DISTRICT COURT OF QUEENSLAND
CITATION: De Bray v Cohen;Macefield Pty Ltd v Cohen [2008] QDC
275PARTIES: MAURICE JOSEPH DE BRAY
(Appellant)v JOHN NORMAN COHEN
(Respondent)MACEFIELD PTY LTD ACN
(Appellant)v JOHN NORMAN COHEN
(Respondent)FILE NOS: Appeals 79/06 and 80/06 PROCEEDING: Appeals from Magistrates Court at Southport DELIVERED ON: 28 November 2008 DELIVERED AT: Southport HEARING DATES: 26, 27 & 28 May and 20, 21, 22 & 23 October 2008 JUDGE: C.F. Wall Q.C. ORDERS:
Appeals against conviction by each appellant allowed; convictions set aside and in lieu thereof the complaint against each appellant dismissed.
CATCHWORDS:
Appeal – Magistrates Court – prosecution by local authority – individual and corporate defendants – separate consideration of case against each required – limitation period for prosecution – within 1 year after the commission of the offence – whether evidence established offence within limitation period – duplicity – damaged or permitted damage to protected vegetation – corporate liability – power to amend complaints at summary hearing – proof of local law.
LEGISLATION: Local Government Act 1993 Sections 874, 898, 1080, 1117
Justices Act 1886 Sections 43, 47, 48
Local Law 6 (Vegetation Management) (Gold Coast City
Council) Sections 3, 24
Interim Local Law 6 (Gold Coast City Council) Sections 5,
30
Statutory Instruments Act 1992 Section 7
Evidence Act 1977 Section 43CASES: Bernard Elsey Pty Ltd v Commissioner of Taxation (1969)
121 CLR 119
Bowman v Brown (2004) QPELR 416
Broome v Chenoweth (1946) 73 CLR 583
Chappel v A Ross & Sons Pty Ltd (1969) VR 376
Commonwealth DPP v Hart (No. 2)(2005) 2 Qd. R 246
Dever v Creevey (1993) 1 Qd R 232
EPA v CSR Ltd (2001) 114 LGERA 217
Flanagan v Remick (2001) 127 A. Crim R. 534
Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328
G J Coles & Coy Ltd v Goldsworthy (1985) 57 LGRA 123
Hackwill v Kay [1960] VR 632
Hamilton v Whitehead (1988) 166 CLR 121
Hamzy v R (1994) 74 A. Crim R 341
Hornsby Shire Council v Winsloe (1998) 101 LGERA 117
Iannella v French (1968) 119 CLR 84
Johnson v Miller (1937) 59 CLR 467
Kerr v Hannon [1992] 1 VR 43
Laird v Mitchell [1930] St. R. Qd 38
Marshall v Averay [2007] QPELR 137
Miller v Williams (1990) 53 SASR 82
Mitchell v Myers (1955) 57 WALR 49
R v Traino (1987) 45 SASR 473
Taylor v EPA (2000) 113 LGERA 116
Walsh v Tattersall (1996) 139 ALR 27COUNSEL
Appellants - Mr D H Denton SC
Mr G R AllenRespondent - Mr C L Hughes SC Mr N S Skoien
SOLICITORS: Appellants- Deacons Lawyers
Respondent - Michael Sing Lawyers
Introduction
These are appeals by Maurice Joseph De Bray and Macefield Pty Ltd (hereinafter called the defendants) against convictions in the Magistrates Court at Southport on 20 January 2006. Each has also appealed against fines of $35,000 and $50,000 respectively imposed on them on a later date. The complaints were heard…
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Details
- AGLC
- De Bray v Cohen; Macefield Pty Ltd v Cohen [2008] QDC 275
- Case
- [2008] QDC 275
- Decision Date
CaseChat Overview and Summary
In the case of De Bray v Cohen, the appellants, including an individual and a corporate entity, challenged their convictions in the Magistrates Court. The convictions stemmed from charges of damaging or permitting the damage of protected vegetation, which was alleged to have occurred over a period extending beyond the one-year limitation period following the commission of the offence. The key legal issues revolved around whether the evidence sufficiently established that the offences occurred within the limitation period and whether the complaints were duplicitous, containing charges of more than one offence.
