Vickery v Department of Environment and Natural Resources

[2019] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

VICKERY v DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES

[2019] SASC 73

Judgment of The Honourable Justice Hinton

14 May 2019

ENVIRONMENT AND PLANNING - TREES AND VEGETATION - NATIVE VEGETATION

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Following a trial in the Magistrates Court, the appellant was found guilty of three counts of clearing native vegetation contrary to s 26(1) of the Native Vegetation Act 1991 (SA). The offences were committed between 17 February 2008 and 29 March 2011 on identified areas on Coolami, a property owned by the appellant and located in the south-east of South Australia. The appellant had transformed the areas of Coolami subject of the charges from diverse native vegetation suitable for the grazing of livestock to areas void of vegetation suitable for growing onions by centre pivot irrigation and related purposes.

The prosecution case at trial was that clearance of native vegetation took place on the charged areas after 17 February 2008. Alternately, that native vegetation had regenerated on the charged areas after 17 February 2008 and was subsequently cleared between that date and 29 March 2011. The appellant did not deny that the charged areas on Coolami had been cleared of native vegetation. Rather, the defence case was that the areas had been cleared completely prior to 17 February 2008 leaving no living native vegetation as at the charged dates. In the alternative, the defence contended that all clearance undertaken fell within the exemption provided in reg 5(1)(zf) of the Native Vegetation Regulations 2003 (SA).

The Magistrate convicted the appellant finding the prosecution case proved beyond reasonable doubt. In doing so she concluded that he had failed to establish each of the elements of the exemption contained in reg 5(1)(zf) on the balance of probabilities. The appellant appealed on the grounds that:

i. the Magistrate erred in her conclusion that the appellant was not entitled to rely upon the exemption contained in reg 5(1)(zf) of the Native Vegetation Regulations 2003 (SA).

ii.       the Magistrate erred in her assessment of the burden on the prosecution to prove all elements of the offence beyond reasonable doubt.

iii.      the Magistrate erred in that she failed to consider the evidence in respect of each area particularised in count 3 in determining whether count 3 was proven beyond reasonable doubt.

iv.     Count 3 was duplicitous.

v.      The conviction with respect to count 3 was uncertain because of the multiple areas alleged.

The respondent conceded ground 4, rendering it unnecessary for the Court to consider grounds 3 and 5.

In relation to the remaining grounds, the appellant’s primary arguments were that the Court could not safely conclude that the Magistrate had correctly applied the burden and standard of proof and was wrong to conclude that the appellant had not made out the exemption provided in reg 5(1)(zf) on the balance of probabilities. The respondent submitted that the Magistrate’s reasons were adequate and that it was open to her to convict the appellant on the evidence and to find that the appellant had not satisfied all of the requirements of reg 5(1)(zf).

Held, allowing the appeal in part; the appellant’s conviction on count 3 is set aside. Count 3 is remitted to the Magistrates Court for retrial.

Native Vegetation Act 1991 (SA) ss 3, 26(1), 34(1), 35(1); Native Vegetation Regulations 2003 (SA) regs 3A, 5(1)(zf); Summary Procedure Act 1921 (SA) s 56, referred to.
Brinkworth v Dendy (2007) 97 SASR 416; DL v The Queen (2018) 92 ALJR 636; Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428; Police v Kyriacou (2009) 103 SASR 243; R v Calides (1983) 34 SASR 355; Soulemezis v Dudley (Holdings) Pty Ltd (1987) NSWLR 247, considered.

VICKERY v DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
[2019] SASC 73

Magistrates Appeal

HINTON J

Introduction

1. The appellant was found guilty by a Magistrate of three counts of clearing native vegetation, contrary to s 26(1) of the Native Vegetation Act 1991 (SA) (the Native Vegetation Act or the Act). The offences were committed between 17 February 2008 and 29 March 2011 on identified areas of a property located in the south east of South Australia owned by the appellant and known as Coolami.

2. Counts 1 and 2 alleged clearance of native vegetation from two irrigation pivots each of approximately 40 hectares in areas marked ‘A’ (pivot A) and ‘C’ (pivot C) on a map (MAP-MS09-02) appended to the Complaint. Count 3 alleged clearance of native vegetation from five sites adjacent to either pivot A or pivot C marked on the same map as areas J, K, L, M and N. Areas J, K, L and M were clay pits. Native vegetation was cleared from those areas when the pits were dug as a source of clay which was then ploughed into pivots A and C to improve moisture retention. In relation to area N, native vegetation was cleared in the course of, and for the purpose of, constructing an eco shelter.

3. At trial the defence did not deny that the areas subject of the charges had been cleared of native vegetation. However, the clearance that did occur was undertaken before the dates falling within the charge date ranges. In the alternative any clearance of native vegetation was authorised by regulation.

4. As mentioned, the Magistrate convicted the appellant on all counts. The appellant now appeals on the grounds that:

   1.The Magistrate erred in her conclusion that the appellant was not entitled to rely upon the exemption set out in reg 5(1)(zf) of the Native Vegetation Regulations 2003 (SA) (the Native Vegetation Regulations).

   2.The Magistrate erred in her assessment of the burden on the prosecution to prove all elements of the offence beyond reasonable doubt in that:

   a.      The Magistrate considered that the appellant first had to raise evidence that created the reasonable possibility of doubt, rather than considering that issue on the basis of the evidence as a whole;

   b.     The Magistrate received a photograph in evidence (exhibit D2) that was consistent with the case for the appellant and for which she concluded she could not account. Having done so she failed to acknowledge that if she were unable to say where the truth lay, then this constituted a reasonable doubt as to the guilt of the appellant.

5. Upon the commencement of the hearing of the appeal, the Notice of Appeal was amended with the consent of the respondent to add grounds 3, 4 and 5, those grounds being:

   3.The Magistrate erred in that she failed to consider the evidence in respect of each area particularised in count 3 when determining whether count 3 had been proved beyond reasonable doubt.

   4.     Count 3 was duplicitous.

   5.The conviction in respect of count 3 is uncertain because of the multiple areas alleged.

6. Counsel for the respondent conceded ground 4. That concession followed from the evidence of Steven Rathjen who had leased pivots A and C from the appellant and planted an onion crop on each, first on pivot A in August 2008, and then on pivot C in May 2009. Mr Rathjen said that the clay borrow pits in areas M and L were dug in early-mid July 2008, that at around the same time the clay base subject of area N and upon which the eco shelter was erected was spread, and that the borrow pits subject of areas K and J were dug no earlier than May 2009. Mr Rathjen was able to nominate when the pits were dug because of the connection between the pits and the preparation of pivots A and C for onion cropping. Being so separated in time, with no apparent link between the clearances, the clearances could not be the subject of a single offence. Bearing in mind what fell from Doyle CJ in Brinkworth v Dendy,[1] the respondent’s concession was appropriate. Accordingly, the appellant’s conviction on count 3 must be set aside.

   [1] (2007) 97 SASR 416 at [46].

7. In view of the respondent’s concession on ground 4, it is unnecessary to consider grounds 3 and 5.

8. The respondent filed a Notice of Contention. That Notice addresses the first ground of appeal. The contention, shortly stated, is that a person can only take advantage of reg 5(1)(zf) where the clearance undertaken was initially lawful. In the present case the respondent contends that the clearance undertaken on pivots A and C was not lawful in the relevant sense.

9. The argument advanced in support of the second ground of appeal was framed in terms inviting this Court to conclude that the Magistrate had failed to apply the burden and standard of proof correctly largely because issues in dispute were not addressed in the Magistrate’s reasons and because an absence of reasoning explaining the basis upon which the defence case was rejected. To address this ground of appeal properly it is necessary to outline the respective cases for the prosecution and defence in relation to counts 1 and 2 and the Magistrate’s reasons for finding the appellant guilty, before setting out the appellant’s arguments in greater detail and analysing those arguments and the Magistrate’s reasons in the light of the evidence.

   The trial

10. The Complaint was laid on 25 January 2012. Counts 1 and 2 alleged:

    Count 1

    Between 17 February 2008 and 29 March 2011, cleared native vegetation from Section 9 in the Hundred of Shaugh, in the State of South Australia.

    Section 26(1) of the Native Vegetation Act 1991.

    Particulars

    1.1Between 17 February 2008 and 29 March 2011, the defendant was the registered owner in fee simple of Section 9 in the Hundred of Shaugh currently described in Certificate of Title Register Book Volume 5996 Folio 840, in the State of South Australia (“the land”).

    1.2Between 17 February 2008 and 29 March 2011, the defendant caused or permitted the clearance of native vegetation from the land without consent from the Native Vegetation Council of South Australia.

    1.3The native vegetation was cleared in the area marked ‘A’ on ‘MAP-MS09-02’ appended to this complaint.

    1.4The vegetation was cleared over an approximate area of 40 hectares.

    1.5The native vegetation cleared consisted of approximately 90 species, including Ridge-fruited Mallee Eucalyptus incrassata, Narrow-leaf Red Mallee Eucalyptus leptophylla, Common Fringe-myrtle Calytrix tetragona, Spreading Sword-sedge Lepidosperma congestum, Guinea-flowers Hibbertia species, Heath Phyllota Phyllota pleurandroides, Grey Spyridium Spyridium subochreatum, Desert Banksia Banksia ornata, Sandheath Yacca Xanthorrhoea caespitosa, Yellow Gland-flower Adenanthos terminalis, Dwarf Oak-bush Allocasuarina pusilla, Long Grey-beard Grass Amphipogon caricinus - rare, Pleated Copper-wire Daisy Podolepis rugata - rare, Scarlet Mintbush Prostanthera aspalathoides - rare, Woolly Daisy-bush Olearia lanuginosa - uncommon and Slender Phyllota Phyllota remota - uncommon.

    Count 2

    Between 17 February 2008 and 29 March 2011, cleared native vegetation from Section 9 in the Hundred of Shaugh, in the State of South Australia.

    Section 26(1) of the Native Vegetation Act 1991.

    Particulars

    1.1Particulars 1.1 and 1.2 from Count 1 are repeated.

    1.2The native vegetation was cleared in the area marked ‘C’ on ‘MAP-MSO9-02’ appended to this complaint

    1.3Particulars 1.4 and 1.5 from Count 1 are repeated.

11. The offences being charged on Complaint it may be accepted that they were summary offences, though as much is not expressly stated in the Complaint. As at 25 January 2012 proceedings for a summary offence committed against the Native Vegetation Act had to be commenced within four years of the date on which the offence was alleged to have been committed.[2]

    [2]    Native Vegetation Act 1991 (SA), s 35(1)(a).

12. The evidence established that section 9 in the Hundred of Shaugh was part of the appellant’s property known as Coolami. In the evidence the western portion of section 9 is often referred to as area 1. Pivots A and C were constructed on area 1.

13. At trial it was not disputed that native vegetation had been cleared by the appellant and his sons, at times with assistance of others, from the area within pivots A and C.

