The Council of the City of Sydney v Trico Constructions Pty Ltd

[2014] NSWLEC 75

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Council of the City of Sydney v Trico Constructions Pty Ltd [2014] NSWLEC 75
Hearing dates:	2 May 2014
Decision date:	23 June 2014
Jurisdiction:	Class 5
Before:	Sheahan J
Decision:	The Court declines to make the direction and/or finding sought by the prosecutor.
Catchwords:	CRIMINAL LAW: Pre-trial disclosure provisions - expert evidence not yet obtained - court asked to impose on the defendant a timetable for obtaining and disclosing its expert evidence.
Legislation Cited:	Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979
Cases Cited:	NSW Food Authority v Nutricia Australia [2008] NSWCCA 252; (2008) 72 NSWLR 456 Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121
Category:	Procedural and other rulings
Parties:	The Council of the City of Sydney (Prosecutor) Trico Constructions Pty Ltd (Defendant)
Representation:	Mr T Howard, SC (Prosecutor) Mr C Ireland, barrister (Defendant) The Council of the City of Sydney (Prosecutor) Maddocks Lawyers (Defendant)
File Number(s):	50570 of 2013

Judgment

Introduction

1. The parties to this Class 5 prosecution are in dispute about the correct construction and application of at least one specific provision in the pre-trial disclosure provisions contained in Division 2A of Part 5 of Chapter 4 of the Criminal Procedure Act 1986.

1. The Council has charged the defendant company, under s 125(1) of the Environmental Planning and Assessment Act 1979, with a breach of s 76A of that Act by doing work (demolition of a heritage listed ceiling), permissible only with development consent, without first obtaining such consent. The defendant has pleaded "Not guilty".

1. The application of Division 2A to Class 5 summary criminal proceedings in this Court was the subject of definitive analysis and commentary by Biscoe J in Sutherland Shire Council v Benedict Industries Pty Ltd ("Benedict") [2013] NSWLEC 121.

1. I need not set out all the provisions in the Division, nor the whole of his Honour's explanation of them, but I adopt his Honour's reasoning, noting that Judges must apply those provisions with caution, because they seriously abrogate the traditional right of silence enjoyed by an accused.

1. The actual problem which has arisen in the present case was not before Biscoe J, and it is important that it be resolved by a considered judgment, even though the present parties may be close to a solution of their differences (see defendant's subs, par 18, and Tp9, LL28 - 46).

The Provisions, and the facts of the present dispute

1. The relevant Division came into force in 2012, and comprises ss 247A - 247Y. The stated objective of it is to "reduce delays" (s 247B(1)), essentially by narrowing the scope of disputed issues to "what really matters", namely those issues "genuinely in dispute", so that the "real issues in dispute are determined without undue delay or expense" (Attorney General's "Statement in Principle" speech - see Benedict at [5]).

1. In the present matter the parties served their "first round of disclosure statements" (under ss 247E and 247F), as required by the Court's "first" directions of 6 September 2013, and the defendant entered its "Not guilty" plea.

1. The prosecutor then filed additional affidavits - from a planner and a fire engineer - but the defendant quickly signified its objection to the prosecutor's reliance upon them.

1. Negotiation and resolution of that objection delayed the "second round" disclosures (under ss 247J, 247K and 247L), until after that objection was resolved. Such disclosures are discretionary in character, but had been directed by the Court on 15 November 2013, over the opposition of the defendant.

1. The objection of the defendant to the "late" evidence was subsequently resolved "by consent". Biscoe J made the relevant orders and directions on 10 February 2014. The prosecutor served its s 247J notice on that day, but Craig J varied the timetable on 7 March 2014.

1. The defendant responded with its s 247K notice on 8 April 2014, and part of that response ignited the question presently before the Court.

1. Section 247K relevantly provides (emphasis added):

"... the notice of the defence response is to contain the following:

...

(f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings,

..."

1. The defendant's s 247K notice responded to paragraph (f) in the following terms:

'None. No such report exists. The Defendant intends to call expert evidence. A report will be provided pursuant to s247O as soon as it is prepared in accordance with the Defendant's legal obligations under that section.'

