Bonsell & Anor v DCA [2004] NTSC 64

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Bonsell & Anor v DCA [2004] NTSC 64

PARTIES: BONSELL, Jennifer &
BONSELL, Peter

v

DEVELOPMENT CONSENT AUTHORITY

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: 20207087 & 20207079 (JA 31 & 32 of 2004)

DELIVERED: 8 December 2004

HEARING DATES: 13, 14 & 15 October 2004

JUDGMENT OF: MILDREN J

CATCHWORDS:

PLANNING – development consent – consent authority required to give reasons – whether consent authority failed to give reasons – whether consent given invalid.
CRIMINAL LAW AND PROCEDURE – particulars of charge – particulars incorrect – whether accused wrongly convicted.
CRIMINAL LAW AND PROCEDURE – unrepresented defendants to complaints – whether given opportunity to submit no case to answer.
APPEAL AND NEW TRIAL – Justices’ appeal – whether court wrongly granted adjournment of trial – no miscarriage of justice.
CRIMINAL LAW AND PROCEDURE – matters brought on complaint – 6 months time bar – whether court should determine time bar as a preliminary question before taking a plea.
CRIMINAL LAW AND PROCEDURE – matters brought on complaint – unrepresented defendants – whether magistrate conducted fair hearing.
PROFESSIONS AND TRADES – Lawyers – whether prosecutor coached witnesses.
EVIDENCE – admissions and declarations – whether unlawfully obtained – whether duty to administer caution – whether voluntary.
APPEAL AND NEW TRIAL – whether finds of guilt unsafe or unsatisfactory.
APPEAL AND NEW TRIAL – appeal against sentence – whether error shown.
APPEAL – appellants unrepresented – whether magistrate biased – whether magistrate failed to consider appellants’ personal circumstances.
Criminal Code, s 411(1)
Evidence Act, s 26L
Justices Act, s 52, s 163
Planning Act, s 3, s 44, s 46, s 53, s 54, s 75(3)(a), s 111(1), s 112, s 114(1)(b)
Cross on Evidence, loose leaf, par 33690
The Rules of Professional Conduct and Practice of the Law Society of the Northern Territory, r 17.28 and r 17.29
M v The Queen (1994) 181 CLR 487 at 492; MacPherson v The Queen (1981) 147 CLR 512 at 534; Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355, 153 ALR 490; Ross v Munns (unreported, 11 June 1998 per Thomas, Bailey and Priestley JJ); applied
JK v Waldron (1998) 93 FLR 451 at 255; followed
Dietrich v The Queen (1992) 177 CLR 292; May v O’Sullivan (1955) 92 CLR 654; R v Dixon (1992) 28 NSWLR 215; Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme (2003) 201 ALR 327; referred to
REPRESENTATION:

Counsel:
Appellant: In person
Respondent: M. Grove

Solicitors:
Appellant: In person
Respondent: Ward Keller

Judgment category classification: B
Number of pages: 31

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Bonsell & Anor v DCA [2004] NTSC 64
No. 20207087 & 20207079 (JA 31 & 32 of 2004)

BETWEEN:

BONSELL, Jennifer &
BONSELL, Peter
Appellants

AND:

DEVELOPMENT CONSENT AUTHORITY
Respondent

CORAM: MILDREN J

REASONS FOR JUDGMENT

(Delivered 8 December 2004)