14. The defence case was that all clearance of live native vegetation took place before 17 February 2008 and that any clearance activity after that date was confined to the removal of dead stumps and banksia cones neither of which constituted native vegetation. Further, and in any event, the appellant contended that even on the prosecution case all clearance undertaken fell within the exemption created by reg 5(1)(zf) of the Native Vegetation Regulations. I deal with reg 5(1)(zf) later in these reasons. For present purposes two things should be noted; first, on appeal it was accepted that reg 5(1)(zf) constituted an exemption within the meaning of s 56 of the Summary Procedure Act 1921 (SA).[3] Secondly, and consequently, the appellant bore the onus of establishing that pivots A and C had been used for cultivation, pasture or forestry within five years immediately before the proposed clearance occurred, and, the clearance subject of the charges was necessary to maintain the land so that it could continue to be used for cultivation, pasture or forestry to the extent to which it had been used for that purpose within the immediately preceding five years, and, the vegetation cleared consisted only of plants or parts of plants that had grown or regrown in the immediately preceding five years, and, the vegetation cleared had a stem diameter at the lowest point on the stem above ground level of 150 mm or less.

    [3]    See Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428.

15. The prosecution called four witnesses who attended pivots A and C in the first half of 2008 — Messrs Forbes, Whitford, McKerlie and Rathjen.

16. Angus Forbes was the operations manager for Kangarilla Drilling. He was contracted to assist in constructing an irrigation bore on section 9 area 1 which featured in the aerial photographs comprising exhibit P2. He went to the property on 28 January 2008. Referring to exhibit P2, Mr Forbes said he entered the property around the point marked N on photograph 2 of exhibit P2 and drove around the edge of pivot A in a clockwise direction to the waypoint marked BM017 which was where the bore was sunk. The appellant told him that the land was to be used for growing onions. He was asked about the vegetation he saw when he attended the property. He said:

    QDid you observe vegetation on the site when you attended there.

    ARemnants, yes.

    QIf you look at page 2 [of exhibit P2] and you look at the area, are you able to recall what areas you looked at when you went there.

    ABasically we were shown from the - basically the roadway to the bore site.

    QWhat vegetation did you observe.

    AI observed small yucca bushes and plants like that, about a metre tall. Remnants of that in a paddock.

    HER HONOUR

    QDid you say half a metre or a metre.

    AA metre.

    XN

    QAny other species of native vegetation that you observed at that time.

    ASome banksia plants.

    QWhat was the condition of the vegetation you observed.

    AFrom memory, it was - the condition was still alive I guess, but a lot of I guess stumps and materials like fresh stumps in the ground.

    QWhat sort of stumps did you observe.

    AI couldn’t quite tell what kind of stumps they came from but there were basically a lot of loose I guess vegetation in the ground.

    QDid you form a conclusion as to what had happened to that vegetation.

    AIt looked as though it had been disturbed I guess you could say.

17. He added, “[b]y chaining or some method like that”. He recalled stumps and vegetation sticking out of the ground which punctured a number of tyres in the course of his moving around the site. The observations that Mr Forbes made were, he said, consistent across the paddock including pivots A and C.

18. The work Mr Forbes undertook at the property was completed by 30 January 2008. In cross-examination Mr Forbes was shown the photograph that became exhibit D2. He could not comment on whether pivots A and C looked as shown in exhibit D2 as at the time exhibit D2 was taken. He denied that pivots A and C “were … pretty much denuded of any native vegetation at the time that … [Mr Forbes] … went to see the property”. Despite his reference to chaining in his evidence-in-chief, in cross-examination he stated that he could not say whether the paddock had been chained. He could not recall seeing any windrows, nor any evidence of burnt windrows, but there was evidence of disturbance. The paddock (area 1) was, he said, in the extremely early stages of preparation for cultivation.

19. In re-examination Mr Forbes said that the one-metre high live plants that he saw and the stumps were present in the disturbed area that he had described. The disturbed area was pivot A (circle A on exhibit P2 photograph 2). He repeated that a lot of ground preparation still needed to be done. The state of area 1 made it difficult to get his vehicles to the bore site.

20. In January 2008 Michael Whitford worked as a salesperson for South East Irrigation. He also farmed a property at Tintinara. He met the appellant for the purpose of providing a quotation for centre pivot irrigation equipment. To this end Mr Whitford said he went to the paddock in which pivots A and C were subsequently constructed in January or February of 2008. Mr Whitford entered the paddock from the same point as Mr Forbes and proceeded around pivot A and between pivots A and C to the bore. I understand his evidence to be, in effect, that he travelled the same clockwise route around pivot A to the bore as did Mr Forbes. Mr Whitford gave the following evidence:

    QCan you describe the vegetation that you observed on the site as you travelled along.

    AAs we travelled in, the vegetation to the left as we were travelling in was established vegetation, the trees, native scrub were basically in a reasonably original condition. It’s obvious that the block had been cleared however that area was substantially regrown, possibly, you know, 20 or 30 years worth of growth. On the right-hand side as we travelled around and then again on an area marked C, that area had been rolled, possibly with my experience in these types of things, humorous [sic] over the years. The vegetation that was left was regrowth mallee trees possibly one to 1.5 m of fresh regrowth. A lot of black grass which is a short grass only about 30 cm high. A lot of small Banksias again under half a metre, a lot of large tree stumps where certain trees, when scrub’s cleared have large stumps, there was quite a lot of large stump areas where there was a lot more regrowth coming from those areas so yep.

    QWas the vegetation you just described there living vegetation.

    AYes, there was all living vegetation.

21. Mr Whitford then said that the soil on pivots A and C was covered with “remnant vegetation from previous rolling; sticks, branches, leaves. A lot of Banksia cobs …”. He explained that rolling involved the dragging of a heavy roller across the ground which “squashes the native vegetation down onto the ground”. Mr Whitford said there was no difference between pivots A and C in terms of the vegetation he observed and its state.

22. Pivots A and C were in a sufficient state of readiness for the irrigation equipment to be installed, however, from a farming point of view, Mr Whitford thought that “the land would have needed to have been ploughed and the remnant vegetation organic material would have had to have been removed if it was an onion production of which this was”. Mr Whitford explained the soil preparation necessary to sow an onion crop. He said onion crops were planted on formed beds and further:

    A formed bed is where a machine would come along such as a rotary hoe and it would form a bed up about 1.5 m, maybe 1 m wide. That bed would then be 10 cm higher than the edges of that and then the plants are planted into that raised bed, so for the purpose of raising those beds you can’t have sticks and rocks and stumps and Banksia cobs, those types of things still present in the soil because they affect the ability to form the beds and to harvest that crop.

1. The centre pivot irrigation equipment for pivots A and C was installed in the period June to August 2008. Around June/July the clay pit comprised of area M was dug, and around June 2008 the eco shelter in area N was erected.

2. Mr Whitford was taken to exhibit P4 photograph 2 which featured the eco shelter built on area N and native vegetation in the foreground. He gave the following evidence:

   QSo vegetation you see in the foreground of photo 2, is that similar to what you saw in areas ‘A’ and ‘C’.

   AYes, the three bushes which are actually in the foreground are possibly a lot larger than what was on the rest of the area. They’re quite advanced plants, but the rest of the vegetation, which would be smaller than those three bushes, which is in the near view of the photo, yeh [sic], that type of vegetation.

3. Subsequently, Mr Whitford said that the three plants in the foreground of exhibit P4 photograph 2 would have been five to six years old and the rest two to three years old.

4. Mr Whitford said that between early 2008 and possibly June 2008 pivot A was ploughed mechanically once or twice. Whilst parked near pivot A he saw machinery “ranging from scarifiers to ploughs, stick rakes, harrows”. Where initially he dealt with the appellant, he subsequently dealt with Mr Rathjen who had leased pivot A from the appellant for the purpose of growing an onion crop. In June 2008 Mr Rathjen had taken on the job of clearing the site for his crop and was using rock pickers and stick rakes. He recalled speaking to Mr Rathjen at pivot A on a day that the appellant and his son were driving a tractor across pivot A using a scarifier and a set of harrows.

5. Mr Whitford said that the state of the native vegetation that was on pivot C did not change between January/February 2008 and when he completed installing the irrigation equipment in about August 2008. It remained as in exhibit P4 photograph 2 with the exception of the three plants in the foreground. In cross-examination Mr Whitford said those three plants were twice the size of the plants on pivots A and C.

6. In cross-examination Mr Whitford also said:

   … it was very obvious that areas marked A and C had been managed differently than areas outside A and C in that the areas outside A and C had obviously been cleared but had been allowed to regrow substantially - hadn’t been re-treated with any type of rolling or chaining and the areas in A and C were different areas.

7. Mr Whitford was shown exhibit D2. He observed that the photograph was a tractor bogged in sand in a paddock that was cleared. The tractor was towing a stick rake, a piece of equipment that rakes the soil pushing vegetative matter up into rows. At no time did he see lucerne, veldt grass (or possibly very little) or clover growing in pivots A and C.

8. Mr Whitford agreed that to take the paddock in which pivots A and C were located from a state fit for grazing to a state fit for irrigation cultivation required a process involving chaining, windrowing with a rake, burning, some ploughing and re-raking.

9. Gordon McKerlie was an onion grower. Mr Whitford introduced him to the appellant in 2007. At that time he was looking for a property on which to sow an onion crop as his then current tenancy on a different property that he was then farming was soon to come to an end. Early in 2008 he went to the appellant’s paddock upon which pivots A and C were being constructed. Having regard to exhibit P2 photograph 2 he said that he entered the property at a point near where the point marked N as featured in the photograph appears. He then proceeded to drive around pivot A and over to the bore. He could not recall which side of pivot A he traversed in order to reach the bore. On a later occasion he returned to the property to have a look at the work that would need to be done to bring it up to a state where an onion crop could be sown. He told the Magistrate that for an onion crop the ground has to be very clear of stones and sticks in addition to being very flat as the seed only gets planted half an inch under the ground leaving little room for error.

10. In examination-in-chief he was asked to describe the vegetation that he observed growing in pivots A and C when he attended the property in early 2008 for the first time. He said:

    AThe first occasion [I] went there it looked as though it was regrowth, a lot of regrowth staff - bits of mallees and banksias. I don’t know if anything else was there, I don’t know of anything else.

    QCan you describe the size of the mallees and the banksias you observed.

    AIt’s hard to say unless you can remember - my guess was around a metre - might have been a bit taller, a bit less.

    QCan you describe the condition of the vegetation you saw.

    AIt obviously had been knocked down somewhere along the line. What work had been done to it I don’t know but condition - it was just regrowth I suppose, yeah.

    QWas it alive.

    AI suppose some of it had to be alive, yes.

11. In examination-in-chief Mr McKerlie was asked whether he could draw any conclusion about what had happened to the vegetation that he had observed in pivots A and C. He said “it wasn’t original scrub, someone along the line had done some work to it”. Again he presumed pivot C to be similar to pivot A, though he did not really look at pivots B and C.

