Hakim v Waterways Authority of New South Wales

[2006] NSWCCA 376

Reported Decision: 149 LGERA 415

New South Wales

Court of Criminal Appeal

CITATION:	Mick Bechara Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376
HEARING DATE(S):	16 October 2006
JUDGMENT DATE:	27 November 2006
JUDGMENT OF:	Spigelman CJ at 1; Grove J at 132; Bell J at 133
DECISION:	1 Appeal from the conviction of an offence against s22B(2) of the Rivers and Foreshores Improvement Act 1948 dismissed; 2 Appeal from the conviction of an offence against s22D(5) of the Rivers and Foreshores Improvement Act 1948 allowed; 3 Set aside orders 2 and 3 of Cowdroy J made on 8 July 2005; 4 Remit the issue of what order should be made with respect to the costs of the proceedings in the Land and Environment Court; 5 No order as to costs in this Court.
CATCHWORDS:	CRIMINAL LAW – Practice and Procedure – Powers and duties of prosecution – Prosecutor’s duty does not extend to obtaining statements as distinct from calling witnesses. - CRIMINAL LAW – Practice and Procedure – Information, indictment or presentment – Whether bad for duplicity - Whether unfair to accused – Role of unfairness in law of duplicity. - CRIMINAL LAW – Practice and Procedure – Availability of miscarriage of just under s 5AA Criminal Appeal Act 1912 (NSW) - CRIMINAL LAW – Practice and Procedure – Validity of order
LEGISLATION CITED:	Criminal Appeal Act 1912; s5AA, s5ABN, s6(1) Land and Environment Act 1979; s26, s21(i) Rivers and Foreshores Improvement Act 1948; s22B(2), s22D(1)
CASES CITED:	Alphacell Limited v Woodward [1972] AC 824 Caruso v Boucher (1975) 10 SASR 71 Environment Agency (formerly National Rivers Authority v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 Gilmour v Environment Protection Authority (2002) 55 NSWLR 593 Minister Administering the Ports Corporation & Waterways Management Act 1995 v Hakim [2005] NSWLEC 92 Minister of Administering the Ports Corporatisation & Waterways Management Act 1995 v Hakim [No 2] [2005] NSWLEC 326 Nudd v The Queen (2005) 80 ALJR 61 Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137 R v Hamzy (1994) 74 A Crim R 341 R v Moussad [1999] NSWCCA 337 S v The Queen (1989) 169 CLR 266 The Queen v Apostilides (1984) 154 CLR 563
PARTIES:	Mick Bechara Hakim (Appellant) Waterways Authority (Respondent)
FILE NUMBER(S):	CCA 2006/229
COUNSEL:	P. Byrne SC, P. Tomasetti (Appellant) I. Lloyd QC, I. Hemmings (Respondent)
SOLICITORS:	N. Brunton & P. Coliagiuri, Henry Davis York (Appellant) R. Wilcher, Herbert Geer & Rundle Lawyers (Respondent)

LOWER COURT JURISDICTION:	Land and Environment Court of New South Wales
LOWER COURT FILE NUMBER(S):	50057 and 50058 of 2004
LOWER COURT JUDICIAL OFFICER:	Cowdroy J
LOWER COURT DATE OF DECISION:	7 April 2005

- 36 -

2006/229

SPIGELMAN CJ
GROVE J
BELL J

Monday 27 November 2006

Mick Bechara HAKIM v WATERWAYS AUTHORITY OF NEW SOUTH WALES

Facts

The Appellant was convicted of making an excavation for which a permit was required without obtaining that permit, contrary to s22B(2) of the Rivers and Foreshores Improvement Act 1948. He was also convicted of failing to comply with a stop work order, contrary to s22D(5) of the Act.

The Appellant and his wife owned a block of land on the Parramatta River, a proportion of which is protected land under the Rivers and Foreshores Improvement Act 1948 because it is within 40 metres of the top of the river bank. The Appellant wished to build a new house on this block, a project which required the excavation of an area of land extending to that section of the block that is classified as protected land. The Appellant was informed that Council approval for the project was therefore subject to the Appellant obtaining a Pt 3A permit from the Waterways Authority. However, excavation on the site commenced in October 2003 without this permit being obtained. The Prosecution identified the excavation as extending between 1 October 2003 and 6 February 2004 as constituting an offence under s22B(2).

The excavation came to the attention of the authorities in early February and the Waterways Authority of NSW issued a stop work order pursuant to s 22D(1) of the Act on 3 February 2004. This order was received by the Appellant on 5 February 2004, the same day that a portion of the cliff face collapsed into the river below, depositing rocks onto a Sydney Water sewage pipe. On 6 February 2004 there was further excavation, including the removal of part of the cliff face. The Prosecution identified these actions as constituting an offence under s22D(5), being the failure to comply with a stop work order. The Appellant submitted that the excavation on 6 February was distinct from the earlier excavation, because it was in response to a request by employees of Sydney Water that the rocks be removed from the sewage pipe.

The trial judge rejected the Prosecution’s case at trial that the rock fall on 5 February 2004 was deliberately caused by the Appellant. The offence of excavating from October 2003 to February 2004 was made out and the statutory defence of an absence of control was rejected.

However, with respect to the excavation from October 2003 to February 2004, the trial judge found that the Appellant did have control of the site for the purposes of s22B(2) of the Act, contrary to the Appellant’s submission that he had transferred his control to the builder.

Held (dismissing the appeal from conviction against s22B(2) of the Rivers and Foreshores Improvement Act 1948):

(per Spigelman CJ, Grove & Bell JJ agreeing)
The prosecutor’s duty does not extend to obtaining statements from witnesses, as distinct from calling witnesses. Regardless, neither the failure to obtain statements, nor the Prosecutor’s decision not to call certain witnesses, led to a miscarriage of justice. [57], [58], [60], [66], [68], [71]

(per Spigelman CJ, Grove & Bell JJ agreeing)
The law with respect to duplicity serves a number of purposes, of which the principle of a fair trial is only one. All those purposes were satisfied. The Prosecution’s characterisation of the excavation as a single enterprise did not make the charge unclear. Nor did it occasion unfairness for the Appellant. There was no latent duplicity [81], [82], [84], [87], [88]

(per Spigelman CJ, Grove & Bell JJ agreeing)
It was open for the trial judge to conclude that the Appellant allowed the excavation; there was no miscarriage of justice. [103]
Held (upholding the appeal from conviction against s22D(5) of the Rivers and Foreshores Improvement Act 1948):

(per Spigelman CJ, Grove & Bell JJ agreeing)
The order’s failure to state the “activity” in which the Appellant was to refrain from engaging was a fundamental defect, which invalidates the order. The order was invalid for demanding the cessation of all works, when it should have been limited to the cessation of excavation. [128], [129]

2006/229

SPIGELMAN CJ
GROVE J
BELL J

Monday 27 November 2006

Mick Bechara HAKIM v WATERWAYS AUTHORITY OF NEW SOUTH WALES

Judgment

1 SPIGELMAN CJ: This is an appeal from a judgment of Cowdroy J in the Land and Environment Court exercising the summary criminal jurisdiction of that Court. Pursuant to s5AB of the Criminal Appeal Act 1912, s5AA of that Act applies to a person convicted of an offence by that Court in the exercise of its summary jurisdiction. Relevantly, as so applied, s5AA provides:

“5AA(1) A person:
(a) convicted of an offence …
by the Land and Environment Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction …
(4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Land and Environment Court in its summary jurisdiction or may order that the determination made by the Land and Environment Court in its summary jurisdiction be vacated and make any determination that the Land and Environment Court in its summary jurisdiction could have made on the evidence heard on appeal.”

