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Lasker v Holeszko

Lasker v Holeszko

Case [2021] QDC 270 5 November 2021

Appeal

Admissibility of Evidence

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DISTRICT COURT OF QUEENSLAND

CITATION:

Lasker v Holeszko [2021] QDC 270

PARTIES:

BENJAMIN JON LASKER

(Appellant)

v

CHRISTOPHER JOHN HOLESZKO

(Respondent)

FILE NO:

BD208/20

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

5 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2021

JUDGE:

Jarro DCJ

ORDER:

1. The appeal is dismissed.

2. Costs are to be agreed by the parties. If the parties cannot resolve the issue of costs, I direct that the appellant and respondent file and serve written submissions within 21 days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was charged with four offences against the Sustainable Planning Act 2009 (Qld) in the magistrates court – where the magistrate found that the appellant should be found guilty in respect of each of the four charges and imposed a penalty of $75,000 – where both the conviction and sentence is appealed under s 222 of the Justices Act 1886 (Qld) on various grounds – whether the evidence adduced by the prosecution was insufficient to establish the defendant’s guilt beyond reasonable doubt in relation to each of the four charges – whether expert evidence was inadmissible as it relied on evidence not before the court – whether an exhibit was inadmissible as it was a copy, not an original – whether the prosecution was not required to prove that the vegetation that was allegedly cleared was “remnant vegetation” of a particular regional ecosystem – whether erroneous weight was placed on the evidence of an expert on the basis that they failed to comply with the established scientific method – whether the learned magistrate correctly applied s 76 of the Justices Act 1886 (“JA”) in the application of Schedule 24 of the Sustainable Planning Regulation 2009 (“SPR”) – whether the sentence was manifestly excessive.

LEGISLATION:

Acts Interpretation Act 1954 (Qld)

Evidence Act 1977 (Qld)

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

Sustainable Planning Act 2009 (Qld)

Sustainable Planning Regulation 2009 (Qld)

Vegetation Management Act 1999 (Qld)

CASES:

Gallagher v The Queen (1986) 160 CLR 392

Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Marshall v Averay [2006] QDC 356

McDonald v Holeszko [2019] QCA 285

Ross v Commissioner of Police [2018] QDC 99

R v Miller [2003] QCA 404

COUNSEL:
Mr S W Trewavas for the appellant
Mr B J Power for the respondent

SOLICITORS:
Marland Law for the appellant

Queensland Department of Natural Resources, Mines & Energy, Legal Division for the respondent

Following a six-day summary trial, the appellant was found guilty of four offences of carrying out assessable development without an effective development permit contrary to s 578(1) of the Sustainable Planning Act 2009 (“SPA”) in an extensive written decision of 16 August 2018. Following that decision and the receipt of submissions regarding penalty, in a written decision of 17 December 2019, the appellant was fined $75,000…

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 Lasker v Holeszko

Details

AGLC: Lasker v Holeszko [2021] QDC 270
Case: [2021] QDC 270
Decision Date: 5 November 2021

CaseChat Overview and Summary

Lasker v Holeszko involved the appellant appealing both a conviction and sentence imposed by a magistrate under the Justices Act 1886 (Qld). The appellant was charged with four offences against the Sustainable Planning Act 2009 (Qld) and was found guilty on all counts, resulting in a penalty of $75,000. The appeal contested the sufficiency of the evidence, the admissibility of certain evidence, the necessity for the prosecution to prove specific vegetation details, and the application of relevant sections of the Justices Act 1886 and Sustainable Planning Regulation 2009. The appellant also argued that the sentence was manifestly excessive.

The court examined several grounds of appeal, including whether the evidence was sufficient to establish guilt beyond reasonable doubt, whether expert evidence was admissible, and whether the prosecution had to prove the vegetation was "remnant vegetation" of a particular regional ecosystem. The court found that the magistrate's approach was correct, particularly regarding the admissibility of a copy of a delegation under the Acts Interpretation Act 1954. The court also determined that the prosecution did not need to prove that the vegetation was of a particular regional ecosystem, as the purpose of the Vegetation Management Act 1999 (Qld) was to protect remnant vegetation generally. The court further concluded that there was no error in the application of relevant sections of the Justices Act 1886 and the Sustainable Planning Regulation 2009, and the sentence was not manifestly excessive.

