MEAD v WHISSON
[2006] SASC 69
•10 March 2006
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 69Magistrates 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 and 31 August 2003, he had taken a native plant on a reserve (the Billiat Conservation Park) contrary to s 47(1)(a) of the National Parks and Wildlife Act 1972 (“NPWA”).
The vegetation involved was Melaleuca uncinata. The common name of this species is Broom Bush. It is a popular form of domestic fencing material and has a ready market. In the proceedings below Broom Bush was referred to as “Brush”. I will refer to it in the same way.
Acting pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the magistrate imposed a single penalty for both offences, namely, a fine of $30,000. In addition, he ordered the forfeiture of certain equipment used in the taking of the Brush, namely, two tractors and one trailer as well as forfeiture of the bundles of Brush taken by the appellant.
Initially the appellant appealed only against the sentence. However, leave was given to the appellant to amend his notice of appeal so as to appeal also against the respective convictions. In addition, I granted the appellant an extension of time in which to institute the appeal against conviction. I did so because the appellant had been misled by a typographical error in the transcription of the magistrate’s ex tempore reasons and because I was satisfied that the appeal raised issues of substance. In addition, the respondent did not point to any prejudice which could not be dealt with by an appropriate order as to costs.
Both at the trial, and on the appeal, it was accepted that the Brush had been “cleared” and “taken” in contravention of the NVA and NPWA respectively. The appellant contended however that he should not have been found to have been involved in its clearance or taking.
The Statutory Provisions
Section 26(1) of the NVA provides (relevantly):
A person must not clear native vegetation unless the clearance is in accordance with this Part.
Section 47(1) of the NPWA makes it an offence to take a native plant from a reserve. It provides:
(1) Subject to this Part, a person must not take a native plant—
(a) on any reserve, wilderness protection area or wilderness protection zone; or
(b) on any other Crown land; or
(c) on any land reserved for or dedicated to public purposes; or
(d) on any forest reserve.
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.
Mr Fraser observed, on 28 August 2003 and on a later occasion, that a number of tracks had been cut into the Conservation Park, apparently associated with the cutting and retrieval of the Brush. In some areas of the Park there had been substantial thinning of the Brush.
Mr Fraser arranged for the tractors, trailer and the bundles of Brush to be seized. The magistrate accepted that approximately 1,860 bundles (the equivalent of three semi-trailer loads) had been seized, and that the total amount cut had been 2,000 bundles.
The Solicitor’s Letter
On 16 December 2004, the appellant’s solicitors, Mellor Olsson, wrote a letter to the Crown Solicitor. The contents of this letter assumed some importance at the trial. The solicitors sought to have the charges against the appellant withdrawn. In support of that request, the solicitors set out the appellant’s “defence”. The elements of that defence were that no Brush had been cut inside the Billiat Conservation Park, and that all of the Brush observed by Mr Fraser had been cut as part of the clearance of a fence line on the property of the appellant’s neighbour, Mr Porker, which fence line was parallel to, and 10 metres from, the border of Mr Porker’s property with the Park. Being part of the clearance of the fence line, it was contended that this cutting of the Brush was authorised by Regulation[1]. It was submitted that the appellant had engaged two men to carry out the Brush cutting, but had not supervised the work. It was contended that the area cleared for the fence line “would easily account” for the amount of Brush in the bundles. The letter did not contain any detail as to when the Brush cutting had been carried out.
[1] Native Vegetation Regulations 1991, reg 3(j) (replaced by Native Vegetation Regulations 2003, reg 5(s), which came into operation on 25 August 2003.
The principal thrust of the letter was the claim that none of the Brush located on the appellant’s property had been taken from the Billiat Conservation Park, but there was an additional claim that the appellant was both unaware of, and not responsible for, any unlawful conduct by the two brush cutters.
In response to this foreshadowed defence, the prosecution led evidence from a scientist with expertise in native vegetation. That scientist carried out a survey of the Brush and of its density in the vicinity of the fence line to which the appellant’s solicitors had referred. Making assumptions as to the amount of Brush which could have been grown in the area of the cleared fence line, many of which were favourable to the appellant, he calculated the maximum possible amount of Brush which could have been cut from the area of the fence line. He compared that calculation with the quantity found on the appellant’s property. His conclusion was that the amount seized by Mr Fraser could not possibly have been grown in the area cleared for the fence line.
