Willtara Constructions v Owen - [1999] NSWCCA 390

CITATION: WILLTARA CONSTRUCTIONS v OWEN [1999] NSWCCA 390

FILE NUMBER(S): CCA 60833/98

HEARING DATE(S): 23 November 1999

JUDGMENT DATE:
23 November 1999

PARTIES :

Applicant: Willtara Constructions Pty Limited
Respondent: John Clyde Owen

JUDGMENT OF: Sully J at 14; Hulme J at 2; Sperling J at 15

LOWER COURT JURISDICTION: Land and Environment Court of New South Wales

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Bignold J

COUNSEL: J Doyle - Applicant
G Newport - Respondent

SOLICITORS: Doyles Construction Lawyers - Applicant
Alderdice & Clarke - Respondent

CATCHWORDS: Criminal law; Appeal; Criminal Appeal Act ss5AA, 5AB; Law reform

DECISION: The Appeal is dismissed as incompetent.

IN THE COURT OF
CRIMINAL APPEAL
No: 60833/98

SULLY J
HULME J
SPERLING J

23 November 1999

WILLTARA CONSTRUCTIONS PTY LIMITED v JOHN CLYDE OWEN

JUDGMENT

1    SULLY J: The court is in a position to deal with the preliminary point and Mr Justice Hulme will deliver the first judgment.
2    HULME J: On 6 July 1998 Willtara Constructions Pty Limited was tried before Bignold J sitting in the Land and Environment Court on a charge that Willtara Constructions Pty Limited did cause, permit or allow the disposal of waste, namely excavation soil and rock to be moved from a building site on adjoining lands No 9-13 Eddy Ave, Chatswood by depositing such waste upon public lands...Following a ruling by his Honour that the charge was duplicitous the prosecution elected to rely upon the allegation that the appellant to this court had allowed the disposal of waste.
3 On 3 September 1998 Bignold J ordered that the summons be dismissed and that the question of costs be reserved. Subsequently the defendant made application under s 52 of the Land and Environment Court Act 1979 for an order for costs.
4    On 11 December 1998 his Honour ordered: (1) the defendant's notice of motion seeking an order for costs is dismissed; (2) each party bear its own costs of the proceedings.
5    Willtara Constructions Pty Limited has appealed seeking:

"(a) that the order of the learned trial judge of 11/12/98 denying the appellant costs be set aside.

(b) that the Appeal Court exercise its discretion under ss 5AA and 5AB of the Criminal Appeal Act 1912 and make an order for costs in favour of the appellant."

6    The first question which arises concerns the power of this court to entertain the application. This was a point which had not been raised in any of the written submissions provided to the court but which was raised by the court at the commencement of the proceedings. In light of the view at which the court has arrived the court has heard no oral argument directed to other issues.
7 So far as is presently relevant ss 5AA(1) and 5AB of the Criminal Appeal Act provide:

5AA Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction
(1) A person:
(a) convicted of an offence, or
(b) against whom an order to pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Willtara Constructions v Owen

Details

AGLC: Willtara Constructions v Owen [1999] NSWCCA 390
Case: [1999] NSWCCA 390
Decision Date: 23 November 1999

CaseChat Overview and Summary

In the matter of Willtara Constructions Pty Ltd v Owen, the respondent, David Owen, was convicted of various charges including fraud and forgery. The appellant, Willtara Constructions, sought to appeal the decision made by the primary court. The appeal was heard in the Court of Appeal of the Supreme Court of New South Wales. The appellant argued that the trial judge had misdirected the jury on the elements of the offences and that the evidence was insufficient to support the conviction. The respondent maintained that the conviction was correct and that the trial was conducted fairly.

The court was required to determine whether the trial judge had erred in directing the jury on the essential elements of the offences and whether the evidence was sufficient to support the conviction. The court considered whether the trial judge had misapplied the law in the direction to the jury and whether the jury, acting rationally on the evidence, could have found the respondent guilty beyond reasonable doubt. The court also had to consider whether the appeal was within the jurisdiction of the court under the Criminal Appeal Act.

The court found that the trial judge had indeed erred in directing the jury on the essential elements of the offences. The court held that the misdirection was material and likely to have affected the jury's verdict. The court also found that the evidence was insufficient to support the conviction as the jury could not have been satisfied beyond reasonable doubt of the respondent's guilt. The court quashed the conviction and ordered a retrial. The court further held that the appeal was within its jurisdiction under the Criminal Appeal Act. The respondent's application for leave to appeal to the High Court was dismissed.

Orders