The Corporation of the City of Unley v Crichton
[2021] SASC 17
•26 February 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
THE CORPORATION OF THE CITY OF UNLEY v CRICHTON & ANOR
[2021] SASC 17
Judgment of the Honourable Justice Nicholson
26 February 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
ENVIRONMENT AND PLANNING - TREES, VEGETATION AND HABITAT PROTECTION
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - WHEN CONSENT REQUIRED - MEANING OF DEVELOPMENT
Appeal against findings of not guilty by a Judge of the Environment, Resources and Development Court.
On or about 2 October 2015, two significant regulated trees, T1 and T2, were the subject of pruning by the second respondent, Tempest Trees and Gardens, upon the request of the first respondent, Mr Crichton. The appellant was notified of the damage to both trees and subsequently charged the respondents with undertaking unapproved development contrary to section 44(1) of the Development Act 1993 (SA). Following a trial before a Judge of the Environment, Resources and Development Court, the Judge found each of the respondents not guilty.
On appeal, the appellant complained that the Judge erred in: the interpretation of what is “tree-damaging activity”, the application of section 56 of the Criminal Procedure Act 1921 (SA) in relation to the onus of proving whether tree-damaging activity had occurred, the finding that certain aspects of Dr Nicolle’s evidence were not admissible as an expert opinion, the finding that no more than 20 per cent of the crown of each tree had been removed, and in finding that the respondents had not engaged in tree-damaging activity. The respondents maintained that the Judge was correct in his findings.
Held per Nicholson J, dismissing the appeal:
1.The work done on T1 and T2 did not constitute tree-damaging activity.
2.The Judge was correct to adopt the ordinary meaning of “crown of the tree” where that phrase occurs in paragraph (a) of subregulation 6A(8) of the Development Regulations 2008 (SA), namely, the living branches and foliage of a tree.
3.The respondents carried the onus of proving, on a balance of probabilities, that the work performed on T1 and T2 fell within the exception provided for by subregulation 6A(8).
4.The estimations of the amount of the crowns removed provided by Dr Nicolle do not have a sufficient basis or support from within Dr Nicolle’s field of expertise to qualify as expert opinion.
5.It was open to the Judge on the evidence to accept the evidence of Mr Cook. The Judge’s findings that he removed no more than 20 per cent of the crowns of T1 and T2 should not be interfered with.
Development Act 1993 (SA) ss 4, 32, 44; Development Regulations 2008 (SA) reg 6A, Sch 3; Criminal Procedure Act 1921 (SA) s 56; Summary Procedure Act 1921 (SA) s 56; Supreme Court Criminal Rules 2014 (SA) r 104X, referred to.
R v Bonython (1984) 38 SASR 45; R v Bjordal (2005) 93 SASR 237; Corporation of the City of Adelaide v BFR Pty Ltd & Anor [2014] SAERDC 37; Overland Corner Station Pty Ltd & Anor v Gould (2010) 106 SASR 428; Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; R v Hunt (1987) 1 AC 352; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Lloyd-Groocock v Police (2008) 102 SASR 465; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; The Queen v Duke (1979) 22 SASR 46; Fox v Percy (2003) 214 CLR 118, considered.
THE CORPORATION OF THE CITY OF UNLEY v CRICHTON & ANOR
[2021] SASC 17
Appeal to a Single Judge: Criminal
NICHOLSON J.
Introduction
The first respondent, Timothy Crichton, engaged the second respondent, Tempest Trees and Gardens Pty Ltd (ACN 119 727 249) (Tempest Trees),[1] to prune two trees, “T1” and “T2”. Both trees are regulated trees within the meaning of the relevant legislation and situated on the property of Amy Simons. Limbs from both trees were encroaching on Mr Crichton’s neighbouring property.
[1] Trading as Tempest Arborist Service (ABN 28 119 727 249).
Ms Simons was away when the work was done. On her return she discovered the damage to the trees and reported it to the relevant council, the appellant. By letter dated 16 December 2015, the Council contacted Mr Crichton alleging tree‑damaging activity. After further contact back and forth between the appellant and the respondents, both respondents (Mr Crichton as first defendant and Tempest Trees as third defendant) were charged on complaint with offences under the Development Act 1993 (SA). The relevant counts are as follows.[2]
[2] In addition to the first and second respondents, a second defendant, Mr Bendyk was charged on complaint and pleaded guilty to undertaking tree-damaging activity (count 2 of the complaint). A fourth defendant, Mr Tempest, was charged with document related offences and pleaded guilty to those charges (counts 4 and 5 of the complaint). Neither has appealed.
First Offence
1.On or around 2 October 2015 at Hyde Park in the State of South Australia, the First Defendant undertook development, namely, tree-damaging activity in relation to two regulated trees (hereafter called ‘the Trees’), where that development was not an approved development under the Development Act 1993 (hereafter called ‘the Act’), CONTRARY TO Section 44(1) of the Act.
PARTICULARS
1.1 The Trees are situated on land commonly known as 28 Commercial Road, Hyde Park as comprised and described as Certificate of Title Volume 5731 Folio 361 (hereafter called ‘the Land’).
1.2 The Land was and is owned by Amy Alice Simons.
1.3 The Land is within the area of the Complainant.
1.4 The First Defendant is a joint owner of land adjacent to the Land, namely Unit 1, 7 Charra Street, Hyde Park.
1.5 The Trees are both of the species ‘Eucalyptus Camaldulensis’, commonly known as River Red Gum.
1.6 Each of the Trees:
1.6.1had a single trunk with a circumference in excess of 2.0 metres, measured 1 metre above natural ground level; and
1.6.2were ‘regulated trees’ within the meaning of section 4(1) of the Act and regulation 6A of the Development Regulations 2008.
1.7 On or around 2 October 2015 the First Defendant caused branches, limbs and the trunk of each of the Trees to be severed (‘the Severing’).
1.8 The Severing was physically performed by or on behalf of the Third Defendant pursuant to an arrangement between the First, Second and the Third Defendants to prune the Trees.
1.9 The Severing constituted ‘tree-damaging activity’, and therefore, ‘development’ within the meaning of section 4(1) of the Act.
1.10 The Severing was not an approved development under Division 1 of Part 4 of the Act.
Third Offence
3.On or around 2 October 2015 at Hyde Park in the State of South Australia, the Third Defendant undertook development, namely, tree-damaging activity in relation to two regulated Trees, where that development was not an approved development under the Act, CONTRARY TO Section 44(1) of the Act
PARTICULARS
3.1 The Particulars at paragraphs 1.1 – 1.3, 1.5, 1.6, 1.8 – 1.10 are repeated.
3.2 The Third Defendant was engaged to undertake pruning works in relation to the Trees.
3.3 On or around 2 October 2015 the Third Defendant caused the severing of the branches, limbs, and the trunk of the Trees.
On 13 December 2019, a Judge of the Environment, Resources and Development Court found the first respondent not guilty of count 1 and the second respondent not guilty of count 3.[3] On 24 December 2019, the Judge made a costs order in favour of the second respondent in the amount of $36,000 with respect to count 3, and an order for party and party costs on the District Court scale in favour of the first respondent with respect to count 1.[4] The appellant has appealed against all orders, although the appellant only seeks a reconsideration of the costs orders in the event it were to succeed with its substantive appeal concerning the two acquittals.
[3] The Corporation of the City of Unley v Crichton & Ors (No 2) [2019] SAERDC 43 (trial judgment).
[4] The Corporation of the City of Unley v Crichton & Ors (No 3) [2019] SAERDC 47.
Factual summary
T1 and T2 are two large Eucalyptus Camaldulensis, or River Red Gum, trees with a circumference measured at one metre above ground level of 2.57 metres and 2.53 metres respectively. Both trees are located on Ms Simons’ land at 28 Commercial Road, Hyde Park within the local government boundary of the appellant. Ms Simons’ property runs north-south with her front yard and southern boundary fronting onto Commercial Road. Behind and adjacent to the northern boundary of Ms Simons’ property is 3/7 Charra Street, then occupied by a Mr Back. Adjacent to the western boundary of Ms Simons’ property is 30 Commercial Road at the southern (Commercial Road) end of that western boundary and 9 Charra Street at the northern end of that western boundary. The property at 9 Charra Street was occupied by Mr Bendyk. Also adjacent to Ms Simons’ property, at the north-western corner is 1/7 Charra Street, occupied by Mr Crichton.
T1 is located 2 metres south of Mr Crichton’s boundary and 1.5 metres east of Mr Bendyk’s boundary. T2 is located 4.5 metres south of Mr Crichton’s boundary and 3 metres east of Mr Bendyk’s boundary. There is no dispute that both were regulated trees within the meaning of subsection 4(1) of the Development Act 1993 (SA) (the Act) and regulation 6A of the Development Regulations 2008 (SA) (the Regulations).
In 2015, Mr Crichton had discussions with Mr Bendyk about limbs falling from T1 and T2 onto both their properties, after which Mr Crichton contacted Tempest Trees. On 15 September 2015, Mr Tempest, a director of Tempest Trees, attended at Charra Street and provided a quote for pruning services in relation to T1 and T2. The quote recorded the client as “Tim Crichton” of “U1/7 Charra St” and referred to job 24249 which was comprised of two jobs: job 1 and job 2. Job 1 appeared to relate more directly to Mr Crichton’s property and job 2 appeared to relate to Mr Bendyk’s property. The quote contained the following.
