MEAD v WHISSON - [2006] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
MEAD v WHISSON
Judgment of The Honourable Justice White
10 March 2006
ENVIRONMENT AND PLANNING - PARKS AND RESERVES - REGULATION OF ACTIVITIES WITHIN PARKS AND RESERVES
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction and sentence for two offences, one of clearing native vegetation contrary to s 26 of the Native Vegetation Act 1991 ("the NVA"), the second the taking of a native plant on a reserve contrary to s 47(1)(a) of the National Parks and Wildlife Act 1972 - whether magistrate erred by reversing onus of proof - whether magistrate erred by reason of failure to make a specific finding that appellant had caused or permitted clearing of native vegetation - whether magistrate's finding that plants had been taken by other persons precluded a finding of guilt against appellant - whether fine and forfeiture orders imposed by magistrate were manifestly excessive.
Held: magistrate's finding of guilt for the offence of clearing native vegetation was not made by a reversal of the onus of proof - statutory definition of "to clear" in the NVA extends to persons who cause or permit others to clear - implicit in magistrate's reasons that appellant had permitted the clearing of native vegetation - a departure by the prosecution from the stated particulars does not warrant a setting aside of a finding of guilt unless there has been material unfairness or prejudice to the defendant - appellant unable to demonstrate relevant unfairness - fine imposed by magistrate was excessive by reason of failure to account for loss suffered by appellant for payments made to individuals who had cleared the vegetation - no demonstrable error by magistrate in making order for forfeiture of appellant's equipment - appeal against conviction dismissed - appeal against sentence allowed only to the extent that the fine of $30,000 imposed by the magistrate be set aside and in lieu thereof fine of $23,000 imposed.
R v Maxwell [1978] 1 WLR 1350; Piva v Brinkworth (1993) 59 SASR 92; Caldow and Shannon v Hemming (1991) 55 A Crim R 449, applied.
Miller v Williams (1990) 53 SASR 82; Chappell v A Ross & Sons Pty Ltd [1969] VR 376; Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481; Hayes v Kenning (Unreported, Supreme Court of South Australia, Duggan J, 17 September 1992, discussed.
R v Zampogna [2003] SASC 75; (2003) 85 SASR 56, considered.

MEAD v WHISSON
[2006] SASC 69
Magistrates Appeal

WHITE J The appellant was found guilty in the Magistrates Court of two offences. The first was that between 4 February 2003 and 31 August 2003, he had cleared native vegetation in the area comprising the Billiat Conservation Park, other than in accordance with the Native Vegetation Act 1991 (“NVA”), contrary to s 26 of that Act.
The second offence was that between 4 February 2003…

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 MEAD v WHISSON

Details

AGLC: MEAD v WHISSON [2006] SASC 69
Case: [2006] SASC 69
Decision Date: 10 March 2006

CaseChat Overview and Summary

The matter of Mead v Whsson involved an appeal against convictions and sentences imposed by a magistrate. The appellant was found guilty of two offences: clearing native vegetation contrary to section 26 of the Native Vegetation Act 1991, and taking a native plant on a reserve contrary to section 47(1)(a) of the National Parks and Wildlife Act 1972. The appellant contested the conviction and sentence on several grounds, including whether the magistrate erred by reversing the onus of proof, failing to make a specific finding that the appellant had caused or permitted the clearing of native vegetation, and whether the fine and forfeiture orders were manifestly excessive.

The court considered whether the magistrate's finding of guilt for clearing native vegetation was made by reversing the onus of proof. The statutory definition of "to clear" in the Native Vegetation Act extends to persons who cause or permit others to clear, and it was implicit in the magistrate's reasons that the appellant had permitted the clearing of native vegetation. The court also considered whether the magistrate's finding that the plants had been taken by other persons precluded a finding of guilt against the appellant, and found that a departure by the prosecution from the stated particulars did not warrant a setting aside of the finding of guilt unless there had been material unfairness or prejudice to the defendant. The appellant was unable to demonstrate relevant unfairness. The court further considered whether the fine and forfeiture orders imposed by the magistrate were manifestly excessive, and found that the fine was excessive by reason of failure to account for loss suffered by the appellant for payments made to individuals who had cleared the vegetation. However, there was no demonstrable error by the magistrate in making the order for forfeiture of the appellant's equipment.

The appeal against the conviction was dismissed, and the appeal against the sentence was allowed only to the extent that the fine of $30,000 imposed by the magistrate be set aside and in lieu thereof, a fine of $23,000 be imposed.

Orders

Orders of the court

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Background

Background to the litigation

The word “take” is defined in s 3 relevantly as follows:(a) …(b) with reference to a plant means— (i)to remove the plant or part of the plant, from the place in which it is growing; or (ii) to damage the plant.Background Circumstances The Billiat Conservation Park is a large conservation park in the Mallee area of South Australia. In 2003, the appellant was the occupier of two properties which adjoined the Park’s southern boundary. Those two properties were separated by a third property owned by interests associated with a Mr Porker, which also adjoined the Park on its southern side. It is the appellant’s property, on the western side of Mr Porker’s property, and which adjoined the Park, which is relevant in these proceedings. It is Section 115 in the Hundred of Cotton. Access to the Park through its southern boundary could be obtained only through the property of one or other of the appellant or Mr Porker. On 27 August 2003, employees of the Department of Environment and Heritage observed that a substantial amount of Brush had been cut, bundled up and stacked on the appellant’s property, adjacent to its boundary with the Park. In addition the employees observed tracks through the boundary fence heading north into the Park. Trees had been chopped off to allow entrance to the Park. In addition, the employees observed two tractors and a trailer next to the stack of bundles. A ranger, a Mr Fraser, attended at these locations on the following day. Mr Fraser followed the tracks into the Park for approximately one kilometre. He saw evidence of Brush having been cut. Some of the cuts appeared recent, others of longer standing. Mr Fraser then interviewed the appellant. The appellant admitted that the bundles of Brush were stacked on his land, and told Mr Fraser that they had been cut with Brush cutting tools over the previous few months so as to make a green belt for fire protection, while at the same time getting some compensation for doing so. He said that he had already arranged to sell the Brush for $8.50 per bundle plus GST to an Adelaide firm of fencing contractors. The appellant acknowledged that only Brush had been cut and that other native vegetation had been left undisturbed. The appellant declined to say who had cut the Brush, and whether the cutters had been working for him at the time. He admitted that he did not have a current permit for the cutting of the Brush. When asked to indicate where the Brush had been cut, the appellant replied, “It was cut in the scrub area to our north” and pointed to the north. The interview took place on the appellant’s property (which had been substantially cleared) approximately 50 metres from its boundary with the Conservation Park. Thus the effect of the appellant’s answer and indication was that the Brush had been cut in the scrub area and not on his own property. The appellant also said that the boundary of the Conservation Park was some three to four kilometres north of the point where the interview took place and that the intervening area of scrub was simply unallotted Crown land. (In his evidence at trial, the appellant acknowledged that he was mistaken in this respect). The appellant admitted to owning the tractors and trailer located alongside the bundles of Brush, and admitted that they had been used in their retrieval. The magistrate accepted Mr Fraser’s evidence of his interview with the appellant and that the statements attributed to the appellant had been made by him in that interview.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

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Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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