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

DAL PIVA v OVERLAND CORNER PTY LTD & MITOLO
[2003] SASC 141
Magistrates Appeal

GRAY J This is an appeal against sentence.
On 12 April 2000, Frank Dal Piva, a National Parks and Wildlife Officer of the Department of Environment and Heritage (“the Department”) brought a complaint against Overland Corner Station Pty Ltd, Bruno Mitolo and William James Key. The complaint alleged that:
On or about 9 November 1999 [the defendants] cleared native vegetation contrary to Part V of the Native Vegetation Act 1991. Contrary to section 26 of the Native Vegetation Act, 1991.
Particulars
1.1From 20 September 1999 to date the first defendant was the registered owner in fee simple of land, namely section 74, Hundred of Parcoola, being land described in Certificate of Title Register Book Volume 5738 Folio 397.
1.2On or about 9 November 1999 the first defendant caused or permitted the clearance of native vegetation from the said land.
1.3On or about 9 November 1999 the second defendant caused or permitted the clearance of native vegetation from the said land.
1.4On or about 9 November 1999 the third defendant caused the clearance of native vegetation from the said land.
1.5The native vegetation cleared comprised more than two hundred and thirty four (234) trees which included the species: Acorn Mallee etc …
Mr Key pleaded guilty before a magistrate on 30 March 2001. He was convicted and fined $900.00. The trial of Overland Corner and Mr Mitolo proceeded before a different magistrate. Both were convicted. Overland Corner was fined $3,000 and Mr Mitolo $1,000. The Department has appealed the sentences imposed on Overland Corner and Mr Mitolo.
The Issue on Appeal
The Department complained that the trial magistrate had wrongly excluded evidence and submissions. This resulted from a pre-trial restraining order. It was submitted that the restraining order was made in error and that as a result of the order the trial magistrate failed to have regard to probative evidence relevant to the assessment of culpability when sentencing. The error was said to have permeated the entire court process.
Although the magistrate’s error in regard to the exclusion of evidence and submissions was said to have permeated the entire court process neither counsel challenged the convictions recorded by the magistrate.[1]
[1] During the appeal the Department sought leave to extend time to appeal against the convictions but ultimately this application was abandoned.
The Complainant’s Case
Overland Corner owned rural land on which it was intended to develop a pivot for the purpose of intensive crop production. It was the Department’s case that Overland Corner and Mr Mitolo were in the process of clearing vegetation on the land in preparation for the growing of an irrigated crop. The plan involved laying irrigation piping underground. An above ground mobile irrigation unit would then pivot around the centre point of the cleared circular area. The system would allow for controlled irrigation. The successful operation of a pivot required a generally flat circular area clear of vegetation so that the above ground irrigation unit could turn freely through the entire circle. The operation of the irrigation system necessarily required an area cleared of vegetation. The nature of some of the vegetation on the land was such that consent was needed before clearance could occur.
The Department’s case was that Mr Mitolo was the sole share holder and company secretary of Overland Corner. He controlled the company and was its guiding mind. He made decisions on land management on behalf of the company.
An officer of the Department received information from a third party that an unauthorised clearance of native vegetation was taking place on the land. Departmental officers attended. They observed that a clearance had recently taken place. Native vegetation was in the process of being buried in pits. A number of workers were on site. A bulldozer operated by Mr Key was engaged in excavating further pits. Photographs were taken. They provided evidence of these events.
On 11 November 1999, whilst Timothy Scott Fraser a departmental officer was in attendance on site, Mr Mitolo arrived. An ensuing conversation was recounted by Mr Fraser:
A.He [Mr Mitolo] said ‘Is there a problem’ and I then said ‘Have you got permission to clear this vegetation?’ He said ‘No?’ I said ‘Well, there is a problem’. He then said ‘What? So we need approval to clear this rubbish?’ I said ‘Yes’. He said ‘Well, you wouldn’t happen to have one of those application forms on you, would you?’ and I said ‘No. It’s a bit late for that’.
Q.Was there any further exchange between you on this day.
A.No. I did say then - well, there was. I did say ‘I will need to talk to you further abut this matter in the form of a formal interview. I’ll need to call you and we will arrange a time’.
Q.Did Mr Mitolo stay in the area or did he leave.
A.No. He drove off.
