (T1-15.1). [15] In cross-examination the witness agreed that the appellant did not connect the house to the treatment plant or the water tanks. The plumber did this (T1-15.27-40). -- 4 of 21 -- 5 Exhibit 1 [16] Exhibit 1 was a certificate tendered pursuant to s 137 of the Act. This proved the appellant was not a licensed plumber. He was entitled to hold a restricted drainers’s licence subject to the following condition: “Can only maintain an on-site sewerage treatment facility.”1 Mr Larney [17] Nathan Larney, an inspector gave evidence that on 7 June 2013 he attended the Chandler property and they “ascertained that regulated work was being undertaken by an [unlicensed] person.” A penalty infringement notice was issued (T1-17.30). The appellant told him that he was installing “a whole treatment system”. [18] Exhibit 2 contains photographs taken at the site. These show a number of trenches. The trenches were for treated effluent from the waste water system which was pumped or drained to that area and the water was dispersed through holes in the pipes (T1-19.10). [19] Exhibit 3 contains further photographs taken. On 10 October 2013 Mr. Larney visited the property again and saw a waste-water treatment system installed and finished (T1-19.45). [20] On 20 June 2013 Mr Larney attended the London Road property. The appellant was in the process of lifting a waste water treatment tank off a truck to go into the ground (T1-20.40). The appellant admitted he was installing the waste-water treatment plant. A PIN was issued (T1-20.45). [21] Exhibit 4 contains photographs taken of the work at London Road on 10 October 2013. [22] In cross-examination the witness conceded that black pipe is used for the carrying of untreated waste water and he saw no black pipe at Sunnydene Road (T1-22). The only pipe he saw was purple which is used for reclaimed effluent or treated waste water (T1-22.27). The witness said that he believed the appellant was performing drainage work there (T1-23.35). [23] Exhibit 5 was an approval by Building Codes Australia of the Epsom Filtration System under Pt 5 of the Act. Mr Larney agreed he saw the appellant supervise the craning of the tank at London Road but denied seeing the complete activity (T1- 29.20). [24] It was Mr. Larney’s opinion that the installation of the tank was drainage work (T1- 29.31). In re-examination the witness said the appellant told them that the London Road site that he was “doing the whole job” (T1-32.12). 1 It may be this certificate is incorrect in that the terminology used does not seem to follow the definitions in the PDA. -- 5 of 21 -- 6 Exhibit 6 [25] Exhibit 6 was material summonsed from the Brisbane City Council. This consisted of an application for an on-site domestic sewage treatment system for Sunnydene Road and a compliance assessment application. There were similar applications for 526 London Road. Exhibit 7 [26] Exhibit 7 contained a quote from the appellant concerning Sunnydene Road for a waste water treatment system including delivery, craning, positioning, commissioning a hand over and a 12 month service contract for $13,530 including GST. There were also tax invoices. Mr Denman [27] Phillip Denman, a principal adviser with the Department of Housing and Public Works Building Codes Australia and an authorised officer and investigator under the PDA gave evidence. Exhibit 8 was an email from the appellant to the plumbing compliance branch advising that he would be at Sunnydene Road on 7 June 2013. On 7 June 2013 Mr Denman and Mr Larney attended the property. The appellant was performing works on an adjoining lot. He told them he was “installing the disposal area, which is the irrigation drippers as part of onsite sewerage facility” (T1-35.25). [28] Mr Denman said that Exhibit 1 (the photographs) showed a typical irrigation area for on-site sewerage treatment facility with irrigation drippers (T1-35.45). Exhibit 3 showed buried rainwater tanks and the on-site treatment plant and sand filter (T1- 36.11). The appellant told them he was installing irrigation drippers and the on-site sewerage facility as part of the treatment plant (T1-38.5). [29] On 20 June 2013 Mr Denman and Mr Larney attended the London Road property. A hole had been excavated and a truck was unloading an on-site sewerage treatment plant (T1-38.20). The appellant was there to install the on-site sewerage facility (T1-38.22). A PIN was issued. Exhibit 4 shows the house drain was not connected to the on-site sewerage facility (T1-38.42). They also showed the sand filter and two ground vents with no cowlings which indicated it was not complete (T1-39.15). The disposal area had not been installed. [30] In cross-examination the witness agreed that a drainer’s licence would not permit the holder to perform plumbing work (T1-40.20). [31] Prior to 20 June 2013 other than an endorsement to maintain an on-site sewerage facility there are no other endorsements a drainer could apply for (T1-40.40). He answered a question concerning the Australian Standard. He said AS3500.2 had limited application (T1-45.20). He said that the work carried out by the appellant