Rothall v Quick
[1987] TASSC 94
•22 May 1987
Serial No B24/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Rothall v Quick [1987] TASSC 94; B24/1987
PARTIES: ROTHALL, Gregory V
v
QUICK, John Robin
FILE NO/S: LCA 34/1985
LCA 36/1985
DELIVERED ON: 22 May 1987
JUDGMENT OF: Underwood J
Judgment Number: B24/1987
Number of paragraphs: 49
Serial No B24/1987
List "B"
File No LCA 24/1985LCA 36/1985
GREGORY V ROTHALL and ANOR v JOHN ROBIN QUICK
REASONS FOR JUDGMENT UNDERWOOD J
22 May 1987
This matter arises from two motions to review decisions of a magistrate made upon the hearing of a single complaint. On the 24 February 1987 an order was made, pursuant to the Justices Act 1959, s111, that the complaint to which both notices relate be heard de novo and determined in the Supreme Court.
The complaint alleged:–
1That, between April and August 1984, at an area of State Forest (described in the particulars) Gregory U. (sic) Rothall and Anthony Vere Rigby (hereinafter referred to as ''Rothall" and "Rigby" or "the defendants") did, without lawful authority, cut trees and forest produce from the State Forest namely, saw logs, assessed to measure 1303.73 cubic metres contrary to the Forestry Act 1920, s45(1).
2That, during the time referred to in the first matter of complaint, Rothall and Rigby without lawful authority took trees and forest produce from the said State Forest namely, saw logs measuring 1303.73 cubic metres contrary to the Forestry Act 1920, s45(1).
3That, between April and August 1984, at an area of State Forest (an area, separate from that referred to in the first and second matters of complaint, is described in the particulars) Rothall and Rigby did, without lawful authority, cut trees and forest produce namely saw logs, measuring 521.66 cubic metres contrary to the Forestry Act 1920, s45(1).
4That, during the time and at the State Forest referred to in the second matter of complaint, Rigby and Rothall did, without lawful authority, take trees and forest produce namely saw logs measuring 521.66 cubic metres contrary to the Forestry Act 1920, s45(1).
The Forestry Act s45(1) provides that:
"A person who, without lawful authority–
(a) cuts, saws, ringbarks, destroys, damages, or takes from a State Forest, timber reserve or other Crown land any tree or other produce;
(b) ...
(c) ...
is liable to a penalty of $500 and, in addition, is liable for the full amount of damage, or loss involved, by reason of his act."
For generations, Rothall's family have owned a property at Burns Creek in the County of Dorset known as "Denholme". It comprises 465 acres and is bounded on the west by the Burns Creek Road. All the other boundaries adjoin a State Forest within the meaning of the Forestry Act, s16.
The complaint alleged that, during the period referred to, the defendants cut and took saw logs from two separate areas of State Forest both of which have a common boundary with "Denholme". One area lay to the north of the property and was referred to in evidence as Area 1. The other area lay to the south of "Denholme" and was referred to as Area 2.
The complaint was made on the 1 April 1985. The Forestry Act, s50 provides that a complaint for an offence against the Act "may be made within twelve months from the time when the matter of complaint arose". In broad terms, both defendants admitted they had cut and taken some trees from part of Area 1 but denied having done so within the period of twelve months before the date of the complaint. With respect to Area 2, they admitted they had cut and taken some trees within the twelve months period. However, both defendants disputed the quantity alleged to have been taken and in the case of both areas, claimed to have acted under a mistake of fact that all the timber had been taken from land within the boundaries of "Denholme" and not from any part of the adjoining State Forest.
A threshold question of statutory interpretation thus arises with respect to the mental element (if any) involved in the commission of an offence against the Forestry Act, s45(1). The principles applicable to the question at hand are now authoritatively settled by the High Court in He Kaw Teh v R (1985) 60 ALR 449. After an extensive review of both the English and Australian authorities, Brennan J stated in summary form the following general principle at p491:
"(1)There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.
(2)There is a further presumption to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus, does the physical act involved, he either:–
(a)knows the circumstances which make the doing of that act an of fence; or
(b)does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.
(3)The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind.
(4)The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where the statute otherwise provides."
This principle was applied by the Full Court in Gibbon v Fitzmaurice and Ors 55/86 and is to be applied to the construction of the Forestry Act, s45(1).
