Lester v Adelaide City Council No. Scciv-02-1444, Scciv-02-1445

LESTER v ADELAIDE CITY COUNCIL
[2004] SASC 48
Full Court: Doyle CJ, Prior and Vanstone JJ

DOYLE CJ: I would dismiss the appeal by Mr Lester against his conviction. I would dismiss the appeal by the Adelaide City Council against the acquittals on counts 2 and 3. I agree with the reasons given by Vanstone J.
PRIOR J: I agree with the reasons given by Vanstone J and with the orders proposed.
VANSTONE J: The Court has before it two appeals arising out of a trial in the Environmental, Resources and Development Court (“ERD Court”) of three charges alleging breaches of s 44(1) of the Development Act 1993. The particular breach alleged was common to all three counts. In each case the complainant was the Adelaide City Council (“the Council”). The defendant in counts 1 and 2 was Damian Lester. He was convicted on count 1, which charged him in his own right, and he was acquitted of count 2, which charged him, pursuant to s 105(3) of the Development Act 1993, with being a director of a body corporate, being Park Fast (Aust) Pty Ltd, which was guilty of the offence. He appeals against his conviction on count 1. I shall refer to him as the appellant.
Count 3 charged Park Fast (Aust) Pty Ltd with the same offence. The company was acquitted. I shall refer to it as Park Fast (Aust).
The Council appeals against the acquittal of the appellant on count 2 and of Park Fast (Aust) on count 3. It also complains that some evidence relevant to all counts was wrongly excluded by the learned trial judge.
The land in question is located near to the southern bank of the River Torrens near the Victoria Bridge. It was adequately described in the complaint and in the evidence. I shall refer to it as Allotment 101. The Riverside Rowing Club is located on Allotment 102 and the Pulteney Rowing Club on Allotment 103. Both rowing clubs abut Allotment 101.
Certain of the particulars of the charges were common to all counts. They alleged that between 12 February 2002 and 6 March 2002 the relevant defendant - or in the instance of count 2, Park Fast (Aust) - “undertook development without development approval and thereby contravened s 44(1) of the Development Act 1993”. Using the definitions in s 4 of the Development Act 1993, that amounted to an allegation that the defendant (or the company) commenced or proceeded with a change in the use of the relevant land, without development approval, during the specified period. At trial the Council led evidence that prior to the specified period, part of Allotment 101 functioned as a parkland track which gave access to the Riverside and Pulteney Rowing Clubs and to another allotment. During the specified period that use of Allotment 101 was changed, so that it now functioned not only as an access track, but also as a commercial car park regulated by signs and ticket machines. This evidence was unchallenged and was accepted by the learned trial judge. It was further accepted that the change in land use was effected without development approval. Accordingly, it was not disputed that the relevant offence had occurred and the issue at trial was whether it was proved beyond reasonable doubt that the appellant and Park Fast (Aust) were implicated as alleged.
I set out the appellant’s grounds of appeal:
1.     The learned trial judge erred in finding that there was a case to answer.
2.     The learned trial judge erred in finding the appellant guilty of count 1 by:
(a)failing to consider whether the inference that the defendant was proceeding with the use of the land for car parking within the period alleged, and was therefore undertaking a change of use of the land was the only rational inference open on the evidence;
(b)relying on the details set out in a business card in an impermissible way;
(c)failing to make findings and give reasons as to the credibility of the witnesses for the prosecution;
(d)failing to apply the reasoning applicable to counts 2 and 3 to count 1;
(d)failing to direct herself as to the burden of proof in the context of circumstantial evidence.
3.     The finding of guilt on count 1 is unsafe and unsatisfactory.
Particulars:
The appellant repeats count 2 herein (sic).
4.     The learned Trial Judge had no jurisdiction to determine the charges before her.
It is convenient to deal first with ground 4, which raises the question of jurisdiction.
The Environment, Resources and Development Court Act 1993 and the Development Act 1993 both came into effect on 1 May 1995. The Environment, Resources and Development Court Act 1993 established the ERD Court. In terms of jurisdiction the Act provides:
7. (1) Subject to this section, the Court will have the jurisdiction (including the jurisdiction to try a charge of an offence) conferred on it by or under this or any other Act.
(2) The regulations^[[1]^] may confer on the Court jurisdiction in respect of offences against a specified Act or statutory provision.