2 The Appellant together with his wife was the owner of certain land on the Parramatta River upon which a house was being built for them. A significant portion of the land is protected land within the meaning of the Rivers and Foreshores Improvement Act 1948 (“the Act”).

3 The Appellant was convicted of an offence against s22B(2) of the Act for making an excavation without obtaining the required permit. He was convicted of another offence for failing to comply with a stop work order contrary to s22D(1) of the Act.

4 Section 22B of the Act relevantly provides:

“22B(1) A person must not:
(a) make an excavation on, in or under protected land, … unless the person is either authorised to do so by a permit under this Part and does so in accordance with any conditions to which the permit is subject, or is authorised to do so by the regulations.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable:
…
(b) in the case of an individual – to a penalty not exceeding 600 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 300 penalty units for each day the offence continues.’
(3) It is a defence to any proceedings against a person in respect of a contravention of subsection (1) for the person to establish:
(a) that the commission of the offence was due to causes over which the person had no control and that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence; or
…”

5 “Make an excavation” is defined in s22A of the Act as follows:

“’make an excavation’ includes cause or allow an excavation to be made.”

6 “Protected land” is defined in s22A of the Act as follows:

“’protected land’ means:
(a) land that is the bank, shore or bed of protected waters, or
(b) land that is not more than 40 metres from the top of the bank or shore of protected waters (measured horizontally from the top of the bank or shore), or
(c) material at any time deposited, naturally or otherwise and whether or not in layers, on or under land referred to in paragraph (a) or (b).”

7 Section 22D of the Act relevantly provides:

“22D(1) If the Constructing Authority is satisfied that a person is contravening, or is about to contravene, section 22B, the Constructing Authority may, by written notice given to the person, order the person not to engage in that activity.
(2) The order takes effect immediately or from a later time specified in the notice and is subject to such conditions as the Constructing Authority may specify in the order.
…
(4) An order under this section remains in force until one of the following happens:
(a) the order is revoked by the Constructing Authority,
(b) the period (if any) for which the order is expressed in the notice to be in force elapses,
(c) a period of 3 months elapses (being a period that commences on the day on which the order takes effect).
(5) A person who does not comply with an order in force under this section is guilty of an offence and is liable:
…
(b) in the case of an individual – to a penalty not exceeding 600 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 300 penalty units for each day the offence continues.”

The Relevant Facts

8 Cowdroy J set out the relevant background facts in his judgment on the conviction (Minister Administering the Ports Corporation & Waterways Management Act 1995 v Hakim [2005] NSWLEC 92 [7]-[21]):

“[7] The defendant and his wife, Mrs Yvonne Hakim (‘the Hakims’) are the owner of land known as 10 Fortescue Street Chiswick being lot 115 of Deposited Plan 1111 (‘the site’). The site has rear boundary to the Parramatta River (‘the river’) comprising a rock cliff face. The site slopes unevenly from the street frontage to the river frontage. Prior to November 2002 the site was roughly terraced with sandstone outcrops and a single storey dwelling existed on the site.
[8] By Development Application number 915/02 dated 3 December 2002 (‘the first D/A’) made pursuant to s 78A of the Environmental Planning and Assessment Act 1979 (‘the EP&A Act’) the Hakims sought consent from the City of Canada Bay Council (‘the Council’) to demolish the existing dwelling and to erect a two-storey dwelling house on the site.
[9] Although the first D/A did not involve any development on the river frontage the plans showed an excavation for a concrete slab for the proposed dwelling. A substantial portion of such slab lay within 40 m of the top of the bank of the river. Such portion of the slab was located on “protected land” as defined in the Act .
[10] Section 22C of Pt 3A of the Act makes provision for the issue of a permit by the Waterways Authority (otherwise known as Waterways) to enable an excavation to be made on ‘protected land’ as defined in Pt 3A. Since a permit was required in addition to consent of the Council, the development constituted integrated development as defined in s 91 of the EP&A Act. The Council therefore referred the first D/A to Waterways.
[11] By letter dated 4 March 2003 Waterways advised the Council that such a permit would be issued subject to special conditions as set out in its letter. It also advised that a separate application for a Pt 3A permit would be necessary before any physical works commenced on the site.
[12] By letter dated 12 May 2003 (‘the consent’) the Council notified the Hakims that the first D/A had been approved by the Council subject to conditions. Condition 6 of the consent provided:-
6. Waterways Requirements
a) No works are to commence at the site prior to a Part 3A Permit under the Rivers and Foreshores Improvement Act, 1984, being issued by the Waterways authority.
Numerous conditions numbered b) to k) specified further Waterways requirements.
[13] By Development Application 423/03 (‘the second D/A’) made on or about 18 June 2003 the Hakims sought development consent from the Council for a seawall on the river frontage of the site. Plans accompanying the second D/A show a rock ledge overhanging proposed access steps and the site of the proposed seawall and infill between the seawall and the cliff face. The accompanying statement of environmental effects stated that the purpose of the development was to allow access to the existing jetty. The following statement under ‘Site Characteristics’ provides:-
There is an overhanging sandstone ledge along two thirds of this waterfront. That rock is weathered and fractured to the point of possibly being danger a to anyone moving under it.
The foreshore was described as a:-
jumble of rocks with a Sydney Water sewer line cut through the rock shelf for the full width of the frontage and extending both north and south.
Since the second D/A was also one for integrated development, the Council referred it to Waterways.
[14] By letter dated 8 September 2003 Waterways informed the Council that a Pt 3A permit would not be issued for the proposed development. The reasons for refusal related to the destruction of natural habitat values and prevention of tidal movements. It also noted that the statement of environmental effects failed to address comprehensively the potential harm to the natural intertidal rock platform.
[15] The second D/A was refused by the Council. Despite this refusal, the Hakims again sought development consent for the same seawall by application for development to the Council number 847/03 dated 26 November 2003 (‘the third D/A’). The statement of environmental effects accompanying the third D/A is virtually identical to the previous statement of environmental effects. Plans accompanying this proposal show more extensive development than the second D/A. They show a pool terrace, swimming pool and stairs leading down through a rock area at the cliff face. The following notation is shown:-
existing cracked unstable rock overhang removed.
[16] By letter dated 27 October 2003 the defendant forwarded to Council a report of Luke Tsougranis & Associates Pty Limited, consulting structural and civil engineers, dated 24 October 2003. The report related to the stability of large rocks at the cliff face and especially of a substantial crack for the full length of the overhanging rock at the cliff face. The report concluded that the rock could collapse at any time without warning.
[17] By letter dated 30 October 2003 the Council wrote to the Hakims informing them inter alia as follows:
Further, the proposed works constitute Integrated Development and are required to be referred to the Waterways Authority and the Foreshores and Waterways Planning and Development Advisory Committee.
On 27 January 2004 the Council’s Development Assessment Planner Mr Daniel West forwarded such report to Waterways.
[18] The existing house on the site was demolished and excavation commenced on protected land in October 2003 in the absence of both a Pt 3A permit and a certificate pursuant to s 109D of the EP&A Act (‘the construction certificate’) required by the conditions of the consent. Accordingly such work was carried out in breach of the consent.
[19] On 29 December 2003 the Council issued a Notice of Demand to Stop Work (‘Council stop work order’) on the ground that construction had commenced without the issue of a construction certificate. On 14 January 2004 the Council issued to the Hakims a Notice of Proposed Order under s 121B of the EP&A Act. The proposed order foreshadowed demolition of all works carried out without the benefit of a construction certificate and, inter alia, sought submission of a Pt 3A permit under the Act.
[20] On 3 February 2004 Waterways issued a stop work order (“Waterways stop work order”) pursuant to s 22D(1) of the Act. The Waterways stop work order provided details of the Waterways officer who might be contacted as follows:
Should you have any questions regarding this matter please contact Brendan Dowd on telephone [number].
[21] The Waterways stop work order was received by the defendant on 5 February 2004. On that day a portion of the cliff face was found in the river. On 6 February 2004 further excavation occurred at the site on protected land. Part of such excavation comprised the removal of the cliff face to make a ramp down to the river for the alleged purpose of enabling the excavator to remove rocks which had fallen on Sydney Water’s sewer line. Work ceased on 6 February 2004.”

