Stratton v Collins

[1998] QCA 480

[1998 QCA 480

COURT OF APPEAL

McMURDO P PINCUS JA CHESTERMAN J

Appeal No 272 of 1998

PETER STRATTON

v.

JOHN COLLINS Applicant

BRISBANE
..DATE 02/12/98
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CHESTERMAN J: On 15 December 1997 the applicant, John
Collins, was convicted in the Magistrates Court at Mackay on
a charge brought pursuant to section 38B of the Great
Barrier Reef Marine Park Act 1975. That section prohibits a
person from negligently using or entering a zone, identified
under a zoning plan, of the Great Barrier Reef Marine Park
for the operation of a tourist program without the
permission of the Great Barrier Reef Marine Park Authority.
He was fined $1500 and ordered to pay $2600 in costs. The
applicant appealed to the District Court pursuant to section
222 of the Justices Act 1886. On 24 July 1998 his Honour
Judge McGill dismissed the appeal. The applicant now seeks
leave to appeal to this Court pursuant to section 118 of the
District Court Act 1967.

That section, in its recently amended form, did not contain any pre-condition or restriction on the grounds on which leave to appeal might be given. An applicant for leave to appeal should at least be able to demonstrate an arguable error in fact or law made by the District Court such as to raise a doubt about the correctness of the judgment from which leave to appeal is sought. The starting point is whether the applicant demonstrates an arguable error in the judgment of the District Court.

Section 3A subsection 3 of the Great Barrier Reef Marine

Park Act 1975 provides that:

"In a zoning plan, a reference to the operation, to the
conduct, or to the establishment, of a tourist program
is a reference to an activity (whether consisting of a
single act or a series of acts) that:

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(a) is in the course of carrying on business; and

(b) is or includes the provision of transport,
accommodation or services for tourists or for
persons who include tourists."

The essence of the charge of which the applicant was
convicted was that he conducted a tourist program in the
waters of the Whitsunday Islands off the central Queensland
coast without a permit from the Great Barrier Reef Marine
Park Authority. Put bluntly, the applicant was charged with
carrying on the business of hiring out a large yacht which
he owned to young tourists in order to make a profit. Such
activities are permitted by the Marine Park Authority but
subject to controls and regulations designed to conserve the
attractive but fragile environment of the Great Barrier Reef
and adjacent islands. The Crown case was that the applicant
had not obtained the necessary permit.

The applicant, who appeared in this Court for himself, also argued his cause before the Magistrates and the District Court. The grounds which the applicant advances for the order giving leave to appeal are not readily identifiable from the statement which is attached to his notice of application. Counsel for the respondent suggests that the applicant advances two bases:

(1) that the applicant was not carrying on the business of

a tourist operator; and

(2) that the credibility of the prosecution witnesses had

been so severely damaged that the Magistrate could not
rely upon their testimony.

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There may be another ground, which is that the prosecution
brought against him was motivated by some malice or ill-will
on the part of the Marine Park Authority. This last ground
can be disposed of shortly. There appears no evidence to
support it but even if it were the case that the prosecution
was motivated by a desire to harm the applicant there is no
abuse of process when the purpose of bringing the charge was
to prosecute it to its conclusion rather than to obtain some
co-lateral advantage. See Williams v. Spautz (1992)

174 Commonwealth Law Reports 509 at 526 to 527.

In the course of the application a further ground appeared.

That is that the Magistrate had refused an adjournment to allow the applicant to call as a witness one Paterson. It appears, though, that no application for an adjournment was made so this ground can be disregarded.

The appeal was given thorough and careful attention by Judge McGill. His Honour noted that the applicant had made it clear that the only real issue, at trial and on appeal, was whether or not he was, at the time relevant to the charge, carrying on a business.

