Cessnock City Council v Courtney (No. 4)

[2004] NSWLEC 489

Land and Environment Court

of New South Wales

CITATION:

Cessnock City Council v Courtney (No. 4) [2004] NSWLEC 489

PARTIES:

PROSECUTOR
Cessnock City Council

DEFENDANT
Wayne Leslie Courtney

FILE NUMBER(S):

50013 of 2004

CORAM:

Cowdroy J

KEY ISSUES:

Prosecution :- applications for a no case to answer direction or a Prasad direction refused

LEGISLATION CITED:

Cessnock Local Environmental Plan
Environment and Planning Assessment Act 1979

CASES CITED:

R v Crooks; R v Hudson (1944) 44 SR (NSW) 390;
Doney v The Queen (1990) 171 CLR 207;
JMR (1991) 57 A Crim R 39;
Narendra Prasad (1979) 2 A Crim R 45;
R v R (1989) 18 NSWLR 74;
Ross v The King (1922) 30 CLR 246

DATES OF HEARING:

17/08/2004; 18/08/2004; 19/08/2004; 20/08/2004; 24/08/2004

EX TEMPORE
JUDGMENT DATE :

08/24/2004

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

24 August 2004

50013 of 2004 CESSNOCK CITY COUNCIL v WAYNE LESLIE COURTNEY

Judgment – No. 4 no case to answer and Prasad direction

1 At the conclusion of the evidence for the prosecution, the defendant has made an application for a direction that there is no case for the defendant to answer. Such submission is made upon the basis of the principle considered by the Criminal Court of Appeal in JMR (1991) 57 A Crim R 39. Additionally the defendant submits that whilst there may be a scintilla of evidence to justify the charge against the defendant, the evidence is so unsatisfactory that it would be unsafe for the proceedings to continue and that the Court would be justified in finding that there is no charge to be answered.

2 Alternately, the defendant submits that the evidence which may exist against the defendant is so unsatisfactory that the charge should be dismissed. For this second ground, the defendant relies on the principle contained in Narendra Prasad (1979) 2 A Crim R 45.

3 The prosecution opposes both applications and submits that the second challenge made under the no case challenge is in substance no different from a Prasad challenge.

4 In order to consider the merits of each claim it is essential to have regard to the prosecution evidence. The defendant submits that the charge makes it clear that the defendant allegedly carried out development namely the levelling of Mount Molly Morgan and the construction of a road to the Mountain top for the purpose of the construction of a dwelling house. The defendant acknowledges that such purpose would require development approval due to the provisions of the Environment and Planning Assessment Act 1979 (“the E&PA Act”) if such purpose be established by the evidence. However, the defendant submits that the evidence does not establish such purpose. The defendant submits that development for agricultural purposes does not require consent and that there is evidence that the proposed development undertaking by the defendant was for agricultural purposes.

5 The defendant refers to the affidavit of Mr Lyndon Stanley Everett sworn on 6 February 2004 and says that no reason is advanced in Mr Everett’s evidence, either written or oral, to support the charge. At the highest Mr Everett gave evidence that he was undertaking work for the defendant to “construct a building pad”. The nature of the building was not identified and a building pad is not to be equated with construction of a dwelling. The defendant submits that the building pad is consistent with forming an area for the growing of grapes, barbeque and similar structures. He says that a jury could not be satisfied that such evidence is consistent with that of the house. The defendant maintains that no clear statement was made by the defendant to Mr Everett to state the purpose for with the pad was required and the evidence is that Mr Everett was instructed to replace topsoil is consistent with an agricultural use.

6 The defendant refers to the evidence of Mrs Nadine Louise Ash and, in particular, her affidavit of 30 January 2004 wherein she deposed to the following conversation: “It looks like you are building a building platform for your house to me”. The defendant is stated to reply: “I can do this for agriculture and I can plant what I like”. No admission was made by the defendant that the pad was required for the construction of a house.

7 The defendant refers to the evidence of Mr Rodney James Sandell contained in his affidavit of 6 May 2004 and particularly to the conversation in which the defendant referred to the construction of a house. Mr Sandell in his affidavit of 17 August 2004 deposed the following conversation with the defendant in which the defendant was said to comment: “my wife wants it sited up here”. During cross-examination Mr Sandell confirmed that the defendant said that he wished to plant vines on the top of the mountain.

8 The defendant also refers the affidavit of Mr Stephen Forde Leathley sworn on 20 July 2004. The defendant admits that no mens rea is gleaned from the affidavit and indeed Annexure “C” to Mr Leathley’s affidavit which contains notes of the interview with the defendant is distorted and does not corresponded to hand written notes which he made at the time of the interview. The defendant submits that Annexure “C” was contrived to, in effect, give a false impression and that it would not be safe for a jury to rely upon such unreliable evidence.

9 As an additional element of the same challenge the defendant submits that whilst the evidence might amount to scintilla evidence, in the absence of any admission by the defendant, the remaining evidence is insufficient to found the charge. The alleged distortion of Mr. Leathley’s interview records and the fact that the evidence of the witnesses Ms Ash, Mr Sandell and Mr Everrett did not add anything further to the allegations warrant the proceedings be dismissed.

