Arnold v Hickman
[2016] TASSC 55
•13 October 2016
[2016] TASSC 55
COURT: SUPREME COURT OF TASMANIA
CITATION: Arnold v Hickman [2016] TASSC 55
PARTIES: ARNOLD, Leigh Anthony
v
HICKMAN, Genevieve (Sergeant)
FILE NO: 385/2015
DELIVERED ON: 13 October 2016
DELIVERED AT: Launceston
HEARING DATE: 30 October 2015
JUDGMENT OF: Pearce J
CATCHWORDS:
Statutes – Acts of Parliament – Interpretation – Presumptions as to legislative intention – Not to alter common law right, privilege or doctrine – Requirement to prove criminal offence beyond reasonable doubt displaced.
Forest Practices Act 1985 (Tas), s 21(1A).
Aust Dig Statutes [1044]
REPRESENTATION:
Counsel:
Applicant: C Gunson
Respondent: H V Virs
Solicitors:
Applicant: J McDonald
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 55
Number of paragraphs: 35
Serial No 55/2016
File No 385/2015
LEIGH ANTHONY ARNOLD
v SERGEANT GENEVIEVE HICKMAN
REASONS FOR JUDGMENT PEARCE J
13 October 2016
On 11 February 2015 the applicant, Leigh Arnold, was found guilty by the then Chief Magistrate, Mr M Hill, of a breach of the Forest Practices Act 1985 ("the Act"), s 21(1)(c). The prosecution case was that the applicant caused trees to be harvested from land he owned in breach of the terms of a certified forest practices plan. He was convicted and fined.
The applicant moves this Court to review the finding by the learned magistrate that the charge was proved. For convenience, and with respect, I will refer to the former Chief Magistrate as the magistrate. All but two of the original grounds of the motion are abandoned. The remaining grounds each raise questions of law. Ground 1 challenges the magistrate's determination about the standard of proof to be applied to the charge brought against the applicant. Ground 6 puts in issue whether the terms of the forest practices plan said to have been breached are capable of sustaining the charge. Before further considering the grounds it is necessary to summarise the legislative scheme and the circumstances of the charged conduct.
The regulation of forest practices
The Act forms part of the system for the sustainable management of Tasmania's Crown and private forests. As it is directly relevant to this motion, it provides for management of forests, timber harvesting and other timber operations. Harvesting timber and clearing trees are "forest practices": s 3(1). The Act establishes the Forest Practices Authority ("the Authority"): s 4AA. One of the functions of the Authority is to issue and maintain a Forest Practices Code ("the Code"): s 4C(d). The Code prescribes the manner in which forest practices, including the harvesting of timber and clearing of trees, are to be conducted: s 31(1) and (2). It is an offence to harvest timber or clear trees on land unless a certified forest practices plan is in place for the land: s 17(4)(b) and (ba). A person who wishes to conduct forest practices must prepare a forest practices plan and apply to the Authority for it to be certified: s 18. Application for certification of a plan must be accompanied by the owner's written approval for the plan to be submitted to the Authority: s 18(4)(b). The authority may either certify or refuse to certify a plan submitted to it: s 19. The Authority may amend the plan by inserting conditions or restrictions to be complied with in the harvesting of timber or the clearing of trees: s 19(1A)(a). A person aggrieved by an amendment made to the plan by the Authority may appeal to the Forest Practices Tribunal constituted under s 34.
A certified forest practices plan authorises forest practices to be carried out on the land in accordance with the plan during its currency: s 20. However, an owner of land who causes forest practices on that land to be carried out in contravention of the plan is guilty of an offence: s 21(1)(c). The Authority is responsible for monitoring compliance with the Act and the Code and for taking enforcement action where it finds instances of non-compliance: s 4G(1).
The circumstances leading to the charge
At the relevant time, the applicant owned land called Fonthill Run B near Lemont in the midlands of Tasmania, east of Oatlands. He wished to selectively harvest timber from the land. He had a forest practices plan prepared, and applied to the Authority for it to be certified. The Authority certified the plan on 1 February 2011. Under the part of the plan dealing with conservation of natural and cultural values, the plan noted that all trees with a diameter greater than a specified measurement were to be retained as potential nesting habitat for Masked Owl and Swift Parrot. As a result, a specification was included in the plan in the following terms:
"Retain all eucalyptus species > 70 cm DBH within the entire operational area where practical and safe to do so. (The retention is across the block so target areas where retention is feasible and also tie the retention of potential nesting tress with achieving BA)."
