Blue Mountians City Council v Koprivnjak

Blue Mountians City Council v Koprivnjak - [2003] NSWLEC 158 - NSWLEC 2003 case summary — Zoe

[12]

(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. Defendant's submissions 11 The defendant acknowledges that he would not challenge the present proceedings if the summons had been filed and served when information was laid in relation to the first charge. However the defendant submits that these proceedings should be stayed because they constitute an abuse of process, for two reasons. Firstly, he claims that the charge relating to the alleged offence against s 144 of the POEO Act and the offence against s 125 of the EP&A Act should have been joined in the same proceedings. The two offences are based upon the same facts. Accordingly the council had all of the facts upon which it relies for these proceedings in its possession when it laid the information which was heard and dismissed by Magistrate Clarke. 12 The defendant submits that as a general rule, all charges rising out of the same facts should be combined into the one indictment to prevent a series of trials arising on substantially the same facts. The rationale of such a rule is to prevent an abuse of process and thereby protect the administration of justice. The defendant acknowledges that the plea of autrefois acquit is not available but submits that legal authorities establish that in the present circumstances an accused may plead that it would be an abuse of process for the Court to proceed to hear the second charge. In support the defendant relies upon the principles referred to in Pearce v The Queen (1998) 194 CLR 610; Regina v Beedie [1997] 3 WLR 758; Connelly v Director of Public Prosecutions [1964] AC 1254; and Carmody v Brancourts Nominees Pty Limited and Another (2002) 124 LGERA 136 per Talbot J. The defendant submits that a stay of the present proceedings is warranted if the Court is satisfied that "oppression" and "prejudice" to the defendant is demonstrated: see Pearce at p 649. 13 As a second ground of challenge, the defendant submits that the second charge constitutes an abuse of process because it is evident that the proceedings are foredoomed to fail. The defendant alleges that he is incorrectly charged with an offence against s 76A of the EP&A Act instead of s 76B of such Act. The charge against s 76A of the EP&A Act implies that consent can be granted for the development which is the subject of the charge. The defendant alleges the development relied upon by the council could never have been the subject of any consent because development of the kind alleged by the council was prohibited by the LEP. Accordingly s 76B of the EP&A Act was the appropriate section for the alleged offence. 14 The defendant held a development consent which was issued on 2 April 1998 and related to the building of a "timber clad dwelling with colourbond roof" pursuant to building approval 1389/97 ("the consent"). By letter dated 2 September 2002 the defendant requested the council to specify the "development" which was allegedly carried out by the defendant without development consent. The council advised the defendant by letter dated 9 October 2002 that the relevant development "comprised the depositing of land fill" onto the site "and the spreading of that fill over the land". 15 The alleged development as particularised is not included within the table annexed to cl 9 of the LEP and is accordingly prohibited development in the Residential Bushland Conservation Zone being the applicable zone to the site. Such development is not prohibited if it is classified as "ancillary or incidental development" pursuant to cl 15 of the LEP. Such clause provides:- 15. Ancillary or Incidental Development Development which is ancillary or incidental to a purpose for which land may be used with consent, is prohibited unless there is a current consent to use the land for that purpose, or the land is lawfully used for that purpose.

[13]

16 The defendant therefore clams that the second charge could not succeed because of the incorrect nomination of the provision in the EP&A Act. The defendant relies upon the principle in Walton v Gardiner (1993) 177 CLR 378 at p 393 per Mason CJ, Deane and Dawson JJ, namely that the Court will stay proceedings where they are foredoomed to fail. Council's submissions 17 The council acknowledges that there may be cases where a repeated prosecution of an offender could amount to an abuse of process, in accordance with principles discussed in Pearce at p 620 and in Rogers v The Queen (1994) 181 CLR 251. The council submits that such conclusion could not be drawn in respect of the second charge. These proceedings do not amount to exceptional circumstances, which are required to warrant the Court's intervention by the award of a stay. The council submits that the POEO Act and the EP&A Act are complementary but create separate and discrete statutory regimes. The POEO Act relates to control of pollution and the EP&A Act relates to planning and development. The council further submits that the development referred to in the second charge is a separate and distinct matter from conducting a waste facility which was the subject of the first charge. It is not necessary to conduct the proceedings relating to the two offences concurrently merely because the evidence to prove the two offences is common. Additionally, the council submits that there was no improper, unfair or unjust conduct on its behalf. 18 The council rejects that the submission that the second charge is foredoomed to fail. The council referred to the consent and to two plans which related to the development, one of which indicated the proposed features of the development that included a "proposed future tennis court" and "proposed future driveway". The council submits that the work of placing fill on the land is to be characterised as "development ordinarily incidental and ancillary to a dwelling house", being either the existing dwelling house or the proposed future dwelling, in accordance with definitions found in Sch 4 of the LEP, and that the charge does not relate to a waste facility.

[17]

It should be noted that Sch 1 r 3 of the Indictments Act 1915 (UK) referred to by Devlin L.J. makes specific provision for charges for any offences to be joined in the same indictment if those charges are founded on the same facts. Section 29 of the Criminal Procedure Act 1986 ("Criminal Procedure Act") of New South Wales makes a similar provision as follows:- s 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. Section 29 of the Criminal Procedure Act generally applies to all offences arising under any Act or under common law: see s 28 of the Criminal Procedure Act. It is apparent however that s 29 of the Criminal Procedure Act does not make it mandatory for offences arising out of the same facts be heard together. 24 Although the observations of Devlin L.J. extracted above are compelling, he recognised the need to consider the circumstances in each case. In Connelly he said at p 1359 to 1360:- As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment. He will do this because as a general rule it is oppressive to an accused for the prosecution not to use rule 3 where it can properly be used. But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule. 25 The High Court of Australia has considered the "general rule". McHugh, Hayne and Callinan JJ in Pearce v The Queen stated at p 620:- That there may be cases in which the repeated prosecution of an offender in circumstances where the offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen (See also R v Brightwell [1995] 2 NZLR 435). The decision about what charges should be laid and prosecuted is for the prosecution ( Maxwell v The Queen (1996) 184 CLR 501 at 512, per Dawson and McHugh JJ; at 534, per Gaudron and Gummow JJ). Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time.

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