R v Holman

[2004] QDC 320

[2004] QDC 320

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No 310 of 2004
THE QUEEN
v.

TOREY KEVIN HOLMAN

BRISBANE
..DATE 23/08/2004

..DAY 1

EXTRACT OF PROCEEDINGS - RULING

CATCHWORDS: Criminal law - Nature Conservation Act 1992, s 88 - "use", in relation to a protected animal defined to include "buy", which in turn included "offer to buy" - "offer to buy" construed to have its ordinary meaning in the law of contract, capable of ripening into a binding contract on acceptance - the evidence showed no more than an offer to treat.

HIS HONOUR: This is a pre-trial application by the defence,
greatly simplified because the prosecution has actually
indicated a determination to nolle counts 2 to 18. There were
going to be issues concerning the use that might be made of the defendant's records and another gentleman's records for what they might reveal about transactions involving protected

animals, namely, native birds of various kinds. The one count remaining charges Mr Holman that on the 3rd day of May 2002 at Bethania he "did use a protected animal, namely, a quantity of Rainbow Lorikeets, in contravention of section 88 of the

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Nature Conservation Act 1992."	1
The prosecution's evidence consists of statements allegedly made by Mr Holman to two women, Baker and Heron, on the 3rd of May 2002, which indeed constitute the offence charged. Both women were "wired for sound", and advantage has been taken of the existence of two tapes of the conversation to produce a "synchronised version", Exhibit D, transcripts of which are Exhibits A and B: the former prepared by the Police Service; the latter by the State Reporting Bureau. The conversation is in places difficult to hear, but speaking generally Exhibit A seems to me tolerably accurate. I have not had the opportunity to follow Exhibit B while the tape was played. There are differences.	10
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30
If the tape accurately records the conversation which happened, it reveals the male speaker, who the Crown says is the defendant, evincing a clear willingness to deal in certain native birds in questionable ways. The tape appears to show
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him willing, if a suitable occasion should arise, to buy from	1
were supposed to have recently trapped, presumably in
the women at least "a couple" of Rainbow Lorikeets which they conjunction with the arrival in Queensland of a shipment of native birds from another State, relevant paperwork being adjusted to include the locally trapped birds, which would be depicted as having been sourced from outside Queensland. The birds which were spoken of had been part of a greater number in the possession of one or both of the women, but found in their possession by police and released. There were no identifiable birds that could possibly become available as at the 3rd of May 2002. Originally a large part of the defence argument on the preliminary issues was focused on the prosecution's inability to identify particular birds, something which followed from the paper trail basis of the charges.	10
20
30
I can see no ground for rejection of the evidence in the tape on the basis of its having been unfairly obtained. Ultimately, the defence argument is that it does not show an offence.	40
Section 88 provides in subsection (1):

"Subject to section 93, a person other than an authorised

person must not take, use, or keep a protected animal	50
other than under -

(a) a conservation plan applicable to the animal; or
(b) a license, permit, or authority issued or given

under a regulation; or

(c) an exemption under a regulation."

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At the time ascribed to count 1 Mr Holman held a licence,	1
which is Exhibit E. It referred under "permit details" to "commercial birds", and the quantity was described as "unlimited".

10

Section 93 is a special provision for Aborigines' and Torres Strait Islanders' rights to take, et cetera, protected wildlife. An authorised person can be seen, by subsection (5) of section 88, to refer only to persons in the government sphere. Although the charge does not purport to say anything about the exceptions in (a), (b) and (c), Mr Anderson, now representing Mr Holman, submits that both (b) and (c) show that no offence has been committed.	20
The licence is relied on, accompanied by a submission, as I characterised it, that provided the defendant had a licence, as he did, and a colourable claim to have acted under it, he would be protected, so far as section 88 is concerned, even if there may have been some irregularity in what was done, perhaps even one serious enough to invite prosecution under a Regulation.	30
40
It might be mentioned that the count describes the protected animal as "Rainbow Lorikeets", which may be found under that name in schedule 7 to the Nature Conservation Regulation 1994,
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which lists "commercial birds". The next item in that list is
"Rainbow (Red-Collared) Lorikeet". Only that latter name
appears in the following schedule, schedule 8, which purports
to identify exhaustively every "commonly kept bird".