The specification refers to "DBH". DBH is an acronym for diameter at breast height, and is considered below. The term "BA" means basal area, but that term is not relevant to the issues in this appeal.
Between 1 February 2011 and 5 April 2012, trees were cut down and removed from the applicant's land. After harvesting operations had been carried out the Authority conducted a field survey to check compliance with the certified forest practices plan. The surveyor reported that trees in the harvest area with a diameter at breast height of greater than 70 cm had been felled. A prosecution was brought by complaint against the applicant alleging that, by causing the cutting and removal of those trees, forest practices had been carried out in contravention of the plan: s 21(1)(c).
The Magistrates Court proceedings
By reference to the circumstances of this case and the terms of s 21(1), the prosecution was required to prove that:
· the applicant;
· owned land;
· a forest practices plan had been certified by the Authority;
· the plan was in respect of forest practices on the land;
· the plan was in force;
· the applicant caused trees to be harvested; and
· trees were harvested in contravention of the plan.
Proof of contravention of the plan required proof that:
· within the operational area;
· eucalyptus trees;
· with a diameter at breast height greater than 70 cm;
· were harvested; and
· it was practical and safe to retain those trees.
Before the magistrate, the applicant's ownership of the subject land and the certification, currency, force and application of the forest practices plan were agreed facts. It was also agreed that the applicant caused removal of eucalyptus trees within the operational area. The fact the prosecution was required to prove was whether trees with greater than the specified diameter at breast height were harvested. The prosecution evidence of the diameter at breast height of the harvested trees was circumstantial. The magistrate found that the accepted industry meaning of the term "diameter at breast height" was the diameter of the tree stem measured at a vertical height of 1.3 metres from the point of highest ground level at the base of the tree. Because the prosecution concerned trees which had been cut and removed it was necessary for the magistrate to make findings about the size those trees would have been when removed. The prosecution adduced expert evidence of modelling and calculation, based on the size of the stump of the tree, from which the magistrate was asked to infer the diameter of those trees at breast height at the time of harvest. At the conclusion of the hearing the magistrate found the charge proved. His Honour accepted the expert evidence adduced by the prosecution and was satisfied that a minimum of 85 trees were harvested which had a DBH greater than 70 cm. His Honour also found that the felled trees were "not felled for safety or other reasons provided for in the [forest practices plan]". In this motion, no issue is taken with his Honour's finding about the safety and practicality of retention of the trees, nor any other part of the plan specification. The motion is directed to the requirement of proof of the dimension of the harvested trees.
Ground 1
This ground concerns the standard of proof to be applied to a prosecution for an offence under s 21(1). The issue arises from the terms of the Act, s 21(1A) which provides:
"(1A) A person is guilty of an offence under subsection (1) if it is proven, on the balance of probabilities, that the person committed the offence."
The learned magistrate interpreted the provision to mean that each element of the charge against the applicant required proof on the balance of probabilities, and not proof beyond reasonable doubt. In his reasons, the magistrate said:
"As I said, one of the essential matters to be proved is the identity of the person who committed the offence together with all the essential ingredients of the offence. I see nothing in s 21(1A) to cause me to consider the legislative policy was to in some way divide up the essential ingredients of an offence and attribute to them differing standards of proof. In my view that construction makes nonsense of the section and is not what is intended. I see no need to refer to the clause notes to assist in what I see is a very straightforward matter of statutory construction. In my view the ordinary meaning of the words of that section mean that the prosecution have to prove all the essential ingredients of the offence on the balance of probabilities and I approach the task of deciding this matter on that basis."
The applicant submits that his Honour's construction of s 21(1A) is wrong. The applicant contends that s 21(1A) operates to require proof of the identity of a charged person on the balance of probabilities, but that the other elements of the offence must each be proved beyond reasonable doubt. The applicant submits that the standard of proof is of importance because the evidence relied on by the prosecution to prove the dimension of the harvested trees was circumstantial. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded: Doney v The Queen (1990) 171 CLR 207 at 211. Before the magistrate, competing expert evidence was adduced by the defence which, it was submitted, left open the reasonable hypothesis that the size of the harvested trees did not breach the plan specification. If, as the respondent submits, the civil standard applies to each element of the offence, then, as the joint judgment in Doney stated at 211, "the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved".