at Sunnydene Road was downstream of an on-site sewage treatment plant that was “part of the facility” (T1-45.37). The witness considered AS1547 is more relevant (T1-45-46). -- 6 of 21 -- 7 [32] As part of his investigation concerning Sunnydene Road he confirmed that other licensed persons performed licensed plumbing and drainage work on the property (T1-47.45). It was not suggested the appellant connected the dwelling to the tank (T1-48.5). [33] Concerning London Road he did not allege that mere excavation would be regulated work (T1-48.40). He also conceded that delivering a tank to a site would not be drainage work. However determining the depth of the hole would be regulated work (T1-49.5). Also craning a tank into an excavated hole that had been levelled at the correct level would be installing the treatment plant (T1-49.17). [34] Mr Denman at the suggestion of the bench was then asked to comment on the quote in Exhibit 7 and expressed the opinion that this quote “…indicated that [the appellant] is installing an on-site sewerage facility which would infer the associated disposal area and sand filter, which the Department would deem to be regulated drainage work” (T1-51.8). [35] He further confirmed that the installation of a tank must be set to a certain invert level and believes only an appropriate qualified person could make that assessment (T1-51.12). [36] It was conceded that the appellant had not performed notifiable work (T1-52.17). [37] The witness said that he considered the appellant did not have the wholly appropriate licence to perform the work (T1-54.7). Exhibit 9 was the defendant’s form 7 (T1-60). He confirmed that they did a licence check and discovered he did not hold a licence to perform drainage work (T1-68.40). [38] The defendant did not give evidence (T1-72). This is a matter I will discuss further later. Respondent’s submissions to the Magistrate [39] It was submitted that the PDA was clear – a person must not do drainage work unless they have a licence entitling them to do this. Drainage work included on-site sewerage work which relevantly was defined as the installation of an on-site sewerage treatment facility (T1-74.23). [40] It was submitted that the evidence clearly established that he installed such a facility at Sunnydene Road (T1-76) and also London Road. The admissions proved this (T1-76). [41] It may be seen the alleged admissions were crucial to the prosecution case on both counts. The appellant’s submissions -- 7 of 21 -- 8 [42] The appellant submitted that in effect he did not connect the system to the house and therefore there was no “drainage” because he was not involved in the carrying away of sewage. [43] He then submitted that the definition of “installation” by reference to AS3500 means “the construction of pipework and fixtures in position for service and use. The network of pipework and fixtures.” It was submitted that he did not do this. [44] He submitted there were no fixtures associated with the work that he did nor pipework (T1-83.35). Decision [45] The learned magistrate referred to the terms of s 119 of the PDA and the definitions contained therein. The magistrate found that both Larney and Denman were impressive particularly regarding their understanding of the legislation and their evidence was to the effect that the appellant was installing an on-site sewerage facility in respect of the Sunnydene Road address and also the London Road address (R3.1). [46] In addition the quotation in Exhibit 7 supported this contention and as a result the learned magistrate was satisfied beyond reasonable doubt the appellant had performed sufficient works based on the evidence of Mr Larney and Denham at both sites to constitute the building installation of the facility and he was therefore found guilty of both [charges] complaints (R3.15). Submissions on appeal Appellant’s submissions [47] The appellant submits that the learned magistrate relied solely on the prosecution’s witnesses’ expert opinion rather than following the PDA. With respect to charge 2 he disputed that crane supervision/operation was drainage work. It was submitted that this was not in accordance with AS3500 - the definition of “installation”. It was submitted that the prosecution’s witnesses were entirely incorrect in alleging that other standards were applicable. [48] With respect to the allegation of Mr Denman that the appellant completed the sand filter component of the facility, this was incorrect. [49] The appellant says that he craned in the tank and backfilled it to make it safe but did not perform any other work on 20 June 2013 and had not returned since. The appellant did not give evidence to counteract the evidence given by Denman in this regard at the trial. [50] With respect to the Sunnydene Road premises the appellant states that he had placed the treatment plant into its excavation on 24 May 2013. -- 8 of 21 -- 9 [51] He disputed that he was completing the entire facility at the property on 7 June 2013. [52] At page 5 of the outline he refers to matters including conduct of Mr Denman and a hunger strike he has engaged in and other