Austral Tree and Stump Services Pty Ltd v Gould - [2008] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
AUSTRAL TREE AND STUMP SERVICES PTY LTD & ANOR v GOULD
[2008] SASC 230
Reasons for Decision of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice David)
19 August 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal in private - permission to appeal against convictions refused - permission to appeal against sentences refused.
Native Vegetation Act 1991 s 26, s 38, s 39, s 40; Criminal Law (Sentencing) Act 1988 s 16, referred to.
Jiminez v The Queen (1992) 173 CLR 572; R v Clarke [2008] SASC 100, considered.

AUSTRAL TREE AND STUMP SERVICES PTY LTD & ANOR v GOULD
[2008] SASC 230
Full Court: Duggan, Nyland and David JJ

THE COURT: This is an application for permission to appeal from a decision of Vanstone J.
The first applicant is Austral Tree & Stump Services Pty Ltd (“Austral”), a company engaged in the business of land clearing. The second applicant is the sole director of the company, Mr Hosking.
The applicants were charged with clearing native vegetation contrary to s 26 of the Native Vegetation Act 1991 (“the Act”). They were found not guilty after a trial in the Magistrates Court. However, the prosecution appealed against the dismissal. Vanstone J allowed the appeal and convicted the applicants. They have applied for permission to appeal to the Full Court against conviction and the penalties imposed by Vanstone J.
Austral undertook to carry out clearing work on land which was being developed by a man named Steinert. The undertaking was arranged between Steinert and Austral’s Operations Manager, Macaitis. The relevant facts are set out in the following passage of the judgment of Vanstone J:
In early September 2004 Steinert contacted Macaitis to arrange for removal of vegetation including pine trees, vines and olive trees on property which Steinert, and others, were in the process of developing. Council approval had been obtained for building works on parts of the relevant land. Steinert’s evidence was that he believed (wrongly) that implicit in that approval was permission to remove native vegetation. Steinert and Macaitis were known to each other both socially and through work which Austral had previously performed for Steinert.
Macaitis said in the telephone call that Steinert detailed the type of work he required to be done, giving a description of the trees and indicating the type of equipment he expected would be required. The vegetation mentioned was pines, olives and vines. It is common ground that no approval under the Act was required for that vegetation. Macaitis said that he asked whether there were any “significant trees” among those to be felled (requiring separate approval) and was told that there were not. He said he asked whether Steinert had the “necessary approvals” and was assured that he did. In another passage of evidence he explained that he there referred to any approvals which might have been required from public authorities or utilities.
While the work originally specified was expected to take more than a day, necessitating that the workers stay overnight, in a second conversation later in the day, Steinert advised that the pines would now be removed by an excavation contractor and the balance of the work would be completed in a day.
Because of the confidence which Macaitis had in Steinert’s advice about the nature and scope of the job, he did not find it necessary to inspect the location and it was agreed that Steinert would direct the crew at the site.
On the appointed day a team of three attended the property and met Steinert. The men took instruction from him as to what to do. The work was quickly completed. Steinert said that as the bulk of the day remained, he took the men to another area and directed them to cut down the eucalypts, the subject of the charges. Steinert could not recall if the men asked him if he had approval to remove the eucalypts. He said that had he been asked that question, he would have replied in the affirmative. Later in the day Steinert telephoned Macaitis and told him that the job had been completed to his satisfaction and the team were on their way home.
It is not in dispute that native vegetation was cleared contrary to the Act. Steinert, who was also charged, pleaded guilty to the offence.
The following sections of the Act are relevant for present purposes:
38 -   Vicarious liability
For the purposes of this Act, an act or omission of an employee or agent will be taken to be the act or omission of the employer or principal unless it is proved that the act or omission did not occur in the course of the employment or agency.
39 -   Offences by bodies corporate
Where a body corporate is guilty of an offence against this Act, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence.
40 -   General defence
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
The Magistrate found that the offence charged was one of strict liability. There is no challenge to that classification.
The Magistrate was asked to consider whether the applicants could avail themselves of the defence under s 40 or, alternatively, the common law defence of honest and reasonable mistake.
A question arises whether s 40 impliedly excludes the common law defence. However, the Magistrate decided that it was necessary to consider whether the applicants could avail themselves of either defence.
The Magistrate rejected the submission of the applicants that they should be acquitted by reason of the defence under s 40 or the common law defence. However she dismissed the charges on the following basis which was summarised by Vanstone J:
Ultimately Her Honour held that since the respondent corporation had contracted to remove pine trees, olive trees and vines, and because, once on site the team operated under the control of and at the direction of Steinert, the unlawful work fell “outside the terms of their employment”. Thus it was held that the prosecution was robbed of the assistance of s 38 of the Act and thence of s 39 as well, with the result that its case failed.
Vanstone J held that, in so deciding, the Magistrate fell into error as there was nothing in the evidence to suggest that the employees who undertook the work were acting other than in accordance with the terms of their employment. This approach by Vanstone J is not challenged by the applicants.