On 25 November 1999 Mr Fraser interviewed Mr Mitolo at Mr Fraser’s office. Mr Fraser made written notes of questions asked and answers given:
Fraser: Can I have your full name address age [date of birth] and occupation please.
Mitolo: Its Bruno Mitolo, 5 Heyes Court Rostrevor SA. 58 years [date of birth]     12/3/41 occupation farm manager
Fraser:     Are you the actual owner of section 74 HD of Parcoola
Mitolo:      It is owned by the company Overland Corner Station Pty Ltd.
Fraser:     What is your position [in] that company
Mitolo:        I am the Director
Fraser:       Are you authorised to speak for or on behalf of that company.
Mitolo:       I think so, - yes
Fraser:Do you normally make the decisions on land management strategies on Section 74 HD of Parcoola.
Mitolo:       Yes.
...
Fraser:On 11/11/99 I attended at section 74 HD of Parcoola with Craig Whisson of the Native Vegetation Conservation Branch of DEHAA at that location we found a total of 234 recently cleared native trees being 226 mature Mallee trees and 8 mature False Sandal wood trees - are you the Director of the company that owns that land.
Mitolo:       Yes
Fraser:       When were the 234 native trees actually cleared?
Mitolo:        Monday or Tuesday of that week that you were there.
Fraser:      Who instructed the removal of the trees.
Mitolo: I instructed the dozer operator to clear the trees where the pipeline to the pivot point was to be positioned.
Fraser:How many trees were involved in the clearance of the pipeline to the pivot point.
Mitolo: There might have been 2 or 3 - not many as they were scattered at that point.
Fraser:     Why were all the other trees cleared[2]
[2] The italicised parts of this record of interview were not led in evidence at the trial. This was because of a restraining order made by the trial magistrate. The entire record of interview was received on appeal for the purpose of understanding the Department’s submissions.
Mitolo:The dozer operator asked the men working on the pivot if there was anything else to be done. They said you should knock those other trees down because they will be in the way of the pivot.
Fraser:       Who gave the dozer operator those instructions.
Mitolo:There were 6 or 7 men there some from Mt Gambier I dont know who really gave the order.
Fraser:       Who was driving the dozer that cleared the trees
Mitolo:       Jim Key one of my employees.
Fraser:The trees that were cleared were they native trees growing in their natural state.
Mitolo:       Would not have a clue.
Fraser:       What type of trees were they.
Mitolo:       Normal mallee trees.
Fraser:Had the trees been planted or were they original trees growing in their natural state.
Mitolo:       I would not know
Fraser:       Were the trees planted by your company
Mitolo:       No. I have only just bought it.
Fraser:Did you seek approval from the native vegetation branch of DEHAA to clear the trees
Mitolo:       No - but we have now lodged an application.
Fraser:Did you realise that it is an offence to clear native vegetation growing in its natural state in SA without approval.
Mitolo:       Yes.
Fraser:Have you had any previous dealings with the native vegetation branch of DEHAA
Mitolo:       Yes
Fraser:       What were those dealings in relation to
Mitolo:Clearing some native trees here at Woolpunda about 3 years ago and then about 5-6 years ago there were two dealings.
Fraser:       What happened on both those occasions.
Mitolo:I just applied to clear some native mallee trees and the approvals came through OK.
Fraser:In relation to the clearance on [Section] 74 HD of Parcoola what were you planning to do with the trees that were going to be in the way of the pivot.
Mitolo:       I was going to apply to get them cleared.
Fraser:I take it that you already had some of the pipes and trenching already in place for the proposed pivot is that correct.
Mitolo:       Yes.
Fraser:What would have you have done if your application to clear the trees in question had been refused.
Mitolo:I don’t know, I would have had to have found some other alternative
Fraser:       What would that [alternative] be
Mitolo:       I don’t know.
Fraser:Would you normally have some one supervising the dozer operator when he was operating.
Mitolo:Normally I give him an instruction and he goes and does it - sometimes he does the wrong thing like all workers.
Fraser:       Did you instruct him to clear the line for the pipe yourself.
Mitolo:       Yes I did.
Fraser:Did you instruct him to clear any .... trees other than the ones directly in the way of the pipeline.
Mitolo:       No
Fraser:Do you take responsibility for the actions of the dozer operator in clearing the [trees] in question.
Mitolo:       No
Fraser:Would you consider clearing of trees a normal part of dozer operators work when employ by you.
