South Australian Supreme Court clarifies in relation to an exception or exclusion to a development offence when the reverse onus of proof will be triggered

In brief

The case of The Corporation of the City of Unley v Crichton & Anor [2021] SASC 17 concerned an appeal to the Supreme Court of South Australia (Supreme Court) against the decision of the Environment, Resources and Development Court of South Australia (ERD Court) that each of the respondents had not caused "tree-damaging activity" to two regulated trees (subject trees), and were therefore not guilty of a development offence under section 44(1) of the Development Act 1993 (SA) (Act).

It was not in dispute before either Court that each of the subject trees were "regulated trees" within the meaning of section 4(1) of the Act and regulation 6A of the Development Regulations 2008 (SA) (Regulations), nor was it in dispute that each respondent had caused the subject trees to be pruned without an approval of the Corporation of the City of Unley (Council).

The issues considered by the ERD Court in The Corporation of the City of Unley v Crichton & Ors (No 2) [2019] SAEDC 43, which were also the subject of the appeal to the Supreme Court, were relevantly the following:

• Issue 1 – The proper interpretation of the meaning of the word "crown" in regulation 6A(8)(a) of the Regulations, and the proper construction of regulation 6A(8) of the Regulations as "pruning", which is either excluded from, or a limitation on, the definition of "tree-damaging activity" in section 4(1) of the Act.

• Issue 2 – Whether regulation 6A(8) of the Regulations was an exception which triggered the reverse onus of proof in section 56(2) of the Summary Procedure Act 1921 (SA) (SP Act) to place on the respondents the onus of proving, on the balance of probabilities, that the pruning of the subject trees met the requirements of the exception.

• Issue 3 – Whether more than 30% of the crown of each of the subject trees was removed.

In respect of Issue 1, the Supreme Court agreed with the ERD Court's interpretation of the word "crown" in regulation 6A(8)(a) of the Regulations as having its ordinary meaning of "live leaves and branches", but rejected the ERD Court's construction of regulation 6A(8) of the Regulations as limiting the definition of "tree-damaging activity" in section 4(1) of the Act.

In respect of Issue 2, the ERD Court's rejection of the application of the reverse onus of proof in section 56(2) of the SP Act was negated by the ERD Court's error in the construction of regulation 6A(8) of the Regulations when considering Issue 1.

The Supreme Court held that regulation 6A(8) of the Regulations stated a type of "maintenance pruning" which was excluded from the definition of "tree-damaging activity" in section 4(1) of the Act, where both (a) and (b) of regulation 6A(8) of the Regulations were satisfied, and thus section 56(2) of the SP Act placed on the respondents the onus of proving that the pruning of the subject trees met the exclusion.

The Supreme Court held that the following factors may lend support to a provision being an "exception, exemption, proviso, excuse, or qualification" (a statutory exception) capable of triggering section 56(2) of the SP Act:

• the substance and form of the exception and offence provisions, when considered as a whole;

• where the wording of the exception provision is separated from the offence provision;

• where the exception provision assumes the existence of a "primary prohibition" (or fact), which is dependent upon the existence of a "new or different matter from the subject matter of the [primary fact]";

• where the satisfaction of the exception provision would be difficult for the prosecution to prove, but easy for a defendant to prove on the balance of probabilities.

The Supreme Court found in respect of Issue 3 no error in the ERD Court's preference of the expert evidence of the respondents as to the quantity of the crown of the subject trees which was removed, and reiterated the following principles stated in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305 in relation to the admissibility of the evidence of a witness as expert evidence:

• there must be a field of specialised knowledge and an identified aspect of that field in which the witness has demonstrated expertise;

• the opinion must be based on the expert knowledge of the witness, and any facts which have been observed or assumed by the witness must be identified and proved;

• it must be established that the facts on which the opinion of the witness is based form a proper foundation for the opinion.

The Supreme Court also observed in respect of Issue 3 the requirement for the Court to exercise appellate restraint as stated in Fox v Percy [2003] HCA 22, which provides that an appellate Court has neither seen nor heard the witnesses before the lower Court, and therefore ought to make due allowances in weighing conflicting evidence and drawing conclusions.

The Supreme Court ultimately agreed with the ERD Court that the pruning of the subject trees was not tree-damaging activity which could make out a development offence under the Act. The Supreme Court, on application by the first respondent, and as agreed by the parties, made a direction under rule 104X(4) of the Supreme Court Criminal Rules 2014 (SA) that the costs of the appeal be assessed in the ordinary way rather than being limited to the approximate $500 stated in rule 104X(2) of the Supreme Court Criminal Rules 2014 (SA).