1. Section 247O relevantly provides (again emphasis added):

Disclosure requirements are ongoing

(1) The obligation to comply with the requirements for preliminary disclosure imposed by or under this Division continues until any of the following happens:

(a) the defendant is acquitted of the charges to which the proceedings relate,

(b) the prosecution is terminated,

(c) the defendant is sentenced for the offence to which the proceedings relate.

(2) Accordingly, if any information, document or other thing is obtained or anything else occurs after preliminary disclosure is made by a party to the proceedings that would have affected that preliminary disclosure had the information, document or thing been obtained or the thing occurred before preliminary disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable.

(see Benedict at [17])

1. The defendant told the Court (Biscoe J), on 10 February, of its intention to call expert evidence. That intention was repeated in its s 247K notice ([13] above), and the defendant has not changed its position in this respect since.

1. However, as at the date of the hearing before me (2 May 2014), the defendant had not only not received an expert's report, but it had not yet briefed a relevant expert (Tp8, LL1 - 3). Accordingly, there is, self-evidently, not yet any expert report to disclose, pursuant to s 247K(f).

1. Mr Howard SC, for the prosecutor, noted (Tp8, LL5 - 15 - emphasis mine):

"There's been no explanation advanced as far as I'm aware of why the defendant hasn't briefed an exert, but what the Court knows is that it's got an intention to call it. We now know that the defendant is going to provide an expert report it says in some weeks down the track. I'll leave that to my learned friend but it really beg the question of whether there has been a decision by the defendant, a forensic decision taken to defer the briefing of the expert in order to avoid disclosure requirements under subparagraph (f) and again I'm not saying that in a way to suggest that that would be in any way improper but what I am suggesting is that that would in effect frustrate the Court's case management role and the purposes of division 2A."

1. He asks the Court (Tp4, LL20 - 25) to "reasonably draw the inference that [the defence] is delaying the briefing of its expert "to avoid" the disclosure that's contemplated by [s 247K(f)]".

Competing Submissions

1. The prosecutor argues (Tp5, LL13 - 26) that s 247K(f) is not intended to give the defendant "a unilateral discretion to just defer the briefing of an expert", but that it imposes an obligation, once it discloses its intention to call expert evidence, to brief an expert, obtain the report and serve it. Such an approach by the defendant enables it to dictate the timing of the proceedings.

1. However, the Division goes on to require, in s 247L(a), that "if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect". The prosecutor says (Tp7, LL11 - 18) that, in the present situation, it cannot comply with that requirement, and (LL29 - 47) that the defendant is undermining the Court's case management function:

" ... section 247K (f) would only have work to do if a defendant decides to disclose, not whether the Court orders it. So the defendant can simply avoid it by not preparing the report and will be only be according to my learned friend's advanced construction of the section if it in fact prepares a report and happens to have it prepared at the time that the obligation to disclose under 247K crystallises."

1. The prosecutor, therefore, asks the Court to order (subs par 15) "that the defendant must file and serve any expert report upon which it proposes to rely by 4pm on [a date to be fixed by the Court]".

1. Mr Howard also put to the Court (Tp8, LL30 - 34):

"Alternatively, your Honour, it would presumably suffice if the Court were to make a finding that s 247K(f) extends a properly construed important obligation on a defendant who intends to call expert evidence to produce a report by way of a preliminary disclosure under that section."

1. The defendant argues (Tp10, LL4 - 5) that such a direction is ultra vires, in the absence of the defendant consenting, because the defendant has a "common law right of non-disclosure that can only be abrogated by clear words on the part of the legislature".

1. The prosecutor says that Div 2A gives the Court the necessary power, but the defendant says (subs par 5, and Tp10, LL12 - 17) that it would require the Court to read into s 247K(f), words which do not occur there, either expressly or by necessary implication. Section 247K(f) does NOT say (as the prosecutor contends at par 5 of its subs that it should be construed as saying) that the defendant "if it intends to adduce expert evidence, must arrange for any expert report to be prepared and served as part of its preliminary disclosure in its s 247K notice".

1. The defendant remains entitled to put the prosecutor to proof of its case, and the section does not deprive the defendant of its right to retain/brief experts whenever it chooses to do so in the course of the proceedings, even if, by doing so, it risks the consequences of "an adjournment and costs" (Tp10, LL27 - 32).

