Cessnock City Council v Courtney (No. 5)

[2004] NSWLEC 497

Land and Environment Court

of New South Wales

CITATION:

Cessnock City Council v Courtney (No. 5) [2004] NSWLEC 497

PARTIES:

PROSECUTOR
Cessnock City Council

DEFENDANT
Wayne Leslie Courtney

FILE NUMBER(S):

50013 of 2004

CORAM:

Cowdroy J

KEY ISSUES:

Prosecution :- Further application for a Prasad direction refused

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 125(1)

CASES CITED:

Narendra Prasad (1979) 2 A Crim R 45

DATES OF HEARING:

17/08/2004; 18/08/2004; 19/08/2004; 20/08/2004; 24/08/2004; 26/08/2004; 27/08/2004; 31/08/2004

EX TEMPORE
JUDGMENT DATE :

08/31/2004

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

31 August 2004

50013 of 2004 CESSNOCK CITY COUNCIL v WAYNE LESLIE COURTNEY

Judgment – No. 5 application for Prasad direction

1 An application has been made to the Court for a direction that the proceedings be dismissed. Such application is based upon the observations of the Court of Criminal Appeal of South Australia in Narendra Prasad (1979) 2 A Crim R 45.

2 On 24 August 2004 the Court delivered a judgment in respect of a previous challenge to the prosecution’s case based upon the Prasad principle.

3 The application is renewed based upon additional evidence which has been adduced, including exhibit 17 and exhibit N. Exhibit 17 comprises a record of interview between Mr Stephen Leathley and Ms Karen Shearer. Exhibit N comprised the record of interview between Mr Leathley with Mr Brad Whiteley and Mr Adam Davies. The defendant through his senior counsel submits that the evidence from the prosecution is now so unsatisfactory that the prosecution case is in “a shambles.” The submission is made that the evidence could not support any finding that in fact the defendant held the intention at the relevant time to use the land the subject of these proceedings, which was cleared for the purpose of building a house.

4 It is important to bear in mind that the charge referred to in the summons filed on 13 February 2004 alleges that the defendant committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 because he did something that was forbidden, namely that the defendant carried out development of the land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where a development consent had not been obtained and was not in force with respect to the development.

5 The particulars describe the development as earthworks and associated works on top of Mt Molly Morgan, being the construction of a flat, level and compacted platform and secondly the construction of an all-weather access road from the base of Mt Molly Morgan to the newly constructed platform. The particulars also recite the fact that the development was for the purpose of the proposed siting and construction of a dwelling house on top of Mt Molly Morgan.

6 The evidence contained in exhibit 17 details an interview with Ms Shearer who was charged with the responsibility of preparing a plan for a dwelling. The question at para 19 asked by Mr Leathley is as follows:-

Did he give you any, did he say anything about where he intended on building it [the house] on the site?

The answer contained in para 20 is as follows:-

Um, he sort of showed me some photos of certain placements, but that’s about it. We hadn’t had a site plan or anything like that no. Oh we did but it was at a small scale.

Mr Leathley then asked at para 21:-

Did you visit the site at all?

Ms Shearer answered at para 22:-

No.

At para 25 the question was asked:-

So it was just a design, the house could have gone anywhere really, it was just a design for a house.

Ms Shearer answered at para 26:-

Yes. It was only a concept at this stage, like we don’t normally get involved in it that early on.

7 In exhibit N Mr Leathley asked the following question or rather made the following statement in the presence of Mr Whiteley and Mr Davies, having looked at the plans of a proposed dwelling:-

This looks pretty much the same as the plans you have prepared. There is also a site plan on here... It doesn’t look like the house was going to be on the top of Mt Molly Morgan then when he gave this to you.
43. Mr Davies answered with words to the effect of “We wouldn’t know, we don’t know the site.”
44. Mr Leathley then said words to the effect of … “This is where Mt Molly Morgan is. This site on the plan is behind Mt Molly Morgan. (pause) Why isn’t this site plan shown on the preliminary plans.”
45. Mr Whitely responded with words to the effect of “ I don’t know?”

8 It can be seen that the evidence of those two witnesses does not adversely impact upon the defendant. At its highest that evidence appears to be totally neutral.

9 In Prasad the question to be considered by the Court was succinctly explained by King CJ. At p 47 His Honour said:-

It seems to me that to say that a judge can direct a jury to bring in a verdict of not guilty when there is evidence capable in law of supporting a conviction is to infringe one of the basic principles of trial by jury. It is fundamental to trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts. That, as it seems to me, would be contrary to law.

Later, at the foot of the same page, his Honour said:-

Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt 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.

10 In a previous judgment given by this Court on 24 August 2004 in respect to the first Prasad challenge, the Court referred to certain of the evidence adduced by the prosecution. In view of that evidence the Court considers that the further evidence which has been adduced since that date does not impact sufficiently for the Court to direct that the proceedings be dismissed.

11 There is evidence of a kind before the Court adduced by the prosecution. Whether that evidence ultimately is sufficient to discharge the criminal standard of proof is a matter to be determined at a later date. However in view of that evidence so far the Court would regard it as an error of law to direct that the proceedings be dismissed. Accordingly I reject the challenge pursuant to the Prasad principle.