Stevens v Pfeiffer
[2004] QDC 404
•5 October 2004
DISTRICT COURT OF QUEENSLAND
CITATION:
Stevens v Pfeiffer [2004] QDC 404
PARTIES:
PAUL ERNEST STEVENS (Appellant)
and
OTTO PFEIFFER (Respondent)FILE NO/S:
708 of 1999
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Southport
DELIVERED ON:
5 October 2004
DELIVERED AT:
Brisbane
HEARING DATE:
Southport 18-19 March 2004
Brisbane 2-3 August 2004JUDGE:
Boyce DCJ
ORDER:
Complaint dismissed
CATCHWORDS:
LOCAL AUTHORITY BY-LAW – prosecution for destruction of protected trees without permit
Justices Act 1886
COUNSEL:
Mr M Griffin SC for the appellant (complainant)
Mr C E K Hampson QC for the respondent (defendant)SOLICITORS:
King & Company for the appellant
Nyst Lawyers for the respondent
The complainant (“Mr Stevens”) brought a complaint against the defendant (“Mr Pfeiffer”) alleging that on 4 September 1998 Mr Pfeiffer damaged protected vegetation contrary to the provisions of s 5(1) of Interim Local Law No 6 (Vegetations Management). I shall refer to this Interim Local Law for convenience as “The By-Law”. By Queensland Government Gazette of 14 March 1997 the by-law expired on 14 September 1997 unless extended by the Minister by notice in the Government Gazette. It was extended by Government Gazette on 5 September 1997 until 14 March 1998. Then on 13 March 1998 it was further extended to 14 September 1998. I find the By-law was in force as at the date of the offence, 4 September 1998.
Mr Stevens was employed by and brought the complaint on behalf of Gold Coast City Council (“the Council”).
The definition of “Protected Vegetation” in the By-law protected trees which were more than 40cms in girth at a point 1.5m above average ground level. By-law 5(1) provided: “A person must not damage protected vegetation”. By-law 5(2) provided: “However, an offence is not committed if the damage is permitted under this local law”. By-Law 6 permitted damage to protected vegetation in various circumstances.
The matter came on for hearing initially in 1998 before a Magistrate who upheld a preliminary point and dismissed the complaint.
An appeal to the District Court at Southport in 1999 was upheld, and a re-hearing before a District Court judge was ordered. Subsequently an appeal to the Court of Appeal was dismissed. An appeal to the High Court was dismissed in December 2002. Directions were then given by another District Court judge. The parties appear to have taken a very leisurely approach to having the matter finally listed for re-hearing in 2004. The re-hearing took place before me in March and August 2004.
At the time of the hearing of the appeal in 1999 the District Court did not have power to remit the matter to a Magistrates Court for re-hearing (R v Judge Dodds ex parte Smith & Graham (1990) 2 Qd R 80. It is now necessary for this Court to hear and determine the matter on the merits. A threshold question raised by the defence is that the wrong party has been charged. The defence submits the owner of the land should have been charged, not Mr Pfeiffer who was merely a director. This prosecution cannot succeed unless the court is satisfied beyond reasonable doubt that Mr Pfeiffer counselled or procured the commission of the offence within the meaning of section 7 of the Criminal Code.
The alleged tree felling took place at 350-360 Pine Ridge Road on 4 September 1998. The land was registered in the name of Grimley Proprietary Limited. There was an office building on the land. There were two lakes that were used for waterskiing. There was no real issue in the hearing as to:
(1) the felling of the trees on 4 September 1998; and
(2) the fact that the trees felled were “protected vegetation”.
The Council rate records show that the name of the property is “Cable Ski World” of which the proprietor was Grimley Proprietary Limited (“Grimley”).
Relevant corporation records show that Grimley was incorporated in May of 1986. At all relevant times there were two directors, Mr Otto Pfeiffer and Mrs Stephanie Pfeiffer. The company secretary was Mr Otto Pfeiffer. There were two issued shares one of which was held by Mr Otto Pfeiffer and the other one by Mrs Stephanie Pfeiffer (his wife).
The subject land was at the relevant date described as Lot 100 on Registered Plan 904005.
