Benson v Matthews [2004] QDC 506

DISTRICT COURT OF QUEENSLAND CITATION: Benson v Matthews [2004] QDC 506 PARTIES: ERIC GORDON BENSON Appellant v JOHN WILLIAM MATTHEWS Respondent FILE NO/S: Appeal D905/04; MAG66128/01 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 10 December 2004 DELIVERED AT: Brisbane HEARING DATE: 18 October 2004 JUDGE: McGill DCJ ORDER: The appeal is allowed, the conviction and order of the Magistrates Court are set aside, and in lieu thereof a verdict of acquittal is entered. CATCHWORDS: CRIMINAL LAW – Confessions and admissions – whether true – whether finding that statement not serious justified by evidence CRIMINAL LAW – Circumstantial evidence – whether reasonable hypothesis consistent with innocence excluded. COUNSEL: M D Martin for the appellant A N S Skoien for the respondent SOLICITORS: Crowthers for the appellant Shire solicitor, Pine Rivers Shire Council for the respondent. [1] This is an appeal from the conviction of the appellant after a summary trial of an offence under s 4.3.1 of the Integrated Planning Act 1997. He had been charged with breaching that Act by starting on certain land assessable development, namely construction of a golf course, without a development permit. [2] There was no dispute that the land in question was owned by the appellant at the relevant time. The relevant land is part of an area of land near Mango Hill which the appellant has owned since 1980.1 Part of the land owned by the appellant is an 1 Appellant p.267. -- 1 of 12 -- 2 existing nine hole golf course operated by a tenant of the appellant. Not much has been done with the balance of the land, although at times relatively small parts of it have been used for the growing of crops by tenants of the appellant.2 A strip of land across the appellant’s holding has been reserved for the mythical3 Redcliffe railway. [3] In late 1999 the tenant of the existing golf course sought from the Pine Rivers Shire Council, the relevant local authority, its attitude to the use of some of the appellant’s land for an 18 hole golf course. The appellant gave his consent to this application. There was some dispute about this at the hearing. The prosecution did not produce the actual application, but put in evidence as Exhibit 3 a document which on its face is “supporting information to the current application to relocate the Mango Hill Golf Course.”4 The Council minutes referred to the application as that of the appellant, and the letter from the Council in response to the application was sent to the appellant: Exhibit 4. On the other hand, the golf course tenant, Mr McKenzie- Ross, was called and said that it was his application to the Council (p.248) although the appellant had signed the document in order to consent to the application: p.256.5 It may be that it was the appellant who actually drew the sketch which was put in with the application, and is now part of Exhibit 3: p.289. It is not clear that this conflict was resolved by the magistrate, and I do not think it matters. In December 1999 the council indicated it did not favour that use of the land: Exhibit 4. [4] There is no doubt that in the latter part of the year 2000 the appellant began doing something on his land. There were substantial earthworks undertaken, involving clearing large areas of the land, some excavation and some filling, and the construction of drains on the land.6 The land is fairly low lying and fairly close to the coast at Hays Inlet, and has a water table which in its natural state lay close to the surface.7 The appellant did not have a development permit to construct a golf course, and accordingly if that was what he was doing he had started assessable development without a development permit in breach of s 4.3.1 of the Act. Because of the way in which the complaint was framed and particularised, the charge would only be made out if the appellant had been at the relevant time engaged in the construction of a golf course. The real issue therefore was whether what the appellant was doing up to 14 February 2001 amounted to the construction of a golf course. [5] The hearing of the complaint commenced on 3 December 2001, and continued on 4 and 6 December, and 28 August 2002. It is not clear whether the trial concluded on that day, but I do not have transcripts for another day prior to the delivery of the decision of the magistrate on 28 November 2003. I take it that at least some of the delay was due to the fact that the file in relation to this matter was misplaced in the Magistrates Court: p.356. There was a hearing on sentence and consequential orders which was adjourned to 17 December 2003, when a sentence was imposed and consequential orders made under the Act. 2 Laird p.66. Two of these, Mr Mau and Ms Ali, were called: p.226, p.214. 3 See Courier-Mail 11 June 2004 p.4. 4 It was drafted for Mr McKenzie-Ross, but without the sketch: Exhibit 16. 5 The evidence of the appellant pp.288-9 was to much the same effect, but his evidence was rejected by the magistrate. 6 On 14 February 2001, Councillor Barlow, who was called, flew over the land in a helicopter and took a number of photographs, which became Exhibit 7: pp.89, 90, 94. 