1. Mr C Ireland, counsel for the defendant, would distinguish Benedict, which concerned supplementary evidence, not expert evidence, but he relied upon the Court of Criminal Appeal's decision in NSW Food Authority v Nutricia Australia ("Nutricia")[2008] NSWCCA 252; (2008) 72 NSWLR 456.

1. In that matter, Spigelman CJ, with whom Hidden and Latham JJ agreed, said (at [159]) that, " ... absent a clear statement that the accusatory system is to be abrogated, a statutory power should be read as not authorising steps to compel an accused, the subject of extant charges, to provide information for purposes of those proceedings", and (at [161]), that " ... Parliament should be taken not to have intended to impinge upon the accusatory nature of our system of criminal justice, after charges are lain, in the absence of express words or necessary intendment".

1. Biscoe J referred to Nutricia in his analysis in Benedict (at [6]), even though it concerned a different statutory regime.

1. Mr Ireland submits (pars 9 - 15) that the words of s 247K(f) are plain and clear, and that s 247B(a) makes clear that the provisions in the Division are intended to be quite specific, and not subject to broad implication. The direction of the Court specifically sought disclosure of the defence response "in accordance with" s 247K. Nothing in s 247N requires a party to retain an expert and serve the report with the s 247K notice. He also denies (pars 16 and 17) the assertion that he is subverting the case management regime: " ... when the Defendant identifies, retains, and commissions a report from an expert and secures that report that it intends to rely on at trial, then it will have an obligation to serve it on the Prosecutor, and the Defendant will do so".

1. The prosecutor's attempts to read additional words into s 247K(f), in the absence of ambiguity (par 21), "would have the invidious effect of further abrogating defendants' rights to non-disclosure beyond the strict limits placed by Parliament" on such abrogation. No "overarching general [case] management power" arises until the hearing commences (see s 247V).

1. Mr Ireland explained (in par 18) the defendant's delay, on the basis of Council's "substantial delays in producing the fire safety files ... germane to this proposed expert evidence" - Biscoe J had ordered their production by 21 February, and Craig J extended that date to 14 March. Mr Ireland went on to indicate that the defendant's expert evidence might hopefully be available within four to five weeks (after 30 April, or after the time at which the defendant chooses to engage its expert).

1. He declined (par 22) to consent to a timetable being imposed by the Court on the filing and service of that evidence, and submitted that there is no general power conferred on the Court to order disclosure prior to the commencement of the trial. The s 247K notice having earlier been given, the general s 247O(2) obligation to disclose will cut in when the expert report becomes available to the defendant - the section requires that follow-up disclosure "as soon as practicable". The matter can then proceed towards its trial in the normal way, given that the defendant expects to maintain its "not guilty" plea, whatever the report says (Tp17, LL24 - 33).

1. The hearing before me then proceeded to debate a timeframe, and the implications of that for the necessity for the Court to rule on the present dispute (see Tpp17 - 18).

1. The defendant pressed (Tp19 - 20) for the present issue about the scope for mandatory directions to be determined, but in the normal course of delivering reserved judgments: there is no question of public safety involved in the case, and no degree of urgency has been identified on either side, even though the defendant was resisting a court-imposed timeframe, and considering, in any event, the engagement of an expert whom it may choose to call at the hearing.

Conclusion

1. I have come to the view that Mr Ireland's submissions are clearly to be preferred.

1. When such a fundamental right as that of an accused to silence is abrogated by statute, the Court should not read the statute so expansively as to dictate how the defendant will prepare its response to prosecution evidence - it dictates only that parties must give proper notice to each other prior to the hearing.

1. The delay in the defendant's following-up the preliminary disclosure has been explained [31], partly on the basis of delay on the prosecutor's behalf, and Mr Howard expressly disavows any allegation of improper motivation [17] on the defendant's part.

1. The s 247K process is at an end, and the defendant has assured the Court that it will abide by s 247O when its expert report is available.

1. I, therefore, decline to make the order sought by the prosecutor ([21] above), and, because s 247O, rather than s 247K, applies at this stage, I also decline to make the alternative finding Mr Howard suggested (in [22] above).

1. Each party's costs of this hearing should be costs in its cause.

1. I will now hear the parties on the further management of the matter.

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Decision last updated: 23 June 2014