Saad .v. Canterbury City Council

[2002] NSWCCA 62

CITATION:	SAAD .v. CANTERBURY CITY COUNCIL [2002] NSWCCA 62
FILE NUMBER(S):	CCA 60168/01
HEARING DATE(S):	7 March 2002
JUDGMENT DATE:	18 April 2002
PARTIES :	Sayed SAAD - Appellant Canterbury City Council - Respondent
JUDGMENT OF:	Spigelman CJ at 1; Grove J at 2; Barr J at 3

LOWER COURT JURISDICTION:	Land and Environment Court
LOWER COURT FILE NUMBER(S) :	50022/00
LOWER COURT JUDICIAL OFFICER :	Bignold J

COUNSEL :	Mr T.G. Howard for the Appellant Mr T. Robertson for the Respondent
SOLICITORS:	LegS Lawyers for the Appellant Pike Pike & Fenwick for the Repsondent
LEGISLATION CITED:	Evidence Act 1995 Environmental Planning and Assessment Act 1979
CASES CITED:	Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 Colonial Life Insurance v Donnelly (1998) 82 FCR 418
DECISION:	See Judgment at Paragraph 50

60168/01

Spigelman CJ
Grove J
Barr J

18 April 2002

SAYED SAAD V MICHELLE MORGAN ON BEHALF OF

CANTERBURY CITY COUNCIL

Judgment

1 Spigelman CJ: I agree with Barr J.

2 Grove J: I agree with Barr J.

3 Barr J: The appellant, Sayed Saad, appeals against a conviction entered in the Land and Environment Court.

The findings of fact

4 The facts found by the trial judge, Bignold J, were as follows. The appellant and his brother, Nadim Saad, were co-directors of a building company. On 17 August 1999 they obtained from Canterbury City Council (“the Council”) the grant of a development consent for the demolition of two dwellings and the construction of a number of town houses on certain land at Punchbowl. Consent was subject to certain conditions, including the following -

37. Removal of the existing 2x Paperbark (Melaleuca decora), located in the centre of proposed rear units and patio and numbered 1 and 2 on the attached site plan and Cypress (Cupressus glauca) on the site is conditional on their replacement with suitable 100L specimens, to be located at an appropriate position, preferably to the front of the development.
38. The existing street tree, Sweet Gum (Liquidambar styraciflua) is to be protected during construction. Care should be taken when driving trucks near the tree to avoid soil compaction, truck and branch damage.
39. A separate application is to be made to the Council’s Tree Preservation Officer regarding the pruning of Paperbarks (Melaleuca decora) and Yellow-wood (Podocarpus falcatus) on the development site. Work may only be undertaken if written approval has been granted.
40. The existing 2x Paperbark (Melaleuca decora) located on the south-east boundary and numbered 3 and 4 on the attached site plan. Yellow-wood (Podocarpus falcatus) and 2x Crepe Myrtles (Lagerstroemia indica) are to be retained. A suitable protective barrier is to be erected around the tree(s) prior to construction and is to be maintained during building operations. A bond of $1,000 be paid to Council prior to development to ensure the trees are protected. Details of the barrier are to be included in the Landscape Plan.
41. The Landscape Plan shall indicate as much of the existing vegetation as possible and include all significant vegetation to be removed or retained.

5 On or about 23 December 1999 one of the paperbarks mentioned in condition 40 was removed and the other was severely lopped.

6 On 7 January 2000 the appellant and his brother went to the Council office to talk to the respondent, a landscape architect, about the trees. An arrangement was made for the respondent to attend the site. She did so on 11 January 2000 and discovered what had happened to the trees. She pointed out to the appellant and his brother that there had been a breach of the conditions of consent. She also observed that certain fencing had not been provided as required by the conditions of consent and said that she would return within seven days to inspect the site and ensure that that had been done.

7 The respondent returned on 18 January 2000. The appellant and his brother and a Private Certifier were present. The Private Certifier asked what would then happen and the respondent said that an application for modification would have to be lodged with the Council. In fact, such an application had been made on 11 January 2000. The modification applied for was the removal of the trees.

8 On 3 February 2000 a Development Panel of the Council resolved to refuse to modify the conditions of approval but to take legal action against the appellant for contravening condition 40. On the same day Mr Rodney Lindsell, an officer of the Council, telephoned the respondent’s brother and told him what had been decided. The appellant’s brother said -

I accept the determination of the Panel. I am responsible for construction and therefore I am responsible for the removal of the trees.

