Smyth v Tsekos

[1988] NSWLEC 119

Land and Environment Court

of New South Wales

CITATION:	Smyth v Tsekos [1988] NSWLEC 119
PARTIES:	APPLICANT Smyth RESPONDENT Leo Tsekos
FILE NUMBER(S):	50013 of 1987
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Heritage Act 1977
CASES CITED:	Nicolaisen v. Coal Cliff Collieries Pty Ltd 1984 ; Border v. David Brown Corporation of Australia and Anor 1988 ; Smyth v. Caralis and Ors 1987 ; Albert v. Lavin reported in 1982
DATES OF HEARING:	09/05/1988
DATE OF JUDGMENT:	05/09/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: The Defendant is charged with an offence against s.135 of the Heritage Act 1977 in that while an order made by the Minister under section 130(1) was in force he did demolish a building described in that order.

The aforesaid charge was one of six separate charges brought by the Prosecutor - two against the Defendant (the aforesaid charge and the offence of aiding and abetting), two against the Defendant's wife (the same offences) and two against the owner of the property on which the demolished building was previously erected being the Company Mobide Pty Limited, of which the Defendant and his wife are Directors (the same offences) all in respect of the demolition of the one building.

Each of the defendants originally had pleaded not guilty to the offences charged. However at an early stage in the Prosecutor's case (the charges, by consent, were being heard together) the Prosecutor sought and obtained leave to withdraw five of the six charges (and in respect of those five charges I ordered by consent the dismissal of each charge with no order as to costs) leaving only the charge against the Defendant in respect of which a plea of guilty was thereupon entered.

Senior Counsel for the Defendant has submitted for reasons which I shall hereafter consider that the Court should, in the particular circumstances of the case, exercise the discretion conferred upon it by s.556A of the Crimes Act 1900 by not proceeding to any conviction. Alternatively I am urged to impose a very small penalty.

The relevant facts appear to be as follows (they are derived from the affidavits read by the Prosecutor (although he had not adduced all the evidence at the stage that the five charges were, by consent dismissed, and the Defendant altered his plea in relation to the remaining charge) and the affidavits read by the Defendant on the question of penalty.

By order published in the Government Gazette No. 89 of 29th May, 1987 the Minister pursuant to s.130(1) of the Heritage Act 1977 declared the building known as "Brockleigh" 86-90 Illawarra Road, Marrickville to be a building not to be demolished except in accordance with Division 8 of Part VI of the Heritage Act. "Brockleigh" was a free standing two-storey Victorian villa standing in large grounds.

At approximately 1:50pm on Saturday 13th June, 1987 a Police Constable (Constable Frawley) arrived at No. 86 Illawarra Road, Marrickville and observed that part of a large two-storey house erected thereon had been demolished in that the roof had been removed and part of the upper storey was missing. He observed piles of building rubble around the house and a large bulldozer operating on the site. He observed a group of workmen standing next to the house watching the bulldozer. Their clothes were dirty and appeared to be covered in dust.

Accompanied by another Police Constable, Constable Frawley walked onto the site with a copy of the Gazette Notification of the relevant s.130 Order. He spoke to a man on the site and the conversation included the following:-

"I said: "My name is Constable Frawley and this is Constable Hodge and I've been informed by some members of the Marrickville Heritage Society that this building is preserved and you're not allowed to knock it down."

He said" "How come I'm not allowed to knock my building down?"

I showed him the Gazettal Notice and read it out to him and then said: "Can you just stop everybody working on the site?"

He said: "Yes, but I never see this Order ever in my life."

I said: "Well firstly just get everybody stop working."

He said: "O.K."

He then approached the workmen and gestured at the man on the top storey. All the workmen then ceased working.

I then said to him: "For the records at Newtown can I have your name and address."

He said: "My name is Leo Tsekos. My address is 156 Wollongong Road, Arncliffe.""

After the workmen had left the site the conversation continued:-

"Mr. Tsekos then said to me: "What does this Order mean?"

I said: "It means you can't demolish the premises. Do you understand that?"

Mr. Tsekos said: "Yes. I won't continue the work. I'll see my solicitor on Monday.""

