CRIMINAL LAW – APPEALS – Appeal against conviction under section 222 Justices Act 1886 – Offence under section 153A(1)(b) Planning Act2016 - Where the appellant was convicted of three counts of carrying out assessable development with a development permit.
CRIMINAL LAW - PRACTICE AND PROCEDURE – STARTING PROCEEDINGS - STATUTORY TIME LIMITATIONS – Where the appellant appeals the conviction on the basis that the complaint for brought out of time – Where the issue turns on the identity of the complainant – Whether the complainant was acting in a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Vukolic v Browning [2022] QDC 279
Case
[2022] QDC 279
Decision Date
CaseChat Overview and Summary
The appellant, Vukolic, appealed against his conviction for carrying out assessable development without a development permit under section 153A(1)(b) of the Planning Act 2016. The conviction was brought under section 222 of the Justices Act 1886, and the appeal was heard in the Queensland Court of Appeal. Vukolic argued that the complaint was brought out of time and that the complainant was acting in a representative capacity for the Brisbane City Council, thus making the Council the complainant. Additionally, he contested whether the three circumstances listed in section 163(2) of the Planning Act 2016 were elements of the offence that needed to be excluded beyond reasonable doubt by the prosecution.
The court examined whether the complaint was indeed brought out of time and whether the complainant's representative capacity changed the identity of the complainant to the Brisbane City Council. The court also considered whether the three circumstances in section 163(2) of the Planning Act 2016 were indeed elements of the offence. Furthermore, the court deliberated on whether the prosecution should be granted leave to re-open its case to tender an evidentiary certificate. The court applied principles of judicial comity to determine if the judge should follow the judgment at first instance from the same court or a court of co-ordinate jurisdiction.
The Court of Appeal found that the complaint was not brought out of time, and the complainant was not acting in a representative capacity for the Brisbane City Council. The court held that the three circumstances in section 163(2) of the Planning Act 2016 were not elements of the offence that needed to be excluded beyond reasonable doubt by the prosecution. Consequently, the appeal was dismissed, and the conviction was upheld. The court ordered the parties to make submissions on orders to give effect to these reasons and on costs.
Orders
Orders of the court
Parties to make submissions on orders to give effect to these reasons and on costs.