9 On 8 February the appellant lodged with the Council an application for a review of the decision. Two letters accompanied the application, one from Mr Paul dos Santos, the architect acting for the appellant and his brother and one from Mr Stephen Roumanos. Mr dos Santos’ letter included the following -

The above mentioned proposal was approved by council with condition No. 40 stating that 2 Paperback trees on the south-east corner be retained.
As the site was being cleared in preparation for excavation these trees were removed as they were in the location of required footings. To have retained these trees would have not been possible due to their proximity to the approved building.
My client is prepared to plant any trees as part of the development to council’s satisfaction in return for the removal of the above mentined (sic) trees. As stated previously there was no conceivable manner to retain the existing trees. There was no ill intent on behalf of my client to remove any trees, they were just simply preparing the site for construction and were unaware the removal of the two trees we (sic) a major issue.

10 Mr Roumanos’ letter stated -

With regards to the proposed development at 2-4 The Broadway, Punchbowl. I have advised my clients for the removal of the existing 3 Melaleuca decoras to be removed upon council’s permission.
One of the trees being located in the centre of the site and the remaining two at the rear of the site to the right hand side being the two in question. I have found these trees to be within close proximity of the proposed development and will interfere with the proposed stormwater lines. As a result of these problems, I have advised for the removal of these two trees to take place on the conditions that they are replaced with three 100L trees specified on the landscape plan submitted to council.

11 By s 127 Environmental Planning and Assessment Act the prosecution had to be commenced within six months after the day of commission of the offence. The summons was not filed until 16 June 2000. The respondent as prosecutor therefore had to prove that the removal and lopping of the trees took place on or after 16 December 1999. Although there was evidence that those things had happened in November or December 1999, there was only one piece of evidence that could prove that they happened within the prescribed period of time.

12 The respondent spoke to Mr Lindsell, who wanted to clarify the date of removal and lopping. Aware of the time limit for the commencement of proceedings, she telephoned the appellant and this conversation took place -

Respondent: Could you confirm that you were on the site on 23 December 1999 during the demolition of the existing dwellings and also what happened with respect to the trees which were removed.
Appellant: Yes. I was there with the demolition contractor and was instructing him using the architect’s plans. The plans show the trees as being “to be removed”. We were just going by the plans from the architect. It was not until Norm came to the site and informed me that the trees were not supposed to be removed that I realised that a mistake had been made. We are very sorry for the mistake and are prepared to pay any costs or fines rather than go to Court over the matter.
The first ground of appeal

13 The first ground of appeal asserts that his Honour erred in admitting evidence of the conversation. It was submitted on appeal that his Honour -

(a) failed to make a finding that the respondent was engaged in official questioning the purposes of s 85(1) Evidence Act before admitting the evidence of the conversation;

(b) failed to undertake the inquiry required by s 85(2);

(c) failed to exercise the discretion arising under s 90 Evidence Act ;


(d) failed to apply s 137 Evidence Act; and

(e) misapplied s 138 Evidence Act.

14 I set out hereunder the relevant sections and definitions. S 85 is as follows -

85. Criminal proceedings: reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) in the course of official questioning, or

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put, and
(ii) the nature of any threat, promise or other inducement made to the person questioned.



“Official questioning” is defined in the dictionary of the Act as meaning questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

“Investigating official” is defined as meaning, relevantly, a person appointed by or under an Australian law (other than a person who is engage in covert investigations under the order of a superior) whose functions include functions in respect of the prevention or investigation of offences.

15 S 90 is as follows -

90. Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

16 S 137 is as follows -

137. Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

17 S 138 is as follows -

138. Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note.

The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

18 Relevantly, s 139 is as follows -

139. Cautioning of persons

(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during official questioning is taken to have been obtained improperly if:
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and
(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

19 The trial judge came ultimately to the view that the Appellant’s answers were given during official questioning by the Respondent. There was no dispute that his answer constituted an admission. No caution was administered.