12. He gave evidence that he recalled that on occasions when he visited the property he saw it being developed. That is to say he saw the appellant “blade ploughing and cleaning it up, raking it”.

13. I understand Mr McKerlie not to have leased pivot A because the site required too much work in the time available to him before he wanted to sow a crop. He told the Magistrate that there was a lot of work to do. In particular:

    The regrowth stuff and the stuff that was on the ground had to be cleared up. I mean it had to be blade ploughed I suppose as it happened, and raked and burnt the rows and then clean up anything that was left after that, sticks and etc. Then it had to be clayed as well. After it [had] all been cleaned up we would have had to clay it.

14. In cross-examination Mr McKerlie stated that the first time he went to the appellant’s property was in late 2007 with Mr Whitford. He conceded that it was possible that the development of the paddock on which pivots A and C were situated commenced during 2007, but he was not aware what the paddock looked like before he came across it in late 2007.

15. Mr McKerlie was shown what became exhibit D2 and was asked whether or not he agreed that the land around the bogged tractor looked like land that had been chained, raked, burned and cleared. Looking at exhibit D2 he observed that there was nothing on the land so something had been done to it. He also said that he would not be surprised if the tractor featured in the photograph was towing a rake. It was put to him:

    QWhat I want to suggest to you Mr McKerlie is that what you observed on the land as at the start of 2008 when you went on there, I think you’ve said it was regrowth, and what I suggest i[s] that it was regrowth from having been subjected to work of the sort that I described before and as is depicted in that picture of a tractor. Are you in a position to comment on that.

    AIt’s pretty hard. I mean, it’s a possibility. I can’t answer that for sure.

    QI also suggest that whatever regrowth was there was, I think you’ve said, it was around about a metre, maybe a bit more maybe a bit less, but at any stage was there any of that regrowth that you observed that had a size at the base that was more than 6 inches, more than 150 mm.

    AThat’s a hard question to answer straight out because a lot of stuff comes from under the ground and unless you go to it and dig around you don’t know. But I didn’t see that stuff, no.

16. In re-examination the following exchange occurred:

    QI’ll just refer you to MFI D2, that’s the tractor.

    AMm-hmm.

    QDoes the soil depicted there, the soil and the vegetation, does that resemble what you observed in exhibits ‘C’ and ‘A’ when you were on the property.

    AYes.

17. In 2008 Steven Rathjen was a horticulturist who grew onions and other vegetable crops. He met the appellant in April 2008 and attended his property. The reason for doing so was to look at a site that Mr Rathjen might lease to grow onions. Having regard to exhibit P2 photograph 2, Mr Rathjen said that he attended pivot A. He could not recall if he continued further into the property. He entered the property near the point marked N in exhibit P2 photograph 2. On his first trip to the property he did not drive to where the bore was located but the bore was pointed out to him. He was asked to describe the vegetation in pivot A as at late April 2008. He said:

    AWell it was obviously pretty rough country but it appeared to have been knocked down or … [chained] … or something but it’s certainly still pretty rough to get ready for what we wanted to do.

    QHow long ago had it been knocked down and chained.

    ALook I wouldn’t like to put a timeframe on that. I could just see that it had obviously been knocked down but there was still a reasonable amount of growth there, one and a half metres I suppose, on average. Would have been odd trees there, higher and some areas where it was lower.

    QWhat sort of species did you see.

    APredominantly banksias, probably a little bit of yaccas and some small mallee. That would have been the three main ones.

18. Mr Rathjen ventured the opinion that the banksias were probably three to four inch stumps, maybe a little larger. He admitted not taking much notice of the thickness of the stems. The mallee, he guessed, were four or five inches in diameter and a couple of metres high. He added that it was noticeable that something had been over the vegetation and had knocked it down. He further added that “[t]o be honest I didn’t take a lot of notice of heights or measuring them” as he was trying to get his mind around the work that needed to be done in order to bring the pivot up to a standard where a crop could be sown. As to the work to be done Mr Rathjen said that pivot A needed to be ripped or bladed and raked up and burned. Then the banksia cones needed to be removed.

19. After his initial visit Mr Rathjen went to the property over the next two or three weeks to get pivot A ready for a crop. Having said that, he and his employees did not work on the pivot until after the pivot was in place which was in early July. By that time the bulk of the land had been cleared but not enough for him to use his equipment to sow an onion crop. He made plain that the vegetation he saw in April 2008 had been cleared and raked and burned by July. He said he saw some of the clearing being done but spent most of his time at other sites where they were growing onions. He saw a bit of blade ploughing and a bit of raking on pivot A. He said a hay rake and a potato harvester were ineffectual in removing banksia cones. Ultimately, a stone harvester was used. He said that between April and July 2008 he also saw burning. In July he moved onto the property and then did a reasonable amount of preparatory work.

20. Ultimately, Mr Rathjen leased pivot A from the appellant. In late August 2008 pivot A was planted. The crop was harvested in March 2009.

21. Mr Rathjen was asked to describe the vegetation on pivot C. He said it was very similar to pivot A but not quite as thick. He said there were areas where the vegetation was probably smaller and a little bit sandier. The plant species spread over the whole of pivot C were probably similar to those found on pivot A; banksias, mallee and yaccas but predominantly banksias. Some of the vegetation was alive but a lot of it had been broken off and was dead. Some had reshot and regrown.

22. Mr Rathjen was asked about the condition of the vegetation on pivots A and C. He said:

    AYeah, much the same. Probably more alive on the pivot A area because there tended to be a bit more sandy area in pivot C.

    QThen you described the vegetation on area C - can you just describe the size of that vegetation.

    AVery similar to A, a metre, metre and a half - an odd mallee that may have been up to 2 m. To be honest I wasn’t looking at the size or measurement of them but that’s just a visual - guess.

    QThe diameters of the species you observed.

    AOnce again the mallee, anywhere from a couple of inches to four I suppose. Like I said I didn’t take any real notice of it other than the rough height.

    QIn the second half of 2008 did you observe anything change in relation to the vegetation on area C.

    AEarly 2009 I think Richard [the appellant] started clearing or blading it.

    QSo that was the first change you saw.

    AThe first change I saw in area C.

23. Mr Rathjen then described a blade plough being used to cut underneath the roots and loosen them ready for raking. Stick rakes and harrows were then used. The bulk of the work was done by the appellant. When it came to using a stone harvester Mr Rathjen was involved. That was around July 2009. In March or April 2009 vegetation was burnt on pivot C. This occurred after it had been raked into rows.

24. The clay pit marked M on exhibit P2 was dug in July 2008. Mr Rathjen described how they were trying to clear pivot A as quickly as possible so that claying could take effect.

25. The clay dug from the pit at point J on exhibit P2 was used to spread over pivot C. That pit was probably dug around May 2009. Mr Rathjen described the work on pivot C in January/February 2009. The first crop was planted on pivot C in mid-August 2009. It was harvested around March 2010. Mr Rathjen was taken back to the state of the vegetation on pivot A upon his first coming into contact with the appellant. He said:

    It was obviously [sic] something had happened to it because it wasn’t undisturbed vegetation because I would have been concerned if it had to be cleared, knowing some of the native veg situation but Richard seemed to assure me that it was all okay. And then when I saw the bore in there I thought well, it must be.

26. Returning to pivots A and C Mr Rathjen said that “from memory” there were areas of sandy rises which tended to be banksias and pockets of mallee. Mallee was not to be found all over pivot A. Some of the mallee were possibly two metres high, but he did not take a lot of notice and as far as the thickness of the stem went he did not take particular notice at all.

27. In cross-examination it was put to him that there was a considerable amount of work done during 2007 including chaining, raking, burning and ploughing of pivots A and C. Mr Rathjen said he could not say that the two pivots had been ploughed previously, but vegetation had clearly been disturbed.

28. Mr Rathjen was shown exhibit D2. He said that pivot A did not look like the land featured in exhibit D2 when he moved in. In re-examination he was taken back to exhibit D2. Exhibit D2 was taken around 10 or 12 months earlier than when he moved onto pivot A. There seemed to be more vegetation on pivot A when he moved in. Whether it had regrown or broken down was hard for him to say because it had all occurred before he was there and there was nothing in exhibit D2 that allowed him to say that it was an image of pivot A.

29. Pausing here:

    ·According to Mr Forbes, as at 28 January 2008, there was remnant vegetation on pivots A and C consisting of small yacca bushes and other plants about a metre tall. The vegetation was alive. There were also fresh stumps and a lot of loose vegetation on the ground. The vegetation had been disturbed.

    ·According to Mr Whitford, as at January/February 2008 pivots A and C had been rolled. The remaining vegetation was regrowth mallee trees, one to one and a half metres high. There was also a lot of black grass about 30 cm high, a lot of banksias under half a metre and a lot of large tree stumps. All of the vegetation was living. Further, the ground was covered with remnant vegetation from previous rolling. With the exception of the three bushes in the foreground of exhibit P4 photograph 2, the vegetation on pivots A and C was like that featured in the photograph. The vegetation in photograph 2, again with the exception of the three bushes in the foreground, was two to three years old. The vegetation on pivot A as described was cleared between January/February and June 2008.

    ·According to Mr McKerlie, early in 2008 pivot A contained a lot of regrowth consisting of mallee and banksias around a metre in height. He assumed pivot C was similar. However, he also said that pivots A and C resembled the land featured in exhibit D2.

    ·According to Mr Rathjen, in April 2008 pivot A contained banksias and probably some yaccas and mallee that had been knocked down. By July 2008 the vegetation he saw had been cleared. The vegetation on pivot C was similar to what he saw on pivot A, but not as dense. A lot of the vegetation was broken off and dead, but some was alive. Some had reshot.

30. The next witness for the prosecution was Mark Storry, a spatial information officer with the Department of Environment, Water and Natural Resources. Mr Storry possessed expertise in the use and interpretation of satellite and aerial imagery relative to assessing the quality and quantity of native vegetation in rural South Australia. He compiled exhibit P3 from a mixture of aerial photographs in the possession of the Department and satellite images commercially available. Exhibit P3 comprised a series of photographs including section 9 of the Hundred of Shaugh being the paddock in which pivots A and C were constructed.

31. Mr Storry gave evidence that he and others visited the appellant’s property in May 2011 after seeing the pivot circles in the aerial and satellite images. They were concerned that the pivots had been constructed in an area that had previously been covered by native vegetation.

32. During the course of visiting the property, using GPS technology, Mr Storry drove the route represented by the red lines featured on exhibit P2 tracking his movement in order to determine the extent of the pivots. They were each approximately 40 hectares in area. Photographs were also taken from the waypoints marked on exhibit P2.

33. By May 2011 pivots A and C were totally cleared with no visible vegetation.

34. Mr Storry was taken to exhibit P3. Below I have set out his evidence in tabular form regarding the state of the vegetation on area 1 as visible in photographs 19-23 contained in exhibit P3.