The scientist also considered that the cut bundles of Brush were atypical of the Brush actually growing in the vicinity of the fence line. This too indicated that the cut Brush had not been obtained from the area of the cleared fence line.
The Defence Case at Trial
The appellant gave evidence at his trial. His evidence was to the effect that he had been approached by two men in early 2003 inquiring whether he had any Brush to cut. He said that he then spoke to his neighbour, Mr Porker, who gave him permission to cut Brush along the fence line near to the boundary of his (Mr Porker’s land) and the Conservation Park. This fence line was approximately 3.5 kilometres long. The appellant said that he had instructed the two men that they could cut Brush along that fence line. He agreed to buy the Brush which they cut at $3.50 per bundle. He said that he also agreed that the two men could use his tractors and trailer. Before permitting the men to start, he obtained a signed indemnity from each, absolving him from any responsibility for their actions. The appellant said that he did not accompany the two men to Mr Porker’s fence line but instead gave them a map with directions. He asked the men to leave the bundles of cut Brush on firm ground. This explained, he said, why the bundles of Brush had not been left adjacent to the fence line but instead had been transported over a distance of at least one kilometre to the place on his property where the bundles were seen by Mr Fraser. He acknowledged that the men must have carried out numerous trips from the place where the Brush had been cut to the dumping site on his own property.
The appellant said that he had made two payments to the men, $3,800 and $3,000 respectively, on 11 February 2003 and 25 February 2003 and that no further Brush cutting had been carried out after that time. The appellant said that he had paid the men without going to check the number of bundles which had been cut or even where they had been left. In fact, he said that even some six months later, at the time the bundles were detected by Mr Fraser, he had still not been to the site on his property to inspect the bundles of Brush. The appellant acknowledged that in addition to the bundles found on his property, some 130 bundles had already been sold.
The appellant called his neighbour, Mr Porker, to give evidence. Mr Porker confirmed that he had given the appellant permission to clear Brush along his fence line in February 2003. He also said that at the end of February 2003 he had observed that clearing had occurred.
Magistrate’s Findings
The magistrate gave an ex tempore decision.
The magistrate accepted the opinion of the scientist that not all of the bundles of Brush could have come from the area cleared for the fence line on Mr Porker’s property. The magistrate accepted that at most 140 of the bundles could have come from that area. He held that the balance of the bundles had been cut in the Conservation Park. Thus the claim by the appellant as to the source of the Brush was rejected.
The magistrate accepted the appellant’s evidence concerning the inquiry by two men about Brush cutting. He also accepted that some arrangement had been made with the two men and the evidence of the arrangement with Mr Porker. Generally, however, the magistrate did not regard the appellant’s evidence as reliable. The magistrate rejected the appellant’s claim that he had not attended in the area at all while the cutting was taking place. He relied in particular on the appellant’s statement to Mr Fraser that the Brush had been cut “in the scrub area to our north”, regarding this as an indication he did know where the cutting was taking place.
The magistrate said:
What [the appellant] advances in his own sworn evidence is that it was a case of all care and responsibility (sic). He in fact gave permission to the men. He obtained an indemnity from them. He gave them instructions that they were to confine their attendance to the proposed track which he sought and obtained permission from Mr Porker (sic) and that such departures that might have occurred did so without his knowledge at the time. I indicate I find that that series of propositions should not be accepted. By indicating that Brush had been taken from the area to the north of Section 115, it is in my view apparent that [the appellant] was giving voice to a state of knowledge different to that which he advanced in his sworn evidence.
The magistrate also considered that the Brush was cut for commercial purposes. He referred to the following question and answer in the interview of the appellant with Mr Fraser:
Q. Why was only Brush targeted in the clearance?
A.Because we can get some money back. It is most flammable. It forms the understorey so it does reduce the fire risk.