Instead, the applicants wish to argue that Vanstone J should have found that the Magistrate was in error in reversing the onus of proof in relation to the common law defence. According to the written submissions of the applicants, Vanstone J should have remitted the matter to the Magistrate for further hearing and determination of the defence of honest and reasonable mistake in accordance with the correct burden of proof.
The onus of proof in the context of the defence of honest and reasonable belief was discussed in Jiminez v The Queen[1] at 581 – 582. The majority said:
A statutory offence which imposes absolute liability is one which, in addition to excluding the requirement of mens rea, also excludes a defence of honest and reasonable mistake. In a well-known passage in Proudman v Dayman, Dixon J drew a distinction between mens rea as an ingredient of an offence and an honest and reasonable belief in a state of facts which, if they existed, would make a defendant's act innocent. If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts which, in the circumstances, would take his act outside the operation of the statute. (footnotes omitted)
(See also R v Clarke[2])
[1] (1992) 173 CLR 572
[2] [2008] SASC 100
In her reasons the Magistrate rejected the s 40 defence and the defence of honest and reasonable mistake in the following passage:
In so far as those two defences are concerned however, I am not satisfied on the whole of the evidence that the defendants can establish the second limb of either of those defences.
Section 40 places the burden of proving the defence on the defendant. However, that is not the position in relation to the common law defence. It is apparent that the Magistrate erred in the approach which she adopted in this respect.
This error was brought to the attention of Vanstone J during argument on the appeal. Her Honour commented that she did not think it could avail the applicants because:
Whatever else I find, I suspect I’ll find that the Proudman v Dayman defence was just a hopeless one from your viewpoint.
This was the approach Her Honour adopted in her reasons for judgment. She said:
Her Honour did not explain the way in which it was sought to apply the “honest and reasonable mistake of fact” defence. I would think that were there any relevant mistake, it would have to be one made by the team of three as they cleared the native vegetation: to the effect that relevant approvals were in place. Those men did not give evidence.
However, judging on the reasons of the learned magistrate, it might be that the mistake she was encouraged to consider was one made by Austral in advance of the attendance at the property, to the effect that relevant approvals were in place. At that stage, of course, it was not envisaged that the team would cut any native vegetation and in my view any such expectation could not qualify as a mistake for the purposes of the common law defence. In any event, Her Honour found that it was unreasonable for the first respondent to rely on an assurance from Steinert that relevant approvals were in place. Her Honour held, correctly in my view:
The business of this company is tree and stump removal. It behoves the company to ensure that it is aware of its legal requirements and that it complies with those requirements. The prosecutor led evidence, which established a simple telephone enquiry would have alerted the company to the potential problem.
In the applicants’ written submissions the basis upon which the common law defence was put forward was explained as follows:
The mistake of fact to which the defence applied may be categorised as either –
(a)That Austral’s work team was contracted to clear non-native vegetation which clearance, if it had been limited to that, would not have been an offence. As part of this categorisation, it was asserted that Austral management had an honest and reasonable belief that no native vegetation would be cleared and that, if the scope of works was to be varied on-site to include native vegetation, that it would not be done unilaterally and without notice; or
(b)That Austral’s work team would be clearing non-native vegetation and, in any event, it held an honest and reasonable belief that Steinert had all of the necessary approvals for the work to be undertaken by its work team.
In our view the contention that the common law defence was available on the facts of the case was properly rejected by Vanstone J in the passage quoted above. In the circumstances of the case the mistake would have to emanate from the employees. The only work in contemplation at the time they went to the property was the clearing of non-native vegetation. This changed when they finished early and were asked to clear native vegetation. The applicants did not turn their minds to these changed circumstances. The fact that, prior to the commencement of the work, they had a belief that no native vegetation would be cleared or that relevant permits were in place could not avail them when their employees agreed to undertake additional work which involved the clearing of native vegetation.
The Magistrate found that Mr Macaitis gave reliable evidence. There was no dispute about the facts and it was unnecessary to remit the matter to the Magistrate for consideration. Vanstone J was able to assess whether the common law defence was applicable on the uncontested facts. In our view, it is not arguable that she erred in reaching the conclusion that the common law defence was not available.
Permission to appeal against the finding that the applicants committed the offence is refused.
There is also an application to appeal against the sentences imposed by Vanstone J.
Her Honour convicted each applicant. Austral was fined the sum of $2,500 and Mr Hosking was fined $1,500.
According to the written submissions, Her Honour should have exercised the discretion under s 16 of the Criminal Law (Sentencing) Act 1988 and imposed penalties without recording convictions.
There were undoubted mitigating circumstances in the case and Her Honour gave effect to them by imposing moderate fines. We do not think it is arguable that a proper exercise of the discretion required resort to s 16.
Permission to appeal against sentence is also refused.