Photograph	Evidence provided
Exhibit P3 photograph 19 (taken 9 March 2006)	The vegetation is a mixture of relatively intact vegetation being the darker strange shape, darker areas with a surrounding vegetative cover which is typical of those dark areas often avoided by property owners because they are either in raised areas or rocky areas. The rest of it had some sort of clearance. The pivots themselves cannot be seen. The lines that can be seen are typical of mechanical tracks of a clearance regime, where typically a property owner may trail a device that furrows or knocks down a little bit of vegetation, knocks it over causing those tracks to occur.
Exhibit P3 photograph 20 (taken 17 February 2008)	Most of it is relatively similar except that in the left-hand portion of that square there has been some more concentrated effort at clearance (approximate to pivots A and C), so it does appear to be less significant as far as the vegetation occurs there. No established centre pivots and irrigation are visible in the image.
Exhibit P3 photograph 21 (taken 12 January 2009)	On the 2009 satellite image pivot A is identified as now being established and contains an established fully irrigated mature crop. Mr Storry could say the crop was irrigated because of the contrast between the pivot area and the surrounding area. If the vegetation were naturally irrigated there would be consistency in appearance between the vegetation within the pivot and that outside.
Exhibit P3 photograph 22 (taken 6 January 2010)	The light coloured circle being what we described as pivot A, north of that another circle with different colourations within the circle as pivot C and then further north, roughly in the centre of the image there are two circle features, one darker one being pivot D and the one next to it slightly to the left as what is described as pivot E. Pivot A, by contrast to how it appeared on exhibit P3 photograph 21, is now lighter in colour indicating that there is no longer a mature irrigated crop in place. A crop has been sown on pivot C, hence its darker colour.
Exhibit P3 photograph 23 (taken 29 March 2011)	Pivots A and C are fully cleared or developed cropping areas. Area B does seem to have some vegetative features in it that are not typical with an irrigated crop because of the nature of the pattern there, a linear pattern.

1. Mr Storry considered that the aerial and satellite imagery indicated that prior to 2008 a fairly constant level of regrowth had been allowed to occur. Since 2006 the land had been subject to a number of “clearance type of events”.

2. In cross-examination it was put to Mr Storry that between June 2004 and the date of the image comprised of exhibit P3 photograph 18 (taken 23 January 2005), section 9 had been chained. He agreed that there was some evidence of clearance. Photograph 19 also showed evidence of clearance but also recovery. He agreed further that in the period between the taking of exhibit P3 photograph 19 and exhibit P3 photograph 20 some clearance had occurred in area 1 but he was not prepared to accept that it was “particularly aggressive”. He said:

   QLook, quite so, compared to … what it looked like as a pivot and I accept that, but what I say is that there’s a great deal of work done during 2007 and particularly the middle of 2007, on that area of the soil that I’ve described. Do you take issue with that.

   AExcept to just say that if perhaps in 2007 there was some clearance done in preparation for areas ‘A’ and ‘C’, or pivots ‘A’ and ‘C’, that may then suggest then that 12 months later, there had been some recovery of that vegetation regrowth in …

   QI don’t want to mislead you, I say it took place in around about the middle of 2007, so less than 12 months, but nonetheless, you know, a period of some months separated the two.

   AExcept I said in my evidence that as of 2008 I don’t see on this imagery that any centre pivot irrigators have been established. I accept that there is perhaps some preparatory work around that area and some extra clearance.

   QAnd plainly, I mean the circle we can see is almost exactly how it …

   AAgain, that’s fair enough. There’s obviously some preparatory, preparation activity for the creation of those pivots, yes, that’s correct.

3. In addition, Mr Storry agreed that exhibit P3 photograph 20 showed that the circumference of pivot A had been cleared as had areas of what became pivot C, but within each there was discernible remnant vegetation. He said:

   QWe went through the work that I put to you, my client and his sons were doing on the property. What I want to show you now is a photograph, could the witness be shown MFI D2 please. … There’s a picture of a tractor bogged and what we say is that the date on which the camera took this photograph was captured and is displayed on each of the photograph as the 31 July 2007. What I say is that that was a photo taken at that time, somewhere on or around areas A or C. Would you have any comment about or would you have any reason to suggest that was incorrect.

   ANo, except I couldn’t also say it is correct.

   QNo, I accept that.

   AI can’t identify where exactly that would be but I, except to say that its plausible yes.

4. In re-examination Mr Storry was taken again to exhibit P3 photograph 20. He said that a comparison of the photograph with his observations upon visiting the property in 2011 indicated that the vegetation outside pivots A and C had experienced regrowth.

5. The final witness for the prosecution was Graham Carpenter, a scientific officer with the Department of the Environment, Water and Natural Resources. In that role Mr Carpenter had developed expertise in the analysis of aerial photography in assessing native vegetation clearances. He said:

   Clearance activities, you can tell if an area is being cleared because it shows up paler and especially in this area because the soil is predominantly a white sand so when you look at the aerial photograph if it shows up as being really white then you’re actually looking at the sand and that’s the reason why it shows up much paler and freshly cleared areas are particularly white and start off like that. Also you can tell if an area’s been recently cleared, if there is [sic] parallel lines, concentric lines and quite often they may be 50 m apart and that reflects the kind of clearance machinery that’s used. Quite often they use two tractors with a piece of heavy chain that’s pulled between the two tractors and then as that drives along it pulls down a little the vegetation between the tractors.

   … and there’s other kinds of clearance activities which aren’t quite so obvious but maybe ploughing and that sort of thing and again they show up as parallel concentric linear features.

6. Mr Carpenter was asked about the ability of native vegetation to regenerate. He said that native vegetation had evolved to regenerate very well after fire. Mallee would come back from stumps, other species regenerate from seeds dropped after a fire and others again shoot from trunks. Chaining would pull vegetation over and roots out but usually enough roots and seeds would be left to allow for regrowth. The same may be said for ploughing. Thus recovery of native vegetation depended upon the extent to which clearance activity was subsequently followed up. Regenerating land will appear patchy in an aerial photograph.

7. The prosecutor took Mr Carpenter through many of the photographs contained in exhibit P3. It is unnecessary to summarise the entirety of that evidence. In relation to exhibit P3 photographs 16 (2002), 17 (2003) and 18 (2005) and area 1, Mr Carpenter was of the opinion that regeneration of native vegetation after clearance activity in the 1990s was evident. With respect to photograph 18 he added that clearance activity had occurred save for the central part of area 1. With respect to photographs 19-23 and 26 Mr Carpenter’s evidence was as is set out in the table below.

Photograph	Evidence provided
Exhibit P3 photograph 19 (taken 9 March 2006)	Areas 1 and 2 look like they are regenerating. In addition there does not appear to have been any further clearance activity on area 1. The central part of area 1 was now quite a lot grainier indicating regrowth and no further clearance. The central part of area 1 would partially overlap pivots A and C. Photographs 1-19 show no evidence of irrigated cultivation.
Exhibit P3 photograph 20 (taken 17 February 2008)	In photograph 20 the clearance within pivots A and C is of similar intensity to that in area 1 outside the area of the pivots save for the outline of pivot A which is much paler. The central part and southern end of area 1 forming “like a rectangular area” is a lot paler. Outside of that area and within area 1 there has been a bit more clearance activity “because there’s some areas that are now showing up paler”. The parallel features indicated some sort of machinery had been used. There are still grainy areas within pivots A and C “which I would say could still be native vegetation”. Area 2 does not look like it has had anything further done to it.
Exhibit P3 photograph 21 (taken 12 January 2009)	Photograph 21 is a satellite photograph. With respect to satellite images, Mr Carpenter said that such images were not as good (as aerial photographs) in that it was harder to pick up smaller features. The dark circle in area 1 (pivot A) “would be consistent with a centre pivot irrigation”. The centre looking dark is indicative of irrigation and the presence of a crop. The photograph shows no sign of pivot C being established as at the time of its taking.
Exhibit P3 photograph 22 (taken 6 January 2010)	Pivot C is now established and looks as though “it’s in the process of irrigating a crop”. Pivot A is a bit paler “typical of that one being rested”.
Exhibit P3 photograph 23 (taken 29 March 2011)	Pivots A and C have been used and pivot B is in the process of being cleared. Pivots A and C “show up as being fairly uniform orange looking and another common feature of this area is as land holders use clay to mix into the white sandy soil and that improves its ability to hold nutrients and water so they would have extracted clay quite possibly from the around, pivots A and C and have dug that clay up and they would have driven around the circles and ploughed the clay in”.
Exhibit P3 photograph 26 (taken 8 February 2013)	Contrasting photographs 20 and 26 indicates that in the intervening period pivots B and C were established. Pivots A and C do not appear to contain any green regeneration. Pivot B contains “some sort of vegetation or vegetation debris left over from clearing activities”. Beyond pivots A and C the dark grainy features are consistent with vegetation regenerating indicating that the clearance that took place in that area was not sufficient to prevent regeneration.

1. Importantly, Mr Carpenter said:

   Certainly if there hadn’t been extra clearance activity that occurred within A and C subsequent to this 2008 image [exhibit P3 photograph 20], then I would expect that the vegetation would have regenerated in the same way as it has outside of areas A and C. So to me that would say that there’s been some additional clearance activity that’s occurred after the 2008 aerial photo which is very much prevented or restricted in the amount of vegetation that’s regenerated within areas A and C and they would be things like ploughing clay into the ground and undertaking irrigated use of those centre pivot areas or various things that go with that including use of fertilisers and spraying for weeds and that kind of thing.

2. He added:

   … machinery particularly you would have to drive around that area with ploughs, you’d probably have to flatten the area out a bit so that the pivot operated efficiently so there’s various extra activity. It also needs to remove as much of the woody bits of native vegetation as possible from those areas, things like mallee roots which can stay in the ground for a long time and various woody sticks from the mallee trees and bits of banksia cones and all sort of other vegetation debris. To operate the pivots efficiently you would need to have all that material removed.

3. Mr Carpenter was of the opinion that whilst clearance activity was undertaken prior to 2008, that activity permitted regrowth. With the establishment of pivots A and C and the related different land use, regrowth was prevented on the area subject of the pivots. Up until the pivots were established the clearance activity on area 1 as evident in the photographs contained in exhibit P3 was consistent with the use of that land being for grazing and cropping.

4. On 10 and 11 May 2011 Mr Carpenter visited section 9 and pivots A and C. The pivots were completely bare of vegetation. Exhibit P14 was prepared by Mr Carpenter. It lists the various plant species he observed growing on area 1. Those species in the list marked by an asterisk are not native vegetation.

5. Mr Carpenter was shown exhibit D2. The following exchange then took place:

   QBased on what you’ve said about vegetation, size of vegetation and type of vegetation that would have been present in areas A and C, do you think this photograph [exhibit D2] could have been taken in July 2007 areas A and C.

   AThe photo shows a tractor looks like it’s partially bogged and around the tractor there’s some piles of what looks like sand and then beyond the tractor looks relatively bare and I’d be surprised if it goes from a bare state like that back to what I saw in 2011, within three years.