The applicant invokes the principle of statutory construction that Parliament is presumed to not intend to amend fundamental principles unless that intention is expressed in unmistakeably clear and unambiguous language. In Potter v Minahan (1908) 7 CLR 277 at 304, O'Connor J said:
"It is in the least degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness."
As it applies to certain fundamental principles, the High Court has affirmed and applied the passage just quoted on many occasions: Coco v The Queen (1994) 179 CLR 427 at 437; Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476 at 492 [30]; X7 v Australian Crime Commission [2013] HCA 29, 248 CLR 92; Lee v New South Wales Crime Commission [2013] HCA 39, 251 CLR 196. Those cases discuss a range of principles, rights and freedoms, some of which are properly characterised as fundamental. The principle relevant to this appeal is one of the few which can be properly characterised as one which Parliament would be unlikely to want to change, because it is fundamental to our system of justice. It is that criminal charges be proved beyond reasonable doubt: Malika Holdings v Stretton [2001] HCA 14, 204 CLR 290 at 298 [28]. The principle finds legislative expression in the Evidence Act 2001, s 141(1), although the general provision in s 141(1) will not affect the operation of the Act: Evidence Act, s 8; R v Gover [2000] NSWCCA 303, 118 A Crim R 8 at 14 [21]; Haddara v The Queen [2014] VSCA 100 at [69].
Thus, the question on this ground of the motion becomes whether the terms of s 21(1A) are so unmistakably clear and unambiguous as to demonstrate that Parliament has directed its attention to the provisions of s 21(1) and decided to abrogate the requirement that each element of an offence under that subsection, not just that the person charged was the person who committed the offence, need be proved on the balance of probabilities and not beyond reasonable doubt. The task of determining whether that legislative intention emerges begins with a consideration of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27. The Court is to give the words the meaning the legislature is taken to have intended them to bear. The meaning of the text may require consideration of the context, which includes the general purposes and policy of the provision in question, and the purpose of the enactment: Alcan at 47 [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, 250 CLR 503 at 519 [39]; Thiess v Collector of Customs [2014] HCA 12, 250 CLR 664. That latter principle is reflected in the statutory requirement of the Acts Interpretation Act 1931, s 8A, that "In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object", whether or not the purpose or object is expressly stated in the Act. Such purposes can be inferred from the statute itself.
According to the long title, the Act is an Act to, amongst other things, ensure that all forest practices are conducted in accordance with the Code. The Authority has a Board of Directors comprising seven persons, six of whom are appointed by the Minister according to the various statutory criteria listed in s 4A(1)(a) to (f). The other member is the chief forest practices officer appointed under s 4J. Each of the Ministerial appointments to the Board represent differing interests, including public administration and governance, natural resource management, sustainable forest management on private land and public land, community and local government interests and biological science or nature conservation. The objectives of the Authority are stated in s 4B. It is part of the State's "forest management system", the objectives of which are stated in Sch 7 as being "to achieve sustainable management of Crown and private forests with due care for the environment and taking into account social, economic and environmental outcomes …" while delivering other listed objectives including an emphasis on self-regulation, planning before forest operations and the Code. The Code prescribes the manner in which forest practices shall be conducted "so as to provide reasonable protection to the environment": s 31. The version of the Code I was given is dated 2000 and contains detailed provisions regulating access to forests, harvesting of timber, conservation of natural and cultural values and establishment and maintenance of forests. The section on conservation of natural and cultural values includes provision for conservation of flora and fauna, a general principle of which is that conservation of flora and fauna is assisted by the maintenance and restoration of habitat.
