Scriven v Sargent

Case [2017] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

Scriven v Sargent [2017] QCA 95

PARTIES:

SCRIVEN, Sam Chester
(applicant)
v
SARGENT, Cameron James
(respondent)

FILE NO/S:

CA No 56 of 2016
DC No 2 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

Magistrates Court at Roma – Date of Conviction: 6 October 2011

DELIVERED ON:

19 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2017

JUDGES:

Morrison JA and Boddice and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where in 2011 the applicant was convicted and sentenced in the Magistrates Court for carrying out “assessable development” without an effective permit – where the applicant successfully appealed the sentence imposed by the learned Magistrate in the District Court and was resentenced – where the applicant now seeks leave to appeal his conviction – where the applicant’s grounds of appeal ultimately rely on an honest claim of right based on s 22 of the Criminal Code – whether the offence was one of general application – whether the right claimed by the applicant is a defence to the charge – whether leave to appeal should be granted

Criminal Code (Qld), s 22
District Court of Queensland Act 1967 (Qld), s 118(3)
Integrated Planning Act 1997 (Qld), s 4.3.1
Land Title Act 1994 (Qld), s 184
Property Law Act 1974 (Qld)
Vegetation Management Act 1999 (Qld), s 67A

Hines v Commissioner of Police[2016] QCA 3, applied
R v Waine [2006] 1 Qd R 458; [2005] QCA 312, considered
Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, considered
Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54, cited

COUNSEL:

P E King for the applicant
G J Del Villar, with G Carter, for the respondent

SOLICITORS:

No appearance for the applicant
Department of Environment and Heritage Protection for the respondent

  1. MORRISON JA:  I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.

  2. BODDICE J: On 9 September 2011, the applicant was convicted in the Magistrates Court of carrying out “assessable development”, on his rural property without an effective permit, contrary to s 4.3.1 of the Integrated Planning Act 1997 (Qld) (“IPA”).  The applicant was fined and ordered to pay the costs of the investigation and legal costs.  No conviction was recorded.

  3. On 20 September 2011, the applicant lodged an appeal against both the conviction and sentence in the District Court of Queensland.  On 17 February 2016, the appeal against conviction was dismissed and the appeal against sentence was allowed.  An order was made that the applicant be re-sentenced for that offence.

  4. By notice filed 14 March 2016, the applicant sought leave to appeal the decision of the District Court of Queensland, dismissing his…

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AGLC
Scriven v Sargent [2017] QCA 95
Case
[2017] QCA 95
Decision Date

CaseChat Overview and Summary

In Scriven v Sargent, the applicant sought leave to appeal his conviction for carrying out “assessable development” without an effective permit. The applicant had been convicted and sentenced in the Magistrates Court in 2011 and successfully appealed the sentence in the District Court. The current application concerns the applicant’s conviction, arguing that the offence was one of general application and that s 22 of the Criminal Code provided a defence of honest claim of right.

The central legal issues for the court to decide were whether the offence was one of general application and, if so, whether the honest claim of right under s 22 of the Criminal Code was a defence to the charge. The applicant argued that the Torrens System of title by registration entitled him to use the land unconditionally, including clearing native vegetation without a permit. The respondent contended that s 22 of the Code did not apply as the offence was of general application, unaffected by any proprietary or lesser right in the land.

The court held that the primary Judge was correct in finding that s 22 of the Code did not apply to the charge. The court noted that the offence created by s 4.3.1 was of general application, irrespective of any proprietary or lesser right in the land, and thus afforded no scope for the exercise of any claim of right. The court concluded that the applicant's honest belief in his right to clear the land did not constitute a defence because the right he believed to exist did not exist, amounting to ignorance of the law.

The application for leave to appeal was refused.

Orders

Orders of the court

The application for leave to appeal be refused.

