Windshuttle v Redland Shire Council
[2006] QDC 393
•1 December 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Windshuttle v Redland Shire Council [2006] QDC 393
PARTIES:
LARRY JOHN WINDSHUTTLE
Appellant
and
REDLAND SHIRE COUNCIL
Respondent
FILE NO/S:
No BD4149 of 2005
DIVISION:
Appellate
PROCEEDING:
ORIGINATING COURT:
Brisbane
DELIVERED ON:
1 December 2006
DELIVERED AT:
Brisbane
HEARING DATE:
22 November 2006
JUDGE:
Samios DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
Local Government – Offences – Local Law – protected vegetation – conviction for damaging protected vegetation – penalty
Criminal Code s 22(2), s 31 (1)(b)
Local Law No. 6 (Redland Shire Council)
Anderson v Nystrom (1941) St R Qd 56 at 69
Ostrowoski v Palmer (2004) 218 CLR 493
R v Taib CA No. 219 of 1998
Thomas v McEather (1920) St R Qd 166
Waldon v Hensler (1987) 163 CLR 561
Widgee Shire Council v Bonney (1907) CLR 977
COUNSEL:
Mr Fitzgibbon for the appellant
Mr P Smith for the respondent
SOLICITORS:
Appellant self-represented
Redland Shire Council (A Ross) for the respondent
Between 1 and 21 October 2003 Mr Windshuttle removed used machinery and pieces of metal from land at Byng Road, Birkdale. To do this work he removed trees and other vegetation.
The council claimed the trees and vegetation that were removed were protected vegetation. Local Law No. 6 made it an offence to damage protected vegetation without a permit.
The Redland Shire Council prosecuted Mr Windshuttle for two offences against Local Law No. 6 in proceedings before the learned magistrate at Cleveland.
In these proceedings Mr Windshuttle pleaded not guilty. He defended the proceedings on the grounds that the Council had to prove he had a guilty mind (mens rea). Further, he claimed he acted under an honest claim of right. Finally, he claimed he was compelled to do what he did because the Council required him to remove the used machinery and pieces of metal from the land that had accumulated over a number of years.
The evidence before the learned magistrate was that the vegetation on one of the lots of land (Lot 18) was protected as described by s 24 (b) of the local law because the vegetation was included in the public open space and special protection designations under the preferred dominant land use map in the Strategic Plan. The vegetation on Lot 18 was protected, as prescribed by s 24 (b) of the local law by its inclusion as green space habitat on the green space map in the Strategic Plan. The vegetation on the other lot of land (Lot 19) was protected as prescribed by s 24 (b) and s 24 (c) of the local law because the vegetation was included in the public open space and urban residential designations under the preferred dominant land use map in the Strategic Plan. Both Lot 18 and Lot 19 were not currently zoned for these purposes.
It was common ground that Mr Windshuttle did not have a permit from the council to damage protected vegetation. He did have a letter from the State Department of Natural Resources advising him he was exempt from requiring approval to clear under the provisions of the Vegetation Management Act 1999. However, this letter advised him he should check that his proposed clearing did not contravene other legislation including:
· Local laws made under the Local Government Act
It was also common ground the council had not made a vegetation protection order over the land.
Local Law No. 6 was made under the Local Government Act.
Mr Windshuttle and a Mr Renshaw said in evidence they checked with the council before clearing the land and were told that there was no vegetation protection order in force over the land.
The learned magistrate found Mr Windshuttle guilty of the two offences against Local Law No. 6.
This is Mr Windshuttle’s appeal against the learned magistrate’s decision.
The issues I have to decide are:
(a) Whether mens rea is an essential element of the offences;
(b) Whether the defence of honest claim of right (s 22 Criminal Code) was raised and excluded by the prosecution beyond reasonable doubt;
(c) Whether the defence of compulsion (s 31 Criminal Code) was raised and excluded by the prosecution beyond reasonable doubt;
(d) Whether the sentence of the learned magistrate is manifestly excessive;
(e) Whether the professional costs ordered were proper and reasonable in the circumstances; and
(f) Whether the miscellaneous costs should be paid by the appellant in the sum ordered or at all.
The notice of appeal complains that the learned magistrate erred in finding that Mr Windshuttle knew or had reason to know of the various zonings of the land the subject of the defence, including strategic planning zonings and that the council did not need to prove that the various zoning plans had particular colours in relevant places. These issues, in my opinion, are matters of evidence relevant to whether the various defences I have referred to were raised by Mr Windshuttle and excluded beyond reasonable doubt by the Council.
Subject to these issues in my opinion the learned magistrate could be satisfied beyond reasonable doubt that Mr Windshuttle damaged protected vegetation without a permit and was therefore guilty of the offences.