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While dealing with the topic of definitions, the schedule to	1
the Act gives in the dictionary supplied, inter alia, the definition of "protected animal" as "an animal that is prescribed under this Act as threatened, rare, or common wildlife". Schedule 5 of the Nature Conservation (Wildlife) Regulation 1994 identifies as a common bird "a bird indigenous to Australia (other than a presumed extinct, endangered, vulnerable, or rare bird)". (The Regulation as now in force appears to differ from those handed up by Counsel as the relevant version(s).)	10
20
So far as section 88(1)(c) is concerned, reliance is placed by the defence on Section 144 of the Nature Conservation Regulation 1994, which is:

"A person who does not hold a licence must not - 30

(a) buy more than two commonly kept birds in a

month; or

(b) buy more than five commonly kept birds in a

year; or

(c) sell more than two commonly kept birds in a

month; or

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(d) sell more than five commonly kept birds in a

year.

Maximum penalty - 120 penalty units."

The defence argument is that that provision protects a person
like the defendant, who holds a licence, as well as the

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ordinary person in the community who does not, and effectively
grants a free allowance of the scope indicated. Reference in
the tape to "a couple" is doubtless thought important here.
My inclination is to agree with Mr Mumford, appearing for the

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Crown, that this section applies only to protect (and	1
obviously confine) unlicensed people. Those who are licensed are not confined in the same way. Section 149 is as follows:

"Effect of licence

(1) A licensee may keep and use a commercial bird.

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(2) A licensee must not keep a commonly kept bird
that is also a commercial bird unless particulars of

the bird are entered in the licensee's record book.

Maximum penalty - 165 penalty units.

(3) A licensee must not sell a commercial bird,

other than a commonly kept bird or a bird mentioned in schedule 4A, to a person other than a person who holds - 20

(a) a commercial wildlife licence for birds; or
(b) a recreational wildlife licence for birds;

or

(c) a recreational wildlife (specialist)

licence for birds.

Maximum penalty - 123 penalty units." 30

The applicability of that to the case seems much clearer. As
a licensee Mr Holman is, by section 149, entitled to "use a
commercial bird". The whole case depends on an unusual

definition of "use". The definition in the dictionary in the	40
schedule is as follows:

"'Use', in relation to a cultural or natural resource or
wildlife, includes buy, sell, process move or gain any

benefit from the resource or wildlife."

That is not an end of it, because "buy" is defined in the same	50
schedule in a wide way:

"'Buy' includes -

(a) agree or offer to buy; and

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(b) receive or accept under an agreement; and	1
(c) agree to receive or accept under an agreement;

and

(d) offer or attempt to receive or accept under an

agreement; and

(e) cause or permit to be received or accepted under

an agreement; and 10

(f) acquire by exchange; and

(g) accept on hire or lease."

It is an Alice-in-Wonderland situation here whereby section

149 of the Regulation appears to permit what is charged as an	20
offence under section 88 of the Act. The Regulation, except in one place where it refers to "exempt" birds, does not, so Mr Mumford tells the Court, anywhere specifically purport to grant "exemptions" (so-called) which might be identified as
coming within section 88(1)(c). It would seem to follow that	30
one is invited to scour the Regulations for anything having the effect of an exemption. Section 144 would seem to qualify, for example; also Section 149.
The essential difficulty I have with the prosecution I have	40
yet to mention in these reasons. It concerns the question
whether, "offer to buy", is capable of covering what the
defendant, in taking the contents of the tape at there highest
instant appears to have done. I think it is a stranger thing
to regard him as having made an offer of the conventional kind	50
understood in the law of contract, which, on acceptance by the women would create a binding contract.
A convenient starting point for examination of the law is

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Fisher v Bell (1961) 1 QB 394, the headnote of which is: 1

"A shopkeeper displayed in his shop window a knife of the
type commonly known as a `flick knife' with a ticket
behind it bearing the words 'Ejector knife-4s.' An information was preferred against him by the police alleging that he had offered the knife for sale contrary
to section 1(1) of the Restriction of Offensive Weapons
Act, 1959, but the justices concluded that no offence had

been committed under the section and dismissed the	10
information. On appeal by the prosecutor:-

Held, that in the absence of any definition in the

Act extending the meaning of 'offer for sale', that term
must be given the meaning attributed to it in the
ordinary law of contract, and as thereunder the display
of goods in a shop window with a price ticket attached was merely an invitation to treat and not an offer for sale the acceptance of which constituted a contract, the
justices had correctly concluded that no offence had been

committed.	20
Per Lord Parker CJ. At first sight it seems absurd that knives of this sort cannot be manufactured, sold, hired, lent or given, but can apparently be displayed in
shop windows; but even if this is a casus omissus it is not for the court to supply the omission."

