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 2011DIVISION:
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 madeORDER:
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 67AHines 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, citedCOUNSEL:
P E King for the applicant
G J Del Villar, with G Carter, for the respondentSOLICITORS:
No appearance for the applicant
Department of Environment and Heritage Protection for the respondent
MORRISON JA: I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.
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.
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.
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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- Scriven v Sargent [2017] QCA 95
- Case
- [2017] QCA 95
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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