7 Zambelli pp. 105, 159. -- 2 of 12 -- 3 [6] When I embarked on the hearing of the appeal difficulties emerged. The transcript of the third day’s hearing was incomplete, although the parties were able to supply such of the missing pages as either party suggested were relevant. More significantly, at some point most of the exhibits had been taken apart for the purpose of photocopying, and not reassembled. Accordingly these exhibits consist of just a bundle of loose sheets. To some extent it is possible to work out, with reference to the transcript, what each exhibit is supposed to be, and in that way I think I have identified the various parts of each exhibit, although with some (particularly bundles of photographs, or where the exhibit consists of more than one document) it is very difficult to know whether I have identified all the parts of the exhibit. It is not helpful for a file to be left in that state. [7] The submission on behalf of the appellant was that the evidence was not capable of showing beyond reasonable doubt that the appellant was building a golf course, and that the reasoning of the magistrate had not properly identified that issue. Whether or not the magistrate accepted the evidence of the appellant as to his purpose in undertaking the works, there was no sufficient evidence that the works were being undertaken for any other purpose, and in particular were being undertaken specifically to build a golf course rather than anything else. In effect, the magistrate had treated her rejection of the evidence of the appellant as strengthening the case against him. Findings of the magistrate [8] The magistrate found that there had been substantial works undertaken on the land “involving clearing of large areas of the subject land, alterations to the topography of the land by excavation and filling and the construction of a network of drains on the subject land. These earthworks had resulted in the removal of soil from emersion in the water table by digging and lowering of the water table so that acid sulphate soils have been exposed and acid had been created.” (Page 4). [9] At the top of page 5 the magistrate formulated the issue in these terms: “The issue then, what was the purpose of these works?” Reference was then made to the respondent’s case, and to the appellant’s case. The magistrate, after noting that it initially appeared a challenge to prove that the works undertaken were for the purpose of constructing a golf course, made a finding beyond reasonable doubt that that was the purpose of the works. The reasons for that conclusion were then set out, and may be paraphrased as follows: 1. The appellant made an applicant to conduct “those very works on his land.” 2. The works the subject of the complaint commenced after that application had been rejected by the council. 3. The appellant’s attitude was that he required a return for his investment in the land which he had owned for 20 years. 4. The works were adjacent to another golf course. 5. The nature and extent of the works. -- 3 of 12 -- 4 6. The drainage was on the evidence not required because of run-off from the adjoining development, or to prepare the land for agricultural use. 7. The extent of the earthworks was not consistent with agricultural use, particularly when the appellant knew that the disturbance of the earth would expose acid sulphate and thus render the land useless for growing anything at all. 8. The removal of trees showed that the works could not be preparation for paddocks and so forth. 9. The work itself bore great resemblance to work that was necessary in terms of the application made by the appellant or with his authority. 10. No agricultural use had in fact been undertaken in the area where the earthworks were carried on and agricultural purposes would never be undertaken in that area. Evidence of the admission [10] Apart from these matters, the appellant told one of the witnesses that he was constructing a golf course. There was evidence from one of the prosecution witnesses, an Environmental Protection Agency officer, Mr Zambelli, that in November 2000 he went onto the land with the consent of the appellant and had a conversation with the appellant about the works being undertaken there. Mr Zambelli said that he had been concerned from what he had seen that serious environmental harm was occurring, and he had administered a caution to the appellant, and that he had asked him if he had approval from the council: p.108. He continued that the appellant “basically said in substance, stuff the council. … I am getting no return for my … property. I had a letter from an executive officer of Pine Rivers Shire Council that says it’s a rural zoning as of right use. The council all believe that I’m making a turf farm, what in actual fact that will come out in the end is a golf course.” He said he warned the appellant not to tell him any further information as he would be obliged to pass it on to the council. [11] Under cross-examination he was asked whether anything had been said to him about an extension to the golf course and he agreed that it had not: p.163. He was then asked the question, “He did not even say a construction of a golf course. However, ‘what will be the end result will be a golf course’, not a construction of a golf course?” To that he replied (p.163 line 48): “That’s – okay. That’s the way I wrote it, but the way it was given, the Council think that there’s going to be a turf farm there for time immemorial, but what’s going to be started up is a – an extra nine holes of golf.”8 It occurs to me that this latter version is susceptible of the construction that he had an intention that the land would ultimately be used for a golf course, rather than that the purpose for which he was undertaking the current works was to construct a golf course; in other words, “I’m building a turf farm now, but my intention is that ultimately it will be converted into a golf course.” So construed, that in my opinion would not amount to an admission that he had up to that time commenced the construction of a golf course. 