Cessnock City Council v Courtney (No. 2)

[2004] NSWLEC 487

Land and Environment Court

of New South Wales

CITATION:

Cessnock City Council v Courtney (No. 2) [2004] NSWLEC 487

PARTIES:

PROSECUTOR
Cessnock City Council

DEFENDANT
Wayne Leslie Courtney

FILE NUMBER(S):

50013 of 2004

CORAM:

Cowdroy J

KEY ISSUES:

Prosecution :- statement admitted for limited purpose of corroboration not for an unfavourable inference

LEGISLATION CITED:

Evidence Act 1995, s 89

CASES CITED:

DATES OF HEARING:

17/08/2004; 18/08/2004; 19/08/2004

DATE OF JUDGMENT:

08/19/2004

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T Howard (Barrister)

SOLICITORS
Cleaves Mallik Gibbs

DEFENDANT
Mr P Arden SC
Mr J Kildea (Barrister)

SOLICITORS
Thompson Norrie

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Cowdroy J

19 August 2004

50013 of 2004 CESSNOCK CITY COUNCIL v WAYNE LESLIE COURTNEY

Judgment – No. 2 admissibility of evidence

1 Objection is taken to a passage in the affidavit of Mr Leathley contained in paragraph seven, wherein Mr Leathley is alleged to have said to Mr Courtney:-

Yes, well that is great advice you have got, but you’re going to have to prove it is for agriculture. Anyway, Wayne, you have shown Nadine plans of a big round house you want to build up here.

2 Those two sentences originally formed part of a larger paragraph, the residue of which has already been disallowed. The question is whether the first two paragraphs should also be disallowed under s 89 of the Evidence Act 1995 (“the Act”).

3 Upon an examination of s 89 of the Act, it is apparent that an inference unfavourable to a party cannot be drawn from evidence that the party or another person has failed or refused to answer a question or respond to a representation put to a party or the other person in the course of official questioning. Secondly, pursuant to s 89(2) of the Act, evidence of that kind is not admissible if it can be used only to draw such an inference.

4 The objection is taken on the ground that not only is s 89(1) and s 89(2) of the Act infringed, but also the fact that the statement is not corroborative. The prosecutor relies upon the evidence to show that it confirms the evidence of Ms Nadine Ash.

5 The Court is satisfied that the content of the two sentences, confined solely for that purpose, is admissible. It does not infringe s 89 of the Act. The Court will admit the two sentences.