The magistrate then continued:
The commercial aspect of this matter is apparent from that as is also the arrangements with Mr Porker and with the cutters’ arrangements. I reject the proposition, even if it were to be advanced in the sworn evidence which it was not, that this was some form of fire prevention and fire break preparation. It is that which was in fact initially being advanced to Mr Fraser. Those matters in fact cut very hard across [the appellant’s] credibility. It is for those reasons that I reject the proposition advanced by [the appellant] in his sworn evidence that he had no direct knowledge of the immediate activities of the cutters and that he believed at all times that they were confined and restrained to that area identified by Mr Porker and for which lawful permission had been obtained.
The magistrate concluded that the appellant was, in the interview with Mr Fraser, attempting to distance himself from the conduct of the cutters by advancing the claim that he had no knowledge at all about the movements of the Brush cutters. The magistrate concluded that the appellant well knew from where the Brush had been obtained. This is evident in the following extract from his reasons:
I would reach the conclusion, should it be necessary, that [the appellant] understood the location of the piles of Brush and that he was well aware that they were immediately adjacent to an entrance to the Conservation Park, and that in fact he knew that the Brush had been obtained from the Conservation Park, or more particularly, that the vast majority of it had been obtained from the Conservation Park in a manner which was not authorised by law. … I reach the conclusion that following the cutting of the Brush that in fact [the appellant] attended in the area, that he had knowledge of the location of the material, and that he paid following an inspection of the area and an inspection of the quantity of the material in fact being sold.
The magistrate summarised his factual findings as follows. Cutting of Brush had occurred in the Park. While there had been some cutting of material from the fence line on Mr Porker’s property for which lawful permission had been obtained, that accounted for only 140 of the 2,000 bundles of Brush. That meant that some 1,860 bundles of Brush had been taken from the Park. Those bundles had been taken with the knowledge of the appellant that there would be cutting of Brush in the Park and further, that before making payment for the bundles, the appellant had attended and made an inspection. Given that there were two payments some two weeks apart, I infer that the magistrate considered that there had been at least two inspections of the work by the appellant. The first, at least, must have been while the work was still being carried out. The Brush was cut at a time when the appellant was in possession of orders for the supply of Brush and the appellant had in fact sold approximately 130 bundles to a contractor. Finally, the magistrate accepted that the cutting and clearing of the Brush had occurred in February 2003 and that that the whole of the cutting had been carried out by the two men paid by the appellant.
The magistrate then said:
In essence, each of the separate counts – although I do not intend to spend time going through them – provide for what is commonly described as a reverse onus. The remarks I have already made about my rejection of [the appellant’s] sworn evidence by his state of knowledge, in my opinion, is sufficient to deal with that reverse onus. I reject the proposition that the [the appellant] has established in either the native vegetation, Count 1, or the National Park and Wildlife, Count 2, that he has a defence available to him either under s 47(6) of the National Parks and Wildlife Act or under s 26 or more particularly Part 5 of the Native Vegetation Act. I do not intend to proceed to dissect each of those pieces of legislation in the detail about which I have addressed. My findings of fact preclude those matters. It follows that in my opinion Counts 1 and 2 have been proved beyond a reasonable doubt.
Against that background, I now turn to the grounds of appeal against the convictions.
Count 1 and a Reverse Onus
The appellant’s first complaint was that the magistrate had reached his conclusion on Count 1 by assuming that there was a reversal of the onus of proof, and that the appellant had not discharged the onus on him.
Although the magistrate considered that a reverse onus of some kind was applicable in the case of Count 1, he did not identify the relevant statutory provision. The appellant submitted that the magistrate should be taken to have been referring to s 34(2) of the NVA which provides:
Where in enforcement proceedings under Part 5 Division 2 or in proceedings for an offence against this Act it is proved that vegetation has been cleared, it must be presumed in the absence of proof to the contrary that the vegetation was cleared by the owner and occupier of the land on which it is or was growing or is or was situated.
