Steiner v Seri - [2012] QCA 226

SUPREME COURT OF QUEENSLAND

CITATION:

Steiner v Seri [2012] QCA 226

PARTIES:

STEINER, John Raymond
(applicant/appellant)
v
SERI, Wayne Michael
(respondent)

FILE NO/S:

CA No 329 of 2011
DC No 164 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2012

JUDGES:

Margaret McMurdo P and Muir JA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal granted but limited to two issues: first, whether s 24 Criminal Code 1899 (Qld) has application to s 235 Building Act 1975 (Qld), and, second, whether the magistrate erred in finding that the prosecution established beyond reasonable doubt that s 24 Code did not provide a defence to the charge under s 235 Building Act.

2.    Appeal dismissed.

3.    No order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was the owner of property with a swimming pool – where the appellant was found to have failed to ensure the pool complied with fencing standards pursuant to s 235 Building Act 1975 (Qld) – where the appellant gave evidence that the property was tenanted, and by agreement, the tenants were responsible for pool maintenance – where the appellant had not inspected the pool for over two months – where the pool was old and the appellant had previously received an infringement notice – whether the defence of mistake of fact pursuant to s 24 Criminal Code 1899 (Qld) was applicable – whether the complainant proved beyond reasonable doubt that the appellant did not have an honest and reasonable belief that the pool fence was compliant

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant was ordered to pay the complainant’s professional costs – where the prosecution was commenced by complaint and summons brought by an employee of the Townsville City Council in the employee’s name – where the prosecution, in practical terms, was conducted by the Council – whether the magistrate erred in his costs order

Building Act 1975 (Qld), s 235 (repealed), s 256
Criminal Code 1899 (Qld), s 24
District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 4, s 42, s 142A, s 157, s 158A
Local Government Act 2009 (Qld), s 237, s 240
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 195

Bailey v Doncon (2007) 178 A Crim R 358; [2007] WASC 252, cited
Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98, cited
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, cited
Steiner v Seri [2011] QDC, Unreported, Durward SC, DCJ, No 164 of 2011, 31 October 2011, related
Walden v Hensler (1987) 163 CLR 561; [1987]…

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.

Continue reading Steiner v Seri

Details

AGLC: Steiner v Seri [2012] QCA 226
Case: [2012] QCA 226
Decision Date: 24 August 2012

CaseChat Overview and Summary

Steiner, the appellant, was the owner of property that included a swimming pool. The property was leased to tenants, who were responsible for maintaining the pool, according to the appellant's evidence. The appellant did not inspect the pool for over two months and had previously received an infringement notice for non-compliance with the fencing standards under section 235 of the Building Act 1975 (Qld). The appellant was convicted of failing to ensure the pool complied with these standards. The appellant argued that they had a mistake of fact defence under section 24 of the Criminal Code 1899 (Qld), asserting that they had an honest and reasonable belief that the pool fence was compliant. The court was required to determine if this defence was applicable and whether the prosecution proved beyond reasonable doubt that the appellant did not hold this honest and reasonable belief.

The court found that section 24 of the Criminal Code 1899 (Qld) was not applicable to the offence under section 235 of the Building Act 1975 (Qld). The court held that the provision in the Building Act was a strict liability offence and did not allow for the defence of mistake of fact. Furthermore, the court found that the prosecution had established beyond reasonable doubt that the appellant did not have an honest and reasonable belief that the pool fence was compliant. The court based its decision on the appellant's failure to inspect the pool, despite having received a previous infringement notice, and the absence of evidence that the appellant took any steps to ensure compliance with the fencing standards.

The appeal was dismissed as the court found no merit in the appellant's arguments regarding the applicability of the mistake of fact defence and the prosecution's proof of the appellant's state of mind. The court also noted that the prosecution was brought by an employee of the Townsville City Council, but the Council effectively conducted the prosecution. The court did not find any error in the magistrate's decision regarding the costs order. Therefore, no order was made as to costs.

Orders

Orders of the court

1. Application for leave to appeal granted but limited to two issues: first, whether s 24 Criminal Code 1899 (Qld) has application to s 235 Building Act 1975 (Qld), and, second, whether the magistrate erred in finding that the prosecution established beyond reasonable doubt that s 24 Code did not provide a defence to the charge under s 235 Building Act.

2. Appeal dismissed.

3. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Steiner v Seri [2012] QCA 226
PARTIES:	STEINER, John Raymond (applicant/appellant) v SERI, Wayne Michael (respondent)
FILE NO/S:	CA No 329 of 2011 DC No 164 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	24 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2012
JUDGES:	Margaret McMurdo P and Muir JA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted but limited to two issues: first, whether s 24 Criminal Code 1899 (Qld) has application to s 235 Building Act 1975 (Qld), and, second, whether the magistrate erred in finding that the prosecution established beyond reasonable doubt that s 24 Code did not provide a defence to the charge under s 235 Building Act. 2. Appeal dismissed. 3. No order as to costs.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was the owner of property with a swimming pool – where the appellant was found to have failed to ensure the pool complied with fencing standards pursuant to s 235 Building Act 1975 (Qld) – where the appellant gave evidence that the property was tenanted, and by agreement, the tenants were responsible for pool maintenance – where the appellant had not inspected the pool for over two months – where the pool was old and the appellant had previously received an infringement notice – whether the defence of mistake of fact pursuant to s 24 Criminal Code 1899 (Qld) was applicable – whether the complainant proved beyond reasonable doubt that the appellant did not have an honest and reasonable belief that the pool fence was compliant APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant was ordered to pay the complainant’s professional costs – where the prosecution was commenced by complaint and summons brought by an employee of the Townsville City Council in the employee’s name – where the prosecution, in practical terms, was conducted by the Council – whether the magistrate erred in his costs order Building Act 1975 (Qld), s 235 (repealed), s 256 Criminal Code 1899 (Qld), s 24 District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 4, s 42, s 142A, s 157, s 158A Local Government Act 2009 (Qld), s 237, s 240 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 195 Bailey v Doncon (2007) 178 A Crim R 358; [2007] WASC 252, cited Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98, cited Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, cited Steiner v Seri [2011] QDC, Unreported, Durward SC, DCJ, No 164 of 2011, 31 October 2011, related Walden v Hensler (1987) 163 CLR 561; [1987]…