This section appears in Part VI of the Act under the heading "Penalties Seizures and Forfeitures". It is clear from a perusal of the sections contained in this Part, that the several provisions are designed to manage and protect areas of State Forest. The acts proscribed by Part VI are in the main, "not criminal in any real sense but acts which in the public interest are prohibited under a penalty". See Sherras v De Rutzen [1895] 1 QB 918 at p922. Commission of any of the proscribed acts do not render an offender liable to a term of imprisonment. However, many of them render an offender liable, not only to payment of a fine, but to payment for damage done or loss sustained by reason of the commission of the offence. Section 45(1) is such a section. Section 45(2) gives the Commission power to waive or discontinue any proceedings for a breach of s45(1) upon payment of a sum calculated with reference to prescribed royalties.
These matters indicate that the object of Part VI is to regulate and control the use of State Forest resources rather than to impose criminal liability for the commission of a prohibited act. The actus reus proscribed by s45(1) is the cutting, sawing, ringbarking, damaging or taking without lawful authority, any tree or forest produce from a defined area. The section contains no words such as "knowingly," which would indicate that, in order to constitute an offence the actus reus must be accompanied by any specific state of mind.
In Sweet v Parsley [1970] AC 132 Lord Pearce said at p156:–
"Before the court will dispense with the necessity for mens rea it has to be satisfied the Parliament so intended. The mere absence of the word "knowingly" is not enough but the nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs, and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge."
The words of s45(1), the general object of the provisions of Part VI and the difficulties associated with the detection of offences and with the proof of the existence of a specific state of mind, lead to the conclusion that the offence is complete upon proof of the actus reus.
Although some of the offences created by Part VI, such as ss43 and 49A, are couched in somewhat Draconian terms, there is nothing in the words used or the object of the legislation to indicate that Parliament intended s45(1) to be an offence of absolute liability. To that section I would apply as apposite, the remarks of Gibbs CJ in He Kaw Teh v R (supra) at p623:
"These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts which, if true, would have made his act innocent".
If, upon a prosecution for a breach of s45(1), evidence is adduced which raises the possibility that a defendant acted under such an honest and reasonable mistake, the burden of establishing beyond reasonable doubt that the defendant did not so act, lies upon the complainant. See He Kaw Teh v R (supra).
Evidence was given by Mr Green, a surveyor employed by the Forestry Commission, that he undertook a meticulous cadastral survey to re–define the State Forest boundaries following suspicions that timber had been unlawfully taken from the two areas adjoining "Denholme". The work commenced on the 11 September 1984. It was based on original grant survey documentation and marks. It found expression in a plan admitted as Exhibit P.3. I am completely satisfied that this exhibit accurately defines the boundaries between the State Forest and "Denholme". Hereafter I shall refer to these boundaries as the "true boundary lines".
I accept the evidence of Mr Green and the other Forestry Commission officers, that it is the practice of the Commission to mark the boundary lines between areas of State Forest and private property by slashing the undergrowth away ("slash–lines"), by cutting blazes in trees and painting the blazes with pink, or pink and white paint and, every 20 metres or so, by tying blue plastic tape around trees at about chest height.
As Mr Green surveyed the northern boundary, which adjoined the area referred to in the first and second matters of complaint (Area 1), he observed signs of slash–lines having been cut and saw blazes cut in the trees. These marks followed the true boundary line. However, apart from a few pieces at the north western end, he saw no blue tape.
Whilst surveying the eastern boundaries, Mr Green observed blue tape approximately every 20 metres, painted blazes and except in the case of open country, evidence of slash–lines. All of these marks followed closely the true eastern boundaries as defined by survey.
Along the true southern boundary, Mr Green observed "an abundance of blazed trees with pink paint", evidence of a slash–line, some blue tape tied to the trees and some blue tape lying on the ground. This boundary adjoined the area of State Forest referred to in the third and fourth matters of complaint (Area 2).
In evidence, both defendants claimed that they believed that the northern boundary lay some distance to the north of the true boundary and the southern boundary some distance to the south of the true boundary. They said that in both instances, these boundaries were marked with blue tape.
Rothall said that in 1979, after a dispute with the Forestry Commission, his father took him around the boundaries separating "Denholme" from the State Forest. He said that the Northern boundary was then marked by blue tape tied on to trees and bits of scrub. He said that in addition, an old slash–line could be seen. He said that this line ran quite close to a timber road known as Rothall's Road.