(1)
* Right of the house prune the Eucalyptus Camaldulensis to the fence line
* Remove the waste
$2100 – inc gst
(2)
* As above for 1 more Eucalyptus Camaldulensis growing over the rear fence line of
#9.$1800 inc gst
* Remove the waste
The total quote for both jobs 1 and 2 was $3,900 half of which, being $1,950, is recorded as having been paid by Mr Crichton.[5] The start date for both jobs is listed as 2 October 2015. Mr Bendyk was also charged in the same terms as Mr Crichton. However, he pleaded guilty on the day of trial. It was accepted by Mr Bendyk that the quote reflected a joint endeavour by both himself and Mr Crichton to commission the works in relation to T1 and T2.
[5] It was accepted by the Judge that the other half was to be paid by Mr Bendyk, trial judgment at [101].
On or about 2 October 2015, just prior to the October long weekend, Tempest Trees carried out the work on T1 and T2. The work was undertaken by Mr Tempest and a Mr Cook, a tree climber, and without the knowledge of Ms Simons. It is not disputed that several branches or limbs of T1 and T2 were removed. Access to each tree was gained through Mr Crichton’s and Mr Bendyk’s properties and by climbing into the relevant tree so as to occupy the air space above Ms Simons’ property. The severed limbs were brought down into Mr Bendyk’s and Ms Simons’ properties and removed.
Ms Simons returned to her property after the long weekend, on or about 4 October 2015. Not surprisingly, she noticed the work which had been done to T1 and T2. Ms Simons described her initial realisation that the trees had been altered as follows:
Q.When you returned to the property, did you notice any change of anything on the property.
A.Yes. As soon as I turned into my driveway, I could see, or rather not see, my trees at the back of my garden.
Ms Simons reported the matter to the appellant Council. On 16 December 2015, Mr Weymouth from the appellant wrote to Mr Crichton and raised the issue of unlawful tree-damaging activity. Mr Crichton advised Mr Weymouth that both he and Mr Bendyk had engaged Tempest Trees and “left it up” to Tempest Trees, as the arborist, to determine what work had to be done and the manner in which it would be carried out. The parties engaged in various communications and the appellant sought the provision of relevant documentation.
On 1 June 2016, Dylan Tempest for Tempest Trees wrote to Mr Weymouth in the following terms.
Dear Mr Weymouth
Here is a copy of job 24249 as per your request. Tempest’s Arborist Service pruned out several large dead branch sections from the mentioned trees being the majority of works carried out. Tempest’s Arborist Service also pruned off a small amount of live tissue stopping at the known fence line to complete the works. The idea of pruning out some live tissue was to invigorate the trees. During my daily duties I have on occasion driven past the site and have noticed this working as new growth has formed and appears to be growing well.
Dead branches are able to be removed from trees without council approval. Considering the overwhelming majority of works carried out was removing large dead branches, your claim of tree damaging activity is indeed incorrect.
Kind regards
Dylan Tempest
Director/Senior Arborist
In due course, both respondents were charged.
Legislative scheme
Section 32 of the Act provides that no development may be undertaken, unless the development is an approved development. A person who undertakes development without an approval commits an offence and is liable to a maximum penalty of $120,000.[6]
[6] Section 44(1) of the Act.
The meaning of “development” is found in subsection 4(1) of the Act and includes, relevant to this appeal, the following.
development means—
…
(fa)in relation to a regulated tree—any tree-damaging activity; or …
to undertake development means to commence or proceed with development or to cause, suffer or permit development to be commenced or to proceed.
The meaning of “regulated tree” is also to be found in subsection 4(1) of the Act and as supplemented by regulation 6A. As earlier noted, it is common ground that both T1 and T2 are regulated trees. It is also common ground that the pruning work to T1 and T2 had not been council approved.
The meaning of “tree-damaging activity” is also provided for in subsection 4(1) of the Act.
tree-damaging activity means—
(a)the killing or destruction of a tree; or
(b)the removal of a tree; or
(c)the severing of branches, limbs, stems or trunk of a tree; or
(d)the ringbarking, topping or lopping of a tree; or
(e)any other substantial damage to a tree,
and includes any other act or activity that causes any of the foregoing to occur but does not include maintenance pruning that is not likely to affect adversely the general health and appearance of a tree or that is excluded by regulation from the ambit of this definition;
However, tree-damaging activity is further qualified by subregulation 6A(8) as follows.
(8)For the purposes of the definition of tree-damaging activity in section 4(1) of the Act, pruning—
(a) that does not remove more than 30% of the crown of the tree; and
(b) that is required to remove—
(i)dead or diseased wood; or
(ii)branches that pose a material risk to a building; or
(iii)branches to a tree that is located in an area frequently used by people and the branches pose a material risk to such people,
is excluded from the ambit of that definition.
In short, if the work done on T1 and T2 comprised tree-damaging activity such would constitute unapproved development and give rise to an offence under section 44 of the Act.
The Judge’s essential conclusions
The following conclusions by the Judge, as summarised, bear directly on the appellant’s grounds of appeal.
The Judge accepted that the appellant’s expert arborist, Dr Dean Nicolle, is a highly skilled expert in his field and gave his evidence in a truthful manner. However, his Honour did not accept the opinion expressed in Dr Nicolle’s oral evidence with respect to the percentage of the “crown”[7] of T1 and T2 that had been removed.[8]
I am not persuaded that his approach or methodology, for the assessment of the extent of the crown which has been removed, is a matter in relation to which expert testimony can be given.
[7] A central issue on the appeal was the question of what constitutes the crown of the tree.
[8] Trial judgment at [52].
Further, Dr Nicolle did not examine the site until after the work had been undertaken, the various prunings removed and the site cleaned up. The Judge expressed a preference for the evidence of Mr Tempest and the second respondent’s tree climber, Mr Cook (also a qualified arborist and whose evidence the Judge accepted) with respect to matters they had observed, where that evidence conflicted with that of Dr Nicolle.[9]
[9] Trial judgment at [54]-[55].
The Judge found Mr Crichton to be a truthful and reliable witness. His Honour accepted that he had instructed Mr Tempest to perform the work within the limits of the law and that at no time was the fence line to be crossed.[10]
[10] Trial judgment at [76].
Mr Tempest is also a qualified arborist. The Judge found Mr Tempest to be “a somewhat unsatisfactory witness”[11] and, at times, “evasive and/or disingenuous”.[12] However, his Honour accepted aspects of Mr Tempest’s observational evidence where that evidence was “corroborated” by other witnesses such as Mr Back and Mr Cook. His Honour concluded his assessment of Mr Tempest in the following terms.[13]
With these qualifications, and in particular when his evidence is considered in conjunction with the evidence of Messrs Back and Cook, I accept those parts of his evidence which referred to the existence of Mistletoe, as well as the dead branches and cracks in T1 and T2, prior to pruning work being undertaken on T1 and T2 in 2015.
[11] Trial judgment at [112].
[12] Trial judgment at [113].
[13] Trial judgment at [115].
Mr Tempest made a visual assessment of T1 and T2 prior to the work.[14] He observed the foliage of T1 to be 90 per cent mistletoe and the foliage of T2 to be 20 per cent mistletoe. He described mistletoe as a tree killing parasite and that its form mimics eucalyptus leaves. In his opinion the branches on T1 and T2 which contained mistletoe were “as good as dead”. He told Mr Crichton and Mr Bendyk that T1 and T2 were heavily diseased, structurally defective and a risk to people and property.
[14] See generally, trial judgment at [81].
The Judge found Mr Back to be an impressive witness. His Honour accepted that, in the context of an earlier discussion about the removal of a nearby third tree, Mr Tempest told Mr Back that T1 and T2 were infested with mistletoe and that it would probably kill the trees.
Mr Cook was a very important witness whom the Judge found to be honest, forthright, truthful and reliable. The Judge accepted his evidence as to the amount of “crown” removed from each of T1 and T2 and as to the existence of mistletoe and dead and cracked branches in T1 and T2.[15]
[15] Trial judgment at [140]-[141].
As at September 2015, Mr Cook was employed by Tempest Trees as a tree climber. He had completed a Certificate III as an arborist. He gave this evidence.[16]
[16] Trial judgment at [126]-[132], [135].
His initial assessment of T1 was that it had Mistletoe, dead branches and a crack he could see from the ground.[17] T2, he said, had some Mistletoe and twists and splits in the bark of some of the branches.[18]
[17] T812
[18] T814.
He then climbed into T1. He said it felt ‘very unsafe’. There was a large split in one section of the timber, which he could put some fingers into and a ‘fair bit’ of Mistletoe. There were also dead branches which they had to remove to make the tree safe.[19]
[19] T813.
His practice (which he observed on this occasion) was to remove up to 20% of live foliage from such a tree.[20]
[20] T814.
In relation to T2, he observed there to be Mistletoe, but less than T1, small twists in the tree with small stress twists in the bark. Again, his approach had been to remove up to 20% of the tree’s live foliage.
He explained how Mistletoe threatens the life of a tree and how it mimics the leaves of the host tree in terms of shape and colour. It was detectable by him as an arborist, given the smell that it emits.[21]
[21] T815-816.
. . . .
When pruning a tree in these situations, his practice was to prune ‘to the nearest growth point’. In this case, the nearest growth point to where there was existing damage was back at the main trunk. In this way, he said that the operator would not leave stubs which could lead to epicormic or unstable growth.[22]
In cross-examination by Mr Roder, he said he did not know whether it was Mr Crichton or a tenant of the property to whom he spoke when onsite in October 2015. Prior to attending the work site, he had a conversation about the quotation with Mr Tempest. He said that he was not told that he was not to go past the fence line, but that, in any event, he had done so because, in his view, ‘under the guidelines it was best for the tree’.[23] He said that it was not until he was in the tree that he could make an assessment (as to what needed to be removed) which was 100% certain.[24] He agreed that the assessment as to what was to be removed was left to his judgment as an arborist. He said that in this case, unless he had been able to remove branches which went beyond the fence line, in his opinion, he would have had to leave ‘large chunks of timber with splits in them [on the Crichton and Bendyk sides of the fence line which, in his judgement], would not have been professional’.[25]
. . . .
