Ku-ring-gai Council v Abroon

[2011] NSWLEC 1

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ku-ring-gai Council v Abroon [2011] NSWLEC 1
Hearing dates:	21 January 2011
Decision date:	21 January 2011
Before:	Pepper J
Decision:	Application to adduce further evidence in chief refused
Catchwords:	Practice and Procedure:- application to adduce oral evidence in chief to supplement affidavit - evidence would prejudice prosecutor who could not properly meet it - application refused
Legislation Cited:	Civil Procedure Act 2005 ss 4, 56 Fines Act 1996 s 6
Category:	Interlocutory applications
Parties:	Ku-ring-gai Council (Prosecutor) Mr Abbas Abroon (Defendant)
Representation:	Counsel: Mr T Howard (Prosecutor) Ms H Irish (Defendant) Solicitors: HWL Ebsworth (Prosecutor) N/A (Defendant)
File Number(s):	50078 and 50079 of 2009

EX TEMPORE Judgment

Introduction

1. HER HONOUR : Before me is an oral application by the defendant, Mr Abbas Abroon, to adduce further oral evidence-in-chief to the effect that he is cash poor, asset rich. The application has arisen in the course of Mr Abroon's sentence hearing.

1. The evidence is necessary, Mr Abroon submits, because Mr Abroon's capacity to pay any monetary penalty the Court may impose consequent upon his guilty plea is a relevant consideration that the Court must have regard to in determining appropriate sentence pursuant to s 6 of the Fines Act 1996.

1. The information is evidence which should have, but was not, adduced by him in his affidavit filed on 3 September 2010, pursuant to directions of the Court. This type of evidence is found in affidavits routinely filed in sentencing matters in this Court. No explanation had been given by him for the omission or why this evidence was not, prior to today, sought to be adduced.

1. The application is made on day four of the hearing, which was originally set down for two days in December 2010. It was not until the day that it was made that the prosecuting council was notified of the foreshadowed application.

Leave is Refused

1. A statement of assets and liabilities of Abby's Real Estate Pty Limited ("Abby's"), of which Mr Abroon is the managing director, was furnished to the prosecution on the first day of the hearing in December 2010 and has been adduced into evidence. While this statement indicates the financial health of Abby's, it does not fully assist the Court in understanding Mr Abroon's financial position.

1. The prosecuting council opposes the leave being granted on the basis that it will be prejudiced if it is admitted absent it being given the opportunity of meeting it. The council says that had this evidence been provided to it earlier, it would have in all likelihood sought to refute it by way of notices to produce and/or subpoenas to relevant financial institutions.

1. Practically, the Court is faced with the choice of either refusing leave thereby precluding the evidence or granting leave together with a further adjournment of the proceedings part-heard, to permit the council to obtain the necessary evidence in reply. This would be the second adjournment of the proceedings and would delay the finalisation of the hearing of the proceedings for at least another month.

1. While, as the name of the Act suggests, s 56 of the Civil Procedure Act 2005, has no application to sentencing proceedings in Class 5 of the Court's jurisdiction (see s 4 of the Civil Procedure Act and the definition of "civil proceedings" and "criminal proceedings" in that Act, which exclude the reach of the legislation to these proceedings), nevertheless, in addition to other important factors such as the relative prejudice to the parties if the application were acceded to and the evidence was admitted, the Court is entitled to have regard to the impact an application would have efficient conduct of the proceedings.

1. To emphasise, this application has been made very late on day four of an intended two day hearing, absent any explanation for the initial omission or the delay in making the application. While the Court recognises that by refusing this application Mr Abroon will not have the benefit of this evidence for the purpose of his submissions as to penalty, this factor does not outweigh the prejudice to the council if the application is granted, the further disruption to the proceedings that will follow, with its attendant costs, or the adverse impact any further delay in finalising the proceedings will have on the efficient administration by the Court of its business. Given these circumstances the Court refuses the leave sought.

Order

1. The application for leave to adduce oral evidence in chief from Mr Abroon as to his financial circumstances is refused.

**********

Decision last updated: 25 March 2011