Smith v Visser

[2000] TASSC 44

[2000] TASSC 44

CITATION:           Smith v Visser [2000] TASSC 44

PARTIES:  SMITH, Neil Innes
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 36/1998
DELIVERED ON:  12 May 2000
DELIVERED AT:  Launceston
HEARING DATE/S:  10 May 2000
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law - Particular offences - Miscellaneous offences and matters - Other offences - Undertaking an activity on land within State forest contrary to a direction given by a police officer - Whether police officer had authority to direct a person to leave the land.

Forestry Regulations 1993 (Tas), reg47(2).

Aust Dig Criminal Law [416]

REPRESENTATION:

Counsel:
           Applicant:  M J Brett
           Respondent:  M M G Miller
Solicitors:
           Applicant:  S B McElwaine
           Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2000] TASSC 44
Number of paragraphs:  15

Serial No 44/2000

File No LCA 36/1998

NEIL INNES SMITH v CLAAS VISSER

REASONS FOR JUDGMENT  CRAWFORD J
  12 May 2000

1. The applicant was charged with seven offences on complaint 17616/1998.  At the outset of the hearing before a magistrate the prosecutor offered no evidence with respect to charges 1, 2, 3 and 7 and those charges were dismissed.  The hearing of charges 4, 5 and 6 then proceeded.  After evidence was given by three witnesses the learned magistrate reserved his decision until 4 September 1998.  On that day he gave reasons for his determination that "in the result I find the complaint proved".  Plainly what the learned magistrate meant to say was that he found charges 4, 5 and 6 proved. 

1. Currently the proceedings in the court of petty sessions stand adjourned.  The applicant has not been convicted or sentenced.  Although the notice to review seeks to review convictions, it was common ground at the hearing before me that it attacks the finding of the learned magistrate that charges 4, 5 and 6 had been proved by the evidence.  A finding that a charge has been proved is a reviewable order for the purposes of the Justices Act 1959, s107(1) and s116. Thow v Lowe [1988] Tas R 164 (NC 11), 26/1998.

1. As amended, the notice to review assails the findings that each of charges 4, 5 and 6 was proved, but by the conclusion of the hearing the applicant only sought to overturn the finding that charge 4 had been proved.  As drafted, it charged the applicant with a breach of the Forestry Regulations 1993, reg47(2), in that:

"Between the 3rd March, 1998 and the 12th March, 1998 on land within State Forest at Meander in Tasmania without lawful excuse, undertaking in [sic] an activity that was contrary to a direction given to you by Constable Wheller a police officer, in respect of that land within State forest, namely, by remaining on the land within State Forest."

It is to be noted that the activity it was alleged that the applicant was undertaking was "remaining on the land within State Forest" and the direction allegedly given by the police officer was not particularised.

1. It is common ground that at the relevant time the applicant was in a tree-house approximately 25 metres up a gum tree and that he had erected the tree-house and put himself in it for the purpose of obstructing forestry operations.  Workers were endeavouring to construct a road, in the course of which work trees had to be fallen, to gain access to a coupe where forestry operations were to be carried out.  He had been in the tree-house since 3 March and had delayed the work.  It was an admitted fact that he was in State forest. 

1. The evidence in so far as it is material to my resolution of the motion to review, was as follows.  I have listened to the tape recording of it.  In his evidence-in-chief Constable Weller said that on 12 March 1998 he attended at the scene at 8am.  An authorised officer from Forestry Tasmania removed consent for the applicant to be on the land.  Constable Weller then told the applicant his name and said that he was a police officer.  The applicant agreed that he could hear the constable, who then said:  "An authorised officer from Forestry Tasmania has removed consent for you to be on this land.  You are now required to leave this land.  If you fail to do so, you will be arrested."  The defendant replied:  "Thank you".  Constable Weller said:  "Will you leave?"  The applicant said:  "No".  After a number of hours the constable managed to climb up to the tree-house where he told the applicant he was under arrest for trespassing.  Eventually the applicant co-operated and was taken away.  I was informed that subsequently there was some doubt concerning whether the applicant was trespassing and it was decided not to proceed with a trespass charge. 

1. It can be seen that in his examination-in-chief Constable Weller required the applicant "to leave this land".  It might be thought that cross-examination created some doubt about that because of the way in which defence counsel went about his task.  He posed to Constable Weller that there was a request to get out of the tree and to leave the tree.  The relevant passage of cross‑examination is:

"And in relation to the words that you used on 12 March, that was the time that you made this request for him to get out of the tree.  Correct?  …  Yes, sir.

And that was based, was it, on your understanding that he was committing an offence of trespass by being there?  …  Yes, sir.

And that was the foundation of your request to him to leave the tree?  …  Yes, sir.

And you said 'I now require you to leave' or something to that effect.  Is that right?  …  Yes.

And then you said 'Will you leave?'  …  Yes, after I had finished that.  Yes.

And after he had said 'Thank you', you said 'Will you leave?', was the question?  …  Yes, sir.

And he said 'No'?  …  Yes.

And all of that was based on your understanding that there was an exclusion zone applying in respect of the area encompassing the tree?  …  Yes."

