Brisbane City Council v Elliott

[2016] QMC 24

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Brisbane City Council v Elliott [2016] QMC 24

PARTIES:

Brisbane City Council
(Complainant)

v

Alan Elliott
(Defendant)

FILE NO/S:

00046228

DIVISION:

Magistrates Courts

PROCEEDING:

Hearing – Objection to evidence to be tendered

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

8 November 2016

DELIVERED AT:

Brisbane Magistrates Court

MAGISTRATE:

A.C. Thacker

ORDER:

The maps within Exhibit E of Colin Jensen’s certificate are admissible.

CATCHWORDS:

Admissibility of record produced by certificate

COUNSEL:

Mr Thomas instructed by Brisbane City Council

Mr Pope instructed by Derek Legal

Background

1. The defendant faces a complaint containing four charges of breaching section 7 (3)(a) of the Natural Assets Local Law 2003 by causing or permitting  four protected trees  to be interfered with, when that interference was not strictly in accordance with a permit issued by Brisbane City Council (“the council “) contrary to section 7(3)(a) of the Natural Assets Local Law (“NALL”).  It is alleged the property on which these trees grew was protected but the defendant had the trees felled by way of them being cut down at the base of the trunk. The defendant has entered a plea of not guilty and a trial of the complaint has begun.

Objection to evidence to be tendered by the defendant

1. Defence counsel has raised a preliminary point objecting to the manner by which the council seeks to produce evidence to the court. In particular, the defendant objects to the production of five maps showing the property. These maps are annexed as Exhibit E to the certificate of Colin Jensen signed 26 September 2016.

2. The first defence objection is made on the basis that while the maps are sought to be produced to the court by virtue of section 232 City of Brisbane Act 2010, the maps are not “a record” of the council within that section and so cannot be introduced into evidence by that mechanism.

3. I agree with Mr Thomas (when he submits at paragraph 19 of his written submission) that “there is no restriction on the complainant relying on various provisions concerning the facilitation of proof by evidentiary certificate.” However, such reliance cannot be used to perfect what would otherwise be a breach of first principles of evidence law.

4. The general rule related to material objects (such as the maps here) is that they may be produced as exhibits to show that they bear certain characteristics. To be relevant other evidence will be required to explain their origin and their relationship to the facts of the case as well as to verify their authenticity and accuracy. A map is a time-saving device but can only be admissible if the contents are proved.

5. Before any document is able to be tendered in evidence it needs to be authenticated through oral testimony, here the person who made the maps by taking the aerial photographs of the subject premises, it is submitted by the defendant.   The admissibility of the maps relies on it being either admissible pursuant to an exception to the hearsay prohibition (not an argument raised by either party); or admissible pursuant to a statute.

Reliance on City of Brisbane Act section 232

1. The complainant relies on City of Brisbane Act section 232 to allow the maps to prove themselves. Section 232 provides:

   (1) This section applies to a certificate that -

   (a) purports to be about the state of, or a fact in, a record of the council; and

   (b) purports to be signed by the chief executive officer.

   (2) The certificate is evidence of the matters contained in the certificate.

   (my emphasis added).

This section is therefore a clear exception to the hearsay rule but complainant counsel must show that the maps fall properly within the terms of this legislative exception. Do they?

1. Defence counsel submit that the maps are not a record of the council because the maps are simply not a “record” as defined by the relevant law, namely the Acts Interpretation Act 1954. Pursuant to that Act per schedule 1 -

   record includes information stored or recorded by means of a computer.

2. Defence counsel submit that the maps are not records but only information generated by the council’s computer program for the purposes of the hearing. He also explains that the maps are a compilation of information from a number of sources outside of the council but utilised by the council to generate the maps. This means, I think, that defence is pressing for the court to ensure that the chain of custody of the information or accuracy of the information on the maps is not displaced by the mechanism of the record. Seen this way, the method of keeping and then passing on or compiling the information on the maps cannot be made admissible evidence. In other words, this definition of “record” cannot be used to perfect evidence that is actually hearsay evidence and the creator of the information that went into the record (the maps) needs to be called to give the evidence. In other words, it is a record “kept” by the council but it is not “a record of the council” within the meaning of section 232. In this regard defence is, I find, correct that the maps are not made an exception to the hearsay rule by virtue of section 232.

Statutory exception to the hearsay rule

1. The complainant must be able to point to some statutory regime that supports the use of the maps despite they are in the traditional sense, secondary or hearsay evidence.