matters which are not relevant to the construction of the PDA. [53] In the outline the appellant also seeks to appeal the sentence imposed concerning the Sunnydene Road, Chandler. [54] In summary the appellant submits that the magistrate did not sufficiently examine his case; there were deliberate strategies engaged in by the witness Mr Denman; the magistrate dismissed a report by the Queensland Ombudsman; Mr Denman gave misleading evidence; the magistrate did not consider his concerns of the potential health risks; there was highly irregular behaviour by the witnesses involved in the prosecution; the magistrate failed to understand the significance of building permits and the interpretation of legislation by the prosecution witnesses was wrong and the magistrate placed too much weight on their capacities as “experts” and not on the legislation. [55] In oral submissions, further lengthy submissions were made by the Appellant. Some of the submissions included: (a) The allegation the proceedings against him were brought under the wrong section of the PDA; (b) The PINs were defective, disciplinary action should have been brought and thus the court had no jurisdiction (Folder 9), (c) The matters should have been brought in QCAT; (d) Amendments to the Act were not in conformity with the Regulations (Folder 5); (e) The Magistrate erred in not finding him a “person” under the Regulations (Folder 3); (f) AS 1546 and 1547 were not relevant as claimed by Mr. Denman (Folder 6 and 7); (g) There had a “campaign” against him since 2012 (Folder 2); and (h) He did not complete the work alleged to have been performed at London Road (Folder 8). (i) The Learned Magistrate failed to pay any or sufficient regard to Exhibit A. [56] For the reasons I give later it is not necessary for me to definitively answer all of these questions as I intend to order a retrial. Some of the answers may depend on the evidence lead at a retrial. Respondent’s submissions [57] The respondent submits firstly that the appeal is out of time and as a result of R v Tait [1999] 2 Qd. R. 667 at [5] the appellant’s appeal should be dismissed. -- 9 of 21 -- 10 [58] As to the contention that the appeal was brought on to the wrong part of the PDA it is submitted this is wrong and there is no such limitation in the PDA. It is submitted this ground should fail. It is also submitted there is no support for the contention that proceedings should have been heard at QCAT. [59] It is submitted the magistrate understood the legislative basis for the allegations. As to the submission concerning London Road, the respondent also relies upon the alleged admission made by the appellant to Mr Larney that he was “installing the waste water treatment plant and was doing the land application area, basically the work for the whole job”. Similar evidence was given by Mr Denman. It is submitted that the evidence given before the court was ample evidence to justify the convictions (see para 58). [60] As to the suggestion that there was no natural justice afforded. This is rejected. It is submitted that a reading of the transcript would reveal that natural justice was accorded. [61] The suggestion that the prosecution witnesses misled the court was also rejected. [62] The respondent submits the appeal should be dismissed. [63] In oral submissions the Respondent submitted: (a) The validity of the PIN had no bearing on the jurisdiction of the court to deal with the summons. (b) The admissions made by the Appellant were sufficient to prove charge 1 (see T1-51.5; 35.23, 55.17, 62.41, 27.11) (c) Exhibit 7 was also relevant evidence on this as was Mr. Templeton’s evidence at T1-14.32. (d) It was conceded on charge 2 the best evidence are the alleged admissions and it appears that the Appellant disputes these. (e) It is submitted QCAT cases relied on by the Appellant do not assist as they relate to different legislation. (f) It is entirely irrelevant that action could be taken also under a different provision of the PDA. (g) The penalties are not excessive. [64] Subsequent to the hearing of the appeal, the Respondent provided written submissions on whether sufficient advice was given to the Appellant and on the definition of “installation.” [65] On the first point the Respondent submitted: -- 10 of 21 -- 11 (a) MacPherson v R (1981) 147 CLR 512 and Foster v R (1982) 38 ALR 599 could be distinguished. (b) The transcript below did not clearly indicate any dispute of the confessional evidence. The problem I see with this submission is the Appellant on my findings was not appropriately advised on this point. (c) In the present case there was no error. [66] I will deal with the Respondent’s submissions on the meaning of “installation” later. [67] In further written submissions the Appellant submitted: (a) If he had been advised on the issue of the admissions he would have proceeded differently at the trial. (b) He says he did not understand he could give evidence himself. Discussion Advice to the Appellant [68] There is clear authority as to how a self represented person should be advised by a court. [69] It is the duty of a Magistrate