Petersen v Ipswich City Council

[2016] QDC 7

DISTRICT COURT OF QUEENSLAND

CITATION:

Petersen v Ipswich City Council [2016] QDC 7

PARTIES:

PATRICIA PETERSEN
(appellant)

v

IPSWICH CITY COUNCIL
(respondent)

FILE NO/S:

43 of 2015

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Ipswich

DELIVERED ON:

29 January 2016

DELIVERED AT:

Ipswich

HEARING DATE:

8 December 2015

JUDGE:

Bradley DCJ

ORDER:

Appeal allowed. The convictions, penalties and costs imposed in the Magistrates Court at Ipswich on 29 April 2015 are set aside and findings that the appellant has no case to answer are substituted.

CATCHWORDS:

LOCAL GOVERNMENT- REGULATION AND ADMINISTRATION- ELECTIONS- CONDUCT OF ELECTIONS- ELECTORAL OFFENCES- where the appellant was convicted of offences against the Ipswich City Council Local Laws- whether there was evidence to prove the appellant enabled another to place her election signs in locations where only a licence permits- whether appellant had a case to answer- whether written authorisation on bottom of sign amounted to the appellant either printing, producing, transporting, placing or enabling the placement of the signs- whether appellant could lawfully be convicted of offences based on the evidence.

COUNSEL:

P Callaghan SC for the appellant
S Kissick for the respondent

SOLICITORS:

Robertson O’Gorman solicitors for the appellant
Ipswich City Council for the respondent

Background

1. After a hearing in the Ipswich Magistrates Court on 29 April 2015 the appellant (who was a candidate for the Senate in the 2013 Commonwealth elections) was convicted of three offences against the Ipswich City Council’s Local Laws.

1. Each offence related to the placement of election signs within the Ipswich City Council’s local government area on 2, 5 and 6 September 2013 when the appellant was not authorised by a licence to do so.

1. The election signs had been placed on Moggill Ferry Road, Riverview, Collingwood Drive, Collingwood Park and Mount Crosby Road, Chuwar.

1. The appellant accepted that the respondent’s Local Laws required that persons placing such signs must be licensed to do so.

1. There was no direct evidence that the appellant had actually placed the signs there herself, and the major issue at trial was whether there was evidence from which it could be inferred that the appellant had “enabled” or caused the signs to be placed.

Offence provision

1. Ipswich City Council Local Law No. 3 (Commercial Licensing) 2013, section 5, relevantly provides as follows:

“5.         Requirement for a licence

(1)       A person must not -

(a) operate a licence regulated activity on premises within the local government area unless authorised by a licence granted under section 7(2) (Deciding application for a licence) of this local law.”

1. Prior to any evidence being given the appellant accepted that the election signs were a “licence regulated activity” under the respondent’s Local Laws and that she did not have a licence to operate that activity at the relevant times.

Evidence at trial

1. Six employees of the Ipswich City Council gave evidence.  Their evidence was that complaints had been received about illegal election signage at two locations.  Those signs were located and removed.  The third sign was noticed by a respondent employee, and as he had been briefed to photograph and remove such signs, he did so.

1. The evidence was that each sign had writing at the bottom stating “Authorised P Petersen 25 Ipswich St, Riverview Q 4303.  Printed by Colorcorp Pty Ltd, Unit 2, 263 Toombul Road, Northgate, 4013.  Ph: 07 3853 2222.”

1. The appellant’s submission after the close of the prosecution case that there was no case to answer was rejected.

1. The appellant herself then gave evidence, as did Steven Wood, the National Secretary of the Australian Independents.  The appellant’s evidence was that she is the leader of the Australian Independents.  In the 2013 election she was campaigning mainly in Brisbane and on the Sunshine Coast and she was living on the Sunshine Coast.  She denied having the signs in question printed or authorising or enabling them to be placed in the Ipswich area.  She denied using a printer at Northgate or Toombul for the printing of her election signs.

1. The appellant agreed in cross-examination that she had told a journalist that “I am not paying a cent and I am going to out up my signs”. This was in relation to payment of bonds and fines apparently claimed by the Ipswich City Council. Her statement was reported in an article in the Queensland Times dated 30 August 2013.

1. Although Mr Wood was a resident of Ipswich, his evidence was that he was involved in placing election signs for the appellant only in the north of Brisbane and that he did not put up or authorise anyone else to put up, election signs in Ipswich.

Grounds of appeal

1. The three grounds of appeal are that:

1.          The learned magistrate erred in convicting the appellant on three counts in circumstances where the prosecution case alleged only derivative liability but adduced no evidence as to the requisite state of mind of the appellant.

2.          The learned magistrate erred in finding that the appellant had a case to answer at the close of the prosecution case.

3.          The learned magistrate erred in finding there was sufficient evidence in the prosecution case regarding the placement of the election signs to prove that element of the offence beyond reasonable doubt.