Mitolo:       It is not a normal operation.
Fraser:Have any of your previous employees been asked to remove trees that are native by you
Mitolo:I have had permission to clear native trees from the native [vegetation] branch of DEHAA in the past and I have instructed my workers to clear trees that were approved.
Fraser:Were you or any other company member aware that the trees in question were being cleared.
Mitolo:       No
Fraser:       How long has your company owned section 74 HD of Parcoola
Mitolo        Only a couple of months
Fraser:Was your company actually in ownership of section 74 HD of Parcoola at the time of the clearance
Mitolo:       Yes
Fraser:       Is there anything further you wish to say about this matter
Mitolo:I am sorry for what has happened I have not been back from overseas very long and I have been crook and been to doctors and specialists since then,
On the day that the clear happened I was in [Adelaide] at a lung specialist and hospital having tests
Fraser:Do you wish to read and sign my notes in agreeance that they are true and accurate account of our conversation.
Mitolo:       Yes
A departmental report detailing observations of the scene was tendered. Those observations included:
At approximately 12.05 pm on the 11^th November 1999, Mr Fraser and myself drove onto the property from the Barmera to Morgan road, entering via an open entrance located approximately mid way along the southern boundary of the property. Having entered the property we drove north along an established track for a distance of approximately 1km ...
Having driven approximately 1km north along the track... a large stack of irrigation pipes was passed, the track then heading in a NW direction before intersection with an east west line of native vegetation. From this intersection I observed that the strip of native vegetation extending west from the point of the intersection with the track and toward the property boundary had been recently cleared. A large pit had been dug at the eastern end of the cleared line and a heap of recently cleared trees had been pushed up against the edge of that pit. All the trees still retained fresh green leaves indicating very recent clearance. …
Mr Fraser drove the vehicle to the western end of the east west strip of native vegetation where I observed that a further large pit had been dug. Cleared mallee trees had been heaped in the bottom of this pit. As with all the vegetation observed during the inspection, the leaves were still a fresh green, again indicating very recent clearance.
A centre pivot irrigator extended away from this point in a north east direction, the centre of the pivot being located away from the recent clearance in cleared land. By climbing one of the heaps of soil excavated from the pit, it was evident that the circle used by the centre pivot crossed the strip of native vegetation and that the irrigator would not have been able to travel a complete circle with the vegetation in place. I took a photograph of the pit, cleared vegetation and the centre pivot from the top of this soil heap and from natural ground level. …
In order to establish the number of trees cleared, measurements were taken of stem diameters at approx half a metre above what was estimated to be the original ground level. Only those trees with a readily identifiable tree stump were counted. Where a stump showed evidence of splitting only one tree was recorded. …
Tree species recorded during the inspection were, Eucalyptus oleosa (Acorn Mallee), E. socialis (Summer Red Mallee), E. Dumosa (White Mallee), E. cyanophylla (Blue-leaf Mallee), E. gracilis (Yorrell), E. leptophylla (Narrow leaved Mallee), E. brachycalyx (Gilja) and Myoporum platycarpum (Sugarwood). Additional native plants were also identified as having been cleared when the trees were pushed over (see Attachment 2). All these species (both tree and other species) are recognised as plant species indigenous to South Australia (“Flora of South Australia”, J P Jessop et al, 1986) and therefore subject to the provisions of the Native Vegetation Act, 1991.
In total 234 trees were measured and recorded as being cleared. In my opinion the number actually cleared is higher than this, given the inability to measure some of the trees contained in the heaped vegetation in or adjacent to the two pits. …
The Department also tendered extracts from company records and documents relating to the ownership of land.
The Defence Case
The Department was put to proof. It was contended that the Department was bound by the version of facts presented to a different magistrate when Mr Key was sentenced. As a result the Department was precluded from leading evidence inconsistent with Mr Key’s version. Mr Key was sentenced on the basis that he did not receive any instruction from Mr Mitolo to remove the trees. A contract worker on site had suggested that he remove the trees. The Department had not established that Overland Corner or Mr Mitolo had permitted the clearance to take place nor had it been established that Mr Mitolo acted for Overland Corner.
