Fanna v Leavy; Rue v Leavy - [2005] QCA 378

SUPREME COURT OF QUEENSLAND

CITATION:

Fanna v Leavy; Rue v Leavy [2005] QCA 378

PARTIES:

SHANE DOUGLAS FANNA

(appellant/applicant)
v
ASHLEY LAWRENCE LEAVY
(respondent/respondent)

MITCHELL JAMES RUE
(appellant/applicant)
v

ASHLEY LAWRENCE LEAVY

(respondent/respondent)

FILE NO/S:

CA No 149 of 2005
CA No 150 of 2005
DC No 475 of 2004
DC No 474 of 2004
MC No 11607 of 2004

MC No 11608 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

7 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2005

JUDGES:

McMurdo P, McPherson JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Each application dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicants convicted in the Magistrates Court of taking protected fauna – where applicants appealed to the District Court under s 222 of the Justices Act 1886 (Qld) – where appeal to District Court unsuccessful – where applicants sought leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) – whether leave to appeal should be granted

ANIMALS – VARIOUS STATUTORY PROVISIONS – PROTECTION OF FAUNA AND GAME LAWS – OFFENCES – QUEENSLAND – TAKING OR KEEPING FAUNA – where applicants submitted they had no case to answer – where applicants argued that s 88 of the Nature Conservation Act 1992 (Qld) did not create an offence known to law – where applicants argued that since the offences occurred on private land s 88 did not apply since s 69 of the Constitution of Queensland 2001 (Qld) only provided power to the State to make power with respect to waste lands – where applicants contended that s 392(1) of the Criminal Code 1899 (Qld) was inconsistent with s 88 of the Nature Conservation Act and ‘ousted’ the latter section – where applicants argued that the Governor-in-Council lacked authority under s 175 of the Nature Conservation Act to make any regulations prescribing classes of wildlife – whether applicants had committed an offence under s 88

Acts Interpretation Act 1954 (Qld), s 45
Constitution of Queensland 2001 (Qld), s 69
Criminal Code 1899 (Qld), s 22(2), s 392(1)
District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 222
Nature Conservation Act 1992 (Qld), s 79, s 80, s 83(1), s 88(1), s 149, s 175
Nature Conservation (Wildlife) Regulation 1994 (Qld), Sch 4, Sch 5

Gideona v Nominal Defendant [2005] QCA 261; CA 1235 of 2005, 29 July 2005, cited
John v Federal Commissioner of Taxation (1989) 168 CLR 417, cited
Phillips v Spencer [2005] QCA 317; CA 3292 of 2005, 26 August 2005, followed
R v Stewart [1896] 1 QB 300, followed
R v Waine [2005] QCA 312; CA 70 of 2005, 26…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fanna v Leavy; Rue v Leavy

Details

AGLC: Fanna v Leavy; Rue v Leavy [2005] QCA 378
Case: [2005] QCA 378
Decision Date: 7 October 2005

CaseChat Overview and Summary

The applicants, Fanna and Rue, appealed against their convictions in the Magistrates Court for taking protected fauna. Their appeal was dismissed in the District Court, and they sought leave to appeal to the Supreme Court under section 118 of the District Court of Queensland Act 1967. The applicants argued that the statute under which they were convicted, section 88 of the Nature Conservation Act 1992, did not create an offence known to law. They also contended that since the offences occurred on private land, section 88 did not apply because section 69 of the Constitution of Queensland 2001 only provided power to the State to make power with respect to waste lands. Furthermore, they argued that section 392(1) of the Criminal Code 1899 was inconsistent with section 88 of the Nature Conservation Act and 'ousted' the latter section. The applicants also contended that the Governor-in-Council lacked authority under section 175 of the Nature Conservation Act to make any regulations prescribing classes of wildlife.

The court considered the applicants' arguments and found them to be without merit. The court held that section 88 of the Nature Conservation Act did create an offence known to law, and that the offences occurred on private land did not preclude the application of section 88. The court also held that section 392(1) of the Criminal Code did not 'oust' section 88 of the Nature Conservation Act, and that the Governor-in-Council had the authority to make regulations prescribing classes of wildlife under section 175 of the Nature Conservation Act. The court found that the applicants had committed an offence under section 88.

Each application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Each application dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Fanna v Leavy; Rue v Leavy [2005] QCA 378
PARTIES:	SHANE DOUGLAS FANNA (appellant/applicant) v ASHLEY LAWRENCE LEAVY (respondent/respondent) MITCHELL JAMES RUE (appellant/applicant) v ASHLEY LAWRENCE LEAVY (respondent/respondent)
FILE NO/S:	CA No 149 of 2005 CA No 150 of 2005 DC No 475 of 2004 DC No 474 of 2004 MC No 11607 of 2004 MC No 11608 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	7 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	30 September 2005
JUDGES:	McMurdo P, McPherson JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Each application dismissed with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicants convicted in the Magistrates Court of taking protected fauna – where applicants appealed to the District Court under s 222 of the Justices Act 1886 (Qld) – where appeal to District Court unsuccessful – where applicants sought leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) – whether leave to appeal should be granted ANIMALS – VARIOUS STATUTORY PROVISIONS – PROTECTION OF FAUNA AND GAME LAWS – OFFENCES – QUEENSLAND – TAKING OR KEEPING FAUNA – where applicants submitted they had no case to answer – where applicants argued that s 88 of the Nature Conservation Act 1992 (Qld) did not create an offence known to law – where applicants argued that since the offences occurred on private land s 88 did not apply since s 69 of the Constitution of Queensland 2001 (Qld) only provided power to the State to make power with respect to waste lands – where applicants contended that s 392(1) of the Criminal Code 1899 (Qld) was inconsistent with s 88 of the Nature Conservation Act and ‘ousted’ the latter section – where applicants argued that the Governor-in-Council lacked authority under s 175 of the Nature Conservation Act to make any regulations prescribing classes of wildlife – whether applicants had committed an offence under s 88 Acts Interpretation Act 1954 (Qld), s 45 Constitution of Queensland 2001 (Qld), s 69 Criminal Code 1899 (Qld), s 22(2), s 392(1) District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 222 Nature Conservation Act 1992 (Qld), s 79, s 80, s 83(1), s 88(1), s 149, s 175 Nature Conservation (Wildlife) Regulation 1994 (Qld), Sch 4, Sch 5 Gideona v Nominal Defendant [2005] QCA 261; CA 1235 of 2005, 29 July 2005, cited John v Federal Commissioner of Taxation (1989) 168 CLR 417, cited Phillips v Spencer [2005] QCA 317; CA 3292 of 2005, 26 August 2005, followed R v Stewart [1896] 1 QB 300, followed R v Waine [2005] QCA 312; CA 70 of 2005, 26…