Dal Piva v Overland Corner Station Pty Ltd and Mitolo No. Scciv-02-296

DAL PIVA v OVERLAND CORNER STATION PTY LTD AND MITOLO
[2003] SASC 76
Full Court: Prior, Debelle and Bleby JJ

PRIOR J: The appellants were charged with clearing native vegetation contrary to s 26 of the Native Vegetation Act 1991. There was a third person similarly charged on the same complaint. That third person pleaded guilty to the charge, saying that his employer, the second appellant, Mr Mitolo, had employed him to dig a spur line for the purpose of laying irrigation pipes. He claimed that he was never instructed to clear any trees and that on the suggestion of another worker cleared trees to allow a pivot irrigation system to go around. Section 3 of the Act asserts that to clear native vegetation includes to cause or permit the clearance of native vegetation. The particulars in the complaint alleged that the third defendant caused the clearance and that the appellants caused or permitted it. The third person was convicted and fined $900.
The appellants put the prosecution to proof. The matter proceeded before another magistrate. After the sentencing of the third defendant, the prosecution indicated that it proposed to lead evidence that whilst acting in his capacity as an officer of the first appellant, the second appellant instructed the third person to clear the native vegetation the subject of the complaint. The appellants sought a stay of proceedings, claiming that it would be an abuse of process to permit the hearing to proceed against the advice received that the prosecution did not consider itself bound by the factual basis upon which the third person had been sentenced. The appellants submitted that it was unconscionable for the complainant to accept a set of facts on the third person’s plea and then seek to advance a factual basis inconsistent with those facts earlier accepted and acted upon for the purpose of sentencing the third person.
Counsel for the complainant indicated that subsequent investigation had revealed that the third person had entered his plea on a less than full and frank disclosure of the true facts. The magistrate said that, in his opinion, it was contrary to the interests of justice for the court to be required to sentence the very person who undertook the clearance on the accepted basis that he had no instructions from his employer as to the manner in which he was to clear the land, then be asked to find that the employer, in fact, gave such instructions. The magistrate indicated that it would be an abuse of process for the complainant to proceed in an inconsistent manner. Nevertheless, he declined to order a permanent stay of the proceedings, taking the view that it would be appropriate to make an order restraining the complainant from acting inconsistently. He therefore ordered:
“that the complainant be restrained from calling evidence or making submissions which are inconsistent with the statement of the agreed facts outlined to the magistrate who sentenced the third defendant on 30 March 2001.”
As a result of that order, the complainant did not lead evidence to establish that the appellant Mitolo had admitted that he had instructed the third defendent to clear vegetation on the land. There had been no formal statement of agreed facts tendered before the first magistrate. The second magistrate required the complaint to be amended before him, to confine the particulars to an allegation that the present appellants permitted the clearance of native vegetation.
The so-called restraining order of the magistrate can only be regarded as a ruling in the course of the hearing. There is no power in a court of summary jurisdiction to issue restraining orders other than those expressly identified in Part 4 of the Summary Procedure Act 1921[1]. Any appeal from it had to await the conclusion of the hearing[2].
[1] Summary Procedure Act s 99, s 99AA
[2] Police v Dorizzi (2002) 84 SASR 416; Holder & Ors v Lewis [2003] SASC 397
On appeal to this Court, a single judge ruled that the prosecution was not prevented from proceeding to prove the charge against the two appellants by reliance upon facts different from or, indeed, inconsistent with that put before the magistrate who sentenced the third person on his plea of guilty.
The appellants complain that the single judge has erred and that the present respondent was not entitled to challenge the magistrate’s ruling. The appellants maintain that they could not be sentenced upon a basis inconsistent with that upon which they were convicted.
There are further grounds of appeal argued in the alternative. They complain of findings made by the single judge. It is said there was either insufficient evidence to found such findings or that the judge erred in finding or inferring certain facts and relying upon them to set aside the appellants’ sentences when there was no, or no sufficient, evidence of those facts.
The appellants’ counsel relied upon the decision of the High Court in R v De Simoni[3]. I do not find that case as an authority to support the view taken by the magistrate and maintained on appeal as to the factual circumstances in the hearing having to be consistent with the facts acted upon when the third defendant pleaded guilty.
[3] (1981) 147 CLR 383 at 389
I agree with the Solicitor-General that a failure to contest every submission or basis for a plea by a co-defendant has no binding effect in a subsequent hearing or trial when the prosecution is put to proof. The single judge was correct in holding that the magistrate erred in sentencing the present appellants by treating the facts of the third defendant’s plea as binding upon him when those facts were not a matter of evidence before him. I also agree that the material before the magistrate called for the appellants to be sentenced on that material, not the facts of the third person’s plea on another occasion before another magistrate.
The evidence before the magistrate identified the enormity of the clearing operation associated with the substantial pivot structure that called for the clearance of trees and other native vegetation if the pivot was to work and agriculture be successful. Whilst the third defendant plainly cleared the vegetation it is not obvious that he caused it whatever the particulars alleged. However, whether he merely cleared or caused the clearance, the permitted clearance by the appellants was far more serious than the magistrate regarded it.
