Rue and Fanna v Leavy - [2005] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION: Rue & Fanna v Leavy [2005] QDC 110
PARTIES: MITCHELL JAMES RUE
(Appellant)
v
ASHLEY LAWRENCE LEAVY
(Respondent)
SHANE DOUGLAS FANNA
(Appellant)
v
ASHLEY LAWRENCE LEAVY
(Respondent)
FILE NO/S: 474 of 2004 475 of 2004
DIVISION:
PROCEEDING: Appeal
ORIGINATING
COURT: Magistrates Court, Innisfail
DELIVERED ON: 16 May 2005
DELIVERED AT: Cairns
HEARING DATE: 1 March 2005
JUDGE: Bradley DCJ
ORDER: Each of the appeals is dismissed
CATCHWORDS:
COUNSEL: Mr D Fitzgibbon for the appellants
Mr A Girle, Solicitor for the respondent
SOLICITORS: Environmental Protection Agency for the respondent
Facts

On 5 November 2004 each of the appellants was found guilty in the Magistrates Court, Innisfail of committing an offence pursuant to s 88(1) of the Nature Conservation Act 1992 (“the Act”) of taking protected animals. The ‘animals’ were in fact birds. The offences were committed between 1 July 2002 and 9 September 2003 when each of the appellants were employees of the “Barramundi Waters” fish farm at Cowley, south of Innisfail. In the course of their employment the two men shot and killed birds which had come to prey on the fish in the farm’s ponds. These birds included night herons, pelicans, ducks, egrets, and jabirus.
Evidence
The evidence before the Magistrates court was that Environmental Protection Agency and Queensland Parks and Wildlife Service investigators executed a search warrant at the barramundi farm on 9 September 2003. A number of staff from the farm were interviewed including the two appellants. The investigating officers took possession of two books in which details had been kept by staff of the number of birds taken on particular nights. Remains of deceased birds were located at a site on the property and seized for scientific examination. When interviewed both appellants admitted to shooting birds but stated that they did not appreciate that it was an offence to do so.
A former employee of the farm gave evidence of seeing fellow workers including the two appellants, shooting birds on many occasions including pelicans, jabirus, ducks, egrets and night herons. The carcasses of the birds were disposed of in a rubbish, or “mort”, pit on the farm. Although the former employee only worked on the farm during the day he saw evidence (in the form of the carcasses of night herons) of the shooting of birds during the night time. The birds were shot usually with a 12 gauge shotgun owned by one of the proprietors of the barramundi farm. The former employee guessed that “thousands” of birds had been shot during the 14 months he worked at the farm.
Two dead birds seized on 9 September 2003 were identified as a masked lapwing and a striated heron, both of which are common wildlife pursuant to the Nature Conservation (Wildlife) Regulation 1994. Jabirus, pelicans, ducks egrets and night herons are also common wildlife pursuant to that legislation.
Neither of the appellants were legally represented during the trial and neither sought to cross-examine any of the prosecution witnesses or give or adduce…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QDC 110
Decision Date: 16/05/2005

CaseChat Overview and Summary

The appeal by Rue and Fanna against their convictions for taking protected animals, namely birds, was heard by the court. The appellants, both employees of the Barramundi Waters fish farm, were found guilty of taking protected birds between July 1, 2002, and September 9, 2003, in violation of the Nature Conservation Act 1992. They had shot and killed birds that preyed on fish in the farm’s ponds, including night herons, pelicans, ducks, egrets, and jabirus. The evidence presented to the Magistrates Court included testimonies from Environmental Protection Agency and Queensland Parks and Wildlife Service investigators, details from the farm’s bird count books, and remains of deceased birds seized for examination. The appellants admitted to shooting the birds but claimed they were unaware it was an offence. The court had to determine whether the appellants' actions constituted an offence under the Act and if the evidence presented was sufficient to convict them.