8 An extra nine holes of golf is not what was proposed in Exhibit 3, which was a new 18 holes of golf. -- 4 of 12 -- 5 [12] The appellant also gave evidence. The appellant admitted in his evidence-in-chief at p.286 that he told Mr Zambelli he was going to make a golf course out of it, and claimed that the reply was, “Oh that would be wonderful.” He said however that he was saying this just to bait him, or rather to bait the council, because he expected that what he said would be passed on to the council.9 He said he was annoyed with the council because so many of his applications to do things on the land had been rejected. In effect, he said the statement was untrue, and was said just to annoy the council. When it was put to him in cross-examination that he had said to Mr Zambelli that he was constructing a golf course his response was: “I’d very likely say anything to Mr Zambelli. Yeah. (Question) You agree you said that? – I probably did. I probably did.” (Page 346). It was then put to him that he said so in all seriousness and his response was: “No, definitely not. Not in seriousness.” When it was put to him in cross-examination that by doing this work he had commenced construction of a golf course, he denied it: p.341, p.352. He also denied that he was proposing to use the property as a turf farm, which he said was a stupid thing to say: p.328. [13] When the prosecution relies on an admission in order to prove a charge, it is necessary to consider whether the admission was made, and whether the admission was true, that is to say, whether the defendant actually made the statement relied on, and if so, whether when he made it he meant what he said.10 Ordinarily there is no real issue about the latter; the presumption is that a statement against interest is true, otherwise it would not be made. In the present case there was no real dispute the statement was made, but the issue was whether, when the defendant said it, he meant it. It would have been open to the magistrate to treat this evidence as in itself sufficient evidence to prove beyond reasonable doubt that what the appellant was doing was constructing a golf course, but only if the magistrate was satisfied beyond reasonable doubt that he made the statement, and that when he made it he meant what he said: McKay v R (1935) 54 CLR 1. [14] The magistrate’s reasons did not indicate that that statement was treated in that way by her. At p.7 she said in relation to this: “… Mr Benson had told Mr Zambelli that he was in fact constructing a golf course. Now, no doubt, as Mr Benson said, that was a joke but in my view, and I am persuaded, the truth lay below that joke. It was an ongoing joke between Mr Zambelli and Mr Benson, the defendant, and it is at that time and during that ongoing joke Mr Benson would say that he was going – it was his turf farm but, of course, there was never any suggestion before this court that the property would be used as a turf farm, and in addition Mr Benson well knew and had made statements that the land was not suitable and made statements in this court.” [15] This passage is not entirely clear, but for my purposes the crucial finding is that, “No doubt … that was a joke …” The position of the magistrate seems to have been that she was not satisfied that the appellant was to be taken seriously when he made that statement, but that she was satisfied by other evidence that “the truth lay below that joke,” that is to say, that the appellant was in fact telling the truth at that time even though he did it as a joke. This means she was not treating the fact that he said this as itself evidence that it was true. I think there is some significance in the fact that the admission was not referred to earlier when the magistrate was 9 See p.287 line 7, p.276 – 277. 10 Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143. -- 5 of 12 -- 6 apparently listing the reasons for finding the charge proved, but rather was in a part of the reasons where she was explaining why she rejected the evidence of the appellant. Clearly, it was not the case that the magistrate found the charge proved simply on the basis of the admission; it is not entirely clear that the admission was even treated as one of the list of features which she relied on as together justifying her satisfaction beyond reasonable doubt. This is of some significance when I turn to those features, and to a submission on behalf of the respondent, to which I shall return. Circumstantial evidence [16] None of the other matters referred to by the magistrate, and indeed relied on by the respondent before me, amounted to direct evidence that the appellant was constructing a golf course. There was no evidence from anyone who looked at the works who was able to identify those works specifically as the construction of a golf course. They do not look to me like a golf course. Turning to the list of specific factors identified by the magistrate, the