   HER HONOUR

   QIsn’t that four years later. If that tractor was like that in that paddock in July 2007, is it possible that the revegetation around the shed could have occurred by May 2011. So it’s going from this to that small vegetation in four years.

   AYes certainly, that’s capable of doing that, yes.

   XN

   QBut the larger vegetation that you’ve described as being five to seven years old, you wouldn’t expect that that could be growth that size here through the time of four years.

   ANo because the older vegetation of banksia bushes have got a lot more flowers on them so I think, you know, five to seven years is pretty close.

6. Looking at exhibit P2 photograph 2, Mr Carpenter considered that pivots A and C had been subject to clearance activity but that it was likely to have some sort of native vegetation regenerating. The vegetation visible “could be living and it could be chopped up debris, you can’t tell from just one single aerial whether it’s actually living or not”.

7. In cross-examination Mr Carpenter agreed that the regrowth that was about three years old that he saw in 2011 was located within area 1 incorporating pivots A and C, beyond that area the growth was between five and seven years old. The rate of regrowth he said was affected by soil quality and rainfall. Within three years native vegetation in the area in which area 1 was located could grow to between half a metre and a metre.

8. Mr Carpenter disagreed with the proposition that the regrowth outside of pivots A and C could have occurred within four years after that area was chained in 2007. He considered four years unlikely because of the number of flowers visible on the banksia bushes he saw in 2011. Mr Carpenter did not possess the expertise necessary to venture an opinion as to whether regrowth may have been faster due to the use of fertilisers. He agreed that fertiliser would probably make the plants grow taller but doubted that they would not likely affect when the plants flowered.

9. Pausing here; a comparison of exhibit P3 photographs 19 and 20 demonstrates that between 9 March 2006 and 17 February 2008 clearance activity was undertaken across area 1 and more intensely in the rectangular area within area 1 in which pivots A and C were ultimately established. Mr Storry’s and Mr Carpenter’s evidence is consistent with this. By January 2009 pivot A holds an established irrigated crop consistent with Mr Rathjen’s evidence. Whilst Mr Carpenter indicates that the grainy areas within pivot A and upon which pivot C was constructed could still be native vegetation, he does not say it must be. Neither he nor Mr Storry were asked if the grainy areas in the rectangular area featured on area 1 in exhibit P3 photograph 20 could be explained by the presence of dead vegetation or leaf litter lying on the ground. Mr Storry’s evidence of there being “some preparatory work” as of 17 February 2008 on pivots A and C does not exclude the presence of native vegetation on area 1 where pivots A and C are established as at that date.

10. I also understand Mr Storry’s evidence regarding exhibit D2 to be that he could not exclude parts of pivot A or C as being denuded of native vegetation as shown in exhibit D2 as at the date of that photograph, but from his study of the aerial photographs he cannot determine what particular areas of pivots A or C were so denuded. His answer leaves open the possibility of regrowth explaining why he cannot determine from exhibit P3 where the area seen in exhibit D2 is to be located on area 1.

11. Mr Carpenter could not exclude that the land featured in exhibit D2 could not sporn regrowth as he saw in 2011 within area 1 and pivots A and C.

12. Mr Carpenter’s evidence is important in one further respect. It indicates the extent of clearance activity undertaken between 2007 and 2011 on pivots A and C. That activity has resulted in the total removal of native vegetation from pivots A and C.

13. Returning momentarily to the evidence of Messrs Forbes, Whitford, McKerlie and Rathjen, and having regard to the appearance of area 1 in exhibits P2 and P3 (photograph 20), it seems plain that there are some parts of pivots A and C that have been significantly cleared, the circumference of pivot A, for example. The shelter belt bordering pivots A and C also appears to have a far lesser density of vegetation than in exhibit P3 photograph 19. A comparison of exhibit P3 photograph 19 and 20 suggests that it is reasonably possible that clearance activity since March 2006 and before February 2008 has been extensive on some parts of area 1. Similarly, a comparison of exhibit P3 photographs 19 and 20 suggests that such clearance activity as has occurred is not uniform across area 1 nor across those parts of area 1 that became pivots A and C. However, the evidence of Messrs Forbes, Whitford and Rathjen largely suggests uniformity. Looking at exhibit P3 photograph 20, a uniform density of native vegetation across the area that became pivots A and C cannot be accepted. This may not matter in relation to counts 1 and 2 as it may be enough to prove beyond reasonable doubt that somewhere on pivots A and C there was native vegetation that was cleared. However, bearing in mind that portion of area 1 that can be seen in exhibit D2, Mr McKerlie’s evidence about that exhibit, and, indeed, Mr Storry’s, exhibit D2 may feature a part of pivot A or C on area 1 that had been subject to greater clearance activity than the balance of area 1. It will be necessary to come back to this.

14. It was unfortunate that neither Mr Storry nor Mr Carpenter was asked whether windrows comprised of leaf litter and severed native vegetation could be distinguished from rows of vegetation. Further, no question was asked as to the appearance of tilled land from the air where the plough used pierced the ground at a greater depth than normal. How would a windrow appear in an aerial photograph where a deep cutting plough was used?

15. A number of facts were agreed and reduced to a Statement of Agreed Facts, including that at no relevant time had the Native Vegetation Council given the appellant consent to clear vegetation from the areas subject of the charges.

16. The appellant gave evidence. He commenced giving general evidence regarding the importance of the use of phosphates in the area to improving yields. Due to work done by the CSIRO on the use of trace elements, the region in which Coolami was located became a prime lucerne growing district.

17. The appellant first took up Coolami in 1979. He did not begin to develop it in earnest until the mid-1980s around the time that age resistant lucerne became available. He gave evidence of the development and use that he and his family had made of the area on which ultimately pivots A and C were constructed. In 1988 area 1 and area 2, the paddock immediately adjacent, were chained and a “fair bit” was back chained. Back chaining meant that the vegetation was more likely to be snapped off rather than merely being bent over. Back chaining also meant that subsequent burning, which was done about six to 12 months later, was more effective. Thereafter the areas were ploughed, either chained or harrowed to remove stumps, raked and the resultant rows burnt before being seeded with a cover crop of either veldt grass, clovers, annual legumes or lucerne. In the early 1990s areas 1 and 2 were made available for agistment in addition to the appellant running some of his own stock on those paddocks.

18. The appellant confirmed that the darker patches in areas 1 and 2 in the photographs contained in exhibit P3 were shelter belts, being areas of native vegetation left untouched to minimise erosion and to shelter stock from, amongst other things, the south west/westerly winds.

19. In the 15 years from 1992 the appellant ran less livestock on areas 1 and 2. To keep the native vegetation down he chained those areas every two to five years. He said that from about five years after 1989 veldt grass would have been the dominant product.

20. It was in the early 1990s with the greater appreciation of the quality of bore water that irrigated vegetable cultivation first commenced in the district. Water also allowed for intensification of farming. Consequently, the appellant applied for additional water licences in the late 1990s and, in time he sought licences that allowed him to irrigate areas 1 and 2 and establish pivots (see exhibits D5, D6 and D7). Initially, the obtaining of water licences was conditioned upon acceptance of the appellant’s plans for irrigation development. In the case of the water licence 20049, which the appellant was granted on 4 June 2004 (exhibit D9), the relevant related development contained in the irrigation and development plan (exhibit D8) was to occur over a two-year period with the construction of pivots A and C in 2005 and the commencement of watering those pivots in October 2005.

1. The appellant agreed that the bore located between pivots A and C was sunk late in January 2008 after he received approval from the Department of Water, Land and Biodiversity Conservation (see exhibit D11).

2. The appellant’s evidence regarding the critical photographs contained in exhibit P3 was as set out in the table below.

Photograph	Evidence provided
Exhibit P3 photograph 19 (taken 9 March 2006)	In 2006 James Vickery worked the property. During 2006 or early 2007 area 1, which subsequently contained pivots 1 and 2, was chained several times by Samuel and James. The appellant could not recall if during 2007 some burning was done, but a mixture of raking, ploughing and re-raking occurred. Exhibit D3 is a photograph of the rake used. In cross-examination the appellant agreed that this photograph showed a lot of regrowth. He repeated this and added that underlying the regrowth was grass and sand and improved pasture. The appellant agreed that despite clearance efforts there had been left diverse vegetative stock sufficient to support the visible regrowth.
Exhibit D2 (taken 31 July 2007)	The appellant was shown exhibit D2. He said the tractor was bogged in a position roughly where pivots A and C met. The date of the photograph as featured on the exhibit, he said, would be accurate (31 July 2007). Looking at exhibit D2, the arc of trees that can be seen to the right of the oncoming tractor is, the appellant said, likely the trees lining the southern side of the road running east west at the southern end of area 1. That is to say those trees are likely on the property of the appellant’s southern neighbour. The area in the photograph shows a large area of dead and dry vegetation. Windrows can be seen just in front of the bogged tractor. To the left of the oncoming tractor (the driver’s left) a windrow of dead material can be seen. It may be that the oncoming tractor is at that point between pivots A and C where the shelter belt was. In 2007 Samuel raked the whole area. He was concentrating on making sure the Vickerys got the maximum vegetation removal on the areas that would ultimately become pivots A and C. After Samuel had finished, because of the several rakings and burnings there was a much reduced amount of dry litter left on top of the soil. The area on which pivots A and C were constructed was very white. The work done would have meant a high number of banksias would have pulled out of the ground.
Exhibit P3 photograph 20 (taken 17 February 2008)	In 2008 James Vickery worked the property. In the process of establishing pivots A and C a shelter belt was removed. The circle featured in this photograph (the outer perimeter of pivot A) was done using a disc plough. The ploughing was done sometime between the summer and the taking of the photograph. The blotchiness is the result of the workings and the different amount of organic matter left on top of the soil. The top left photograph on page 1 of exhibit P12 could resemble the area toward the middle of 2008. There is some new growth in the foreground about 20 cm high. Looking at exhibit P12 despite the use of the stone picker there would still be banksia cones in the soil. In cross-examination the appellant repeated that the patchiness was leaf litter and dead vegetative matter. Samuel had started disc ploughing by this time. He disagreed with the proposition that the dark areas within pivots A and C were live vegetation. The appellant agreed that there was a marked difference in appearance between photographs 19 and 20. The intensity of blotchiness in the photograph reflected the extent to which the relevant area had been worked. The inside of pivot A had been worked several times.

1. In cross-examination the appellant conceded that the clearance activities undertaken in the late 1980s and early 1990s did not denude the property of native vegetation. Chaining, he explained, can simply break a plant off rather than uproot it. Mallee stumps would have been left behind; some alive, some dead.

2. He agreed that between 1988 and 2006 area 1 was used for grazing livestock. During this time he sowed the area with lucerne or veldt grass to improve grazing. Among those crops native vegetation did regrow necessitating further chaining.

3. The appellant agreed that in April 2008 when Mr Rathjen attended the site there was still work to be done on pivot A. Dead mallee stumps had to be removed and there were banksias that had to be reduced. The appellant did not accept that there were living banksia plants spread across the pivot of about half a metre in height. He disagreed that there was regrowth mallee still viable of around a metre to a metre and a half in height. He agreed there were some large mallee stumps on the area, but he did not consider them to have been viable. The appellant considered that virtually nothing on pivots A and C was alive.