After the two Constables had left the site at approximately 2:50pm Police Sergeant Bond arrived at the site at 3:30pm (he had been earlier alerted by a radio call from Constable Frawley) Sergeant Bond had the following conversation with a man on the site who had been pointed out to him as the owner:-

"I said: "Are you the owner of the premises which have been partly demolished?"

He said: "Yes."

I said: "What is your name?"

He said: "Leo Tsekos."

I said, indicating the remains of the premises: "Are you aware that there is a preservation order in existence under the Heritage Act forbidding the demolition of these premises."

Mr. Tsekos said: "I am now but I wasn't aware when I began to demolish it."

I said: "What are your intentions now regarding any further demolition of the building?"

Mr. Tsekos said: "I don't intend to do any further demolition until I see my solicitor on Monday.""

At 6am on Monday 15th June, 1987 two Police Constables arrived at the site and observed that the dwelling-house had been totally demolished. They observed a pile of building rubble on the site and an excavator being operated.

They spoke to the operator of the excavator and another workman.

The owner of the excavator was Malaut Holdings Pty Limited which carries on the business of an earthmoving contractor. Mr. John Scarlis a Director of the Company swore an affidavit stating that on or about 4th May, 1987 he received a telephone call from the Defendant (whom he had known for about 4 years). The latter asked whether he could do a small job of demolishing a property in Marrickville, because "it was full of rats and I'm getting a lot of complaints". On 11th May Mr. Scarlis submitted a quotation for the demolition of the dwelling-house at Nos. 86-90 Illawarra Road, Marrickville.

A few days later the Defendant again telephoned Mr. Scarlis and enquired when the job was going to be done. The Defendant urged haste because he said he was getting a lot of complaints from neighbours.

Some 3 weeks later on about 9th June, 1987 the Defendant phoned Mr. Scarlis to enquire whether he would do the job or whether he (the Defendant) should get somebody else to do it.

Mr. Scarlis said that he would do the job on Friday morning. Mr. Scarlis did not go the site on the Friday (12th June) but decided to do the job on the following Monday morning.

Mr. Scarlis stated that he did not receive any further communications from Mr. Tsekos on either 13th, 14th or 15th June. He was unaware that demolition work had commenced on 13th June. He was unaware of the existence of the s.130 Order.

On Saturday evening Mr. Scarlis' son received a telephone message from a man who spoke in Greek asking to speak with the boy's father (who was absent) and saying that he would "phone back later".

At 5am on Monday 15th June Mr. Scarlis instructed one of his employees to take the excavator to the site and demolish the building.

At 6:30am that morning his son "phoned to say that the Police were at the premises and that there was an Heritage Order that the premises not be demolished".

The Defendant swore an affidavit in which he corroborated the evidence of Mr. Scarlis concerning conversations in May and June arranging for the demolition job to be undertaken. When Mr. Scarlis did not undertake the demolition job on Friday 12th June the Defendant decided to do the job himself. Accordingly he arranged for certain of his friends to be on the site on Saturday 13th June. Prior to being shown a copy of the s.130(1) Order by the Police Constable on the site on Saturday 13th June the Defendant stated that he had no knowledge that his property was subject to any such heritage control. He had not been advised that the demolishers were to go to the site on Monday 15th June. Over the preceding weekend he had attempted to speak on the telephone to Mr. Scarlis. His only conversation was with Mr. Scarlis' son on Saturday evening. The Defendant stated that he had said "Tell your father Leo called. I'll ring back". Nobody answered the Defendant's five calls made to Mr. Scarlis' home at various times in the

course of Sunday 14th June. Mr. Scarlis in his affidavit said that he was at home all day on Sunday and did not receive any telephone call from the Defendant.