The background to the offence is that the applicant is the
registered owner of a 65 foot long, two-masted yacht, the
"Pan Pacific". Before 14 and 21 August 1997 the yacht
sailed to a number of locations in the Whitsunday
Archipelago, leaving from and returning to Airlie Beach.
There were on board the applicant, an associate, Afra Miller
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and nine young "backpacker" tourists, all of whom paid for
their voyage. One paid $250, the rest $210 each. From this
money, which was handed to the applicant or Ms Miller, food
and fuel was purchased. Some alcohol was as well to have
been bought but was not. Instead the passengers, or some of
them, bought their own alcohol. The Magistrate found,
having analysed the evidence, that the applicant would have
been left with a surplus of about $800 from the moneys paid
by his passengers after allowing for the acquisition of
food, fuel and other consumables.
The applicant's case was that the tourists who sailed with
him on the voyage in question were not charterers or hirers
of his vessel nor were they paying passengers. They were,
in fact, recruited crew whose help he needed to sail the
yacht. The money they paid was no more than their share of
the cost of provisioning the yacht for that particular
voyage. The applicant sought to make much of the point that
he paid the tourists a small wage as recompense for the work

they did.

This contest of fact was squarely raised before the
Magistrate who correctly identified the elements of the
offence and considered whether the evidence adduced by the

prosecution satisfied each of them beyond reasonable doubt.

He dealt with the challenge to the credit of two of the

witnesses who had been on the voyage and who were accused of
perjury. It was even suggested that the Marine Park
Authority had suborned them to give false evidence.
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I can detect no error in the findings of fact made by the
learned Magistrate nor in the process of analysis by which
he arrived at those findings.
As I have said, the learned District Court Judge considered
the appeal thoroughly and carefully. His Honour analysed
the evidence given in the Magistrates Court and then turned
to consider "the crucial question": whether the applicant,
by taking the backpackers on the voyage, was carrying on a
business. His Honour comprehensively reviewed the
authorities dealing with what the law regards as carrying on
a business. It is not necessary to refer in detail to the
discussion which appears in the judgment. It is enough to

say that I can detect no error in his Honour's approach.

His Honour concluded:

"The significant factors to determine whether the
activity involves carrying on a business seem to be
whether it was conducted regularly and systematically,
involved commercial transactions, and was carried on
with a view to profit, although it is important to
realise that none of these amounts to a definitive
test... The basic transaction here involved the payment
of a sum of money by each participant in order to be on
the boat for a week, which is by its very nature a
commercial transaction... As to the existence of a
profit motive, that really involved the resolution of a
factual issue in the light of the evidence ...; that
has been resolved against the appellant... In view of
the way in which the Magistrate has proceeded it is
clear that this decision does not affect a situation
where the operator of a yacht obtains a crew for a time
on the basis that the members of the crew will share
the costs of the voyage. The Magistrate distinguished
that situation ... where he spoke of the contributions
paid by the people in this case as 'far in excess of
shared expenses which is the norm in the yachting

community when seeking crew for voyages'."

The applicant's criticism of the judgments below consist of
assertions of fact which differ in some respects from the
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evidence given at the trial and assertions that the
Magistrate and the District Court Judge were wrong in
concluding that he was carrying on a business. The
applicant in reality does no more than repeat the arguments
which he addressed to the courts below and which were
rejected. The applicant, however, points to no error in the
process of reasoning by which the Magistrate accepted
evidence which satisfied him that the applicant was
operating a tourist program, nor does he establish that any
of the facts found were not supportable on the evidence.
The circumstances in which an appellate court will interfere
with findings of fact are well-known and need not be
repeated. In the present case much depended upon the
Magistrate's assessment of the witnesses. Despite an attack
on their credit, their evidence was accepted. An appellant
in such circumstances faces a difficult task. The applicant
has not demonstrated that the Magistrate misused his
position as tribunal of fact to make an appropriate
assessment of the evidence.
In my opinion, the applicant has not demonstrated an
arguable error either of fact or law in the judgment of the

District Court and I would refuse the application.

THE PRESIDENT: I agree that the applicant has failed to
show any error on the part of the learned District Court
Judge below such as would justify leave to appeal under
section 118(3) of the District Court Act 1967. I would also
refuse the application for the reasons given by Justice
Chesterman.
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PINCUS JA: I am in substantial agreement with Mr Justice
Chesterman's reasons and would add that it appears to me
that although unrepresented the applicant had to show us
some ground for giving leave. He sought to effect that by
pointing to pieces of the evidence which he said were in
error and other pieces which he said assisted him. It does
not appear to me that the fact that the evidence may contain
elements which can be relied on by the applicant is
sufficient ground for granting leave to appeal and I agree

that the application should be refused.

THE PRESIDENT: The order is the application is refused.

...

THE PRESIDENT: The order will be the application is refused with costs.

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