Szczodruch v Moreton Bay Regional Council

[2023] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION: 

Szczodruch v Moreton Bay Regional Council [2023] QDC 148

PARTIES: 

JAN SZCZODRUCH

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

FILE NO:

BD No 775 of 2023

DIVISION:

Civil  

PROCEEDING:

Appeal  

ORIGINATING COURT: 

District Court at Brisbane

DELIVERED ON:

28 August 2023  

DELIVERED AT:

Brisbane

HEARING DATE: 

24 August 2023 (on the papers)

JUDGE:

Porter KC DCJ

ORDER:

1.          The appellant have leave to adduce its further evidence on the appeal;

2.          The appeal is allowed;

3.          A verdict of acquittal is entered; and

4.          The respondent pay the appellants costs of the appeal, in accordance with the scale in the Justices Regulation 2014 (Qld).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL: GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where the appellant was convicted of dumping waste contrary to s 104(1)(b) of the Waste Reduction and Recycling Act 2011 – where the evidence before the learned Magistrate did not establish that the appellant dumped waste on the land identified in the charge – whether the conviction should be set aside

COUNSEL:

J Godbolt for the Appellant

R C Taylor for the Respondent

1. The appellant was convicted following a trial in the Magistrates Court at Caboolture of an offence against section 104(1)(b) of the Waste Reduction and Recycling Act 2011 (Qld) (the WRRA).

2. The respondent concedes the appeal should be allowed and agrees substantively with the orders proposed by the appellant for the disposition of the appeal. That is, that a verdict of acquittal should be entered, and costs of the appeal should be ordered pursuant to section 226 of the Justices Act 1886 (Qld), in accordance with the scale in the Justices Regulation 2014 (Qld).

3. The appellant was charged by complaint and summons with illegally dumping waste of 2500 litres or more onto 41 Ridge Parade, Narangba on 29 October 2021.

4. Relevantly, section 104(3) of the WWRA provides:

   However, a person who deposits an amount of waste of 200L or more in volume (the relevant waste) does not dump the relevant waste if–

   (a) the person is an occupier of the place; or

   (b)the person deposits the relevant waste with the consent of the occupier of the place; or

   (c)the person deposits the waste by placing it in a bin or other container provided by an occupier of the place, or by another person with the agreement of an occupier, or the purpose of depositing the relevant waste.

5. The particulars of the complaint alleged that at 11:30am on 29 October 2021, the defendant was seen to drive his white truck to a vacant lot at 41 Ridge Parade and offload builders’ waste onto the lot.

6. The particulars also stated (by reference to section 104(3) of the WRRA), that the defendant was not the occuprier of 41 Ridge Parade and did not have the consent of the occupier of 41 Ridge Parade to dump waste.

7. The appellant appealed on a number of grounds. It is sufficient for present purposes to deal with only one.  The appeallant has appealed his conviction on the basis that the prosecution proceeded upon a fundamental error as to the location of the alleged dumping and the verdict was unreasonable and cannot be supported having regard to the evidence. It is also submitted that there was no admissible evidence led at the trial to establish the appellant had dumped waste on number 41 Ridge Parade, Narangba. Rather, the evidence at trial demonstrated that waste was placed on 37 Ridge Parade, and that the appellant had authority to deposit material at that location.

8. The appellant sought to make good that argument on the evidence before the learned Magistrate and also on the basis of the fresh survey evidence in the form of a survey report of the two relevant sites. This report demonstrates the location of the dumping was at 37 Ridge Parade and not at 41 Ridge Parade.

9. As to this, the respondent accepts the place alleged in the offence (41 Ridge Parade) was not the place at which the appellant dumped waste. The respondent also accepts that any waste that was deposited by the appellant was deposited at 37 Ridge Parade.

10. For the reasons articulated by the respondent in paragraphs 19 to 24 of the respondent’s outline and 7 to 12 of the appellant’s outline, I am satisfied that the prosecution did not lead evidence capable of sustaining the conviction for dumping at Lot 41 as alleged.

11. That is evident on the face of the evidence at trial but is supported by the survey evidence, which I give leave to the appellant to adduce on this appeal.

12. For those reasons, and for the reasons articulated in 27 to 30 of the respondent’s outline, I order:

    (a)Leave to lead further evidence is granted;

    (b)The appeal is allowed;

    (c)A verdict of acquittal is entered; and

    (d)The respondent pay the appellants costs of the appeal, in accordance with the scale in the Justices Regulation 2014 (Qld).