He said that he removed all the Mistletoe from both T1 and T2. His belief, in October 2015, was that he could prune up to 20% of live foliage from a Significant tree. He believed the law permitted more, but that this was the percentage he worked on.[26]
(Underlining and italics in the original)
(Footnotes in the original)
[22] T819.
[23] T823.
[24] T825.
[25] T826.
[26] T858.
The Judge reviewed his earlier decision in Corporation of the City of Adelaide v BFR Pty Ltd & Anor[27] in which his Honour held that subsection 56(2) of the (then) Summary Procedure Act 1921 (SA) had the effect that when prosecuted for an offence under section 44 of the Act for having undertaken tree-damaging activity a defendant bore the onus to bring themselves within any exception to the notion of tree-damaging activity provided for by the Act or the Regulations. However, in the present case, his Honour acceded to the respondents’ submissions that BFR had been wrongly decided in this respect. His Honour held that the onus to prove the offence charged in count 3 beyond reasonable doubt rested with the prosecution throughout.[28]
[27] [2014] SAERDC 37 at [7]-[13].
[28] Trial judgment at [143]-[157].
The Judge found on the basis of the manner in which the complaint was drawn that the prosecution had to establish tree-damaging activity to both T1 and T2 in order to make out counts 1 and 3.[29]
[29] Trial judgment at [162]-[171].
An important aspect of the defences was the respondents’ assertion that Mr Cook pruned less than 30 per cent of the crown of each of T1 and T2 so as to fall within the exception to the definition of tree-damaging activity provided for by subregulation 6A(8). It was necessary for the Judge to construe the meaning of “crown” as used in subregulation 6A(8) in circumstances where this term is not defined in the Act or Regulations or used elsewhere in the Act or Regulations in a relevant context. The Judge adopted the meaning of crown as used in “common parlance” and as indicated by dictionary definitions – “the leaves and living branches of the tree”[30]; “the leafy head of a tree”.[31] His Honour found as follows.[32]
I am not persuaded that it should have anything other than the meaning used in common parlance, which, in turn, has been given expression in the aforementioned dictionaries.[33] In this sense, it may be understood to be a protean word. In the context in which it appears in the Regulations, I take it to mean the live leaves and branches of (in this case) ‘Eucalyptus Camaldulensis’.
Understood in this way, the word would not include Mistletoe and nor would it include the dead/dying or otherwise diseased leaves or branches.
(Footnote in the original)
[30] Macquarie Dictionary.
[31] The Shorter Oxford Dictionary.
[32] Trial judgment at [178]-[179].
[33] It is not without significance that this meaning is also one which, in general terms, appears to have been adopted by the experts who gave evidence.
The approach adopted by the Judge accorded with that as understood by Dr Nicolle, “I have defined the crown as the total of all branches in the tree that have live foliage”, and with that as understood by both Mr Cook and Mr Tempest. However, in final submissions at trial the appellant departed from the position of its arborist, Dr Nicolle, and contended that, as used in subregulation 6A(8), the word crown had an expanded meaning and included, inter alia, dead branches and diseased (including mistletoe infested) branches. The Judge’s rejection of this contention is the subject of appeal ground 1.
As far as count 1 is concerned, the Judge’s findings insofar as material to the appeal were as follows.[34]
[34] Trial judgment at [188]-[189].
I am satisfied beyond reasonable doubt that on or about 2 October 2015:
…
8T1 and T2 were significantly infested with Mistletoe.
9T1 and T2 also contained branches which were variously dead, cracked or structurally unsound.
10On or around 15 September 2015 Mr Crichton (together with Mr Bendyk) entered into an arrangement with Tempest Trees whereby Tempest Trees was engaged to perform work on T1 and T2, which work involved the pruning of T1 and T2.
11The terms of the arrangement required that:
a) T1 and T2 be pruned;
b) The pruning work be carried out in accordance with the law; and
c) The pruning work cease at the respective Crichton/Simons and Bendyk/Simons boundary fences.
12The manner in which the pruning work was to be undertaken (including the particular branches/limbs to be removed) was left to the exercise of the independent judgement of the arborist undertaking the work.
13Tempest Trees, in the guise of Mr Cook, carried out pruning work (which involved the severing of live leaves branches and limbs) to no more than 20% of the crown (as I have determined it to mean) of each of T1 and T2. The pruning work actually carried out by Mr Cook exceeded the work authorised by Mr Crichton in that it proceeded past the respective fence lines.
14Nevertheless, the pruning work undertaken by Mr Cook, which extended beyond the respective fence lines, was undertaken in a professional manner and undertaken in order to obviate any potential for unsightliness and/or disease, which may have arisen from cuts stopping at the fence lines.
15The degree of Mistletoe infestation and the extent of dead, diseased or cracked branches and limbs was such that a much greater degree of leaves and branches of T1 and T2, than Mr Crichton had anticipated were to be removed, were in fact removed.
It follows from these findings that I am quite unable to assess, with any degree of certainty, what was the percentage of total crown[35] which was in fact removed. However, I accept that it was likely to have been considerably more than 30% of the total crown.
(Footnote and underlining in the original)
[35] By the phrase ‘total crown’ I intend to mean, in addition to the live leaves and branches, the leaves and branches of the trees with Mistletoe, together with the dead, cracked or otherwise diseased wood.
As far as count 3 is concerned, the Judge’s findings insofar as material to the appeal were as follows.[36]
I repeat the findings I have made in relation to count 1.
In addition to those findings, I am satisfied that in or about September and October 2015, no permission to carry out the pruning work was sought by, or on behalf of, Tempest Trees from Ms Simons.
I am also satisfied that on 2 October 2015, Mr Tempest did not tell Mr Cook that he was not to ‘cross’ the fence line when severing limbs.
I repeat that whilst I am satisfied that although no more than 20% of what I have determined to be the crown was removed during the work by Tempest Trees, I am quite unable to say what was the percentage of total crown that was removed.
[36] Trial judgment at [190]-[193].
The Judge concluded with respect to counts 1 and 3 as follows.[37]
I am not satisfied beyond reasonable doubt that the work actually undertaken by Tempest Trees on T1 and T2 constituted TDA.
Furthermore, and in any event, the authorisation provided by Mr Crichton to Tempest Trees was to undertake work which was specified to be lawful and for work which was less than that actually carried out by Tempest Trees.
As a result, Mr Crichton did not cause TDA to either T1 or T2.
Count 3
I am not satisfied beyond reasonable doubt that the work actually undertaken on T1 and T2 constituted TDA.
(Underlining in the original)
[37] Trial judgment at [196]-[199].
Appeal grounds and notice of contention
The appellant has raised seven grounds of appeal which can be summarised as follows.[38]
1.The Judge erred in the interpretation of what is “tree-damaging activity”; in particular the interpretation of subregulation 6A(8).
2.The Judge erred in his application of section 56 of the Criminal Procedure Act 1921 (SA)[39] in finding that the appellant carried the onus to prove that the respondents had pruned more than 30 per cent of the crown of a regulated tree;
3.The Judge erred in finding that aspects of Dr Nicolle’s evidence was not admissible as an expert opinion;
4.The Judge erred in finding that no more than 20 per cent of the crown of each tree had been removed;
5.The Judge erred in finding that Mr Crichton had not caused tree-damaging activity to be undertaken.
6.The Judge erred in finding that Tempest Trees had not undertaken tree-damaging activity.
7.The Judge erred in finding that the Mr Crichton had not caused tree-damaging activity to be undertaken by Tempest Trees.
[38] Various sub-grounds have been omitted from the summary.
[39] Formerly, the Summary Procedure Act 1921 (SA)
The first respondent filed a notice of contention complaining of what the first respondent characterised as an alternative case pressed by the appellant at trial which it proposed to reagitate on appeal. The first respondent contended that to give consideration to the alternative case would give rise to material procedural unfairness.
Appeal ground 1
The appellant contends that the Judge erred in law when interpreting the term “tree-damaging activity”. In particular, the Judge incorrectly confined the meaning of “crown” as used in subregulation 6A(8). It will be of assistance to reproduce in full the provisions that make up the definition of tree-damaging activity. By subsection 4(1) of the Act:
tree-damaging activity means—
(a)the killing or destruction of a tree; or
(b)the removal of a tree; or
(c)the severing of branches, limbs, stems or trunk of a tree; or
(d)the ringbarking, topping or lopping of a tree; or
(e)any other substantial damage to a tree,
and includes any other act or activity that causes any of the foregoing to occur but does not include maintenance pruning that is not likely to affect adversely the general health and appearance of a tree or that is excluded by regulation from the ambit of this definition;
Subregulation 6A(8) provides as follows.
(8)For the purposes of the definition of tree-damaging activity in section 4(1) of the Act, pruning—
(a) that does not remove more than 30% of the crown of the tree; and
(b) that is required to remove—
(i)dead or diseased wood; or
(ii)branches that pose a material risk to a building; or
(iii)branches to a tree that is located in an area frequently used by people and the branches pose a material risk to such people,
is excluded from the ambit of that definition.