(3) The Court will deal with a charge of an offence in accordance with the procedures appropriate to a summary offence (even though the offence may in fact be an indictable offence) and the Summary Procedure Act 1921 applies to the Court subject to any additions, exclusions or modifications prescribed by the regulations as if references to summary offences extended to offences in respect of which jurisdiction is conferred under this section and as if references to the Magistrates Court extended to the Court.
…
[1] There were none.
Under the heading Constitution of Court, s 15(14) provides as follows:
(14) Where the Court has jurisdiction to try a charge for any offence, the Court will be constituted of –
(a) a Judge; or
(b) a magistrate.
The Development Act 1993 contains the following provision under the heading General Provisions as to Offences:
105. (4) The offences constituted by this Act lie within the criminal jurisdiction of the Court.
The “Court” is defined so that it is a reference to the ERD Court.
In essence the appellant argues that s 105(4) falls short of conferring jurisdiction on the ERD Court and merely provides that offences against the Development Act 1993 will be processed within the criminal jurisdiction, which it assumes the ERD Court already has from another source. The argument turns on the way in which the verb “to lie” is employed within the subsection. It is instructive to note that the Environmental Protection Act 1993 and the River Murray Act 2003 use the same words, that is, “Offences constituted by this Act lie within the criminal jurisdiction …” to effect a vesting of jurisdiction in the ERD Court.[2] On the argument of Mr Abbott QC, who appeared for the appellant, those provisions too are impotent in achieving that purpose. He contrasted the weakness of this wording with what he said was the preferable wording of the District Court Act 1991, which in, for example, s 9(1) provides:
The Court has jurisdiction to try a charge of any offence except treason or murder …
[2] See s 132 Environment Protection Act 1993 and s 39 River Murray Act 2003.
Section 20(2) of that Act then refers to a matter lying within that jurisdiction using the verb in passive a way which clearly does not purport to confer jurisdiction:
20. (2) If a matter lies within the criminal jurisdiction of the Court as is to be tried by jury, the Court will be constituted of a Judge sitting with a jury.
Perhaps s 105(4) of the Development Act 1993 could have employed words that made the situation clearer. However, the draftsman, in expressing a conferral of jurisdiction, is not restricted to any single formula. The words in s 105(4) of that Act are, in my view, apt to vest jurisdiction in the ERD Court and should be taken to have done so.
I turn to the other grounds of appeal. Ground 2 is really in the nature of particulars of ground 3, and ground 1 is effectively subsumed into ground 3. I set out a summary of the evidence led by the complainant to prove guilt of the offences charged. As will be seen, some of the evidence was taken on the voir dire and ultimately excluded.
On 13 February 2002, a Council employee, Ms Worrall, noticed a sign near the access track depicting the letter P with an arrow pointing to the access track and “$3”. She noted several other signs which gave information relevant to parking and which included the words “Public Car Park” and “Enquiries 0411 179 222”. Ms Worrall observed two ticket machines on the access track. She saw that there were a number of cars parked within the access track. She passed on this information to more senior Council employees.
On 4 March 2002 Mr Palumbo, a development officer employed by the Council, dialled the telephone number mentioned on the sign and spoke with Mr Lester. He had had dealings with Mr Lester previously and indeed had retained a business card which Mr Lester had earlier given him containing various contact details. These included the mobile telephone number corresponding to the one on the sign, and information that Mr Lester was the managing director of Park Fast (Aust) Pty Ltd trading as Park Fast, of 14-22 Moore Street, Adelaide, SA, 5000. The card also showed a Park Fast logo. When they spoke on 4 March, Mr Palumbo was able to recognise Mr Lester’s voice from their previous interaction.
Mr Palumbo told the defendant that he had been to the access track and had noted that a car park had been established and that signs indicated that it was a Park Fast enterprise. Mr Lester told him that he had entered into an agreement with the two rowing clubs to set up a car park in that area and that he would be “looking after” it. He said that could be confirmed with Mr Skipper of the Riverside Rowing Club. Mr Palumbo duly confirmed with Mr Skipper that such an agreement existed and he also checked Council records to see whether any approvals for a change of land use were in place. He then telephoned Mr Lester again. He advised Mr Lester that there were no approvals in place, that the car park was therefore unauthorised and that Mr Lester should cease the operation of it by removing the signage and ticket machines, and that he should do so within 24 hours. After that telephone call Mr Palumbo prepared a notice in terms of s 84 of the Development Act 1993, which section authorises a council, in certain circumstances, to direct a person to refrain from any further breach of that Act.