[1] These appeals are brought pursuant to s 163 of the Justices Act. The appellants were convicted in the Court of Summary Jurisdiction for developing in a manner not permitted in accordance with a development permit contrary to s 75(3)(a) of the Planning Act. Each appellant was convicted and fined $1,000. No order for costs was made. The appellants have appealed to this Court against their convictions and penalties on a number of grounds. Before proceeding to discuss those grounds, it is necessary to outline the background facts.
[2] The appellants were originally charged with 20 counts against the Planning Act (NT). On 31 July 2002, Mr Loadman SM convicted and fined the appellants after an ex parte hearing. The appellants filed applications to have those convictions set aside. On 9 September 2002, Mr Wallace SM refused that application.
[3] Both appellants appealed to the Supreme Court which set aside the convictions and penalties on 15 January 2003 and remitted the matter to the Court of Summary Jurisdiction for rehearing. The charges had been laid by way of complaint. Under s 52 of the Justices Act, it was a requirement that the complaint be made within six months from the time when the matter of the complaint arose. One of the principal arguments of the appellants, both before this Court and before the Court of Summary Jurisdiction, is that the complaint upon which they were convicted was out of time.
[4] When the matter was reheard by Ms Blokland SM, the learned Magistrate did not determine the time question as a separate matter, but heard all of the evidence. The prosecution reduced the charges to three counts. It is plain that the original complaint was overloaded. Each count alleged that between 1 November 2001 and 23 March 2002 the appellants developed land in a manner not permitted in accordance with a development permit, contrary to s 75(3)(a) of the Planning Act. The learned Magistrate dismissed counts 10 and 12 because the prosecution had not proved that the complaint in respect of those matters was brought in time. The learned Magistrate held that the matters complained of in count 11 were within time and had been proven.
[5] The appellants are owners of land at Section 367 Hundred of Strangways, more commonly known as 12 Forest Drive, Humpty Doo. Under the provisions of the Litchfield Area Plan, it was necessary for them to make a development application in order to clear more than 50 per cent of their block.
[6] S 3 of the Planning Act defines “development” in relation to land as including an activity which involves the carrying out of works on or in relation to land including the clearing of vegetation. Accordingly it was necessary, if the appellants wished to partly clear their land to make an application to the relevant consent authority under s 44 and s 46 of the Planning Act. Pursuant to s 53, the consent authority was required to determine such an application by either consenting conditionally or unconditionally to the proposal and issuing a development permit or permits in the approved form or by refusing consent to the proposal and issuing a notice of refusal in the approved form.
[7] S 54 of the Planning Act provides as follows:
54. Statement of Reasons to be Given
(1) As soon as practicable after a consent authority determines an application under s 53, it must –
(a) serve on the applicant a statement of reasons for the determination; and
(b) make available for inspection and purchase by the public a copy of the statement of the reasons for the determination
[8] Pursuant to Part 9 of the Planning Act appeals lie to the Lands and Mining Tribunal established under the Lands and Mining Tribunal Act if, for example, an application under s 46 has been refused (see s 111(1)) or if the Development Consent Authority does not determine the application (see s 112) or if the appellant is dissatisfied with a condition placed on a permit issued in relation to the application (see s 114(1)(b)).
[9] By application dated 30 March 2001, the appellants made application for a development permit to enable them to clear in excess of 50 per cent of the bush on their land. The block in question is a 2 ha block which the appellants occupy jointly as the owners of an estate in fee simple.
[10] On 4 May 2001, pursuant to s 53(a) of the Planning Act, the Development Consent Authority granted consent to the application subject to certain conditions. The second of the conditions was as follows:
An area of native vegetation 40 by 50 metres, is to be retained and maintained on the southwest portion of the land in accordance with drawing no PJB-001, to the satisfaction of the Chairman, Development Consent Authority.
[11] Attached to the development permit was a statement of reasons for the determination purportedly given pursuant to s 54(1)(a) of the Act. This document reads as follows:
Reason/s
(1) The proposed clearing works are to facilitate improved drainage of the subject land.
(2) A buffer of native vegetation is to be implemented along the eastern boundary to improve the amenity of the area.
(3) An area of native vegetation is to be retained in the south-(sic).
[12] It was proved before the learned Magistrate that the appellants did not retain and maintain the area of native vegetation required by condition 2 of the development permit. The appellant, Peter Bonsell, gave evidence before the learned Magistrate, but the appellant, Jennifer Bonsell, did not. The learned Magistrate’s findings are as follows:
The evidence about the demise of this area is given particular attention by the witnesses, in particular Ms Jacker. The timing of the clearing of that area is certain. A number of witnesses testify it was densely forested with particular species as at April 2001. The clearing of that area, on the evidence clearly began around the beginning of December or late November. Both Ms Stocks and Ms Jacker are very firm on those dates with that portion. Other departmental officers give this part of the clearing more particularity in their observations. I am satisfied beyond reasonable doubt that the acts alleged occurred in the relevant time frame. All witness attentions was drawn to this area that was especially protected. They appear genuinely shocked that it had been completely cleared at around the end of 2001 into 2002.
