De Bray v Cohen [2008] QDC 276

DISTRICT COURT OF QUEENSLAND CITATION: De Bray v Cohen [2008] QDC 276 PARTIES: LORRAINE MARGARET DE BRAY (Appellant) v JOHN NORMAN COHEN (Respondent) FILE NO: Appeal D166/07 PROCEEDING: Appeal from Magistrates Court at Southport DELIVERED ON: 28 November 2008 DELIVERED AT: Southport HEARING DATES: 26 – 28 May and 20 – 23 October 2008 JUDGE: C.F. Wall Q.C. ORDERS: Appeal allowed; decision of the Magistrates Court to refuse the appellant’s application for costs set aside and in lieu thereof the complainant is to pay the appellant’s costs of the hearing in the Magistrates Court. CATCHWORDS: Appeal – Magistrates Court – prosecution by local authority – defendant successful – costs – whether defendant unreasonably declined an opportunity before charge was laid to explain defendant’s version of events – whether explanation could have avoided prosecution – whether defendant brought suspicion on herself – whether defendant should have been deprived of costs. LEGISLATION: Justices Act 1886 Sections 158(1) and 158A COUNSEL Appellant - Mr D H Denton SC Mr G R Allen Respondent - Mr C L Hughes SC Mr N S Skoien SOLICITORS: Appellant- Deacons Lawyers Respondent - Michael Sing Lawyers -- 1 of 14 -- 2 Introduction [1] This is an appeal by Lorraine Margaret De Bray against the decision of a magistrate at Southport on 8 March 2007 to refuse to order the complainant/respondent to pay Mrs De Bray’s costs of successfully defending a complaint laid against her. [2] As amended at the hearing, the complaint was in the following terms: Gold Coast City Council Interim Local Law 6 (Vegetation Management) Section 5(1) “The Complaint of JOHN NORMAN COHEN, Manager Health and Regulatory Services to [sic] GOLD COAST CITY COUNCIL of Surfers Paradise in the State of Queensland made this 12th day of February 2004, for and on behalf of the said Council, before the undersigned, a Justice of the Peace for the said State, who says that on a date between December 2000 and November 2003, upon land located at 220 Petsch Creek Road, Tallebudgera Valley in the State of Queensland which land is more particularly described as Lot 3 2 & 3 RP 168625 County Ward Parish Tallebudgera… LORRAINE MARGARET DE BRAY, as owner of the property did, in breach of Local Law damage, or cause permit to be damaged, protected vegetation (namely trees equal to or in excess of four metres in height and/or in excess of forty centimetres in girth DBH (Diameter Breadth Height) measured 1.3 metres above average ground level) contrary to section 5(1) 3 and section 30 24 of Local Law 6 (Vegetation Management) in such case made and provided: PARTICULARS 1. Approximately 97,100 square metres of vegetation have been damaged or destroyed on Lots 220 and 238 Petsch Creek Road, Tallebudgera. Based on a minimum average of 9 trees per 25 square metre area being protected vegetation within the meaning of the Local Law 6, this equates to an estimated total of 34,956 trees destroyed or damaged on the said properties. -- 2 of 14 -- 3 [3] The complaint was heard with an identical complaint against Maurice Joseph De Bray, the appellant’s husband and a complaint against Macefield Pty Ltd the latter alleging the offence occurred on Lot 2 only. Mr De Bray and Macefield Pty Ltd were found “guilty as charged”. [4] The prosecution alleged the widespread destruction of trees (protected vegetation) “caused by poisoning by or at the direction of Mr De Bray” and that Mrs De Bray was a party to that destruction (T 53, 318, 321 & 322). [5] Section 24(1) of Local Law 6 provides: “A person must not damage or permit to be damaged protected vegetation”. [6] Mrs De Bray was found not guilty and the complaint against her was dismissed for the following reasons (T 11): “There is no evidence she participated in the using of a pick or the application of any poison. I do not consider the fact that she gave her husband advice not to discuss matters to [sic] council officers as evidence of guilt. The fact that she was a director of the company at the time is not an implication of guilt. I do not believe that she was involved in a common purpose with her husband to destroy all of the trees and I do not believe that has been proved by the council in that respect.” The magistrate did not particularise what “the time” was. The magistrate’s decision appears to have been based on the fact that there was insufficient evidence to convict. [7] The appellant applied for costs. The magistrate refused the application for the following reasons (T 26): “I have considered all relevant sections of s 158(2)A(e) to (f) [sic] in respect of these proceedings and more particularly (e) and (f). In respect of paragraph (e), it reads as follows: ‘Whether the defendant has brought suspicion on himself or herself by conduct engaged after the events constituting the commission of the offence’ [sic]. -- 3 of 14 -- 4 And (f), ‘Whether the defendant unreasonably declined an opportunity before a charge was laid (1) to explain the defendant’s