There are a number of offence provisions in the Act. The principal provisions are ss 17 and 21. I will return to consider those two sections in greater detail, but the following is a general list:
· s 17 creates an offence for carrying out certain activities without a certified forest practices plan;
· s 18B(1) and (3) create offences relating to trading in tree ferns;
· s 21 creates an offence for certain activities in contravention of a forest practices plan;
· s 25A creates an offence concerning lodgment of forest practices plan compliance reports;
· s 25B creates an offence concerning forest practices plan progress reports;
· s 40 creates offences protecting the exercise of powers of forest protection officers;
· ss 41 and 42 create offences for non-compliance with notices issued by a forest practices officer, or the forest practices tribunal under those sections;
· s 45 creates an offence for making false and misleading statements in certain documents.
Some attention is required to the terms of s 17. It is headed "Restrictions on harvesting timber, &c". The offence provision is subs (4) which prohibits certain activities, including the establishment of forests, the harvesting of timber and the clearance of trees, without a certified forest practices plan. A "responsible person" is guilty of an offence punishable by fine not exceeding 1000 penalty units if that person carries out, or causes or allows to be carried out, specified activities on land unless a certified forest practices plan exists. Subsection (1) specifies who is a "responsible person". Each of the following persons become a responsible person in relation to any land: the owner who has not assigned his responsibilities under the section, a person to whom the owner's responsibilities have been assigned, a timber processor with the right to process timber from the land, and a person who carries out, or causes to be carried out, forest practices on the land. Neither s 17, nor any of the other offence provisions in the Act, contains a provision altering the standard of proof equivalent to s 21(1A). Consequently, an offence under s 17(4), and every other offence created by the Act, must be proved beyond reasonable doubt.
While s 17 is directed to the circumstance where no certified forest practices plan exists, s 21 applies to the circumstance when a certified forest practices plan does exist, and requires compliance with the plan. It is instructive to set out the full terms of s 21:
"21—(1) Where a forest practices plan has been certified by the Authority in respect of forest practices on any land and is in force under this Act —
(a)any person who in carrying out any act, or in omitting to carry out any act, contravenes or fails to comply with the provisions of the plan; or
(b)any timber processor who causes forest practices on that land or any operations associated with forest practices on that land to be carried out in contravention of the provisions of the plan; or
(ba)any person who harvests tree ferns under the plan without affixing a tag in accordance with section 17(5A)(b); or
(c)any owner of land who causes forest practices on that land or any operations associated with forest practices on that land to be carried out in contravention of the provisions of the plan —
is guilty of an offence and is liable on summary conviction to a fine not exceeding 1 000 penalty units or a daily fine not exceeding 50 penalty units.
(1A) A person is guilty of an offence under subsection (1) if it is proven, on the balance of probabilities, that the person committed the offence."
A person may also attract liability vicariously for an offence under the Act. Vicarious liability is dealt with by s 47C in the following terms:
"47C—(1) If an offence is committed against section 17(4), (5) or (5B), 18B, 21(1), 21(3), 41(5) or 42(5) by a person acting as the agent or servant of another person, the other person is, without prejudice to the liability of the agent or servant, liable under that section in the same manner and to the same extent as if he or she had committed the offence personally.
(2) Notwithstanding subsection (1), it is a defence for the other person referred to in that subsection to prove, on the balance of probabilities, that the offence was committed by the agent or servant without the person's knowledge or consent and that the person took reasonable precautions and exercised due diligence to prevent the agent or servant committing the offence."
At the relevant time, a penalty unit was $130. Consequently, the maximum statutory penalty for a breach of either ss 17 or 21(1) was a fine of $130,000 and, for s 21(1), a daily penalty of $6,500.
In my view, the text of s 21(1A) strongly supports the correctness of the construction applied by the magistrate. Use of the words "on the balance of probabilities" unequivocally reveals the legislative intention to displace the requirement of proof beyond reasonable doubt to some extent. To my mind the words of the provision are, according to their ordinary meaning, clearly directed not only to the person but also to commission of the offence. Proof is required that "the person committed the offence". The context supports that construction. The operation of the provision cannot easily be confined as the applicant contends. The result of the applicant's suggested construction is that the section requires proof of the commission of an offence beyond reasonable doubt, but proof that the accused person was the person who committed the offence on the balance of probabilities. Section 21(1A) applies to each part of s 21(1). For each part, the issue of "identity" referred to by the applicant cannot readily be distinguished, as a discrete element, from proof of the charged act and whether the charged person has responsibility for the act. The timber harvesting plan itself will identify the owner, the person to harvest tree ferns and any timber processor. Because of the operation of s 21, read with s 47C, identity per se will rarely be in issue. For example, in the case of subs (c), proof is required that a person is the owner of land, that forest practices were carried out on the land, that the owner caused the forest practices to be carried out, and that the practices are in contravention of the plan. Thus, proof that a person committed the offence requires proof not just of ownership, but that the person caused or was vicariously liable for the person who caused the forest practices to be carried out. There is no discernible purpose to be served by applying a different standard to proof of ownership to proof that the owner, or his servant or agent, caused a forest practice to be carried out. Similar considerations apply to the other parts of s 21(1). In the case of subs (1)(a), proof is not only required of a person, but that the person carried out an act. In my view a construction which confines the operation of s 21(1A) to the so-called issue of identity is restrictive and difficult to apply, and clearly points away from the attribution of such a meaning.