Exhibit 12 is a certificate from the Council. It shows on an attached Council map a hatched area being the location of the alleged tree removal within the Cable Ski World Park. It certifies that at 4 September 1998 this area was not subject to any Gold Coast City Council extractive industry approval.
On 4 September at about 9.15 am two Council inspectors, Mr Cockram and Mr Field were separately advised by Council officers of complaints being made about possible tree clearing at the Cable Ski World property. They met at the site at about 9.30am.
They went to speak to a person who was apparently the site manager, one Simon Waterhouse.
They explained to Mr Waterhouse why they were on site and it was agreed they should speak to the machine operators. They observed that an excavator and a bulldozer were being operated on the site and trees were being cleared.
The two Council officers directed the operators to stop. Mr Cockram took photographs. They both took measurements of fallen vegetation.
I am satisfied from the evidence that despite a direction to stop, tree clearing continued throughout the day on the site until late in the afternoon, probably at least 4.30pm.
Accordingly I regard the res gestae (the clearing of trees on the site) as embracing a period from about 9.30am to about 4.30pm.
I allowed in evidence discussions between various Council officers and persons on the site other than Mr Pfeiffer.
The discussions with persons on the site other than Mr Pfeiffer were admitted as original evidence. In Ratten v The Queen (1972) AC 378 at 387 in the judgment of Lord Wilberforce it was said :
“The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. The question of hearsay only arises when the words spoken are relied on “testimonially” that is as establishing some fact related by the words.”
In Walton v The Queen (1989) 166 CLR 283 at p 304, Wilson, Dawson and Toohey JJ observed (in a joint judgment):
“However as we have said not all conduct involving an assertion express or implied is treated as hearsay and held to be inadmissible in evidence. If it were, the available evidence in many cases would be seriously depleted. The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible.
An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical & Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten; R v Andrews; see also Adelaide Chemical & Fertiliser Co Ltd v Carylyle. Of course the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v Vocisano (1974) 130 CLR 267 at 273. But if some times there is an element of hearsay in evidence which has led to statements by a person other than a witness for the purpose of founding an interest concerning that person’s state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability more probable. On the other hand if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn then it ought to be excluded as hearsay”
See further R v. Benz (1989) 168 CLR 110 especially at pp 116-118 and 143-144.
These statements were not admitted by me as truth of their contents.
Mr Cockram said that the entire area to be cleared was estimated at approximately 600m x 40m. At that stage the area that was actually cleared was only about 250m in length.
Mr Cockram explained in detail various photographs. These are Exhibits 4 and 5 (two aerial photos).
The trees that were growing were melaleuca trees. On this first visit a large area had already been cleared with the trees lying on the ground.
Mr Cockram went through in detail a number of photographs (Exhibit 14) indicating what he found on this first visit.
Mr Cockram and Mr Field left the site at about 11am. They had not located Mr Pfeiffer at that time.
They returned at about 2pm. They found further tree clearing was continuing.
Mr Cockram took further photographs which are Exhibit 15. He explained these in some detail.
Mr Cockram then went to the SkiWorld office with Mr Field and there he spoke to Mr Pfeiffer.
Mr Cockram asked Mr Pfeiffer if there was approval from Council to remove the trees. Mr Pfeiffer stated he had a mining permit to remove the soils and the vegetation needed to be removed to get to the soils. Mr Pfeiffer produced a document which he indicated was a permit.
The document produced by Mr Pfeiffer is Exhibit 16. Mr Cockram said that after perusing the document, he told Mr Pfeiffer it did not appear to be an approval from either the Council or the State Government and in the circumstances Mr Pfeiffer should not clear any further material from the site. Mr Cockram was clearly correct in what he had to say about Exhibit 16. I find there was no permit in existence at that time.
Mr Pfeiffer responded that he had a business to run. He enquired if he could stockpile and remove all the fallen vegetation. Mr Cockram indicated that fallen trees could be stockpiled but there should be no change to existing ground level.
Mr Cockram left the site about 3.30 pm. He returned with Mr Montgomery (a city solicitor) at about 4.30 pm.
Mr Cockram introduced Mr Montgomery to Mr Pfeiffer. Another Council officer Mr Bob Lee was also present. Mr Cockram left the site at that stage.