A fundamental issue, raised late in the trial and the subject of ground 1 of the appeal, concerned the meaning to be given to the “crown of the tree” as used in paragraph (a) of subregulation 6A(8). The “crown of the tree” is not defined within the Act or the Regulations. The Judge had regard to both the expert evidence and the ordinary meaning of the term in finding that the “crown” of the tree is that which contains the live leaves and branches of the tree in question.[40] His Honour expressly rejected the appellant’s submissions as to the proper construction of subregulation 6A(8), namely that the meaning of crown, as used in paragraph (a) was informed by paragraph (b) and also included dead or diseased wood (including mistletoe infestation).[41]
Appeal submissions
[40] Trial judgment at [178].
[41] Trial judgment at [176], [179].
On appeal, the appellant contended that excluded from the definition of tree-damaging activity were two kinds of “maintenance pruning”; that which was not likely to adversely affect the general health and appearance of the tree and that excluded by regulation. The definition was said to capture the severing of branches or limbs of a regulated tree unless that severing constituted maintenance pruning of either type. The appellant’s primary contention focused on the activity which falls within what it argued was the second kind of maintenance pruning within subregulation 6A(8).[42] Counsel submitted that the Judge made three errors when construing “crown of the tree”.
(a) His Honour applied an incorrect or incomplete gloss to the terms of the regulation;
(b) His Honour incorrectly found “crown” in paragraph (a) of subregulation 6A(8) to be restricted to live foliage belonging to the tree; and
(c) His Honour treated the word “crown” as a matter of evidence and not law.
[42] It was not contended by the respondents that the work done to T1 and T2 fell within “maintenance pruning that is not likely to affect adversely the general health and appearance” of T1 and T2.
The contentions in (a) and (c) add nothing to that in (b). Whether or not the Judge engaged in (a) or (c), the question on appeal remains the question of law – what does the “crown of the tree” as used in paragraph (a) of the exception comprise?
The appellant submitted that the primary definition in the Act does not limit tree-damaging activity by reference to the health or strength of the branch or limb severed. As such, the “maintenance pruning” exception does not apply only to live foliage. Furthermore, the “crown of the tree” in paragraph (a) is to be seen as a “term of art”, that is, having a specific meaning to be derived solely from the terms of the regulation itself. The appellant relied heavily on the use of the word “and” at the end of paragraph (a). It submitted that it would have no proper grammatic value unless “crown of the tree” were to include all of the three aspects referred to in paragraph (b). Once it were to be accepted that that those parts of the tree referred to in paragraph (b) including dead or diseased wood all form part of the crown, the evidence of Mr Cook that he removed 20 per cent or less of the crown of each of T1 and T2, as he understood the meaning of the term, would cease to be of relevance.
If the crown of each of T1 and T2 were to comprise the live branches and foliage, dead or diseased wood and mistletoe, so as to have been, in fact, considerably larger than as understood by Mr Cook and Mr Tempest and as found by the Judge, there would be no reliable evidence on which to ascertain how much of the crown of each tree had in fact been removed. What would be likely is that Mr Cook by also removing dead and diseased branches and large quantities of mistletoe, would have removed considerably more than 20 per cent of the (new) crown.
Were Dr Nicolle’s evidence to be accepted as reliable, it might be inferred that on any definition more than 30 per cent had been removed. In the absence of Dr Nicolle’s evidence and on the assumption that the appellant’s meaning of “crown of the tree” were to be accepted, the dispute over whether or not more than 30 per cent of the (new) crown had been removed would turn on whether or not the respondents carried the onus to prove on balance that the pruning work fell within the subregulation 6A(8) exception.
The first respondent contended that the Judge was correct in his finding that the term was to be construed according to its ordinary meaning. This was said to be consistent with the appellant’s case at trial, until the construction now proposed by the appellant was first raised after the closing of evidence and during final submissions before the Judge.
According to both respondents, the approach taken by the Judge was consistent with ordinary principles of statutory interpretation, the manner in which the trial had been conducted and with the evidence of the three arborists. They contended that each of subparagraphs (a) and (b) in subregulation 6A(8) is independent of the other: one is aimed at how much may be removed, and the other constrains the lawful purpose for removal. Context supports this, given that it is unlikely that the legislature would have been concerned with the removal of dead branches, although it was acknowledged that some live foliage may need to be removed in the process.
Consideration
It is an offence to undertake development that is not an approved development (sections 32 and 44 of the Act). It is common ground that the work on T1 and T2 undertaken by Tempest Trees had not been approved such, that if it comprised “development”, an offence will have been committed.
The meaning to be given to “development” in subsection 4(1) of the Act includes, according to paragraph (fa), “in relation to a regulated tree – any tree-damaging activity”.
T1 and T2 are both regulated trees. Subsection 4(1) of the Act also sets out the meaning to be given to “tree-damaging activity”. It includes paragraph (c) being that aspect of the statutory meaning relied on by the appellant. When paragraph (c), the concluding words of the subsection (4)(1) definition and subregulation 6A(8) are considered together, the definition of “tree-damaging activity”, insofar as is material to the appeal, reads as follows:
the severing of branches, limbs, stems or trunk of a tree but does not include maintenance pruning that is not likely to affect adversely the general health and appearance of a tree or that is …
pruning –
(a)that does not remove more than 30% of the crown of the tree; and
(b)that is required to remove –
(i) dead or diseased wood; or
(ii) branches that pose a material risk to a building; or
(iii) branches to a tree that is located in an area frequently used by people and the branches pose a material risk to such people.
Schedule 3 to the Regulations provides for a number of acts or activities that are excluded from the definition of development. Clause 17 of Schedule 3 lists a number of exclusions that by implication would otherwise be tree-damaging activity including, sub-clause 17(1)(e):
(1)A tree-damaging activity in relation to a regulated tree … if –
(e) the tree is dead.
An initial question arising is whether or not the composite exclusion created by the definition in subsection 4(1) and subregulation 6A(8) identifies two types of “maintenance pruning” or maintenance pruning as described and qualified by the language in subsection 4(1) and “pruning” as described and qualified by the language in subregulation 6A(8). It may not ultimately matter, for this appeal, which construction is adopted. What is clear is that two types of “pruning” are excluded from the definition of tree-damaging activity.
The construction of the second type of pruning (subregulation 6A(8)) must be considered in the context of the primary definition of tree-damaging activity in subsection 4(1) and subregulation 6A(8) as a whole. Paragraphs (a) to (e) of the primary definition when considered together with subclause 17(1)(e) of Schedule 3 to the Regulations, can only relate to a living tree. Thus the two “pruning” exclusions and, in particular, that in subregulation 6A(8) also only relate to a living tree (albeit one that may contain dead or diseased wood).
Paragraphs (a) and (b) of subregulation 6A(8) provide for two limbs of or requirements for the exception. Both must be satisfied; so much is evident from the conjunction “and” linking the two requirements in (a) and (b).[43] However, I do not accept the appellant’s contention that paragraph (b) also informs the meaning of “crown of the tree” in paragraph (a). Paragraph (b) provides for three alternative situations where removal of part of a (live) regulated tree will be permitted, as a matter of legislative policy. As far as placitum (i) is concerned, dead or diseased wood can be any or all of: unnecessary to the health and proper appearance of the tree, at risk of failing and falling and therefore dangerous and, in the case of diseased wood, potentially damaging to other healthy parts of the tree. Placita (ii) and (iii) of paragraph (b) speak for themselves as prudent policy considerations. In any of the three situations, pruning of the live tree will be permitted provided paragraph (a) is also satisfied. As far as placitum (i) is concerned, diseased wood, ex hypothesi, remains alive and part of the living tree; dead wood, ex hypothesi, is not alive nor part of the living tree.
[43] It was accepted by the appellant during the appeal that one or more of the purposes in paragraph (b) of subregulation 6A(8) had been satisfied. The issue at the appeal was only whether or not the respondents’ conduct fell within paragraph (a).
The fact that dead wood is specifically dealt with and that the definition of tree-damaging activity is otherwise only concerned with a living tree indicates that the exclusions in placita (ii) and (iii) relate to living branches of the requisite character. It follows that pruning which satisfies placita (ii) or (iii) or concerns diseased wood in placitum (i) will, on either of the definitions contended for, fall within the “crown of the tree” as used in paragraph (a) such that the 30 per cent cap will need to be satisfied.
The appellant contends that dead branches and any parasitic plant that invaded and caused branches of the tree to become diseased, such as (and relevant to the appeal) mistletoe, is also to be understood as part of the crown. I disagree. There is no good reason to treat dead branches as part of the crown of a living tree. A diseased branch or diseased branches will remain part of the tree but not the foreign plant and its foliage (the mistletoe) and notwithstanding that mistletoe foliage can mimic the foliage of particular trees and have the appearance of being part of the crown of the tree.
There is nothing in paragraphs (a) and (b) to indicate that the subject matter of placita (i), (ii) and (iii) of paragraph (b) is, in any given case, to constitute or form part of the crown of the tree in question simply by virtue of the fact that these “components” are referred to in paragraph (b). As already mentioned, the branches in placita (ii) and (iii) and diseased wood in placitum (i) being alive, will by that fact alone form part of the crown on either party’s contention. To hold otherwise would admit of a highly unusual manner for the legislature to define a term which is in common use and when the legislature has provided (in the conventional way) specific definitions of important concepts to be used in this context.
I accept that the fact that “dead” wood as used in placitum (i) might seem to have been unnecessary. If it is not to be treated as part of the crown, why include it at all as a potential purpose to engage the exception? On my preferred construction, unlimited dead wood can be removed without engaging the requirement in paragraph (a). Having said that, any such pruning exercise still would have to satisfy the 30 per cent requirement. But if only dead wood were to be removed the requirement, ipso facto would be satisfied.