The evidence indicates this portion was cleared by both defendants, Mr Bonsell said as much in his evidence. There was also the observation of Ms Stocks and the agreement from Mr Bonsell that no-one else had performed any clearing duties. Further, I agree with the submission that retained ought to be given its natural meaning as in the Concise Oxford Dictionary – retained – keep in place, hold, fixed and keeping possession of; not lose; continue to have… aloow (sic) to ramin (sic) or prevail, not abolish or discard or alter. In my view count 11 has been proven beyond reasonable doubt.
[13] The appellants, who are unrepresented, have appealed on a number of grounds, which are set out in their written submissions. The grounds are somewhat wide ranging and overlapping and go beyond the grounds set out in the notices of appeal. However, no point is made of that by Mr Grove, counsel for the respondent, and I propose to deal with each ground set out in the appellants written submissions as if they were set out in the notice of appeal and as if the notice of appeal had been amended.
Ground 4 – Permit Does Not Comply with the Act
[14] The appellants contended that the permits failed to comply with s 54(1)(a) of the Planning Act in that the Consent Authority failed to serve on the applicant a statement of the reasons for its determination.
[15] The purported reasons given by the Consent Authority are set out above and are contained in Exhibit P6.
[16] Counsel for the respondent did not seriously contend that this document provided reasons as required by the Act. The learned Magistrate after considering the decision in Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 concluded that the failure to give reasons did not invalidate the permit. In arriving at this conclusion her Worship also considered the decision of the High Court in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme (2003) 201 ALR 327.
[17] In Project Blue Sky Inc & Others v Australian Broadcasting Authority (supra) a majority of the High Court held that an act done in breach of a condition regulating the exercise of statutory power was not necessarily invalid. Whether the act was invalid depended on whether it was a purpose of the legislation to invalidate any act done in breach of the conditions. At p 389, McHugh, Gummow, Kirby and Haine JJ said:
The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the conditions. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. … As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity.
[18] At p 390 their Honours after referring to the decision of the Court of Appeal of New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 with approval said that the classifications between directory and mandatory have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid.
[19] Their Honours said:
That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.
[20] A provision which is similarly structured to s 53 and s 54 of the Planning Act was considered by the High Court in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme (supra). In that case, s 501(2) of the Migration Act 1958 (Cth) empowered the Minister to cancel a visa granted to the person if the Minister reasonably suspects that the person does not pass “the character test” and that person does not satisfy the Minister that he or she passes “the character test”. S 501G(1) provided that if a decision to cancel a visa was made by the Minister, the Minister must give a written notice that inter alia sets out the reasons for the decision. The reasons which were given in that case were somewhat like the reasons given in the present case. The High Court held that such reasons did not comply with the Act. In that particular case s 501G(4) of the Act provided that a failure to comply with the section in relation to a decision does not affect the validity of the decision. The High Court had little difficulty in concluding, following the decision in Project Blue Sky Inc & Others v Australian Broadcasting Authority (supra) that the failure to give reasons did not affect the validity of the decision, but that the failure to provide adequate reasons could be reviewed and compliance by the Minister with his statutory duty may be ordered.
[21] Mr Groves submitted that having regard to the provisions of s 53 and s 54 of the Planning Act, the requirement to serve on the applicant a statement of reasons is not a condition precedent to the exercise of the Consent Authority’s jurisdiction. That is plainly correct. The structure of the Act indicates that the issue of the development permit precedes the giving of the statement of reasons. However, that is not the end of the matter as one must consider the purpose of the giving of the statement of reasons by reference to the language of the statute, its subject matter and objects and the consequences to the parties of holding void every act done in breach of this condition.
[22] It is clear that the giving of the statement of reasons does not affect a right of appeal. The provisions of Division 5 of Part 9 of the Planning Act make it clear that subject to the restrictions and qualifications contained in the Act, an appeal to the Lands and Mining Tribunal is a hearing de novo. The absence of reasons therefore does not affect the appellants’ rights of appeal to the Tribunal. No doubt the purpose of the giving of reasons is to inform an applicant why it is that the Consent Authority has determined the application in the manner in which it did and this may or may not assist the applicant to decide whether or not to appeal. However, as is made plain in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme (supra), the failure to give reasons gives rise to administrative remedies. To hold that the failure to give reasons would invalidate the issue of a development permit would have the consequence that applicants who had obtained development consent and may well be content with any conditions would not have obtained a valid development consent. I do not believe that this would promote the overall objects of the Planning Act, which appear to be directed towards ensuring orderly development in accordance with the matters set out in s 51 of the Planning Act. This ground of appeal is therefore dismissed.