Both parties to the appeal agreed that s 34(2) had no application in this case. The Brush was not growing on the appellant’s land. The cut Brush was stacked on his land and was, in that sense, situated on his land. However, it seems clear enough that s 34(2) is referring to vegetation which is live or growing, and not to dead vegetation. This follows from paragraph (a) of the definition of “native vegetation” in s 3 of the NVA which stipulates that a plant, or part of a plant, which is dead is not to be regarded as native vegetation for the purposes of the Act unless declared by vegetation to be included in the definition. I was informed that there was no relevant regulation. The Brush, once cut, was of course dead. Accordingly, s 34(2) could have no application to it in that state. If the magistrate was relying on s 34(2), then he was in error.
Although it is not altogether clear, I consider that the magistrate was not referring to s 34(2) of the NVA but rather either to s 40 of the NVA or to s 56 of the Summary Procedure Act 1921. Section 40 provides:
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
Section 56 of the Summary Procedure Act provides:
(1)No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the complaint.
(2)Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the complaint, no proof in relation to it shall be required on the part of the complainant.
The reference by the magistrate to “a defence available to him” suggests that he was referring to s 40. In addition s 34(2) is more in the nature of an aid to proof, rather than shifting the onus to the appellant.[2]
[2] Cf R v Zampogna [2003] SASC 75 at [42]–[44], (2003) 85 SASR 56 at 64-5 per Duggan J.
In any event, whatever it was that the magistrate was referring to, it does not seem that the magistrate relied on any reverse onus. On the contrary, the magistrate said that it was not necessary for him to “dissect” the provision to which he was referring because of the findings of fact which he had already made. That suggests that, even without resort to a reverse onus, the magistrate considered that the prosecution had, on his findings, made out Count 1.
I am satisfied that the magistrate’s determination that it was the appellant who had cleared the Brush was not reached by resort to any reverse onus.
This ground of appeal is not made out.
Liability as a Principal
The appellant’s next submission was that he had been charged in Count 1 as a principal, i.e., on the basis that he was the person who had cleared the Brush. He referred in particular to the particulars provided in the complaint in support of Count 1 which were:
Particulars
(a)Section 27, Hundred of Auld is a Crown Reserve being Crown Record Volume 5772, Folio 909.
(b)Between June 2003 and August 2003, the defendant cleared native vegetation from section 27, Hundred of Auld.
(c)The native vegetation cleared comprised Melaleuca uncinata (Broom Bush).
(d)In total, 1812 bundles of Melaleuca uncinata (Broom Bush) were cut.
These particulars, the appellant submitted, confirmed that the prosecution case was that he was the person who had cut the Brush. The magistrate’s finding that the Brush had been cut by two other men should have precluded him from being found guilty.
The difficulty in the way of acceptance of this submission is the statutory definition of the expression “to clear” and of the noun “clearance”. Section 3(1) of the NVA provides that “to clear” native vegetation includes to “cause or permit the clearance” of native vegetation. Thus a person may clear native vegetation for the purposes of s 26 if the person causes or permits others to effect clearance of that vegetation. The noun “clearance” is defined in s 3 to mean (relevantly):
(a)The killing or destruction of native vegetation;
(b)The removal of native vegetation;
(c)The severing of branches, limbs, stems or trunks of native vegetation
…
It was plain that what had occurred with the Brush in the Billiat Conservation Park in 2003 was a “clearance” of native vegetation, whoever was responsible for it.
The appellant could be found guilty of clearing the Brush if he had caused or permitted the two men to clear it. As was pointed out by Bleby J in Dal Piva v Overland Corner Station, s 26(1) creates only one offence, that of clearing.[3] It is an offence which can be committed by a person carrying out the clearance personally, or by causing another to do so, or by permitting another to do so. The finding by the magistrate that the actual cutting had been performed by others did not preclude the appellant being found guilty of Count 1.
[3] [2004] SASC 76 at [28], (2004) 88 SASR 182 at 188.
It was not submitted at trial, or on appeal, that the appellant was in any way misled by the way Count 1 had been particularised. This ground of appeal is not made out.
Causing or Permitting
The appellant submitted that the magistrate had not in fact made a finding that he had either caused or permitted the two men to cut Brush in the Conservation Park. In addition, he submitted that the evidence did not, in any event, support such a finding.