9 There were a number of factual matters in dispute. Generally, as will appear, his Honour’s findings were adverse to the Appellant. However, his Honour did not find in favour of the prosecution with respect to its case that the rock fall from the cliff face on 5 February 2004 was an intentional and deliberate act.

10 The construction of the dwelling on the Appellant’s land was to be carried out pursuant to a contract between the Appellant and his wife as owners and Jensay Pty Ltd as builder. The principal of Jensay was Mr Achilles Constantinidis. The onsite building supervisor was Mr Dennis Goumis. The driver of the bulldozer that conducted excavation on the site was Mr Georgeakopoulos.

11 During the course of its investigation the Respondent, pursuant to its powers under s22I of the Act, required certain persons to answer questions. The answers provided by Mr Gomutis and Mr Georgeakopoulos were tendered in evidence. Originally the prosecutor did not intend to call either witness. Eventually Mr Gomutis was called. Mr Georgeakopoulos was not called. Mr Constantinidis was not called in the prosecution case but gave evidence in the defence case. Mr Hakim also gave evidence.

12 It was an important part of the Appellant’s case at trial that, pursuant to the contract, Jensay had control of the site and was subject to a contractual obligation to carry out the development in accordance with the consent issued by the Council, including condition 6(a) of that consent, set out in par [13] of the judgment of Cowdroy J. The Appellant submitted to his Honour that, as Jensay had possession of the site, the defendant could not interfere with operations at the site.

13 Cowdroy J referred to the evidence about the terms of the contract as “conflicting and unsatisfactory evidence” and concluded at [182] that he could not be: “satisfied of the contractual arrangements for the performance of the work. Further the Court is not satisfied that the contract removed all control of the site from the defendant”.

14 His Honour did not expressly make a finding that the condition giving possession of the site to Jensay was a term of the contract. However, that may be implicit in his Honour’s finding that the Appellant could have complied with s22B of the Act by applying for a permit, irrespective of the fact that possession of the site had been given to Jensay [183]. His Honour held (at [184]) that he was not satisfied that the defendant was unable to issue instructions to stop the excavation.

15 The next relevant event is the fall of rocks from the cliff face at that part of the site adjoining the Parramatta River. This occurred on 5 February 2004 depositing rocks on a sewerage line of Sydney Water. Pursuant to a request by employees of Sydney Water to remove those rocks, a ramp was constructed on 6 February 2004. That construction involved the removal of part of the cliff wall.

16 It is a central point of the Appellant’s case under Ground 2 that the excavation for the area of the concrete slab was a distinct excavation from that which occurred at the cliff face after the rock fall. The prosecution case had throughout been that there was a single excavation and that the charge related to the whole of excavation activity that occurred between October and 7 February. (See Appeal Book 904 lines 45-48.) His Honour upheld this contention of the prosecution.

17 The section of his Honour’s judgment expressly concerned with findings resolved matters that had been in dispute. His Honour’s recitation of the evidence and submissions also set out evidence that was not challenged.

18 The facts relevant to the issue of whether or not the Appellant caused or allowed the excavation, include the following:

· The Appellant was the part owner of the property and entered into a contract with Jensay pursuant to which that company would carry out the works required for the project, the subject of the development consent.

· The Court could not be satisfied of the precise contractual arrangements for the performance of the work.

· On 21 January 2004, the Appellant was issued with an owner builder permit, apparently because of difficulty experienced by Mr Constantinidis in securing “home owners insurance” (sic).

· On 30 January 2004, the Council wrote to the Appellant referring to the commencement of work at the site. His Honour found that that letter was discussed between a council officer and Mr Hakim.

19 Cowdroy J found that, as charged, the Appellant excavated the land between 1 October 2003 and 7 February 2004. Relevantly, his Honour identified the excavation in the following way:

“[162] The excavation took place to level the site for the purpose of pouring the concrete slab. Approximately half of the area of the slab is located on protected land … The excavation continued on 6 February 2004 by the removal of the remainder of the cliff face.”

20 Excavation with respect to the site of the proposed house had in fact commenced in October 2003 and was completed in November. The concrete slab at that location was in fact poured on 4 February 2004.

21 Much of the evidence in the case, particularly the evidence about which there was dispute, was concerned with the events of the 5 and 6 February 2004. There was no dispute that there was a rock fall on 5 February. The appeal must proceed on the basis that there was no finding that that rock fall was deliberately caused by any act of the Appellant or his builder and the builder’s sub-contractors. It was also not in dispute that the cliff face was further cut back on 6 February for the alleged purpose of constructing a ramp in order to remove rocks that had fallen from the cliff face the previous day onto a Sydney Water sewerage line.

22 Shortly prior to these events, on his Honour’s findings, the locality of the work being conducted on the site was drawn to the Appellant’s attention.

23 On 30 January 2004 the Council forwarded a letter to the defendant which indicated that work had commenced at the site in the absence of a construction certificate from the Council. Furthermore, the evidence of the council records was that an officer of the Council had spoken to the Appellant about these matters. The Appellant gave evidence that he could not recall receiving such a letter and denied having a conversation with Council officers. His Honour rejected the Appellant’s evidence in this respect.

24 On 3 February 2004, Waterways issued a stop work order with respect to the site which is the subject of the charge under s22D of the Act. His Honour found that the stop work order was received by the defendant on 5 February 2004 ([21]).

25 A letter dated 5 February 2004 signed by the Appellant and forwarded to the Council stated as follows:

“I wish to inform you that the rock that was advised to the Council and Waterways as posing a risk of collapse has eventually collapsed causing damage to both the sewer and jetty attached to my property. …
… I contacted my solicitors who advised I report the incident immediately to the Water Board as it posed a health risk. The Water Board reviewed the damage at approximately 4.30pm and were unable to inspect the extent of the damage and the Waterway has redirected the sewer temporarily until tomorrow and has instructed me to clear the debris immediately to ascertain the damage to the sewerage pipe.
We are promptly trying to arrange the removal of debris to avoid and [sic] EPA/Waterway issue we require your approval to construct a ramp to gain access by a machine to remove the debris.
I have instructed my contractor to begin removing the rock as the Waterway has instructed me that if the sewer leaks into the river the EPA will need to be called in.”