Ground 5 – Charges Not Correctly Worded
[23] Count 11, of which the appellants have been convicted, provides in respect of each appellant as follows:
AND FURTHER the defendant did, between 1 November 2001 and 23 March 2002, develop the land (being section 3617 Hundred of Strangways in the Northern Territory of Australia) in a manner that is not permitted in accordance with a development permit, contrary to s 75(3)(a) of the Planning Act.
PARTICULARS
The defendant failed to retain and maintain vegetation on the land contrary to the provisions of clause 2 of the permit DPO1/0149.
[24] The appellants complain that the particulars refer to “clause 2” of the relevant permit, when in fact there is no clause 2 in the relevant permit; rather there is condition 2.
[25] It is true that the development permit refers to conditions rather than clauses, however that does not mean that the complaint was incorrectly worded. It may have been more precise to have referred to the word “condition” rather than “clause” in the particulars. A defect in the particulars does not mean that there is defect in the charge or that the defendants have been wrongly convicted of the charge. The purpose of particulars is to give a defendant notice of the nature of the charge against him or her. In this case there can be no doubt that the appellants well knew which particular condition of the permit it was alleged that they had breached. There is no substance to this ground of appeal which must be dismissed.
Ground 9 – Not Given a Chance to Test Evidence for a Prima Facie Case
[26] The submission of the appellants’ in their written outline is somewhat confusing, but during argument is became clear that the point that was being made was the appellants were complaining they were not permitted to make a submission that there was no case to answer at the end of the prosecution case.
[27] At the conclusion of the prosecution case, the learned Magistrate in fact invited the appellants to submit whether there was a case to answer and in fact the appellants made a submission to that general effect. After hearing submissions from the appellants her Worship found there was a case to answer and invited the appellants to consider whether or not they wished to give evidence. The appellants indicated that they would wish to give evidence, but the learned Magistrate allowed them overnight to consider that matter. Her Worship indicated that she was not considering drawing an adverse inference against the appellants if they declined to give evidence: cf. May v O’Sullivan (1955) 92 CLR 654. I am satisfied there is no substance to this ground of appeal which is also dismissed. In their written submissions, the appellants complained about a witness, Ms Jacka, who they wished to be recalled “as we had new evidence that would show her testimony was untrue”. That point will be dealt with under another ground.
Ground 8 – The Learned Magistrate Wrongly Granted an Adjournment to the Prosecution During the Hearing
[28] The appellants claim that the matter was listed for hearing originally on 4 April 2003, but it was adjourned until 11 June 2003 because a prosecution witness, Ms Stocks, was about to give birth. The appellants opposed the application for an adjournment due to their own health concerns. When the hearing resumed on 11 June, the appellants cross-examined Ms Stocks who denied any knowledge that there was a hearing listed on 4 April. According to her evidence the first knowledge she had of a hearing was for a hearing on 11 June.
[29] There is no transcript of the hearing for the application for an adjournment before the Magistrate on 4 April 2003; however the matter was agitated before her Worship again on 11 June 2003 (at Transcript pp 2-4), and there is no reason to doubt the appellants’ account as to the reason for the adjournment.
[30] The appellants complained that they were prejudiced by the granting of the adjournment, because this gave the prosecution an opportunity to gather further evidence, which was not available at the time of the original hearing. The alleged additional evidence was an addendum to Ms Stocks’ statement allegedly made on 15 April 2003, which crucially placed the activity concerning count 11 at a time within the six months limitation period.
[31] I do not know the circumstances which led Mr Grove to apply for an adjournment on the basis alleged on 4 April 2003. Even if Ms Stocks herself did not ask for an adjournment that does not mean to say that she had not indicated that she would not have been available until sometime later after the child’s birth. In any event, I do not consider that the appellants have any cause to complain about the granting of the adjournment. Even if it ought not to have been granted, I am satisfied that there was no injustice done. The fact that an addendum was made to Ms Stocks’ statement after the hearing date, only indicates that at the time she was proofed by Mr Groves further information was obtained. If the trial had been required to go ahead on 4 April no doubt he would have proofed her before she gave evidence and the material would have been obtained in any event. I am satisfied that no substantial miscarriage of justice has actually occurred. This ground of appeal is therefore dismissed.
Ground 2 – Forced to Enter Pleas
[32] The substance of this complaint seems to be that the learned Magistrate required the appellants to plea to the charges rather than conducting a preliminary hearing to decide whether or not the charges were out of time.