or trial judge to ensure a trial is conducted fairly and according to law. In MacPherson v R (1981) 147 CLR 512 it was noted that fulfilling this duty will require a judge to give advice to the unrepresented defendant. The test formulated is that “the judge must give an unrepresented accused such information and advice as is necessary to ensure that he [or she] has a fair trial.” (see pp 524.8 and 534.5). [70] Further in R v Cox (1996) 66 SASR 152 it was held it was the duty of a court to assist an unrepresented person of the need to call evidence in support of submissions advanced and further that the absence of sworn evidence might be fatal to the submissions. [71] In my view, at a minimum advice should be given to the defendant as to the following: (a) Trial procedure; (b) What he should needed to raise in cross-examination (i.e. the requirements in Browne v Dunn (1893) 6 R 67 (HL) (see e.g. R v Zorad (1990) 19 NSWLR 91) ; (c) As to the elements of the offences; (d) Of his rights on whether he should give and call evidence; (e) Of his right to object to evidence; (f) That the absence of sworn evidence by the defence might be fatal to his or her submissions. -- 11 of 21 -- 12 [72] Queensland Benchbook direction No. 6.3 could readily be adapted for use in a summary trial. I consider it would be desirable course to be adopted in summary trials involving unrepresented defendants. [73] In this case at no stage did the Magistrate: (a) Advise the Appellant that he should put his case to the prosecution witnesses. As it has turned out on appeal the Appellant challenges the admissions made concerning charge 2. Also when pressed he claims that the conversations with the prosecution witnesses on charge 1 was more extensive than that alleged. (b) Advise the Appellant he could seek an order from the court to exclude the alleged admissions in the exercise of the court’s discretion. In this regard I note that the alleged admissions were not tape recorded nor was the evidence given by way of direct speech. Further no warnings were given although I note that this is not required under legislation, although this may be relevant to the exercise of the discretion under section 130 of the Evidence Act 1977 (Q). [74] I also have misgivings in the way the election not to give evidence was made. [75] Prior to even asking the Appellant as to whether he wished to give evidence the Magistrate moved to the question of submissions (T1-72.17). Quite properly the prosecutor reminded the Magistrate that perhaps the Appellant should be asked whether he intended to give evidence (T1-72.21). This was in the context that at 1.10pm the Magistrate adjourned until 2.15pm to hear “submissions”. [76] The Magistrate then said to him initially “You aren’t required to give evidence, but you may give evidence” (T1-72.30). The Appellant was never told that if he contested the factual evidence given by the prosecution witnesses then there was no evidence contradicting their evidence. I consider this was an important oversight when one considers the court was dealing with an unrepresented defendant. [77] In this matter the Appellant has alleged on appeal that he disputes the alleged admissions given in evidence by Mr. Larney and Mr. Denman concerning charge 2 in particular but also to a lesser extent charge 1. Also I note he has an email from the Department which may be relevant to the work he was conducting. [78] I also note that the Magistrate limited the parties to submissions of 20 minutes each (T1-71.11). The hearing of the Appellant’s submissions in this appeal took close to 3 hours and the Respondent’s 1 ½ hours. Twenty Minutes was inadequate in my respectful opinion. Even though it may have taken a little longer than 20 minutes before the Magistrate, I consider the Appellant would have felt constrained in the presentation of his submissions. [79] In all of the circumstances I consider an error occurred in the conduct of the trial by reason of the failure of the Learned Magistrate to give appropriate advice to the self represented Appellant as to the conduct of the trial. -- 12 of 21 -- 13 [80] I uphold this ground of appeal. Reliance of expert opinion [81] Having considered the entirety of the transcript it appears to me the trial miscarried. [82] I note that Gibbs CJ and Wilson J in MacPherson (supra) at pp 523.2 noted that a judge presiding at a criminal trial has an obligation to ensure that the trial is conducted fairly and in accordance with law. He or she must exclude inadmissible evidence. I consider this principle equally applies in summary trials. [83] From an early time the defendant started to cross examine the prosecution witnesses as to their opinion as to the meaning of the legislation. This was not admissible. The Appellant should have been stopped. Prima Facie the only admissible evidence was what the inspectors saw and heard. [84] Much of the cross examination consisted of an argument between the Appellant and Mr. Denman as to the meaning of the legislation. This was wrong. Further the approach was compounded as page 50 et seq of the transcript. The Magistrate impermissibly