It is true that the magistrate did not make a specific finding that the appellant had either caused or permitted the two men to cut Brush in the Park. It is necessary to consider then whether the magistrate’s findings can nevertheless be regarded as containing a conclusion that the appellant had either caused or permitted the two men to clear the Brush. It is convenient to commence by considering whether the appellant had permitted the two men to effect a clearance.
The appellant submitted that the word “permitted” in the definition of “to clear” was used in the sense discussed by Cox J in Miller v Williams,[4] a case which concerned the offence of permitting premises to be used as a brothel. Cox J referred with approval to the decision of the Victorian Full Court in Chappell v A Ross & Sons Pty Ltd.[5] That case concerned the question of whether an employer had permitted its employee to drive a truck for longer than a specified period without a rest break. In relation to that offence, Winnecke CJ and Smith J said:
The offence is quite plainly one which involves two persons; the person who permits and the person who is permitted. It requires a permitting – not necessarily communicated – by the first such person of the act or omission by the other constituting the contravention, being conduct which there is a right or capacity in the first person to prevent. We think that in accordance with the natural use of language it involves not only a right or capacity on the part of the permittor to prevent the contravention, but also a state of mind amounting to consent to, or acquiescence in, the contravention. And consent or acquiescence must include an element of knowledge or foresight. Actual knowledge that the contravention is being or will be permitted would plainly be sufficient. Likewise, we think a belief that a contravention is highly likely or probable would suffice. The weight of judicial authority, in our opinion, supports this view. For these reasons, “permission”, in our opinion, cannot be equated with a careless or negligent failure to prevent a contravention.[6]
[4] (1990) 53 SASR 82.
[5] [1969] VR 376.
[6] Ibid at 382-3.
Thus, the appellant submitted that before it could be held that he had permitted clearance of the Brush, it was necessary for the magistrate to have been satisfied either that he knew that cutting (other than in the area of Mr Porker’s fence line) would occur, or at least that he considered it highly likely or probable that it would occur, and acquiesced in that cutting taking place.
As Cox J said in Miller v Williams, the precise meaning of the word “permit” when used in a statute can vary according to the subject matter to which it is related.[7] One ought not inflexibly apply the meaning given to the word in one legislative context to its use in another. But I am satisfied that the meaning for which the appellant contends is appropriate in the present context.
[7] (1990) 53 SASR 82 at 87, 90.
I also conclude that the magistrate was satisfied that the appellant had actual knowledge that Brush would be cleared in the Conservation Park. The magistrate made an express finding:
[The] taking of [the 1860 bundles from the Conservation Park area] was in fact with the knowledge [the appellant] that there would be cutting within the area of the Conservation Park. [Emphasis added]
That is a finding about the appellant’s state of knowledge before the cutting was carried out. The magistrate also said:
… I reject the proposition advanced by [the appellant] in his sworn evidence that he had no direct knowledge of the immediate activities of the cutters and that he believed at all times that they were confined and restrained to that area identified by Mr Porker and for which lawful permission had been obtained. [Emphasis added]
Again, this indicates satisfaction by the magistrate about the appellant’s knowledge at all times, including the time immediately prior to, and whilst, the cutting was being carried out.
It is true that the appellant’s denial that he had that knowledge does not of itself prove the contrary but the magistrate referred to circumstantial evidence warranting the inference which he drew. The circumstantial evidence included the magistrate’s finding that the appellant had attended and inspected the work and bundles before making payment to the two men. As already noted, as the payments were made two weeks apart, this implies that the appellant attended while work was still being carried out. In addition, the magistrate held that the cutting was part of a commercial operation. It is in the nature of such operations that they are planned. The cutting occurred at a time when the appellant had orders to fill. The precise quantity of the orders was not in evidence but it must have been very obvious from the quantity cut at the time of the first payment that the amount cut well exceeded the amount which could have been cut from Mr Porker’s fence line. In addition, the appellant had supplied substantial equipment to assist in the cutting and retrieval of the Brush: two tractors and a trailer. Equipment of that kind would not have been required for relatively small amounts which could be taken from the area of Mr Porker’s fence line. The magistrate considered that the appellant had not been truthful to Mr Fraser when interviewed by him. The magistrate considered that the appellant was thereby “attempting to distance himself from the conduct of the cutters and to attempt to advance the position that he had no knowledge at all about the movements of the cutters, other than in the area to which I have already referred, for which Mr Porker had given consent”. All these items of circumstantial evidence justified the conclusion which the magistrate reached about the knowledge of the appellant in relation to the cutting to be carried out.