Subsequently Mr Cockram returned to the site to endeavour to calculate the number of felled trees. He compared an adjacent site. The vegetation was very similar, namely melaleuca trees. The area was not quite as dense as the subject site where the trees had been knocked down. He measured three separate areas each of which was approximately 20 metres by 20 metres square. Area I had 33 trees, Area II had 73 trees and Area III had 46 trees. The average for each area was 46 trees per 400 square metres.
Mr Cockram carried out what may be described as a mathematical exercise in proportion to try to estimate how many trees had actually been cleared on the subject site. I am satisfied for the reasons that appear in detail in his evidence that it was difficult to calculate precisely the number of cleared trees in each pile. They had been stockpiled into about ten different stockpiles and these stockpiles were of significant height.
Mr Cockram calculated the measurement of the cleared area was about 450m x 30m. He calculated about 1707 trees in the cleared area.
Mr Cockram had counted ten piles of trees. In one pile he counted about fifty of the protected trees.
Quite a deal of evidence involved Mr Cockram and other Council officers marking on various plans the areas that they discussed in their evidence.
In cross-examination Mr Cockram said that when he spoke to Mr Waterhouse he was told the tree clearing was “with the developer” and Mr Waterhouse merely managed the park.
The drivers of the earth-moving equipment told Mr Cockram that it was David Hayhoe who had engaged them and instructed them as to what to do. It will appear subsequently that Mr Hayhoe was in fact the manager engaged by Mr Pfeiffer on behalf of Grimley (the owner of the land).
Mr Cockram said that Mr Hayhoe told him that he, Mr Hayhoe, was the supervisor and he had received information from Mr Pfeiffer that approval was in place for the tree clearing. When Mr Cockram asked Mr Hayhoe if he had an appropriate permit Mr Hayhoe replied that would be with Mr Pfeiffer.
One of the lakes on the subject site was dry on 4 September when the tree clearing was being carried out.
In re-examination Mr Cockram said that when he asked Mr Hayhoe for any approvals for the tree clearing work, Mr Hayhoe said that he only worked for Mr Pfeiffer and the Council officers were to go to the office for more information.
Mr Pozingis, another Council officer, arrived on the site about 2.30pm. His evidence was along the same lines as that of Mr Cockram although I considered his recollection of conversations was poor. Mr Pozingis deferred to Mr Cockram as the senior officer in charge on the investigation. He recalled Mr Pfeiffer saying that he had a business to run.
Mr Field gave evidence. His evidence was along the same lines as the evidence of Mr Cockram. Mr Field regarded Mr Cockram as the senior officer in this investigation and allowed Mr Cockram to carry out most of the discussions.
Mr Field went through the photographs in the same fashion as Mr Cockram and gave evidence to the same effect as Mr Cockram.
Mr Field said that Mr Hayhoe told him and Mr Cockram that Mr Hayhoe worked for the owner of the property who was Mr Otto Pfeiffer.
At about 10.45 a.m. the clearing work had restarted. They went to talk to Mr David Hayhoe who said he had spoken to Mr Pfeiffer and the paperwork was in order and the work was to continue.
Mr Field confirmed that Mr Waterhouse had said that he was running the Cable Ski business but he was not involved with the tree clearing.
Mr Hayhoe indicated to the Council officers that they would have to serve a piece of paper and he would not stop the work on their mere say-so.
Once again the Council officers gave directions that the work should stop.
Mr Montgomery (the Council solicitor) arrived with Mr Bob Lee at about 3.45pm and spoke to Mr Pfeiffer. Mr Montgomery advised Mr Pfeiffer that the work was in breach of Council regulations. Mr Pfeiffer said that he had approvals. Mr Montgomery said he did not agree because he had checked this. Mr Pfeiffer indicated that he was under the impression that he could clear the trees from the land because he had the permits to do so.
Mr Pfeiffer indicated that he had the right to do the work because he was entitled to take the trees out to get to his sand. Mr Montgomery disagreed.