As the judge on appeal put it, it was erroneous of the magistrate to sentence the appellants on the basis that the clearance was not deliberate and that it was an honest mistake. The magistrate, himself, acknowledged that conclusion was at odds with the practical realities. Indeed, as the judge on appeal expressed it, the conclusion:
“was at odds with the admitted evidence. The conduct of (the appellants) was deliberate and planned. When assessing culpability little turns on whether or not a direct instruction was given to (the third defendant). (The appellants) cannot successfully avoid their responsibilities by suggesting that there was some form of accidental clearance by mistake.”
The single judge was correct to conclude that it was necessary to sentence the appellants having regard to their conduct and that to do otherwise would be “to fly in the face of practical realities. Justice would not be done if the actual circumstances of their conduct were not considered”.
The judge on appeal said it would be desirable for this Court to re-sentence the appellants but, as there was no agreed factual basis upon which the re-sentencing could occur, the matter had to be remitted to the magistrate for the purposes of re-sentencing having regard to the judge’s reasons and the adducing of evidence to enable the imposition of a penalty fixed in accordance with the penalty provision within s 26(1). However, properly, His Honour added that the magistrate, when re-sentencing, would not be constrained by the third defendant’s plea and the factual basis upon which it was made. His Honour correctly said that the magistrate would be able to re-sentence having presided at the hearing and with the full benefit of any further evidence and submissions placed before him for the purposes of sentencing. The Solicitor-General does not dispute that it is open to the appellants to choose to call such evidence before the magistrate seeking to shake the inferences drawn by the judge on appeal. Absent further accepted contrary evidence, the inferences drawn and findings made by the single judge would have to prevail.
None of the grounds of appeal taken are made out. The appeal from the single judge should be dismissed.
DEBELLE J: I have read the reasons of Prior and Bleby JJ. I have nothing to add. I agree that the appeal should be dismissed.
BLEBY J: The background to this appeal is set out in the reasons for judgment of Prior J. I propose merely to supplement that so far as is necessary for the purpose of these reasons.
The appellants were charged with a breach of s 26(1) of the Native Vegetation Act 1991. That sub-section reads:
“A person must not clear native vegetation unless the clearance is in accordance with this Part.
Maximum penalty: A sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed or $100 000, whichever is greater.
Expiation fee: $500.”
The prescribed rate is related to the increase in value of the land as a direct result of the clearing: s 26(3).
Section 3(1) of the Act provides:
“‘to clear’ native vegetation includes to cause or permit the clearance of native vegetation.”
All three defendants were charged with the offence of clearing native vegetation. The particulars alleged against the third defendant, who physically did the clearing and who pleaded guilty before another Magistrate, were that he “caused” the clearance of the native vegetation. The particulars alleged against each of the present appellants were that they “caused or permitted” the clearance of the native vegetation.
Those particulars and the Magistrate’s attitude to them shows a rather restricted approach to the nature of s 26. The offence is clearing. The definition of “to clear” is inclusory. There was no dispute that the third defendant cleared the vegetation, albeit with the aid of a bulldozer. He did not cause the clearance in the sense of instructing someone else to do it. The only allegation necessary against him was that he cleared the vegetation.
The land in question owned by the first appellant had already been substantially prepared for the operation of a large pivot irrigation system. That is a system which operates from a central pivot, water being delivered by a series of sprays mounted on sections of irrigation pipe which in turn are mounted on a metal frame supported by a series of triangular metal undercarriages mounted on rubber tyred wheels. Together these form the radius of a very large circle, the area within which is irrigated as the whole system turns on the central pivot. The vegetation that was cleared contrary to the provisions of the Act was a line of native vegetation which appears to have been approximately 20 metres wide crossing a segment of the circle. It was apparent to anyone familiar with the operation of the pivot irrigation system that it could not have operated without clearance of the vegetation in question. At the time of the clearance, substantial work had been performed on other parts of the land directed towards the installation of the system. Substantial trenches had been dug for the delivery of water to the system and pipes had been delivered to the land for installation. The above ground parts of the system were installed. Clearance of the vegetation in question was essential if the system were to operate at all.
The statement of facts asserted by the third defendant on his plea of guilty before another Magistrate, namely that he was never instructed to clear any trees but that he did so only on the suggestion of another worker to allow the pivot irrigation system to go around, was not disputed by the prosecution on the hearing of that plea.
The first and second defendants, having been given notice that on the hearing of their plea of “not guilty” the prosecution intended to lead evidence of an admission by Mr Mitolo, the second defendant, that he instructed the third defendant to clear the vegetation, applied to stay the proceedings as an abuse of process. That application was properly rejected, but it was as a result of the submissions then put to the Magistrate that he made the order purporting to restrain the complainant from calling evidence or making submissions inconsistent with the basis on which the third defendant’s plea had been accepted. The order was:
“[T]hat the complainant be restrained from calling evidence or making submissions which are inconsistent with the statement of agreed facts outlined to the Magistrate who sentenced the third defendant on 30 March 2001.”