4. The appellant agreed that as at April 2008 there were banksia cones lying around. He explained that much of the regrowth in pivots A and C prior to 2007 were banksias. He estimated that 10 to 20 per cent of the cones that were present in 2007 were still on some areas of A and C in 2008. The appellant disagreed with the suggestion that exhibit P4 photograph 2 was, with the exception of the three plants in the foreground, representative of the coverage on pivot A in April 2008. He said the photograph was of the state of the area three years later with a lot of newly germinated banksia bushes.

5. The appellant agreed with Mr Rathjen that he would clean up pivot A so that onions could be grown. That meant removing large mallee stumps and banksia cones. A disc plough and a rake were used. He did not think that any of the stumps were alive. A rock picker was also used to get at the cones. The raking that took place in 2008 was shallower than that undertaken in 2007. In 2007 the rake was used to form windrows of “stumps, sticks, Banksia cobs, Banksia, all sorts of things”. In 2008 the primary purpose was to rake up litter and stumps.

6. The appellant agreed that in mid-2008 there would have been some mallee stumps of around three to four inches in diameter extracted. There could have been dead mallee stumps of around four to five inches in diameter. He repeated that there were no live mallee stumps.

7. Cross-examination returned to the work done in 2007. The following interchange occurred:

   QSo you, so I understand it you describing in 2006 you chained the whole area, and then in 2007 you focussed more upon areas A and C and so you then raked that area at least twice, ploughed some of the areas, gathered together the vegetation, as much vegetation as you could and burnt it, that’s right, isn’t it.

   AYes, I think that that additional chaining, that may have been actually been in, itself been in 2007, prior to the raking, ploughing, raking again etcetera.

   QAnd so the result of that was that there was no more vegetation, no living vegetation left by the close of 2007.

   AThat -

   QIn areas A and C.

   AThat’s correct, yes.

   QAll the vegetation that was remaining had been gathered and burnt, all the living vegetation had been gathered and burnt.

   AYes, there were some large dead stumps left in the ground but, as per that photograph that was of the tractor bogged, there was no living vegetation left.

   QLooking at MFI #D2, that’s the photograph you are referring to with the tractor bogged in the ground, and you’re saying that’s how areas A and C looked by the close of 2007.

   AWell they actually ended up barer than that because the area was raked again after, after this, so I think this photograph was late July or something like that, yeah the 31st of July so I think that might be when Sam raked it, while he was raking for the first time, and you can see in the background there in front of the radiator of the bogged tractor the, actually see a wind row there about one and half to two metres high, and similarly behind the second tractor that’s coming towards the bogged tractor you can see a large wind row there as well.

8. The appellant did not dispute meeting Mr Whitford on the property in January/February 2008, nor dealing with Mr McKerlie and Mr Rathjen. As at April 2008, when Mr Rathjen attended pivot A, banksia cones remained an issue. Other than Mr Rathjen taking steps to remove the cones, all clearance work had been completed. The prosecutor then put the prosecution case to the appellant:

   QThe prosecution case is that by February 2008 you hadn’t finished the clearance of living native vegetation from areas [A] and [C] and the other smaller areas, that you hadn’t finished those clearance activities by the end of 2007. I suggest to you that while you had used a chain to clear the vegetation and drawn that between two tractors that little bits of vegetation the smaller section of vegetation wouldn’t it in effect that it would have snapped off, the healthier vegetation and the Mallee vegetation still that left sufficient root stock for it to re-sprout and to re-sprout vigorously from the roots so two aspects there that some vegetation would have been missed and that some vegetation would have been snapped off but leaving sufficient roots to regrow, what do you say to that.

   AI think we’ve covered all this well and truly before. So yes chaining - the operation of chaining is largely how you describe however all those subsequent operations of raking both deep and shallow and ploughing completely remove with the exception of some very large stumps which were later removed with a glade plough which we hired there was no living plants left there. All the fine root matter is predominantly pulled out of the ground there is no living root matter left. You do end up with some, in some areas where there was a large area of trash you end up with colouration of the sand which shows up in that photograph in areas where there was denser litter but that is dead Banksia leaves. So that the plant has been completely pulled out of the ground it’s dead, it’s been raked up you know 90 plus per cent of the plant in some cases virtually 100 per cent has been pushed in to wind rows and burnt but there is still organic matter left. Which in itself is desirable and … sands are inherently infertile and that’s probably what we then spent 50 years trying to do is build up fertility and organic matter to pallor that, but that’s the by product of the process. There were no living plants left there. By mid 2008 there were some odd newly germinated plants very sparsely the case but at the end of 2007 the area was devoid of group matter capable of regrowing or live vegetation.

9. The appellant was then taken to exhibit P2 photograph 2. It was put to him that the grainy patches within pivots A and C consisted of living viable native vegetation. He said:

   ANo that’s exactly the phenomenon that I am talking about before. The difference between the white and the blotchy stuff is organic matter left in the soil, it’s leaf matter that is coloured the soil and in some cases there is still much, a big variation in the leaf litter that’s left there because the rake wheels at their tips have gaps of I suppose 120mms possibly 100 to 120mms if the leaf off a Banksia plant for example has fallen off the twig to which it was originally attached it gets left behind. And because of the nature, you can see the blotchiness of the areas outside of A and C because there’s been areas where there’s been predominantly grass growing for the last 25 years and no native plants versus other areas where there’s 3 or 4 native plants all close to one another that what you’re seeing in A and C is the residual effect of that is the leaf matter that’s much, that is very uneven how it’s left behind and deposited due to the original very uneven distribution of the original regrowth vegetation. It entirely looks like what you would expect it to look like once you’ve removed all the plants. And if you look at the tractor photograph again you can actually see it there above the big tractor wheel behind the tractor and heading over to where the other tractor is coming to un bog it you can see colouration significant variation and colourations as well so the heaps of sand by the bog tractor it’s white and there’s other bits where it’s dark brown and that dark brown isn’t growing plants that’s leaf matter, it’s organic matter. It’s entirely consistent with the photograph.

10. The appellant said that the shelter belts straddling the point where the boundaries of pivots A and C meet were chained. Those belts had much less low level ground coverage hence they showed up darker in the aerial photographs. The appellant suggested that the bogged tractor visible in exhibit D2 was just inside pivot C and that the litter to be seen around the tractor was what could be seen on exhibit P2 photograph 2.

11. The prosecutor then took the appellant to the northernmost part of pivot C in and around waypoint IC007 as marked on exhibit P2 photograph 2. He put to the appellant that within the pivot in that area could be seen knotted trees. The terrain looks physically different to that below it in pivot C. The appellant conceded that it did not look like the area had been raked.

12. Whilst all of area 1 was chained in 2007 only those areas subject of pivots A and C were subjected to intensive treatment. The prosecutor suggested that the parallel lines to be seen on pivot C as featured in exhibit P2 photograph 2 between waypoint IC007 and the letter C were rows of viable living native vegetation. The appellant denied this. What is visible, he said, are windrows of different intensity reflecting the variability in coverage. He maintained the blotches were remnant organic matter.

13. The prosecutor then asked a series of questions comparing areas of blotchiness across area 1 visible in exhibit P3 photograph 20. The point of the questions was that the comparative exercise suggested that as at the time photograph 20 was taken the blotchiness was indicative of viable native vegetation. Within pivots A and C the appellant maintained that the blotchiness was dead vegetation litter. Variation across area 1 turned on the extent to which the land had been worked and the related intensity of the vegetation.

14. The appellant also sounded a note of caution about comparing photographs in an effort to determine rates of regrowth. His point was that one had to be cautious where superphosphates had been used. Further, one had to be wary of whether stock had been run on any particular area or it had been put under cultivation where other areas were not stocked or cultivated.

15. The appellant was taken back to exhibit P3 photograph 20 and agreed that in April or May 2008 area 1 was blade ploughed, which had the consequence of pulling up large dead mallee stumps, then disc ploughed. The stumps were then raked into rows and burned. At this time there were no banksias or yaccas left. Mr Rathjen then used the stone picker to remove banksia cones. He conceded that ploughing was never perfect, there would always be “bits” left behind that from early winter would start to emerge. There was, he said, by winter 2008 some small yaccas regrowing on pivots A and C. There could have been other re-growth, but he did not see it.

16. In 2009 attention was turned to pivot C. The appellant could not recall much growing on pivot C at all, but “logic would say there would have to be some germination”. Pivot C, he said, was ploughed in 2007. Looking at exhibit P3 photograph 20 the ring forming the boundary of pivot A had just been freshly ploughed with a disc plough which turns the soil completely over unlike an offset disc which leaves “a moderate percentage of the organic matter on top”. The same had not been done in relation to pivot C, however that was not to concede that work had not been done on the area that became pivot C. The appellant said:

    And that also happened in 2007 [the turning of the soil] so there was ploughing using that same implement, that exact same implement, occurred in 2007 but after it was ploughed different implements came along again that dragged organic matter back to the top again. Organic matter is very light and so little sticks and twigs and leaf and whatever, and you go along with a tined implement where the tines engage the soil will actually face forward and they lift. The settling process after the mix of soil and organic drops back down again, all the large stuff is left on top so the disk plough buries it - whenever you work with any other implement after that, whether it be harrows, the rake, cultivators or chisel … once again a tined implement the majority of the organic matter, especially the large stuff, comes back to the top again. So what you are observing here is in A and C they’ve both been largely previously ploughed with exactly the same implement that that ring has made, it’s just A and C have had other operations done to them after they were last disk ploughed. That ring around A has just happened in a couple of weeks or whatever before this photograph - it stands out because it’s nearly bare white soil because its all got inverted and not brought back to the top again.

17. The appellant agreed that after photograph 20 was taken pivot C was further disc ploughed.

18. During 2009 a similar process was undertaken on pivot C as had been undertaken on A — blade ploughed, disc ploughed then raked. In the process it was likely that plants that had freshly germinated would have been removed. The prosecutor asked:

    QIt’s the germination of those new plants that I suggest to you if that had been left alone if you hadn’t then used further ploughing that those would have been able to grow to be bigger to be larger and to gradually recover the area that had previously been cleared in 2008 and 2009 and 2007 as well.