first is some evidence that at that stage the appellant was interested in and sympathetic to the construction of a golf course on the land. I shall come back to the question of whether what was built was the “very works” referred to in the application. I have difficulty in seeing how the fact that the works were undertaken after that application had been rejected was a reason why what he was doing was constructing a golf course, rather than doing something else with the land.11 The same applies to the proposition that he was seeking some return from his land.12 That may well be true, but there are presumably lots of ways of obtaining a return from land other than by using it as a golf course. The fact that the works were adjacent to another golf course is not I think of any significance in itself,13 in circumstances where there was already evidence that the appellant was at least at one point interested in using the land for that purpose. It really added nothing to that. [17] The area covered by the works was much smaller than the existing nine hole course, and there was nothing in the nature of the works which pointed specifically to the construction of a golf course. The next proposition was that there was extensive drainage which was not required either to deal with run-off from the adjoining development, or to prepare the land for agricultural use. It is not at all clear that there was any proper evidence of this before the court. There was evidence that the appellant had complained about the run-off from the adjoining land,14 and perhaps the inference that any investigations did not support that complaint, because nothing was done in response, but that was all. There was evidence that draining the land was undesirable for agricultural use, because of its effect of releasing acid into the soil,15 but that was a specific problem which seemed to be dealt with elsewhere in the reasons. It is really not apparent to me that there was any proper basis for a conclusion that the drainage was not required to prepare the land for agricultural use,16 but even if that conclusion were justified, it provided no evidence that the 11 The construction did not start until at least six months later: Laird p.45. 12 He made the point in his letter Exhibit 15 in reply to Exhibit 4, and said he needed a golf course to do this. This was also some evidence that at that stage he was interested in having a golf course on the land, but that was all. 13 This would not be an appropriate application of the doctrine of noscitur a sociis. 14 Eg, Mr Laird, p.76-7; Mr Zambelli p.133 and note p.145 line 20. See also the appellant p.268. 15 Zambelli pp. 105, 129, 161. 16 Mr Zambelli conceded that the purpose of the channels was to drain the land: p.160. -- 6 of 12 -- 7 land was being used for the construction of a golf course rather than for some other non-agricultural use. [18] There was certainly evidence that after the appellant had dug a dam on the land the Environmental Protection Agency had been concerned about the effect of this on acid sulphate soil, which would release acid if no longer immersed in water. The officer from the EPA, Mr Zambelli, had spoken to the appellant about this when some earlier work was done and required him to undertake a remediation program for it: pp.103-5. There was some remediation undertaken, apparently involving the use of lime. Mr Zambelli’s evidence was that, prior to the time when the works in issue were undertaken, he had spoken to the appellant about the problem of the acid sulphate soil, and that he had told the appellant that the growing of crops on the land would not be sustainable because of the nature of the soil: p.129. [19] In effect the complainant’s case in relation to this was that, if the land were drained or if the acid sulphate soil were dug out from below the water table, acid would be released which would render it unsuitable for growing crops; the appellant had been told this; therefore he cannot have been intending to use the land which had had the soil dealt with in this way for the purpose of growing crops.17 There are three weaknesses in this argument. The first is that there was evidence that this was capable of remediation. The defendant called evidence from Mr Bruckner, an environmental consultant, that in January 2001 he had seen some acid soil on the land which had been effectively neutralised through the use of lime, and that liming of the soil was a sufficient form of treatment.18 This was not just evidence from an expert that the problem could be overcome, it was evidence from an expert who had been in contact with the appellant at a relevant time, so his view would therefore have been available to the appellant. [20] Even apart from this, it does not necessarily follow that the appellant believed what he had been told by Mr Zambelli. Mr Zambelli’s evidence was that (p.133 line 56): “On many occasions it was very difficult for Mr Benson to accept what I was saying in relation to the effect of the disturbance of the acid sulphate soil on his property.” At another point he said that Mr Benson treated the agency as a joke (p.149), and that “Mr Benson quite obviously thought he could dig up as much as he wanted and ameliorate accordingly (ie with lime).”19 In these circumstances the fact that Mr Zambelli had passed his opinion on to the appellant was hardly compelling evidence that the