Leichhardt Council v Geitonia Pty Ltd (No 2)

[2015] NSWLEC 30

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leichhardt Council v Geitonia Pty Ltd (No 2) [2015] NSWLEC 30

Hearing dates:

27 February 2015

Date of orders:

27 February 2015

Decision date:

27 February 2015

Jurisdiction:

Class 5

Before:

Biscoe J

Decision:

The Court does not accept defence counsel’s submission that the Court should tell a prosecution witness before he has given evidence that he has or may have a right to object to giving particular evidence on the ground that it may tend to prove that he has committed an offence, tell him of s 128 of the Evidence Act 1995, and give him an opportunity to obtain legal advice or representation before giving his evidence.

Catchwords:

EVIDENCE – criminal prosecution – defence counsel submits that Court should tell prosecution witness before he gives evidence that he has or may have a right to object to giving particular evidence on the ground that it may tend to prove that he has committed an offence, tell him of s 128 of Evidence Act 1995, and give him an opportunity to obtain legal advice or representation before giving his evidence.

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 127(5) and (5A)
Evidence Act 1995 s 128

Cases Cited:

R v Bikic [2001] NSWCCA 537

Texts Cited:

Odgers, Uniform Evidence Law (11th ed, 2014)

Category:

Procedural and other rulings

Parties:

50795 of 2013
Leichhardt Council (Prosecutor)
Geitonia Pty Limited (Defendant)

50796 of 2013
Leichhardt Council (Prosecutor)
GRC Projects Pty Ltd 135 672 294 (in liq) (Defendant)

50798 of 2013
Leichhardt Council (Prosecutor)
Bill Gertos (Defendant)

Representation:

COUNSEL:
50795 and 50798 of 2013
D A Buchanan SC and A C Hemmings (Prosecutor)
G Thomas (Defendant)
50796 of 2013
D A Buchanan SC and A C Hemmings (Prosecutor)
N/A(Defendant)

SOLICITORS:
50795 and 50798 of 2013
Pikes & Verekers (Prosecutor)
Jordan Djundja (Defendant)
50796 of 2013
Pikes & Verekers (Prosecutor)
N/A (Defendant)

File Number(s):

50795/13, 50796/13, 50798/13

EX TEMPORE Judgment

1. The next witness for the prosecution to be called in this criminal prosecution is Mr John Loukis. Global Demolitions Pty Ltd, which he and his father owned, was the contract demolisher of the southern façade of a building in Parramatta Road, Annandale. The defendants are charged with demolishing the façade contrary to the terms of a development consent and thereby committing an offence under the Environmental Planning and Assessment Act 1979.

2. This morning, prior to Mr John Loukis being called, the defendants Mr Bill Gertos and his company Geitonia Pty Ltd (the developer and land owner) submitted that Mr Loukis should give evidence orally rather than his affidavit being read. The prosecutor consented to that course.

3. A controversial matter was then raised by counsel for those defendants, who emphasised that he was doing so in his capacity as an officer of the Court. He submitted that before Mr John Loukis gives evidence the Court should tell him that he has a right of silence. This came to be refined to a contested submission that the Court should tell him that he has or may have a right to object to giving particular evidence on the ground that the evidence may tend to prove that he has committed an offence, tell him of s 128 of the Evidence Act 1995, and give him an opportunity to obtain legal advice or representation before giving his evidence.

4. Section 128 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.

(8)   Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

(9)   If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.

(10)   In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:

(a)   did an act the doing of which is a fact in issue, or

(b)   had a state of mind the existence of which is a fact in issue.

(11)   A reference in this section to doing an act includes a reference to failing to act.

…

5. Defence counsel’s initial focus was upon a potential objection by Mr Loukis to giving evidence on the ground that it may tend to prove that he has committed an offence by demolishing the southern façade contrary to the terms of the development consent. In my opinion, the short answer is that proceedings for that offence have to be commenced not later than two years after the offence was alleged to have been committed or after the date on which the alleged offence first came to the attention of an authorised officer: s 127(5) and 5(A) Environmental Planning and Assessment Act. On any view, any such offence that Mr Loukis may have committed is time barred. There would not be reasonable grounds for objection under s 128(2) of the Evidence Act if there is no real risk of the person being prosecuted or if the person could not be convicted and punished for the offence, for example because he has received immunity against prosecution: R v Bikic [2001] NSWCCA 537 at [13]-[15] per Giles JA; Odgers, Uniform Evidence Law (11th ed, 2014) at 764. In fact, Mr John Loukis did receive a letter from the prosecuting Council, variously described at trial as a letter of immunisation or letter of comfort against prosecution, if he gave “true” evidence. However, it has been overtaken by the statutory time bar.

6. The submission was then put by defence counsel that the Court should tell Mr John Loukis before he embarks on his evidence that he can object to giving particular evidence on the ground that the evidence may tend to prove that either he has committed an offence by making a false affidavit (even though it has not been read) or might give false oral evidence. This submission was initially related to his immunisation against prosecution, but I do not consider that this fact relevantly distinguishes the present case from the many cases that daily come before the courts on affidavit evidence such that the Court should be telling him what defence counsel proposed. If anything, the fact that the letter of indemnification or comfort is conditional upon him giving true evidence may suggest that he would have been alert particularly to being truthful.

7. Then it was put by defence counsel that there are discrepancies or inconsistencies or contradictions between the affidavit that Mr John Loukis swore and drafts disclosed by the prosecution to the defence, and that this is sufficient for the Court to tell him, before he embarks on his evidence, that he may object to giving evidence on the ground that the evidence may tend to prove that he has committed an offence of swearing a false affidavit or has committed or might commit perjury. As a general proposition, differences between an affidavit and drafts of an affidavit are unsurprising and hardly warrant the course proposed by defence counsel.

8. Nor do I see any justification in accepting defence counsel’s submission that the Court should now give Mr John Loukis an opportunity to obtain legal advice or representation before he is required to give evidence.

9. There is some force in the prosecutor’s submission that if the Court were to do what defence counsel has proposed, it might suggest to the witness that the Court had formed a preliminary adverse view of his evidence even before it was given. Defence counsel submits that this could be negated by the Court giving some appropriate explanation or qualification.

10. I am not persuaded that what has been put by defence counsel is sufficient for the Court to embark on the course that has been proposed, for which no precedent has been cited, before the witness has even given evidence. Accordingly, I do not accept defence counsel’s submission.

11. Exhibit XA (letters of indemnification or comfort to Mr John Loukis and Global Demolitions Pty Ltd) is to be returned.

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Decision last updated: 09 March 2015