Mens Rea
Local Law No. 6 relevantly provides:
“Section 3 In this local law:
“Damage” to vegetation includes destruction of the vegetation or interference with its natural growth including, but not limited to, ringbarking, cutting down, topping, lopping, removing, knocking down, poisoning, injuring, maiming or destroying.
“Protected vegetation” means:
(a) vegetation for which a vegetation protection order is in force under this local law; or
(b) vegetation on land described in s 24 and s 25 of this local law.
“Vegetation” means trees, plants and all other organisms of vegetable origin (whether living or dead) but does not include declared plants within the meaning of the Rural Lands Protection Act 1985.
Examples:
· An individual tree;
· A cluster of trees with associated undergrowth;
· A dead tree (including a fallen tree).
Section 4 How to make vegetation protection orders.
4 (i) The local government may make an order (a “vegetation protection order”) to protect significant vegetation.
4 (ii) However, a vegetation protection order may only be made for the protection of vegetation on freehold land.
Section 24 Protected vegetation on land with potential for development.
24 Vegetation on land included within one or more of the following:
(a) …
(b) A Development Control Plan, Local Area Plan or Strategic Plan which indicates that the land is or may be required for Public, Open Space, Restricted Open Space, Special Protection Area, Greenspace, drainage reserve, an esplanade or similar purpose or which indicates that the land is worthy of special protection, and that the land is not currently zoned for that purpose;
(c) A Development Control Plan, Local Area Plan or Strategic Plan which indicates that such land is suitable for future development or likely to be developed in the future for Special Development, or residential purposes under the Urban Residential, Medium Residential, Residential Low Density, Park Residential, Comprehensive Development, Special Development Area designations, or any other residential zone included within the Town Planning Scheme for the Local Government, and for which the land is not currently zoned for that purpose;
(d) …
is protected vegetation.
Prohibition of damage
26 (1) A person must not damage protected vegetation.
Maximum penalty – 850 penalty units.
(2) However, an offence is not committed if the damage is permitted by or under this local law.”
At common law a person does not incur criminal liability unless he intended to bring about, or recklessly brought about, those elements which constitute the crime. (Halsbury’s Laws of England Volume 11(1) para. 4).
The learned magistrate held that mens rea was not an essential element of the offences. It was held by Griffith CJ in Widgee Shire Council v Bonney (1907) CLR 977 at p 981:
“Under the criminal law of Queensland, as defined in the Criminal Code, it is never necessary to have recourse to the old doctrine of mens rea.”
This statement was cited with approval by Cooper CJ and Lukin J in Thomas v McEather (1920) St R Qd 166 at 174-5 and by Philp J in Anderson v Nystrom (1941) St R Qd 56 at 69.”
Mr Windshuttle’s counsel referred the learned magistrate to R v Taib CA No. 219 of 1998. In my opinion, R v Taib does not alter the effect of the authority about the application of mens rea to the criminal law in Queensland.
Therefore, the case for the Council was that notwithstanding the letter from the State Department of Natural Resources and the Council had not made a preservation order with respect to the vegetation on the land, Mr Windshuttle was obliged to obtain a permit before damaging the vegetation on the land. That was because protected vegetation is defined in the Local Law No. 6 as meaning vegetation for which a vegetation protection order is in force under the local law or vegetation on land described in s 24 of the Local Law. As the land was described in s 24 of the local law because it was within the strategic plan the vegetation was protected vegetation.
It was submitted on behalf of Mr Windshuttle that although he knew he was knocking down a tree and knew the zoning of the land, he did not know that Local Law No. 6 came into effect because of the strategic plan.
However, the learned magistrate concluded Mr Windshuttle did not know the applicable law. Further, the prosecution did not have to prove Mr Windshuttle knew of the strategic plan or development control plan or the relevance of these plans to the definition of protected vegetation.
In my opinion it was open to the magistrate to come to these conclusions. That is because in our law ignorance of the law is no excuse (s 22(1) Criminal Code) and mens rea is not an essential element of the offence.
Section 22(2) Criminal Code
S 22(2) of the Criminal Code provides:
“(2)That a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
The learned magistrate found that s 22(2) did not apply in the circumstances and, even if it did apply, Mr Windshuttle did not have an honest claim of right.
As to the non-applicability of s 22(2), the learned magistrate relied upon Waldon v Hensler (1987) 163 CLR 561 and Ostrowoski v Palmer (2004) 218 CLR 493.
The learned magistrate by reference to the judgments of Brennan J and Deane J in Waldon concluded s 22(2) did not apply. The effect of the learned magistrate’s reference to the judgments of Brennan J and Deane J was to conclude that Local Law No. 6 created an offence to physically destroy protected vegetation irrespective of any rights over or in respect of vegetation which might be vested in any person. That is, Local Law No. 6 was not calculated to protect a person’s rights over or in respect of flora or vegetation but to protect vegetation from destruction. As Local Law No. 6 did not create an offence relating to property, s 22(2) did not apply.