appellant believed that he could not use the land for agricultural purposes if it was drained, even if that were the true situation. [21] But apart from all of this, at best this was evidence that the appellant was doing something on the land other than readying it for agriculture. It was hardly compelling evidence, or indeed any evidence, that what he was doing was constructing a golf course. Indeed, if the effect of the acid sulphate soil was that the land was going to be unsuitable for use as, for example, a turf farm, because grass would not grow on it, it is difficult to see how it was going to be suitable for use as a golf course. I have no great personal familiarity with golf, but I understand that one would ordinarily expect a golf course to be covered in grass, something which 17 At best this argument applied to only part of the works. Mr Zambelli conceded that there was no particular problem with acid soil in the area parallel to the railway reserve: p.153. 18 See his report Exhibit 11; see also pp. 204, 207, 210. He was not cross-examined. 19 Zambelli p.142 line 54; see also p.144. Mr Zambelli did not agree with this, but that does not matter for present purposes. -- 7 of 12 -- 8 might be difficult to achieve if grass could not grow on the land because it was too acid. This process of reasoning may be part of a justification for rejecting evidence of the appellant that he was doing this work simply in order to prepare the land for growing crops, but it cannot be part of an affirmative case that his activity involved the construction of a golf course. [22] The same applies to the comment about the removal of trees; at best it is some evidence that he was not using the land for the purposes he was claiming, although even then in my experience the removal of trees has been fairly common practice with land used for agricultural purposes in Australia, at least in the past. But there are obviously lots of things one can do with land which has been denuded of trees other than the construction of a golf course. Indeed, it is not uncommon to have trees growing on a golf course,20 although not on the fairways or the greens. [23] The next reason given by the magistrate was, it seems to me, the crucial one, the supposed similarity between what was being undertaken here and the work contemplated by the earlier application which had been made to the council. Counsel of the respondent before me conceded that the finding that the work bore “great resemblance” to the work contemplated by this proposal must be based on a comparison between the sketch which was part of Exhibit 3 and the aerial photograph which is Exhibit 2. In my opinion a comparison of those two documents shows clearly, not only that there is a lack of any substantial similarity between the work contemplated in Exhibit 3 and what has been constructed, but that there had been substantial works constructed which were quite inconsistent with what was contemplated in Exhibit 3. [24] It is a little difficult to reconcile what appears in the sketch Exhibit 3 with what appears on the ground in Exhibit 2, although some assistance in this can be obtained by referring also to the planning diagram which is part of Exhibit 1 and a large aerial photograph taken in 1997 which shows the land before any of the disputed work was undertaken, and some of the adjoining features which appear in the sketch Exhibit 3.21 [25] The existing golf course can be seen on the land which is marked 15 on the sketch, and the tree line at the back of it identifies the boundary of the railway reserve. The creek running from under Anzac Avenue and around past some ponding can be identified; it then continues a somewhat roundabout route before joining a branch of what is shown as Saltwater Creek.22 The sketch shows what are presumably intended to be the greens and fairways of several holes; I can read numbers 9 – 16 on some of them, but no numbers on the others. Three of these are shown within a large loop of the creek after it leaves the ponds and before it comes to a small triangular pond which appears in the photograph and the sketch, but which is somewhat larger and more oval in Exhibit 2. [26] Turning to Exhibit 2, there has been apparently a new drain constructed around a roughly rectangular portion of land one end of which abuts the larger pond, and the original curved pond which also appears in the sketch. The area within this drain 20 The aerial photographs in evidence show some trees growing on the existing golf course: Exhibit 2. See also Burrup Exhibit 10, fourth dot point. 21 This is not obviously marked as an exhibit but it was with the exhibits so I will assume it was before the court. 