Ashley McKay’s case upheld in the Queensland District Court

27th September 2006

After 6 long years and over a dozen court proceedings Ashley and Doris McKay of Torres Park Augathella have had their appeal against a conviction for illegally clearing commercial cypress pine in 1999 upheld in the Queensland Court of Appeal.

Judge Alan Wilson SC handed down his verdict on the 28th of October 2005 after the appeal was heard in May earlier this year.

Judge Wilson found that the decision reached by the Charleville Magistrates Court on the 27th of August 2004 on two counts of destroying commercial cypress pine trees erred in its interpretation of two Tree Clearing Permits (TPC’s). Mr McKay was found to have unlawfully removed 19,702 trees on Torres Park and fined $125,000 and ordered to pay compensation assessed at $85,353.40 and costs of $65, 530.20- in total $275,883.60. Mr McKay pleaded guilty to clearing on a road reserve.

The central issue at trial, and on appeal, was whether or not two Tree Clearing Permits issued to Mr McKay permitted the clearing of cypress pine trees with girths, or greater, of 19cm. As applied under s53(1)(b) of the Forestry Act 1959, a person must not cut or destroy a tree on a crown holding otherwise than in accordance with a permit, lease, license, agreement or contract granted or made under the Act.

Mr McKay was issued two permits to clear land between 30 April and 20 November 1999. One permit related to the clearing of ‘virgin country’and the other to the ‘treatment of regrowth and/or seedlings’. The permits related to ‘Area Details’ which included the clearing of ‘approximately 2290 hectares of brigalow, belah, sandalwood, box, iron bark, bauhinia, wilga and pine seedlings on virgin country.’

In the first instance, the Charleville Magistrates court found that the permits issued to Mr McKay, despite being ambiguous and doubtful, prohibited the clearing of individual commercial cypress pine in the area for which the two permits were issued.

Judge Wilson, however, found that in light of the fact that the permits plainly related to large-scale clearing, by mechanical means, necessarily connotes non-selective removal of trees.

In his judgment, Judge Wilson stated that ‘clearing on the permitted scale would have been impossible had it been limited to named species.’

‘In seems unavoidable that any other construction of the passage mentioning the species is illogical, since there were many more species represented on the land and the apparent selection of only some of them cannot otherwise be explained.’

In his own terms, Judge Wilson found that such an interpretation relating to individual species in the permit area would have created an ‘absurd result’ because the extraneous evidence makes it improbable the Crown could have intended to permit clearing of cypress pine in virgin areas, but prohibited it in regrowth areas.

It was held that the trees which were removed stood in small numbers over a large area and their harvesting was not feasible, in commercial terms.

Judge Wilson referred to several High Court decision relating to the interpretation of statues and the uncertainty of permit conditions. Referring to another Queensland case of Commonwealth DPP v Hart & Ors [2003] QCA 495, Justice Mc Murdo in that decision held that where a statute interfers with the property rights of an individual and the approvals are ambiguous, permits should be construed to place the least burden on the land owner.

It was further held by Judge Wilson that the areas and the boundaries defined in the Tree Clearing Permits were imprecise and were indicative only.

Mr McKay was ordered to pay a fine of $10,000 on the charge of destroying trees on Crown land after pleading guilty to clearing on a road reserve.

All other charges from the Magistrates Court at Charleville were set aside.

Crown prosecution, which has been dogged in its handling of the case, will consider appealing the decision in the Supreme Court.

For the full judgment click here.