It is true that in making his findings about the appellant’s knowledge, the magistrate did not always distinguish between the knowledge which the appellant may have had prior to the Brush cutting commencing, on the one hand, and the knowledge which the appellant may have obtained after its completion in February 2006 and prior to the time of the interview with Mr Fraser in August 2006, on the other. But there are sufficient findings (and sufficient evidence to support those findings) that the appellant knew in February 2003 that cutting of Brush in the Park was contemplated, and that the appellant acquiesced in that occurring. Not only did the appellant agree to provide equipment to facilitate the retrieval of the Brush, he agreed to pay for the Brush which was cut by the two men, and he gave them access to the Park through his own land.
In summary, although the magistrate did not make an express finding that the appellant had permitted the two men to clear the Brush in the Conservation Park, such a conclusion is implicit in his findings. That being so, it is unnecessary to consider the appellant’s corresponding submission with respect to the concept of “cause” as used in the definition of the expression “to clear”. In my opinion, the appeal against the conviction on ground one fails.
Count 2
The appellant’s submission with respect to Count 2 was that the NPWA, unlike the NVA in respect of the expression “to clear”, did not define the word “take” so as to include the causing or permitting of another person to take the plant. Hence the submission was that the magistrate’s finding that the whole of the Brush had been cut by two other men precluded a finding of guilt on this count.
The prosecution case at trial (as ultimately presented) was that the appellant was guilty of taking a plant if he had taken the Brush himself, or if he was a participant in a joint enterprise for the taking of the Brush, or if he had aided, abetted, counselled or procured the taking of the Brush by others.[8] The magistrate’s findings precluded a finding of guilt on the first basis. On appeal, the respondent did not submit that the conviction on Count 2 could be sustained by reference to the principles relating to joint enterprise, but did submit that the magistrate’s findings indicated satisfaction by him that the appellant had aided, abetted, counselled or procured the taking of the Brush.
[8] Criminal Law Consolidation Act 1935, s 267.
The magistrate did not frame his finding in terms of accessory liability. Nor did he address the individual elements necessary for a finding of guilt on this basis.
The appellant submitted that there was unfairness to him in the prosecution relying on the principles of accessorial liability when Count 2 had not been particularised in those terms. Count 2 had been particularised in the complaint as follows:
Particulars
(a)On the 28th August 2003 at Billiat Conservation Park the defendant took 1812 bundles of Melaleuca uncinata (Broom Bush).
(b)The defendant removed the Melaleuca uncinata (Broom Bush) from Section 27, Hundred of Auld being land within Billiat Conservation Park.
(c)Billiat Conservation Park is a duly constituted park pursuant to Schedule 4 of the National Parks and Wildlife Act 1972.
(d)The defendant was not the holder of a permit to take native plants granted by the Minister for Environment and Conservation.
(e)The defendant took the Melaleuca uncinata (Broom Bush) for the purpose of sale.
I agree that those particulars did not give any hint that the prosecution may rely on accessorial liability to establish the appellant’s guilt. Furthermore, the respondent accepted that it was only in the course of the prosecution reply that the magistrate was referred to accessorial liability as a means of finding the appellant guilty.
It is clear enough that a person may be charged with the principal offence even where the prosecution relies on the principles of accessorial liability.[9] There are also many statements in the cases to the effect that ordinarily the prosecution ought particularise the charge so as to indicate that a finding of guilt is sought on the basis that the accused is an accessory.[10] In this way, the real nature of the case which the prosecution alleges is made plain.
[9] Giorgianni v The Queen (1985) 156 CLR 473 at 497 per Wilson, Deane and Dawson JJ; R v Serratore (1999) 48 NSWLR 101 at 142-3; R v Giannetto [1997] 1 Crim App R 1 at 8.