On the following morning Mr Palumbo went to the access track in company with one of his superiors, Mr Thomas. The defendant was present at the track. He was handed the s 84 notice. It seems that notwithstanding that the notice advised that the defendant had 24 hours to comply, he was told by Mr Thomas that he must act immediately and that Council employees would soon do so if he did not. Most of the work was then done by persons under Mr Lester’s control. During the morning Council workers took various photographs of the installations and their removal. There was further conversation between Mr Thomas and Mr Lester including a statement by him that in his view applications to the Council for permission for such developments were too expensive and that he was better off to fight the matter in court. Ultimately, all the evidence of the terms of the conversations on 4 March (though not the fact of them) and the events of 5 March, except for the bare presence of Mr Lester at the site, was excluded by the trial judge. I shall return to that issue.
The complainant also proved an agreement made on 18 December 2001 between Park Fast (SA) Pty Ltd (ACN 098 130 128) of 14-22 Moore Street, Adelaide, SA, 5000 and Riverside Rowing Club Inc and Pulteney Grammar School Inc. The agreement purported to grant to Park Fast (SA) Pty Ltd a licence to operate and manage part of each of Allotments 102 and 103 as “an open lot public car park”. The president of the Riverside Rowing Club, Mr Skipper, gave evidence that he negotiated the terms of that agreement on behalf of his Club with Mr Lester, whom he identified. The written agreement was in evidence.
Among other documentary evidence was a company extract showing (as at 20.8.2002) that Astrodes Investments Pty Ltd, ACN 079 791 478, a registered company, had on 23.2.2000 changed its name to Park Fast (Aust) Pty Ltd, that the latter company, bearing the same ACN, had its registered office at Moore Street, Adelaide and that Damian Richard Rohan Lester was both sole director and shareholder, as well as secretary of it. There was also a business names extract showing that the same company was the proprietor of the business name “Park Fast”.
In the reasons published for her decision in the matter, the learned trial judge set out the facts which had been proved and found that an unauthorised development had been undertaken. The judge then turned her attention to whether Mr Lester had been proved to have undertaken that development, as alleged by count 1. The judge highlighted in summary form the “links” between the development and Mr Lester, referring to the information on the business card previously provided to Mr Palumbo, the fact that Mr Lester answered the telephone number advertised at the site and Mr Lester’s presence at the access track on the occasion of the visit there by Mr Palumbo and Mr Thomas.
I note that the grounds of appeal allege that the information contained on the business card was used impermissibly. No oral argument was addressed as to how that might be so. I consider that Mr Lester’s handing to Mr Palumbo of his business card (on an earlier occasion) amounted to Mr Lester asserting that the details on the card were correct. It makes no difference in terms of admissibility whether such assertions are made in written form or orally. Since Mr Lester was a defendant in this matter, there could be no question of the assertions amounting to hearsay, as counsel at the trial argued. In the circumstances of this case the details amounted to admissions by the defendant and were properly used by the judge as items of circumstantial evidence going to the issue of identity.
The central attack on the finding of guilt on count 1 related to the sufficiency of the matters identified by the judge and also to her use of the word “links” which, it was suggested, implied an error of approach. It was submitted that the mere links identified might amount to no more than an incidental connection with the enterprise, as opposed to Mr Lester being implicated as a principal or accessory.
In my view the argument is not made out. Immediately after the judge identified the specific features of the evidence upon which she relied, her Honour referred to the meaning of “to undertake development” and recorded that she inferred from those facts that “the defendant was proceeding with the use of the land for car parking within the period alleged, and was therefore undertaking a change of use of the land”. I consider that the matters referred to, viewed against the background of the facts as set out by the judge, and her reference to the required nexus to the offence, demonstrate that there was no error of approach. They also indicate an adequate foundation of fact upon which to reach a finding of guilt. The judge could have mentioned in this context the evidence that Mr Lester negotiated the agreement with the Rowing Club and Pulteney Grammar School. In my mind that was a further significant factor pointing to his guilt. But even without that evidence, and without the excluded material, there was sufficient proof. Accordingly Mr Lester’s appeal must fail.