Owing to the fact that there was no cross-examination of the deponents of the affidavits that were read and there was no other corroborative evidence I am unable to resolve the conflict in the testimony of the Defendant and Mr. Scarlis concerning attempts by the Defendant to contact Mr. Scarlis over the weekend of 13th and 14th June after the Defendant had become aware of the existence of the relevant s.130 Order under the Heritage Act. However on this aspect of the Defendant's conduct I am able and bound to say, that I find that the Defendant failed to exercise the degree of reasonable care, diligence and responsibility in communicating to Mr. Scarlis the existence and operation of the relevant s.130 Order and the consequent need not to proceed with the demolition as previously arranged, that the circumstances of the case called for. In so finding I have had regard to the fact that the contract for demolition was entered into at a date prior to the coming into effect of the s.130 Order and to the fact that t

he Defendant had experienced difficulty in having Mr. Scarlis undertake expeditiously the demolition task and to the fact that the Defendant had reasonably expected the demolition work to be undertaken on Friday 12th June. Whatever be the legal effect of the dilatory performance by Mr. Scarlis of the contract it did not, in my opinion, relieve the Defendant of responsibility to inform Mr. Scarlis that the building was subject to a relevant s.130 Order and not to proceed with the execution of the contract. Indeed the Defendant's conduct of telephoning Mr. Scarlis' home on a number of occasions over the weekend negates the suggestion advanced in submission that the Defendant regarded the contract as terminated by Mr. Scarlis' failure of performance on Friday 12th June.

Concerning the question of the Defendant's ignorance that the relevant s.130 Order was in force at the time he commenced to demolish the dwelling-house on Saturday 13th June evidence was given that the Secretary of the Heritage Council had written to the owner of the subject property, Mobide Pty Limited addressed to 329 Illawarra Road, Marrickville informing it of the making of the s.130 Order and the legal consequences thereof. That address to which the letter was posted was the Registered Office of the Company according to the then relevant records of the Corporate Affairs Commission. However on the 17th June, 1987 the letter was returned to the Heritage Council the envelope bearing the words "Unknown - Return to Sender".

An explanation for this result was provided by the affidavit sworn by Mr. Bekiaris which was read by the Defendant. Mr. Bekiaris has acted as Accountant for the Company Mobide Pty Ltd since its incorporation. Prior to July 1983 Mr. Bekiaris practised from premises 329 Illawarra Road, Marrickville. At that time his practice was moved to 335 Illawarra Road, Marrickville and by notice dated 1st July, 1983 he notified the Corporate Affairs Commission of the change of address of the registered office of Mobide Pty Ltd. For some unexplained reason that change was not registered and apparently Mr. Bekiaris was unaware of that fact.

In support of his submission for the favourable exercise of the judicial discretion conferred by s.556A of the Crimes Act, Senior Counsel for the Defendant relied upon the following matters -

(i) the Defendant's ignorance of the existence of the relevant s.130 Order under the Heritage Act 1977 until he was shown a copy by the Police Constable on Saturday 13th June while the Defendant was engaged in the process of demolishing the building;

(ii) the Defendant's immediate compliance with the requirements of the s.130 Order upon his becoming aware of its existence;

(iii) the Defendant's attempts to communicate with Mr. Scarlis, the demolisher, over the weekend of 13th and 14th June;

(iv) the Defendant's plea of guilty; and

(v) the Defendant's good character and absence of previous convictions.

The Prosecutor declined to make any submission on the question of s.556A or the question of penalty.

Senior Counsel for the Defendant recognised that normally it would not be appropriate to apply the provisions of s.556A of the Crimes Act to environmental offences (cf. Nicolaisen v. Coal Cliff Collieries Pty Ltd (unreported 18th June, 1984 per the present Chief Judge). Border v. David Brown Corporation of Australia and Anor. (unreported 19th February, 1988) is a recent example where the provisions of s.556A were applied to an admitted offence of failing to obtain development consent as required by State Environmental Planning Policy No. 14.

However I have come to the conclusion that the present case is not an appropriate case for exercising in favour of the Defendant the judicial discretion conferred by s.556A of the Crimes Act.

