Ball v Eric Child and Sons Pty Ltd

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DISTRICT COURT OF QUEENSLAND

CITATION:

Ball v Eric Child and Sons Pty Ltd & Anor [2025] QDC 81

PARTIES:

STEPHEN JOHN BALL

(Appellant)

v

ERIC CHILD AND SONS PTY LTD

(First respondent)

And
DOWN UNDER CONSTRUCTIONS PTY LTD

(Second respondent)

FILE NO:

1478/24 and 1479/24

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

12 June 2025

DELIVERED AT:

Southport

HEARING DATE:

11 April 2025, 8 May 2025

JUDGE:

Kent KC DCJ

ORDER:

1.       Appeals allowed on all grounds and the judgement below of acquittal set aside;

2. On the re-hearing conducted pursuant to ss 222 and 223 of the Justices Act1886 (Qld) the respondents are found guilty of the offence of carrying out assessable development without an effective development permit contrary to s 163(1) of the Planning Act 2016 (Qld).

3.       The parties are to be heard as to penalty.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST ACQUITTAL – where the appellant appeals against an order of the Magistrates Court dismissing complaints under s 163 of the Planning Act 2016 (Qld) – where the assessable development was the clearing of native vegetation protected by Logan City Council’s Planning Scheme 2015 – where the clearing was carried out by the first respondent at the request of the second respondent – whether there was some legal, factual or discretionary error

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the magistrate found that the evidentiary foundation for some of the expert opinion evidence was not properly established – where the magistrate found that evidence was infected by other inspections – whether the appellant had proved to the required standard that there was native vegetation included in the cleared vegetation

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE – where the magistrate found that the respondent was excused from criminal liability because of mistake of fact – whether the respondents were criminally responsible for any such acts given the operation of s 24 of the Criminal Code – whether the relevant act done was “with respect to any property” under s 22 of the Criminal Code such as to engage s 22 – whether in any case an arguable defence under s 22(2) was open on the evidence

LEGISLATION:

Criminal Code (Qld), s 7, s 22, s 24
Planning Act 2016 (Qld), s 163

Justices Act 1886 (Qld), s 222, s 223

CASES:

Ahwang & Anor v Slatcher [2021] QDC 40
Baker v Smith (No. 1) [2019] QDC 76
Burns v Redland City Council [2025] QDC 15
Director-General of the Dept of Land and Water Conservation v Greentree (2003) 131 LGERA 234
Fox v Percy (2003) 214 CLR 118
Garcia v National Australia Bank Limited (1998) 194 CLR 395
Giorgianni…

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Details
Case
[2025] QDC 81
Decision Date

CaseChat Overview and Summary

In Ball v Eric Child and Sons Pty Ltd, the appellant, Mr Ball, appealed against the decision of the Magistrates Court which acquitted the respondents, Eric Child and Sons Pty Ltd and Mr. Smith, of contravening s 163 of the Planning Act 2016 (Qld). The appeal centred on the clearing of native vegetation protected by Logan City Council's Planning Scheme 2015, an act carried out by the first respondent at the request of the second respondent. The central issues revolved around whether there was any legal, factual, or discretionary error in the magistrate's decision, the admissibility of expert opinion evidence, and the availability of the defence of honest and reasonable mistake of fact.

The court examined whether the magistrate erred in excluding certain evidence, specifically the opinion of Mr. Dench, a council officer with expertise in arboriculture, who asserted that native vegetation was present on the site prior to the clearing. The respondents argued that Mr. Dench's evidence was not credible and lacked a proper factual basis. However, the court found that Mr. Dench's qualifications and frequent observations of the site provided a sufficient foundation for his opinion. Additionally, other evidence, such as that from Mr. Alexander, corroborated the presence of native vegetation, making Mr. Dench's evidence admissible and pivotal in establishing the appellant's case.

Furthermore, the court considered the defence of honest and reasonable mistake of fact, as provided under s 24 of the Criminal Code. The respondents contended that they were excused from liability due to a mistake about the presence of native vegetation. However, the court held that the second respondent, given their involvement in a large construction project on the site, could not reasonably claim ignorance of the presence of native vegetation. The likelihood of their knowledge, combined with the clear evidence of native vegetation, led the court to reject this defence.

