Ku-ring-gai Council v John David Chia (No 5)

[2018] NSWLEC 167

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ku-ring-gai Council v John David Chia (No 5) [2018] NSWLEC 167
Hearing dates:	23 October 2018
Decision date:	24 October 2018
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See [25]
Catchwords:	PRACTICE AND PROCEDURE – criminal law –application by defendant pursuant to s 128 of the Evidence Act 1995 (NSW) for the potential availability of a certificate to be explained to a prosecution witness – whether it is appropriate to explain the process of obtaining a certificate to the witness
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 118, 118BA, 118N, 125, 127 Evidence Act 1995 (NSW) ss 128, 132, 165
Category:	Procedural and other rulings
Parties:	Ku-ring-gai Council (Prosecutor) John David Chia (Defendant)
Representation:	Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with D Beaufils (Defendant)   Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant)
File Number(s):	2016/00293131

Judgment

1. Yesterday afternoon, during the cross-examination of Mr James McKenzie, a witness called for the prosecution, Mr Steirn, senior counsel for the defendant, asked a series of questions (at Tcpt, 23 October 2018, p 430(25) – 433(25)) relating to a letter dated 9 December 2014 addressed to Mr McKenzie from Ms Wendy Miller, who was an authorised officer appointed by Ku-ring-gai Council (‘Council’) for the purposes of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). The letter became Exhibit 8 in the proceedings.

2. The letter stated that Ms Miller suspected that Mr McKenzie had “knowledge of matters in respect of which information is reasonably required for the purposes of the Environmental Planning and Assessment Act”, in particular in relation to “the pruning and removal of trees on land known as Roseville Golf Course” and the “pruning and removal of trees at 53 Carnarvon Road, Roseville”.

3. In the letter, Ms Miller indicated that she required Mr McKenzie “to answer questions in relation to those matters under s 118BA(3) [of the EPA Act]” and that she considered that his attendance “on a specified day and time and place is reasonably required in order that the questions can be properly answered”. The letter then, under the heading “Requirement”, stated that Mr McKenzie was to “notify me in writing by no later than 12 noon on 15 December 2014 of a proposed date, time and place for you to attend and answer questions in relation to the matters”.

4. The letter contained a further heading, “Note”, the text under which provided as follows:

"If you do not nominate a time and place, or your nominated time and place is not reasonable, I can specify a reasonable time and place in accordance with Section 118(4)(b) of the Environmental Planning and Assessment Act… Following the fixing of a time and place I will require you to attend on that day, time and place for the purpose of answering questions."

5. Also of relevance is that attached to the letter was a one page document styled “INFORMATION ABOUT THIS NOTICE AND WARNING”. For present purposes, it is unnecessary to canvas that document in detail but I note that it contained extracts of what was then s 118N of the EPA Act in relation to the "obstruction of authorised persons". It contained further notes in relation to the recording of interviews and other matters not presently relevant.

6. Mr Steirn had asked certain questions about Mr McKenzie’s receipt of the letter. He noted that Mr McKenzie gave evidence that he, inter alia, “did nothing about the letter” (in the witness’ parlance, he “sat on it”). On this basis, Mr Steirn suggested that before any further questions were asked, given the nature of the evidence already given by Mr McKenzie, he should be informed of his right not to answer questions which may incriminate him and be given notice of the availability of a certificate pursuant to s 128 of the Evidence Act 1995 (NSW) (‘Evidence Act’).

7. Section 128 of the Evidence Act relevantly provides:

128   Privilege in respect of self-incrimination in other proceedings

(1)   This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a)   has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b)   is liable to a civil penalty.

(2)   The court must determine whether or not there are reasonable grounds for the objection.

(3)   Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:

(a)   that the witness need not give the evidence unless required by the court to do so under subsection (4), and

(b)   that the court will give a certificate under this section if:

(i)    the witness willingly gives the evidence without being required to do so under subsection (4), or

(ii)   the witness gives the evidence after being required to do so under subsection (4), and

(c)   of the effect of such a certificate.

(4)   The court may require the witness to give the evidence if the court is satisfied that:

(a)   the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(b)   the interests of justice require that the witness give the evidence.

(5)   If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6)   The court is also to cause a witness to be given a certificate under this section if:

(a)   the objection has been overruled, and

(b)   after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7)   In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:

(a)   evidence given by a person in respect of which a certificate under this section has been given, and

(b)   evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence,

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

Note. This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an “Australian Court” instead of a “NSW court”.

…

8. Mr Howard, senior counsel for the prosecutor, opposed this course and the issuing of a certificate under s 128 of the Evidence Act.

9. I have heard short submissions from each of Mr Steirn and Mr Howard in relation to whether Mr McKenzie may have grounds for making an objection and whether it is appropriate that the witness be given notice of his rights and the availability of a certificate pursuant to s 128(3) of the Evidence Act.

10. It is common ground that Pt 3.10 of the Evidence Act gives statutory effect to, inter alia, the privilege against self-incrimination. As is well-understood, the privilege applies where a witness objects to “giving particular evidence” or “evidence on a particular matter” on the grounds that the evidence may tend to prove that the witness has committed an offence or is liable to receive a penalty.