asked the witness Mr. Denman ultimately for his opinion on whether the work referred to in the quote (Exhibit 7) was “drainage work.” [85] The questions and the answers should have been objected to. [86] I appreciate that the Appellant commenced the cross examination along these lines but the self represented Appellant should have been stopped. [87] In my view in light of the way the trial was conducted the integrity of both convictions is affected. This is particularly so when the Magistrate relied on the opinion evidence as to the meaning of the legislation to reach her conclusions. (see R2.47). [88] I should also mention the Appellant informed this court that Exhibit A, a folder of material was handed to the Magistrate. The Respondent did not dispute this. Exhibit A was admitted at the appeal on the basis that it was relevant only as to this ground of appeal. The exhibit included factual material including: (a) Affidavits of witnesses in QCAT proceedings; (b) Tax invoices; (c) QCAT decisions; (d) Advice to the Appellant by the Building Services Authority that placing a tank in a hole would not require a license; (e) A form 7 showing that Craig Spann was the “responsible person” for the Sunnydene Road property; (f) A form 7 showing that Michael O’Brien was the “responsible person” for the London Road property; (g) An email to the Appellant from Building Codes Queensland advising him that he did not need a license to dig a hole, level the sand, crane -- 13 of 21 -- 14 in a tank, loosely backfill (all relevant to charge 2) and construct an irrigation bed (relevant to charge 1); (h) A newsflash advising as to licensing requirements; (i) Material relating to other work performed by the Appellant. [89] No advice was given to the Appellant that the factual material was inadmissible unless properly proved. There should have been a debate as to its admissibility and relevance. [90] The material was not marked as an exhibit in any way. [91] I am told it was returned by post from the Magistrates Court to the Appellant after the decision was given. [92] I can see no reference to any of this material in the decision of the Learned Magistrate. [93] The material should have been marked in some way. The handling of this material was irregular. It contained potentially important material [94] I uphold this ground of appeal. Jurisdictional point [95] I accept the Respondent’s submissions in this regard. It is not to the point that there was any error in the PIN or whether action could have been brought under another section of the PDA. There is no admissible evidence at this stage as to any abuse of process here. The fact is the decision to prosecute is not usually examinable (see Maxwell v R [1996] HCA 46; (1996) 184 CLR 501). [96] As to the PIN the fact is s 138 of the PDA specifically provides that an offence against the PDA is a summary offence. Hence the provisions of the JA are applicable. Section 19 of the JA provides: Whenever by any Act past or future, or by this Act, any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission, and such offence, act, or omission is not by the Act declared to be an indictable offence, and no other provision is made for the trial of such person, the matter may be heard and determined by a Magistrates Court constituted, subject to this Act, by 2 or more justices in a summary manner under the provisions of this Act. [97] I find there was jurisdiction in the Magistrates Court to deal with these matters. [98] I have examined the complaint and summons. There is no argument it is defective nor does it appear to be so. -- 14 of 21 -- 15 [99] It follows that there is no merit in the ground that the matter should have been brought before QCAT. There is no provision in the QCAT Act or in the PDA preventing this prosecution. [100] I dismiss this ground of appeal. Other issues on appeal [101] Folder 9 relates to allegations that the PINs were defective. It also alleges that action should have been taken under Part 3 and not Part 6A of the PDA. I have dealt with this issue above. In any event Part 6A deals with “general offences”. The PDA is said to bind all persons (s4). It may be that a person is liable to disciplinary action in addition to a prosecution under s119 of the PDA (see s64(f) of the PDA). [102] In Folder 5, the Appellant argues that the definition of “drainage work” does not include “on-site sewerage work” performed in accordance with s19A of the Standard Plumbing and Drainage Regulation 2003 (“the SPDR”). It is submitted as regards charge 1, the installation of the land application area is not covered by the PDA as drainage work. It is then alleged that “common effluent drainage” is drainage work as this takes the sewerage or effluent off the premises. The problem with this argument is that it seems to me that an “on-site sewerage facility” is one which is installed on premises for treating sewage generated on the premises, on the premises and disposing of the resulting effluent by either a land application area or common effluent drainage or the third method specified in 1 (a) (iii). It appears to me that a land application