2. The relevant statutory framework that empowers the council “to do anything that is necessary or convenient for the good rule and local government of Brisbane” is provided per sections 11 and 242 of the City of Brisbane Act. This framework has enabled the council to pass the Natural Assets Local Law (“NALL”). In particular, Part 2 contains provisions relating to vegetation protection. The council has established control of interference with protected vegetation. It goes without saying, a tree is vegetation. Importantly, this control is established pursuant to a positive legislative duty on the council to establish and maintain a register of land on which there is protected vegetation. In this regard section 18 is extensive in its provision. It states:

   (1)       Council shall maintain a register of land on which there is protected   vegetation, recording –

   (a)       the location of such land by reference to the property description and   postal address, or by use of a map, including mapping based on an   electronic digital geographic information system; and

   (b)       further information, such as the type of protected vegetation.

   (2)       Council may rectify mapping anomalies.

   (3)       The register shall be open to inspection at the office of Council.

3. The words “mapping anomaly” are defined in the dictionary at schedule 4 to the NALL as follows:

   mapping anomaly means any disparity between vegetation actually present on a   parcel of land and vegetation indicated as being present according to a mapping layer on Council’s geographic information system, where that disparity is attributable to            cartographic constraints such as –      

   (a)        the scale at which mapping of vegetation has been carried out; and

   (b)       cadastral shifts.

4. The crux of the issue is defence counsel’s submission that the maps are not records of the council but clearly they are given this directive contained in section 18 NALL.

5. It is the duty imposed on the council and the framework established, and I might add maintained since NALL was passed in 2003 (including section 18 NALL) to enable that duty to be effected that is, in my view, the crucial factor that makes the subject maps “a record of the council” rather than merely information kept by the council.

6. Additionally, there are the section 40 provisions about evidence in court proceedings which state as follows:

   (4) In any evidence led by Council in any proceedings, a certificate by an authorised        officer stating the nature, protection status, or location of vegetation in any      proceedings under this local law, a Court may have regard to Council’s geographic          information system or to any map generated by Council’s geographic information    system, is evidence of the matters stated, until the contrary is proved.

   (5) In determining the nature, protection status, or location of vegetation in any     proceedings under this local law, a Court may have regard to Council’s Protected         Vegetation Register or to any map generated by Council’s geographic      information system. (My emphasis added).

1. These sections in the NALL together effect a framework managing evidence generated by Council’s geographic information system that amounts to evidence that is a record of the council and therefore admissible under section 232 – until the contrary is proved – as an exception to the general hearsay rule.

2. I find therefore, that the maps are admissible as prima facie evidence of the NALL protected vegetation categories over the subject property.

The certificate of Colin Jensen

1. The second defence objection relates to the certification of the maps by the chief executive officer of the council as “the authorised officer”, to make them admissible evidence before the court. While the defendant submits that the chief executive officer of the council is not the authorised officer for the purposes of certifying documents covered by section 40 NALL, he does not say why or elucidate further as to why section 40 NALL should take precedence when determining what the law requires for compliance.

1. On my investigation, I see section 40 is situated in Part 6 of the NALL related to enforcement and within Division 4 – Recovery of Expenses. The matters contained in section 40 are confusing as between ss(2) and ss (4) and (5) as logically there is little, if any part of the job requirements (as defined in ss (2) ) of an “authorised officer” that would position that person to be suitably qualified to certify as to matters the subject of ss (4) or (5). It rather looks like there has been a drafting error made in this section. Ultimately, it is of little relevance in this case, given the requirement that must take precedence given it is provided in the head Act - City of Brisbane Act at section 232. In the alternative, I find that in the absence of direct and clear instruction in the NALL, I rely on the clear instruction provided by section 232 City of Brisbane Act.

1. I notice that the Schedule 4 dictionary provides:

   Authorised person means an appropriately qualified person appointed by Council as       an authorised person under the City of Brisbane Act2010.

Colin Jensen asserts and signs the certificate attaching the subject maps as “being the Chief Executive Officer, Brisbane City Council”. Prima Facie, in that role Colin Jensen is taken to be able to sign the certificate. The certificate therefore has been signed in compliance with section 232(1) (b) of the substantive Act – City of Brisbane Act.

Conclusion

1. The Prosecution have produced the evidence in accordance with the law.

I ORDER –

The maps within Exhibit E of Colin Jensen’s certificate are prima facie admissible.