[33] The ability of a court to conduct a preliminary hearing if it exists must be found in the terms of some statute. The only statutory provision is s 26L of the Evidence Act which relates solely to a court dealing with a matter on indictment and has no relevance to summary proceedings. In any event, there was no other practical way for the Court to have proceeded other than to hear the whole of the evidence and, even in cases where a court does conduct preliminary hearings under s 26L of the Evidence Act, it is always necessary for the defendants to be first called upon to plead. There is no substance to this ground and it is dismissed.
Ground 7 – Crucial Evidence Not Lodged
[34] The appellants, who were self-represented at the hearing before the learned Magistrate, complained that the learned Magistrate failed to inform them that they had the right to tender evidence through prosecution witnesses and alleged that when they sought to lodge documentary evidence in their own case they were not allowed to do so; nor were the witnesses recalled in order for them to seek to prove the documents through the witnesses concerned.
[35] The documents to which this ground of appeal relates consist firstly of an addendum to a statement made by the witness, Sally Jacka, and secondly to a letter written to the Development Consent Authority by Mr Dean and Ms Sarah Stocks. Ms Stocks was also a witness for the prosecution.
[36] So far as Ms Jacka is concerned, it is plain that she was cross examined upon the addendum that she made to her statement by Mrs Bonsell (see Transcript 12 June 2003 at page 90). Ms Jacka accepted that she had made an addendum to her statement on 15 April 2003, relating to the first time that she visited the property before 15 January 2002. Ms Jacka gave an explanation as to why that addendum had been made to her statement. In the circumstances there was no need for the appellants to tender Ms Jacka’s statement as she admitted the change to her statement. As to the letter from Ms Stocks, that was tendered by the defendants as Exhibit D3. Consequently there is no substance to this complaint either.
[37] Mr Bonsell also submitted that he wished Ms Jacka to be recalled because she allegedly lied about the reason for which she drove past the appellant’s premises at some particular stage. Notwithstanding that the appellants were not represented, as a general rule it is not appropriate to recall a witness for further cross examination merely because some minor matter going to credit was not put in cross examination when there was an opportunity to have done so at the appropriate time. As I understand it the appellants wished to suggest to the witness that the reason she gave, namely that this was the route which gave her easiest access to the Stuart Highway was demonstrably false. It is not appropriate to recall a witness who has completed her evidence some weeks earlier on a minor matter going to credit when an opportunity to put that to the witness in cross examination presented itself, merely because the crossexaminer forgot to put the matter, particularly where the issue is a minor subsidiary issue going to credit only. There is no substance in this ground of appeal which must be dismissed.
Ground 11 – Failure to Accord Justice to the Appellants
[38] This ground contained a number of complaints. First there was a complaint that the appellants were denied legal aid. There is no rule of law or practice which requires the granting of legal aid to persons facing charges brought upon complaint. The leading authority on this subject is the well known decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292. It is plain that the High Court was careful to limit the requirement that an indigent person charged with a criminal offence should be represented by counsel except in exceptional cases to matters where the person is charged with a serious offence: see at page 311 per Mason CJ and McHugh J; at 325 per Brennan J; at 362 per Toohey J; at 375 per Gaurdron J.
[39] The appellants apparently both suffered from health problems. The learned Magistrate after considering that matter sat for only short hours each day. The trial commenced daily at 2.00 pm and the matter was spread over a period of many months. The appellants had plenty of time to gather their thoughts as the case progressed and to prepare. There was no application made by the appellants to adjourn the trial due to ill health. In my opinion the learned Magistrate gave reasonable consideration to the appellants’ situation. Her Worship noted in her reasons that the appellant, Peter Bonsell, is an intelligent person who had vigorously, and for the most part, competently represented himself. Certainly, before me, both of the appellants impressed me as intelligent people who, whilst lacking in experience, certainly left no stone unturned.
[40] Next the appellants complained of the number of charges that they were faced with at the beginning of the trial. As I observed earlier in these reasons, in my opinion the number of charges laid was excessive. However, they were reduced to three at the commencement of the hearing and one could certainly not complain about the number of charges to be dealt with at that stage.
[41] I am satisfied that this ground of appeal is not made out and accordingly it is dismissed.
Ground 13 – Failure by the Prosecution to Produce Photographs
[42] The appellants claimed that a witness, Mr Humphries, attended at their premises in February 2002 and took some photographs. The appellants claim that these photographs should have been disclosed by the prosecution and that they would have been helpful to the appellant’s case. Mr Humphries denied taking any photographs (see Transcript 17 November 2003 at pages 20-21). There is nothing to suggest that Mr Humphries was lying. The prosecutor made enquiries to ensure that no such photographs could be located. There is no substance to this ground of appeal which must be dismissed.
Ground 15 – Coaching of Witnesses by the Prosecutor
[43] The Rules of Professional Conduct and Practice of the Law Society of the Northern Territory deal with this subject matter in Rules 17.28 and 17.29, which provide as follows:
17.28 A practitioner must not suggest or condone another person suggesting in any way to any prospective witness (including a party or the client) the content of any particular evidence which the witness should give at any stage of the proceedings.