The appeal was dismissed, and costs were to be agreed upon by the parties. If the parties could not resolve the issue of costs, they were directed to file and serve written submissions within 21 days.

Orders

Orders of the court

1. The appeal is dismissed.

2. Costs are to be agreed by the parties. If the parties cannot resolve the issue of costs, I direct that the appellant and respondent file and serve written submissions within 21 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I discern no error in the approach taken by the learned magistrate. Section 116 of the Evidence Act 1977 provides:“116 Copies to be evidenceNotwithstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without—(a)proof that the copy was compared with the original document; and(b)notice to produce the original document having been given.” Section 27A of the Acts Interpretation Act 1954 provides for delegation of functions and powers and, among other matters, states the following:“(13) Writing purporting to be, or to contain, a delegation, or the revocation of a delegation, is evidence of the delegation or revocation.(14) A certificate signed by the delegator (or, if the delegator is a body, by a person authorised by the body for the purpose) stating anything in relation to a delegation is evidence of the thing.(15) A document purporting to be a certificate mentioned in subsection (14) is taken to be the certificate, and to have been properly given, unless the contrary is established.” All the learned magistrate did was to rule, only insofar as it related to an instrument of delegation, that a copy of the delegation was permissible under the Acts Interpretation Act 1954 as sufficient proof of the regional manager’s ability to provide certification under s 67 of the VMA. I do not accept the submission advanced by the appellant because the learned magistrate was correct to rule, as it related to the evidence led below, that the certificate was admissible under s 67 of the VMA.[37] There was sufficient evidence of delegation given by the chief executive to the regional manager who issued the certificate under s 67 of the VMA for the certificate to be admissible. This ground is therefore not established. [37]Ibid and also T5, p 28. It is said that the learned magistrate erred in law and/or fact in holding that the prosecution was not required to prove that the vegetation that was allegedly cleared was “remnant vegetation” of a particular regional ecosystem. It was highlighted that the purpose of the VMA is to protect remnant vegetation.[38] Given the complaint alleged that the defendant cleared remnant vegetation, it was submitted that an element of the offence, for which the prosecution ought to have proved beyond a reasonable doubt, was that the vegetation cleared by the defendant was remnant vegetation.[39] It was submitted that the ‘particular’ (or an essential factual ingredient of the offence) in the complaint summons was required to be proved by the prosecution beyond reasonable doubt. [38]See s 3(1)(a) of the VMA.[39]Reliance was placed on Kirk v Industrial Court of New South Wales (2010) 239 CLR 351 at 557-558, [26] and NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373 at [17], [24] and [25].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Lasker v Holeszko [2021] QDC 270

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 29 of 29 shown

Logan City Council v Brookes
[2020] QDC 24 Para 6

…he evidence, if believed, might reasonably have led a tribunal of fact to a different result. [52]I was also directed to Brookes v Logan City Council [2020] QDC 24, [13].…
McDonald v Holeszko
[2019] QCA 285 Para 4

…Unlike the appellant in McDonald v Holeszko [2019] QCA 285, the appellant in the present instance did not comprehensively disclose his true financial position.[56] It was submitted that the appellant’s situation was far removed from that of McDonald . Mr Power also highlighted, among other matters, that the evide…
Ross v Commissioner of Police
[2018] QDC 99 Para 7

…n in House v The King (1936) 55 CLR 499 at 505. In this respect, I agree with the observations expressed by Muir DCJ in Ross v Commissioner of Police [2018] QDC 99, where her Honour stated at [8] – [10]: “[8]On appeal, it is not a sufficient basis for this court to intervene, that this court considers it might h…
Lamont v Queensland Police Service
[2018] QDC 10 Para 7