The purpose of the Act supports the construction adopted by the magistrate. A key objective of the Act is sustainable management of forest with due care for the environment and environmental outcomes. Given the emphasis on self-regulation, the Act casts an onus on owners, timber harvesters and others conducting forest practices to play their part in maintaining the values reflected in the legislation and the Code. Part of the means of achieving those aims is to impose heavy penalties for breach, and to facilitate proof of offences by alteration of the standard of proof required in a prosecution.
The applicant contends that his construction of s 21(1A) is supported by extrinsic material. Subsection (1A) was inserted into s 21 by the Forest Practices Amendment Act 1994. The extrinsic material relied upon by the applicant is the clause notes to the 1993 Bill which resulted in the suite of forestry legislation amendments, including the 1994 amendment Act. Clause 11 of the notes concerns s 21. The clause notes are extrinsic material within the terms of the Acts Interpretation Act, s 8B(3), but may only be used as provided by s 8B(1) and (2). The notes relevantly read:
"The new subsection (c) is a flow on from the requirement of private land owners to have a timber harvesting plan in place (see Clause 9). Where somebody has contravened an approved timber harvesting plan, given the remoteness and the decision to self-regulate, it is almost impossible to prove beyond a reasonable doubt that a particular person carried out an action in contravention of a timber harvesting plan. For this reason, the standard of proof has been shifted to the civil standard - the balance of probabilities. This is set out in subsection (1A). A similar standard applies to, for example, summary prosecutions under the Customs Act."
Where appropriate, reference may be made to extrinsic material. However, such material can only be used as an aid to statutory construction, not for the purpose of identifying the subjective purpose or intention of the legislature: Certain Lloyd's Underwriters v Cross [2012] HCA 56, 248 CLR 378 at 388-390 [23]-[26]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71], 384 [78]. I would not give consideration to the notes because I do not see the words of s 21(1A) to be ambiguous or obscure, or that the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable. To the contrary, I see that the interpretation contended by the applicant leads to an unreasonable and ambiguous result. Even if regard is had to the notes, the terms do not cause me to depart from the clear meaning I have attributed to the words in the Act, when viewed in context and in light of the legislative purpose. The notes refer to industry self-regulation in remote locations, and point to the difficulty of proof in those circumstances. It would be contrary to common sense to exclude from the operation of such a provision the question of proof of whether an owner of land, subject to a forest practices plan, "caused" forest practices on the land, or whether that person's servant or agent caused forest practices on the land.
The applicant submits that had Parliament wished to have s 21(1A) operate as interpreted by the magistrate, it could have done so in simpler and clearer terms. I do not agree. It is correct that the provision could have been expressed differently. The submission assumes, incorrectly in my view, that the terms of the provision, as it was drafted, are not clear. I have concluded that the magistrate was correct to interpret s 21(1A) to require proof of each element of an offence under s 21(1) on the balance of probabilities. This ground fails.
Ground 6
Ground 6 reads:
"6 The learned Chief Magistrate erred in law by convicting the applicant in circumstances in which the prescription in the certified forest practices plan:
Retain all eucalyptus species > 70 cm DBH within the entire operational area where practical and safe to do so. (The retention is across the block so target areas where retention is feasible and also tie the retention of potential nesting tress with achieving BA.)
was unintelligible, incapable of being given any sensible meaning, and incapable of being precisely defined or accurately measured."