Mr Montgomery asked if Mr Pfeiffer was prepared to let work be suspended for the weekend so as to clarify the approvals. Mr Pfeiffer replied that he was satisfied that he was entitled to remove the trees. Mr Pfeiffer indicated he was going to authorise one of the operators to continue work next morning. Mr Montgomery told Mr Pfeiffer that he considered the local law had been breached and he was worried about those trees down there and he did not want those trees removed. He asked Mr Pfeiffer would he agree not to touch those trees. He indicated that he did not mind the clearing up of trees that had already been knocked down. Mr Pfeiffer responded “No” and stated that he intended to use the equipment. He said that he had the right to take the trees down and “I intend to clear the site.” Mr Pfeiffer said he was going to continue to clear the site because he had the equipment on it.
Mr Pfeiffer said that he was paying for the machinery to be on site and that he was not going to pay for it to sit there and not move for the weekend. He said he did not intend to pay for the equipment on a weekend and not to work.
Subsequently at about 6pm that evening the Council applied to a Supreme Court Judge for an injunction to stop tree clearing on the land. Mr Montgomery gave evidence for the Council on oath over a mobile telephone during the course of that hearing. Mr Montgomery was at the Gold Coast at the time.
Despite objection, I allowed Mr Montgomery to refresh his memory from a transcript of his evidence given in the Supreme Court. In cross examination Mr Montgomery said that he considered the shorthand transcript was a complete and true account of the testimony that he had given before the Supreme Court.
I admitted the evidence provisionally because a certified copy of the transcript was not available. As to refreshing his memory, I refer to the following authorities:
King v Bryant (No. )2 (1956) St.R.Q. 570 (Full Court)
R v Mills & Rose (1962) 46 Cr App R 336 at 342
R v Duffy (1991) 1 Cr App R 307
R v Van Beelen (1972) 6 SASR 534 at 538
R v Shea (1978) 18 SASR 591
R v Cheng (1976) 63 Cr App R 20
The objection for the defence was that the transcript by the shorthand reporter was a typewritten record and was not a document of the witness. It was not a note made by the witness.
It was submitted that the transcript by the shorthand reporter did not fall within the scope of documents which it was permissible for witnesses to have regard to in order to refresh their memories.
Mr Montgomery said that he had read the transcript of his evidence but that was some significant time after he gave that evidence in the Supreme Court. The time was not identified. I note that the evidence was given orally by Mr Montgomery over a mobile telephone during the court hearing in September 1998 and his evidence before me was given in March 2004.
The rule as to refreshing memory is said to be a rule of practice and not part of the substantive law. R v Governor of Gloucester Prison ex parte Miller (1979) 1 WLR 537.
The general principle is that a witness ought to be able to refresh his memory in the witness box by reference to a writing made or verified by himself concerning the facts to which he testifies provided it was made or verified by him while the facts were fresh in his memory.
It is true in the present case that the writing was not made by the witness but by a shorthand reporter. The evidence was given by the witness Mr Montgomery within about two hours or so of the events which he had observed.
The document was not made by him but by a shorthand reporter and he did not verify the document while the facts were fresh in his memory.
I infer that the important part of the principle is that the witness should not suffer from a mistake when a writing is available made while the facts were fresh in his memory, and reference to the writing will enable him to give accurate testimony as to events which may have occurred quite a long time ago.
If my ruling is an extension of existing principles I consider it justified in the circumstances of this case. A different view might well be taken if I were sitting with a jury. See the observations in R v. Richardson (1971) 2 Q.B. 484 (CA) particularly at pp. 489-490 where the Court of Appeal adopted the following statement: “Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.”
Subsequently a certified copy of the transcript was tendered. No application was made by the defence to recall Mr Montgomery for further cross-examination. Accordingly I admit the evidence given by Mr Montgomery when he refreshed his memory.
I consider that each of Mr Cockram, Mr Field, Mr Pozingis and Mr Montgomery were reliable witnesses and their evidence was generally accurate. As previously stated, I have received the evidence of Council officers as to discussions with persons on site other than Mr Pfeiffer as original evidence and not as truth of their contents.
I am satisfied that the calculations carried out by Mr Cockram as to the approximate number of trees felled were a reasonably accurate calculation. Mathematical precision was not possible in the circumstances but mathematical precision was not necessary. There were about ten piles of trees with a considerable number of trees in each pile. Larger trees were mixed in with smaller trees. The pile in each case was of significant height.
Mr Cockram estimated some fifty protected trees in one of these piles. I am satisfied that at least 500 protected trees were felled during the course of this tree clearing. I am satisfied the trees were protected trees and I find Mr Pfeiffer had no permit to fell protected trees at the time this work was carried out.