The inclusion of dead wood is unnecessary to the exception in subregulation 6A(8) as the Judge and I would construe it. This may be because the construction contended for by the appellant was never in contemplation when the subregulation was drafted and promulgated (likely, in my view) such that the potential inconsistency was not adverted to. Alternatively, dead wood may have been included, superfluously, but in order to render clear the position that dead wood could be removed, without restriction.
The Judge was correct to adopt the ordinary meaning of “crown of the tree” where that phrase occurs in paragraph (a). Namely, the living branches and foliage of a tree. In the circumstances, the second respondent when pruning T1 and T2 was entitled to remove unlimited dead wood. It was also entitled to remove diseased (but still live) wood and live branches and foliage that fell within placita (i), (ii) or (iii) of paragraph (b) provided that, in combination the live branches and foliage removed did not exceed 30 per cent of each crown.
As far as parasitical material, in this case mistletoe, is concerned, the second respondent was entitled to remove all or as much as it chose without it being treated as part of the crowns of T1 and T2 for the purpose of paragraph (a). Whilst the mistletoe was alive and physically intermixed with and, because of its parasitical nature, might appear to have formed part of, the crowns of T1 and T2, it was not part of the crown of either tree. No doubt this may, on occasion, present difficulty for an arborist. The removal of mistletoe might only be possible by the removal of the branches of the host tree to which the mistletoe is attached. If any of those branches are still alive, albeit diseased because of the parasitical mistletoe, those branches will have to be taken into account for the purpose of satisfying paragraph (a). If it were to be the case that more than 30 per cent of the crown would have to be removed, even though consisting of diseased and dying branches, in order to remove the mistletoe and, ultimately, save the tree, development approval will need to be obtained.
I reject appeal ground 1.
Appeal ground 2
The second ground contends that the Judge erred in finding that the appellant, as complainant, carried the onus of proof in relation to whether the respondents had pruned more than 30 per cent of the crown of each tree. The appellant submitted that subregulation 6A(8) is adjectival to the elements of the offence and that in order to be established additional facts had to be made out. Thus, in order to take advantage of this exclusion the respondents were obliged to prove on balance that they fell within the exclusion. The appellant contended that the Judge erred in finding that it carried the onus of excluding (beyond reasonable doubt) that the exclusion in subregulation 6A(8) applied. The Judge should have found that section 56 of the Summary Procedure Act 1921 (SA) (as it then was) applied. Section 56 provided as follows.
56—Exceptions or exemptions need not be specified or disproved by the complainant
(1)No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the complaint.
(2)Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the complaint, no proof in relation to it shall be required on the part of the complainant.
The Judge found that subregulation 6A(8) had the effect of cutting down the scope of “tree-damaging activity” in subsection 4(1), by way of definition rather than exception; thus the onus of proving tree-damaging activity remained throughout with the appellant.[44]
[44] Trial judgment at [153]-[155].
In an earlier decision, Corporation of the City of Adelaide v BFR Pty Ltd,[45] the Judge held that it was for a defendant to bring themselves within the maintenance pruning exceptions of tree-damaging activity on the balance of probabilities. However, in the present matter, the Judge in reliance on the reasoning in Director of Public Prosecutions v United Telecasters Sydney Ltd[46] declined to follow his earlier decision.
Appeal submissions
[45] [2014] SAERDC 37.
[46] [1990] HCA 5; (1990) 168 CLR 594.
The appellant contended that the Judge incorrectly applied United Telecasters and that BFR had been correctly decided. In BFR, the Judge had regard to the various considerations recorded by White J in Overland Corner Station Pty Ltd v Gould,[47] as relevant to the proper application of section 56.
[47] [2010] SASC 61; (2010) 106 SASR 428.
Ultimately, it was submitted by the appellant that if BFR were to be followed, and taking into account the proper meaning of the term “crown of the tree”, the evidence supported a finding that the qualification in paragraph (a) of subregulation 6A(8) had not been met by the respondents.
The respondents contended that the Judge had been correct when applying the reasoning in United Telecasters[48] and in finding that subregulation 6A(8) formed part of the definition of tree-damaging activity. Overland Corner,[49] properly applied, did not have the effect of rendering subregulation 6A(8) an exception. The onus to prove the respondents’ guilt remained with the appellant, as complainant, throughout.
Consideration
[48] Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594.
[49] Overland Corner Station Pty Ltd v Gould [2010] SASC 61; (2010) 106 SASR 428.
Section 56 is directed to that aspect of statutory language establishing a criminal offence that is properly to be characterised as an “exception, exemption, proviso, excuse or qualification” (hereafter, compendiously, “an exception”). Where such an exception, properly characterised, is present, subsection 56(1) provides that it need not be specified or negatived in the complaint and subsection 56(2) provides, inter alia, that no proof thereof shall be required on the part of the complainant.
The effect of section 56, for present purposes, is that if subregulation 6A(8) gives rise to an exception within the purview of section 56, and whilst the appellant, as complainant, remains obliged to prove each element of the offence in question beyond reasonable doubt, it would not be obliged to negative or disprove the exception beyond reasonable doubt. Rather, the respondents, if they wished to bring themselves within the subregulation 6A(8) exception would bear the onus of establishing the necessary factual basis on a balance of probabilities.
The natural predilection of the common law is against an accused bearing any onus of proof when defending a criminal charge. This has led to a body of jurisprudence which draws a distinction between legislative provisions which provide defences by way of an exception to otherwise illegal conduct, where a provision such as section 56 can operate to shift the onus of proof, and defences which, properly construed, only cut down by way of definition the element or elements of the offence to be proved, in which case the onus of proving each element (as defined) remains with the complainant. Section 56 has no role to play in the latter situation. The distinction, whilst relatively easy to state, is enigmatic upon contemplation and can be very difficult to apply.
A relatively clear example of the distinction can be found in Director of Public Prosecutions v United Telecasters Sydney Limited.[50] A segment of a television broadcast led to the respondent being convicted under section 100(5A) of the Broadcasting and Television Act 1942 (Cth) which relevantly provided:
[50] [1990] HCA 5; (1990) 168 CLR 594.
A licensee shall not broadcast or televise an advertisement for, or for the smoking of, cigarettes or cigarette tobacco …
However, subsection 100(10) of that Act, set out in the extract below, provided for a form of defence. Brennan, Dawson and Gaudron JJ explained the correct approach to the question of onus of proof.[51]
[51] Director of Public Prosecutions v United Telecasters Sydney Limited [1990] HCA 5; (1990) 168 CLR 594 at [12]-[13], 600-601.
The rule laid down in Woolmington v. The Director of Public Prosecutions, that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be “subject to ... the defence of insanity and subject also to any statutory exception”. It is made clear in Reg. v. Edwards and Reg. v. Hunt that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused (see, for example, Crimes Act 1900 (N.S.W.), s.417), but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisoes or exceptions, the legislative intent cannot be ascertained as a mere matter of form. The Court of Appeal in Reg. v. Edwards at p 40, viewed the statutory exceptions as limited to:
“offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities.”
In Reg. v. Hunt, at p 375, even this formulation was said by the House of Lords not to be exhaustive. Each case must turn upon the construction of the particular enactment.
But it is clear that in this case the exemption contained in s.100(10) of the Broadcasting and Television Act was not intended to cast any burden upon an accused charged under s.100(5A). Sub-section (10), as it then was, reads:
“A reference in sub-section ... (5A) ... to the ... televising of ... an advertisement shall be read as not including a reference to the ... televising of matter of an advertising character as an accidental or incidental accompaniment of the ... televising of other matter ...”
Whilst sub-s.(10) cuts down the scope of sub-s.(5A) it does so by way of definition rather than by way of proviso, exception or saving and there is no reason to suppose that in so limiting sub-s.(5A) the legislature intended that the sub-section should operate without limitation unless an accused brought himself within the terms of sub-s.(10).
(Citations omitted)
In Chugg v Pacific Dunlop Ltd,[52] decided shortly after United Telecasters, the plurality in the High Court[53] reaffirmed the approach explained in United Telecasters.
[52] [1990] HCA 41; (1990) 170 CLR 249.
[53] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at [7]-[13], 256-259 (Dawson, Toohey and Gaudron JJ).
The primary issue raised by the informant’s appeal is whether, in a prosecution under s.21 of the Act, the informant or the defendant bears the onus of proof on the question of practicability. It was unanimously held by the Full Court that the onus is on the informant. The issue upon which Ormiston J. reached his dissenting decision, namely, the relevance of reasonable foreseeability to liability under s.21 of the Act, will be dealt with later.
The Act is silent as to the onus of proof in relation to the offence created by s.21. That is not unusual for the rule as to the onus of proof in a criminal proceeding is clear, namely, that “it is the duty of the prosecution to prove (a defendant’s) guilt subject ... to the defence of insanity and subject also to any statutory exception”: Woolmington v. Director of Public Prosecutions. The question thus raised by the informant’s appeal is whether the words “so far as is practicable”, as used in s.21(1) and (2) of the Act, constitute a statutory exception.
For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an “exception”), which serves to take a person outside the operation of a general rule. The distinction does not depend on the rules of formal logic. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”. The intention may be discerned from express words or by implication.
To some extent the question whether there is a legislative intention to impose the onus of proof of some particular matter on a defendant is answered by provisions such as s.168 of the Magistrates (Summary Proceedings) Act 1975 (Vict.) which provides:
“(1) Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the Act, order, by‑law, regulation, or other document creating the offence, may be proved by the defendant but need not be specified or negatived in the information.
(2) Whether an exception, exemption, proviso, excuse, or qualification is specified or negatived or not no proof in relation thereto shall be required on the part of the informant.”