Rothall said that his father also took him down the eastern boundary until they reached a metal star dropper with a paint tin hanging from it. From here, the two of them turned right and followed along a southern line until the Burns Creek Road was reached. This southern line was marked by blue tape and, near the road, there was another star dropper and a tree stump bearing a mark which Rothall claimed was an old survey mark. He also claimed that he saw no evidence of the true northern and southern boundary lines on this occasion. This evidence of Rothall amounted to a description of a northern boundary line located some distance to the north of the true boundary and encompassing the majority of Area 1. To the south, it amounted to a description of a line running parallel to the true boundary line approximately 200 metres to the south of it and encompassing the majority of Area 2.
In about 1980 or 1981 the defendants entered into a partnership called "T & G Contractors". Originally the business of the partnership was "cutting firewood and shearing and just general whatever we could pick up". The partners owned a Fordson wheel tractor and it was used for Limited logging operations within the boundaries of "Denholme". Towards the end of 1981 or early 1982 the partners purchased a bulldozer. This acquisition enabled the business to take logs from land previously inaccessible to the wheeled tractor. It was at this time the defendants decided to commence logging operations at the northern end of "Denholme". Both said that before these operations began, Rothall's uncle took them along a northern boundary line to ensure that such operations would not trespass onto State Forest. Rothall said that this line was the same line as his father had shown him two years earlier.
The defendants said in evidence, that they started taking logs from the south of "Denholme" in 1984. Before work commenced in this area they said that Rothall took Rigby along the southern line that Rothall's father had shown him in 1979. They said it was then marked with blue tape tied around the trees, the two star droppers and stump previously referred to.
The defendants said that they saw no signs indicating the position of the true boundary lines and logged in both the northern and southern area to the lines that had been pointed out to them. They both said that they believed these lines to be the true boundaries as they had been indicated as such by Rothall's father and uncle.
The dispute in 1979 between the Forestry Commission and Rothall's father and uncle concerned the location of the boundary lines in the south eastern corner of "Denholme". An officer of the Commission had apparently wrongly located some part or parts of the boundary in this area and this had given rise to an implication that a contractor, then working on the "Denholme" property, had unlawfully taken timber from the State Forest. I accept logging Inspector Crowden's evidence that, to resolve the dispute, he went to the area in company with Rothall's father and uncle and located a surveyor's mark. This same mark was identified by Mr Green in 1984 as the eastern most point of the true southern boundary. Mr Crowden, together with Rothall's father and uncle, then followed the true southern boundary and marked it by tying blue plastic tape around the trees at regular intervals until the junction with the Burns Creek Road was reached.
Mr Crowden returned to this southern boundary in 1984, after the Commission suspected timber had been taken from Area 2. At the eastern–most point, he noted a line of blue tape running off at an angle to the true line and heading towards the south into State Forest. This tape had not been there when he marked the boundary in 1979. This tape marked what the defendants claimed they understood was the correct southern boundary between "Denholme" and the State Forest.
Mr Harrex was a leading hand employed by the Forestry Commission. I accept his evidence that in 1979 he re–marked the true southern boundary by re–painting the blazes, cutting a slash–line and tying blue tape to the trees. In mid 1983, following a fire in the general area, he was part of a gang engaged to re–mark the boundaries. This time all of the boundaries were re–marked in the same manner as was done in 1979. In 1984, Mr Harrex again returned to the southern boundary. This time he saw the slash–lines and the blazes he had painted but little blue tape. On this visit, like Mr Crowden, he noticed blue tape marking a line which, for most of its distance, was some 200 metres to the south of the true boundary.
The work of Mr Harrex in 1983 was supervised by Senior Technical Forester Manning. He also returned to the area in late 1984. On the true northern boundary adjoining Area 1, he observed the slash–lines and blazes cut in 1983 but, like Mr Green, noted little evidence of blue tape. On the southern boundary, adjoining Area 2, he also saw the blazes and slash–line on the true boundary but noted little evidence of blue tape. However, he did see blue tape running in an irregular line some 200 metres south of the true boundary line.
Mr Manning said that all the other boundaries remained marked as they had been when he last saw them some 12 months earlier.
From all of this evidence I am satisfied that:–
1That in 1979 the true southern boundary was clearly marked in accordance with Forestry practice.
2That Rothall's uncle and father were present when this was done, and no other line was then marked.