20 Central to the appeal was the contention that his Honour’s not having dealt in terms with some of the submissions made at trial implied a failure to consider them. It is therefore necessary to say something about the manner in which the trial was conducted. I intend no disrespect towards and no criticism of defence counsel in observing that every conceivable basis of objection to the evidence was raised. Counsel obviously researched the Evidence Act thoroughly. No doubt some of the submissions had more force, or a better chance of acceptance, than others. One led to the exclusion under s 86 of a note the respondent made of the conversation. That objection is of no interest in the appeal except as illustrating the comprehensiveness of counsel’s objections

21 Defence Counsel handed to the trial judge a typed document of nine pages of submissions, setting out the several sections of the Evidence Act relied on and stating how. Those submissions were supplemented with detailed oral submissions.

22 In my opinion, the fact that counsel may choose to make submissions at considerable length and in considerable detail is not of itself to be taken as obliging a trial judge to respond at the same length or in the same detail. That is particularly so when a busy trial judge, charged with the efficient disposal of court business, is required to make interlocutory decisions: Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 per Kirby P at 260. Although the parties to an action are entitled to know the essential grounds or reasons for such decisions, it would impose an undue burden on trial judges and impede the orderly conduct of litigation to give detailed reasons for every evidentiary ruling: Colonial Life Insurance v Donnelly (1998) 82 FCR 418 at 432.

23 By application of the same principles, the fact that a trial judge does not mention having made a particular consideration ought not readily to be taken as implying that that consideration was not made. All the circumstances of the trial must be looked at.

24 The reasons advanced at trial why the evidence should not be admitted may be summarised thus. For the purposes of s 85 it did not appear unlikely that the truth of the admission was adversely affected because -

(i) the appellant might have thought that the question was being asked in the context of his application for modification of the conditions of consent;
(ii) the appellant might have thought that in asking her question the respondent was acting as a regulatory official, processing the appellant’s application;
(iii) there were no procedural safeguards: no caution, no typed or written record of the conversation and no opportunity for the appellant to have his solicitor present to corroborate his version of what was said; and
(iv) the appellant’s answer might have been influence by his desire to foster speedy and satisfactory determination of his modification application and to avoid trouble with council officers.


For the purposes of s 138 the desirability of admitting the evidence, which was unlawfully obtained because the respondent did not caution the appellant, did not outweigh the undesirability of admitting it because -

(i) asking the question without the caution was reckless;

(ii) the illegality of the evidence was likely to affect its cogency;

(iii) alternative lawful methods of enquiry were available;

(ix) if the appellant had been cautioned he would not have made the admission; and

(v) the offence was minor but the unlawfulness fundamental.

25 For the purposes of s 90 it was unfair to use the evidence because it was unreliable for the four reasons put forward under s 85 and because it might not have been elicited in its precise form but for the unlawful conduct of the respondent in failing to caution the appellant.

26 For the purposes of s 137 the probative value of the evidence was outweighed by the danger of unfair prejudice because the evidence was unreliable for the four reasons advanced under s 85.

27 There was lively debate during the trial. Responding to the submissions made under s 85, which counsel described as his strongest, his Honour expressed the view that there was a fundamental difficulty (and this must have referred to the first, second and fourth points) because the appellant had been on notice for more than a month that the council had refused the modification application and had reasserted its right to uphold the conditions of consent, including a decision to take legal action.

28 Defence counsel responded by saying that the appellant never received the Council’s letter, but in due course his Honour confirmed in his judgment his finding that the appellant was so notified. That really disposed of the first, second and fourth points.

29 The remaining point made under s 85 dealt with possible inaccuracy of the respondent’s account of what was said consequent upon what was said to be a lack of procedural safeguards. That point was later set at nought when the appellant, giving evidence, did not challenge the conversation or its terms.

30 If the provisions of ss 85, 86 & 138 were to apply it had to appear that the respondent was an investigating official. If she were, s 86, which is mandatory, would exclude the file note of the conversation because the appellant had not acknowledged it as a true record. His Honour at first expressed doubt whether the respondent was an investigating official but was obviously giving the matter further thought because he told the prosecutor that “a safer course” was not to read (meaning tender) the note. It was no surprise, therefore, that in his reserved judgement his Honour made the finding that the respondent was engaged in official questioning, that she had not administered a caution and that her evidence of the conversation had therefore been improperly obtained. But well before that stage, even before counsel began to cross-examine, his Honour, having read the written submissions, said -

My own view is whether or not (the respondent) is (an investigating official) the objections should be overruled and the evidence of the conversation … should be admitted.