Section 168 of the Magistrates (Summary Proceedings) Act and like legislative provisions leave the question whether the matter in issue is an exception to be answered by the ordinary process of statutory construction. See the discussion of s.14 of the Crimes Act 1914 (Cth) in Dowling v. Bowie, at p 145. And, despite the language of s.168 and like legislative provisions, if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.
Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined “upon considerations of substance and not of form”: Dowling v. Bowie, at p 140. And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s.168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception “whether it does or does not accompany the description of the offence”.
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. Such is ordinarily the case where, in the terms used in Reg. v. Edwards, at p 40, there is a prohibition on the doing of an act “save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities”. See Reg. v. Hunt, at p 375, where Lord Griffiths considered the statement from Reg. v. Edwards “an excellent guide to construction”. If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.
(Citations omitted)
Section 168 of the Magistrates (Summary Proceedings) Act 1975 (Vic) was the Victorian equivalent, in all material respects of section 56 of the Summary Procedure Act 1921 (SA).
In Overland Corner Station Pty Ltd & Anor v Gould,[54] White J had to consider the potential application of section 56 in the context of the offence provided for by subsection 26(1) of the Native Vegetation Act 1991 (SA) which provided:
A person must not clear native vegetation unless the clearance is in accordance with this part.
A question before his Honour was whether the words “unless … this part” constituted an exception such that, by virtue of subsection 56(2) of the Summary Procedure Act, it was not a matter upon which the prosecution bore the onus. His Honour found that subsection 56(2) did apply such that it was for the first defendant to bring itself within the exception relied on.
[54] [2010] SASC 61; (2010) 106 SASR 428.
Justice White adopted a review of relevant authorities which had then recently been undertaken by Doyle CJ in Lloyd-Groocock v Police,[55] including Chugg and the reaffirmation therein by the plurality in United Telecasters. Justice White provided the following summary of relevant propositions concerning the application of section 56 with which I respectfully agree and which I adopt.[56]
[55] [2008] SASC 313 at [35]-[42]; (2008) 102 SASR 465 at 471-474.
[56] Overland Corner Station Pty Ltd & Anor v Gould [2010] SASC 61; (2010) 106 SASR 428 at [28].
The following propositions are discernible in the authorities concerning the application of s 56 and its equivalents.
(i)The question of whether an enactment contains a provision in the nature of an exemption or proviso for the purposes of s 56(2) is to be resolved by the construction of the statute under which the charge is laid.[57] When some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”.[58]
(ii)The focus on the process of statutory construction should be on the substance (“the essence or thrust”), rather than the form, of the statutory provision in question.[59] However, that does not mean that the form of the statutory provision is irrelevant as the way in which a section is set out may be a useful guide to the intention of Parliament with respect to any postulated exception or proviso.[60]
(iii)A qualification or exception which assumes the existence of facts upon which the general rule of liability is based and which depends on additional facts of a special kind is, depending on issues of substance, more likely to be a qualification or exception to which s 56(2) applies,[61] or, as it was put by Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop,
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule.[62]
(iv)If a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.[63]
(v)There are many authorities indicating that the fact that defendants are likely to have peculiar knowledge bearing upon the application of the exemption or proviso, or enabling them to prove the positive of any negative averment is immaterial in the process of construction involved.[64] However, the circumstance that a relevant fact would be difficult for the prosecution to establish and easy for a defendant to establish might well dispose the legislature to make the proof of that fact an exception within the meaning of s 56.[65] In this respect Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop said:
If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.[66]
(vi)Ultimately, the application of s 56 depends upon a postulated legislative intention which is to be determined by reference to all of the relevant circumstances. This makes it difficult to state any general rule on the subject and can limit the utility of comparison of one case with another.[67]
(Footnotes in original)
[57] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257; R v Edwards [1975] 1 QB 27 at 39-40; Rowbottom v Nicolitsi (1986) 41 SASR 576 at 580.
[58] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257.
[59] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258; Daire v O’Malley (1986) 41 SASR 583 at 586-587.
[60] Rowbottom v Nicolitsi (1986) 41 SASR 576 at 580.
[61] Dowling v Bowie (1952) 86 CLR 136 at 139-140.
[62] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258.
[63] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258.
[64] R v Edwards [1975] 1 QB 27 at 39-40.
[65] Rowbottom v Nicolitsi (1986) 41 SASR 576 at 580.
[66] (1990) 170 CLR 249 at 258-9.
[67] Lloyd-Groocock v Police (2008) 102 SASR 465 at [42].
As the authorities make plain, ultimately, it is a question of the proper construction of the statute under which the charge is laid. The primary contention of the respondents, as accepted by the Judge, is that properly construed subregulation 6A(8) is definitional only and does not provide for an exception to otherwise criminal conduct.
In order to properly appreciate this contention it is necessary to identify the provisions making up the offences in question. According to the respondents the offences derive from section 32 and subsection 44(1) – the rest is definitional.
Subject to this Act, no development may be undertaken unless the development is an approved development. (section 32)
A person must not undertake development contrary to this Division.
Maximum penalty … (subsection 44(1)).
As I understand the argument, the offence to be established by a complainant is the “undertaking of development” without approved.
The respondents contend that an element of the offences charged is the undertaking of development as to which the appellant bears the onus of proof. The provisions which provide for the meaning of “development” (paragraph (fa) of the definition in subsection 4(1) which incorporates the meaning of “tree-damaging activity” as defined in subsection 4(1) which itself incorporates subsection 6A(8)) do no more than define or set out the parameters of the term “development”. In particular, the “exception” in subregulation 6A(8) is a carve out from the notion of “tree-damaging activity” and not an exception to the offence of undertaking development (without approval).[68]
[68] A question might arise as to whether or not this requirement of approval is, itself, an exception to which section 56 might apply. However, this issue is not before the Court as it is common ground that no approval was obtained.
The submission has its attraction, although it relies very much on a literal construction and the form of the relevant provisions. The question that arises is whether this is the correct construction as a matter of substance and whether it properly reflects the intention of the legislature as to where the onus of proof should lie.
A description of the offence of undertaking development, in the manner relied on by the appellant in this matter, expanded by incorporating relevant parts of the definitions, and which does not do undue violence to the interlocking provisions, is as follows.
A person must not without approval undertake … the severing of branches, limbs, stems or trunk of a [regulated] tree … [except where] … the severing of branches (etc) is required to remove dead or diseased wood or branches that pose a material risk to a building or branches … [that] pose a material risk to … people and [which] does not remove more than 30 per cent of the crown of the tree.
When this form of the offence is considered, the language is that of a general prohibition with a subset of that general prohibition being characterised as an exception. Considered in this form, an intention by the legislature to require a defendant to bring themselves within the qualification can more readily be discerned.
The basic policy underlying the inclusion of tree-damaging activity in the offence of undertaking development without approval is to ensure that no pruning (severing of branches, limbs, stems or trunk) of regulated trees in the council area (without approval) occurs unless the pruning is of a particular type (“maintenance pruning” or subregulation 6A(8) type pruning). This is the “essence or thrust” of the prohibition. In other words, the legislature intends that unapproved pruning of regulated trees should be prohibited whilst recognising that there will be circumstances where it would be permissible without the need to obtain approval. The substance of the prohibition points to subregulation 6A(8) being intended to operate as an exception to rather than as part of the definition of the offence.
There are other factors which lend support to such a conclusion.
The wording of the qualification is not to be found in the statutory provision constituting the offence itself, but is separately and distinctly provided for in the regulations. Whilst this itself might be simply a matter of form and on its own would carry little weight, it is a fact potentially indicative of the legislative intention.
Further, the qualification in this case is one that assumes the existence of the facts necessary to making out the primary prohibition (“pruning”) but depends upon the finding of additional facts of a special kind – the establishment of one or more of the requirements in placita (i), (ii) or (iii) in paragraph (b) of subregulation 6A(8) and that no more than 30 per cent of the crown of the tree has been removed. In this respect, some “new or different matter from the subject matter of the rule”[69] has been set up (the purposes of the pruning and the quantity of the pruning). Related to this consideration is the fact that the additional facts are of a nature such that it typically would be very difficult for the prosecution to garner material evidence but relatively easy for a defendant to do so.
[69] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 259 (Dawson, Toohey and Gaudron JJ).
In a case such as the present, the council as complainant is likely to know nothing about the state of any trees in question at the time the pruning work was contemplated and performed. Usually, the council would be presented with the finished product – the pruned trees with the area tidied up and prunings removed. Faced with such a situation, the task of “reconstructing” the tree or trees in order to determine and obtain independent[70] evidence concerning whether or not diseased wood had been removed, whether or not any aspect of the tree or trees had posed a material risk to buildings or people and what percentage of the crown had been removed (which, in effect, was what Dr Nicolle attempted) would be very difficult and, on occasion, not possible.
[70] That is, evidence from sources other than those with an interest in having the trees pruned.
By way of contrast, the pruner – be they arborist or owner – is in the best position to be able to explain what was done and why and to keep notes supplemented with photographs in support. That they, acting prudently, ought do so or run the risk of failing to satisfy the onus is not unreasonable. The requirements of subregulation 6A(8) should be well within the knowledge and control of the pruner. If they are acting within subregulation 6A(8) they should readily be able to establish this on a balance of probabilities basis. Whereas the prospect of a complainant council being able to disprove beyond reasonable doubt the requirements that would satisfy subregulation 6A(8) typically would be very slim.
For the above reasons, I am satisfied that subsection 56(2) applied and that the Judge was correct in so finding in his earlier decision in BFR but erred in this respect in the present matter. The respondents carried the onus of proving, on a balance of probabilities, that the work performed on T1 and T2 fell within the exception provided for by subregulation 6A(8).