Evidence was given by Mr Pfeiffer and the following witnesses: Mr Hayhoe, Mr Hunt (Solicitor), Mr Lex Bell (former Mayor of the Gold Coast), and Mr Gary Baildon (former Mayor of the Gold Coast). I shall summarise this evidence.
Much of the evidence of these witnesses dealt with the previous history of the subject land and the use to which the subject land was put. I shall return to this aspect of the case at a later stage. For the time being I am concerned essentially with the manner in which the Cable Ski Park was managed and the events of 4 September 1998.
In late 1994 Pfeiffer and his wife went overseas for 12 months and Mr Hayhoe ran the business in their absence.
In early 1995 Pfeiffer and his wife returned from overseas and advised Mr Hayhoe that they wanted to retire. Thereafter discussions were had between Pfeiffer, his wife and Mr Hayhoe about Mr Hayhoe leasing the property so he could continue both sides of the business. Mr Hayhoe agreed to take over the control of the two businesses.
Grimley instructed John Hunt, solicitor, to draw up the lease between Grimley and a company associated with Hayhoe called Cable Ski Sports Pty Ltd. Mr Hunt gave evidence confirming these matters. He was not cross-examined. The term of the lease was for one year with a right to renew on a yearly basis. Cable Ski Sports Pty Ltd executed the lease but Grimley did not. Despite the lease not being executed Cable Ski Sports Pty Ltd agreed to lease the parcel of land including the business of extractive industries and cable skiing.
During his time as a lessee Mr Hayhoe successfully staged the Australian Cable Ski titles at Cable Ski World. Because of its success, an international delegate for cable skiing expressed interest in the World Titles being held at the Cable Ski World site. The only criticism of the site by the international delegate was that there was not enough room for sponsors and the large entourage associated with an international event. Mr Hayhoe thought the solution to the delegates’ concerns was to clear the area to the southern boundary and grassy areas on the western boundary of the Cable Ski World site.
Sometime after his discussion with the international delegate Mr Hayhoe discussed with Mr Pfeiffer the possibility of Cable Ski Sports World Pty Ltd making a bid for the Cable Ski World titles.
Mr Pfeiffer considered the proposal was speculative.
In August 1995 Mr Hayhoe was ill for about 12 months.
During the period of Mr Hayhoe's illness (between about August 1995 and August 1996) Mr Pfeiffer with the assistance of his daughter operated the two businesses namely, the extractive industries and the cable skiing.
In late 1996, after Mr Hayhoe had recovered from his illness, Grimley employed him as manager of the entire site including the two businesses, namely the extractive industries and cable skiing. I find that Mr Hayhoe remained manager from that time up to and including the date of the alleged offence on 4 September 1998.
In or about October 1997 the southern lake on the cable ski site was drained so as to provide fill pursuant to a contract to provide fill to the Gold Coast City Council. About the some time Mr Hayhoe was approached by a company called BTE to conduct scuba-diving classes and accreditation. At this time Mr Hayhoe allowed the southern lake on the Cable Ski World site to be drained, and authorised a hole to be dug for the purposes of conducting deep-water scuba-diving accreditation. All soil excavated from the hole was to be sold to the Gold Coast City Council. At that time Mr Hayhoe was also considering preparing the land for the World Titles.
After completing the hole Mr Hayhoe was made aware that the hole was too deep for BTE to conduct deepwater dive accreditation. Shortly before 4 September 1998 Mr Hayhoe decided to fill in the hole using trees on the property. Mr Hayhoe also thought that knocking down the trees would provide the opportunity for him to prepare the land for the World Titles, and have the topsoil mounded at the end of the property.
On 3 September 1998 the last load of fill from the lake was taken from the Cable Ski World site as part of the contract with the Gold Coast City Council to supply fill.
On 4 September 1998 at approximately 7.00 am Mr Hayhoe directed the operators of the earth-moving equipment to knock down three parcels of trees. The trees in question were located in three pockets. Two pockets were located within the 30 metre buffer zone whilst a third pocket (the largest group of trees) was located on both the original Cable Ski land and the 30 metre buffer zone. There were no other trees present on the buffer zone as they had all been knocked down previously.
