Baker v Smith (No 2)

Case [2019] QDC 242

DISTRICT COURT OF QUEENSLAND

CITATION: 

Baker v Smith (No 2) [2019] QDC 242

PARTIES: 

MICHAEL VINCENT BAKER
(appellant)

v

BRIAN ARTHUR CONWAY SMITH
(respondent)

FILE NO:

4984 of 2016

DIVISION:

Crime

PROCEEDING:

s 222 Appeal

ORIGINATING COURT: 

Magistrates Court at Brisbane

DELIVERED ON:

4 December 2019

DELIVERED AT:

Brisbane

HEARING DATE: 

21, 26 June 2019

JUDGE:

Porter QC DCJ

ORDER:

Amended Notice of Appeal filed 5 September 2018 

1.   The conviction of the appellant on Charge 1 and Charge 2 of the Complaint sworn on 17 August 2013 be set aside;

2.   Charge 1 and Charge 2 of the Complaint sworn 17 August 2013 be dismissed.

 Amended Notice of Appeal filed 30 May 2019

3.   The order made on 20 March 2017 that the appellant pay a fine of $276,000 to the complainant within 3 months of the date of that order and in default to the State Penalties Enforcement Registry be set aside;

4.   The appellant is fined  $250,000 to be paid within 3 months of the date of this order;

5. The order made on 20 March 2017 that the appellant pay $17,471.01 by way of loss and damage pursuant to s. 88 Forestry Act 1959 (Qld) within 3 months of the date of that order be varied such that the amount be reduced to $4,704.05 (including GST) and the date for payment be varied to 3 months from the date of this order;

6. The order made on 20 March 2017 that the defendant pay $541,309.15 costs to the complainant pursuant to s. 157 Justices Act within 3 months of the date of that order be set aside;

7.   The appellant pay the respondent’s costs of the trial in the amount of $495,892.86 within 3 months of the date of this order;

8.   Order 2 of the orders made on 28 February 2017 be set aside;

9.   The appellant pay the respondent’s costs of the conviction appeal in the amount of $224,859.15 within 6 months of the date of this order;

10.  The Amended Notice of Appeal filed 5 September 2018 and the Amended Notice of Appeal filed 30 May 2019 are otherwise dismissed;

11.  I will hear the parties as to costs of the Second Notice of Appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – where appeal is brought under s. 222 Justices Act 1886 (Qld).

CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the learned Magistrate found the defendant guilty on all charges on 18 November 2016 – where the learned Magistrate awarded costs against the defendant on 20 March 2017 – where the defendant was not present in Court on 18 November 2016 – whether the finding on 18 November 2016 constituted a “conviction” for the purposes of s. 157 Justices Act – whether the “conviction” contemplated by s. 157 Justices Act is a formal conviction – whether the “conviction” contemplated by s. 157 Justices Act requires both the…

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AGLC
Baker v Smith (No 2) [2019] QDC 242
Case
[2019] QDC 242
Decision Date

CaseChat Overview and Summary

The case of Baker v Smith (No 2) involved an appeal by the appellant, Mr Baker, against his conviction and sentence by the Magistrates Court of Queensland. The appellant was convicted of unlawfully clearing land, and the court imposed a fine and ordered him to pay costs. The appeal centred on several legal issues, including whether the appellant could be convicted in absentia, the imposition of costs, and the jurisdiction of the court to make certain orders. The court was also required to consider the appropriate sentence and whether the trial was of special difficulty, complexity, or importance. The appeal raised questions about the interpretation of the Justices Act and the Sustainable Planning Act, as well as the admissibility of expert evidence and the weight to be given to it.

The court examined the legal principles surrounding the right of appeal, the nature of a conviction, and the circumstances in which costs may be awarded. It considered whether the finding on 18 November 2016 constituted a “conviction” for the purposes of the Justices Act and whether such a conviction required both the finding of guilt and the imposition of a penalty. The court also assessed whether the trial was one of special difficulty, complexity, or importance and whether the sentencing discretion should be exercised afresh. Furthermore, the court reviewed the admissibility and weight of the expert report concerning the environmental harm and the importance of general and personal deterrence. The court scrutinised the jurisdiction of the Magistrates Court to make orders under the Sustainable Planning Act and whether such orders should be made on appeal.

The court concluded that the finding on 18 November 2016 did not constitute a formal conviction under the Justices Act. It held that a conviction did not require both the finding of guilt and the imposition of a penalty. The court determined that the trial was not of special difficulty, complexity, or importance, and the sentencing discretion should be exercised afresh. The court admitted the expert report but gave it limited weight. The court also found that the Magistrates Court had jurisdiction to make orders under the Sustainable Planning Act and that such orders should be made on appeal. The court set aside the appellant's conviction and sentence, ordered a new sentence, and directed the appellant to pay costs to the respondent.