version of the events, or (2) to produce evidence likely to exonerate the defendants’ [sic]. The defence submission is that the prosecution was always going to take place. This, of course, is an assumption. The evidence before the Court is that detailed on page 324 on lines 1 to 10 of the transcript of trial. While a person is not obliged to give a record of the interview and a person has a right to silence, the defendant at that time had an opportunity to give an explanation and as a result in not giving an explanation and being owner of the property brought suspicion on herself. In the circumstances of this case, I am not satisfied to exercise my discretion [sic] and grant an order for costs in favour of the defendant, Mrs De Bray in respect of this particular matter.” [8] The relevant costs provisions of the Justices Act are ss 158(1) and 158A(1) and (2) which are in the following terms: “158(1) Costs on dismissal When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable. 158A Exercise of discretion in relation to an award of costs (1) Despite s 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made. (2) In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example – (a) whether the proceeding was brought and continued in good faith; and -- 4 of 14 -- 5 (b) whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and (c) whether the investigation into the offence was conducted in an appropriate way; and (d) whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and (e) whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and (f) whether the defendant unreasonably declined an opportunity before a charge was laid – (i) to explain the defendant’s version of the events; or (ii) to produce evidence likely to exonerate the defendant; and the explanation or evidence could have avoided a prosecution; and (g) whether there was a failure to comply with a direction given under s 83A; and (h) whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and (i) whether the defendant was acquitted on a charge, but convicted on another.” [9] “Public Officer” is defined in s 4 as including an officer or employee of a local government and therefore includes Mr Cohen, the complainant. [10] The “evidence detailed on page 324, lines 1 – 10” of the transcript referred to by the magistrate is in fact a reference to submissions made by Mr Hughes SC for the complainant when he said, commencing at page 323 -- 5 of 14 -- 6 Page 323 “The sixth matter is, she was present when admissions were made to council officers by Mr De Bray and related to that is her conduct in that regard.” Page 324 lines 1 – 16 “Firstly there is evidence that when Mr and Mrs De Bray made admissions she told him to be quiet. Second when Mr and Mrs De Bray made admissions she did not distance herself or take the opportunity to distance herself from such admissions or to disavow any knowledge of or connection with such admission. And the third matter of her conduct relevant in respect of the admissions is, as the evidence clearly indicated, the Council’s officers managed to lose their tape recording and their transcript of the proceedings. But Mrs De Bray had taped the record of conversation and indeed Mr De Bray confirmed in evidence that he thought they had a record of conversation. But there was a failure on the part of them to produce that record of the conversation. That can only be consistent with the proposition that what was recorded on the day was helpful to them. To their defence of these proceedings.” [11] No admissions were made by Mrs De Bray and the magistrate erred if he thought she had made any. [12] It is necessary to refer to the relevant evidence. [13] In a memorandum dated 24 June 2003, ex 21, Gordon Coutts, Local Law Officer, Gold Coast City Council, said: “The property was entered on prior agreement with Maurice De Bray on Thursday 19 June 2003 by Local Law Officers Gordon Coutts and James Brooks, and in the company of Environmental Assessment Officer Joe Hance. Permission was granted by Maurice De Bray to inspect the property. No new breaches of Local Law No. 6 were detected but a great number of trees appear to have died. A dozen trees were inspected closely and most appeared to have been poisoned. Trees were -- 6 of 14 -- 7 numbered and photographed. Poisoning was determined as cuts had been made by an implement, and marks on the trees were all consistent, generally between one and three on each tree. The trees were long dead and Joe Hance said it was impossible to determine when the trees had been poisoned. A great number of trees appeared to have been killed off in this way and would number in their hundreds. A formal interview was conducted in the De Bray house by James Brooks and myself with Maurice De Bray and his wife Kirsten [sic]. The interview was recorded on tape by Council officers as well as by Kirsten De Bray. Maurice De Bray admitted to having poisoned the trees prior too the initial investigation of a breach of Local Law No. 6 Vegetation