See also Partridge v Crittenden (1968) 1 WLR 1204 (alleged offer for sale of a "bramble finch hen").	30
It is not uncommon to find special definitions in legislation extending the meaning of a term such as "offer for sale", or (of present interest here) "offer to buy". A well-known example is in section 4(2)(d) of the (Commonwealth) Trade Practices Act, which provides:	40

"A reference to a person offering to do an act, or to do
an act on a particular condition, includes a reference to
the person making it known that the person will accept
applications, offers or proposals from the person to do
that act or to do that act on that condition, as the case

may be." 50

There are interesting discussions in the annotations to such

provisions as to the effectiveness of the provision to extend the meaning of, for example, "offer to sell" - in the context 23082004 D.1 T15/CML (Robin, DCJ) 8 60

we're interested in the meaning of "offer to buy".	1
It ought to be noted that even in the absence of a special definition of the kind mentioned, the wider meaning may be given. See Attorney-General for New South Wales v The Mutual

10

Home Loans Fund of Australia Limited (1971) 2 NSWLR 162. That was an unsuccessful appeal to the New South Wales Court of Appeal against the granting of an injunction to restrain publication of certain advertisements which were alleged to amount to offences under section 40, subsection (4) of the then Companies Act. That section dealt with any: 20

"Advertisement offering or calling attention to an offer
or intended offer of shares in the corporation to the

public for subscription or purchase."

Apparent attempts to avoid the effect of that and perhaps other provisions by offering not shares but options to take shares proved unavailing.	30
Further, the Court of Appeal held and the headnote records:

"The 'offer' referred to in section 40 of the Act does

not connote an offer in the contractual sense. It refers	40
rather to an invitation to the public to make offers in the contractual sense to subscribe for or purchase shares or debentures."

In a case such as that the shares were either in existence or
presumably capable of being brought into existence for issue

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to subscribers pursuant to arrangements permitted by the
company's Memorandum and Articles of Association. The
present circumstances strike me as being more indefinite in a
concerning way, because, of course, there were no birds.

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There is no possibility (unless the women had come into	1
possession of other birds) of the proposal described in the tape coming to fruition.
The earliest of the authorities I located over the luncheon adjournment which bears on this matter is Goodwin's of Newtown Pty Ltd v Gurry (1959) SASR 295. That case tends to support the Crown here.	10
There was a prosecution under the Early Closing Act of South Australia for having a shop open when it should not have been. The crux of the offence was exceeding lawful trading hours. The Act defined "Shop" as meaning, among other things:	20

"The whole or any portion of a building in which goods
are offered for or exposed for sale by retail or by

auction."

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Premises which gave the appearance of being a shop had on display some 40 television sets, each accompanied by a ticket showing the cash price of it.

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Members of the public who went into the premises to view the sets could obtain information about them but no sales took place there. Anyone evincing an interest was referred elsewhere. An appeal against the conviction failed, the premises being held to be a shop because goods were "offered or exposed for sale by retail".	50
In my opinion that's a subtly but importantly different
context from the present. The expression, "offer to buy" is

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very well known to anyone with the slightest familiarity with	1
the law of contract. In my opinion it ought to be given its meaning according to law of contract in the absence of some special definition, and therefore it seems to me not possible for count 1 to succeed.

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I do not think it would be open to the jury to reach the view
that Mr Holman had done enough to bring about a binding
contract by any purported "acceptance" of his offer. I think
it goes without saying that if actual birds had been brought

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in he would have been entitled to examine them and then make a decision as to whether or not he wished to become purchaser of them.
Do I have to do any more than that?
MR MUMFORD: No. Perhaps adjourn this matter for mention to 2

September, it's Thursday week.	30
MR ANDERSON: Is it for the trial?
HIS HONOUR: No, there's a trial listed-----
MR ANDERSON: It's listed for trial next Monday, as I understand, trial number one.
HIS HONOUR: I think it was going to be listed before me. On
the basis it's going to go two weeks The Chief Judge changed	40
the list.
MR MUMFORD: All right.
HIS HONOUR: Can we mention it then? It might be simpler if its mentioned before me. I will be in crime.
MR MUMFORD: Is your Honour going to be in crime this week?
HIS HONOUR: Yes, I'm in crime.	50
MR MUMFORD: I'll be in touch with your Associate and we can probably try and mention it.
HIS HONOUR: At the moment it's listed for trial before me, but the parties have liberty to bring it on.
MR MUMFORD: Yes, thank you.

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HIS HONOUR: You might be able to get something out of the	1
other counts yet.
MR MUMFORD: Thank you, your Honour.
HIS HONOUR: You might take it off to the Court of Appeal. would have decided the way I did.

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THE COURT ADJOURNED AT 3:45 P.M.

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