26 In his oral evidence the Appellant denied that he had issued any instruction of the character referred to in the last sentence. He asserted that the letter was drafted by his solicitor and he had never given any instructions to the sub-contractors. Cowdroy J rejected the Appellant’s evidence in this respect.

27 A neighbour gave evidence of the occurrence of the rock fall on 5 February. She also observed work being done with a jackhammer on the site at about 9.00am on 6 February. She took photographs of the Appellant at the site during that period. The sequence of photographs show the jackhammer operating on the rock, which comprised part of the cliff face. She gave evidence that during the course of this period the defendant threw rocks at her and said: “Haven’t you got anything better to do, you slut?”. The Appellant denied this incident but his Honour accepted the evidence of the neighbour.

28 A solicitor for the prosecutor, in the presence of two officers of Waterways who confirmed her version of the events, telephoned the defendant and gave evidence of the conversation which did not coincide with the Appellant’s version. His Honour accepted the evidence of the solicitor for the prosecutor. Her evidence was that in the course of this conversation she referred to the stop work order; that the Appellant acknowledged that he had received this order the previous evening and had said: “I’m not carrying out any works”. In response to an express request for “an undertaking that you won’t be doing any works on site”, the Appellant responded “Yes sure I’m not doing any works” ([39]).

29 His Honour also found that the evidence of the Appellant and of Mr Goumis was unreliable and that the evidence of Mr Constantinidis was so vague as to be of little assistance.

30 The Appellant submitted that the excavation to construct the ramp on 5 February was undertaken pursuant to what he chose to characterise, more than once, as an “instruction” from Sydney Water which he described, also more than once as a “regulatory authority”. Of course, all that the Water Board did was to require removal of the rocks. Nothing was said about constructing the ramp whereby the cliff was excavated.

31 If the submission was intended to suggest that the Appellant and/or his contractors were acting in any way pursuant to a lawful order, there is nothing to support any such contention. Sydney Water was the owner of property which had been damaged and the provider of a service which had been interfered with. There was nothing capable of constituting a lawful excuse for any contravention of the Act. Nor, I should add, was any such defence advanced.

32 The “instruction” from Sydney Water was, at most, relevant to penalty and his Honour expressly took it into account in his judgment on penalty. (See at [33].)

33 There are four grounds of appeal as follows:

Ground One: relating to both counts
The prosecutor failed to discharge his responsibility to call all relevant witnesses and in the circumstances this caused a miscarriage of justice. In particular, the prosecutor:
(a) Failed to obtain and serve a statement by Andrew Georgeakopoulos and failed to call him to give evidence at the trial.
(b) Failed to obtain and serve a statement by Achilles Constantinidis and failed to call him to give evidence at the trial.
(c) Failed to obtain and serve a statement from the relevant officers of Sydney Water who on 5 February 6 February 2003 at tended the site where the offences are alleged to have been committed, and failed to call those officers to give evidence.
Ground Two: relating to the first charge on the summons
Regarding charge number 50057, brought under s22B of the River and Foreshores Improvement Act 1948, that is making an excavation without the necessary permit, the terms of the summons were duplicitous and the prosecutor should have been required to elect as to which of the two excavations disclosed by the evidence was that on which the charge was based.
Ground Three: relating to the first charge on the summons
Regarding charge number 50057, brought under s22B of the River and Foreshores Improvement Act 1948, that is making an excavation without the necessary permit, the conviction is unreasonable having regard to the evidence: Criminal Appeal Act 1912, s6(1).
Ground Four: relating to the second charge on the summons
Regarding charge number 50058, under s22D of the Rivers and Foreshores Improvement Act 1948, that is failure to comply with a stop work order made pursuant to that section, the conviction is unreasonable having regard to the evidence: Criminal Appeal Act 1912, s6(1).

34 When the matter came before the Court for hearing Mr P Byrne SC accepted the force of the written submissions of Mr I Lloyd QC, who appeared for the Respondent, that the reference to s6(1) of the Criminal Appeal Act in Grounds 3 and 4 was in error. That section refers only to an appeal from a conviction on indictment. Accordingly, the formulation found in s6(1) that “the conviction is unreasonable having regard to the evidence” is not directly applicable. Mr Byrne submitted that an equivalent ground of appeal was available under s5AB, applying s5AA of the Act. The Respondent did not object to the Court hearing the appeal on the basis that Grounds 3 and 4 should be read as if the words “the conviction is unreasonable having regard to the evidence: Criminal Appeal Act 1912 s6(1)” were deleted and the words “the conviction constituted a miscarriage of justice” inserted.

35 The Respondent did not contend that miscarriage of justice was not an appropriate ground of appeal.

36 The Criminal Appeal Act 1912, contains parallel regimes for appeals from indictable and summary offences. There are pertinent differences.

37 The conferral of a right to appeal “against the conviction” for a summary offence under s5AA, does not differentiate between appeals on questions of law and on the facts, as s5 does with respect to indictable offences, the latter requiring leave. The conferral of powers on the Court of Criminal Appeal under s5AA(4) is not expressed to turn on a particular finding, e.g. miscarriage of justice, unlike s6(1) in the case of a conviction on indictment.

38 The conferral of summary criminal jurisdiction on the Land and Environment Court, relevantly by the combined effect of s26 of the Act and s21(i) of the Land and Environment Act 1979, is expressed in terms of “proceedings for an offence”. Such proceedings, Parliament undoubtedly intended, have to be proceedings in accordance with law. Any proceedings attended by a miscarriage of justice, encompassing issues of both outcome and process (see Nudd v The Queen (2005) 80 ALJR 61 at [3]-[7]), are not proceedings according to law.

39 For analogous reasons, this Court has determined that a qualification of the character expressed in the proviso to s6(1) of the Criminal Appeal Act 1912, should be adopted when exercising the powers under s5AA(4) of that Act. (See Gilmour v Environment Protection Authority (2002) 55 NSWLR 593.)

40 The jurisprudence on what constitutes a miscarriage of justice is now well established. Although that expression relevantly has its origins in a statutory formulation, it is a body of jurisprudence which is equally applicable to appeals from summary criminal proceedings, even in the absence of an equivalent statutory formulation.

41 After oral submissions in this matter, additional written submissions were made pursuant to leave. The Appellant also filed further submissions, described as “Part B”, which went beyond the leave granted. The Respondent objected to the Court considering these further submissions. I do not believe further leave should be granted. However, I have read the Part B submissions and taken them into account. As, in my opinion, they do not affect the result, I have not thought it necessary to seek further submissions from the Respondent.

The Prosecutor’s Duty

42 The Appellant contended that the prosecutor had a duty to take reasonable steps to procure and to serve proofs of evidence from a number of witnesses including the proprietor of the building company, Mr Constantinidis, his sub-contractor’s building supervisor, Mr Goumis, and the bulldozer operator, Mr Georgeakopoulos.

43 The Appellant accepted that statements made by both Mr Goumis and Mr Georgeakopoulos, in answer to statutory notices, were tendered and that Mr Goumis was in fact called as a witness by the prosecutor. He, nevertheless, contended that there was a breach of the prosecutor’s duty.

44 With respect to Mr Goumis, the Appellant contended that the circumstances in which Mr Goumis was called occasioned unfairness by reason of the absence of a formal statement. Reliance was also placed on the fact that the prosecutor was allowed to cross-examine him when his oral evidence diverged from his responses on the statutory notice.