Management in which Council successfully prosecuted (This was a reference to a prosecution in May 2001). At no time during the initial investigation was it mentioned that trees had been poisoned, or, for that matter, was there any reason to believe that damage to trees protected under Local Law No. 6 had been poisoned, as all investigations centred on the clear felling and removal of a significant number of trees in breach of a tree removal permit that had been issued to Mr De Bray. Mr De Bray stated that he has not damaged, poisoned, or removed any trees since the court hearing.” [14] In evidence Mr Coutts said (T 211 – 212): “Now, did you form a view on the 19th of – well, first of all, did you – tell us what happened when you arrived at the property in company with Mr Hance and Mr Brooks? -- I attended the property and asked permission to – to enter the property, which was given. We then voiced our concerns as to what was going on and asked if we could have a look at trees on the property… When you initially arrived, I take it you said you went to the house. Did you go to the house on the property? -- I don’t exactly recall whether – to the house or not. The conversation you had about inspecting the property, was that with Mr De Bray or Mrs De Bray or both of them? -- Mr De Bray. -- 7 of 14 -- 8 Right. And he gave you permission to inspect the property? -- Yes. Right. When you inspected the property, what – could you tell the Court what you saw? -- Quite a large number of significant trees had – had died or appeared to be dying. Not a lot of vegetation, by that I mean green leaves, on trees that did have any. And also, indications of where the trees had been – had been damaged by – by way of an implement. Did you form the view as to how those trees might have been likely to have reached that condition -- Yes, I did. And what was that view? -- That they had been intentionally poisoned. And what was your basis for forming that view? -- We’d been told that they had been poisoned by Mr De Bray and also that the marks on the trees were consistent with the other trees as to how they’d been damaged. So, you were present during a conversation where Mr De Bray said he’d poisoned trees? -- Yes. And do you recall who else was present at that time? -- Later on with a conversation in the house, Mrs De Bray was there as well. All right. Did Mrs De Bray say anything that you recall? -- I don’t recall.” [15] Mr Brooks gave this evidence (T 193): “Now, on the 19th of June 2003, can you just tell the Court, as best you can – dealing chronologically as best you can, with what happened on that occasion? -- We attended the property, request to enter the property was – was given. We then attended to the – to the residence – Mr and Mrs De Bray’s residence on the property. We then attended to an inspection on a – a hillside located at the rear of the premises. Yes? -- And conducted an inspection of – of the vegetation within that area. All right. Now, in respect of that inspection of the – that hillside was anybody – were one of the De Bray’s present with you for part or all -- 8 of 14 -- 9 of the time that you were conducting the site inspection? -- Yes, Mr De Bray was present. All right. Now, if I could just take you – I’m sorry. After the inspection on the property, what did you do next? -- We then attended to the – to premises where a conversation took place between myself, Gordon Coutts and Mr and Mrs De Bray. All right. Can I just ask you to go back in time, you said that after waiting for access to the property you attended at the residence initially. Who did you see the residence? -- Mr and Mrs De Bray. All right. Was there any conversation between either you or other officers in your company and Mr and Mrs De Bray at this time at the residence? -- Yes, there was. There was conversation relating to an explanation as to why we were there. Yes? -- And to what we – we requested to do. All right. More particularly, what as best you can recall was said to Mr and Mrs De Bray about why you were there? -- That we were received a complaint in relation to damage to vegetation on that property [sic]. All right. And a request was made for an inspection of the property? -- That’s correct. All right. Do you recall anything said by either Mr De Bray or Mrs De Bray in response to what you told them? -- During the initial conversation it was mentioned that Mrs De Bray informed Maurice that he didn’t have to say anything. Was the permission granted in respect of the inspection of the property? -- Yes. Later he said (T 197 – 198): “You said that you returned to the residence? -- Yes. Did you have any conversation with either Mr or Mrs De Bray, or both -----? -- Yes. ----- on your return to the property? -- Yes I did. All right. Do you recall what was said between you and the De Bray’s on that occasion? -- Yes, asked Mr De Bray of his knowledge -- 9 of 14 -- 10 of the damaged area and if he had conducted any activity within that area. Yes? -- Mr De Bray’s