The court concluded that the appeals should be allowed on all grounds. It found that the appellant had proven beyond reasonable doubt that native vegetation was present, the area of clearing exceeded the required threshold, and there was no effective development permit in place. Consequently, both respondents were found guilty of the offence. The court ordered that the appeals be allowed, the previous acquittal set aside, and that the respondents be found guilty of carrying out assessable development without an effective development permit. The matter was remitted for a hearing on penalty.

Orders

Orders of the court

1. Appeals allowed on all grounds and the judgement below of acquittal set aside;

2. On the re-hearing conducted pursuant to ss 222 and 223 of the Justices Act 1886 (Qld) the respondents are found guilty of the offence of carrying out assessable development without an effective development permit contrary to s 163(1) of the Planning Act 2016 (Qld).

3. The parties are to be heard as to penalty.

Background

Background to the litigation

In Giorgianni v The Queen (1985) 156 CLR 473 at 487-488 the High Court said that:“no-one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender”. (emphasis added) Knowledge of the possibility, or even probability, of the essential elements of the principal offence is not enough; Giorgianni v The Queen at 506 to 507. It is necessary to identify the relevant knowledge or intention for liability as a party: R v Thrupp [2024] QCA 134 at [149]. In this case, no intention is an element of the charge of unlawful clearing and in such a case all the procurer need know is that the conduct constituting the offence is occurring or will occur; compare R v Licciardello (2018) 3 Qd R 206 at 217, paragraph [30]. Here, the essential facts were known – that there would be clearing of vegetation. The appellant submits this is sufficient. If this seems a low bar, it is important to bear in mind that the second defendant did have recourse to s 24 – if there was an honest and reasonable mistake as to relevant facts, the defence would apply. Moreover, s 22(1) is clear – ignorance of the law is no excuse. The various particulars which the magistrate found to be unproven to have been in the second respondent’s knowledge are said to be all matters of law, not fact. I am not sure that this is wholly correct as regards knowledge of the presence of native vegetation (the categorisation of vegetation in this way may be a mixed question of law and fact), however in my conclusion the inference is inescapable, as outlined above, that the vegetation which clearly existed – the quote was obviously for clearing something – included, in the circumstances, some native vegetation and that the second defendant knew this. The proposition that a business involved in a large construction project on this site (I was told at the hearing that the purchase price of the land was over $2m) and during this organised pre-construction clearing including accepting a quote (for $41,000) did so without (a) looking at the site and (b) knowing in any case that native vegetation would be inevitably present is so unlikely that it needs only to be stated to be rejected. This is particularly so given the warning of Mr Rice. The appellant succeeds on this ground. The result is that the second respondent is liable as a party to the offence.Conclusion In the circumstances outlined above my conclusions are that the appeals should be allowed on all of the grounds advanced. I am asked to exercise the jurisdiction of conducting a re-hearing on the evidence. My findings consistent with the determination of the grounds are that the complainant did prove beyond reasonable doubt that native vegetation was present on the site pre-clearing; the area of clearing exceeded 150 square metres (the site was about 25,000 square metres); the clearing did constitute assessable development under the Scheme and there was not an effective development permit in place. Thus the first respondent is found beyond reasonable doubt to have committed the offence in circumstances where neither s 24 nor s 22(2) of the Code operate to exculpate it; I am also satisfied to the required standard that the second respondent is a party to the offence as a procurer, s 7(1)(d) of the Code, and similarly is not aided by s 24 or s 22(2). Both respondents are found guilty of the offence. I will hear the parties as to penalty.

