Kogarah Council v Beljo, Nedjeko; Beljo, Nedjelko v Kogarah Council

RESPONDENT Kogarah Council

KEY ISSUES: Appeal :- whether magistrate erred in applying defence of honest and reasonable mistake of fact.

LEGISLATION CITED: Crimes (Local Courts Appeal and Review Act) 2001 Environmental Planning and Assessment Act 1979

APPELLANT Mr T Howard (barrister) SOLICITORS Matthews Filbigg Solicitors

RESPONDENT Ms Kluss (barrister) SOLICITORS LEGAL REPRESENTATIVES: Hancock Alldis & Roskov Lawyers No. 60009 of 2006

APPELLANT Ms S Kluss (barrister) SOLICITORS Hancock Alldis & Roskov Lawyers

RESPONDENT Mr T Howard (barrister) SOLICITORS Matthews Folbigg Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

60008 of 2006 Kogarah Council v Nedjelko Beljo 60009 of 2006 Nedjelko Beljo v Kogarah Council

EX TEMPORE JUDGMENT 1 Talbot J: The following background facts in relation to the determination are not in dispute and are therefore taken directly from submissions made by Mr Howard representing the council. The Appeals 2 There are effectively three appeals before the Court:

· In proceedings 60008 of 2005, the prosecutor appeals against each of two orders made by a magistrate in the Sutherland Local Court dismissing (two) charges prosecuted in summary proceedings, pursuant to s 42(2B) of the Crimes (Local Courts Appeal and Review) Act 2001. · In proceedings 60009 of 2006, the defendant appeals against his conviction sentence and costs in respect of a third offence prosecuted in those same proceedings.

Proceedings in the Court Below 3 The appellant prosecuted five offences against the respondent in the court below. Each offence was listed sequentially identified by separate number on the Court Attendance Notice issued 2 August 2005.

4 The respondent pleaded not guilty to all five charges.

5 On 10 March 2006, the charges were heard by Mr J. Bailey LCM in the Sutherland Local Court.

6 The prosecution called evidence with respect to all five charges. At the close of the prosecution case, each of Offences Nos 4 and 5 were dismissed on the basis that the prosecutor had not established a prima facie case. There is no issue about those charges.

7 With respect to Offences Nos 1, 2 and 3, the defendant called evidence in his defence.

8 Offences Nos 1, 2 and 3 were articulated in the Court Attendance Notice as follows: Offence No 1 - carrying out development otherwise than in accordance with development consent The defendant committed an offence against s125(1) of the Environmental Planning and Assessment Act 1979 in that he caused, suffered and permitted a thing to be done which he was forbidden to do under the said Act insofar that the Defendant carried out development on land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, otherwise than in accordance with a development consent which was obtained and in force with respect to the development contrary to s76A(1)(b) of the Act. Offence No 2 - carrying out development on land without development consent (Demolition of a 'house' specified as a heritage item) The defendant committed an offence against s125(1) of the Environmental Planning and Assessment Act 1979 in that he cause, suffered and permitted a thing to be done which he was forbidden to do under the said Act insofar that the Defendant carried out development on land, being development which can only be carried out with development consent under the provisions of an environmental planning instrument which applied to the land, contrary to s76A(1) of the Act. Offence No 3 - carrying out development on land without development consent (Destruction of a 'garden' specified as a heritage item) The defendant committed an offence against s125(1) of the Environmental Planning and Assessment Act 1979 in that he caused, suffered and permitted a thing to be done which he was forbidden to do under the said Act insofar that the Defendant carried out development on land, being development which can only be carried out with development consent under the provisions of an environmental planning instrument which applied to the land, contrary to s76A(1) of the Act. 9 At the conclusion of the hearing on 10 March 2006, the Magistrate reserved his decision with respect to Offences Nos 1, 2 & 3. 10 The grounds of appeal in proceedings 60008 of 2006 are:

GROUND No 1: With respect to Offence No 1, the magistrate erred in law in finding that the defendant had defence of honest and reasonable mistake of fact.

GROUND No 2: With respect to Offence No 1, the magistrate erred in law in finding that the defendant had established the defence of honest and reasonable mistake of fact.