reply was yes, he had been within that area. And he had conducted some poisoning of the trees and foliage in that area. Do you recall Mrs De Bray saying anything in this conversation? -- No, I can’t recall. All right. Now, was the conversation you had recorded? -- Yes it was. All right. Who recorded the conversation? -- I recorded the conversation. Was the recording transcribed? -- Yes it was. All right. What, so far as you know, has happened to the – the recording? And the transcription? -- I’m led to believe it’s been misplaced. Were there – was there anybody else recording conversation on the 19 th of June at the residence? -- I believe Mrs De Bray also was recording the conversation at the time. Did she say anything about recording the conversation? -- She requested that she tape the conversation as well. Did you see any tape recorder, other than your own, during that conversation? -- Yes I did. All right. Did Mrs De Bray produce that? -- Yes.” [16] Finally Mr Hance gave the following evidence (T 101): “Now, on the day you were there in June 2003, were you present when there was any conversation with Mr De Bray about the death of the trees? -- Yes. Informal comments were – I think the local officers conducted a formal interview after I had left the property … Did Mr De Bray say anything in your presence about how the trees had died? -- When I indicated – I actually said it appeared that a number of the trees had been poisoned and he said, ‘Yes, that’s correct. I did that.’ And then later when Gordon and James and I came back from walking to the trees and assessing them up close, I indicated that it appeared that they’d been cut into with, what I call -- 10 of 14 -- 11 looked like geologist pickaxe or some tool similar and then some poison applied, and he said, ‘ Yeah, I did that.’” [17] In his submissions to the magistrate on 2 March 2007 Mr Hughes said (T 9 – 10): “There is one that I should specifically point to, and that is sub f, where the defendant unreasonably declined an opportunity before the charge was laid to explain her version of events, or to produce evidence likely to exonerate her. I should remind your Honour in that regard, that there was a finding of fact based on the evidence in your Honour’s decision, at paragraph 11, line 25, that she had given, in the presence of investigating council officers, she’d given her husband advice not to discuss matters with council officer – officers. In fact, your Honour, in making that finding said that you didn’t consider the fact that she gave her husband advice not to discuss matters to council officers, was evidence of guilt. But, of course, what she didn’t do was take the opportunity at that stage, to say, ‘Look, has got nothing to do with me.’ But, in effect, of course is what section – subsection 158A(2)(f) is all about. BENCH: And is it your submission that if she had given an explanation that she could have avoided prosecution? MR HUGHES: Yes. If she said, ‘It’s got nothing to do with me’ at that point, there’s every chance she wouldn’t have been pursued. She obviously could have taken the opportunity at that stage, to say, ‘Look, I’ve got nothing to do with the running of the farm’ if that was the case. ‘That’s all a matter for Mr De Bray.’” [18] The magistrate could make an order for costs in favour of Mrs De Bray only if satisfied that it was proper to do so. In deciding that it was not proper to do so the magistrate, encouraged by the complainant, said Mrs De Bray had an opportunity to give an explanation (presumably about the dead trees but it is not clear because the magistrate went into no detail) and because she as owner of “the property” didn’t, she brought suspicion on herself. It appears (though it is by no means clear from what the magistrate said) that the magistrate may have considered that on 19 June 2003 an opportunity was extended to Mrs De Bray to explain her “version of events” and she -- 11 of 14 -- 12 “unreasonably declined” to do so (s 158A(2)(f)(i)) and thereby “brought suspicion on herself” (s 158A(2)(e)). This chain of reasoning presupposes that Mrs De Bray had a version of events, was given an opportunity to explain that version, unreasonably declined that opportunity and for these reasons brought suspicion on herself. In my view the evidence fell well short of establishing these matters. In addition the magistrate made no finding to the effect that any explanation by Mrs De Bray (assuming one was required) “could have avoided a prosecution” (s 158A(2)(f)). In any event there was no evidence which would have permitted such a finding. [19] The effect of the evidence was that Mrs De Bray was present during a conversation in the house (Coutts) but he did not recall if she said anything. Mr and Mrs De Bray were informed that a complaint had been received in relation to damage to vegetation “on that property” and a request was made for an inspection of the property which was granted (Brooks). Mrs De Bray told her husband he didn’t have to say