[10] Giorgianni v The Queen (1985) 156 CLR 473 at 497 per Wilson, Deane and Dawson JJ; R v Maxwell [1978] 1 WLR 1350 at 1352, 1357,1359-60; R v Giannetto [1997] 1 Crim App R 1 at 8.
But the same cases also indicate that a failure to particularise the charge in that way does not, of itself, indicate that a finding of guilt on the basis of accessorial liability may not be made, or that any such finding should be set aside on appeal. Whether the failure to particularise the charge in that way has that consequence depends on whether any unfairness is occasioned to the defendant by that failure, or by a departure from the particulars which have been provided. In Environment Protection Authority v Sydney Water Corporation Ltd, Gleeson CJ said:
In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged.
It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge take the form of a count in an indictment, or an allegation in a summons.
There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case is being conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment or the summons. Failure to establish a particular is not fatal. [Citation of authorities omitted][11]
[11] (1997) 98 A Crim R 481 at 484.
Similarly, in Hayes v Kenning, Duggan J after referring to the importance of particulars in defining the issues and contributing to the fairness of the proceedings, said:
However, particulars of the type supplied by the prosecution in this matter cannot be elevated to the status of elements of the offence. To say that the prosecution is to be held to the case disclosed by its particulars is not to say that in every case where there is a discrepancy between the particulars and the evidence there must be an acquittal. If a material averment in the complaint itself has not been proved then the prosecution must fail. But where particulars which are supplied in addition to the facts contained in the statement of the charge are at variance with the facts relied on by the prosecution at trial and there is a conviction on that evidence, an appellate court will be required to determine whether there was any unfairness to the person convicted giving rise to the possibility of a miscarriage of justice.[12]
[12] (Unreported, Supreme Court of South Australia, Duggan J, 17 September 1992).
In the present case, Mr Henry, who appeared for the appellant, had difficulty in pointing to any relevant unfairness. The appellant was represented by experienced counsel (other than Mr Henry) at the trial. No point was taken before the magistrate when the prosecution indicated reliance on accessorial liability. The conduct relied upon for the NPWA offence was very similar to that relied upon for the NVA offence, save only that in the former, it had also to be established that the Brush was taken in a reserve. The factual issues were quite similar. The magistrate’s findings indicate that the appellant had knowledge of each of the elements necessary for a finding of guilt based on accessorial liability that the appellant assisted the two men in the taking of the Brush. On the magistrate’s findings, the appellant knew that a native plant was to be, and was, taken from the Park, knew that there was no permit by which such taking could be lawful and knew what the two men were doing. He aided that taking of the Brush by his provision to the two men of access over his property to the Park, and by his provision of two tractors and a trailer. He procured the taking by his agreement to buy the bundles of Brush which were taken.
In short, although there are shortcomings in the magistrate’s expression of his reasons, the appeal against the conviction on Count 2 must fail.
The Appeal Against Sentence
The maximum penalty on Count 1 in this case was in effect a fine of $100,000. The maximum penalty for Count 2 was a fine of $2,500 or imprisonment for six months. In addition, the finding of guilt on Count 1 meant that the two tractors, the trailer, and the Brush itself could be ordered to be forfeited to the relevant Minister.[13]
[13] Native Vegetation Act 1991, s 33B(1)(i) and s 33D(1)(b).
As already noted, the magistrate imposed a single penalty for both offences, being a fine of $30,000 and in addition ordered the forfeiture of the two tractors, the trailer and the bundles of Brush.
The appellant submitted that this sentence was excessive. He submitted that he should have been sentenced as an offender whose culpability comprised unwittingly allowing others to commit an offence in the Conservation Park by providing access through his land to them. In addition, it was argued that insofar as the operation was commercial in nature, that related only to the Brush to be cleared from the area of Mr Porker’s fence line which clearance was not unlawful. The appellant pointed in addition to his good character, clear record and that the nature of Brush is that it will regenerate in time.