31 Speaking of the written submissions, his Honour continued -

… I’m very aware of them and I appreciate Mr Howard that they’re far more wide ranging in so far as they go into the specific powers vested in the Court to exclude evidence otherwise prejudicial or where the prejudice, unfairness to the defendant outweighs the probative value. In my view, in so ruling I have had regard to all of your submissions and I am satisfied that there is no occasion in this case either for the mandatory exclusion of the evidence or for its discretionary exclusion, and that is all part and parcel of my ruling.

32 The first of these passages obviously refers to the discretion under s 138. The references in the second passage to prejudice, unfairness and probative value are obviously to s 137 and probably to s 90. The reference to discretionary exclusion may be understood to have referred to the discretion arising under all the sections that had been discussed immediately before.

33 In the cross-examination which followed, defence counsel brought out evidence which satisfied his Honour that the respondent was indeed an investigating official engaged in official questioning. At the conclusion of the cross-examination the objection was renewed and the debate continued as follows -

COUNSEL: …whether it be section 90 or section 138, and I point your Honour in particular to paragraph 20 of my written submissions which cite relevant passages from Swaffield and Vandermeer, where the court says it’s sufficient for the court to exercise its discretion to exclude the evidence if the court is satisfied that the admission elicited might not have been elicited, or might not have been elicited in the form in which is was elicited had the conduct of the investigating official had not been unlawful or improper. And there is nothing more fundamental your Honour in circumstances where a prosecuting authority has determined to take criminal proceedings against a person for that person, the accused, to be afforded the fundamental right to remain silent and to be informed of his right not to answer questions in the light of the purpose to commence criminal proceedings against him. That not being the case, in my submission this conversation should be excluded.
HIS HONOUR: Thank you, Mr Howard. Mr Hawkes (the solicitor for the prosecution), now that Mr Howard has made it clear that the submission for the exclusion of the material is based upon the judicial discretion to exclude the material conferred by the Act as elaborated by the High Court decisions. (emphasis added)

34 After the solicitor for the prosecution had spoken, defence counsel made another lengthy speech, dealing with the factors to be taken in account under s138 (3) in the exercise of the discretion. His Honour responded -

Thank you very much, Mr Howard. I will deal with this matter in my reasons for judgment, but I’m of the opinion that I ought not, in the exercise of discretion , exclude the material. (emphasis added)

35 The relevant passage from his Honour’s judgment is as follows -

Defence Counsel had unsuccessfully initially objected to this evidence being admitted on the basis that the evidence was improperly obtained within the meaning of the Evidence Act 1995 , s 138(1). Later in the course of cross-examination of Ms Morgan the objection was renewed but I admitted the evidence over the Defence objection, in the exercise of discretion conferred by s 138(1) being the option that the desirability of admitting evidence outweighed the undesirability of admitting it. In so concluding, I consider the balance of the matters enumerated in s 138(3) favoured admissibility. I also had particular regard to the fact that at the time of the conversation, the Defendant was probably (almost certainly) aware of the Council’s earlier decision (which had been communicated in a Council letter to him and was recorded in the Minutes of Council – it had additionally been communicated earlier to the Defendant’s brother, the co-director of the family building company) to prosecute for an offence against the EP & A Act in respect of the non-retention of the two trees nominated for retention in condition 40 of the development consent. In so concluding, I am satisfied that Ms Morgan, in speaking to the defendant on the telephone on 19 April 2000 was relevantly engaged in “official questioning” in terms of the Evidence Act 1995 , s 139(1) and that because she did not administer a caution to the Defendant, the admission made by the Defendant was relevantly “improperly obtained evidence ” within the meaning of the Evidence Act 1995 , s 138(1).

36 It was submitted on appeal that his Honour failed to find before admitting the evidence of the conversation that the respondent was engaged in official questioning. That asserted failure, it was submitted, combined with the opening words of the quoted paragraph of his Honour’s judgment led to the conclusion that in deciding to admit the evidence his Honour confined his attention to ss 138 and 139 in deciding how to exercise his discretion, that is, his Honour failed altogether to consider the requirements of s 85(2).