I have already indicated that I regard as a serious omission the Defendant's failure to communicate with Mr. Scarlis, the demolisher, once the Defendant had become aware of the existence of the s.130 Order. When the Defendant ceased demolition work on Saturday afternoon much of the building remained standing. I do not know whether the remnant building was at that stage, capable of restoration or salvage. It may be that the real damage had already been irreparably done on the Saturday. There was no evidence on these matters. However substantial demolition work was undertaken after the Defendant had become aware of the existence of the s.130 Order. Although the Defendant did not personally undertake this ultimate demolition work he cannot in my opinion be exculpated from responsibility for the demolition work undertaken on Monday 15th June by Mr. Scarlis whom the Defendant had hired to undertake the demolition job. The fact that the contract had been entered into prior to the coming into force of the relevant s

.130 Order and the fact that the Defendant only became aware of the existence of the Order some 36 hours before the ultimate demolition work was undertaken by Mr. Scarlis and the fact that the Defendant did not know when Mr. Scarlis intended to undertake the demolition are factors which obviously operate in favour of the Defendant. However the Defendant's intervening knowledge of the existence of the s.130 was of such importance that the Defendant should have done all that reasonably could be done to postpone or cancel the contract with Mr. Scarlis and it is the Defendant's failure at this point which in my opinion essentially deprives him of moral and criminal blamelessness in respect of the unlawful demolition of the building.

On the question of the Defendant's ignorance of the existence of the relevant s.130 Order prior to being made aware by the Police Constable while the Defendant was in the process of demolishing the building it is necessary to bear in mind that the Heritage Act 1977 does not predicate the operation of an Order made under s.130(1) upon notice being given to the property owner. Section 130(3) provides that such an Order "shall take effect on and from the date of publication of that Order in the Gazette". Accordingly an offence against s.135 of the Heritage Act 1977 is committed even though the offender is ignorant of the fact that an order under s.130(1) is in force. (In Smyth v. Caralis and Ors. (unreported 31st August, 1987 the Chief Judge has held that the offence created by s.135 of the Heritage Act 1977 does not involve the element of mens rea cf. R. v. Wells Street Magistrate (1986) 3 AllER 4 where the English Divisional Court held that s.55(1) of the Town and Country Planning Act 1971 creates an offence (

similar to the present charge) of absolute liability). Though this observation is principally directed to the ingredients of the statutory offence created by s.135 of the Heritage Act it also has relevance to the question raised by the Defendant's submission based upon s.556A of the Crimes Act. In Wells Street Magistrate the Divisional Court in response to a submission that "it would be wrong for third parties" to be fixed with absolute liability stated (p.8):-

"The fears expressed are all capable of being allayed by the discretion used whether to prosecute or not, and in the power to refrain from punishment by either fine or imprisonment in appropriate cases".

In Border in the context of discussing the Defendant's ignorance of the law I referred to the recent decision of the High Court in Walden v. Hensler (1987) 75 ALR 173.

The Court in that case was considering s.22 of the Queensland Criminal Code which provided inter alia:-

"Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence."

At p.179 Brennan J. discusses the dual deterrent purpose of the criminal law as follows:-

"The chief purpose of the criminal law is to deter those who are tempted to breach its provisions. If that purpose were limited to providing immediate deterrence, the first paragraph of s.22 would cast the net of criminal liability too widely, for the prescription of a penalty for engaging in prohibited conduct cannot deter a person who is about to engage in that conduct and does not know that the conduct attracts a penalty. Nevertheless, the width of the first paragraph works no injustice when the law prescribes a penalty for conduct which is generally regarded as offensive or otherwise immoral and deserving of punishment. There is no injustice in punishing a murderer who is unfamiliar with the law of homicide provided, of course, he is of sound mind when he commits the crime. But when a law proscribes conduct which an ordinary person without special knowledge of the law might engage in in the honest belief that he is lawfully entitled to do so, the secondary deterrent purpose - that is, the purpose of educa

ting both the offender and the community in the law's proscriptions so that the law will come to be known and obeyed - must be invoked to justify the imposition of a penalty for breach. In such a case, care must be taken in imposing a penalty lest the offender be made to shoulder an unfair burden of community education."

In the same case Dawson J. at p.198 referring to the magistrate's finding that the accused honestly believed that he was doing nothing wrong, and though this belief afforded no defence, was obviously relevant to penalty, stated:-

"I would, with respect, agree with the view expressed by Donaldson LJ in Albert v. Lavin reported in (1982) AC 546 at 563: "....... an ill founded but completely honest and genuine belief removes all or much of the culpability involved in the offence. It therefore provides powerful mitigation and in an appropriate case would satisfy a court granting an absolute discharge."