The court addressed the limitation period issue by examining the evidence provided by the prosecution. It found that the evidence did not establish that the damage to the protected vegetation occurred within the one-year period following the commission of the offence. This led to the conclusion that the convictions were invalid as they were based on offences that fell outside the prescribed limitation period. Additionally, the court considered the duplicitous nature of the complaints, noting that while the charges involved multiple acts of damaging vegetation over time, they represented a single offence under the Justices Act. However, the court ruled that the complaints were not duplicitous as they correctly charged the defendants with damaging or permitting damage to protected vegetation over the specified period.
The appeals against the convictions were allowed by the court. The convictions were set aside, and the complaints against each appellant were dismissed in lieu thereof. This decision effectively nullified the original convictions due to the inability to establish the offences within the requisite limitation period.
The court addressed the limitation period issue by examining the evidence provided by the prosecution. It found that the evidence did not establish that the damage to the protected vegetation occurred within the one-year period following the commission of the offence. This led to the conclusion that the convictions were invalid as they were based on offences that fell outside the prescribed limitation period. Additionally, the court considered the duplicitous nature of the complaints, noting that while the charges involved multiple acts of damaging vegetation over time, they represented a single offence under the Justices Act. However, the court ruled that the complaints were not duplicitous as they correctly charged the defendants with damaging or permitting damage to protected vegetation over the specified period.
The appeals against the convictions were allowed by the court. The convictions were set aside, and the complaints against each appellant were dismissed in lieu thereof. This decision effectively nullified the original convictions due to the inability to establish the offences within the requisite limitation period.
Orders
Orders of the court
Appeals against conviction by each appellant allowed; convictions set aside and in lieu thereof the complaint against each appellant dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
The difficulty for the respondent is highlighted by the respondent’s submission (para 3.22): “…that in the absence of reliable evidence on the subject land itself (Mr Hance’s evidence) was based, as it had to be, upon the examination of adjoining land which was identified to be comparable to the subject land (in terms of its vegetated state prior to clearing).” This difficulty is also apparent from the respondent’s submissions (para 3.31) that the damage (to the trees): Mr Hughes (T 7-36,37) also said he couldn’t say that 30,000 trees (or over 30,000 trees) were damaged between 13 February 2003 and November 2003 and he agreed that the appellants were each sentenced on the basis of damaging 30,000 trees. For this reason he conceded that the appellants would have to at least succeed on their appeals against sentence. This concession however is enough to also dispose of the appeals against conviction. Likewise I am unable to agree with the respondent (para 4.1 footnote 71) that there was an obligation on Mr De Bray to “explain” the “matter of tree numbers” and give a reason “as to why he sat on his hands during the trial”. The defendants were entitled to do just that. It is clear that each defendant was convicted of damaging or permitting to be damaged protected vegetation outside the limitation period and for that reason alone the convictions cannot stand and must be set aside. Because the evidence does not in my view establish any damage occurring within the limitation period no point would be achieved by sending the matters back to the Magistrates Court. At best for the prosecution the evidence may have possibly established a reduction in canopy cover during the limitation period as a result of damage caused outside the limitation period. The ground of appeal relying on these matters in each appeal has been made out. The appellants contended that each complaint was duplicitous in that it contained a charge of more than one offence. Section 43 Justices Act provides: The damage to protected vegetation relied on by the prosecution was destruction of the vegetation or interference with its natural growth by cuts to tree trunks and concurrent application of poison and perhaps subsequent repeat application/s of poison. The magistrate did not refer to the definition of “damage”. He referred only to “trees” being cut or poisoned. What was alleged against each defendant was damaging or permitting to be damaged protected vegetation between December 2000 and November 2003. In my view a complaint that the defendants damaged protected vegetation between two dates by systematically cutting and poisoning the vegetation would comply with s 43 as would a similar complaint that the defendants permitted protected vegetation to be damaged. See Laird v Mitchell [1930] St. R. Qd 38 at 44. Section 43(1)(b) includes situations where the charge laid, although evidenced by multiple acts, represents a single offence. Depending on the circumstances it would allow conduct constituted by activity over time to be properly charged in one matter of complaint. The prosecution case was that all of the trees were not damaged on the one date but on different dates between December 2000 and November 2003.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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