3That in 1983, following a fire, all the true boundaries were re–marked in accordance with Forestry practice.
4Between 1983 and late 1984 some person or persons, not authorized by the Forestry Commission, removed most of the blue tape marking the northern and southern boundaries.
5Sometime after 1983 some person or persons not authorized by the Forestry Commission placed blue tape along an irregular line which commenced at the eastern end of the true southern boundary and then, after running south west into State Forest for a distance, followed a course roughly parallel to the southern boundary but some 200 metres from it until it reached the junction with the Burns Creek Road. I infer that this was done in an attempt to mislead an observer into believing that this line marked the true boundary.
I accept the evidence of Messrs Green and Manning that towards the end of 1984, in separate conversations, both defendants were asked who put the false line in on the southern boundary and both replied that "they would rather not say".
Both defendants were subjected to lengthy examination and cross–examination. I assess their evidence as unreliable and in some respects, untruthful. Throughout their evidence, both defendants gave evasive and unsatisfactory answers to questions which tended to incriminate them.
In November 1984 Rothall was questioned by Mr Green about the allegation of unlawfully cutting and taking timber from State Forest in Areas 1 and 2. Rothall offered to take Mr Green and Mr Manning to show them the line marked by blue tape that had been indicated by his father and uncle as the correct northern line. He said that he knew where the blue tape was and that the three of them set off to see it. He said they walked along a track in the bush which was a little distance from the line. However he was unable to point the tape out to Messrs Green and Manning because they refused to leave the track they were walking on and go a short distance into the bush where Rothall said the tape could be seen. I completely reject this account by Rothall. When this complaint was heard in the lower court, he gave an entirely different version. Then, he said that, before the conversation with Mr Green in November 1984, he had seen and photographed blue tape marking what he claimed to be the northern boundary. He said, that when he offered to show Green and Manning the line, they went straight to it and walked along it but the tape was no longer there. In the Lower Court proceedings Rothall suggested that the tape had been removed by officers of the Forestry Commission to make a fool of him. In the proceedings in this Court he said that the photographs of the blue tape along the claimed northern boundary were taken after and not before the conversation with Mr Green. The two accounts are completely irreconcilable. It is highly improbable that Mr Green and Mr Manning would unreasonably have refused to leave a track and go with Rothall to look at marks of a line after they had accepted his offer to do so. I find that in November 1984 there was no line marked other than the slash line and blazes on the true boundary line to the north of "Denholme".
Rigby was interviewed by Mr Green on the 13 December 1984. Although he claimed in evidence that, before logging commenced to the north of "Denholme" in late 1981 he had been shown a marked line by Rothall's uncle some distance north of the true boundary, in his statement he said "I thought the road was the line. I never actually walked around the lines; Greg should know where the lines are". He did not dispute the accuracy of this statement and was wholly unable to account for the difference between it and the evidence he had given.
Although Rigby admitted that in the course of logging he must have crossed and re–crossed the slash line and blazes marking the true boundary line he claimed to have seen no sign of it. I disbelieve this evidence. This line, recently re–marked by Mr Harrex and his gang must have been plainly visible to Rigby who was an experienced logging contractor.
With respect to the southern boundary, Rothall did not dispute that he replied, "I'd rather not say" to Mr Green's enquiry as to who put the false line in. In evidence, Rothall claimed that he did not know who put the false line in but could give no satisfactory account of why he did not say so to Mr Green.
Both defendants knew the "Denholme" property and its surrounds well. Rothall was brought up on an adjoining property which was also owned by his family, and in later years lived in a house on "Denholme". Rigby was a close friend of Rothall. He had been brought up in the same district and for a time lived in the same house as Rothall on "Denholme". Both were experienced bushman. Both had worked on the property. It is inconceivable that they had never seen the true northern and southern boundary lines as they had been clearly marked by the Forestry Commission officers in 1979 and again in 1983. Further, if Rothall's father had pointed out a southern boundary following settlement of the dispute in 1979, (which I doubt) the evidence of Mr Crowden makes it clear that such boundary must have been the true southern boundary.
I reject the defendants account that they were shown any lines which lay outside the true boundaries marking the northern and southern extent of "Denholme". I am satisfied beyond reasonable doubt that neither of them took timber from the State Forest under a mistake that the boundaries were other than the true boundaries.