In fact there was no formal statement of agreed facts. The prosecution had merely acquiesced in the assertions made on behalf of the third defendant. There was no evidence placed before the Magistrate as to precisely what the submissions on behalf of the third defendant had been.
The Magistrate made it clear that he permitted the action to proceed only on the basis of the “restraining order” and on the basis that it was alleged that the appellants “permitted” the clearance to take place. In effect, the prosecution was required to assent to an amendment of the particulars alleged against the present appellants deleting the reference to the words “caused or”.
This also happened to resolve a submission of the appellants that the complaint was duplicitous. While it is not now necessary to resolve that, in my view that was an argument which lacked substance and perpetuated the misunderstanding of the section. The only offence created was that of clearing. The only complaint was that the appellants cleared. The particulars of causing or permitting merely indicated that it was not alleged that Mr Mitolo personally cleared the vegetation. It could scarcely be alleged that the first appellant, being a corporation, cleared the vegetation. There was no duplicity in alleging, by way of particulars, that the appellants either caused or, in the alternative, permitted the clearing to occur.
Extensive evidence was placed before the Magistrate directed towards proof of the charge against the appellants. It included evidence of all the preparatory work which had been done at the time of clearing, proof of ownership of the land and of Mr Mitolo’s position in Overland Corner Station Pty Ltd.
The evidence led included evidence of a conversation between an officer of the Department and Mr Mitolo in which he acknowledged that the third defendant was one of his employees, that he was aware that it was an offence to clear native vegetation without approval, that he had arranged for other preliminary works to be carried out on the land for the purpose of the pivot irrigation system, that he had instructed the third defendant to dig a trench for the irrigation pipe, and that he did not know what he would have done if clearance of the trees had not been permitted.
What the third defendant said to the Magistrate on his plea of guilty was quite irrelevant to and inadmissible on the hearing of the complaint against the present appellants. The Magistrate was required to hear and determine the case against them according to law and in accordance with evidence admissible against them. There was no justification for the rejection of any portion of the conversation between Mr Mitolo and the officer of the Department, including evidence of any relevant admissions. The Magistrate was wrong to make the rulings he did and was wrong to attempt to confine the prosecution to an allegation of “permitting” the clearance of the native vegetation.
However, notwithstanding the constraints placed upon the prosecution by the restraining order, the appellants were found guilty as charged and have not appealed against their conviction. They have been found guilty of clearing native vegetation. Whether it be by causing or permitting matters not. The appellants did not seek, by way of defence to the charge, to take advantage of s 40 of the Native Vegetation Act. That section reads:
“40. 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.”
Mr Mitolo did not give evidence.
Having found the appellants guilty, it was for the Magistrate to sentence them taking into account the provisions of s 26(1) and the material led in evidence at the trial. There was no evidence before the Magistrate that the permitting of the clearance was not deliberate or that it was an honest mistake. Even the Magistrate acknowledged that his decision, that “culpability was confined to failure to supervise”, a decision dictated by his own order, was at odds with practical realities.
In deciding that the Magistrate had sentenced the appellants on an incorrect basis the Judge on appeal reached this conclusion:
“The circumstance of the work proceeding, the workmen on site, the operation of the bulldozer, the presence of the agricultural pipes and Mr Mitolo’s view that the vegetation was rubbish lead to the overwhelming inference that Mr Mitolo was aware that it was intended to clear the vegetation and that the clearance was proceeding. The inference that the clearance formed part of the commercial plan earlier referred to is also overwhelming. The potential commercial benefits from the clearance can only be described as material. No other purpose was or could sensibly be advanced for the clearance.”
That inference was inevitable. The Judge correctly concluded:
“[The Magistrate’s] conclusion was at odds with the admitted evidence. The conduct of Overland Corner and Mr Mitolo was deliberate and planned. When assessing culpability little turns on whether or not a direct instruction was given to [the third defendant]. Mr Mitolo and Overland Corner cannot successfully avoid their responsibilities by suggesting that there was some form of accidental clearance by mistake.”
The Judge on appeal was correct to allow the appeal and to remit the matter for re-sentencing before the Magistrate. As the Solicitor-General properly conceded, it is open to the appellants to place further material before the Magistrate for the purpose of sentencing. That may or may not mitigate the circumstances of the offence for the purpose of fixing the penalty. But as the Judge on appeal concluded, the Magistrate cannot be constrained by the factual basis on which the third defendant’s plea was made.
I agree that the appeal should be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. Summary Procedure Act s 99, s 99AA
2.Police v Dorizzi (2002) 84 SASR 416; Holder & Ors v Lewis [2003] SASC 397
3. (1981) 147 CLR 383 at 389

[2004] SASC 76

2 April 2004