McDonald v Holeszko

Case [2018] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

McDonald v Holeszko [2018] QDC 204

PARTIES:

DANIEL JAMES MCDONALD
(appellant)

v

CHRISTOPHER JOHN HOLESZKO
(respondent)

FILE NO/S:

D1/2017

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Charleville

DELIVERED ON:

23 November 2018

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

16 April 2018

JUDGE:

Dearden DCJ

ORDER:

Application for leave to adduce new evidence refused.1.   

Appeal against conviction dismissed2.   .

Appeal against sentence refused3.   .

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the appellant was found guilty of six offences of carrying out assessable development without an effective development permit – whether the learned magistrate had fallen into error in finding the appellant guilty – whether the fine and costs imposed by the learned magistrate were manifestly excessive – whether the appellant was bound by the provisions of the Sustainable Planning Act in respect of the vegetation on his freehold land, despite being the registered title owner of that land – whether a belief by the appellant that he was entitled to clear vegetation was a defence to the charges

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – where the appellant sought to rely on new evidence – where the appellant was granted leave to argue the issue of the admissibility of an affidavit – where the respondent was not taken by surprise – where the material was available to the appellant at the time of the Magistrates’ Court trial

LEGISLATION:

Criminal Code 1899 (Qld) s.22(2)

Justices Act 1886 (Qld) ss.222, 223

Penalties and Sentences Act 1992 (Qld) s.19(1)(a)

Sustainable Planning Act 2009 (Qld) ss.578, 599

Vegetation Management Act 1999 (Qld) s.8

CASES:

Bone v. Mothershaw [2003] 2 Qd R 600

Burns v Queensland [2006] QCA 235

Christopher Holeszko v Daniel McDonald and Katrina McDonald (No.2) [2017] QMC 23

Dore v State of Queensland & Anor [2004] QDC 364

Forrest v Commissioner of Police [2017] QCA 132

McDonald v Queensland Police Service [2017] QCA 255

Pavlovic v Commissioner of Police [2007] 1 Qd R 344

Scriven v Sargent (No.2) [2018] 1 Qd R 282

Union Steamship Co of Australia Pty Ltd v King [1988] 166 CLR 1

Viro v The Queen (1978) 141 CLR 88

COUNSEL:

The appellant appeared self-represented

B.J. Power for the respondent

SOLICITORS:

The appellant appeared self-represented

Department of Natural Resources and Mines (Legal Division)

Introduction

  1. The appellant, Daniel James McDonald, was found guilty of six offences of carrying out assessable development without an effective development permit contrary to s.578(1) of the Sustainable Planning Act 2009 (Qld), on 10 August 2017 at the Charleville Magistrates Court. The appellant was fined $40,000, ordered to pay $86.40 costs of court, professional costs of $6,275.00, investigation costs of $46,397.70 and outlays of $19,709.72. The fine and other amounts ordered were referred to the State Penalties Enforcement Registry for registration and enforcement.

Grounds of appeal

Continue reading McDonald v Holeszko

Sign in free to access the full text

Details
AGLC
McDonald v Holeszko [2018] QDC 204
Case
[2018] QDC 204
Decision Date

CaseChat Overview and Summary

In the matter of McDonald v Holeszko, the appellant, Daniel James McDonald, was found guilty in the Magistrates' Court of six offences of carrying out assessable development without a development permit. McDonald appealed against both his conviction and sentence, arguing that the magistrate had erred in finding him guilty and that the penalty imposed was excessive. He sought to introduce new evidence to support his appeal, which the respondent, Holeszko, contested on the basis that the evidence was available at the time of the original trial and therefore inadmissible.

The legal issues before the court were whether the magistrate had erred in finding the appellant guilty, whether the sentence was manifestly excessive, and whether the appellant was bound by the provisions of the Sustainable Planning Act in respect of the vegetation on his freehold land. Additionally, the court had to determine if McDonald's belief that he was entitled to clear the vegetation was a valid defence to the charges, and whether the new evidence presented should be admitted under the Justices Act s.223(2).