17.29 A practitioner will not have breached Rule 17.28 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’ attention to inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the witness believes to be true.
[44] It was suggested by the appellants that the prosecutor had coached two witnesses. First was a witness, Mr Keetch. The evidence in support of that submission arose out of the cross examination of Mr Keetch on 17 November 2003 (at Transcript page 9). The relevant passage is as follows:
MRS BONSELL: Yeah, OK. I forgot – I noticed on your statement you said you don’t recall seeing any rubbish on the block?
KEETCH: Not – no, not rubbish, I don’t know what you really meant by rubbish at the time. There was probably bits and pieces around but I didn’t actually notice anything in particular.
MRS BONSELL: What I want to ask you about that is, why have you put that on your statement, yourself and me, I think you’ll agree, have never spoken about any rubbish on the block.
KEETCH: No, no.
MRS BONSELL: It is not your job to sort rubbish out on our block.
KEETCH: No, no.
MRS BONSELL: So why have you put that on there did somebody ask you to put that on your statement?
KEETCH: Well, not really I just put down what I thought.
MRS BONSELL: It seems a strange thing to put on your statement when its got nothing to do with you whatsoever about rubbish being on my block?
KEETCH: I agree…
MRS BONSELL: Somebody – has somebody asked you to write it on this statement, and please remember you are on oath?
KEETCH: Yes, I realise that. Talking to the prosecutor he – he just mentioned did you see any rubbish or anything on the block…
MRS BONSELL: That’s all I wanted to know. In my opinion it’s coaching witnesses…
[45] As can be see by reference to Rule 17.29 merely questioning and testing in conference the version of evidence to be given by a prospective witness does not amount to a breach of Rule 17.28 and certainly does not amount to coaching.
[46] Similarly the allegation that Mr Grove coached the witness, Sally Jacka, by asking her “write an addendum to her original statement” is not a breach of the Law Society’s professional conduct rules and does not amount to coaching.
[47] This ground of appeal is therefore dismissed.
Ground 17 – Failure to Direct the Appellants on Procedure
[48] In MacPherson v The Queen (1981) 147 CLR 512 at 534, Mason J, as he then was, said:
Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial.
[49] Brennan J, as he then was, said at page 547:
Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.
[50] The appellants were not represented by legal counsel at their trial. The appellants complain that the learned Magistrate failed to direct them on the procedures to be adopted throughout the trial and accordingly complain that the trial was not fair.
[51] Some individual matters of complaint are dealt with under other heads of appeal and are not necessary to be discussed here. However, aside from those matters, the appellants made no particular complaint either in their written submissions or in their oral submissions.
[52] Having read through the transcript of the whole of the proceedings, I am satisfied that the learned Magistrate did all that was required of her. At each stage of the proceedings the learned Magistrate carefully explained to the appellants the course that the proceedings would follow and what their rights were. On a number of occasions the learned Magistrate, having explained to the appellants their rights, adjourned the proceedings, sometimes until the next day, in order for the appellants to consider their position. The learned Magistrate was vigilant to ensure that evidence which was inadmissible against the accused was not admitted into evidence, notwithstanding that neither accused objected. Moreover, I consider that the learned Magistrate’s handling of the case actually did assist the appellants to present their case in a proper manner. I am satisfied that there is no substance to this ground of appeal, which must be dismissed.
Ground 19 – Inadmissibility of Evidence Given by Two Prosecution Witnesses
[53] The complaint of the appellants is that two prosecution witnesses entered their property without telling the appellants that they were witnesses for the prosecution in this matter. They were then permitted to give evidence as to what they saw and what was said between them and the appellants.
[54] This ground of appeal really raises three complaints. The first is whether the witnesses were under some kind of duty to inform the appellants that they were prosecution witnesses. As to this I consider there is no such duty. The second relates to the admissibility of the evidence if the witnesses had unlawfully entered the property. As to this, there is no evidence that either witness entered the property unlawfully; neither witness was asked to leave the property by either of the appellants. The third issue is whether anything said by either appellant ought to have been admitted into evidence. As to this I note that the learned Magistrate raised the question of whether what was said by either of the appellants to the witness Lancaster ought to be admitted on the grounds of involuntariness (see Transcript 12 June 2003 at 105). No voir dire hearing was conducted. Although the conversation which Mr Lancaster had with the appellants is referred to in summary form in the learned Magistrate’s reasons, it is plain that on the matter concerning which the appellants were convicted, no reliance was placed by the Magistrate on anything that may have been said during those conversations.