…[61] Berner v MacGregor [2013] QDC at [8] – [18]; Cf Pullen v O'Brien [2014] QDC 92 at [27] to [35]; Lamont v Queensland Police Service [2018] QDC 10 at [4]. [5]; WAA v QPS [2014] QDC 297 at [4]–[6]; TND v Queensland Police Service [2014] QDC 154 at [27] – [33].…
Young v White
[2016] QDC 159 Para 7

…y different conclusion as to sentence”. [58]At 504 – 505. [59] Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4]. In Young v White [2016] QDC 159at[13]McGill SC DCJ considered that upon the demonstration of a vitiating error (for the purpose of House v The King ), the question is whether the appellant has…
Robinson Helicopter Co Inc v McDermott
[2016] HCA 22 Para 14

…ppellant must demonstrate some legal, factual or discretionary error of the trial magistrate. [4]See for instance Robinson Helicopter Inc v McDermott [2016] HCA 22, [43].…
WAA v QPS
[2014] QDC 297 Para 7

…[8] – [18]; Cf Pullen v O'Brien [2014] QDC 92 at [27] to [35]; Lamont v Queensland Police Service [2018] QDC 10 at [4]. [5]; WAA v QPS [2014] QDC 297 at [4]–[6]; TND v Queensland Police Service [2014] QDC 154 at [27] – [33].…
TND v Queensland Police Service
[2014] QDC 154 Para 7

…]; Lamont v Queensland Police Service [2018] QDC 10 at [4]. [5]; WAA v QPS [2014] QDC 297 at [4]–[6]; TND v Queensland Police Service [2014] QDC 154 at [27] – [33].…
Pullen v O'Brien
[2014] QDC 92 Para 7

…interfere with the original sentence. [60][2007] QCA 224 at [6]. [61] Berner v MacGregor [2013] QDC at [8] – [18]; Cf Pullen v O'Brien [2014] QDC 92 at [27] to [35]; Lamont v Queensland Police Service [2018] QDC 10 at [4]. [5]; WAA v QPS [2014] QDC 297 at [4]–[6]; TND v Queensland Police Service [2014] QDC 154…
R v Wruck
[2014] QCA 39 Para 7

…in my view, whether upon a proper review of the original record, the sentence was excessive. [57] R v Lawley [2007] QCA 243 at [18]; Cf R v Wruck [2014] QCA 39, where the Court of Appeal granted leave to appeal on the basis of the sentencing judge’s error in approach but dismissed the appeal on the basis that th…
R v Miller
[2003] QCA 404 Para 4

…he learned magistrate gave detailed consideration to s 15.[50] His Honour correctly noted that having regard to that provision, as well as R v Miller [2003] QCA 404, the reports were matters within which the Court could consider in arriving at an appropriate penalty. There was no error in receiving and placing re…
NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland
[2010] QSC 373 Para 1

…rt of New South Wales (2010) 239 CLR 351 at 557-558, [26] and NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373 at [17], [24] and [25].…
Dixon v LeKich
[2010] QCA 213 Para 3

…e the learned magistrate permitted the receipt of the evidentiary certificate under s 67 of the VMA .[36] [34]See for instance Dixon v LeKich [2010] QCA 213, especially [26]. [35]See T3, pp 18 – 22. [36]See T3, pp 18 – 22.…
R v Lawley
[2007] QCA 243 Para 7

…an appeal under s 222(2)(c) remains, in my view, whether upon a proper review of the original record, the sentence was excessive. [57] R v Lawley [2007] QCA 243 at [18]; Cf R v Wruck [2014] QCA 39, where the Court of Appeal granted leave to appeal on the basis of the sentencing judge’s error in approach but dismi…
R v Ikin
[2007] QCA 224 Para 7

…cretion in favour of allowing the appeal and that the discretion extends to a discretion not to interfere with the original sentence. [60][2007] QCA 224 at [6]. [61] Berner v MacGregor [2013] QDC at [8] – [18]; Cf Pullen v O'Brien [2014] QDC 92 at [27] to [35]; Lamont v Queensland Police Service [2018] QDC 10 at…
Marshall v Averay
[2006] QDC 356 Para 1