The Trial
Preliminary Application - Abuse of Process
As earlier observed Mr Key pleaded guilty on 30 March 2001. The plea was accepted. The magistrate acted on the factual basis advanced by Mr Key:
The basis of [Mr Key’s] plea, which was not challenged by the prosecution, was that his employer, the second defendant [Mitolo], had employed him to dig a spur line for the purpose of laying irrigation pipes. He was never instructed to clear any trees; and that on the suggestion of another worker he cleared the trees to allow the pivot irrigation system to go around.
Prior to the commencement of the trial of Overland Corner and Mr Mitolo the Department gave notice that it did not consider itself bound by the factual basis on which Mr Key had been sentenced. The Department proposed to lead evidence that whilst acting in his capacity as an officer of Overland Corner Mr Mitolo instructed Mr Key to clear the native vegetation the subject of the complaint.
This notice led Overland Corner and Mr Mitolo to bring an application to permanently stay the proceedings as an abuse of process. The application was heard as a preliminary matter on 4 June 2001 by the trial magistrate. Counsel for Overland Corner and Mr Mitolo contended that it was unconscionable for the Department to accept a set of facts on Mr Key’s plea and then to seek to advance a factual basis at the trial of Overland Corner and Mr Mitolo that was inconsistent with those facts earlier accepted and acted upon for the purposes of sentencing Mr Key. Counsel for the Department submitted:
... the fact that [Mr Key] chose to plead guilty on that basis he was more culpable than otherwise indicated on the evidence, for whatever reason, is not an abuse of process.
The trial magistrate made the following observations about the Department’s approach:
This is a case about unauthorized land clearance. The complainant agreed to accept a plea of guilty from the person responsible for the physical clearance of native vegetation on the land on the basis that the occupier of the land, and the person assumed to be his employer, had given no instructions for that clearance. [Counsel] in arguing the application did not dispute that at the trial of the matter she may be instructed to lead evidence which would resile from the proposition that Key had been given no instructions as to the clearance of native vegetation.
[Counsel] did not seek to justify the apparent change in her instructions by the suggestion, for example, that the Crown had accepted the plea from Key on the basis of a reasonably held belief as to the true facts on 30 March, but that subsequent investigation had revealed Key had entered his plea on a less than full and frank disclosure of the true facts. (Leaving aside the question as to whether the prosecution could have obtained that information by diligent investigation prior to 30 March).
The trial magistrate reasoned:
…it was contrary to the interests of justice for this 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 trial magistrate identified this reasoning as a basis on which he made the order restraining the complainant from calling inconsistent evidence or making inconsistent submissions.
As a result of the restraining order the Department was unable to lead evidence to establish that Mr Mitolo had admitted that he had instructed Mr Key to clear vegetation on the land. The italicised parts of the statement earlier referred to were not led in evidence.
The Amendment of the Complaint
Although the trial magistrate considered that it would be an abuse of process for the Department to proceed in an inconsistent manner he declined to order that the trial be permanently stayed.[3] He took the view that it would be appropriate to make an order restraining the complainant from acting inconsistently. Accordingly he ordered:
that 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.
[3] No challenge was made to the ruling of the magistrate declining to stay the proceedings permanently. That was an appropriate concession.
The trial magistrate considered that the complaint alleging that Overland Corner and Mr Mitolo caused the clearance to take place could not be sustained. This view was predicated on the Department’s previous acceptance of Mr Key’s plea on the basis that he had acted without instruction from Overland Corner or Mr Mitolo. However the trial magistrate permitted the action to proceed insofar as it alleged that Overland Corner and Mr Mitolo permitted the clearance to take place. The particulars on the complaint were amended and the trial proceeded.[4] The trial magistrate noted:
[Counsel] elected (albeit reluctantly) to apply to amend the complaint to delete reference to the words ‘caused’ or ‘in respect to the first and second defendants.’ The action therefore proceed on the basis that these defendants permitted the clearance of the land.
The Trial Magistrate’s Conclusion
[4] The amendment resolved an issue as to duplicity.

The trial magistrate found the complaint proved. He concluded that both Overland Corner and Mr Mitolo had permitted the clearance to take place. His findings included:
The evidence demonstrates a very extensive clearance preparatory to installation of a pivot irrigating system. The evidence shows the extent of trenches etc being dug preparedly to the installation of pipelines and also shows the area that was cleared to enable the large pivot irrigation system to operate.
...
The only reasonable inference open is that Mitolo was exercising control over the development of the land on behalf of the Company. The level of managerial control undoubtedly included supervision over the development of the land. 1.