22 This runs off Hays Inlet. -- 8 of 12 -- 9 has been cleared and filled somewhat. This is only a part of the larger area within the water course shown in the sketch, and seems to me to be entirely inconsistent with the construction of three holes of a golf course within that larger area. There was also fairly extensive clearing and levelling of land parallel to the railway reserve. On the sketch there are two holes of the golf course shown between the railway reserve and a broad bend of the water course, and one of these broadly corresponds with the location of this construction, although it does not coincide with it by any means. The second was at a slight angle to it, and there is nothing in Exhibit 2 which really could be identified as coinciding with or as an attempt to construct that particular hole as shown on the sketch.23 Nothing else which appears on the sketch seems to have been attempted in any of the works shown in Exhibit 2. [27] The sketch which was part of Exhibit 3 showed very little detail. It would seem to me that almost anything could have been built on the land without it being possible to say that it was deliberately built in accordance with that sketch, because there is virtually nothing defined by that sketch. But in any case, there is only one of the “holes” identified in that sketch which has any correspondence with the works shown in Exhibit 3, and that hole corresponds only in the most general ways with those works. Even that correspondence is really dictated by the fixed features of the land.24 The fairway is shown essentially parallel to the railway reserve, and the works which are shown in Exhibit 3 are also bounded on one side by the railway reserve. Anything constructed on that land which runs alongside the railway reserve is going to produce some semblance with the location of that fairway. There is nothing in any of the work shown in Exhibit 3 which I can identify as doing anything in respect of the rest of the holes shown in the sketch. [28] In my opinion not only does that comparison not tend to suggest that what the appellant was doing was constructing a golf course in accordance with the earlier proposal, it demonstrates to me that what was being constructed was plainly something different from that earlier proposal. The inference I would draw from a comparison of those two documents is that, whatever the appellant was doing, he was not building a golf course in accordance with the sketch which was part of Exhibit 3. That does not mean that what he was doing could not have been turned into a golf course of some sort, but that is not the issue. It was a matter for the prosecution to prove beyond reasonable doubt that what he was doing was the construction of a golf course. In my opinion there is nothing which can be seen in the aerial photographs which provide any support for that conclusion. [29] This is supported by a consideration of the evidence of another witness called for the defendant, Mr Burrup, a golf course designer and consultant: p.178. He had visited the site, and prepared a report which became Exhibit 10: p.181. In that report he expressed the opinion that the property did not resemble a golf course; the drains and ponds were not shaped in a style suitable for a golf course. The batters on the dam on the northern side of the property were too steep and would be unsafe for golfers and for machinery used to maintain a golf course. The removal of most of the vegetation in the filled areas was not consistent with the construction of a golf course. In oral evidence Mr Burrup said the land was, “not a golf course in appearance by any means”: p.179 line 49. He said he saw no preparation for the 23 There are two separate strips of prepared land, but they are close together, and the second is much closer to the railway reserve than the second fairway shown on the sketch. 24 A good deal of what appears in the sketch is in the category of fixed features of the land, rather than proposed works, and therefore irrelevant for the purpose of comparison. -- 9 of 12 -- 10 construction of a golf course: p.180. The drains had not been constructed in a way which revealed any golf course strategy in his opinion: p.182. He said at p.183 line 13, “I couldn’t identify it as a golf course construction site at this stage.” [30] In relation to the works that had been constructed parallel to the railway reserve, when it was put to him in cross-examination that they could very well be preparations for, or layouts of the fairways, his response at p.198 line 10 was: “Look, they wouldn’t be. They wouldn’t be the type of preparations that I’d do. … and that other golf course [designers] and people that construct golf courses would do.” At line 35 on the same page he was asked whether they “give you the impression as an expert golf course designer of being areas that could be – I can’t ask you to conclusively say – it could be designated as fairways?” To which he answered: “Yep. Well, you – you’d have to say, yes, they could be. … but they – could also be market gardens, too, and, you know … agricultural areas.” This is not much of a concession. It does not really detract from the point that Mr Burrup made earlier in his evidence, that the land was flat whereas a golf course should be undulating and shaped in a more interesting way.25 [31] The magistrate did not refer in her reasons to the evidence of Mr Burrup, which is a little surprising because he was the only person who could be described as an expert on the appearance of a golf course, and his evidence was relevant and plainly inconsistent with the proposition that the appellant was guilty of the offence charged. Neither his expertise nor his honesty was challenged in cross-examination. I have difficulty in seeing how she could properly arrive at the conclusion that the appellant was guilty of the offence without dealing in some way with that evidence. [32] In my opinion the only evidence of any significance was the evidence of the admission; apart from that, the only relevant evidence was that at some time before this work was undertaken the