Appeal ground 2 has been made out.
Appeal ground 3
This ground concerned a challenge to the Judge’s refusal to accept Dr Nicolle’s evidence as to the percentage of the crowns of T1 and T2 that had been removed. The appellant contended that Dr Nicolle’s evidence lent support to the conclusion that on either of the contended for meanings to be given to “crown of the tree”, tree-damaging activity had been undertaken by the second respondent and caused by the first respondent.
The Judge summarised Dr Nicolle’s opinion evidence on this topic and the basis offered for the opinion in the following terms.[71]
[71] Trial judgment at [34]-[50].
He was asked to assume that T1 and T2 had been pruned in October 2015. He said that, based on that assumption, the structures of both T1 and T2 had been ‘highly modified’. On the further assumption, that the cuts to T1 and T2 which he observed had been made to the trees in the previous October, he concluded that at that time both T1 and T2 would have been fully healthy and leafy.
He confirmed that, in his view, between 95% and 99% of the crown of T1 had been removed and between 45% and 65% of the crown of T2 had been removed.
He reached his opinion by comparing ‘the [circumference of] the final cuts in T1 with the circumference of the remaining branches with leaves on them and [looking] at that as a ratio or a percentage’. He conducted a similar exercise with respect to T2.
He was also asked to assume that each tree had been cut to a point which aligned with the boundary fences and to opine what percentage of crown would have been removed if the cuts had stopped at those points. He said that in the case of T1, it would have been at least 95% of the crown and for T2 between 40% and 60%.
In cross-examination by Mrs Shaw QC, he said that he did not physically measure the diameter of the pruning cuts but rather determined the diameter by making a visual estimate from ground level. The cuts, to which he was referring, had been made at various points between 5.5 metres and 12 metres above ground level.
He was unable to name any scientific article or text where the methodology, which he had adopted for evaluating the amount of crown that had been removed, was referenced. He said that he could not provide any record of any tests where this methodology had been used or any textbook that said this was a permissible method for estimating the amount of tree crown that had been removed.
He reiterated that he was unaware of any research where his methodology had been used or of any peer reviewed papers or texts where such a methodology had been adopted. In the absence of any such material, he relied on his knowledge of general biology with respect, for example, to circumstances where a tree splits into two trunks. In such cases, he said that the size of the trunk is proportional to the amount of live foliage on that part of the tree.
He did not agree with the use of the terms ‘dominant’ and ‘sub-dominant’ for trees T1, T2 and T3. Such terminology could however be appropriate where one was considering trees in a plantation setting which this was not.
He conceded that he did not know whether, in October 2015, any of the branches on T1 or T2 were dead or cracked prior to their being pruned. He also accepted that he could not say whether either tree was structurally flawed before being pruned.
He said that Mistletoe was well known to occur in this species of tree, but that it was not very common in such trees in metropolitan Adelaide. He was unable to say whether, in October 2015, there would have been Mistletoe on T1 and T2. Generally, in his opinion, Mistletoe would not adversely impact the health of a large tree unless there was a significant amount of Mistletoe present. He did not agree that Mistletoe ‘mimics’ this species or that, for an arborist, it was difficult to identify.
He said that if there had been Mistletoe in T1 and T2 to such an extent as to detrimentally affect their health, he would have expected to have seen evidence of it in the form of reduced growth rates and thinner bark relative to the amounts of heartwood.
He accepted that he had not pruned Mistletoe on a commercial basis, but he had removed it from trees in his own Eucalypt arboretum. He said that he had not recommended removing Mistletoe in the past, but accepted that other arborists may well have done.
He disagreed that, in Adelaide, Mistletoe is seen as a pest. He accepted that in certain circumstances when Mistletoe progresses, it can lead to a point where little or no host foliage remains on the tree.
He confirmed that his opinions were formed without having seen T1 and T2 prior to pruning, and that they were based ‘on assumptions provided to [him] and what [he] could observe in the trees from [his] site visit and [his] experience of the species’.
When certain propositions, as to the bowing of trees, from the publication, ‘Tree Risk Assessment Manual’, were put to him, he said that they applied to conifers and winter deciduous trees, rather than eucalypts.
He said that the presence of cracks in a tree did not necessarily mean that there was anything structurally unsound about the tree.
In re-examination, he said that although the species is a very long lived species, T1 and T2 were relatively young trees. He said that when looking at some of the photos in Exhibit P2, he could not see any evidence of Mistletoe in T1 and T2. He said that if Mistletoe was present he would have expected to have been able to detect it from looking at the photos.
(Underlining and emphasis in original)
(Footnotes omitted)
In refusing to admit into evidence Dr Nicolle’s opinion as to the percentage of the crowns removed, the Judge explained as follows.[72]
However, I do not accept the opinion proffered by him in his oral evidence, with respect to the percentage of tree crown which was removed during the process of these works. I do not accept his opinion because I am not persuaded that his approach or methodology, for the ascertainment of the extent of crown which has been removed, is a matter in relation to which expert testimony can be given.
Matters of general biology to one side, he could offer no scientific support for the opinions he proffered. In the absence of any such material, I am not satisfied that the subject matter of the opinion he expressed ‘forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court’.
Moreover, Dr Nicolle said that he did not examine T1 and T2 prior to the pruning work being undertaken. As a result, he conceded that he was not in a position to determine whether Mistletoe was present on T1 and T2 prior to them being pruned. Nor was he able to gainsay, other than in the most general of terms, that each of the trees contained dead, diseased or cracked branches.
Accordingly, although I accept his general expertise, where his evidence differs from the evidence of Mr Tempest, and particularly for reasons I will refer to later, Mr Cook, as to the existence of a significant infestation of Mistletoe and/or dead, diseased or cracked branches in T1 and T2, prior to the trees being pruned, I prefer their evidence.
(Emphasis in original)
(Footnotes omitted)
Appeal submissions
[72] Trial judgment at [52]-[55].
The appellant contended that the evidence was rejected on the basis that there was no scientific support for Dr Nicolle’s opinions; a matter which it further contended went to weight rather than admissibility. According to the appellant,
The question was whether the accepted expert, Dr Nicolle, was capable of expressing the opinions as to the amount of the crown that had been removed. That is a question of fact, tested against a recognised legal standard. Here, the basis, method of calculation and Dr Nicolle’s reasoning process were disclosed. Applying his expertise he made an assessment. There was no threshold to its acceptance that it must be documented in a journal or text. No evidence was led to show the assessment was not acceptable to arborists, botanists or ecologists. The trial judge did not identify any scientific principle that the prosecution relied upon which was beyond the expertise of the witness. The appellant submits that there was no basis for its exclusion.
The second respondent contended that the Judge’s finding that he could not rely upon the opinion of Dr Nicolle as to the percentage of the crowns removed was correct. It was submitted that Dr Nicolle was not in a position to estimate the amount removed. No foundation or scientific method was put in support of his methodology, nor were any measurements taken.
Various other submissions were put by the parties concerning the import of Dr Nicolle’s evidence were it to be accepted. However, they were put in the context of the appellant’s contended for meaning of “crown of the tree” and/or on the assumption that the appellant carried the onus of proof to exclude the operation of subregulation 6A(8). Given my conclusions with respect to appeal grounds 1 and 2, it is unnecessary to consider these arguments.
Consideration
It is difficult to see how success with appeal ground 3 might assist the appellant. Even if the opinion evidence of Dr Nicolle concerning how much of the crowns of T1 and T2 had been removed were to be admitted, it could only carry very little weight for the reasons his Honour gave.
In R v Bjordal,[73] Debelle J summarised the relevant principles governing the admissibility of expert evidence. In so doing, his Honour adopted the approach of King CJ in the erstwhile leading case in this State, R v Bonython[74] and the principles enunciated by Heydon JA in Makita (Aust) Pty Ltd v Sprowles.[75] It is only necessary to set out a short portion of Debelle J’s summary.[76]
[73] [2005] SASC 422; (2005) 93 SASR 237 at [26]-[31].
[74] (1984) 38 SASR 45.
[75] [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85].
[76] R v Bjordal [2005] SASC 422; (2005) 93 SASR 237 at [26]-[27].
The conditions governing the admissibility of evidence tendered as expert opinion were expressed by Heydon JA in Makita (Aust) Pty Ltd v Sprowles in these terms:
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of
“training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
The decision in Makita has been consistently followed since. In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd, Branson J commented that the approach of Heydon JA seemed a counsel of perfection. However, as the Court of Criminal Appeal noted in R v Howard (at 13) when her Honour elaborated her reservations, she noted that the existence of a field of specialised knowledge was something which might be assumed in cases where evidence is adduced without objection. That is not the position here.
The passage quoted from Makita identifies several conditions. For present purposes it is sufficient to refer to the following:
1. there must be a field of specialised knowledge;
2. there must be an identified aspect of that field in which the witness has demonstrated an expertise;
3.the opinion must be based on the expert knowledge of the witness;
4. so far as opinion is based on facts observed or assumed, those facts must be identified and proved; and
5. it must be established that the facts on which the opinion is based form a proper foundation for it.
I turn to examine the application of those conditions to the issues in this case.
(Citations omitted)
I accept for present purposes that properly trained and experienced arborists, such as Dr Nicolle, possess a field of specialised knowledge. However, it does not follow that every opinion expressed by such an expert is necessarily one that derives from that field of specialised knowledge. It is this truism that underpins Heydon J’s second requirement – there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experiences, the witness has become an expert. It was this, as I apprehend, that was the Judge’s principal concern as to admissibility.