The court considered the legal issues of whether the appellants' actions were deliberate and whether they were aware that the birds they were shooting were protected under the Act. The evidence suggested that the appellants had shot numerous birds over a period of 14 months, with one former employee estimating that "thousands" of birds were shot. Both appellants admitted to shooting the birds but did not challenge the prosecution's evidence or present their own defence. The court found that the appellants' admissions and the detailed evidence from investigators and witnesses were sufficient to prove their guilt beyond reasonable doubt. Furthermore, the certificates confirming that neither appellant held a licence or permit under the Act were not contested.

The court upheld the convictions, finding that the appellants' actions were deliberate and that they had sufficient reason to know the birds were protected. Both appellants did not challenge the prosecution's evidence and made no attempt to present a defence. The court concluded that the prosecution had proven each element of the offence against them, and the convictions were therefore affirmed. The appeals were dismissed, and the original convictions remained in place.

Orders

Orders of the court

Each of the appeals is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 5 November 2004 each of the appellants was found guilty in the Magistrates Court, Innisfail of committing an offence pursuant to s 88(1) of the Nature Conservation Act 1992 (“the Act”) of taking protected animals. The ‘animals’ were in fact birds. The offences were committed between 1 July 2002 and 9 September 2003 when each of the appellants were employees of the “Barramundi Waters” fish farm at Cowley, south of Innisfail. In the course of their employment the two men shot and killed birds which had come to prey on the fish in the farm’s ponds. These birds included night herons, pelicans, ducks, egrets, and jabirus. Evidence The evidence before the Magistrates court was that Environmental Protection Agency and Queensland Parks and Wildlife Service investigators executed a search warrant at the barramundi farm on 9 September 2003. A number of staff from the farm were interviewed including the two appellants. The investigating officers took possession of two books in which details had been kept by staff of the number of birds taken on particular nights. Remains of deceased birds were located at a site on the property and seized for scientific examination. When interviewed both appellants admitted to shooting birds but stated that they did not appreciate that it was an offence to do so. A former employee of the farm gave evidence of seeing fellow workers including the two appellants, shooting birds on many occasions including pelicans, jabirus, ducks, egrets and night herons. The carcasses of the birds were disposed of in a rubbish, or “mort”, pit on the farm. Although the former employee only worked on the farm during the day he saw evidence (in the form of the carcasses of night herons) of the shooting of birds during the night time. The birds were shot usually with a 12 gauge shotgun owned by one of the proprietors of the barramundi farm. The former employee guessed that “thousands” of birds had been shot during the 14 months he worked at the farm. Two dead birds seized on 9 September 2003 were identified as a masked lapwing and a striated heron, both of which are common wildlife pursuant to the Nature Conservation (Wildlife) Regulation 1994. Jabirus, pelicans, ducks egrets and night herons are also common wildlife pursuant to that legislation. Neither of the appellants were legally represented during the trial and neither sought to cross-examine any of the prosecution witnesses or give or adduce evidence themselves. A certificate tendered pursuant to the evidentiary provisions of the Act in relation to each appellant to the effect that neither of the appellants was the holder of a licence, permit or other authority issued under the Act at the relevant time, was also not challenged by either appellant. At the close of the prosecution case before the Magistrate the appellants submitted that there was no case for them to answer and sought to hand up to the Magistrate written submissions. The Magistrate refused to accept or read the written submissions and went on to give his decision in which he, unsurprisingly, found that the elements of the offence against each appellant had been proven beyond reasonable doubt and he convicted each of them.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rue & Fanna v Leavy [2005] QDC 110
PARTIES:	MITCHELL JAMES RUE (Appellant) v ASHLEY LAWRENCE LEAVY (Respondent)
SHANE DOUGLAS FANNA (Appellant) v ASHLEY LAWRENCE LEAVY (Respondent)
FILE NO/S:	474 of 2004 475 of 2004
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Innisfail
DELIVERED ON:	16 May 2005
DELIVERED AT:	Cairns
HEARING DATE:	1 March 2005
JUDGE:	Bradley DCJ
ORDER:	Each of the appeals is dismissed
CATCHWORDS:
COUNSEL:	Mr D Fitzgibbon for the appellants Mr A Girle, Solicitor for the respondent
SOLICITORS:	Environmental Protection Agency for the respondent
Facts