45 The Appellant contended that, even if the prosecutor had formed the opinion that Mr Georgeakopoulos’ evidence was untruthful or unreliable, the failure to communicate the decision prior to the trial constituted a miscarriage of justice because the Appellant was not given a reasonable opportunity to call him.

46 The Appellant contended that it was a miscarriage of justice not to call Mr Constantinidis. The Appellant submitted that when Mr Constantinidis was called in the defence case he was forced to give evidence on very short notice without adequate time to gather his documentation. The trial judge found that Mr Constantinidis’ evidence was vague and of little assistance due to its lack of detail. It was submitted that his evidence could have been presented with more detail and cohesion had the prosecutor procured a proof of evidence and called him as a witness. Furthermore, it was submitted that his Honour’s failure to attach weight to the building contract, because of what he considered to be inconsistencies in the evidence, may have been rectified if the prosecutor had complied with his duty.

47 In reply, the Respondent submitted that the evidence of Messrs Goumis, Georgeakopoulos and Constantinidis was neither material nor fundamental to the proof of either charge. The Respondent submitted that these witnesses would have been relevant to the statutory defence under s22B(3)(a), set out above, to the effect that the commission of offences was due to causes over which the Appellant had no control upon which the Appellant bore the onus.

48 His Honour found that this defence was not made out. I note there is no appeal from that decision.

49 The Respondent submitted that it was not an essential part of the prosecution’s case to establish at whose request the work had been carried out. Accordingly, the three persons were not material witnesses.

50 The Respondent also submitted that it was reasonable for the prosecutor not to call Mr Georgeakopoulos on the basis that he was in the camp of the Appellant. Furthermore, Mr Georgeakopoulos was merely the operator and there was no evidence that he was doing anything other than acting in accordance with instructions. His answers to the statutory notice supported the Appellant’s case, in that they indicated that he had received instructions from others and not from the Appellant. His oral evidence, it was submitted, could not have gone further.

51 The Respondent relied on the fact that Mr Goumis was called. The Respondent also relied on the fact that efforts to obtain a statement from him had been made without success.

52 In the case of Mr Constantinidis, the Respondent submitted that it was reasonable for the prosecutor not to have called him. It submitted that he was clearly in the camp of the Appellant and could reasonably be regarded by the prosecutor as unreliable. The Appellant noted that Mr Constantinidis was clearly aware of the circumstances surrounding the prosecution. On the evidence, he had participated in the drafting of answers to the statutory notices issued to Mr Goumis and Mr Georgeakopoulos by the prosecutor.

53 In support of the decision not to call Mr Constantinidis the Respondent also relied on the contents of the letter of 5 February 2004 to the Canada Bay Council, where the Appellant stated that he had instructed the contractor to begin removing the rock after the fall.

54 In this regard, the Respondent also sought to rely in this Court on the answers given by Mr Hakim in a statutory notice served on him under s22I of the Act. The Appellant objected to the tender of this statement on the basis of s22I(6) of the Act which stated:

“22I(6) Any information or document obtained from a person under this section is not admissible against the person in criminal proceedings other than proceedings for an offence under this section.”

55 The Appellant contended that that section should be construed as extending only to the tender of answers in the course of proving the guilt of the Appellant. This was not the case in the present proceedings. The purpose of the tender was not to establish guilt directly, but simply to determine whether there had been a substantial miscarriage of justice by the failure of a prosecutor to call a material witness. It was not contended that the appeal to this Court was not a “criminal proceeding” within the meaning of the subsection.

56 The Appellant’s submissions are of considerable force but I do not, in the event, find it necessary to resolve the issue of this tender.

57 There are a number of authorities which outline the scope of the prosecutor’s duty to call a witness. These authorities are reinforced by the Advocacy Rules of the relevant Bar Association which reflect proper practice in, so far as I am aware, a uniform manner throughout Australia. The focus in this regard is on the calling of a witness. It was not suggested that any authority or advocacy rule established an obligation with respect to the course of investigation or the preparation for trial of an offence.

58 In my opinion, the Appellant’s submission that a prosecutor’s duty extends to obtaining statements from witnesses should be rejected. The case law concerns calling of witnesses. So do the Advocacy Rules. In any event, the failure to obtain a statement from any of the three witnesses, including Mr Constantinidis did not, in the circumstances of this case, lead to a miscarriage of justice.

59 As the High Court said in The Queen v Apostilides (1984) 154 CLR 563 at 575:

“A decision of the prosecutor not to call a particular witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.”

60 His Honour decided that Mr Constantinidis’ evidence was too vague, particularly on the issue of whether he had exclusive control of the site, whether pursuant to contract or in practice. Not least, but not only, because of the Appellant’s intention to rely on such evidence for purposes of the defence under s22B(3), the vagueness of this evidence cannot be attributed to the fact that the prosecution had not taken a detailed statement from Mr Constantinidis. It was equally in the Appellant’s interests to do so. I can see no miscarriage in that failure even if there were any such obligation.

61 In any event, whatever the precise contractual arrangement may have been, the Appellant in fact exercised a significant measure of control over the activities on his land. The terms of the contract were not determinative in this regard.

62 In the case of Mr Goumis, the statutory notice tendered as part of the prosecution case indicated that he had a relationship with the Appellant in the capacity of a “building supervisor” and that he had been engaged by the Appellant in October 2003. He also said that Mr Hakim had been present on the site about four or five times. Furthermore, with respect to the question of whether there was a construction certificate applying to the site, Mr Goumis had said that he was told that it was part of the council approved plans “by the owner Mr Hakim”.

63 In his oral evidence, Mr Goumis sought to retract that evidence by suggesting that the person who engaged him was in fact Mr Constantinidis.

64 Mr Goumis also denied that the defendant had told him that the construction certificate was part of the approved plans. Nevertheless, Mr Goumis said, with respect to Mr Hakim:

“He comes to sites few times, three or four times. He was asking me questions, he was telling me some things that he wanted to do but I was also confirm with Al and Al says to me to do it or whatever it was, I’ll do it.”

65 With respect to the events of 5 and 6 February 2004, Mr Goumis said that he had already started “to make the ramp” when Mr Hakim arrived on the site. On that occasion Mr Hakim told him of the stop work order. (See judgment at [66].) He said that he was instructed by Mr Constantinidis to construct the ramp in order to do this ([72]). In this context he said that the defendant on 6 February did not give him any instructions.

66 Mr Goumis was called. No miscarriage of justice has been identified in this regard. There was nothing unfair about the fact that there was no prior statement, not least because the new evidence supported the Appellant’s case. Nor was there anything unfair about the prosecution being permitted to cross-examine on a basis expressly permitted by the Evidence Act and sanctioned by long practice.

67 Mr Georgeakopoulos was not called. He was just the bulldozer operator. It was never in issue that his instructions to construct the ramp came only from Mr Goumis. There was no suggestion that he received any instructions from the Appellant. His statement indicated that he did not. It was tendered. I accept the submission that any oral evidence could not have gone further.

68 The possibility that he could have given a version of the rock throwing incident which may have had an effect on his Honour’s credit findings was raised in the late submissions. This proposition is tangential and is, in any event, speculative. There is no indication that he could have given any material evidence. I can see no miscarriage.