The applicant's written submission contends that the terms of the prescription in the plan are so vague and uncertain that "no person should be convicted of breaching it". This is a motion to review a decision of a magistrate. The Justices Act 1959, s 107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at 31 [46]. This ground asserts an error of law. It must be demonstrated that no magistrate could lawfully convict a person with having acted in contravention of the impugned condition because it is "unintelligible, incapable of being given any sensible meaning, and incapable of being precisely defined or accurately measured".
This ground raises an issue not raised by the applicant, or by the magistrate, at trial. It is an "elementary rule of law that a party is bound by the conduct of his or her case": Liftronic Pty Ltd v Unver [2001] HCA 24, 75 ALJR 867 at 875 [44], per McHugh J. The rule is not absolute, but the circumstances justifying an exception must be most exceptional: University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483. In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, the Court said:
"The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards."
These principles apply to criminal cases: Crampton v The Queen [2000] HCA 60, 206 CLR 161 at 172-173 [17]-[19], per Gleeson CJ; Fingleton v The Queen [2005] HCA 34, 227 CLR 166 at 218 [147]-[148], per Kirby J. Although those cases concern appeals to the High Court in criminal cases, the expressions of principle seem to me to apply equally to appeals from a magistrate to a judge exercising jurisdiction depending on identification of error of fact or law, and to appeals from a court of trial to the Court of Criminal Appeal exercising jurisdiction to remedy a miscarriage of justice.
The applicant's submissions are primarily directed to the term "DBH". The submission assumes, as the magistrate found, that the term means diameter at breast height and continues:
"What is breast height? It appears from the evidence that scientists considered that to be 1.3 metres, but it is defined nowhere in the Act, the regulations or the Forest Practices Code. Further, how is it possible to have a diameter of anything other than a circle? By necessary definition in basic geometry a diameter is simply a straight line passing through the centre of a circle and ending on its circumference.
Self-evidently the trunks of trees are not circles and as such it is submitted that they can not have a diameter. Were the prescription framed in terms of the measured girth of trees at a particular height it would most probably be enforceable, but the prescription is not so framed."
In my view, this submission should not be entertained. The ground does not depend on construction of a legislative instrument, the result of which may constitute a complete answer to the charge brought against him. The ground of appeal depends on examination of a term of a forest practices plan. In my view the impugned part of the plan is capable of being given a sensible meaning. The plan was prepared, signed and submitted by the applicant. Even if the impugned specification resulted from an amendment required by the Authority, it was not subject to an appeal by the applicant to the Tribunal. The work was commenced by the applicant in accordance with the plan. He made no complaint about the terms or meaning of the specification, or any difficulty in determining compliance before, during or after the work. The applicant did not submit to the magistrate at trial that it was not possible to attribute a meaning to the specification. The terms of the plan are expressed in what I would refer to as forest industry language. There was evidence at trial from forest industry experts. Based on that evidence, the magistrate attributed a meaning to the term DBH which I set out earlier in these reasons and noted, when expressing the meaning, that it was contended by the prosecution "without dispute". No issue was taken in this appeal with that characterisation. His Honour heard a great deal of evidence about whether the DBH for the harvested trees could be established. The experts attributed a common meaning to the term and applied it to their evidence, although there was a difference of opinion about whether the DBH calculated by the prosecution witnesses could be relied upon. It was not submitted at trial, to the magistrate or the prosecution witnesses, that the term could not be given a sensible or intelligible meaning. Just because the term is not defined in the Act, the regulations or the Code, does not mean that it is incapable of being given a meaning. Had the point been taken at trial then it would have been for the magistrate to determine whether the specification could have been given a meaning capable of being given effect to, and direct himself accordingly. It has not been shown to my satisfaction that evidence could not have been given which could have enabled the magistrate to make such findings as were necessary to give an intelligible, sensible and sufficiently certain meaning to the prescription, and prevented the point now raised from succeeding. That is sufficient to dispose of this ground.
In any event, the magistrate, having heard and observed all of the witnesses at trial, ascribed and applied a meaning to the prescription. I am satisfied it was a course open to his Honour and that he did not fall into error by doing so. This ground fails.
Result and orders
Neither ground of appeal is made out. The motion is dismissed.
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