11. Where it appears to the Court that a witness of a party may have grounds for making an application or objection under s 128, the Court must satisfy itself that the witness or the party is aware of the effect of that provision. This is provided in s 132 of the Evidence Act, which states:

132   Court to inform of rights to make applications and objections

If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.

12. Therefore, if there are grounds for the making of an objection, I must be satisfied that Mr McKenzie is aware of the effect of s 128 of the Evidence Act. If a certificate is to be granted, the first matter, as I understand it, is to be satisfied that Mr McKenzie may have grounds for making an objection under s 128.

13. The position of Mr Steirn and Mr Howard may be shortly stated. Mr Steirn indicated that, apart from the evidence already given, he intends to put to Mr McKenzie that he deliberately ignored the letter and a positive answer to that proposed question may incriminate Mr McKenzie and that therefore he was entitled to make an objection.

14. In addition, Mr Steirn said that he anticipates the further evidence may go squarely to Mr McKenzie’s credibility in that he may be complicit or implicated in the offence presently before the Court and that this may affect how the Court should receive his evidence. He intends to submit that the Court should give itself a warning at the time it considers Mr McKenzie’s evidence. I assume, although it is not necessary to determine any such application now, that the defendant intends to make an application under s 165 of the Evidence Act.

15. Mr Howard strongly submitted that the threshold for issuing a certificate under s 128 of the Evidence Act is not crossed as the prosecutor would “know full well” that there is no prospect of Mr McKenzie being liable to a criminal offence under the EPA Act at the present time. He noted that the prosecutor would be well aware that the two-year limitation period on the bringing of proceedings provided by s 127(5) of the EPA Act ran out a long time ago and that the prosecutor should or does know that the witness does not have grounds for an objection.

16. Mr Howard submitted that the effect of the Court explaining the position pursuant to s 132 would be to create a feeling of intimidation on the part of Mr McKenzie, or on the part of any other witness, which may prompt a witness against their better judgment to obfuscate in relation to innocuous matters under a cloak of fear and a sense of concern about their possible implication in a criminal offence. He further submitted that there is no proper basis for an application to have been made and there are no reasonable grounds for the witness to make an objection.

17. Mr Steirn replied that a witness in the position of Mr McKenzie should be advised of his rights and that this would give him the confidence to answer questions truthfully without being concerned of being implicated in an offence.

18. Relevantly to the submission in relation to limitation periods, I note that at the time the note was issued to Mr McKenzie, s 127 of the EPA Act provided, inter alia:

127   Proceedings for offences

…

(5)     Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.

(5A)  However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6.

….

19. I have considered overnight the suggestion that Mr McKenzie should be informed of the right against self-incrimination and the availability of a certificate under s 128. I have also considered the obligation of the Court pursuant to s 132 of the Evidence Act.

20. I have closely considered the evidence thus far by Mr McKenzie and the submissions made. I do not accept there is a compelling argument that a notice in relation to the right against self-incrimination and the possibility of a certificate should be given to the witness. I consider, at its highest, whilst it may be the case that Mr McKenzie failed to heed the “requirement” in the letter of 9 December 2014, any failure to do so would have been clear to Ms Miller, an authorised officer or person for the purpose of the EPA Act, at least by 15 December 2014, which was the obligation under the requirement in the letter.

21. The “Note” which I have referred to above also refers to the details of the consequences and refers to s 118(4)(b) of the EPA Act as it then was. I have considered the authorities, the Evidence Act, and the EPA Act in its earlier and relevant form, and particularly I have looked at ss 118, 118N, 125, 127(5), and relevantly, 127(5A). I note I have particularly considered the time limitation in s 127(5) and the possibility for the extension of that limitation provided for by s 127(5A).

22. In plain terms, I must first be satisfied that there are reasonable grounds for the objection; that is, the evidence under consideration may prove that the witness has committed an offence. Of course, I do not need to be satisfied that an offence has been committed, only that there are reasonable grounds for objecting on the ground that the evidence may have the tendency to prove that matter.

23. I accept that the primary time limitation was contained in s 127(5) of the EPA Act and that this is subject to the extension available in 127(5A), which provides an alternative limitation period depending upon when the evidence of the alleged offence first came to the attention of an authorised officer. I have formed the view that there is no compelling argument arising from Mr McKenzie's evidence that he is at risk of self-incrimination and, as such, a “warning” as otherwise suggested is not warranted.

24. I have reached that view because, at most, even taking into account the sections or the wording of s 118N, which apparently was attached to the letter, Mr McKenzie was required at that time to do something which he obviously did not do. In any event, and accepting that Mr McKenzie did not respond to the “Requirement” in the letter, as I have noted above, an authorised officer would have been aware that by 15 December 2014 (the date provided in the letter by which compliance was required) he had not notified the Council in writing.

25. Accordingly, the time limit provided by s 127(5) has elapsed and circumstances necessary for extending the time limit provided for in s 127(5A) could not be met and Mr McKenzie could not now be charged with an offence. I do not intend to provide, on the present evidence, any notice or warning to the witness taking this matter any further.

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Decision last updated: 19 November 2018