69 I should note that the Respondent did not establish that either Mr Goumis or Mr Georgeakopoulos should not have been called because of their bias in favour of the Appellant. To say, as the Respondent did, that each was “in the camp” of the Appellant does not go nearly far enough. (See, e.g. Apostilides at 576.) I do not find it necessary to review the more substantial body of information relied upon in this regard by the Respondent with respect to Mr Constantinidis.

70 Reference was made to the failure to call the employees of Sydney Water who requested the rocks be removed. Their evidence was said to be relevant to the degree to which persons on site had acted in response to their request. I can see no relevance, let alone a miscarriage. Mr Constantinidis and Mr Goumis could, and to a degree did, give the evidence on this matter. In any event, it was not suggested that the Sydney Water employees said anything about excavation, let alone constructing the ramp.

71 In my opinion, there was no miscarriage of justice and this ground of appeal should be rejected.

The Duplicity Ground

72 The Appellant contended in this Court, as he had contended before the trial judge, that the excavation of the area where the residence was to be constructed and the concrete slab was poured (“the slab excavation”), was an excavation that was quite distinct from the excavation at the cliff face (“the rock fall excavation” and “the ramp excavation”). The former had occurred in October, November, perhaps ending in early December 2003. The latter had occurred on 5 and 6 February 2004. As I have noted above, the trial judge rejected the prosecution case that the Appellant was responsible for the rock fall. Accordingly, on his Honour’s findings, there was no “rock fall excavation”.

73 Duplicity in this respect was said to be latent in that it turned on the particular facts and the way the prosecution case was conducted. The Appellant relied upon the observations of Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 100 and the judgment of Simpson J in R v Yildiz [2006] NSWCCA 97 at [7] and [108].

74 The matter had been raised before the trial judge who dismissed it in an interlocutory judgment. (See Minister of Administering the Ports Corporatisation & Waterways Management Act 1995 v Hakim [No 2] [2005] NSWLEC 326). His Honour referred to the judgment of this Court in R v Hamzy (1994) 74 A Crim R 341 and the judgment of the High Court in S v The Queen (1989) 169 CLR 266 for the proposition:

“[13] The overriding consideration in the formulation of the charge is fairness to the accused.”

75 His Honour in the interlocutory judgment said:

“[14] The Court rejects the defendant’s submission that the acts of excavation should be regarded as having occurred in two separate periods.”

76 His Honour affirmed this finding in par [162] of his judgment on conviction that I have quoted above.

77 In the interlocutory judgment his Honour concluded:

“[15] The ultimate question requires the Court to determine whether the formulation of the charge as prosecutor’s evidence relating to the excavation was clearly described in affidavits provided to the defendant before the commencement of the hearing. The defendant was therefore on notice of the case which he was required to meet … In these circumstances there has been no unfairness to the accused in the manner in which the charge has been formulated.”

78 In his submissions to this Court, the Appellant contended that the principles concerning duplicity are not simply concerned with “fairness”. Specifically they raise issues of the availability of a plea of autrefois convict or autrefois convict.

79 The Appellant also submitted that in the present case there were, relevantly, two quite distinct excavations separated in time by approximately two months and separated in location on the site. Furthermore, the excavations were different in nature and carried out for different purposes. In the case of the slab excavation, the Respondent indicated that it would issue such a permit but that no application had in fact been made. With respect to the ramp excavation no such indication had been given.

80 The Respondent contended that it was open to his Honour to consider that there was a single excavation covering the whole of the site in the process of constructing the dwelling and, incidentally, remedying anything that needed remedying during the course of working on the site. There was, the Appellant submitted, “one building enterprise”.

81 I accept the Appellant’s submission that the law with respect to duplicity serves a number of purposes of which the principle of a fair trial is only one. (See S v The Queen supra at 284.) In my opinion, each of the those purposes has been served in the present case.

82 As with any question of characterisation, duplicity always gives rise to matters of fact and degree. It would have been open to the Respondent to formulate separate charges with respect to the slab excavation, the cliff face excavation and the ramp excavation. However, for the reasons given by Cowdroy J, there was no unfairness in proceeding on the basis of a single overall arrangement which encompassed the remedying of matters that arose in the course of the construction.

83 The prosecutor, as in Hamzy at 347, sought “to establish [an] … enterprise” and relied “upon every act which it intends to prove”. The case law which supports a conclusion that a charge involving an overall “enterprise”, of which this case is an example, was analysed in R v Moussad [1999] NSWCCA 337 at [17]-[60].

84 Mr P Byrne SC, who appeared for the Appellant, formulated the relevant test in terms of whether it could be said that it was unclear what the charge precisely related to, what charge the Appellant had to meet and what he was ultimately convicted of. In my opinion, none of these matters was unclear and, accordingly, there was no latent duplicity.

85 At all times the prosecution advanced a case that there was a single overall enterprise, in the sense that there was one construction project which encompassed all acts of excavation necessary or convenient to be carried out for its fulfilment. The charge encompassed every act of excavation within the foreshore area, howsoever separated in time or location. With respect to one aspect of the charge – whether the Appellant caused the rock fall – the Appellant succeeded. With respect to what came before – the slab excavation and what came after – the ramp excavation, the Appellant failed.

86 I do not find anything unreasonable in a charge of this character. A single construction project can involve numerous acts, capable of separate treatment for different purposes. This case focused on two locations: the area of the slab and the area of the cliff face. It does not appear that the two locations necessarily exhausted the full range of acts capable of constituting an excavation on the site. If some other act within the period were to be the subject of a charge, the Appellant could, in my opinion successfully, plead autrefois convict.

87 Nothing in the scope and purpose of the legislative scheme suggests that the word “excavation” requires a process of specification of each distinct act capable of constituting, in some technical or other sense, a different excavation. It is appropriate that the prohibited conduct should be understood as extending to a course of conduct over a period of time pursuant to an overall scheme.

88 The Appellant was aware at all times that the Respondent intended to conduct a case relying on the overall enterprise. There was no miscarriage of justice. This ground of appeal should be rejected.

Miscarriage of Justice

89 Ground 3 relies substantially on the contract between Jensay and the Appellant of which, as I have indicated above, his Honour was unable to determine the terms and conditions. Nevertheless, the Appellant contended that the building contract gave Jensay exclusive possession of the site and that it was a condition of the contract that it be carried out in accordance with the development consent, relevantly Condition 6 which required a permit under the Act for commencing work on the site.

90 His Honour dealt separately with the two aspects of the definition of “excavation”, i.e. the accused “caused” the excavation to be made and the accused “allowed” the excavation to be made. Either would have sufficed. His Honour found both. It was not suggested that there was any material difference between them, e.g. with respect to penalty.

91 With respect to the element of “cause”, his Honour referred to the cases of Alphacell Limited v Woodward [1972] AC 824; Environment Agency (formerly National Rivers Authority v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 and Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1. His Honour concluded:

“[166] In the above authorities the defendants had created the circumstances which gave rise to the offences. In Alphacell pumping equipment of the defendants became blocked and in Empress a diesel tank had been modified in such a way that a third party allowed it to discharge into a river. The defendants had not participated in, nor known of, the act which was the immediate cause of the offence, but each had created circumstances which resulted in the offence.
[167] In the present case the defendant was granted development consent and the defendant acted upon the consent by retaining Jensay to undertake the work. Such consent, and the defendant’s implemention thereof, created the circumstances from which the offence resulted in the same way as the defendants in Alphacell and Empress created the circumstances ultimately leading to the commission of the offences. The intervention of Jensay was not extraordinary in the sense used by Lord Hoffman in Empress (see at 33) . At all times the ultimate responsibility for ensuring compliance with the conditions of development consent lay with the defendant.”

