McKay v Doonan

[2005] QDC 311

DISTRICT COURT OF QUEENSLAND

CITATION:

McKay v Doonan [2005] QDC 311

PARTIES:

JAMES ASHLEY McKAY  (Appellant)

V

BERNARD GEORGE DOONAN (Respondent)

FILE NO/S:

3610/2004

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

28 October, 2005

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2005

JUDGE:

Judge Alan Wilson SC

ORDER:

1 Appeal upheld

2 On the charge of destroying trees on Crown Land, the appellant is ordered to pay a fine of $10,000

CATCHWORDS:

APPEAL – CONSTRUCTION OF TREE CLEARING PERMITS – whether permits issued to appellant permitted clearing of cypress pines – construction of permits

COUNSEL:

Mr P Flanagan SC for the Appellant

Mr R Mulholland QC for the Respondent

SOLICITORS:

Clewett Corser for Appellant

Crown Law for Respondent

1. Mr McKay appeals his conviction in Charleville Magistrates Court on 27 August 2004 on two counts of destroying commercial cypress pine trees on and near his grazing property, Torres Park, situated about 100km north-east of Augathella.  He was found to have unlawfully removed 19,702 trees on Torres Park and fined $125,000, and ordered to pay compensation assessed at $85,353.40 and costs of $65, 530.20 – in total, $275,883.60.  He also pleaded guilty to a third charge, involving clearing on a road reserve.

1. Torres Park is a property of 53,000 acres operated by his family for many years and, since 1984, by Mr McKay and his wife.  He did not dispute that between 30 April and 20 November 1999 contractors who were ‘broad acre clearing’ parts of Torres Park destroyed 2,307 cypress pine trees on Lot 1 and 17,395 trees on Lot 5 each of which, relevantly, had a diameter of more than 19cm.

1. The central issue at trial, and on appeal, was whether or not two Tree Clearing Permits (TCPs) issued to Mr McKay permitted the clearing of cypress pine trees with that, or greater, girth.   Both were interpreted to prohibit it.  The appeal seeks to overturn that finding or, in the alternative, reduce the quantum of the fine, compensation and costs.  A complicating factor is Mr McKay’s guilty plea to the further charge, which the court dealt with (as it properly could) by imposing one fine for all three convictions; if, however, the appeal against conviction on the other charges succeeds he nevertheless remains exposed to a penalty on this count, which would require determination.

1. He was charged under s 53(1)(b) of the Forestry Act 1959, which provides:

(1)    A person must not

…

(b) destroy a tree, or get other forest products or quarry material, on a Crown    holding;

…

otherwise than in accordance with a permit, lease, licence, agreement or contract    granted or made under this Act, the Land Act 1962, or the Mining Acts or another Act.

1. The offence is created, then, if a person destroys a tree ‘…otherwise than in accordance with a permit’.  The court held that the true meaning of the TCPs is at the core of Mr McKay’s criminal liability, if any[1], and summarised the issue they raised:

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