Heatscape Pty Ltd v Mahoney

Nature of an Appeal Against Conviction and Sentence in this Court

1. In Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Preston J elaborated upon the nature of a Class 6 appeal (at [10]-[12]). A similar exercise was undertaken by me in Thomson v Hawkesbury City Council [2009] NSWLEC 151 (at [43]-[44]).
2. In summary, an appeal against conviction is made to this Court as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 ("the Appeal and Review Act").
3. An appeal against conviction is dealt with by way of rehearing on the basis of certified transcripts and evidence adduced in the Court below (s 37(1) of the Appeal and Review Act). The Court may grant leave to adduce new evidence only if it is satisfied that it is in the interests of justice to do so (s 37(2) of the Appeal and Review Act and see Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [34], Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [13] and Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226).
4. In an appeal against conviction the Court considers the matter afresh and resolves for itself the ultimate issues for determination. It is not necessary for the Court to find fault with the lower court's reasoning (Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [6]). The role of this Court is to consider for itself Heatscape's culpability upon the evidence that was tendered in the court below, in addition to any further evidence adduced with leave on the appeal.
5. There is, similarly, an appeal as of right against sentence pursuant to s 31(1) of the Appeal and Review Act. However, there is a distinction in the Appeal and Review Act between how appeals against sentence and appeals against conviction are to be conducted by appellants insofar as there is no equivalent to s 37 of the Appeal and Review Act applicable to appeals against sentence. The Appeal and Review Act is therefore silent on the nature of an appeal against sentence, and, in particular, whether leave is required to adduce fresh evidence on the appeal.
6. In Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 (at [33]-[51]) the Court discussed this legislative inconsistency and concluded that (at [51]): Notwithstanding the legislative lacuna on the nature of an appeal against sentence only under the Act, the Court proceeded on the basis that the appeal was by way of rehearing, absent the limitation on adducing fresh evidence contained in s 37(2). Thus the Court resolved for itself the ultimate issues for determination, in this case, the appropriate sentence to be imposed for the offence …
7. Consequently, an appeal against sentence proceeds by way of rehearing with the appellant not having to seek leave of the Court to adduce fresh evidence.
8. Accordingly, leaving aside other considerations concerning the admissibility of the photographs (elaborated upon below), Heatscape needed only to demonstrate that it was in the interests of justice that the photographs be admitted for the purpose of the appeal against conviction, and not sentence.