I turn then to the appeal of the Council and set out the only two grounds which were pursued:
1. The learned trial judge erred in excluding from evidence the following material:
(i)The fact that the first respondent was located at the parking site on the 5^th March 2002.
(ii)Photographs and evidence of signs located at the parking site on the 5^th March 2002.
(iii)Photograph Exhibit P12.
(iv)Telephone conversations between Mr Palumbo and the first respondent on 4 March 2002.
3. The learned trial judge erred in not finding that the admissible evidence including the evidence referred to in Ground 1 hereof was sufficient to establish proof beyond a reasonable doubt of Counts 2 and 3.
Mr Abbott QC took a preliminary point in relation to Ground 1. He argued that it amounted to an appeal against an interlocutory decision and was therefore incompetent as being contrary to s 42 Magistrates Court Act 1991. Section 42 relevantly provides as follows:
42. (1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.
(2) The appeal lies –
(a)in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence – to the Industrial Court; or
(b)in any other case – to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).
***
(4) On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.
(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)it may remit the case for hearing or further hearing before the Magistrates Court;
(c)it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(6)…
Interlocutory judgment is not defined.
In support of that argument he relied on Police v Dorizzi (2002) 84 SASR 416. In that matter the defendant was charged with several counts of assault. The prosecution tendered videotapes of the scene, but they were excluded after a voir dire hearing. No other evidence was produced and the prosecution closed its case. The information was necessarily dismissed and no complaint could be made of that order. But the prosecution then sought to appeal, intending to secure a finding that the relevant evidence was wrongfully excluded and an order for a retrial. The Full Court held that the provisions of the Magistrates Court Act 1991 (SA) did not authorise such an appeal, the practical purpose of which was to challenge an evidentiary ruling as opposed to the disposition of the charge.
The Council’s appeal in the current matter stands on quite a different footing. Here the appeal against the acquittals on counts 2 and 3 raises a challenge to the ruling which excluded evidence. But the appeal is against the judgment dismissing those charges. Indeed, the Council’s argument was that even on the evidence remaining after the ruling, the prosecution should have succeeded. Dorizzi’s case, which was further considered in Holder & Ors v Lewis [2003] SASC 397, says nothing against such a course. Insofar as the challenge to the evidentiary ruling affects count 1, it can be seen as an argument which, if successful, would tend to fortify the conviction and resist the attack on it, rather than as a separate ground of appeal.
I turn then to the substantive arguments.
Some of the evidence referred to earlier in the summary of the facts, was taken on the voir dire. After hearing argument, her Honour ruled on those objections. She gave some reasons at the time of ruling and expanded upon those reasons in the judgment. The objections taken were supported on various grounds, but ultimately, in excluding a large body of evidence, the judge relied on what she described as the “public policy discretion described in R v Lobban”[3] and she found it unnecessary to rule on all aspects of the argument. The evidence excluded encompassed the conversations on the telephone between Mr Palumbo and Mr Lester on 4 March, the conversations between council officers and Mr Lester on 5 March and photographs taken on 5 March by council employees at the access track. It is noteworthy that some of those photographs showed the removal of the car park sign posts, ticket machines and the like, but others of them showed those items in situ prior to that process commencing. The evidentiary exclusion was of all photographs.
[3] R v Lobban (2000) 77 SASR 24.

In essence the judge found that, on 4 March when Mr Palumbo directed Mr Lester to remove the car park installations within 24 hours and on 5 March, when Mr Thomas directed Mr Lester to remove them forthwith, they went beyond the powers secured to the Council in s 84 of the Development Act 1993. It was in response to those unauthorised directions that Mr Lester took steps to remove the items on 5 March. Insofar as that removal could provide evidence against him or against the charged company, the judge considered it appropriate to exclude it and the photographs taken in association with it. As I understand it, the judge considered that the illegality or impropriety also infected the conversations with Mr Lester on 5 March and further vitiated the entirety of the conversations with Mr Palumbo by telephone on the previous day.
Upon the appeal, Mr Cuthbertson QC, who appeared for the Council, did not seek to challenge the decision to exclude the evidence of Mr Lester removing the signage and other items. However, he complained that the exclusion should not have extended to photographs taken of the signage in place – which showed more clearly than any others the Park Fast logo and other information – and he further submitted that the exclusion should not have encompassed the telephone conversations of the previous day insofar as they were not attended by any direction beyond the power which Mr Palumbo had.