I am satisfied that the complainant has proved beyond any reasonable doubt that Overland Corner was not only the owner but was also the occupier of the land at the relevant time.
... there can be no doubt at the very least Key was on the property undertaking clearance as an agent. He was engaged as a bulldozer driver to do something on the land even if his instructions from Mitolo did not extend to ripping out native trees.
... I have reached the conclusion that the complainant has established beyond reasonable doubt that Overland Corner Station Pty Ltd is guilty of the offence of permitting the unauthorized clearance of its land. I have no hesitation in accepting [counsel’s] submission that the evidence does not raise any obligation upon the complainant to negative a Proudman v Dayman defence nor having declined the opportunity to call evidence can the Company satisfy its evidentiary burden under s 40. There clearly is no evidence that the offence ‘did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
I conclude that the only reasonable inference open on the evidence is that Mr Mitolo was acting as manager of the company. The record of interview clearly establishes that he made the management decisions so far as land clearance. Further, it establishes that he had undertaken in the past such matters as the arrangement of clearance approvals. He clearly carried the responsibilities regarding the employment of staff and the disposition of agents and contractors on the land. When spoken to on 10th November he acted in every relevant sense as the manager.
Although the complainant cannot utilise section 39 of the Act to extend liability to the Company, it can certainly, in my view, rely upon section 39 to achieve the reverse, namely that having the company liable it follows that a member of the governing body or the manager is also liable. I find Bruno Mitolo was the manager of Overland Corner at the time of commission of the offence by that company. Pursuant to section 39 of the Act I find Bruno Mitolo is therefore guilty of the offence.
Convictions were recorded against Overland Corner and Mr Mitolo. As earlier observed there was no challenge by any party to the correctness of the trial magistrate’s decision to record convictions.
The Appeal
Preliminary Issue
The restraining order prevented the complainant from leading evidence inconsistent with the version of facts on which Mr Key had been sentenced. The trial magistrate excluded from his consideration evidence of instructions given by Mr Mitolo to Mr Key. It is clear from the sentencing remarks that the restraining order affected the trial magistrate’s approach to the sentencing process. He observed:
Had the Crown been able to establish that there was a deliberate clearance the penalty would have been substantially higher. Indeed the penalty would have been many times higher than the penalty that I am to impose today,…
Central to the Department’s complaints on appeal was a challenge to the trial magistrate’s ruling that limited the evidence that could be led and submissions that could be made. Counsel for Overland Corner and Mr Mitolo submitted that as the appeal was only an appeal against sentence it was not open to the Department to challenge the restraining order. This submission is rejected. The order made by the magistrate restraining the leading of evidence and submissions which could be made, permeated the entire court process including the sentencing process. The appeal against sentence properly allowed a consideration of the correctness of that ruling.
Mr Key’s Plea of Guilty
Mr Key’s guilty plea was a solemn confession to each of the elements of the offence of causing the clearance of native vegetation from the land[5]. Submissions were then made as to the circumstances that surrounded the conduct giving rise to the offence. Those submissions included an assertion by Mr Key that he had not had any instruction from his employer, Mr Mitolo, to clear the trees. It was said that Mr Key had acted at the suggestion of another workman. The workman was apparently an employee of an independent contractor.
[5] Maxwell v The Queen (1995) 184 CLR 501
The Department accepted the basis of the plea advanced by Mr Key. The facts were not contradicted. They were not agreed facts. It was for the magistrate to decide whether the court was prepared to accept the plea given the factual basis advanced by Mr Key.
In The Queen v Rogerson[6] Brennan and Toohey JJ observed:
Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case.
The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.
[6] (1991-1992) 174 CLR 268 at 280
The duty of the trial magistrate was to determine the complaint having regard to relevant and admissible evidence. By excluding relevant and admissible evidence there was a material risk that Overland Corner and Mr Mitolo would not be dealt with in accordance with the law and the actual circumstances of the case. The magistrate’s approach did not accord with the principles identified by Brennan, and Toohey JJ in Rogerson. He failed to have regard to the overriding principle that the parties should be dealt with in accordance with the law and the actual circumstances of the case.
In Meissner v The Queen[7] Brennan, Toohey and McHugh JJ observed:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns:
The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.
It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.
[7] (1995) 184 CLR 132 at 141, 157
Dawson J observed:
... an accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.