1. The material provisions of reg47 are:

"(2)    A person must not, without lawful excuse, undertake any activity or engage in any conduct on a forest road, a forest reserve or other land within State forest that is contrary to ¾

(a)the directions of the Commission as expressed on any sign authorized by the Commission; or

(b)any directions given to that person by a forest officer or police officer¾

in respect of that forest road, forest reserve or other land with State forest.

Penalty:  Fine not exceeding 20 penalty units.

…

(4)     A forest officer or police officer may, as the case requires, direct a person who, in the reasonable opinion of that officer, is offending against subregulation (2) to leave the forest road, forest reserve or other land within State forest.

(5)     A person who fails to comply with a direction given to that person by a forest officer or police officer under subregulation (4) is guilty of an offence and liable on summary conviction to a fine not exceeding 20 penalty units."

1. The scheme of those provisions is that a two-stage process is necessary before a person can be directed under subreg(4) to leave land that is within State forest.  The subregulation does not authorise a police officer to direct any person to leave land within State forest which that person happens to be on.  Nor does the subregulation authorise such a direction to be given to a person who is offending against provisions of the Forestry Act 1920 or provisions of the regulations other than subreg47(2).  The direction to leave the land may only be given by a police officer in the case of a person who, in the reasonable opinion of that officer, is offending against subreg(2).  This view of the scheme of the provisions of the regulation is, I think, confirmed when regard is had to the various powers to make regulations which were contained in the Forestry Act 1920, s60(1).  By par(zd)(iv) authority was given to make regulations "making provision for or with respect to … the conduct of members of the public in forest reserves or lands to which forest management plans apply" and par(ze) was the source for regulations "authorizing a forest officer or other prescribed person who finds a person offending against the provisions of the regulations made for the purposes of paragraph (zd) to require that person to leave the forest reserve, other land within a State forest, or land to which a forest management plan applies in which he is so found offending and providing that, if such a person refuses to do so, or does not do so without reasonable expedition, he is guilty of an offence against those regulations".

1. It should also be observed that the offence created by subreg47(2) is not one of failing to comply with a direction of a police officer, as is the case with subreg(5).  The offence under subreg(2) is committed when, without lawful excuse, a person undertakes an activity on land within State forest that is contrary to any directions given to that person by an officer in respect of that land. 

1. The learned magistrate addressed the question concerning the relevant activity which was undertaken by the applicant on the land in question.  A defence submission that all the applicant did was remain on land, and that it would not amount to an activity, was rejected.  His Worship held that what the applicant was doing was "tree-sitting" and that "tree-sitting" may properly be regarded as the undertaking of an activity, notwithstanding that it may be passive.  No ground of the motion to review attacks that determination.

1. The learned magistrate went on to consider what direction was given by Constable Weller to the applicant, contrary to which he continued to undertake his "tree-sitting", and concluded "that the evidence is clear that the direction was that the defendant remove himself from the tree".  His Worship said that the evidence was "that the defendant was only directed to leave his perch, that is, that he was directed in effect to cease the activity of tree sitting and come down out of the tree".  With respect the learned magistrate was in error when he made that finding.  The error was probably caused by his failure to correctly note the evidence given by Constable Weller.  He quoted the officer as saying:  "An authorised officer has removed consent.  You are now required to leave, will you?"  However, what the constable had in fact said in evidence-in-chief was that the words uttered by him were:  "An authorised officer from Forestry Tasmania has removed consent for you to be on this land.  You are now required to leave this land.  If you fail to do so, you will be arrested."  I presume that the learned magistrate relied on his handwritten note of the evidence and did not have the benefit of a transcript of the evidence, such as the one prepared for the hearing before me. 

1. It is my opinion that it would have been a valid direction under subreg47(2) if Constable Wheller had directed the applicant to get down from the tree and to stand clear of it, so that the tree could be fallen and the road work could proceed at that point, and that if the applicant had continued to sit in the tree, contrary to such a direction, he would have been committing the offence created by the subregulation.  Upon its commission, Constable Wheller would then have been authorised, by subreg(4), to direct the applicant to leave the land, and a failure by the applicant to comply with such a direction would have amounted to the offence created by subreg(5).  But the officer could not give the direction to leave the land before he held a reasonable opinion that the applicant had committed the subreg(2) offence.

1. A tree is, of course, part of the land upon which it stands, but the direction to leave the land could not be construed as a direction merely to get down from and leave the tree.  That is not a reasonable interpretation of the conversation related by Constable Wheller in his evidence-in-chief.  The erroneous finding of the learned magistrate that the officer made a direction of that nature must have arisen because his Worship failed to adequately record the precise words of the constable's direction as related by the officer.  I do not regard the passage of cross-examination I have cited as changing the effect of what the witness said in his evidence-in-chief.  In any event, it was plainly not open to the learned magistrate to reject the evidence-in-chief and to conclude, beyond reasonable doubt, that the direction was merely one to leave the tree, rather than a direction to leave the land. 

1. A direction to leave land may as a general rule be interpreted as a direction to get off the land and not simply a direction to move from one part of the land to another part of it. 

1. For these reasons I am of the opinion that the finding that charge 4 was proved was erroneous.  It will be ordered that the finding is set aside and that charge 4 is dismissed.  The finding that counts 5 and 6 were proved are confirmed.