As I mentioned, there were other arguments advanced to the judge in support of discretionary exclusion. It was argued that before any of the conversations between council officers and Mr Lester took place, Mr Lester should have been warned that he was being investigated in relation to an offence against the Development Act 1993, that he was not obliged to answer questions and that anything he said would be taken down and could be used in evidence. It was suggested that such a caution, along the lines of that required of police officers in certain circumstances, should have been given on each occasion. Further, it was argued that verbatim notes should have been taken of all the conversations and that at their first convenience the council officers involved should have given Mr Lester an opportunity to read the notes and express an attitude to their accuracy.
All these submissions assume that such obligations as fall upon police officers investigating offences correspondingly apply to council officers investigating offences such as the ones charged in this matter. That assumption seems to me to be far from being made good. In relation to cautions, the obligations on police are now very well entrenched. They date back at least to the promulgation of the “Judges’ Rules” in 1912 by the judges of the Kings Bench Division of the High Court in England, being rules designed for the guidance of police officers interviewing suspects.[4] Although the Rules were never formally accepted in this jurisdiction, they were, with some exceptions, regarded as an appropriate code of conduct for police and the breach of them was seen in the courts to give rise to a discretion to exclude evidence thereby gained. It is not immediately apparent to me that such obligations as are contained within them should be applied without qualification to other species of investigators who may not have the powers, training or responsibilities of police. But even were they, it must be noted that the obligation to caution only arises when the investigation moves from a general enquiry as to whether a crime has been committed or as to the identity of the offender, to the stage of accusation. That point would be reached when an investigator determined that a charge would be laid, or had sufficient evidence in his possession to justify a charge.[5]
[4] See R v Lavery (No. 2) (1979) 20 SASR 430 per Wells J 459ff.
[5]Van der Meer v R (1988) 62 ALJR 656 per Mason CJ at 661; R v Dolan (1992) 58 SASR 501, 504-6; R v Webb & Hay (1992) 59 SASR 563, 571-572.
The situation in relation to the taking of notes and the provision of those notes to a suspect for his inspection stands on a slightly different footing. Insofar as police are concerned those obligations now flow from the Summary Offences Act 1953: s 74C to s 74F. Those sections came into force in 1996. They apply only to members of the police force and persons authorised under an Act to investigate offences and arrest suspected offenders. Whilst Mr Palumbo and Mr Thomas were authorised under the Development Act 1993 in terms of evidence gathering, the Act falls short of granting the power of arrest. Before that group of Summary Offences Act sections was enacted there was no common law rule requiring police to note or otherwise record conversations with suspects, even though such noting and presentation of interviews for signing or comment was plainly good police practice and the lack of such verification generally attracted a warning to the jury about use of such evidence. Accordingly, it is difficult to locate any obligation upon the council officers in relation to recording or verifying the terms of conversations with persons suspected of committing an offence against s 44 of the Development Act 1993. Arguably, the rules concerning use of notes to refresh memory would be those which apply in the case of any witness.
Furthermore, it is not clear to me that even were there a breach of some statutory obligation on council employees, the public policy or Bunning v Cross[6] discretion would in fact arise. The discretion to exclude illegally obtained evidence was again born in the context of police officers investigating criminal offences and it is in that context where its development has been refined.[7] Certainly some of the statements of principle found in the leading cases suggest that the discretion is triggered by improprieties or illegalities by persons in authority generally and, as a matter of principle, there may well be good reason to acknowledge an extension of the ambit of the discretion beyond police officers.[8] However, since the applicability of the Bunning v Cross discretion seems to have been assumed before the learned trial judge and taking into account that the issue of whether the discretion extends to council employees in these circumstances was not argued before us, it seems to be inappropriate to express a view.
[6] Bunning v Cross (1977-78) 141 CLR 54.
[7]R v Ireland (1970) 126 CLR 321; Bunning v Cross (1977-78) 141 CLR 54; Foster v R (1992-93) 113 ALR 1; R v Lobban (2000) 77 SASR 24.
[8]The Commonwealth Evidence Act 1995 s 138 operates to enliven a discretion in relation to any improperly or illegally obtained evidence.
