Scriven v Sargent

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.