Factual matrix

Each of the subject trees were a Eucalyptus Camaldulensis (or Red River Gum) located on land within the Council's local area, which neighboured the first respondent's property (subject land).

The first respondent and another neighbouring landowner (other owner), without the agreement of the owner of the subject land, engaged the second respondent to prune the subject trees. The owner of the subject land reported the pruning to the Council.
The respondents and the other owner were subsequently charged on complaint for undertaking development contrary to section 44(1) of the Act. The other owner pleaded guilty to the commission of the offence.

Dispute before the ERD Court

In respect of Issue 1 and Issue 3, the ERD Court rejected the submission of the Council that "crown" as defined in regulation 6A(8) of the Regulations ought to extend past its ordinary meaning and include dead and diseased branches. The Council alleged that on its construction, the pruning of the subject trees exceeded 30% of the crown contrary to the Regulations.

The ERD Court declined to admit the evidence of the Council's expert, due to a lack of support for the expert's methodology as to the percentage of the crown of the subject trees that had been removed. The ERD Court was not satisfied that the expert's opinion could assist the Court because the expert did not present to have a "special acquaintance" with a body of knowledge or experience that was "sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience".

The ERD Court construed regulation 6A(8) of the Regulations as limiting the definition of "tree-damaging activity" in section 4(1) of the Act, and resolved Issue 2 in favour of the respondents.

Despite the finding that the respondents did not bear the onus of proof, the ERD Court preferred their evidence that no more than 30% of the live foliage (i.e., the crown) of each subject tree had been removed. The ERD Court held that each of the respondents were therefore not guilty of an offence under section 44(1) of the Act, and made costs orders in their favour.

Supreme Court reasoning differs but leads to the same result

The Supreme Court agreed in respect of Issue 1 that "crown" does not include dead branches or foreign plant and its foliage. The Supreme Court, however, held that the ERD Court erred in its construction of regulation 6A(8) of the Regulations as limiting "tree-damaging activity" because the following factors suggested that regulation 6A(8) was a statutory exception:

• the substance of the offence, and the form of the offence as a "general prohibition with a subset of that general prohibition being characterised as an exception", which suggested an intention by the legislature that a defendant bring themselves within the exception;

• the wording of regulation 6A(8) was separately and distinctly provided for in the Regulations and not located in sections 32 or 44(1) of the Act (the offence provisions);

• regulation 6A(8) assumed the existence of a fact (namely, pruning) to make out the "primary prohibition", but the satisfaction of regulation 6A(8) ultimately depended upon the existence of a "new or different matter from the subject matter of the rule", being the pruning of one or more of the following, where the pruning was limited to 30% of the crown of the tree:

  • dead wood, which the Supreme Court held may include wood "unnecessary to the health and proper appearance of the tree, at risk of failing and falling and therefore dangerous", or diseased wood, which the Supreme Court held may include wood "potentially damaging other healthy parts of the tree";

  • branches that pose a material risk to a building;

  • "branches to a tree that is located in an area frequently used by people and the branches pose a material risk to such people".

• it would be difficult for the Council to tender evidence to establish the additional facts required by regulation 6A(8)(a)–(b), but easy for the respondents to because they undertook the pruning of the subject trees.

Given the Supreme Court's construction of regulation 6A(8) of the Regulations as a statutory exception, it held in respect of Issue 2 that the ERD Court erred in rejecting the application of section 56(2) of the SP Act. It was on each of the respondents to prove that the pruning of the subject trees satisfied the exception in regulation 6A(8) of the Regulations.

The Supreme Court did not impugn the conclusions of the ERD Court with respect to the evidence and Issue 3, and accepted that it was open to the ERD Court to find that the pruning of the subject trees met the requirements of the exception in regulation 6A(8) of the Regulations.

Conclusion

The Supreme Court agreed with the ERD Court's decision that the respondents were not guilty of a development offence and dismissed the appeal by the Council.

The approach of the Supreme Court to the question of whether an exception to an offence in a provision of a statute is a statutory exception, which may trigger the reverse onus of proof, followed the decision of the High Court of Australia (High Court) in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.

The High Court's approach in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 has also been followed by various other States in Australia, including by the Queensland Court of Appeal in Stevenson v Yasso [2006] QCA 40, the New South Wales Court of Appeal in ADI Ltd v Environment Protection Authority [2000] NSWCCA 333, and the Supreme Court of Victoria in Director of Public Prosecutions v Esso Australia Pty Ltd (No 5) [2001] VSC 103.