In any event, that is not to say that the trial judge had no discretion available to her. Clearly what is often called the general unfairness discretion could apply. That has as its focus the question of whether it is unfair to use evidence against an accused person, rather than the conduct of those investigating an offence, although unfairness will often arise because of some aspect of the behaviour of the investigators. The exclusion of Mr Lester’s response to the directive of Mr Thomas to remove the signage and other items forthwith could have been justified by reference to the unfairness discretion, as could have the exclusion of photographs of that process and conversations which arose from the direction given.
However, even were those items of evidence to be excluded, in my view there was no proper basis on which to exclude the Palumbo conversations of 4 March; certainly not the first conversation, in which Mr Palumbo was simply gathering information, but which contained an important admission as to Mr Lester’s control of the car park; nor the photographs taken on 5 March showing the installations in situ. That evidence was not vitiated by later events and the Council was entitled to its admission.
The fact that verbatim notes were not taken of the various conversations would go to the reliability of the evidence given by use of them, and normally no question of discretionary exclusion would arise, but in any event, since there was no challenge to their accuracy, that issue fell away. I cannot see that any unfairness arises out of the failure to advise that a conversation would be noted, nor from the failure to advise that charges might arise from the conduct under consideration. That last matter must have been obvious to Mr Lester anyway, as he told the officers on 5 March that he saw fighting the matter in court as a viable alternative to making an application for development approval.
Accordingly I find that some of the relevant evidence was unjustifiably excluded. Included in that was Mr Lester’s admission to Mr Palumbo that he was “looking after” the car park. The evidence wrongly excluded had potential relevance on all three counts.
It is convenient now to turn to the Council’s complaint that Park Fast (Aust) was wrongly acquitted of count 3. Although the evidence relating to the negotiations between Mr Skipper and Mr Lester and the agreement itself were helpful in implicating Mr Lester inasmuch as it showed him performing an important role in advancing the development of the car park, at the same time it created a difficulty in respect of count 3, which flowed to count 2. That was because the company described in the agreement was not clearly shown to be the company charged. It might have been possible to attribute to error and overlook the difference in the two names used: Park Fast (Aust) Pty Ltd as against Park Fast (SA) Pty Ltd, having regard to the fact that Mr Lester was described in the agreement as the sole director and company secretary of Park Fast (SA) Pty Ltd and further having regard to the similarity in the logo on Mr Lester’s card and that appearing at the site. However, the fact that the ACN given in the agreement does not correspond to that of Park Fast (Aust) seems to me to suggest that there are in fact two companies and that the company involved in the enterprise was not necessarily the defendant in count 3.
The evidence which I have found was wrongly excluded by the judge is of only marginal assistance on that issue. Photographs taken on 5 March clearly show that the logo displayed on the signage at the car park is the same logo as that displayed on the Park Fast (Aust) card of Mr Lester given to Mr Palumbo prior to 4 March. However, I consider that that fact does not dispel the doubt which attends the question of which of the two Park Fast companies was involved. It is possible that the same logo was used by both companies. That is particularly so where the companies had an obvious association through Mr Lester. It was this difficulty of inadequate identification of the company involved in the car park which led to the acquittal on count 3. I consider that decision was correct. As the judge observed, the acquittal on count 3 meant that there also had to be an acquittal on count 2.
Accordingly, I consider that the appeal of Mr Lester on count 1 should be dismissed and his conviction on that count affirmed. The Council’s appeal against the acquittals on counts 2 and 3 should be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1There were none.
2See s 132 Environment Protection Act 1993 and s 39 River Murray Act 2003.
3R v Lobban (2000) 77 SASR 24.
4See R v Lavery (No. 2) (1979) 20 SASR 430 per Wells J 459ff.
5Van der Meer v R (1988) 62 ALJR 656 per Mason CJ at 661; R v Dolan (1992) 58 SASR 501, 504-6; R v Webb & Hay (1992) 59 SASR 563, 571-572.
6Bunning v Cross (1977-78) 141 CLR 54.
7R v Ireland (1970) 126 CLR 321; Bunning v Cross (1977-78) 141 CLR 54; Foster v R (1992-93) 113 ALR 1; R v Lobban (2000) 77 SASR 24.
8The Commonwealth Evidence Act 1995 s 138 operates to enliven a discretion in relation to any improperly or illegally obtained evidence.

[2004] SASC 48

27 February 2004