Both the Native Vegetation Act and the National Parks and Wildlife Act give expression to the desire of the community to preserve native vegetation. The value of such preservation in the conservation of native flora and fauna is obvious. It is reflected in the steadily increasing penalties prescribed for the unlawful clearance of native vegetation.[14] The clearance of native vegetation is often difficult to detect and even when it is detected, it is often difficult to identify who was responsible. Those considerations mean that emphasis on general and individual deterrence is an important consideration in the sentencing for such offences.[15]
[14] Between 1985 and 1991, the maximum penalty was a fine of $10,000 or a prescribed sum calculated at the rate of $1,000 per hectare of the land involved: Native Vegetation Management Act 1985, s 19. Between 1991 and 19 December 2002, the maximum fixed penalty was $40,000. Between 1991 and 25 August 2003, the prescribed sum was calculated at a rate of $2,000 per hectare. By the Native Vegetation (Miscellaneous) Amendment Act 2002, s 20, the maximum fixed penalty and the prescribed rate per hectare were increased to $100,000 and $2,500 respectively.
[15] Piva v Brinkworth (1993) 59 SASR 92 at 96 per Duggan J.
The offences in the present case have a number of features indicating that they were serious examples of their type. The clearing of the Brush was deliberate. It was carried out in a place to which access was difficult, and therefore difficult to detect. It was carried out for a commercial purpose. A substantial quantity of Brush was removed. The appellant contemplated that Brush would be taken from the Park and permitted that to occur. Not only did he permit it, he facilitated it by providing substantial equipment, access and arranging to purchase the Brush cut by the two men. The Brush was in the nature of virgin remnant scrub which had been deliberately set aside for preservation. The Brush cutting involved considerable destruction within the Conservation Park. Although there may be some recovery in time, it may be many years before the Park recovers from the predations of the cutters.
As the appellant pleaded not guilty and put the prosecution to proof, he cannot claim any credit on account of a plea of guilty. Nor was there any evidence of contrition or remorse for his conduct.
The magistrate was not provided with any details of the appellant’s assets or financial circumstances.
Were it not for one particular matter, I do not think that the penalty imposed by the magistrate could be regarded as so high as to be excessive. That matter is that the appellant had paid away $6,800 to the two men for the cutting of the Brush. If the monetary penalty of $30,000 stands, the appellant will, in effect, suffer a loss of $36,800 in addition to the forfeiture of his equipment.
Looked at in that light, the financial penalty imposed by the magistrate is, in my opinion excessive. It does seem to me that the magistrate failed to take appropriate account of the loss suffered by the appellant by his paying away of the $6,800 for the Brush which is now to be forfeited.
For this reason, I would allow the appeal against sentence. Instead of a monetary penalty of $30,000, I would impose a monetary penalty of $23,000.
The magistrate had power to order the forfeiture of the appellant’s equipment and the appellant does not complain of the order for forfeiture of the Brush. He does however submit that the magistrate should not have ordered the forfeiture of his equipment. The making of an order for forfeiture involves a discretionary judgment. An appellate court would interfere with such a discretionary judgment only if it is satisfied that the magistrate has acted on some wrong principle, has failed to have regard to a relevant matter, has been influenced by an irrelevant matter, or that for some reason it can be said that the exercise of the discretion has wholly miscarried. In my opinion none of these circumstances are applicable in this case. As already noted, these offences were serious examples of their type. Ordinarily an order for forfeiture is appropriate where the offending is deliberate and involves substantial destruction of an environment or resource which the legislation seeks to protect[16].
[16] Caldow and Shannon v Hemming (1991) 55 A Crim R 449 at 456 per Mullighan J.
Accordingly, I would dismiss the appeal against sentence insofar as it complains about the order for forfeiture.
Summary
For the reasons given above, the appeal against conviction is dismissed. The appeal against sentence is allowed so as to reduce the monetary penalty imposed by the magistrate from $30,000 to $23,000.
The orders of the Court are:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is allowed.
3. The fine imposed by the magistrate of $30,000 is set aside.
4. In lieu thereof the appellant is fined $23,000.
5. In all other respects the orders made by the magistrate stand.