    AWe need to remember this entire area when it was re-developed in the late 80s was so it could be a part of the farm like the rest of the farm. We spent a lot of [sic] money on super phosphate, fencing, tractor work and all manner of things and just like other areas of the farm, so some areas paddocks aren’t cultivated for 30 years apart other areas are cultivated 2 years apart. The whole plan for this area was identical it was developed to be farming land. So in order to sustain the veldt grass the pasture, which the lucerne only lasted 10 or 12 years after it was sown, originally the only way that veldt grass can be maintained is to periodically re-plough the land so this irrespective of whether it would have been irrigation or just ongoing veldt grass sub-plough the pasture at some stage it had to be re-ploughed again just like all the other paddocks on the farm are. Because it had been cleared to use for general farming. Now in our part of the district because we do so many different things from one decade to the next it can go from being a purely stock based enterprises on large parts of the farm to the next decade there is cropping opportunities or whatever. So we are not locked in in [sic] the upper south-east to using a paddock for a particular way. The paddocks are opportunity cropped three years in a row and then not cropped again for 20 years depending on commodity prices and land uses. So you wouldn’t spend all this money that we spent just to be able to just graze sheep. You developed it just so you can use it for cattle, sheep, lucerne, lupins, veldt grass, barley, wheat, fodder crops whatever and it was originally sown down to lucerne, lucerne is the height, is the top of the tree of pasture species and that’s what this country’s ultimately good at so over time it would have been progressively been re sown to lucerne even if it’s predominant use was to be grazed.

19. The appellant said that other than arranging for the stone picker, Mr Rathjen was not involved in preparing pivot A for cropping. The appellant disagreed with Mr Forbes’ evidence as to the presence of yaccas and banksias on pivot A and C in January 2008. He agreed that there was vegetation to Mr Forbes’ left as he made his way around pivot A. Mr Forbes would have passed one large shelter belt to his left and other areas that had been chained but not raked. He said:

    QHe [Mr Forbes] said that Areas A and C were in the early stage of development with quite a lot of clearing up with native vegetation left he just couldn’t see any wind rows or burnt wind rows. Was he mistaken about that.

    AWell in January of 2008 there wouldn’t have been any wind rows to see because they’d all been burnt, I think November 15 is the latest you can burn in the upper South-East and Sam would have burnt - obviously there was a couple of iterations one back in July or August and another one later than that so they would have all been burnt months before, even the second time around, months before when Mr Forbes was there.

    QWhen he said there was quite a lot of clearing up of native vegetation left in Area A and C he was wrong about that.

    AHis description and what I assert are obviously very different.

1. In reply counsel for the appellant made four points. First he returned to the Magistrate’s reference to sentencing principles. He submitted that the Court could not simply ignore the reference as the Magistrate observed “[a]ll of these factors are present in the current matter”, indicating that in some way she had taken the principles into account. Second, Mr McKerlie’s evidence of what was featured in exhibit D2 was not “oblique”, as counsel for the respondent had said. Allied to this was criticism of the absence of reasoning on the part of the Magistrate as to why she accepted Messrs Whitford, Forbes and Rathjen over Mr McKerlie in relation to exhibit D2. The former could not be accepted simply because their evidence was to be preferred. Third, it may have been acceptable simply to put exhibit D2 to one side if the Magistrate had analysed the evidence of Messrs Whitford, Rathjen and Forbes as to the particular parts of area 1 in relation to which they gave evidence of the presence of native vegetation and whether they were referring to pivots A and/or C and between them the same areas of those pivots, but that was not done. The defence case had not been adequately considered. Fourth, as was rightly conceded, the provenance of exhibit D2 was central to the defence case. In the circumstances it could not simply be put to one side.

2. With respect to the Notice of Contention counsel for the appellant submitted that there was no evidence of any previous clearance being unlawful. More specifically, there was no evidence that the chaining that occurred in 2006 and 2007 was unlawful. The only evidence was from the appellant who said he contacted a department in the mid-80s and was told that prior approval to clear was not required.

   Consideration

3. In what follows I deal with the second ground of appeal first. Consistent with the approach taken by counsel in presenting the appeal, I treat the second ground of appeal as being, in the main, a complaint about the adequacy of the Magistrate’s reasons.

4. In DL v The Queen Kiefel CJ, Keane and Edelman JJ said:[9]

   The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

   The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:

   Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

   [footnotes omitted]

   [9] (2018) 92 ALJR 636 at [32]-[33].

5. And in Soulemezis v Dudley (Holdings) Pty Ltd, Kirby P said:[10]

   This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.

   [10] (1987) 10 NSWLR 247 at 259, quoted with approval in R v Keyte (2000) 78 SASR 68 at [48] (Doyle CJ).

6. It is trite to observe that in the present case the Magistrate was required to give separate consideration to the evidence relevant to each count and to determine in relation to each count whether the prosecution had proved each element of the particular offence under consideration beyond reasonable doubt. The Magistrate did not give herself a direction in such terms. That is by no means fatal, provided it is evident in her reasons that she proceeded in this manner. Having regard to the nature of the forensic contest in this case meant that the Magistrate was required to give separate consideration to the evidence relevant to the question of when the area subject of each count in the Complaint was cleared and to determine whether, in relation to each count, the prosecution had proved beyond reasonable doubt that native vegetation was cleared from each area subject of each charge. As will be seen, I consider that the Magistrate did so.

7. Earlier in these reasons I commented that the Magistrate’s statement of the central issue was inaccurate.[11] I do not, however, consider her statement of the central issue as being so inaccurate as to cause me to think that she approached the forensic contest under some misapprehension. I understand the Magistrate’s reference to the admission that dead stumps were cleared as a shorthand way of referring to the evidence of the appellant and James Vickery that after 17 February 2008 no living vegetation was cleared from the areas subject of the charges.[12] What remained were stumps, dead leaf litter, banksia cones and sticks. I do not think the Magistrate’s reasons can be read as suggesting that the issue was whether or not the stumps cleared were alive. As much follows from the final sentence in paragraph 57 and the reference to the prosecution case as being that there was significant living native vegetation in each of the areas of land the subject of the charges.

   [11] At [145].

   [12] “Native vegetation” is defined in s 3(1) of the Act to mean “a plant or plants of a species indigenous to South Australia”, but does not include a plant or part of a plant that is dead unless the plant, or part of the plant, is of a class declared by regulation to be included in the definition. There was no suggestion at trial or on appeal that the prosecution relied on the dead plants incorporated by reg 3A of the Native Vegetation Regulations 2003 (SA) into the definition of native vegetation. Also excluded from the definition of native vegetation is a plant intentionally sown or planted by a person except in certain circumstances which do not arise on the facts of the present case.

8. It is also true that the Magistrate did not articulate the defence case as having two aspects in relation to each count, the first challenging the prosecution allegation of clearance of live native vegetation and the second excusing any clearance proven to have occurred in accordance with reg 5(1)(zf), or the alternate basis upon which the prosecution case was put. I do not think this matters. The Magistrate did turn her mind to each of the two aspects of the defence case, rejecting the first as a reasonable possibility, and, in relation to the second, concluding that the appellant could not take advantage of reg 5(1)(zf). As for any consideration of the alternate basis upon which the prosecution put its case, I agree with counsel for the respondent that it was unnecessary as the Magistrate accepted the prosecution’s primary case.

9. The Magistrate twice referred in her reasons to the burden and standard of proof. She did so the first time in the course of listing the elements of the offence.[13] The second, in stating her ultimate conclusion.[14] The appellant does not dispute that in each of these instances the Magistrate correctly stated the law. Nonetheless, he queries the Magistrate’s application of the law to the facts. As mentioned, one observation suggested to amount to a departure from the burden and standard of proof was the statement that the “complainant called witnesses to refute the defendant’s claim that all native vegetation on the relevant land had been cleared prior to February 2008”.[15] Taken in isolation such statement could be considered problematic. It implies that the Magistrate approached her task as being to determine whether the prosecution had demonstrated that the appellant’s case could not be accepted and makes no reference to the burden on the prosecution to prove its own case to the criminal standard. That is, it is one thing to refute, another to prove. It would have been more correct for the Magistrate, having referred, in effect, to the prosecution’s purpose in calling Mr Storry and Mr Carpenter, to state that “the complainant called witnesses who visited the land after February 2008 to prove that all native vegetation on the relevant land had not been cleared prior to February 2008”. This evidence was integral to the prosecution case due to the limitations in the inferences that could be drawn from the aerial and satellite photographs contained in exhibit P3. But all this said, I do not think the Magistrate’s reasons can be construed as indicative of a misapplication of the burden and standard of proof. Whilst the prosecution’s primary purpose in calling Messrs Forbes, Whitford, McKerlie and Rathjen was not to refute the appellant’s case but to establish the prosecution case, the evidence of those gentlemen did have that result in addition to having the capacity to prove the elements of the offences. The Magistrate’s observation then is not totally incorrect. In any event, the impugned passage forms no part of the Magistrate’s analysis of the evidence. In conducting that analysis the Magistrate states her ultimate conclusion in terms correctly applying the burden and standard of proof and the impugned passage does not cause me to think that she did not do so.

   [13]   At [55] of the Magistrate’s reasons.

   [14]   At [86] of the Magistrate’s reasons.

   [15]   At [28] of the Magistrate’s reasons.

10. A second indication of the departure from analysing the evidence in the light of the burden and standard of proof was said to be the Magistrate’s reference to sentencing principles. I do not think it profitable to speculate on why the Magistrate has incorporated sentencing principles into her reasons or why she commented as she did (i.e. that the factors relevant to sentence were all present in this case). The critical question is whether the statement in the reasons of those principles and the related comment causes this Court to think that the Magistrate has failed to analyse correctly the evidence in applying the burden and standard of proof.

11. Reasons are not to be read as if each paragraph marks a step in the chronological unfolding of the judicial officer’s thinking. Were that the case, the comment suggests prejudgment. And the reasons of a Magistrate sitting in a busy court are not to be analysed as if they were a conveyancing document. Rather, reasons are to be read reasonably and as a whole. Doing so, there is nothing in that part of the Magistrate’s reasons where she analyses the evidence to suggest that somehow her earlier reference to sentencing principles has distracted her from properly evaluating the evidence and determining whether guilt has been proved by the prosecution beyond reasonable doubt.

12. I turn to the Magistrate’s treatment of exhibit D2. If it were reasonably possible that the area subject of pivots A and C and, indeed, areas J, K, L, M and N, looked as the terrain did featured in exhibit D2 as at 31 July 2007, then each of Messrs Forbes, Whitford and Rathjen were either mistaken in what they said they saw, or, were making observations of different parts of area 1. It was suggested, for example, that Mr Whitford erected the pivot irrigation structure for pivot A on a part of area 1 away from pivots A and C and that, possibly, he was describing the native vegetation in the immediate area in and around where he was working. That suggestion, however, was never put to Mr Whitford.

13. Mr Forbes described seeing “small yucca bushes and plants like that, about a metre tall. Remnants of that in a paddock”. This he said was uniform across pivots A and C in January 2008. The paddocks were in the “[e]xtremely early stages” of preparation for cultivation. Mr Whitford considered that the area subject of pivots A and C had been rolled. The vegetation he saw was regrowth mallee, one to one and a half metres high. Mr Rathjen described pivot A as having vegetation that had been chained or knocked down, but there remained a reasonable amount of growth about one and a half metres high, but it must be said he did not take a lot of notice of vegetation height. Bearing in mind Mr Carpenter’s evidence about the time it takes for a banksia to grow to the heights seen in exhibit P4 photograph 2, Messrs Forbes, Whitford and Rathjen, whose evidence as to the appearance of pivots A and C is largely consistent, could not have been looking at the terrain featured in exhibit D2. Assuming clearance on pivots A and C to the extent featured in exhibit D2, regrowth to one to one and a half metres in height as seen by Messrs Forbes, Whitford and Rathjen could not have occurred in the time since 31 July 2007. Further the degree of further preparation that they describe was needed, and in Mr Whitford’s and Mr Rathjen’s cases, observed, was not necessary if pivots A and C were as featured in exhibit D2.