anything. He (Brooks) didn’t recall her saying anything else. [20] There was also evidence that Mr and Mrs De Bray were shareholders of Macefield Pty Ltd and 2 of 3 directors of the company and that the company owned Lot 2. The registered office of the company was on Lot 2 (ex 7) as was the home of Mr and Mrs De Bray. Mr De Bray also gave evidence that it was a family company used to acquire Lot 2 and that he and his wife controlled what “ it does” and “what happens with its assets” (T 281). Mr De Bray also gave an affirmative answer to a double barrelled question – “And you and your wife control what Macefield does. You control what happens with its assets, correct?” (T 281). Mrs De Bray was not asked to account for Macefield Pty Ltd or asked to offer any explanation in relation to the company or her role in its activities. [21] There was no evidence that Mrs De Bray had anything to do with what was done on the land or decisions about what was done on the land. [22] The magistrate effectively adopted the summary of evidence advanced by Mr Hughes. Incorrectly Mr Hughes referred to the fact that when Mr De Bray “made admissions to Council officers” (he made no relevant admissions of committing the offence of which he was later charged), that she told her husband to be quiet (she didn’t), the fact that she also made admissions (she didn’t) and the fact that when Mr De Bray made admissions she did not distance herself from them or disavow any knowledge of or -- 12 of 14 -- 13 connection with them (he didn’t purport to implicate her) and that she taped the conversation (so what). [23] In opposing costs Mr Hughes submitted that when she “gave her husband advice not to discuss matters with Council officers (that was not in fact what she said) she should have also said “look this has/its got nothing to do with me, I’ve got nothing to do with the running of the farm” and if she had said so – given an explanation – she could have avoided prosecution. There was no evidence that Coutts, Brooks or Hance asked Mrs De Bray for any and if so what explanation. Even if she could, in the circumstances, be said to have had an opportunity (not requested though) to say she knew nothing about what Council officers were there for she could not be said to have acted unreasonably in not saying anything. No allegations were made against her. I agree with the appellant’s submissions (paras 524 – 526) that on 19 June 2003 “the Council officers were undertaking a preliminary investigation following up a complaint” and that no allegations were made against Mrs De Bray and she would, as a result of what was said by the Council officers, have had no reason to believe that if she did not say something she may be charged with damaging protected vegetation. Nor were any allegations made against her after 19 June 2003 or any explanation for matters sought from her on any interview conducted with her. [24] The magistrate relied on s 158A(2)(f)(i) in concluding that s 158A(2)(e) had been established but the former first required at least a finding of unreasonableness on the part of Mrs De Bray and no such finding was made by the magistrate. It also required a finding that an explanation could have avoided a prosecution and no such finding was made. [25] Mrs De Bray was charged with damaging protected vegetation on Lots 2 and 3. She and her husband owned Lot 3 and Macefield Pty Ltd owned Lot 2. In refusing her application for costs the magistrate seemed to tie or link the fact of ownership “of the property” with the desirability at least that she give an explanation. She only owned, with her husband Lot 3. No such distinction was referred to or made by the magistrate. Further, ownership is not an element of the offence she was charged with. [26] The complaints against Mr and Mrs De Bray and Macefield Pty Ltd were not laid until 12 February 2004. Aerial photographs of the property were taken on 11 October 2003 (T 82), a further inspection of Lots 2 and 3 was undertaken by Council officers and by -- 13 of 14 -- 14 Mr Ison on 19 November 2003 and Mr Hance returned to the properties in January 2004 “to quantify the number of protected trees that had been destroyed” (T 105). No approaches to Mrs De Bray were made on any of these occasions. [27] I also agree with the appellant’s submissions (paras 518 and 519) that s 158A(2)(e) is more directed at conduct properly characterised as showing a consciousness of guilt rather than suspicion of the type found by the magistrate and that the evidence here did not, in any way, go that far. [28] For these reasons the discretion of the magistrate miscarried and there were no grounds to deprive Mrs De Bray of her costs. [29] The appeal is allowed and the decision of the magistrate to refuse the appellant’s application for costs is set aside and in lieu thereof it is ordered that the complainant pay the appellant’s costs of the hearing in the Magistrates Court. [30] I will hear the parties as to further consequential orders. -- 14 of 14 --