The court considered the criteria for admitting new evidence as set out in Pavlovic v Commissioner of Police, focusing on whether the evidence could have been produced at the trial with reasonable diligence, whether it was credible, and whether it might have led to a different verdict. The court found that McDonald had been able to produce the financial statements and other evidence at the time of the trial, and therefore, the new evidence was not admissible. Furthermore, the court was not persuaded that the magistrate had erred in finding McDonald guilty or that the sentence was manifestly excessive. The appeal against conviction and sentence was dismissed.

The court concluded that McDonald was bound by the provisions of the Sustainable Planning Act in respect of the vegetation on his freehold land, and that his belief that he was entitled to clear the vegetation did not constitute a valid defence. The application for leave to adduce new evidence was refused, the appeal against conviction was dismissed, and the appeal against sentence was refused.

Orders

Orders of the court

Application for leave to adduce new evidence refused.1.

Appeal against conviction dismissed2. .

Appeal against sentence refused3. .

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Justices Act s.223(2) provides: - “(2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.” The relevant test for the consideration of new or fresh evidence on an appeal pursuant to Justices Act s.223(2) is set out in Pavlovic v Commissioner of Police [2007] 1 Qd R 344, as follows: -(1)“…whether ‘the evidence relied on could with reasonable diligence have been produced by the accused at the trial’ [which] reflects the primary importance of the trial in the administration of justice. A trial cannot be regarded as a dress rehearsal or as the first step in a process which inevitably leads to an appeal and a possible retrial.”[9](2) “…whether the ‘evidence is apparently credible (or at least capable of belief).’”[10](3) “…whether the evidence, if believed ‘might reasonably have led’ the tribunal of fact ‘to return a different verdict.’” [11][9]Pavlovicv Commissioner of Police [2007] 1 Qd R 344, 349 at [31].[10]Pavlovicv Commissioner ofPolice [2007] 1 Qd R 344, 349 at [35].[11]Pavlovicv Commissioner of Police [2007] 1 Qd R 344, 349 at [36]. The documents exhibited to the appellant’s affidavit are helpfully described in the Respondent’s Outline of Argument in these terms (which I gratefully adopt): - The appellant’s oral submission in respect of the admissibility of the “new evidence” was that “… [the appellant] believes [it] is relevant… not only [to] conviction, but also to penalty and…to the claim of costs.” In particular, the appellant submitted that the “Australian Tax Office financial statements… for the period…2011 to 2017 showing [his] taxable income… was essentially just to provide an additional understanding of what it was [the appellant] did provide in the sentencing submissions in the trial as to [the appellant’s] financial position.”[13][13]Appeal transcript 1-6 ll 21-31. During the appellant’s submissions on the “new evidence” issue, I queried the appellant as to whether “…this was all material that was available to you at the time [of the Magistrate’s Court trial], wasn’t it?” to which the appellant replied, “well I guess it would have been, your Honour, yes.”[14] The appellant then clarified that with the exception of the Notice of Assessment for the financial year ended 30 June 2017, issued a month after the date of sentence, all of the financial material in the affidavit was available as at the date of sentence.[15][14]Appeal transcript 1-7 ll 17-20.[15]Appeal transcript 1-8. The appellant acknowledged that the documents relevant to the freeholding of the leasehold land[16] were clearly “documentation that existed long before [the appellant was] charged.”[17][16]Affidavit of Daniel James McDonald sworn 29 November 2017, Exhibits DM-001, DM-002 and DM-003.[17]Appeal transcript 1-10 ll 28-30. In respect of exhibit DM-004,[18] the appellant submitted that the documents showed that “there has been an error on the part of those responsible for the administration of real property, that is, vegetation, and those responsible for the administration of the Vegetation Management Act and the Sustainable Planning Act.”[19][18]Affidavit of Daniel James McDonald sworn 29 November 2017.[19]Appeal transcript 1-13 ll 19-22.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.