14. Exhibit D2 was a central plank in the defence case. It purported to corroborate the evidence of the appellant and his sons as to the degree of clearance undertaken prior to 17 February 2008. The defence purported to establish the provenance of exhibit D2; it was taken by Samuel Vickery on the date recorded on the exhibit (31 July 2007).

15. Exhibit D2’s corroborative and testamentary capability was linked to accepting Samuel Vickery as truthful and reliable. If Samuel Vickery was not considered truthful and reliable in his evidence as to the provenance of exhibit D2 the capacity of exhibit D2 to corroborate his father’s and brother’s evidence fell away as did the photograph’s testamentary value. The effect of the appellant’s evidence was that whoever took exhibit D2 was standing in the southern region of pivot C looking south with the bogged tractor positioned around where pivots A and C met. Samuel Vickery also said exhibit D2 looked south but was taken somewhere near way point K as featured in exhibit P2. That evidence suggested that exhibit D2, taken in isolation, could tell the Court little of the degree of clearance on pivot C and areas I and K and possibly L. But exhibit D2, taken with the evidence of the appellant and his sons, if considered truthful and reliable, was evidence of what the southern aspect of pivot C looked like and a fair portion of pivot A and areas M and N. Further, the evidence of the appellant and his sons was that the areas or portions of areas not featured looked no different.

16. The Magistrate said:

    78.I reject the evidence of the defendant and his sons that A and C were cleared prior to 17 February 2008, leaving no living vegetation at the commencement date of these charges. I find that when Mr Whitford, Mr Forbes, Mr McKerlie and Mr Rathjen saw A and C there was living remnant native vegetation and the land was not cleared as depicted in photograph, D2. …

17. Pausing here; the two statements made in this passage are statements of conclusion. They come after the Magistrate has said that she accepts Messrs Forbes, Whitford, McKerlie and Rathjen as honest and reliable “apart from Mr McKerlie’s assertion that exhibit D2 did resemble A and C in late 2008”. That recollection, she reasoned, was contrary to all other eye witnesses. The Magistrate’s reason for otherwise accepting Messrs Forbes, Whitford, McKerlie and Rathjen as honest and reliable lies in the similarity of their evidence with “[m]inor variations in describing events from 5 years ago” not affecting their credibility. There then follows the passage quoted above. The reasoning is sequential. In some circumstances that may be problematic, but in this case the evidence of Messrs Forbes, Whitford and Rathjen is, on the “central issue”, diametrically opposed to that of the appellant and his sons. Exhibit D2 does not alter this because its provenance was dependent upon Samuel Vickery’s truthfulness and reliability. Accepting Messrs Forbes, Whitford and Rathjen as honest and reliable meant rejecting the appellant and his sons.

18. Where the Magistrate says, “I cannot account for the computer record stating the image [featured in exhibit D2] was taken on 31 July 2007”, I take her to mean that there was no evidence that allowed her to determine how that date came to be featured on exhibit D2 other than Samuel Vickery’s. That is not to say that she could not account for parts of the areas subject of the charges being otherwise than as featured in exhibit D2. That is a different issue, one she proceeds to determine; “I find that the soil in A or C was not in this barren state in July 2007”. That finding can only be a rejection of the appellant’s and his sons’ evidence. On what basis does she arrive at this conclusion? Because she did not think it reasonably possible that Messrs Forbes, Whitford and Rathjen, “all involved in agriculture or agricultural related fields, could have mistaken dead litter and seen it as a variety of species of damaged but living remnant native vegetation.”

19. It is odd then that the Magistrate would “assume Mr Samuel Vickery’s account of what land is depicted in exhibit D2 and/or when the photograph was taken is erroneous as a result of poor memory”. There was no room in Samuel Vickery’s evidence for him having a poor memory. He took the photograph from the position he identified on the date featured. And both his father and brother gave evidence that pivots A and C looked as shown in exhibit D2. It was not put to them that they were mistaken. What was put was that they lied. The Magistrate makes no express finding that any of the appellant or his sons lied. Nonetheless, she has rejected their evidence as a reasonable possibility and, in my view, explained adequately why. However, exhibit D2 came to be dated 31 July 2007, the Magistrate has rejected it as a photograph of a portion of pivot A and C and possibly areas L, M and N as they appeared on 31 July 2007.

20. In paragraphs 79-83 the Magistrate proceeds to explain further her reasons for accepting the evidence of Messrs Forbes, Whitford and Rathjen, and the prosecution case. To the extent that she relies upon Mr McKerlie’s evidence I understand her reference to be to his evidence of his decision not to lease pivot A because of the work required to ready it for crop sowing. It was open to the Magistrate to accept Mr McKerlie in part.

1. In my view the reasons adequately explain why the Magistrate preferred the evidence of the prosecution witnesses. That evidence was clearly capable of proving the elements of each of count 1 and 2. The reasons refer to that evidence as it applies to both pivots A and C, indicating that the Magistrate has separately considered the evidence relevant to each count.

2. True it is that the Magistrate does not in her reasons embark upon an analysis of the evidence of the appellant or either of his sons. I do not think she was required to do so in order that her reasons be adequate. Her reasons are sufficient to allow this Court to undertake the appellate function. Further, having analysed the Magistrate’s reasons, I do not think it can be said that the Magistrate failed to apply the burden and standard of proof correctly.

3. I have conducted an independent assessment of the evidence. To the extent that exhibit P3 photograph 20 undermines the evidence of the observations of Messrs Forbes, Whitford and Rathjen in that growth across pivots A and C could not have been uniform, it does not mean that they were necessarily unreliable as to the presence of native vegetation as they described being on the pivots as at the dates of their attendances. I have described their evidence as suggesting uniformity and, indeed, that is what the evidence suggests. But neither counsel asked any of Messrs Forbes, Whitford or Rathjen to specify the area of their respective observations, or to detail their observations from one part of area 1 to the next as they moved about. That it is reasonably possible that pivots A and C could not have had uniform coverage of native vegetation having regard to exhibit P3 photograph 20, does not cause me to think that it was not open to the Magistrate to conclude that Messrs Forbes, Whitford and Rathjen were reliable or that it was reasonably possible that no living native vegetation matching the description given by each of Messrs Forbes, Whitford and Rathjen was cleared. Here it is important to bear in mind what amounts to clearance for the purposes of s 26(1) of the Act as discussed in Brinkworth v Dendy.[16]

   [16] (2007) 97 SASR 416.

4. On my view of the evidence it was open to the Magistrate to arrive at the conclusion she did. Nothing in that conclusion and her reliance on the evidence of Messrs Forbes, Whitford and Rathjen is glaringly improbable or contrary to incontrovertible fact. Nothing in my analysis of the whole of the evidence causes me to think that the Magistrate must have had a doubt in relation to the appellant’s guilt on counts 1 or 2.

5. I would dismiss the second ground of appeal.

6. I turn to the first ground of appeal. Regulation 5(1)(zf) provided:

   (zf) if—

   (i)    the land on which the vegetation is situated has been used for cultivation, pasture or forestry within 5 years immediately before the proposed clearance occurs; and

   (ii)     the clearance is necessary to maintain the land so that it can continue to be used for cultivation, pasture or forestry to the extent to which it had been used for that purpose within the immediately preceding 5 years; and

   (iii)     the vegetation to be cleared consists only of plants or parts of plants that have grown or have regrown in the immediately preceding 5 years; and

   (iv)     either—

   (A)the vegetation has a stem diameter at the lowest point on the stem above ground level of 150 millimetres or less; or

   (B)     the vegetation is of the genus Xanthorrhoea;

7. In paragraph 84 of her reasons the Magistrate finds that the appellant failed to establish the requirements contained in regs 5(1)(zf)(ii), (iii) and (iv)(A).

8. With respect to reg 5(1)(zf)(ii) it is not sufficient to establish on the balance of probabilities that the clearance undertaken was necessary to maintain the land so that it could continue to be used for cultivation, pasture or forestry. Subparagraph (ii) is narrower in its ambit. The clearance must be necessary to maintain the stated use but only to the extent to which the land had been used for cultivation, pasture or forestry within the immediately preceding five years. It was rightly referred to by counsel for the respondent as a maintenance provision (i.e. maintenance of growth/regrowth to facilitate continuation of established usage). Proof to the civil standard of the requirements contained in reg 5(1)(zf)(ii) requires, first, evidence of the prior use made of the land within the preceding five year period, and, second, that the clearance of native vegetation undertaken did not exceed what was necessary to that usage continuing. The regulation permits clearance limited to maintenance of pre-existing use, not alteration for a different use or greater clearance then necessary for a pre-existing use.

9. On the appellant’s own case, prior to Mr Rathjen sowing his first onion crop on pivot A, area 1 had never been used for irrigated cropping. The appellant’s case was that prior to 17 February 2008, area 1 had never been cleared to the extent that subsequently occurred, including by “claying” pivots A and C. Whatever work commenced before 17 February 2008, considerable refinement was subsequently undertaken resulting in virtually all native vegetation being cleared. In my view the Magistrate was right to conclude as she did.

10. Each of the requirements of regs 5(1)(zf)(i)-(iv) are cumulative. The failure to establish any one is fatal. It follows, that once it is accepted that it was open to the Magistrate to reject the appellant’s case in relation to reg 5(1)(zf)(ii), rejection of the defence followed. In the circumstances it is not necessary to consider whether it was also open to the Magistrate to be satisfied that the appellant had failed to establish the requirements contained in regs 5(1)(zf)(iii) and (iv) on the balance of probabilities and it is unnecessary to deal with the notice of contention. I would dismiss the second ground of appeal.

    Orders

11. The appeal is allowed to the extent that the appellant’s conviction on count 3 is set aside. The appellant submitted that I should not remit count 3 to the Magistrates Court for retrial. Despite the delay in this judgment, the proceedings were already considerably dated. The submission is, in effect, that it would be oppressive for any future trial to be prosecuted. That may be so, but it has not been argued in full before me. Delay and cost aside, it cannot be said that there is no evidence that might satisfy a Magistrate that the appellant unlawfully cleared areas J, K, L, M and N. In the circumstances, to refuse to remit the matter for retrial would be tantamount to the exercise of the prosecutorial discretion. That must be left to the executive. I remit count 3 to the Magistrates Court for retrial. If it is oppressive to proceed, the appellant may apply for any trial to be stayed. Further, and in any event, it may be expected that the Crown will consider closely any suggestion of oppression before determining whether ultimately to proceed to retrial.