Mr Hayhoe did not seek permission from Mr Pfeiffer to carry out the work (that is, to knock down the trees). Mr Hayhoe did not tell Mr Pfeiffer that he proposed to carry out the work on that day. Mr Hayhoe did not tell Mr Pfeiffer he engaged people to carry out the work.
Mr Hayhoe's only discussion with Mr Pfeiffer about the possibility of knocking down the trees was two years earlier. He told Mr Pfeiffer of his plan to make a submission to stage the World Cable Ski Titles. Mr Pfeiffer considered the proposal speculative.
I have already set out the evidence given by the Council officers. Where there is a conflict between the Council officers on the one hand and Mr Pfeiffer and Mr Hayhoe on the other as to what was said, I consider the Council officers had a better recollection of the conversations.
I shall make some remarks at this stage about the credibility of Mr Pfeiffer and Mr Hayhoe. There was no cross-examination of the other witnesses called on behalf of Mr Pfeiffer, that is Mr Lex Bell, Mr Gary Baildon, and Mr Hunt (solicitor).
Mr Pfeiffer indicated that his usual practice was to spend quite a deal of time overseas with his wife. He said he had other business interests. Mr Pfeiffer gave evidence as to what was the approximate annual income for the Cables Ski property. I infer from the evidence that Mr Pfeiffer is a wealthy person who does not find it necessary to give day-to-day attention to business activities.
For the prosecution it was urged that I should reject Mr Pfeiffer’s evidence and that I should treat his statements to Council officers on the day as being strong evidence of his guilt in the matter.
The prosecution case is that statements made by Mr Pfeiffer to the Council officers, Mr Cockram, Mr Pozingis and to Mr Montgomery should be treated in effect as relevant admissions that Mr Pfeiffer, although not personally engaged in felling the trees, nevertheless counselled or procured the trees to be removed within the meaning of section 7 of the Queensland Criminal Code.
Further it was urged that production by Mr Pfeiffer of an application for a permit (Ex 16) should be regarded by the Court, not as the act of an innocent party who believed he possessed a right of removal, but rather as demonstrating a feeble attempt to deter Council officers from further investigating the matter.
Further it was urged by the prosecution that the refusal of Mr Pfeiffer to desist from the further removal of trees was evidence which, taken with other evidence, demonstrated the complicity of Mr Pfeiffer in the felling of the trees.
Further it was urged that the statements by Mr Pfeiffer to the Council officers and Mr Montgomery indicated all-in-all that he was responsible for the removal of the trees and that Mr Pfeiffer was asserting a right by virtue of the existence of some permit. The prosecution urged that it was clear from the evidence that no such permit existed over the relevant land where the trees were located. Further reference was made to the statements of Mr Pfeiffer to Mr Montgomery as being in effect a refusal to discontinue and an intention to instruct workers to continue the following morning. This was said to be further evidence of the involvement of Mr Pfeiffer in the illegal activity by reason of his determination to continue it.
One must say that, to use a colloquial phrase, the Council officers who attended the subject land on 4 September 1998 were “given the run around” both by Mr Hayhoe and Mr Pfeiffer. Further the remarks by Mr Pfeiffer appear at first glance to support an inference that he had counselled or procured the removal of the trees and was in fact the person in charge and the person responsible for the removal of the trees.
Some of the statements by Mr Hayhoe and Mr Pfeiffer on 4 September 1998 were very ill advised, and show a certain amount of truculence and defiance towards Council officers. For the prosecution it is urged that the statements by Mr Pfeiffer do, in effect, show a consciousness of guilt and a feeble attempt to conceal wrongdoing by the production of the document Ex 16.
Nevertheless an explanation for the truculent and defiant behaviour on 4 September 1998 is given by both Mr Pfeiffer and Mr Hayhoe. It goes along these lines. Mr Pfeiffer claimed that a Councillor on the Gold Coast City Council had for years been very hostile to him and waged a vendetta against Mr Pfeiffer. The result was that there were very frequent visits to the subject land by Council officers to investigate alleged breaches of Council by-laws and alleged complaints by various people.
Mr Pfeiffer said that this vendetta continued for years. In defence a policy was adopted of demanding to see “pieces of paper” from Council officers to see whether or not they were acting lawfully.