In the present case accepting the genuine ignorance by the Defendant of the existence of the relevant s.130 Order at the time he commenced to demolish the building on Saturday 13th June until he was thereupon informed of the Order by the Police Constable it is in my opinion not easy to justify the imposition of an appropriate penalty in pursuance of what Brennan J. called "the secondary deterrent purpose" of the criminal law because though the imposition of such a penalty would educate both the offender and the community in the law's proscriptions it would cast no light on the question whether a s.130 Order was in force. In this respect it must be appreciated that a s.130 Order (as in the present case) can apply merely to a single designated building. In other words such Orders can be made on an ad hoc and individual case basis and the proscription of s.135 entirely depends upon such an Order being in force. It can I think be safely assumed that the operation of the Heritage Act (including its several proscri

ptions) has become increasingly known in our community in the past decade, since its enactment and that one of the functions of the heritage Council is the general education of the community in matters concerning heritage protection and conservation.

Accordingly the real difficulty posed by s.135 is how is the community to know whether a s.130 Order is in force in order that the law's proscriptions come to be known and obeyed?

The Act provides several sources of such information in addition to the requirement that the s.130 Order be published in the Gazette eg s.131 requires the Minister to give notice of the order to the Heritage Council, the relevant local council and the Director of the Department of Planning and to publish notice of the order in a newspaper circulating daily and weekly in the relevant area, s.22 requires the Heritage Council to maintain a register available to the public of buildings etc the subject of conservation instruments, orders or notices under the Act and s.167 provides for the obtaining of certificates from the Heritage Council as to whether land is affected by a conservation instrument etc. However as I have mentioned the Act does not require notice of a s.130 order to be given to the property owner. Though it is not readily apparent why this is the case (contrast ss.29(1)(a), 46(1)(a)) I do not think the omission can be regarded otherwise than intentional. In this respect however it is of some import

ance to note that the Heritage Council did notify by letter posted on 29th May, 1987 the owner of the property of the making and effect of the s.130 order, although as has been earlier noted that letter was not received by the owner. It may be assumed that such notification of owners is standard practice adopted by the Heritage Council and the utility of the practice is readily apparent.

It will be appreciated that the Defendant's ignorance of the existence of the relevant s.130 Order is the result of his ignorance of the relevant content of the Government Gazette of 29th May, 1987 and of his failure to make relevant enquiries of the Heritage Council, the Local Council and the Department of Planning. The question arises whether in the present case this ignorance and these failures to make enquiries involve some culpability on the part of the Defendant given the growing community awareness of the operation of the Heritage Act. I find this question very difficult to answer on the limited evidence before me. Ultimately I have concluded that the Defendant's ignorance is not entirely excusable. Accordingly I would adopt the approach referred to by Dawson J. in Walden v. Henser by holding that the Defendant's ignorance provides powerful mitigation but not so powerful as to justify an absolute discharge.

CONCLUSION

For the foregoing reasons I conclude that this is an appropriate case to proceed to conviction and to impose a penalty which reflects the mitigating factors relied upon by the Defendant together with the fact that the Defendant has agreed to pay the Prosecutor's costs in the sum of $15,000 which is a substantial impost in itself.

Accordingly I shall impose a penalty of $2,000 which I consider to be both modest and appropriate in all the circumstances (s.157 providing for a maximum penalty of $20,000 or imprisonment for a period not exceeding 6 months or both in respect of any offence against the Act).

I make the following orders -

1. The Defendant be convicted of the offence charged.

2. A penalty of $2,000 be imposed in respect of the aforesaid conviction.

3. The aforesaid penalty be paid to the Registrar of the Court within 28 days of today's date.

4. The Defendant pay the Prosecutor's costs in the agreed sum of $15,000 such sum to be paid to the Registrar of the Court to be disbursed by him in accordance with law and to be so paid either within 1 year from today's date or upon the completion of the sale of property No. 86-90 Illawarra Road, Marrickville whichever first occurs.

5. Exhibits be returned.

6. The Court Notes and accepts the undertaking given on behalf of the Defendant that if required by the Prosecutor Mobide Pty Ltd. will consent to the registration of a caveat on Certificate of Title Volume 2048 Folio 187 recognising the Prosecutor's interest in the land to be extent of the required payment of the aforesaid sum of $15,000 costs.