In my opinion the learned magistrate was correct in this analysis of s 22(2) and was correct to conclude that s 22(2) did not apply.
In Ostrowoski v Palmer a commercial fisherman asked a government authority for a copy of the regulations applying in the current fishing season for fishing for rock lobsters in a particular zone. The photocopied documents given to the fisherman did not contain the regulations he requested. None of the documents mentioned a regulation which protected fishing for rock lobsters in a a specified area of the zone, described by bearings and highwater marks. The fisherman placed a number of pots within the specified area. He knew the geographical position of the pots but did not know that fishing for rock lobster in the area was prohibited. He was charged for a breach of the regulation. He relied in defence on s 24 of the Criminal Code (honest mistake of fact). He was convicted of the offence. The High Court held s 22(2) of the Criminal Code not s 24 applied to the fisherman’s conduct. Hence he had been rightly convicted.
In my opinion the same considerations apply to Mr Windshutte. He had the letter from the Department of Natural Resources and advice from the Council that there was no tree preservation order in place. However, he was ignorant of the law that applied in the circumstances that deemed the vegetation to be protected vegetation because the land came within the strategic plan.
Even if s 22(2) did apply, in my opinion there was evidence on which the learned magistrate could conclude Mr Windshuttle did not have an honest claim of right in the circumstances.
Therefore, the operation of s 22(2) in this case was rightly held to be excluded beyond reasonable doubt.
S 31(1)(b) Criminal Code – Justification and Excuse – Compulsion
S 31(1)(b) of the Criminal Code provides:
“A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say –
(b) In obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful.”
There was no issue before the learned magistrate that Mr Windshuttle was the subject of a court order made 19 December 2000 to remove the used machinery and pieces of metal from the land. Mr Windshuttle’s defence was that to do this required damage to the vegetation.
However, what the learned magistrate found was that what Mr Windshuttle wanted to do was to clear the property for more than one purpose, predominantly a commercial purpose.
The learned magistrate accepted the evidence of Mr Simpson, called on behalf of the council, that Mr Windshuttle told him he had also cleared the vegetation for the purposes of putting in houses and roads on the property.
In my opinion it was open to the learned magistrate to come to these conclusions on the evidence. Further, the learned magistrate observed Mr Windshuttle did not apply for a permit.
Therefore the learned magistrate found that committing an offence to comply allegedly with an order of the court, in this instance, is not excuse pursuant to s 31 of the Criminal Code.
In my opinion it was open to the learned magistrate to make that finding.
In any event, there was evidence before the learned magistrate to satisfy the learned magistrate beyond reasonable doubt that it was not necessary for Mr Windshuttle to remove the trees and vegetation he removed to remove the used machinery and pieces of metal. In this regard I refer to the evidence of Mr Simpson and Mr Maslen.
Therefore, the operation of s 31(1)(b) in this case was rightly held to be excluded beyond reasonable doubt.
Conclusion on Convictions
Therefore, upon the issues raised in the appeal by Mr Windshuttle, I am satisfied the learned magistrate was correct in the conclusions reached and the findings made on the evidence. Therefore, I dismiss the appeal in so far as it relates to Mr Windshuttle’s conviction for the two offences.
Sentence
The learned magistrate fined Mr Windshuttle $12,000 and ordered him to pay $84.90 costs of court, $7,475 professional costs and $3,231.25 miscellaneous costs.
The learned magistrate noted Mr Windshuttle had been in other court proceedings for different matters where he had been penalised and orders had been made against him and he had not met those orders. The learned magistrate was also entitled to conclude that Mr Windshuttle had shown a lack of co-operation with respect to the council viz-a-viz his property and that had been of long standing. The learned magistrate noted this was also reflected in the proceedings before the learned magistrate.
The learned magistrate had regard to the previous decisions placed before the learned magistrate and took into account the areas in question. One area was damaged to the extent of 8,200 m2 and the other area to 1,000 m2. There was evidence to support those findings.
The learned magistrate concluded that Mr Windshuttle’s conduct was deliberate, premeditated conduct. This is a conclusion which, in my opinion, was also open to the learned magistrate to make.
Conclusion on Sentence
The fine of $12,000, in my opinion, is neither shown to be made under any error nor is it manifestly excessive in the circumstances.
I dismiss the appeal against sentence.
As to the other issues, no error is demonstrated on the part of the learned magistrate in making the costs orders. I therefore dismiss the appeal in respect of those orders.
I dismiss the appeal. I will hear the parties on the question of costs of the appeal.
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