Butler v Frost

[1999] NSWLEC 24

Land and Environment Court

of New South Wales

CITATION:

Butler V Frost [1999] NSWLEC 24

PARTIES

PROSECUTOR
Craig Lee Butler

DEFENDANT
Ian Frost

NUMBER:

50108 of 1998

CORAM:

Cowdroy AJ

KEY ISSUES:

:- directions for filing of evidence - evidence held to be inadmissible - application by Prosecutor to adduce fresh evidence - Court’s direction mandatory - unfairness to Defendant if fresh evidence adduced

LEGISLATION CITED:

directions for filing of evidence - evidence held to be inadmissible - application by Prosecutor to adduce fresh evidence - Court’s direction mandatory - unfairness to Defendant if fresh evidence adduced

DATES OF HEARING:

02/03/1999; 02/10/1999

DATE OF JUDGMENT DELIVERY:

02/19/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr P Bambagiotti (Barrister)
Solicitors
Phillips Fox

DEFENDANT
Mr B Pluznyk
Solicitors
D M Roberts & Co

JUDGMENT:

Facts

1. By Notice of Motion filed 28 January 1999 Craig Lee Butler (“the Prosecutor”) seeks leave to adduce further affidavit evidence in its prosecution of Ian Frost (“the Defendant”).

2. The prosecution was commenced by summons filed 27 June 1998 and alleged the Defendant carried out development contrary to Section 76(2) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”). Following the institution of the proceedings, directions were made by the Court on 18 September 1998 that the Prosecutor file any further evidence by 8 October 1998. On 15 October 1998 the matter came before the Court and it was noted that no further evidence was to be filed by the Prosecutor. A plea of not guilty was recorded and the matter was set down for hearing.

3. The hearing took place on 24 November 1998 The Prosecutor relied upon affidavit evidence of several witnesses, each of whose affidavits had been served upon the Defendant in accordance with the directions. Following an examination of Craig Lee Butler, the Prosecutor, the Defendant sought to have the evidence of admissions relied upon by the Prosecutor declared inadmissible. In the Court’s reserved judgment dated 4 December 1998 the submissions of the Defendant were upheld, and the Court ordered that admissions by the Defendant in the interview which took place on 29 April 1998 be rejected.

4. The proceedings were stood over to enable the parties to consider their respective positions, and liberty was granted to either party to restore the matter to the list. No application was made by the Prosecutor to call additional evidence, nor did the Defendant request that the matter proceed.

5. On 16 December 1998 the Defendant requested the Registrar to re-list the matter. A date was allocated being 3 February 1999.

6. On 28 January 1999 the Prosecutor filed its Motion which was also listed for 3 February 1999. The affidavit in support of such Motion of Christopher Thomas Drury sworn 2 February 1999, after referring to the judgment and Court Order dated 4 December 1998, stated, inter alia:-

“4. Since those orders were made, further investigations have been carried out in relation to this matter on behalf of the Prosecutor. Draft statements and Affidavits have been prepared for the Prosecutor, which are in the process of being finalised.

5. I believe that the Prosecutor will be in a position to provide direct first person evidence of the Defendant having carried out the development the subject of these proceedings within approximately one month.”

The Present Application

7. In support of its Motion the Prosecutor submits that it believed that it was expeditious, in the preparation of its charge, to rely upon certain information which it regarded as admissions. The admissibility of such evidence being rejected, it seeks to adduce further evidence. It says that it has not closed its case and that it is not unusual for further evidence to be adduced in the interests of justice.

8. In recent times, courts have required parties to comply with directions designed to ensure an expeditious and fair trial of the issues. In State Pollution Control Commission v Australian Iron & Steel Pty Ltd [No 2] (1992) 75 LGRA 327, Gleeson CJ (at p 333) emphasised the need to ensure compliance with the Court’s directions to facilitate the administration of justice. He upheld as correct the trial judge’s ruling which dismissed an application to admit further evidence and which refused an adjournment in circumstances where specific pre-trial directions had been given.

9. The observations of the Chief Justice are consistent with the provisions of Section 66F of the Justices Act 1902, which directs a Court to refuse to permit evidence sought to be adduced by the Prosecutor if there has been non-compliance with the provisions of the relevant subdivision of the Act. Such subdivision requires that a Prosecutor provide the defence with a brief of the evidence to be relied upon to support a summary charge at least fourteen days prior to the hearing. This section does not have any application in relation to the present proceedings. However it is yet another indication of the philosophy now to be applied in the conduct of litigation namely that in the interests of efficiency and of the administration of justice, the Prosecutor’s evidence must be provided in advance of any hearing of a summary offence, either pursuant to the Justice Act or the pre-trial directions of a Court.

10. The question of the Prosecutor’s evidence was expressly contemplated at the directions hearing on 18 September 1998 and was again considered at the further directions hearing on 15 October 1998. The Prosecutor elected to minimise the evidence which it believed was necessary and in doing so adopted a tactical strategy. If leave is granted as sought in the Motion, the Prosecutor will be adducing further evidence. Consistent with the principle enunciated in State Pollution Control Commission v Australian Iron & Steel Pty Ltd (supra) leave should be refused.

11. There exists a further ground for refusing leave. The concept of fairness to an accused has been clearly enunciated in the High Court of Australia: see Whitehorn v The Queen (1983) 152 CLR 657 per Deane J at 665. In the circumstances confronting the Court His Honour found unfairness to the Defendant because the Crown failed to call a material witness (see Whitehorn p 669). It is prudent for a crown prosecutor to call all available material witnesses: Richardson & Ors v The Queen (1974) 131 CLR 116. In this joint judgment the passage of Lord Roche in Seneviratne v The King [1936] 3 All E.R. 36 at p 49 was cited (at p 121) where his Lordship said:-

“Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.”

The Prosecutor has failed to call all available evidence because of its reliance solely upon interview evidence. The submission that a Prosecutor, having been unsuccessful in the admission of its evidence, should be entitled to call, at some future occasion, further evidence would be grossly unfair to the Defendant. In the present case, unfairness arises in a different way to the circumstances which existed in Whitehorn but the result is the same. If the practice of calling fresh evidence in summary proceedings were permitted, it could expose a Defendant to the risk of adjournments and hearings until the Prosecutor was successful in adducing evidence to establish its case or alternatively to abandon its proceedings. The affidavit filed in support of the Motion reveals that, at the date of its filing, the Prosecutor did not have the relevant evidence, despite the fact that the prosecution had been instituted more than six months ago.

12. The Prosecutor must now elect whether the remaining evidence served upon the Defendant is adequate to secure a conviction or whether the charge should be dismissed. The proceedings remain part heard in the Prosecutor’s case.

13. The Court therefore orders:

i. The Motion be dismissed.

ii. The proceedings be listed for further directions.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 3 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM

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