…amework. Since then, the Court of Appeal has decided two matters concerning the issue of onus of proof[14] which have been cited in Marshall v Averay [2006] QDC 356, a decision referred to by the learned magistrate.[15] McGill SC DCJ in Marshall distinguished Macarone and stated at [33] – [39]: [14] Phillips v Sp…
Muscat v Douglas
[2006] WASCA 107 Para 6

…ctly concerned with what amounted to “assessable development” as that term is used in the offence creating provision.[10] [10]See Muscat v Douglas (2006) 162 A Crim R 457 at [65] – [73].…
Stevenson v Yasso
[2006] QCA 40 Para 1

…trate.[15] McGill SC DCJ in Marshall distinguished Macarone and stated at [33] – [39]: [14] Phillips v Spencer [2005] QCA 317 and Stevenson v Yasso [2006] QCA 40. [15] Lasker v Holeszko No. 3 [2017] QMC, 28 February 2018, [23] and [45]. [33] The respondent cannot rely on that section for the purpose of putting t…
Phillips v Spencer
[2005] QCA 317 Para 1

…sion referred to by the learned magistrate.[15] McGill SC DCJ in Marshall distinguished Macarone and stated at [33] – [39]: [14] Phillips v Spencer [2005] QCA 317 and Stevenson v Yasso [2006] QCA 40. [15] Lasker v Holeszko No. 3 [2017] QMC, 28 February 2018, [23] and [45]. [33] The respondent cannot rely on that…
Dinsdale v The Queen
[2000] HCA 54 Para 7

…amiliar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 341, this Court should allow an appeal against sentence only where the error is clearly apparent. [Emphasis added] [10] Despite differing approaches b…
Gallagher v The Queen
[1986] HCA 26 Para 6

…approach to be taken with respect to granting leave, the parties referred me to the three main considerations as enunciated in Gallagher v The Queen (1986) 160 CLR 392 being:[52] (a)Whether the evidence relied on could with reasonable diligence have been produced by the accused at trial. (b)Whether the evidence is a…
Morris v Woollahra Municipal Council
[1966] HCA 65 Para 1

…arrickville Municipal Council (1954) 19 LGR(NSW) 232; Davis v Pember (1958) 5 LGRA 78; Morris v Woollahra Corporation (1966) 116 CLR 23.…
Dowling v Bowie
[1952] HCA 63 Para 1

…ions of Part III. [36] Reference was made by Williams J, with whom Kelly SPJ agreed, to the judgment of Sir Owen Dixon in Dowling v Bowie (1952) 86 CLR 136 at 140, where his Honour formulated a test which was said to determine, as a matter of substance not of form, where the burden of proof lies: “A qualification or…
House v R
[1936] HCA 40 Para 7

…lly different penalty more appropriate. What must be demonstrated to warrant intervention is governed by the principles laid down in House v The King (1936) 55 CLR 499 at 505. In this respect, I agree with the observations expressed by Muir DCJ in Ross v Commissioner of Police [2018] QDC 99, where her Honour stated…
Crosthwaite v Loader
[1995] QCA 42 Para 5

…uld not result in an acquittal.[44] [42]See for example [171] – [173] of the primary decision. [43]See [33] – [173] of the primary decision. [44] Crosthwaite v Loader (1995) 77 A Crim R 348, 352 – 353.…
[1975] QB 27
[1975] QB 27 Para 1

…Kirkpatrick v Bartlett [1936] SASR 10; Shillinglaw v Roberts (1891) 17 VLR 136; R v Oliver [1944] KB 68; R v Edwards [1975] QB 27. [17] Bell v Hyde [1939] VLR 300; Bourne v Marrickville Municipal Council (1954) 19 LGR(NSW) 218; Forrester v Marrickville Municipal Council (1954) 19 LGR(NSW) 232; Davis v Pember (…
House v The King
63 WN 176 Para 7

