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
COUNSEL: Mr S W Trewavas for the appellant
Mr B J Power for the respondentSOLICITORS: 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…
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- AGLC
- Lasker v Holeszko [2021] QDC 270
- Case
- [2021] QDC 270
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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