Statements made by one defendant either to the police or to others or to a court at trial or during sentencing submissions are not evidence against co-defendants unless the co-defendants either expressly or by implication adopt the statements, thereby making them their own. Evidence of a plea of guilty by one defendant is irrelevant in the trial of a co-defendant or co-defendants. Evidence of Mr Key’s plea of guilty and the factual basis on which it was made and accepted were not relevant at the trial of Overland Corner and Mr Mitolo.
There may be a perceived degree of incongruity between Mr Key being sentenced on one basis and the court then continuing with the trial of Overland Corner and Mr Mitolo and ultimately their sentencing process then continuing on a different factual basis. Such a perception may arise from an incomplete understanding of the earlier referred to judicial processes. Any perceived incongruity could have been avoided had the court deferred accepting Mr Key’s plea and proceeding to impose sentence upon him. This alternative course could have been followed. Mr Key’s matter could have been adjourned to the trial magistrate and dealt with at the conclusion of the trial.
The Restraining Order
The Department’s conduct at Mr Key’s hearing did not justify the magistrate’s decision to impose a restraining order. The interests of justice did not require that the evidence at the trial of Overland Corner and Mr Mitolo be restricted or limited in the way that occurred. The overriding public interest was to ensure that Overland Corner and Mr Mitolo would be dealt with in accordance with the actual circumstances of the case.
The order made by the trial magistrate restraining the complainant from leading evidence and making submissions was an unusual order. It appears to be without precedent. The trial should have proceeded in the ordinary way. If during a trial a submission was made that an item of evidence should be excluded as a matter of discretion then a ruling could be made. The restraining order was inappropriate. The magistrate’s concerns should have been addressed by ruling on a question when and if it became the subject of objection.
It is to be borne in mind that the major commercial development taking place on the land necessarily involved the clearing of at least some of the native vegetation. It was not possible for the proposed development to go ahead if the vegetation remained in situ. The clearing of the vegetation did not happen by accident. Clearance was a necessary part of the project to install the above grand mobile irrigation unit with its associated infrastructure. The investigation of the actual circumstances of the involvement of Overland Corner and Mr Mitolo was a relevant and necessary inquiry at the trial.
Sentence
When sentencing the trial magistrate remarked:
In the reasons which I published on 7 September I made a number of comments about the pretrial procedures and applications which predicated the evidence being led on 6 and 7 June. As I explained in those reasons I found that the Crown was to a substantial degree limited in the evidence that could be called at the trial against Overland Corner and Bruno Mitolo by reason of the basis of the plea entered as against the third defendant William Key. [The magistrate] had accepted that plea of guilty on 30 March 2001 and imposed a fine of $900 and costs.
...
I must say that in reaching the conclusions I did it might be suggested to some degree, particularly when having regard to the evidence of Whisson and most particularly to the photographic evidence of the extent of the clearance, that the decision of that culpability was confined to failure to supervise is at odds with practical realities. To the extent that might be suggested, I remind myself the decision made by the Crown as to the basis of proffering the plea by Key compromised the manner in which the complainant could proceed to prosecute Overland Corner and Mitolo.
Clearly in sentencing these defendants I am bound, in my view, to apply the logic of the reasons that I have delivered on 7 September 2001 and not be unfairly swayed against these defendants by the subsequent submissions that have been made by [counsel] on penalty - submissions which are, in some respects, an abrogation from that basis of these findings.
...
I do not need in these reasons to repeat the fundamental principles underlying the Act - they are detailed in the judgment. Each case, however, must be resolved on its own factual circumstances. Many of the cases to which [counsel] has referred are cases where the court has made findings or has sentenced on the basis that deliberate clearance has occurred.
...
I remind myself again that the Crown accepted a plea against Key on the basis that the clearance of trees was an honest but not reasonable mistake of fact. That his instructions were to dig a spur line - a trench to put pipes in - and he was never instructed to clear trees. When he was on site another worker, not identified in the evidence and certainly not identified as an employee directly of Overland Corner or Mitolo, suggested that he should clear the trees to allow the pivot system to operate. (Logic of course dictates that without such a clearance of those trees the pivot system could not have operated. Logic might suggest that Mitolo’s understanding of the circumstances was somewhat higher than the Crown was permitted at trial to lead. Certainly in her submissions [counsel] made reference to the conversation had been Officer Fraser and Mr Mitolo at the site on 10 November 1999.)