The timber taken from the State Forest was taken in the course of conducting the partnership business. The defendants purchased equipment for the conduct of their business and shared in the profits and losses. Generally speaking, the felling operation was carried out by Rigby and the transport of some of the logs to the mills, undertaken by Rothall. In addition, the partnership engaged others to assist in the felling and pulling of logs and the carting of those logs to saw–mills.
Mr Manning had been given training in the assessment of the date upon which timber had been felled. He said there was an accepted practice in the industry for the assessment of the age of felled timber. He said he had had considerable experience in doing this work. His expertise in this area was not challenged. He said:–
"When you are looking at how long a tree has been down, things that you look for are, depending on the time of year, again, the colour of leaves, how much drying has occurred on the leaves, cracking of the timber, falling off of the bark, and generally the amount of disturbance that has been about the place relating to the time of year."
Using this method he inspected all of the stumps of trees felled in Area 1 and 2. He said that in Area 1 there was evidence of cutting in two stages. In his opinion the first stage occurred between December 1983 and March 1984 and the second stage between May and August 1984. In Area 2 it was his opinion that all the trees were cut between May and August 1984. In cross–examination he said there was room for a margin of error in his opinion in the order of 3 or 4% "but it is fairly clear at the time you are doing it; that is when you make your estimate".
Mr Manning caused each of the stumps in both areas to be painted with an identification number. In Area 1 he was of the view that the trees from stumps numbered 2–15 inclusive were cut in the period between December 1983 and March 1984 and the remainder in that area, as well as the whole of Area 2, were cut between May and August 1984. This evidence is generally corroborated by Mr Blythe who carted logs for the partnership from both Area 1 and Area 2 between June and August 1984.
In evidence both defendants denied cutting or taking any trees from Area 1 after December 1983 except as part of a cleaning–up operation following removal of the heads from trees previously felled. This evidence is in conflict with the statements each made to Mr Green. Rothall said, "logging started about due north of the house at 'Denholme' about February 1984" and "we were finished here in (sic) 30 May. T & G Contractors finished in June 1984". Although he attempted to explain the reference to "here" as a reference to private property, his explanation was far from convincing. In his statement concerning Area 1, Rigby said that he worked from about February to May 1984.
In his statement concerning Area 2 Rothall said "logging finished at the south eastern side of "Denholme" May 1984. The logging took place in march, April, May 1984." Rigby's statement concerning the same area contains the following passage:–
"Q What date did you start the operation in Area 2 ?
A After the last Christmas, March, April and May as Greg said."
After making an allowance of 4% for a possible margin of error, I am satisfied beyond reasonable doubt that the assessment of Mr Manning with respect to the date upon which the trees were felled in both areas is correct. There was no suggestion that anyone other than the defendants had been logging either on "Denholme" or in the two adjoining areas since the bushfire in 1983 and the evidence was uncontradicted that neither had lawful authority to take logs from the State Forest.
From the foregoing, I am satisfied beyond reasonable doubt, that both defendants, either as principals, or as aiders abettors within the meaning of the Justices Act s73, unlawfully cut and took trees and forest produce from State Forest during the times and from the places alleged in each of the four matters of complaint. As I am satisfied that neither entertained a belief that the boundaries were other than the true boundaries, I find that both defendants are guilty of each matter of complaint. In order to ascertain the quantity of timber taken, Forestry Commission officers measured the diameter of each of the stumps in Areas 1 and 2. From an indentation in the ground caused by the butt of a falling tree, the distance from there to the head which had been cut off was measured. From these measurements the cubic capacity of the timber taken was calculated. In a few instances, the head of the fallen tree could not be identified. In these cases the distance between the butt and the head was ascertained by assuming the tree was of a height equal to the average measured height of the immediately neighbouring trees.
The resultant calculations showed that, excluding trees felled prior to April 1984, 1310.85 cubic metres of timber was taken from Area 1 and 521.66 cubic metres from Area 2. I am satisfied beyond reasonable doubt that these measurements are correct. Making allowance for a margin of error of 4%, I am satisfied to the requisite degree that, the quantity of timber cut and taken as alleged in the 1st and 2nd matters of complaint is 1258.42 cubic metres and, 500.80 cubic metres in the case of the 3rd and 4th matters of complaint.
As the Forestry Act, s45(1) makes the defendants liable for the full amount of any damage done or loss involved by reason of their offences, I shall hear counsel further before proceeding to impose penalty.
0