DISTRICT COURT OF QUEENSLAND
CITATION:
Marshall v Averay [2006] QDC 356
PARTIES:
MELVILLE ROBERT MARSHALL
Appellant
V
TONI AVERAY
Respondent
FILE NO/S:
D215/05; MAG – 00099383/03(8)
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Maroochydore
DELIVERED ON:
29 September 2006
DELIVERED AT:
Brisbane
HEARING DATE:
21 July 2006
JUDGE:
McGill DCJ
ORDER:
Appeal allowed in part; conviction of the appellant on count 1 set aside; sentence imposed and order under the Integrated Planning Act set aside; and in lieu thereof count 1 struck out. The appeal otherwise dismissed. Adjourned for consideration of sentence and costs.
CATCHWORDS:
BUILDING CONTROL AND TOWN PLANNING – Use of land – offences – whether offence to use land for other than lawful use.
JUSTICES – Jurisdiction – complaint – formal requirements – failure to state properly offence alleged – complaint and conviction invalid.
STATUTES – Interpretation – consistent with structure and operation of statute as a whole – penal provision – significance of explanatory note.
CRIMINAL LAW – Onus of proof – statutory offence – defence as exception to general liability – right to continue pre-existing use of land – onus on defendant.
CRIMINAL LAW – Reopening case – gap in the prosecution case – grant of leave within discretion.
LOCAL GOVERNMENT – Ordinances, regulations and by-laws – local law – not invalid as establishing a process about development.
EVIDENCE – Judicial notice – subordinate legislation – local law - taken of terms and commencement, under Evidence Act 1977.
Integrated Planning Act 1997 s 4.3.5.
Local Government Act 1993 ss 854, 873, 874, 896, 898.
Evidence Act 1977 s 43.
Justices Act 1886 ss 42, 47(1), 53(1), 76.
Brady v Mazurak [1983] WAR 291 – not followed.
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 – considered.
City of Sterling v Clemente [1999] WASC 245 – cited.
Danielle v Shire of Swan (1977) 93 LGERA 201 – cited.
Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 – considered.
Dowling v Bowie (1952) 86 CLR 136 – considered.
Fuller v Postich, ex parte Postich (No. 2) [1956] QWN 49 – applied.
Grieve v Lewis (1917) 23 CLR 413 – applied.
Re Hawkes, ex parte Madsen (1960) 60 SR (NSW) 551 – applied.
John L Pty Ltd v New South Wales (1987) 163 CLR 508 – applied.
Ex parte Lovell, re Buckley (1938) 38 SR (NSW) 153 – cited.
Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284 – distinguished.
Norton v R (2001) 24 WAR 488 – applied.
Ostrowski v Palmer (2004) 218 CLR 493 – applied.
Pikor v Fletcher (1972) Tas SR 91 – applied.
R v CDR (1995) 78 A Crim R 572 – applied.
R v Edwards [1975] QB 27 – considered.
R v Hunt [1987] AC 352 – considered.
R v Magistrate at Roma, ex parte Rowlands [1939] St R Qd 184 – cited.
R v South Brisbane Justices, ex parte Thornton [1903] St R Qd 152 – cited.
Reynolds v Bogan Holdings Pty…
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- AGLC
- Marshall v Averay [2006] QDC 356
- Case
- [2006] QDC 356
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the appellant's use of the land as a car dealership constituted an offence under the local planning instrument, particularly in light of the requirement for the complaint to properly state the offence. The court examined the complaint's compliance with formal requirements and the adequacy of the description of the alleged offence. Additionally, the court considered the interpretation of the statutory provisions governing the use of land and the burden of proof on the appellant to establish the pre-existing use of the land. The court also had to determine whether the local planning instrument was valid and if the prosecution had established all elements of the offence beyond reasonable doubt.
The court found that the complaint did not properly state the offence, leading to the invalidity of the conviction on count 1. The court noted that the complaint's failure to meet formal requirements rendered the conviction defective. Regarding the interpretation of the statutory provisions, the court held that the appellant had the onus to prove the pre-existing use of the land as an exception to the general prohibition. The court also concluded that the local planning instrument was valid and did not establish an invalid process about development. The court acknowledged that the prosecution had not established all elements of the offence beyond reasonable doubt, particularly concerning the appellant's use of the land for a car dealership. Consequently, the conviction on count 1 was set aside, and the sentence and order under the Integrated Planning Act were also set aside.
The appeal was allowed in part, with the conviction on count 1 set aside, the sentence and order under the Integrated Planning Act set aside, and count 1 struck out. The appeal was otherwise dismissed. The matter was adjourned for consideration of sentence and costs. This decision underscores the importance of formal requirements in complaints, the interpretation of statutory provisions, and the burden of proof in land use offences.
Orders
Orders of the court
Appeal allowed in part; conviction of the appellant on count 1 set aside; sentence imposed and order under the Integrated Planning Act set aside; and in lieu thereof count 1 struck out. The appeal otherwise dismissed. Adjourned for consideration of sentence and costs.
Background
Background to the litigation
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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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