appellant had manifested an interest in the construction of a golf course on land which included the land where this work had been undertaken. But in view of the finding of the magistrate that the admission was said as a joke, that combination does not provide sufficient grounds upon which the magistrate could properly have been satisfied beyond reasonable doubt that the offence had been proved. The respondent’s challenge to a finding [33] Counsel for the respondent submitted that the finding that this statement was a joke was not consistent with the evidence, which was to the effect that it was only on later occasions when Mr Zambelli was talking to the appellant that Mr Zambelli had made a joke about some of the works being “fairways”. Mr Zambelli gave evidence of a light-hearted exchange to this effect during a visit on 4 December: p.120. But he had also given evidence that, on the day of the visit when the “admission” was made, when he first went to the property and asked the appellant for permission to enter the land the response was, “no, you can [go] and get … six coppers because that’s what you’ll need to hold yourself down.” (Page 107, line 2.) But he said the appellant had then said, “course you can matey, you can come on, you know that.” He followed the appellant onto the property, without difficulty. Obviously the earlier statement was not a serious statement of the appellant’s position or 25 See p.179 line 26. He was also cross-examined about the comparison between the sketch in Exhibit 3 and Exhibit 2. I doubt if his expertise was relevant to that comparison, which was not really a matter of expert evidence, but a matter for the magistrate. -- 10 of 12 -- 11 intentions. On Mr Zambelli’s evidence it was soon after this incident that the exchange occurred about his constructing a golf course. [34] Mr Zambelli gave other evidence which was relevant to the issue. He said at p.141 line 20: “Sometimes I didn’t know whether Mr Benson was being serious or joking to me.” In these circumstances, and given that the appellant asserted that the statement was a joke, in my opinion it would be difficult to conclude with any degree of confidence that it was a true admission, and in my opinion the appellant could not have been safely convicted on the basis of that alone. In the light of the evidence in the transcript, and not having seen the witnesses, I could certainly not make a finding, to the contrary of the finding of the magistrate, that the statement was not made as a joke. On the evidence, the finding of the magistrate, that it was a joke, was almost inevitable. [35] The magistrate placed a good deal of emphasis on her rejection of the evidence of the appellant, that he was doing the work for the purposes of agricultural use of the land. That was a course which was open to her, but the rejection of that evidence does not amount to evidence that what the appellant was doing was constructing a golf course. Formulating the issue as “what was the purpose of these works?” may have led the magistrate into this error. [36] The case could not succeed as a circumstantial case, or as a partly circumstantial case, because there was no evidence to exclude the hypothesis that what the appellant was doing was, although not an agricultural use of the land, something other than the construction of a golf course. The complainant’s case therefore ought to have failed. [37] I accept that if the works were undertaken as part of the construction of a golf course, it would not be a defence to show that the works were also capable of performing some agricultural or drainage function. But it would remain necessary to prove that the works were being undertaken as part of the construction of a golf course. The fact that the works were capable of performing some agricultural or drainage function would simply mean that one could not rely on the mere nature of the works as demonstrating that what was being undertaken was the construction of a golf course. In any case, there was no evidence that the mere nature of the works demonstrated that what was being done was the construction of a golf course, or even indicated that, and there was expert evidence that, at its very highest,26 the works were consistent with the construction of a golf course, although there was nothing about them which suggested the construction of a golf course in the ordinary way. That is completely inadequate as a basis for a prosecution for commencing to construct a golf course. Conclusion [38] In my opinion once the finding was made that the supposed admission was said as a joke, there was no evidence before the magistrate on the basis of which a tribunal of fact properly instructed could convict the appellant of the offence. There were compelling issues raised by the defence to which the prosecution had really no answer. The magistrate’s reasons suggest that there has been an error of law in the 26 This is more favourable to the prosecution than the interpretation that I would place on Burrup’s evidence. -- 11 of 12 -- 12 way in which the charge was considered. In all the circumstances, the appeal must be allowed. [39] The appeal is allowed, the conviction and order of the Magistrates Court are set aside, and in lieu thereof a verdict of acquittal is entered. The respondent must pay the costs of the appeal. I will invite submissions as to the costs of the trial. -- 12 of 12 --