area and common effluent drainage are examples of the method of disposal of effluent. [103] The applicant then submits that when the PDA refers to on-site sewerage work it is referring to work performed in accordance with ss19A and 19B of the SPDR. However the definition in the PDA of “on-site sewerage work” is not said to be restricted by the SPDR. Further section 4 of the Plumbing and Drainage Regulations 2003 (“PDR”) does not limit the term “drainage work” aside from excluding “unregulated work.” Further ss 19, 19A and 19B SPDR are stages for the purposes of s 86(5) PDA. Section 86(5) PDA relates to the assessment of the work by the local authority. [104] Subject then to hearing further submissions on the point (I note the Respondent was provided the folders on the day of the hearing) it does not seem to me that ss 19, 19A and 19B of the SPDR limit the definitions in the PDA. Section 19A(a) of the SPDR may be relevant in determining whether a land application area only is a facility (see later discussion on the interpretation of this statute.) [105] In Folder 3, the Appellant submits that the Magistrate erred in failing to find him to be a “responsible person” for the purposes of s19B of the SPDR (see the definition in schedule 6 of the SPDR). Again my preliminary view is that these provisions relate to the assessment of the works by a local authority. I cannot see this limits the definition in the PDA. -- 15 of 21 -- 16 [106] In Folder 2 it is alleged by the Appellant that Mr. Denman’s statement that the licensing issues dated from 2013 is incorrect. I do not see the need to determine this issue. It may be relevant to Mr. Denman’s credit as any retrial. [107] In Folder 8 the Appellant alleges that the excavation, base preparation, craning in and backfilling of an onsite treatment plant does not require a licence. The Appellant refers to advice given to him by the previous director Mr. Harris. This will no doubt be the subject of evidence at any retrial subject to any lawful objection. [108] The Appellant also claims he has a video taken of the work which casts doubt on Mr. Denman’s evidence. Again this may be tendered (if properly proved) at any retrial subject to any lawful objection. [109] The Appellant also refers to other evidence which he could give which would cast doubt of the prosecution case. Again this evidence may be lead at any retrial subject to any lawful objection. [110] In Folder 6 the Appellant argues that AS 1546 and 1547 were not relevant and AS 3500 was the relevant standard. I have discussed the relevance of AS 3500 later in this judgment. The issues in the folder seem to relate primarily to the credit of Mr. Denman. This matter is appropriately left for a retrial. [111] In Folder 7 the Appellant in further submissions says the land application area is not covered by the definition in the PDA. I have dealt with this issue earlier. Should a retrial be ordered? [112] The Respondent conceded in oral argument that there do appear to be real issues as to the alleged admissions made concerning charge 2. The Appellant suggests that he did not make the admissions alleged and all he did was crane in the tank and put it in a hole. He submits that this is not drainage work. [113] The Respondent alleges that even if the Appellant is successful as to the ground relating to insufficiency of advice from the learned Magistrate there is still sufficient evidence to ground a conviction on charge 1. [114] I think the difficulty with that approach is that the Appellant still alleges the conversations he had with the officers as to charge 1 differed from those alleged and further the conviction on count 1 resulted from the acceptance of inadmissible evidence. [115] One does not know exactly what facts the Appellant will seek to lead at any new trial. Also if the pleading “on or about” is limited to the period around 7 June 2013, then the only work which may have been performed then was construction of the irrigation bed. There might be real issues on whether this treated sewage as appears to be required by 1 (a) of the definition of “on-site sewerage facility”. -- 16 of 21 -- 17 [116] Further the dates of the charges may be important another way. I note that the definition of “drainage” as at 1 November 2012 “meant” inter alia “an on-site treatment plant”. “Drainage work” also had a different definition to the March 2013 reprint. These differences may be significant because it is alleged that some of other work aside from the irrigation bed occurred some 6 months before. [117] In those circumstances I set aside the convictions on both charges. [118] The next question is whether a retrial should be ordered in the Magistrates Court under s225 (2) of the JA. It is not appropriate for the District Court to decide upon the issues of credit on the hearing of this appeal. [119] I now turn to examine the legislation. [120] The reprint of the PDA to be considered is the reprint as at 3 May 2013 and the SPDR as at 31 May 2013. [121] Part 6A of the PDA refers to general offences and division 1 offences about licences. Section 119 of the PDA provides: “Offences