Evidence

Evidence Before The Court

The appeal is pursuant to a statutory right in s 222 of the Justices Act. Section 223 provides that such an appeal is generally a rehearing on the evidence. It involves a review of the record of proceedings below, subject to this court’s power to admit new evidence. Generally, to succeed, an appellant needs to show some legal, factual or discretionary error; see, for example, Tierney v Commissioner of Police [2011] QCA 327 at [26]. This court must make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the trial magistrate’s view; Rowe v Kemper [2009] 2 Qd R 247 at [3], also McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. It is convenient to deal with the grounds of appeal in turn.Ground 1 - The exclusion of the evidence of Mr Dench A central issue in the case was whether there was shown to be native vegetation, as defined in the scheme, present on the land prior to the clearing. The Council did not have to show that the site was entirely and exclusively vegetated with native vegetation or even that it was in the majority. It was sufficient to prove that there was some native vegetation on the site that was cleared: see Baker v Smith (No. 1) [2019] QDC 76 at [871]-[876]. Mr Dench’s evidence Mr Dench was a council officer who gave evidence about his observations of the area prior to the clearing. He had a degree in arboriculture, and his qualifications and experience permitted him to identify tree and flora species. He was familiar with the site because, in his role as a team leader of the Council’s illegal dumping task force, he passed the site frequently. The site was at 47-53 Meakin Road at Meadowbrook which is within Logan City. Mr Dench said he had driven past it regularly, almost for the whole of his career working for Logan City Council and more frequently in the four to five years prior to the relevant events. This frequency was, in his description, definitely weekly and almost every two to three days. He gave evidence that the vegetation included trees ranging in height between 12 to 25 metres, and the trees that were cleared comprised native vegetation. The expression of this opinion was based on his work as an arborist over the years. He could see that the trunks of the trees visible from the road were Eucalypt, Corymbia (which had also been found in 2007, see [103] below) and some Melaleuca, all of which were native genera and included native species. The visible canopies were also indicative of Eucalyptus. He said that he could visually observe about a half to three quarters of the site. He described it as largely a Eucalyptus forest.The Magistrate’s finding The appellant challenges the conclusion of the trial magistrate that the evidence of Mr Dench should be excluded. This was based on a finding that the factual basis for Mr Dench’s opinions was not properly established, having regard to the principles set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. These may be summarised as referred to by Heydon JA at pp 742-743, paragraph [85]:“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness's expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on assumed or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”

Decision

Reasons for decision

The respondents’ arguments in supporting the correctness of the magistrate’s ruling include, as noted above, that in his original statement Mr Dench had identified the native vegetation based on the inspection from the improperly obtained search warrant. His original statement did not make mention of the previous observations which he gave evidence of at the trial. This addition to Mr Dench’s evidence came only days before the trial commenced in April 2024, possibly after it was realised that there was a problem with the warrant. The evidence he gave of having driven down the area of Meakin Road, which was a cul-de-sac, in effect, hundreds of times (as he described in cross examination) is argued by the respondents to be not credible, although he was as mentioned the team leader of the Council’s illegal dumping task force. He explained that he would regularly patrol that length of road for public nuisance matters and illegal dumping. The relevant property stood out because it was one of the last remaining sites on the Meakin Road stretch, and because of the density and size of trees (T3-45 lines 1-7). More generally, the respondents argue that Mr Dench’s credibility has been seriously eroded such that his evidence should not be relied upon, consistent with the ruling at trial.Conclusion re: Ground 1 On this issue, my conclusion is that the appellant succeeds, having given due deference and weight to the conclusions of the trial magistrate but reaching my own conclusion as to the relevant facts on the evidence. The various criticisms of Mr Dench’s evidence, whilst some are certainly legitimate, must be considered in the context of the overall factual matrix of the case. He had relevant qualifications, had on any view of it observed the area on many occasions and was not found to be dishonest, albeit he may have exaggerated the number of times he had made relevant observations. Moreover, and in my view importantly, his evidence did not stand alone. As will be seen, there was other evidence from Mr Alexander – including, as discussed below, his commentary on the aerial photography and apparent homogeneity of vegetation in the area and the photographs of trees on the cleared site – establishing that there was native vegetation present on the site. Mr Alexander’s evidence does not suffer from the criticisms levelled at that of Mr Dench. There is also force in the appellant’s argument that essentially, eucalypts and other native vegetation are so endemic to south-east Queensland that – as mentioned above – in an area of remnant vegetation such as the one under discussion it defies common sense that there would be no eucalypts or other native vegetation present. As noted above, evidence suggests it had been cleared in the 1970’s; the vegetation including native species had therefore a time frame of 50 years or so to regenerate, which is consistent with the evidence as to the height of the trees. It may have been, as advanced in cross-examination, that beneath the extensive canopy shown on the images there was an understory of a “sea of lantana”. This does not alter the conclusion that native vegetation was inevitably present, as proven on the evidence as a whole. Overall, and with due respect to the magistrate’s advantage in hearing the evidence and her Honour’s conclusions, in my conclusion Mr Dench’s evidence did demonstrate a sufficient factual basis for his opinion to be admissible. Moreover, as set out below, it is inescapable that the appellant established beyond reasonable doubt on the evidence that there was some native vegetation on the site prior to its being cleared. The challenge to the admissibility of Mr Dench’s opinion fails and thus this ground of appeal succeeds.Ground 2 – The failure to accept the evidence of Mr AlexanderThe nature of the evidence

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.