I bear in mind that the Gold Coast Councillor who was mentioned is not a party to these proceedings and is not here to defend himself. It is in any event not necessary to make any finding as to whether or not a particular Councillor was waging a vendetta against Mr Pfeiffer.
Similar evidence was forthcoming from Mr Hayhoe to the effect that there were very frequent visits to the property by Council inspectors and these were clearly much resented by Mr Hayhoe. As a result Mr Hayhoe developed a policy of demanding to see “pieces of paper” from Council officers and tended to ignore Council officers if what they did not produce what he considered was the appropriate “piece of paper”.
Some significant support for the complaints made by Mr Pfeiffer and Mr Hayhoe was forthcoming from Mr Gary Baildon, a former mayor of the Gold Coast Council. Mr Baildon was a councillor with the Gold Coast City Council at the time of the subject proceedings.
Mr Baildon’s evidence was that he was aware during his time on the Gold Coast City Council that there was quite a deal of acrimony between one Councillor on the Gold Coast City Council and Mr Pfeiffer, and that there were frequent attendances by Council officers at the Cable Ski Park. Whilst Mr Baildon did not say so expressly, I inferred from his evidence that he may have had some reservations about the persistent attendance by Council officers at Cable Ski Park. Mr Baildon was not the subject of any cross-examination.
The evidence of Mr Pfeiffer and Mr Hayhoe as to the very frequent visits by Council officers to the site and the defensive policies that were instituted to deal with them was supported to some extent by the evidence of Mr Baildon. That does put matters in a rather different light.
The truculence and defiance manifested by Mr Hayhoe and Mr Pfeiffer on 4 September 1998 becomes understandable when the history of dealings with Council officers is given.
As to the evidence of Mr Pfeiffer, I thought that he was defensive under cross-examination but not necessarily evasive. His evidence conveyed to me that he believed himself to be the victim of a vendetta over a number of years, and that was the real explanation of his truculence and defiance towards Council officers on 4 September 1998. I did not gain any impression of deliberate falsehood during his testimony.
I formed much the same view of Mr Hayhoe. I thought that at times in cross-examination he was defensive but not necessarily evasive. He described himself in evidence as a “hostile witness” in that he, in effect, did not wish to be involved in these proceedings. He had years previously left Cable Ski Park and regarded the giving of evidence in this matter as quite burdensome. His evidence satisfied me that Mr Hayhoe himself had a considerable grievance with Council officers and that was the explanation of his truculent and defiant attitude on 4 September 1998. I did not get the impression of any deliberate falsehood during his testimony.
The prosecution submit that I should reject the evidence of Mr Pfeiffer and Mr Hayhoe and make findings as to the guilt of Mr Pfeiffer.
For Mr Pfeiffer it is submitted that I must completely reject the evidence of Mr Pfeiffer and Mr Hayhoe before I could be satisfied as to the guilt of Mr Pfeiffer.
This is a criminal prosecution and the standard of proof is beyond a reasonable doubt. In my opinion the evidence of Mr Pfeiffer and Mr Hayhoe raises a reasonable doubt.
In the result I am not satisfied beyond a reasonable doubt that Mr Pfeiffer counselled or procured the felling of the trees on 4 September 1998. Accordingly the defence succeeds on the threshold question in this case. The complaint must be dismissed.
The defence is correct in submitting that the Council has charged the wrong person when it charged Mr Pfeiffer.
One might have expected that the owner of the land, Grimley, would have been the person to be charged, but it is not necessary to reach a final conclusion on that matter.
Since much time in the case was directed to other matters I shall refer very briefly to the arguments that were put forward.
The evidence of Mr Lex Bell was directed to the history of an extractive industry on the subject land. He was not cross-examined. Mr Baildon also gave evidence on that matter and was not cross-examined.
The defence argued that a defence of honest claim of right (section 22) and honest and reasonable mistake of fact (section 24) were open to the defence. Since I have already found the prosecution must fail on the threshold question, I do not find it necessary to reach a conclusion on these matters.
I dismiss the complaint. I propose to order that the appellant (complainant) pay the costs of the respondent (defendant) of and incidental to the hearing of this appeal including reserved costs (if any) to be assessed, but I shall hear argument on these costs.
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