by persons not holding appropriate licence. A person must not perform, direct the performance of, or supervise, work for which a licence is required unless the person holds a licence that entitles the person to perform the work. Maximum penalty – 165 penalty units.” The elements of the offence are relevantly: (a) date and place (I note “on or about” means some period which has a reasonable approximation to the date specified- see R v Hartley [1972] 2 QB 1 at pp7D); (b) must not perform work; (c) for which a licence is required; (d) unless the person holds a licence that entitled the person to perform the work. [122] The particulars of each charge were that the defendant performed on-site drainage work namely installation of an on-site sewerage facility, a licence was required for that work and he did not hold such a licence. [123] There are also some exemptions contained in s 121 of the PDA. This section provides: (1) A person does not commit an offence against section 119 or 120 if the work mentioned in the section is— (a) only the excavation or backfilling of trenches, or other work of an unskilled nature; or (b) performed by a designated person, under the direct supervision of a licensed person for the work; or -- 17 of 21 -- 18 (c) drainage work performed under the direct supervision of a person holding a drainers licence; or (d) the installation of all or part of a greywater application area for a greywater use facility. [124] As I understand part of the Appellant’s argument, he contends that one of these exemptions applied. This obviously enough is a question of fact for any retrial. [125] Key issues in this case are whether the work carried out by the appellant was something in respect of which a licence was required and whether the appellant carried out “drainage work” on each of the properties [126] The term “licence” is defined in the Dictionary of the Act as “licence means a licence in force under part 3”. [127] Provision for licensing is dealt with in Pt 3 of the PDA. Section 34 of the PDA provides inter alia that the Council may issue a drainer’s licence. Section 35(2) of the PDA provides that the holder of a drainer’s licence may only perform “drainage work” for which the licence is issued. Section 35(3) of the PDA provides “the holder of a restricted licence may only perform work as stated in the licence for plumbing, drainage or other work regulated under this Act.” [128] The appellant had a restricted licence enabling him to only “maintain an on-site sewerage treatment facility”. [129] Section 4 of the Plumbing and Drainage Regulation 2003 (“PDR”) provides: “Licence required for performing plumbing work and drainage work other than unregulated work. A person may perform plumbing work or drainage work, other than unregulated work, only if the person has a licence to perform the work.” [130] There is also an editor’s note to s 4 of the PDR which refers to both ss 35 and 119 of the PDA. [131] Needless to say the Appellant would not be guilty if the work he engaged in was “unregulated work” only but he would be if he carried out drainage work outside the scope of his licence (unless an exemption in s 121 of the PDA applied). The term “drainage work” is discussed below. [132] The definition of “unregulated work” is contained in the dictionary to the PDA. “Unregulated work means plumbing or drainage work prescribed under the Standard Plumbing and Drainage Regulation as unregulated work”. [133] The SPDR prescribes certain drainage as “unregulated work” in Sch 4 as follows:- “For sanitary plumbing and sanitary drainage -- 18 of 21 -- 19  Cleaning or maintaining ground level grates to traps on sanitary drains  replacing caps to ground level inspection openings on sanitary drains  maintaining an above or below ground irrigation system for the disposal of effluent from an on-site sewerage facility or grey water use facility.” [134] It will no doubt be a question of fact on whether the work carried out by the Appellant was “unregulated work.” [135] The dictionary to the PDA defines “drainage” as inter alia “means an on-site sewerage facility.” [136] “Drainage work” is defined as: “drainage work includes – (a) installing, changing, extending, disconnecting, taking away and maintaining drainage; and (b) on-site sewerage work.” [137] “On-site sewerage work” is defined as “means building, installing or changing an on-site sewerage facility, including, for example, building, installing or changing an on-site sewerage facility for testing purposes”. [138] An “on-site sewerage facility” is relevantly defined as: “1. …is a facility, other than an environmentally relevant on-site sewerage facility, installed on premises for – (a) treating, on the premises, sewage generated on the premises, and disposing of the resulting effluent – (i) on part of the premises (commonly called a land application area);or (ii) off the premises by common effluent drainage or by collection from a tank on the premises; or (iii) by using the effluent for the discharge of a toilet or for surface or sub-surface irrigation, if the facility is installed only for testing purposes; or (b) storing on the premises sewage generated on the premises for its subsequent disposal off the premises by collection from the premises…”. [139] The term “premises” includes buildings, other structures or land. [140] “On-site sewage treatment plant is a sewage treatment plant installed or to be installed on premises as part of an on-site sewerage facility for the premises.” -- 19 of 21 -- 20 [141] The term “installing” is not defined in the PDA. There were arguments below on whether there could be reference to the definition of the term installation contained in the SPDR. [142] In the dictionary to the SPDR it provides: (a) “installation see glossary”. (b) “glossary see section 5(2)”. (c) Section 5(2) of the SPDR adopts the glossary of terms in the Australian and New Zealand standard 3500.0: 2003. (d) Relevantly the standard defines ‘installation’ as ‘The construction of pipework and fixtures in position for service and use. The network of pipework and fixtures”. (e) The glossary of terms in the standard defines ‘fixture’ as ‘a receptacle with necessary appurtenances designed for a specific purpose, the use or operation of which results in a discharge into the sanitary plumbing or sanitary drainage installation.’” (f) A “sanitary drainage system” is defined in the standard as “An assembly of pipes, fittings and apparatus which is used to collect and convey and discharge from the sanitary plumbing system, together with discharges from fixtures directly connected to the drain, to the sewer. Usually located below ground level.” [143] The Respondent in further written submissions submitted: (a) The definition of “installation” in the schedule to the SPDR is irrelevant. (b) It is submitted that “installing” should be given its ordinary meaning. (c) It is submitted that the term “installation” should be regarded as a noun i.e. a completed network of pipework and fixtures. [144] The Appellant in further written submissions repeated his submissions as to the applicability of sections 19, 19A and 19B of the SPDR. I have discussed these sections earlier in the judgment. [145] The term “installing” in its ordinary meaning means i.e. “Place or fix (equipment or machinery) in position ready for use” (see Oxford Dictionary online). [146] It seems to me that in light of the facts there may be some ambiguity as to the meaning of “installing” and “facility”. There does seem to be an ambiguity on whether the term “installing” relates to the whole facility or part only and whether it relates to equipment installed for both treating and disposing or either treating and disposing . It may be that regard should be had to the SPDR and AS 3500. [147] In Project Blue Sky Inc v ABA (1998) 194 CLR 355 at [69] it was held that “the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.” (my underlining). The instrument should be viewed as a whole and the purpose of the statute may require the words to be read in a way that does not correspond with the literal or grammatical meaning (see [78]). -- 20 of 21 -- 21 [148] I note that section 32A of the Acts Interpretation Act 1954 (Q) provides that “definitions in or applicable to an act apply except so far as the context or subject matter otherwise indicates or requires.” It may also be the SPDR is part of the PDA (see s7 Acts Interpretation Act.) [149] The above principles of statutory interpretation will need to be considered by the Magistrate at any retrial. [150] The QCAT decision of QBSA v Smart Sewage Pty Ltd [2011] QCAT 425 and the QBT decision of QBSA v Tankworld Qld Pty Ltd [2001] QBT 180 in my view do not assist in the interpretation of the present Act. They related to a different Act and different definitions. [151] On charge 1 the facts, once lead in an admissible way, may prove that the Appellant at Sunnydene Road Chandler on or about 7 June 2013 installed an on-site sewerage facility as defined, he did not have a licence entitling him to do this and it was not unregulated work. It may be it can be proved none of the exemptions in s 121 of the Act apply. [152] On charge 2 again once lead in an admissible way, the facts may prove the Appellant at London Road Belmont on or about 20 June 2013 installed an on-site sewerage facility as defined, he did not have a licence entitling him to do this and it was not unregulated work. It may be that it can be proved none of the exemptions in section 121 of the Act apply. [153] In the circumstances I consider it appropriate for a new trial to occur. It is appropriate the matter to be remitted to the Magistrates Court in Brisbane for a new trial to be heard by a different Magistrate. [154] I strongly advise the Appellant to engage the services of a lawyer for the retrial. If he does not have the funds to pay for a lawyer he may care to approach the Bar Association of the Queensland Public Interest Clearing House for pro bono representation. Orders [155] For the reasons given I make the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The convictions are set aside. 4. The matter is remitted to the Brisbane Magistrates Court for retrial before a different Magistrate. -- 21 of 21 --