White v Patterson - [2009] QCA 320

SUPREME COURT OF QUEENSLAND

CITATION:

White v Patterson [2009] QCA 320

PARTIES:

ADRIAN GERARD WHITE
(respondent/applicant/appellant)
v
COLIN ANDREW PATTERSON
(appellant/respondent)

FILE NO/S:

CA No 80 of 2009
DC No 184 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

23 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2009

JUDGES:

McMurdo P and Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Leave to appeal allowed.

2.    Appeal allowed.

3.    Set aside the judgment of the District Court and order that the appeal against conviction to the court be dismissed.

4.    The respondent’s appeal against sentence be remitted to the District Court for determination.

5.    The respondent should pay the costs of the application for leave to appeal and the appeal.

CATCHWORDS:

ENVIRONMENT AND PLANNING – PARKS AND RESERVES – RESTRAINT OF ACTIVITIES WITHIN PARKS AND RESERVES – where respondent was charged with an offence under s 38CA of the Great Barrier Reef Marine Park Act 1975 (Cth), namely fishing in a protected area – where initial conviction was quashed on appeal to the District Court – where District Court judge questioned the interpretation of s 5.5 of the Criminal Code 1975 (Cth) and whether it required conduct that necessitated ‘criminal punishment’ – whether respondent’s actions were negligent – whether interpretation of s 5.5 of the Criminal Code below was correct

Criminal Code 1995 (Cth), s 3.1, s 4.1, s 5.1, s 5.5
District Court of Queensland Act 1967 (Qld), s 118
Great Barrier Marine Park Act 1975 (Cth), s 38CA
Justices Act 1886 (Qld), s 222

Andrews v Director of Public Prosecutions [1937] AC 576, considered
NSW Sugar Milling Co-operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6, cited
Nydam v R [1977] VR 430, cited
R v Edwards [2008] SASC 303, considered

COUNSEL:

P J Flanagan SC, with J M Horton, for the applicant/appellant
J Sharp for the respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the applicant/appellant
Legal Aid Queensland for the respondent

McMURDO P: I agree with Chesterman JA's reasons for granting the application for leave to appeal; allowing the appeal; setting aside the judgment of the District Court; and, instead, dismissing the appeal to the District Court.

The respondent, Mr Patterson, was charged under s 38CA(1) Great Barrier Reef Marine Park Act 1975 (Cth) with the summary offence of negligently using a Marine National Park Zone of the Great Barrier Reef Marine Park for the purpose of fishing. The magistrate convicted him but the District Court judge allowed his appeal and quashed that conviction. This case raises a question of some significance about which there is little decided authority: the correct interpretation and application of s 5.5 Criminal Code 1995 (Cth) to summary offences.[1]
[1]See Crimes Act 1914 (Cth), s 4H.

Under the Criminal Code (Cth), every offence consists of physical…

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.

Continue reading White v Patterson

Details

AGLC: White v Patterson [2009] QCA 320
Case: [2009] QCA 320
Decision Date: 23 October 2009

CaseChat Overview and Summary

In the case of White v Patterson, the appellant was charged with an offence under section 38CA of the Great Barrier Reef Marine Park Act 1975 (Cth) for fishing in a protected area. The respondent contested the conviction in the District Court, which ultimately quashed the initial conviction. The District Court judge raised questions about the interpretation of section 5.5 of the Criminal Code 1975 (Cth) and whether the respondent's conduct necessitated 'criminal punishment'. The court was tasked with determining whether the respondent's actions were negligent and whether the interpretation of section 5.5 of the Criminal Code was correct.

The court found that the District Court erred in its interpretation of section 5.5 of the Criminal Code. The court held that the provision required a higher degree of fault than mere negligence, and that the respondent's actions did not reach the threshold of 'criminal punishment'. The court emphasised that the respondent's actions were not deliberate or reckless, and that the District Court should have considered the level of fault required for a conviction under the statute.

Consequently, the court allowed the appeal, set aside the judgment of the District Court, and ordered that the appeal against conviction be dismissed. The court also remitted the respondent's appeal against sentence to the District Court for determination. Additionally, the court ordered that the respondent should pay the costs of the application for leave to appeal and the appeal itself.

Orders

Orders of the court

1. Leave to appeal allowed.

2. Appeal allowed.

3. Set aside the judgment of the District Court and order that the appeal against conviction to the court be dismissed.

4. The respondent’s appeal against sentence be remitted to the District Court for determination.

5. The respondent should pay the costs of the application for leave to appeal and the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	White v Patterson [2009] QCA 320
PARTIES:	ADRIAN GERARD WHITE (respondent/applicant/appellant) v COLIN ANDREW PATTERSON (appellant/respondent)
FILE NO/S:	CA No 80 of 2009 DC No 184 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	23 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2009
JUDGES:	McMurdo P and Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal allowed. 2. Appeal allowed. 3. Set aside the judgment of the District Court and order that the appeal against conviction to the court be dismissed. 4. The respondent’s appeal against sentence be remitted to the District Court for determination. 5. The respondent should pay the costs of the application for leave to appeal and the appeal.
CATCHWORDS:	ENVIRONMENT AND PLANNING – PARKS AND RESERVES – RESTRAINT OF ACTIVITIES WITHIN PARKS AND RESERVES – where respondent was charged with an offence under s 38CA of the Great Barrier Reef Marine Park Act 1975 (Cth), namely fishing in a protected area – where initial conviction was quashed on appeal to the District Court – where District Court judge questioned the interpretation of s 5.5 of the Criminal Code 1975 (Cth) and whether it required conduct that necessitated ‘criminal punishment’ – whether respondent’s actions were negligent – whether interpretation of s 5.5 of the Criminal Code below was correct Criminal Code 1995 (Cth), s 3.1, s 4.1, s 5.1, s 5.5 District Court of Queensland Act 1967 (Qld), s 118 Great Barrier Marine Park Act 1975 (Cth), s 38CA Justices Act 1886 (Qld), s 222 Andrews v Director of Public Prosecutions [1937] AC 576, considered NSW Sugar Milling Co-operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6, cited Nydam v R [1977] VR 430, cited R v Edwards [2008] SASC 303, considered
COUNSEL:	P J Flanagan SC, with J M Horton, for the applicant/appellant J Sharp for the respondent
SOLICITORS:	Director of Public Prosecutions (Commonwealth) for the applicant/appellant Legal Aid Queensland for the respondent