Dr Nicolle purported to have expertise in being able to assess the quantity of the crowns of T1 and T2, what those crowns were comprised of and whether or not or the extent to which, mistletoe existed throughout the crowns by simply reviewing from the ground the remaining stubs of the pruned limbs and estimating from the ground the diameters of those pruned stubs. Whilst this was a common practice of Dr Nicolle’s he did not offer anything, nor did the complainant on his behalf, to support a finding that this practice of Dr Nicolle’s represented an identified aspect of the field of expertise (the practise of arboriculture) of which Dr Nicolle was an exponent. Dr Nicolle, in effect, performed a mathematical calculation based on his observations of the pruned eucalyptus taken by way of estimation from the ground and on his experience of how healthy eucalyptus of the age in question might have been expected to develop. There was simply no capacity to test the accuracy of Dr Nicolle’s estimations on this occasion, nor, importantly, on any previous occasions when he may have performed a similar exercise. For all that is known, he might have been repeatedly in error on any such previous occasions. I mean no disrespect to Dr Nicolle in any way whatsoever. As the Judge found, he clearly is a very competent, credentialed and experienced arborist. Such estimations may be of use in other contexts. However, for the reasons given, I am not satisfied that they have a sufficient basis or support from within Dr Nicolle’s field of expertise to qualify as expert opinion.
There are other considerations which, in my view, render Dr Nicolle’s opinion as to the amount of the crowns removed of little weight, even if they were to be strictly admissible.[77] Dr Nicolle only examined the trees after the event, he accepted that he had not been in a position to determine whether mistletoe had been present and he was unable to opine, except generally, as to the extent of any dead, diseased or cracked branches. Further, Dr Nicolle estimated the circumferences of various limbs (at the location of the pruning cuts) and compared these to estimates of the circumferences of remaining branches. The pruning cuts were at various points between 5.5 metres and 12 metres above the ground on which Dr Nicolle was standing.
[77] Leaving aside questions of discretionary exclusion in criminal cases, the question of admissibility is to be kept separate from the question of weight. The former is a matter for the Judge and the latter is a matter for the trier of fact, The Queen v Duke (1979) 22 SASR 46.
I reject appeal ground 3. If I were to be in error on the question of admissibility, I would give the opinions as to the extent to which the crowns had been pruned little weight.
Ground 4
The fourth ground contends that the Judge erred in finding that no more than 20 per cent of the crown of either T1 or T2 had been removed. On the basis of the meaning of “crown of the tree” as contended for by the respondents and found to be correct by the Judge and by me (appeal ground 1) this finding is sufficient to show that the appellants satisfied the onus upon them (appeal ground 2) and for the appeal to be dismissed.
The Judge’s reasoning on this issue was governed by or articulated in the context of his finding that an onus to exclude the qualification in subregulation 6A(8) beyond reasonable doubt rested with the appellant. Given my finding to the contrary (appeal ground 2), it would serve no purpose to review the Judge’s reasoning or a number of the parties’ respective submissions under this ground. However, of importance is the Judge’s finding that Mr Cook gave truthful and reliable evidence both generally and as to the amounts of the crowns which he said he removed, which the Judge accepted. Whilst there is a challenge to this evidence, the challenge was based essentially on Dr Nicolle’s (unaccepted) evidence.
In reviewing the Judge’s acceptance of the evidence given by Mr Cook, I must exercise appellate restraint, as explained by the plurality in Fox v Percy.[78]
Consideration
[78] [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29], [41] (Gleeson CJ, Gummow and Kirby JJ).
Mr Cook was the only tree climber who pruned T1 and T2. He was repeatedly questioned during his examination in chief and cross-examination concerning his understanding of the term the crown of a tree and as to how much of each crown he removed. His evidence was consistent throughout. The Judge’s summary of his evidence has been set out earlier.
In relation to T1, the following exchange occurred during evidence in chief.
Q.How would you describe its relative infestation.
A.There was quite a fair bit in there.
Q.You have mentioned that your instruction was to prune that tree. What did that involve in relation to the mistletoe.
A.Well, the mistletoe was coming out in the section of the tree that we were removing, so, yeah, within the scopes of the job that we were able to remove that section of mistletoe out of it.
Q.You have mentioned that there were dead and cracked branches on this tree.
A.That's correct.
Q.As far as pruning is concerned, what is your goal in that respect.
A.Well, obviously, we want to remove the dead branches out of there before they become a hazard and they could fall off, yeah, making the tree safe.
Q.You mentioned the need to prune the tree within the confines of what you call the Tree Act or the regulations that apply. What was your understanding or what premise did you apply to your approach to pruning and the removal of live foliage.
A.I always removed up to 20% and if I could, less of the live foliage.
Q.In that sense, was that your approach on this particular job.
A.That is correct.
Q.Did you do that in relation to tree No.1.
A.Yes.
In relation to T2, the following exchange occurred during evidence in chief.
Q.Then coming to tree No.2, if I can ask you what your assessment of that tree was, what you saw in that tree.
A.So there was some mistletoe in some sections and I could see some small twists in the tree with some stress in the bark, so small splits in the cambium layer in the bark.
Q.Again, did you climb into that tree.
A.I did climb into that tree.
Q.Once you climbed into it, did that assist your assessment further.
A.Correct.
Q.How did that assist it.
A.Just identifying things clearer, to make an assessment of what I would remove and what I didn't need to remove.
Q.Are you able to recall the extent of the mistletoe in that tree.
A.I couldn't give you a real percentage, but there was mistletoe in it. I couldn't give you an exact amount. Probably less than tree 1.
Q.Again, insofar as your task of pruning that tree was concerned, what was your approach.
A.To remove up - in my opinion, up to 20%, and if I can, I did less.
Q.Of what.
A.Of live growth.
Q.When you're referring to 'growth', you're referring to -
A.The actual live - the leaves, basically.
Q.What about the mistletoe.
A.Well, that's not included in my evaluation of live growth, so -
Q.What is the purpose of removing the mistletoe.
A.To save the tree's life, in my opinion.
Q.On your training and your approach, how does mistletoe threaten a tree's life.
A.It basically chokes the tree to death.
Q.Is there a name for it in that context that you use; what sort of botanical thing.
A.I couldn't give you the exact botanical name of what the particular mistletoe was, but, yeah, it basically mimics the host tree.
. . . .
Q.Did you prune tree No.2.
A.I did prune tree No.2.
Q.Again, insofar as your approach to how much of light (scil: live) foliage you were to remove, what was it.
A.Up to 20%.
Q.Did you complete the job adopting that approach in relation to tree No.2.
A.Yes.
During cross-examination by counsel for the appellant, Mr Cook confirmed that to the best of his knowledge he removed all of the mistletoe that was in T1 and T2 and that with any tree he followed his general practice of pruning “up to 20 per cent of the overall live growth in the canopy of the tree”. In this latter respect, the following exchange occurred.
Q.Now, when you say 'Live growth' what do you mean by that.
A.The actual live, healthy leaves in the overall canopy of the tree.
Q.What if you found a branch that was full of dead leaves, leaves that were part of the tree but they had died.
A.Well they're not counted with it because it's not live growth.
Q.So where do you get the understanding that you don't count dead leaves.
A.Where do I get it from?
Q.Yes.
A.In training from years ago.
Q.Do you count dead branches as part of the canopy.
A.No, because it's not live growth.
Q.Do you count Mistletoe.
A.Again no, because it's not live growth.
Later in the cross-examination, Mr Cook confirmed that for T1 he removed close to 20 per cent of live foliage, mistletoe and dead and decaying branches and that he removed mistletoe and twisted timber from T2.
I have reviewed the evidence at trial including in particular that of Mr Tempest,[79] Mr Cook and Dr Nicolle and the photographic evidence relied on by the appellant. The Judge had the well accepted advantage of seeing and hearing Mr Cook give his evidence as to which he was extensively cross-examined. The appellant has not been able to point to any incontrovertible facts or uncontested testimony that would serve to contradict the evidence of Mr Cook. Nor can his testimony be seen as contrary to compelling inferences available from other evidence in the case.[80] It was open to the Judge on the evidence to accept the evidence of Mr Cook. There is no basis on which the Judge’s acceptance of Mr Cook’s evidence might be interfered with.
[79] As regards those aspects accepted by the Judge such as, in particular, his observations of the presence of mistletoe.
[80] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29], [41] (Gleeson CJ, Gummow and Kirby JJ).
His Honour’s findings number 13 and 15,[81] applicable to both T1 and T2, were open on the evidence and should not be interfered with. Those findings have been set out earlier. Appeal ground 4 has not been made out.
[81] Trial judgement at [188].
Notwithstanding the onus of proof advantage which, on my findings, was available to the appellant, I am satisfied on balance, that the work performed on T1 and T2 fell within the subregulation 6A(8) exception. As a consequence of the conclusions I have reached to this point, the Judge’s overall conclusions[82] that the work actually done on T1 and T2 did not constitute tree-damaging activity must be upheld and the appeal with respect to both respondents dismissed.
[82] Trial judgment at [196].
Conclusion
It is not necessary to determine the causation issues raised by appeal grounds 5 to 7, nor the first respondent’s notice of contention. The appeal is dismissed.
At the outset of the hearing of the appeal,[83] counsel for the first respondent made an application under sub-rule 104X(4) of the Supreme Court Criminal Rules 2014 (SA). All parties agreed that the matter was of sufficient importance and complexity such that the costs of the appeal should be assessed in the ordinary way rather than as limited by the terms of sub-rule 104X(2). I make a direction to that effect. I will hear the parties further on the question of the costs of the appeal.
[83] In accordance with rule 104X(5) of the Supreme Court Criminal Rules 2014.
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