Application to Rely on Fresh Evidence Was Refused

1. In order to determine the application, it was necessary to examine the bases upon which Heatscape contended, as I understood it, the photographs were relevant both in relation to the appeal against conviction and the appeal against sentence.
2. First, in respect of the appeal against conviction, Heatscape submitted that when regard was had to the relevant planning instruments, no development consent (one of the elements of the offence) was necessary to replace the old window either because the premises did not, as asserted by the council, fall within a "heritage conservation area" for the purpose of the Gloucester Local Environmental Plan 2010 ("the LEP"), or because the activity of replacing the window constituted exempt development both under the LEP and the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the 2008 SEPP").
3. Clause 5.10(2)(a)(iii) of the LEP states that development consent is required for "a building, work, relic or tree within a heritage conservation area". The term "work" is not defined.
4. The definition of "heritage conservation area" in the Dictionary is as follows: heritage conservation area means an area of land of heritage significance: (a) shown on the Heritage Map as a heritage conservation area, and (b) the location and nature of which is described in Schedule 5, and includes any heritage items situated on or within that area.
5. The term "heritage significance" is defined in the Dictionary to mean "historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value".
6. The "heritage map" means the "Heritage Map" in the LEP. Schedule 5 to the LEP sets out in Part 1 the Heritage Items and in Part 2 the "Heritage conservation areas" described as "Gloucester Main Street Precinct".
7. The premises are not listed as a heritage item for the purposes of the LEP.
8. As stated above, the council contended that because the premises fell within a heritage conservation area, development consent was required. Heatscape, by contrast, relevantly argued for present purposes, that the council was required to prove that the premises were, according to the definition of "heritage conservation area", in an area of land of "heritage significance", as defined, and that the photographs were necessary to demonstrate that the area of land containing the premises, and the premises themselves, were not of "historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value".
9. The photographs were also being tendered as evidence of the fact that the development was exempt development pursuant to cl 3.1 of the LEP, and in particular, cl (11) of Schedule 2 (see cl 3.1(2)) which states that: (11) Window sign (including a sign displayed on a shop window) must comply with the following: (a) may only be located in Zone B2 Local Centre, Zone B4 Mixed Use or an industrial zone, (b) must not cover more than 75% of shop window, (c) must not be illuminated, (d) must be located on ground level facade, (e) only 1 per shop window.
10. The photographs before the Local Court did not show any advertising structure, whereas the photographs sought to be tendered on the application plainly indicated that the window was being used for advertising purposes, and therefore, according to Heatscape, the window constituted an "advertising structure" and was exempt development.
11. Under cl 2.50A(b) of the 2008 SEPP, the "maintenance of a building in a draft heritage conservation area comprising…(b) the repair or replacement of an external window" is exempt development not requiring approval from the council.
12. Similarly, under cl 2.51(1)(b) of that SEPP, "a minor internal building alteration for the replacement or renovation of…(b) a deteriorated frame member, including stairs or stairwells" is also exempt development.
13. Finally, Heatscape relied upon cl 2.53(b) of the 2008 SEPP. Clause 2.53 of that SEPP relevantly provides that: 2.53 Specified development A minor external non-structural building alteration, such as the following: … (b) the replacement of an external window, glazing areas or a door (other than those on bush fire prone land), … is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item or in a heritage conservation area or a draft heritage conservation area.
14. The term "heritage conservation area" in the 2008 SEPP picks up the definition of that term in the LEP.
15. Thus, Heatscape argued that the tender of the photographs was necessary to show that the offending window was the replacement of an external window that had deteriorated and was in poor condition.
16. Second, Heatscape contended that if it failed on its appeal against conviction, for the purposes of any resentencing, even if the premises to which the works were carried out were (this was not conceded) in a heritage area, the commission of the offence caused minimal environmental harm given the existing state of the building and the wall where the window was installed, and the location of the window (overlooking a laneway).
17. The council agreed that any environmental harm was at the lower end of the scale.
18. In addition to the fact that, first, there were photographs of the window, the external wall where the window was installed, and front of the premise already in evidence, which, despite their poor quality, were arguably adequate and were taken at the time of the commission of the offence by the council, and second, the fact that the provenance of the photographs is wholly unknown, further difficulties with the tender of the photographs in respect of the arguments raised by Heatscape adumbrated above included that: 1. the photographs did not, of themselves, assist in refuting the suggestion that the premises was not situated in land in an area of heritage significance as that term is defined in the LEP, and therefore, that the development did not occur in a heritage conservation area. Ultimately, resolution of that issue is to be decided on expert evidence adduced by the council or Heatscape, after a proper construction of cl 5.10(2)(a)(iii) of the LEP; 2. the photographs did not show a "window sign" pursuant to cl (11) of Sch 2 to cl 3.1 of the LEP, rather the photographs showed signs in a window. Furthermore, the photographs appeared to depict almost 100% coverage of the window by advertising, and not "not more than 75% of [the] shop window". And assuming that the photographs were taken after the commission of the offence, were they to be admitted it was possible that the council could seek to rebut the evidence by obtaining their own photographs to demonstrate that the window sign was not the only window sign on the premises (see cl (11)(e)), thereby delaying the final determination of the proceedings; 3. the photographs already in evidence clearly showed that it was an external window that had been replaced. This was not disputed by the council; 4. there was evidence from Mr Charman, unchallenged by the council, that the old sash window that was replaced was in poor condition. These photographs did not, in any event, depict the prior state of the window or its frame; and 5. nor, in my opinion, did they illustrate that the external wall was, at the time of the commission of the offence, or even at the time that the second set of photographs was taken, in a dilapidated state. On one view, the wall in the photographs appear to be in reasonably good condition. In any event, such evidence was more properly the purview of expert opinion. Moreover, the condition of the wall was neither, however, the subject of the proceedings in the court below nor this appeal.
19. Given the limited probative value of the proposed tender, especially given the unknown provenance of the photographs or the date on which they were taken; the fact that many of these arguments were not raised at first instance when it was reasonably open for Heatscape to do so; the fact that there was no reason given why these photographs could not have been tendered before the learned Magistrate; and that if admitted, the finalisation of the appeal might be delayed, I did not consider that the interests of justice would be served by their admission.