[55] Mr Lancaster’s position was Manager of the Advisory and Regulatory Services of the Natural Resource Management Division of the Department of Infrastructure, Planning and Environment. He was involved in an advisory regulatory and extension role. His staff issued advice on land and water resources and provided extension services particularly with community groups, Landcare groups and the like. In relation to this case he was the coordinator of the Vegetation Clearing Committee set up under the Planning Act as an advisory committee to the Development Consent Authority. In that capacity he coordinated meetings, wrote reports, got the Committee members together and attended the Development Consent Authority meetings when needed. As part of those functions he attended site meetings of properties the subject of development applications, both before and after the development application had been considered by the Development Consent Authority, with a view to ascertaining facts relevant to the nature of the application and, I gather, policing the carrying out of conditions imposed by the Authority.
[56] It was suggested that Mr Lancaster may have been a person in authority. In my opinion the question of whether or not Mr Lancaster was a person in authority is irrelevant. Even if he was a person in authority (and he may well have been given the breadth of the test laid down in R v Dixon (1992) 28 NSWLR 215), there was nothing to suggest that Mr Lancaster made any inducement to either of the appellants.
[57] So far as discretionary rejection was concerned, the Judges’ Rules which require the administration of a caution, apply only to questioning by a police officer: see Cross on Evidence (loose leaf edition para [33690]).
[58] The other witness who entered the property was Ms Jacka who is an Environmental Consultant to the Litchfield Shire Council. She also represented the Council on the Vegetation Clearing Committee. She gave evidence that in June 2002 she attended the property in her capacity as an employee of the Litchfield Shire Council when she attended the property in response to a call to collect a mangy possum that was suffering from stress. Apart from making some observations about the state of the property at that time, there were no conversations with Mr and Mrs Bonsell of which she gave evidence relevant to the charge in question.
[59] In those circumstances this ground of appeal must be dismissed as there was no impropriety and the evidence as far as it went was admissible. In any event, it is plain that the learned Magistrate did not rely upon any admissions made by the appellants in order to reach her finding of guilt.
Ground 26 – Effects of Mental Illness
[60] Both of the appellants complain that the learned Magistrate did not take into account adequately the effects of mental illness from which both the appellants have suffered for many years. They alleged that they were taking drugs for severe anxiety and depression daily and were not able to cope with the trial. There is an allegation also that a psychiatrist wrote a letter to the Court explaining that the appellants would not be able to defend themselves due to their conditions. The appellants complain that the learned Magistrate paid no attention to the side effects which the drugs they were taking had upon their conditions.
[61] On reading the transcript of proceedings it is apparent that the learned Magistrate did take these matters into account. Sittings were organised to take place only in the afternoons at the request of the appellants because they claimed that the drugs that they were taking would not enable them to concentrate properly until the afternoon. Whenever either of the appellants complained during the course of the proceedings of a lack of well being, the learned Magistrate offered an opportunity to seek an adjournment. There is simply nothing to suggest on a perusal of the transcript of the proceedings that either of the appellants were unable to cross examine witnesses or present their case. Plainly the learned Magistrate thought that Mr Bonsell, in particular, was an intelligent person who had vigorously and for the most part competently represented himself as the learned Magistrate makes those comments in her judgment. There is no similar comment in relation to Mrs Bonsell, who complains that the learned Magistrate “took a swipe at me for not taking the witness box”. The learned Magistrate did nothing of the kind. All her Worship did was to observe as a matter of fact that Mrs Bonsell chose not to give evidence. There is not the slightest suggestion that the learned Magistrate drew any adverse inference against Mrs Bonsell for taking that course. During the course of the hearing the learned Magistrate indicated in plain terms that she would not draw an adverse inference against either of the appellants if they chose not to give evidence.
[62] There is no substance to this ground of appeal which must be dismissed.
Ground 1, 3, 6, 10, 11, 12, 20, 21, 23, 24, 25, 28, 29 – The Learned Magistrate Ought to Have Had a Reasonable Doubt
[63] Each of these grounds in various ways attacked the ultimate finding of the learned Magistrate that the appellants were guilty of count 11 and that that count was properly brought within the six month limitation period.
[64] Section 163(1) of the Justices Act provides:
A party to proceedings before the Court may appeal to the Supreme Court from a conviction, order, or adjudication of the Court (including a conviction of a minor indictable offence, but not including an order dismissing a complaint of an offence), on a ground which involves –
(a) sentence; or
(b) an error or mistake, on the part of the Justices whose decision is appealed against, on a matter or question of fact alone, or a matter or question of law alone, or a matter or question of both fact and law,
as hereinafter provided, in every case, unless some Special Act especially declares that such a conviction, order, or adjudication shall be final or otherwise expressly prohibits an appeal against it.
[65] It is clear from this section that in order to succeed in attacking the factual findings of the learned Magistrate, the appellants must establish that the learned Magistrate made an error of fact.
[66] Since the decision of JK v Waldron (1988) 93 FLR 451 at 455 this Court has accepted that the Court also has the power to allow an appeal where the conviction is “unsafe or unsatisfactory”. The correctness of this view was confirmed by the judgment of the Court of Appeal in Ross v Munns (unreported, 11 June 1998 per Thomas, Bailey and Priestley JJ). In more recent times the expression “unsafe and unsatisfactory” has been disapproved as inaccurately reflecting the wording of s 411(1) of the Criminal Code, where the Court has power to allow an appeal “if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”. Those words do not appear in the Justices Act, but they nevertheless reflect the true process.