92 His Honour then distinguished the case of Multiplex upon which the Appellant had relied before him and said:

“[170] In Multiplex there was no statutory defence to the charge. However, s 22B(3)(a) of the Act provides a defence on the basis, inter alia, that the defendant had no control. Accordingly in view of the specific provisions of the Act the issue of control in this case is relevant only as an element of the defence. It is also to be observed that the legislation considered in Multiplex created an offence if pollution occurred. In the present case the Act creates an offence if the excavation is made without a permit. It is not merely the physical act of making an excavation which is prohibited, but rather the making of an excavation without authority. Even if the defendant had divested himself of control of the site pursuant to his contract with Jensay, he retained the power to apply for the requisite permit. Accordingly the issue of legal control of the site is not determinative as it was found to be in Multiplex .”

93 On appeal, the Appellant contended that his Honour’s interpretation of the law imposed a duty on the person to whom development consent is granted to comply with the conditions of consent. That would impose a criminal liability on any person to whom the consent was granted for any breach of the conditions of the consent made by a contractor. The Appellant submitted that it was common for a home owner to contract out building works and that it is not the case that any home owner, absent proof of the existence of a joint criminal enterprise, should become criminally liable for the unlawful acts of the building contractor.

94 His Honour also found, in the alternative, that the Appellant had allowed the excavation. His Honour relied on the observations of Bray CJ in Caruso v Boucher (1975) 10 SASR 71 at 75, which were applied in the Land and Environment Court by Bignold J in Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137. The passage from Caruso v Boucher at 75 is as follows:

“Where the whole power and authority to do the act or perform the task in question is delegated, then the power to prevent the forbidden consequences is also delegated, and, if by his negligence the delegate fails to prevent those consequences, the principal can be convicted of allowing them ( Emary v Nolloth [[1903] 2 KB 264 per Lord Alverstone CJ at 269]). Where, on the other hand, the delegate is given precise and limited instructions how to do the act or perform the task and no harm would have ensued if those instructions had been obeyed, and they are disobeyed and as a result the forbidden consequences occur, the principal has committed no offence ( Gilbert v Gulliver [1918] VLR 185]). In the first case he has delegated the power to prevent and a discretion about the manner of prevention, in the second case, by reason of the limited nature of the delegation, he has not.”

95 His Honour concluded:

“[174] Bignold J concluded that “allow” equated to the sanctioning of the illegal act or the failure to prevent it when the defendant had power to prevent the act from happening. This is consistent with Corporation of the City of Adelaide v Australasian Performing Right Association Limited (1928) 40 CLR 481 where Gavin Duffy and Starke JJ (at 503) found that “Permission to do an act involves some power or authority to control the act to be done”.
[175] Adopting these authorities the Court is satisfied that the defendant failed to prevent the excavation. Having received development consent the defendant took no steps to ensure compliance with its conditions when the primary responsibility rested with the defendant, as grantee of the consent, to comply. The defendant therefore “allowed” the excavation.”

96 The Appellant contended in this Court that this was a case within the second category identified by Bray CJ in Caruso, namely one in which “the delegate is given precise and limited instructions how to do the act”. Accordingly, “by reason of the limited nature of the delegation” the Appellant would not have committed an offence if, in accordance with the contract, the permit had been obtained.

97 Furthermore, the Appellant submitted that his Honour’s adoption of the formulation “failed to prevent” implied a duty on the Appellant to comply with the conditions of consent, in effect requiring a duty to actively supervise the work of a contractor.

98 The Respondent contended that the Appellant’s submissions were primarily directed to a quite different statutory offence of failing to comply with conditions of a development consent, which may give rise to an offence under the Environmental Planning & Assessment Act. The issue in this case, the Respondent submitted, is whether or not the Appellant caused or allowed an excavation to be made in a different statutory scheme.

99 The Respondent submitted that his Honour’s application of the reasoning in Alphacell and Empress Car Co was correct. If any error occurred with respect to the question of what “caused” the excavation, the Respondent contended that no miscarriage of justice could be said to have occurred because of the alternative finding that the Appellant “allowed” the excavation.

100 It is sufficient for present purposes to refer to the evidence of the Appellant’s continued exercise of a measure of control over the site, irrespective of the contractual provisions, even assuming them to state the relationship between the parties. The Appellant applied for and was issued an owner builder permit, from which it was open to his Honour to infer that he did exercise some control at all times.

101 More significantly, with respect to the excavation for the ramp, in his letter of 5 February to the Council, the Appellant had expressly stated that he had “instructed” his contractor to remove the rocks that had fallen on the sewer line. There was evidence, including photographs, of the Appellant’s presence at the site while excavation for the ramps was conducted. He expressly gave an undertaking to a solicitor to the prosecutor that he would not continue any works.

102 It was, in my opinion, open to his Honour to conclude, and to do so beyond reasonable doubt, that the Appellant allowed the excavation. This would also have been the case even if, which his Honour did not expressly find, the contract gave possession of the site to the builder and imposed upon him a contractual obligation to obtain a permit.

103 Applying the reasoning in Caruso, giving possession of a site with a view to, relevantly, “excavation”, is itself causing or allowing such excavation. He has facilitated the conduct. Whether the owner of land has ceded control is an issue that arises by way of an express defence.

104 The only matter that gives me pause is the apparent contractual condition that the work be implemented in accordance with the Council’s conditions, which incorporate an indirect reference to obtaining the relevant permit. I have concluded that that is not a “precise and limited instruction how to do the act”, in the sense that Bray CJ had in mind. It was, in my opinion, a contractual provision which obliged the contractor to undertake tasks that would otherwise need to be undertaken by the owner.

105 Even if his Honour had found that a term requiring compliance with all Council conditions did exist, that term would be neither “precise nor limited” with respect to particular acts. Rather it would be part of a set of contractual provisions whereby, to use Bray CJ’s terminology, “the whole power to do the act is delegated”.

106 Whatever may have been the case with respect to the excavation of the slab, about which the evidence was limited, the Appellant’s role in relation to the stop work order and his presence and involvement during the excavation of the ramp, was not able to be characterised as somehow subsumed in any such contractual provision.

107 This ground of appeal should be dismissed.

Validity of the Cease Work Order

108 The Appellant contended that the cease work order was beyond power and therefore invalid. He made a number of specific objections to the order in written submissions. The primary terms of the order were as follows:

“The Waterways Authority order you, your agents and contractors to stop all works within 40 metres of the Mean High Water Mark (MHWM) for the land at 10 Fortescue Street, Chiswick.”

109 I have set out s22D(1) above. The first contention of the Appellant was that the order was invalid as it purported to stop all works on the site, not being limited to excavation works. I find it convenient to deal with this submission last.

110 The Appellant contended, secondly, that there was the no prior satisfaction as to a contravention or a likely contravention. He submitted that, on evidence prior to the issue of the order of 3 February 2004, the prosecutor could not reasonably have been satisfied as to the pre-condition. This was based on the proposition that the trial judge erred in holding that the Appellant was a person who was contravening s22B. In the further written submissions, identified as Part B, the Appellant sought to extend this submission to say that there could be no anticipation of the rock fall and, accordingly, the relevant “excavation” had been completed.