37 In my view there is no substance in that submission. It is obvious from his Honour’s remarks, commenting among other things on the written submissions of defence counsel, and on the exercise of discretions on which counsel had addressed him immediately beforehand, that he must have borne in mind all the asserted bases for the exercise of the discretion put forward by counsel and that in exercising his discretion his Honour must have applied the test required by s 85(2). The passages I have emphasised support this conclusion. I think that at that stage his Honour was no longer considering whether the respondent was engaged in official questioning but with how to exercise his discretion following a finding that she was.

38 As I have explained, of course, his Honour had already rightly rejected most of counsel’s submissions under s 85, though it must at that stage have appeared possible that there might be force in the submissions based on the asserted lack of procedural safeguards, the appellant not yet having given evidence.

39 In his written submissions in this Court counsel for the respondent submitted that his Honour erred in law in finding that the respondent was engaged in official questioning. It is unnecessary in the circumstances to decide whether his Honour erred in coming to that conclusion.

40 The case of unfairness put under s 90 depended first on the four points made under s 85, and there is no need to say more about them. Then it was submitted that the admission might not have been elicited in the way that it was but for the lack of caution. It was not immediately obvious why that should have been so. I think that his Honour probably found it unnecessary to make particular reference to s 90 because he found the submission unappealing. I would not infer from what was said or not said that his Honour did not have the relevant discretion in mind.

41 The submission under s 137 was based on what was said to be unfair prejudice arising from the four points made under s 85. The appellant’s reliance on that section on appeal is therefore without substance.

42 In my opinion the first ground of appeal fails.

The second ground of appeal

43 The second ground of appeal asserts that his Honour erred in finding that the respondent had proved beyond reasonable doubt that the offence was committed within the six month time period limited by s 127(5) Environmental Planning and Assessment Act. Two submissions were made. The first repeated the submissions made under the first ground of appeal and must be rejected. The second was effectively that the conversation was ambiguous and not capable of establishing proof of the necessary element beyond reasonable doubt.

44 Ambiguity was said to arise in two ways, namely from the words of the conversation and by reference to evidence given by the appellant.

45 First, it was submitted that his Honour could not have been satisfied beyond reasonable doubt that when he gave his answer the appellant was talking about trees numbered three and four, which were removed and lopped in breach of condition 40, and not trees one and two, which were lawfully removed pursuant to condition 37.

46 The conversation is in my opinion capable of bearing the meaning contended for by the Crown. The question is whether it could on all the evidence reasonably have borne a different meaning. By 19 April 2000 these things had happened: at some time before the end of 1999 trees one and two had been removed, tree three had been severely lopped and tree four removed; on 7 January 2000 the appellant and his brother had been to the Council to talk about what had happened to trees three and four; on 11 January the respondent had found out what had happened to those trees and had said that the appellant had breached the conditions of consent; on the same day an application for modification had been made which, if successful, would have permitted what had happened to those tress; on 18 January the respondent had said that the appellant would have to make such an application; on 3 February Mr Lindsell had told the appellant’s brother that the Council had refused to modify the conditions of consent and would be taking legal action; on 8 February the appellant had lodged an application for review, having obtained letters from Mr dos Santos and Mr Roumanos dealing with trees three and four. All those conversations and correspondence concerned the breach of condition 40 and the two trees concerned in it. None concerned any tree lawfully removed. There was no evidence to suggest why in April the appellant might have thought that he was being asked about any trees other than those which had been the basis of such an anxious and protracted series of communications.

47 In my view his Honour was entitled to conclude that there was no reasonable possibility that the appellant was telling the respondent about any trees other than trees three and four.

48 The second way in which ambiguity was said to arise was by reference to the evidence of the appellant himself, who distinguished between tree lopping by his employee and tree removal by the demolition contractor. In his evidence he stated or implied that the two operations were or might have been carried out on different days. So, it was submitted, his Honour could not have been satisfied beyond reasonable doubt that the operations concerning both trees three and four took place on the same day, on or about 23 December 1999.

49 In my opinion that submission was not open in view of his Honour’s rejection of the appellant’s evidence. This passage appears in the judgment -

The Defendant also gave evidence concerning the circumstances in which trees were cut down or removed from the development site (including the two trees located in the south-eastern corner of the site which condition 40 required to be retained). However, ultimately I have been unable to accept his testimony, which I found to be confusing, evasive and generally unreliable and unconvincing.

50 In my opinion the second ground also fails. I would dismiss the appeal.