10 In respect of the Prasad challenge, the defendant submits that the evidence is unsafe or unsatisfactory and the question arises whether a jury could be instructed properly to convict. The defendant submits that the defendant does not have to prove his innocence but rather the prosecution must prove guilt and that mere suspicion does not establish the guilt of the defendant as charged.

11 The defendant submits that the prosecution’s evidence that at some subsequent date to the charge he made an application to build a house upon the level platform or building pad does not lead to the conclusion that such proposal was his intent at the date of the charge.

Prosecutor’s submissions

12 The prosecutor submits that it is only necessary to prove that the defendant undertook the development without consent required by the EP&A Act, and that it is not necessary to prove the particulars of the charge which relates to the specific purpose of the development. The prosecutor refers to clause 8 and clause 9 of the Cessnock Local Environmental Plan and in particular to the zoning table. The prosecutor acknowledges that certain development undertaken for the purpose of agriculture does not require consent. The prosecutor also acknowledges that there is a category of development that also does not require consent because it is truly “exempt” development. However, the kind of development undertaken by the defendant, from the evidence, did not satisfy either the definition of “agricultural” development nor “exempt” development.

13 The prosecutor submits that this is not a “circumstantial” case. The prosecutor submits there is a plethora of direct evidence that the defendant had carried out the works being the subject of the charge. The prosecutor submits that it is a matter for the Court to determine whether the real purpose of the works was to construct a building pad or for the purpose of growing grapes. It submits that the Court will readily draw the inference that the purpose of the earthworks carried out by the defendant was preparatory work for a house.

Findings

14 Although the affidavit of Mr Everett does not state the purpose of the earthworks which were undertaken for the defendant, in cross examination it became clear that the works have been undertaken for the purpose of the “building pad”. Additionally, Ms Ash states that the defendant showed her plans for a dwelling. She deposed:-

I said ‘What about the flattening out on top of the hill’
He [the defendant] said, ‘I don’t need approval for that. My wife wants the house built up there, and Toby Tomas has drawn up these preliminary plans for me.

15 Ms Ash said that the defendant then showed her some plans for a house which were entitled “Preliminary plans”.

16 The affidavit of Mr Rodney James Sandell sworn 6 May 2004 corroborates the evidence of Ms Ash and in his supplementary affidavit sworn 17 August 2004 Mr Sandell deposed to the conversation in which the defendant allegedly said:-

I would have preferred a house over there [he was pointing in a general direction to the west] because it will cost us more to get power up on the top of the hill, but my wife wants it sited up here.

17 The affidavit of Mr Leathley refers to his site visit which took place on 8 April 2003. During such visit the defendant explained that he was undertaking earthworks for the purpose of agriculture. However, in response to a challenge by Mr Leathley to such proposition the defendant reiterated words allegedly used in the presence of Ms Ash and Mr Sandell. Mr Leathley said the following conversation took place:-

I said: “Mate, there must be a dozen great places on this property to build a house. Why don’t we go and have a look around and see if there is anywhere else to build it.”
He [the defendant] said “ Nup. My wife has got her heart set on it up here.”

18 Annexure “C” to Mr Leathley’s affidavit contains the reported record of the interview between the defendant and Mr Leathley. Mr Leathley explained that some of the answers recorded in the statement as following the questions in fact followed intervening questions which were asked of the defendant. One answer is consistent with the evidence referred to above. The record of the interview contains the following exchange between Mr Leathley and the defendant:-

41 I said words to be effect of “You have lodged a DA for a dwelling up there now anyway so I would have thought that this is what you were compacting it for.”

42 Mr Courtney responded with words to the effect of “Well I wanted to build the house around the back of the Mountain in the valley out there, but my wife wanted to build it on top of the hill.”

19 In JMR Lee CJ at CL having referred to the discretion of a judge to direct a jury to acquit referred to in R v R (1989) 18 NSWLR 74 referred to the decision of the High Court of Australia in Doney v The Queen (1990) 171 CLR 207, and of Jordan CJ in R vCrooks; R v Hudson (1944) 44 SR (NSW) 390 wherein Jordan CJ quoted from the decision of the High Court of Australia in Ross v The King (1922) 30 CLR 246 at p 255 as follows:-

If there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury and for them alone, and with their decision based upon such evidence no Court or judge has any right or power to interfere.

20 Lee CJ at CL referred to the practice which now followed that has introduced the concept of the “unsafe and unsatisfactory verdict”.

21 Having considered the evidence adduced by the prosecution, namely the evidence of the council’s officers and of the earthmoving contractor, Mr Everett, the Court is satisfied that the challenge based upon “no case to answer” fails.

22 With respect to the Prasad challenge, King CJ in Prasad at p 47 observed that:-

…a tribunal, which is the judge of both law and fact, may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

23 Having considered the evidence of the prosecution the Court is not satisfied that the prosecution evidence answers the description referred to by King CJ. In these circumstances it would be an error of law if the Court dismissed the charge.

24 It follows that each application fails.