…sidered a marginally different penalty more appropriate. What must be demonstrated to warrant intervention is governed by the principles laid down in House v The King (1936) 55 CLR 499 at 505. In this respect, I agree with the observations expressed by Muir DCJ in Ross v Commissioner of Police [2018] QDC 99, where her Hon…
Pty Ltd v Sprowles
636 F Supp 1419

…lagher v The Queen (1986) 160 CLR 392 Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Marshall v Averay [2006] QDC 356 McDonald v Holeszko [2019] QCA 285 Ross v Commissioner of Police [2018] QDC 99 R v Miller [2003] QCA 404 COUNSEL: Mr S W Trewavas for the app…
[1944] KB 68
[1944] KB 68 Para 1

…ng terms. [16]For example, Kirkpatrick v Bartlett [1936] SASR 10; Shillinglaw v Roberts (1891) 17 VLR 136; R v Oliver [1944] KB 68; R v Edwards [1975] QB 27. [17] Bell v Hyde [1939] VLR 300; Bourne v Marrickville Municipal Council (1954) 19 LGR(NSW) 218; Forrester v Marrickville Municipal Council (1954) 19 LGR(…

Legislation cited in this decision · 7

Acts Interpretation Act 1954 (Qld)
1 mention (from Para 5)
Evidence Act 1977 (Qld)
1 mention (from Para 2)
Justices Act 1886 (Qld)
1 mention (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 3)
Planning Act 2016 (Qld)
1 mention (from Para 2)
Sustainable Planning Act 2009 (Qld)
1 mention (from Para 1)
Vegetation Management Act 1999 (Qld)
1 mention (from Para 1)

CITATION:	Lasker v Holeszko [2021] QDC 270
PARTIES:	BENJAMIN JON LASKER (Appellant) v CHRISTOPHER JOHN HOLESZKO (Respondent)
FILE NO:	BD208/20
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Caboolture
DELIVERED ON:	5 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2021
JUDGE:	Jarro DCJ
ORDER:	1. The appeal is dismissed. 2. Costs are to be agreed by the parties. If the parties cannot resolve the issue of costs, I direct that the appellant and respondent file and serve written submissions within 21 days.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was charged with four offences against the Sustainable Planning Act 2009 (Qld) in the magistrates court – where the magistrate found that the appellant should be found guilty in respect of each of the four charges and imposed a penalty of $75,000 – where both the conviction and sentence is appealed under s 222 of the Justices Act 1886 (Qld) on various grounds – whether the evidence adduced by the prosecution was insufficient to establish the defendant’s guilt beyond reasonable doubt in relation to each of the four charges – whether expert evidence was inadmissible as it relied on evidence not before the court – whether an exhibit was inadmissible as it was a copy, not an original – whether the prosecution was not required to prove that the vegetation that was allegedly cleared was “remnant vegetation” of a particular regional ecosystem – whether erroneous weight was placed on the evidence of an expert on the basis that they failed to comply with the established scientific method – whether the learned magistrate correctly applied s 76 of the Justices Act 1886 (“JA”) in the application of Schedule 24 of the Sustainable Planning Regulation 2009 (“SPR”) – whether the sentence was manifestly excessive.
LEGISLATION:	Acts Interpretation Act 1954 (Qld) Evidence Act 1977 (Qld) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) Sustainable Planning Act 2009 (Qld) Sustainable Planning Regulation 2009 (Qld) Vegetation Management Act 1999 (Qld)
CASES:	Gallagher v The Queen (1986) 160 CLR 392 Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Marshall v Averay [2006] QDC 356 McDonald v Holeszko [2019] QCA 285 Ross v Commissioner of Police [2018] QDC 99 R v Miller [2003] QCA 404
COUNSEL:	Mr S W Trewavas for the appellant Mr B J Power for the respondent
SOLICITORS:	Marland Law for the appellant Queensland Department of Natural Resources, Mines & Energy, Legal Division for the respondent