The final orders of the court were that the conviction on Charges 1 and 2 be set aside and dismissed, the original fine and costs orders be set aside, and new orders be made for a reduced fine, a new costs order for the trial, and a new costs order for the conviction appeal. The court also set aside an order made under the Sustainable Planning Act and directed the appellant to pay costs of the second appeal. The amended notices of appeal were otherwise dismissed.

Orders

Orders of the court

Amended Notice of Appeal filed 5 September 2018

1. The conviction of the appellant on Charge 1 and Charge 2 of the Complaint sworn on 17 August 2013 be set aside;

2. Charge 1 and Charge 2 of the Complaint sworn 17 August 2013 be dismissed.

Amended Notice of Appeal filed 30 May 2019

3. The order made on 20 March 2017 that the appellant pay a fine of $276,000 to the complainant within 3 months of the date of that order and in default to the State Penalties Enforcement Registry be set aside;

4. The appellant is fined $250,000 to be paid within 3 months of the date of this order;

5. The order made on 20 March 2017 that the appellant pay $17,471.01 by way of loss and damage pursuant to s. 88 Forestry Act 1959 (Qld) within 3 months of the date of that order be varied such that the amount be reduced to $4,704.05 (including GST) and the date for payment be varied to 3 months from the date of this order;

6. The order made on 20 March 2017 that the defendant pay $541,309.15 costs to the complainant pursuant to s. 157 Justices Act within 3 months of the date of that order be set aside;

7. The appellant pay the respondent’s costs of the trial in the amount of $495,892.86 within 3 months of the date of this order;

8. Order 2 of the orders made on 28 February 2017 be set aside;

9. The appellant pay the respondent’s costs of the conviction appeal in the amount of $224,859.15 within 6 months of the date of this order;

10. The Amended Notice of Appeal filed 5 September 2018 and the Amended Notice of Appeal filed 30 May 2019 are otherwise dismissed;

11. I will hear the parties as to costs of the Second Notice of Appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Hunter then further discussed with her Honour what she intended to be resolved at the hearing proposed for the next Wednesday. Her Honour makes plain that her intention was to try to deal with costs, sentence and reparation. Mr Hunter told her Honour that the complainant would not be ready to deal with those matters for some time because of the need to obtain evidence and so on. Her Honour then agreed to hear from Mr Hunter on when those matters could be dealt with at a hearing the next week.[9] There was then some discussion of the day upon which the matter would be further mentioned for that purpose. There was then this exchange about the issue of costs specifically:[9]18 November 2016, TS 1-6.9 to 7.34.BENCH: The idea was – my idea was to give you the decision today, and then perhaps there might be some conversations about costs.MR HUNTER: Yes.BENCH: Yes.MR HUNTER: Well, just so as I – just to be absolutely certain that I’m preserving my position: to the extent that your Honour’s given orders today, the prosecution formally apply for costs. And the question should in our submission be [indistinct]BENCH: You’re – yes. You have to apply once I’ve convicted. Yes.MR HUNTER: Well, I’m not sure that the prosecution do. But certainly the [indistinct] principle applies to the defence, and the - - -BENCH: That’s true.MR HUNTER: I’m just concerned that it might apply to the prosecution. So I - - -BENCH: If it applies to the prosecution, you’re applying today. Yes.MR HUNTER: I’m formally applying for costs.BENCH: All right. And we’ll adjourn - - -MR HUNTER: I just ask that the question be adjourned to get - - -BENCH: I’ll adjourn that question of costs.[Underlining added] The matter was left on the basis that on the next occasion Mr Hunter would report on when his client would be able to address costs, sentence and reparation. Save for this: when the matter of Mr Baker’s attendance at the next hearing come up, her Honour indicated that Mr Baker could appear by legal representatives but added “[a]nd Mr Baker, convicted, is at large”.[10] This shorthand expression was presumably meant to communicate that Mr Baker was permitted to be at large without bail pending the further hearing of the complaints contemplated by her Honour under either or both of s. 14A(1)(b) Bail Act 1980 (Qld) or s. 88 Justices Act. Interestingly, both provisions apply where the Magistrates Court adjourns the hearing of a charge. In each case it seems improbable that the sections would be construed so as to exclude the sentencing of a defendant from the scope of the hearing of a charge, particularly as there does not seem to be any other express power in either statute permitting a defendant to be at large pending sentence after being found guilty.[10]18 November 2016, TS 1-11.24. On 24 November 2016, Mr Hunter and Mr Sheridan appeared. Her Honour stated her intention to publish written reasons for her decision stated on 18 November. Her Honour put it like this: “On [18 November] the decision was given to find Mr Michael Vincent Baker guilty of all the charges on complaints 1, 2, 3 and 4 that were before the court”.[11] Her Honour and the representatives of both parties then agreed that the the purpose of the mention was to arrange time for the provision of submissions on costs, penalty and reparation.[12][11]24 November 2016, TS 2.29 to .31.[12]24 November 2016, TS 2.38 to .45.

Ratio Decidendi

Legal Principle Established

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