Heatscape's Application to Call a Witness to Give Oral Evidence Was Refused

1. Because the council refused to admit that the premises and window in the photographs were the same as that the subject of the conviction at first instances (it did, however, concede that they looked very similar), Heatscape consequently applied to call a council officer who was present in the courtroom during the proceedings, to give oral evidence about the content of the photographs, and in particular, to identify the building and window contained in them in order to prove that it was the same building and window in the photographs before the court below. The council officer was not a witness in the proceedings at first instance.
2. But in a Class 6 appeal there is no right to call witnesses to give oral evidence. Rather, s 38 of the Appeal and Review Act provides that: 38 Circumstances in which evidence to be given in person (1) The Land and Environment Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. (2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the Land and Environment Court may direct. (3) If an application for such a direction is refused, the Land and Environment Court must give reasons for the refusal. (4) A direction may be withdrawn only on the application, or with the consent, of the appellant. (5) The regulations may make provision for or with respect to the determination of substantial reasons under subsection (1). (6) Without limiting subsection (5), in determining whether substantial reasons exist, the Land and Environment Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings.
3. Mr Dupree conceded that no notice whatsoever had been served on the council in respect of Heatscape's application as required by s 38(2) of the Appeal and Review Act. Instead, he submitted that s 38 did not apply because this was an interlocutory application within the appeal.
4. There is no warrant for such an interpretation of s 38 of the Appeal and Review Act. The interlocutory application was plainly part of "proceedings on an appeal against conviction". Section 38 therefore applied and notice of the application to call the council officer was required to be served on the council.
5. Furthermore, given that the council officer did not take the photographs, her evidence could not rise any higher than the concession made by the council concerning the photographs, namely, that the building and window depicted in them looked very similar to the premises and window the subject of the charge and conviction. The proposed witness certainly could not assist the Court, or Heatscape, by indicating when, or by whom, the photographs were taken.
6. Hence, in the language of s 38(1) of the Appeal and Review Act, in my view, no substantial reason why, in the interest of justice, was proffered by Heatscape as to why this person should be directed to attend and give evidence. Accordingly, the application failed.
7. By parity of reasoning, the council's officer's evidence was similarly to be of no value in relation to the appeal against sentence, although in this regard Heatscape was not required to demonstrate that there was a substantial reason why, in the interest of justice, the council officer should be called.
8. The application to call the council officer was therefore refused.

The Photos Are Otherwise Inadmissible

1. In my opinion, even if it was in the interests of justice to admit the photographs pursuant to s 37 of the Appeal and Review Act, they could not be received by the Court because they were otherwise inadmissible.
2. First, in light of when they were taken - at some point after the commission of the offence - they could not be representative of either the state of the old window, the state of the new window, or the state of the external wall, at the time of the commission of the offence. It was possible, for example, that further works had been undertaken to both the new window and the wall in the intervening period. Conversely, it was possible that the condition of the external wall had deteriorated during this time. Indeed, to reiterate, it was not even known whether or not the wall and window depicted in the photographs proposed to be tendered were of the same window and building the subject of the conviction and fine.
3. In these circumstances, and in addition to the reasons given above at [35], it could not be concluded that the photographs were relevant to an issue to be determined in either the appeal against conviction or sentence, as demanded by s 55 of the Evidence Act 1995. The photographs were therefore inadmissible pursuant to s 56(2) of that Act.
4. This is not to say that photographic evidence cannot be used by a trial judge. But a proper foundation must be laid as to their relevance and care must be taken not to overstep their use and interpretation. As Tobias JA observed in Blacktown City Council v Hocking [2008] NSWCA 144 (at [167]-[170]): 167 The use of photographic evidence has been the subject of discussion in this Court. Its admissibility as a visual reproduction is beyond doubt: Reg v Travers (1958) 58 SR (NSW) 85 at 108. However, in Short v Barrett, Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the "sage advice" of Lord Reid in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71. His Lordship said: "Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance." 168 In Stillwell Trucks Pty Ltd v McKay & Ors [2002] NSWCA 292, Campbell AJA, with the agreement of Handley and Beazley JJA, also referred (at [71]-[72]) with approval to this passage from Lord Reid's speech, observing that although his Lordship was concerned with a patent case concerning a hay rake and the issue was anticipation, the passage gave guidance on a wider basis. Campbell AJA then observed (at [73]): "In my view the use of other components in the photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification." 169 It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142. 170 Thus in United States Shipping Board v The Ship St Albans [1931] AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of "careful delineation" particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.
5. Second, absent knowing who took the photographs they were hearsay evidence contrary to s 59 of the Evidence Act. None of the exceptions to that prohibition were, in my opinion, applicable.
6. Third, even if the photographs were relevant and did not constitute hearsay, I would have, in any event, excluded them pursuant to s 135 of the Evidence Act on the basis that, again, absent any evidence as to their provenance and the date upon which they were taken, the limited probative value they had (if any) was outweighed by the danger that the evidence might be misleading or confusing (it was possible that the new window had further works undertaken in respect of it, or, for example, that the wall had been repainted or repaired since the commission of the offence), or cause or result in a waste of time (it was possible that the council would seek to rebut the evidence resulting in delay in the finalisation of the hearing).

Conclusion and Orders

1. It was for these reasons that the application to adduce fresh evidence not before the Local Court was dismissed, and moreover, the tender by Heatscape of the photographs was rejected.
2. The costs of both failed applications were reserved and the exhibits (the photographs) were returned.

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