The appellant’s argument

1. The offences with which the appellant was charged in each case were of “[operating] a licence regulated activity on premises within the local government area while not authorised by a licence.”

1. The offence in each case was particularised by the respondent by specifically alleging the “licence regulated activity” the appellant engaged in was “by enabling an election sign (a licence regulated activity) advertising you as a political candidate for a Commonwealth election to be placed on premises”.

1. The effect of the use of that specific verb (“enabling”) meant that in order to prove the element of “operation of a licence regulated activity” there needed to be evidence of “enabling”.

1. By definition a person who “enables” something does not do that thing herself.  To “enable” is to give someone else the means, or make it possible for another, to do a certain thing.  Implicitly, by the particularisation the respondent acknowledges that the appellant did not place the signs herself.

1. The only basis for criminal responsibility therefore, is derivative liability pursuant to s 7 of the Criminal Code.  The prosecution was required to show that the appellant enabled another person to place the election signs in the various roadside locations and at the time of so doing she was acting for the purpose of assisting that person in committing the specific offence.

1. There was no evidence on the prosecution case whatsoever of the requisite knowledge or state of mind of the appellant.

1. The magistrate wrongly relied on the authorisation written at the bottom of each sign as evidence of the appellant actually authorising the production of the signs.  Such writing is documentary hearsay and cannot be relied on in order to prove the truth of that which is asserted.  The content of the signs can never be evidence of the enabling of their placement.

1. In any event the mere printing and production of the signs could not amount to “enabling” for the purposes of the offence provision. How, when and by whom the signs were placed remained matters of speculation.

1. Proof of the offence (as particularised) requires proof that the appellant enabled the particular election signs to be placed on the specific roadside locations.  No such evidence was adduced.

1. There was no evidence as to who ordered the signs from the printer, who collected them or when, how they were transported, who put them in the various locations or for what reason.

1. There was therefore no evidence that the appellant had any knowledge of the particular signs and therefore it cannot be suggested that she enabled their placement.  On the prosecution evidence there was no case for the appellant to answer.

1. Even if the appellant had a case to answer, the evidence was insufficient to establish beyond reasonable doubt that she “enabled” the placement of the signs.

The respondent’s argument

1. The respondent accepted that the appellant could only be liable for each offence as a party pursuant to an application of s 7 of the Criminal Code.

1. As a result of discussion at the conclusion of the prosecution case, and for the purposes of the no case application, it was admitted on behalf of the appellant that the signs were her authorised signs, the issue for trial being that she did not authorise the placement of the signs in the relevant places.

1. The appellant accepted that she had no licence and that it was a “licence regulated activity”.

1. The prosecution accepted that there was no direct evidence the appellant actually placed the signs but alleged that she “enabled” their erection.

1. The magistrate was entitled to interpret the offence provisions of the Local Laws broadly and was entitled to find that “enabling” would include having the signs printed and made available for erection.

Consideration

1. In order to establish a prima facie case against the appellant with respect to each charge, the prosecution had to adduce either direct evidence, or evidence from which an inference could be drawn, that the appellant did an act (or acts) with the purpose of enabling another to place the signs in the particular locations (or at least locations requiring a licence), with the intention of helping that person to commit the offence(s), and that when she did the act (or acts) the appellant knew that it was intended that the signs be so placed.

1. The written “authorisation” at the bottom of each sign could not amount to evidence that the appellant had authorised the production of the signs let alone their placement at a particular location.

1. There was no evidence as to who had authorised the production or printing of, or who had transported or placed the signs.

1. There was no evidence of any act by the appellant which did, or could have enabled the signs to be placed on the named premises with respect to each charge.

1. There was no evidence that the appellant did anything with the intention of helping another to commit the offence, or that she had knowledge that the signs were to be unlawfully placed.

1. The magistrate erred in finding that there was evidence on which the appellant could lawfully be convicted of any of the offences.  There was no prima facie case for the appellant to answer.

1. The magistrate did not find the appellant to be a credible witness.  Nevertheless, the evidence of the appellant and her witness did not advance the prosecution case in any way with respect to the crucial issue of proof that the appellant was criminally responsible for the placement of the signs.

1. The magistrate ultimately found the appellant guilty on the basis of her statement to the Queensland Times. He found that statement amounted to an admission that the signs were hers. There is nothing in the appellant’s statement however that connects any actual or implied admission with the signs the subject of the charges. The evidence of that statement alone could not amount to proof of the appellant’s intention or knowledge with respect to those particular signs, or even the placement of signs unlawfully in a general sense.

1. There was no case for the appellant to answer and no evidence was adduced in the defence case which could prove that the appellant had enabled the placement of the signs.

1. The appeal must therefore succeed and the convictions and penalties imposed in the Magistrates Court at Ipswich on 29 April 2015 are set aside and findings that the appellant has no case to answer are substituted.