I repeat that I am obliged to sentence the first and second defendants on the basis that neither the company nor Mitolo had given instructions to Key to undertake the clearance. On that basis this case must be distinguished from the authorities to which [counsel] refers in her submissions and in her response to the defendants’ submissions.
...
Had the Crown been able to establish that there was a deliberate clearance the penalty would have been substantially higher. Indeed the penalty would have been many times higher than the penalty that I am to impose today, and more in parity with the decisions made by my colleagues in the case of Buksan, of the Crown v Finniss River and of Bolderoff.
...
That having been said I return to the point that I made on a number of occasions already, namely that the finding of guilt is not based upon deliberate clearance of the land. It is based upon the plea entered by Key i.e. the failure by these defendants to supervise Key’s actions. ...
These extracts further demonstrate that the earlier conclusion that the restraining order restricting the evidence and submissions permeated the entire sentencing process. The evidence and submissions relevant to sentence were omitted from consideration.
The clearing of land for agricultural use was a deliberate act pursuant to a commercial plan. As earlier observed statements made by Mr Milolo were received at trial. These included the statement to Mr Fraser: so we need approval to clear this rubbish, as they stood together viewing the cleared vegetation. The evidence also included the further statement you wouldn’t happen to have one of those application forms on you, would you? Both these statements are telling. The inference that Mr Mitolo had not intended to seek consent to the clearance is overwhelming. He considered the vegetation to be rubbish.
Mr Mitolo had apparently attended to observe the work being undertaken. Workmen and an operating bulldozer were on site. A large number of agricultural pipes were also ready to be placed in the ground. Without clearance the development could not proceed.
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.
The Actual Circumstances
The trial magistrate noted that the Department accepted Mr Key’s plea on the basis that the clearance of trees was an honest but not reasonable mistake of fact. The magistrate erred when he considered that he was constrained by the circumstances of Mr Key’s plea and that he had to sentence Overland Corner and Mr Mitolo on the basis that the clearance was not deliberate so as to avoid a perceived inconsistency with Mr Key’s plea. However the trial magistrate then correctly observed that his approach was at odds with practical realities.
This statement was a recognition that Overland Corner and Mr Mitolo were not being sentenced having regard to the actual circumstances of their conduct. This was wrong. The trial magistrate failed to have regard to relevant evidentiary material and submissions when sentencing.
To sentence Overland Corner and Mr Mitolo on the basis that the clearance was not deliberate and that it was an honest mistake was in error. As the trial magistrate acknowledged this conclusion was at odds with the practical realities.
The 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 Mr Key. Mr Mitolo and Overland Corner cannot successfully avoid their responsibilities by suggesting that there was some form of accidental clearance by mistake.
Conclusion
It is necessary to sentence for Overland Corner and Mr Mitolo having regard to their conduct. To do otherwise would be to fly in the face of the practical realities. Justice would not be done if the actual circumstances of their conduct were not considered.

Given the history of this matter, it would be desirable if this court could re-sentence Overland Corner and Mr Mitolo. However there is no agreed factual basis on which the re-sentencing can occur. The matter must be remitted to the trial magistrate for the purposes of re-sentencing having regard to these reasons. The magistrate when re-sentencing should not be constrained by Mr Key’s plea and the factual basis on which it was made. The magistrate will be able to re-sentence having presided at the trial and with the full benefit of any further evidence and submissions placed before him for the purposes of sentencing.
The appeal against sentence is allowed. The fines imposed are set aside. The matter is remitted to the trial magistrate to resentence Overland Corner and Mr Mitolo.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 During the appeal the Department sought leave to extend time to appeal against the convictions but ultimately this application was abandoned.
2 The italicised parts of this record of interview were not led in evidence at the trial. This was because of a restraining order made by the trial magistrate. The entire record of interview was received on appeal for the purpose of understanding the Department’s submissions.
3 No challenge was made to the ruling of the magistrate declining to stay the proceedings permanently. That was an appropriate concession.
4 The amendment resolved an issue as to duplicity.
5 Maxwell v The Queen (1995) 184 CLR 501
6 (1991-1992) 174 CLR 268 at 280
7 (1995) 184 CLR 132 at 141, 157

[2003] SASC 141

23 May 2003