[67] In M v The Queen (1994) 181 CLR 487 at 492, Mason CJ, Deane, Dawson and Toohey JJ said:
Where a Court of Criminal Appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of the verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”. In reaching such a conclusion, the Court does not consider as a question of law whether there is evidence to support the verdict. … The question is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.
[68] At page 493, their Honours continued:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, the Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court pays full regard to those considerations”.
[69] Of course those comments apply equally to an appeal from a magistrate. It is the magistrate who is entrusted with the primary responsibility of determining guilt or innocence and of course it is the magistrate who has had the benefit of having seen and heard the witnesses.
[70] At page 494 their Honours continued:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt that a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for a trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[71] Likewise these principles apply to appeals from a Magistrate.
[72] As a starting point, I should observe that the learned Magistrate essentially decided to accept the Crown’s principal witnesses, Sarah Stocks and Sally Jacka, and to reject the evidence of Mr Bonsell. She plainly did so taking into account their demeanour in the witness box. In the case of Ms Stocks, the learned Magistrate took into account animosity on the part of Ms Stocks towards the appellants and the fact that Ms Stocks had corrected an earlier statement where she had said that all of the clearing had finished in September 2001. The learned Magistrate said that she believed Ms Stocks’ evidence that she was asked to think more particularly of the dates and concluded that it was November or December of 2001 when the clearing was completed. The learned Magistrate also noted that Ms Jacka was asked at a later date to be specific as to the dates and that she was able to be specific in relation to viewing the property in December 2001. The learned Magistrate noted that Ms Jacka had said that nobody had asked her specifically about that until she made a further statement and that at the time of making that further statement she was unaware of the time limitation on these prosecutions. These are the principle matters upon which these witnesses’ evidence was attacked as going to their credit.
[73] That being so, the appellants have the difficult task of persuading this Court that it ought to interfere.
[74] The complaint in this matter was lodged on 30 April 2002. Consequently it was necessary to show, in order to secure a conviction on count 11, that the appellants failed to retain and maintain vegetation on the land in the southwest corner of the block during the period between 1 November 2001 and 23 March 2002 as alleged in the complaint. Having made my own independent assessment of the evidence, I am unable to conclude that the evidence “contains discrepancies, displays inaccuracies, is tainted or otherwise lacks probative force in such a way as to lead [me] to conclude that, even making full allowance for the advantages enjoyed by the [Magistrate], there is a significant possibility that an innocent person has been convicted”… In other words, I conclude that no error has been demonstrated. Not only was the learned Magistrate entitled to find that the appellants in the period after 1 November 2001 failed to retain and maintain the vegetation on the southwest corner of the land, based upon her assessment of the witnesses, but having reviewed that evidence myself I am unable to conclude that upon the whole of the evidence the learned Magistrate ought to have entertained a reasonable doubt.
[75] One of the points raised by the appellants is that the evidence as to the dates was not “corroborated”. I think all that needs to be said about that is that the evidence of Ms Jacka was corroborated by the evidence of Ms Stocks and to a lesser extent by the evidence of Mr Lancaster. It is clear from all of the prosecution evidence that the process of clearing the south western corner of the block continued well into November/December. Although most clearing had occurred before early December the evidence established through the witnesses Lancaster and Humphries that there were still stumps which had resprouted and regrowth in the area when they visited the premises in February 2002, but when Mr Lancaster revisited the property again in May 2002, the area was completely cleared. On those facts it is plain that clearing the area was an ongoing process well into 2002. In conclusion I do not consider that upon the whole of the evidence the learned Magistrate ought to have had a reasonable doubt that the appellants were guilty. Accordingly this ground of appeal must be rejected.
Ground 11 – Appeal Against Penalty
[76] No particular submissions were made to the Court on this ground. The maximum penalty fixed by the Legislature was 200 penalty units and a four penalty units default penalty. Two hundred penalty units translates into a maximum of $22,000. The learned Magistrate imposed fines of $1,000 on each appellant after considering their personal circumstances. In the course of her reasons, the learned Magistrate said that she had substantially discounted the fines that she would have otherwise imposed, but for the appellants personal circumstances. Before I am able to interfere with the penalties imposed error must be shown. I am unable to see that any error has been made. Accordingly this ground of appeal must also be dismissed.
Conclusion
[77] In the result the appeals are dismissed. I will hear the parties as to costs.

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