Background

Background to the litigation

However, the applicant’s written submissions in reply clarified that the first two contentions were but circumstances relied upon to found a defence of honest claim of right based on s 22 of the Criminal Code (“Code”). The oral submissions also proceeded on that basis.Background The land in question forms part of a large rural property, comprising over 13,000 hectares. The applicant’s family conduct a cattle operation on the land. The applicant acquired freehold title to the land in question in 2000. The land was previously held by the applicant by way of a freeholding lease. It was purchased from the former leaseholder and subsequently converted to a freehold title. The applicant is the registered owner pursuant to that freehold title. The assessable development the subject of the offence related to the clearing of native vegetation in the form of mallee and poplar box on some 1,819 hectares of the freehold land, without an effective permit. The applicant’s contention in the Magistrates Court and on appeal was that the prosecution could not prove beyond reasonable doubt that the applicant did not have a permit or permits to clear the land and that, in any event, the applicant was not criminally responsible for any such offence because the clearing was done by him in the exercise of an honest claim of right without intention to defraud.District Court decision The primary Judge found the Magistrate was entitled, on the evidence, to be satisfied beyond reasonable doubt that the applicant had no permit for clearing the land. The scheme of the Act provided for the notation of any permit issued to be made on the certificate of title to the relevant land. Further, even if permits were able to be granted without such notation, permits would not have been granted for clearing the land in the way the applicant had cleared the land. The primary Judge further held that the Magistrate did not err in concluding s 22 of the Code did not constitute an answer to the charge. That section only operated if the right which a person must honestly believe to exist was a right which if it did exist would be a defence to the charge. A belief in a right to do something with respect to the property cannot constitute a defence if that right does not exist. It is simply ignorance of the law.Applicant’s contentions The applicant contends that the provisions of the Land Act, the Property Law Act and the Land Title Act create the Torrens System of title by registration. The applicant honestly believed that that system of title protected the applicant from prosecution in respect of acts done in relation to his land whilst registered proprietor of that land. The applicant submits that he honestly believed that holding real property under that system of title by registration entitles the applicant to use the subject land unconditionally, including all fixed native vegetation. As neither the Vegetation Management Act nor the IPA were noted or registered on the applicant’s title to that land, the applicant honestly believed fixed native vegetation remained his property with the right to do as he wished with it.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s contention in the Magistrates Court and on appeal was that the prosecution could not prove beyond reasonable doubt that the applicant did not have a permit or permits to clear the land and that, in any event, the applicant was not criminally responsible for any such offence because the clearing was done by him in the exercise of an honest claim of right without intention to defraud.District Court decision The primary Judge found the Magistrate was entitled, on the evidence, to be satisfied beyond reasonable doubt that the applicant had no permit for clearing the land. The scheme of the Act provided for the notation of any permit issued to be made on the certificate of title to the relevant land. Further, even if permits were able to be granted without such notation, permits would not have been granted for clearing the land in the way the applicant had cleared the land. The primary Judge further held that the Magistrate did not err in concluding s 22 of the Code did not constitute an answer to the charge. That section only operated if the right which a person must honestly believe to exist was a right which if it did exist would be a defence to the charge. A belief in a right to do something with respect to the property cannot constitute a defence if that right does not exist. It is simply ignorance of the law.Applicant’s contentions The applicant contends that the provisions of the Land Act, the Property Law Act and the Land Title Act create the Torrens System of title by registration. The applicant honestly believed that that system of title protected the applicant from prosecution in respect of acts done in relation to his land whilst registered proprietor of that land. The applicant submits that he honestly believed that holding real property under that system of title by registration entitles the applicant to use the subject land unconditionally, including all fixed native vegetation. As neither the Vegetation Management Act nor the IPA were noted or registered on the applicant’s title to that land, the applicant honestly believed fixed native vegetation remained his property with the right to do as he wished with it. The applicant submits the primary Judge erred in finding that s 22 of the Code had no application. The applicant had undertaken clearance of the land in the honest but mistaken belief that he was the owner of the native vegetation on the property over which he had freehold title. Section 22 operates as a defence in respect of an honest claim of right to act in a specified way in respect of property.Respondent’s submissions The respondent submits the primary Judge correctly held that s 22 of the Code had no application. Section 22 only operates in respect of a right a person honestly believes to exist if that right, if it existed, would constitute a defence to the charge. The primary Judge correctly found that s 4.3.1 created an offence of general application, irrespective of any proprietary or lesser right in the land and therefore afforded no scope for the exercise of any claim of right. Nothing in s 4.3.1 limits its operation such that ownership of the land in question would constitute an excuse for the commission of the offence.

Ratio Decidendi

Legal Principle Established

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