111 The third basis of alleged invalidity was that the order purported to have effect before it was received. It was submitted that the stop work order took effect from 3 February 2004, being the date on which it was faxed. However, it was received by the Appellant on the evening of 5 February 2004. The Appellant relied on s22D(2) of the Act, by which an order took effect “immediately” upon the receipt by the person named in the order. The Appellant submitted that, as the order purported to be valid from 3 February 2004, the Appellant would have been liable for failing to comply because of actions taken before he received notice of the order. This it was said was sufficient to cause the order to be invalid.

112 The fourth ground of alleged invalidity was the alleged fact that the order purported to remain in force for a period beyond that which was authorised under the Act. The Appellant submitted that s22D(4), as set out above, provided a maximum period of three months and that the stop work order purported to extend for an indefinite period as it stated:

“The order remains in force until such time that a Part 3A permit under the Rivers & Foreshores Improvement Act 1948 has been issued by the Waterways Authority.”

113 Finally, it was submitted that the order was invalid because it purported to be an order to agents and contractors of Mr and Mrs Hakim. In the absence of notice to those persons, there was no power to order those persons to do anything. It was submitted that the order should not be read as extending to restraining Mr and Mrs Hakim, “by themselves, their agents or contractors” from engaging in a breach of s22B(1).

114 The Respondent contended that an order to stop all works is not beyond power. The Respondent drew attention to the fact that an order under s22D can be made if a person “is about to contravene” s22B. Accordingly, an order can be supported with respect to works that may result in a contravention and did not need to be confined to the physical act of excavation. The purpose of the order is to prevent the potential for harm arising from activity on protected land.

115 Furthermore, the Respondent contended that it was open to the Respondent to be reasonably satisfied that a person was contravening the Act. Specifically, it referred to the evidence of one of the prosecution witnesses, who was not cross-examined, of a conversation with the Appellant on 3 February 2004:

“Me: The Authority notes there has been some major excavation on site. Under the conditions of your development consent, you are required to obtain a Part 3A permit from the Waterways Authority before you start (excavation) works on site. Our records don’t show that we have issued a permit for the site.
Him: Oh, I did not know that, we have a Construction Certificate to begin works.
Me: If possible could you provide the Authority with a copy of your Construction Certificate. In the meantime, I will send across some paperwork today explaining that works must not take place until you have a permit to do so from the Waterways Authority.
Him: Ok, thank you.”

116 With respect to the assertion that the order purported to have effect before it was received, the Respondent accepted that it could not give rise to criminal liability until it had been received by the Appellant. However, the order was received on 5 February 2004 and the excavation continued on 6 February 2004.

117 With respect to the submission that an order was invalid if it purported to have an unlimited period of operation, the Respondent accepted that the life of an order was constrained by s22D(4). Accordingly, if it were the proper interpretation of that subsection that an order could only be valid for three months, that would not affect the validity of the order. It would simply mean that if an order issued purporting to remain in force for a longer period, then no offence would be committed after the expiry of the three months. In the present case the order was clearly in effect between 3 February and 7 February 2004. It was not complied with after it was received by the Appellant on 5 February.

118 Finally, with respect to the assertion that the order bound other persons, the Respondent submitted that it was not relied upon to demonstrate an offence by any other person. It was issued to and received by the Appellant. The effect of the order was simply to require the recipient to ensure compliance with the terms of the order, including by his agents. The order was not limited to stopping the Appellant personally carrying out work. The Appellant was on site after he had received the stop work order and watched works being carried out in breach of that order. This, it was submitted, was the clearest possible contravention of the order.

119 In my opinion, there was a basis for suspicion that the Appellant was permitting or allowing the excavation. There is no suggestion that, at this time, any officer of the Respondent had any knowledge of the terms of the alleged contract. It was, in my opinion, appropriate for the Respondent to act on the basis that the owner of land would, in the usual case, either “permit” or “allow” such conduct on the land.

120 Furthermore, the officer who rang Mr Hakim, before he issued the stop work order, had told him that the Authority had become aware that major excavation had been conducted without a permit. In reply, as quoted above, Mr Hakim asserted that a “construction certificate to begin works” had been issued. That statement suggested that construction was continuing. It was, in my opinion, reasonable for the officer to proceed on the assumption that the Appellant intended to act on the basis that whatever excavation was required for the construction would be pursued. Again, in my opinion, the Appellant’s submission that the course of conduct should be divided into distinct “excavations” should be rejected.

121 As to the date of commencements, the document contains the sentence “The ‘stop work order’ is effective from 3 February 2004”. The evidence (see vol 2 Tab 24) indicates that the order was faxed on 3 February. It would have been “effective” for purposes of s22D(2) of the Act if “received” on the day it was faxed. It was not, relevantly, received until 5 February. I can see no inconsistency between the order and the section, let alone one that affects the validity of the order. In the events that transpired s22D(2) had the consequence that the statement on the face of the order was not operative. However, an attempt to communicate it was made on the date said to be the date of effect.

122 Similarly, the statement that the “order remains in force” until a permit issued must be understood as having effect subject to the Act. The Respondent did not rely on s22D(4)(b). I agree with the Respondent’s submission that there is no relevant inconsistency, let alone one affecting validity. Assuming the three month limit under s22D(4)(c) is applicable, the Act has the effect that no offence would be committed after the period elapsed.

123 As to the fifth issue, in my opinion, an order which is in terms, addressed to one person and which employs the formulation “you, your agents and contractors” should be understood as applying only to the person, whether acting himself or “by agents and contractors”.

124 I return to the first matter raised under this ground of appeal. The order stated expressly that “all works” must cease. The Respondent did not contend otherwise.

125 Section 22D authorises, subject to penal consequences, an order to a person that the person “not engage in that activity”. The activity referred to is activity which constitutes an actual or prospective contravention of s22B.

126 Section 22B is quite specific and refers to three kinds of activity:

(i) making an excavation;

(ii) removing material; and

(iii) obstructing or detrimentally affecting the flow of waters.

127 Read together, s22B and s22D are concerned with specific conduct, relevantly, the conduct of excavation. It would not, in my opinion, be necessary to specify a particular act or kind of excavation in a s22D notice. I think an order requiring the cessation of excavation would have been valid.

128 However, the order in this case prevented all works, whether excavation or not. There is no statutory basis for any such order. Furthermore, there is no reason to accept the proposition that every aspect of the work to be conducted could be classified as “excavation” or “removal of material”, being the only two possible kinds of relevant conduct. The words in s22D on which the Respondent relied – “about to contravene” – must also be limited to “excavation” or “removal”.

129 The order was not an order within the meaning of s22D in that it failed to state in any way the “activity” in which the Appellant was not to engage. This is, in my opinion, a fundamental defect which invalidates the order.

130 This ground of appeal should be upheld.

Conclusion

131 The orders I propose are:

1 Appeal from the conviction of an offence against s22B(2) of the Rivers and Foreshores Improvement Act 1948 dismissed.

2 Appeal from the conviction of an offence against s22D(5) of the Rivers and Foreshores Improvement Act 1948 allowed.

3 Set aside orders 2 and 3 of Cowdroy J made on 8 July 2005.

4 Remit the issue of what order should be made with respect to the costs of the proceedings in the Land and Environment Court.

5 No order as to costs in this Court.

132 GROVE J: I agree with Spigelman CJ.

133 BELL J I agree with Spigelman CJ.

**********