GROUND No 3: With respect to Offence No 1 and Offence No 2, the magistrate erred in law in finding that no weight could be attached to the verbal admission made by the defendant to Mr Cox on 1 February 2005 as recorder in pages 5 & 6 of Exhibit 6 in the proceedings. On Appeal 11 I have had an interesting journey through the legislative provisions regarding the way in which appeals to this Court should be dealt with when there is an appeal to the Class 6 jurisdiction of this Court from the decision of a Magistrate. I may at some point publish some reasons relating to that aspect of the case but I am at pains to emphasise today that I am prepared to deal immediately with grounds numbers 1 and 2 (and indeed 3) raised by the appellant counsel prosecutor on the merit of the arguments based upon what I consider to be a reasonable understanding of the decision made by the Magistrate. The Magistrate delivered a reserved decision and gives comprehensive reasons and explanations for his ultimate determination. 12 Put shortly the Magistrate makes his determination from p 9 of the judgment onwards. In relation to the first offence he specifically refers to the provision of condition 2 of the development consent. The importance of the acts that are alleged to have occurred which led to the prosecution in context of condition 2 are all clearly set out in the decision. I do not need to reiterate in order to deal with this appeal. 13 Condition 2 imposes a responsibility upon a developer to take all care in carrying out demolition work so as to avoid any damage to the front of the subject cottage. The issue is whether the defendant did breach that condition by failing to take all care, or to put it in the words of the condition, exercise all care in carrying out the demolition work. 14 I am not satisfied that when the Magistrate used the phrase 'a honest and reasonable belief' in the various parts of his judgment, particularly at p 10, that he was using that expression in the technical sense of a defence to a criminal charge as explained in Proudman v Dayman and other comparable decisions. I read the judgment on the basis that the Magistrate, having considered the facts, came to a conclusion that the defendant made a mistake of judgement, which was honest and reasonable in the circumstances. When he demolished the rear of the building, as he was entitled to do, he did not appreciate that the rest of the building would collapse. For whatever reason that might be he held a reasonable belief to that effect. Taking that in the context of condition 2 it is to be assessed against whether or not he was taking the requisite amount of care demanded by condition 2. 15 I read the judgment of his Honour to be saying that because he held the belief about the nature of the structure and what the consequences might not be then, to put the proposition in reverse, he was not being careless. That has got nothing to do with the defence of honest and reasonable mistake of fact and indeed the Magistrate does not use the word 'mistake' and he does not use the word 'fact' so that I am not prepared to regard his finding in relation to offence number 1 as being a finding that the defence of the Proudman v Dayman type had been made out. 16 That is the end of the prospect of success in the circumstances where the right of an appeal pursuant to s 42(2B) of the Crimes (Local Courts Appeal and Review) Act is confined in the case of a prosecutor to the ground that involves a question of law alone. Whether or not the Magistrate was right to determine, as he did, that the offence was not proved, or that some other circumstance was established by the facts that entitled a dismissal of the charge, is irrelevant in circumstances where the council has elected to appeal concisely on the basis that the finding was that the defendant had established the defence of honest and reasonable mistake of fact. For the reasons that I have explained I am not satisfied that was the case. 17 In relation to ground number 2 the issue is not quite so clear. With great respect, the language used by the Magistrate at the foot of p 10 over to p 11 leads to some confusion. However, again having regard to the rather constrained grounds provided by s 42(2B) that I have already referred to, that is not in itself a ground for appeal. But I again find that although the Magistrate does have some internal inconsistencies in his judgment in relation to offence number 2, particularly in relation to the last paragraph at p 10 going over to p 11, I am not able to find that his finding was the defendant had established the defence of honest and reasonable mistake of fact. 18 Ultimately he finds that the prosecution had not established the allegation beyond a reasonable doubt, and offence number 2 would be dismissed. That appears to be inconsistent with the first sentence where he finds there is no dispute, that indeed the defendant demolished the front portion of the house, without having consent to do it. He then says he does not intend to repeat what he said in the previous paragraphs concerning an honest belief based upon reasonable grounds. Again that is not a strict statement of the Common Law defence. 19 So that I am again not able to find that the Magistrate made a finding that the defendant had established the particular defence. I can only rely upon what is said in the judgment to determine whether or not the requisite ground involving a question of law has been established. For the reasons that I have given I am not able to do that in relation to either of the grounds. 20 Insofar as ground number 3 is concerned I have some difficulty in understanding just specifically what it is that the prosecutor is asserting in relation to the alleged admission. Nor am I persuaded that the failure to take into account the admission, so called, had any bearing on the outcome. I do not mean by that that there is no other evidence. For example exhibit 7 which was a letter written by the defendant to the prosecutor. However the Magistrate proceeded to make his decision on the basis that the demolition occurred and that, as I indicated from the foot of p 10 before, the defendant did it. All I am asked to resolve on this appeal is whether or not I should uphold the appeal on the basis that he erred in law in finding that no weight could be attached to the verbal admission. Whether or not he did or did not err in law in that respect is of no consequence in the circumstance where the Magistrate specifically found that the defendant demolished the front portion of the house without having consent to do it. 21 The argument then circulates back to the first two grounds in relation to the honest and reasonable mistake. I have already given my reasons for not allowing the appeal on that ground. Accordingly, as a matter of discretion, and as a matter of practicality, I find that the third ground has no determinative role to play. Even if I find that the Magistrate erred in placing no weight upon it, he found to the effect that the defendant had demolished the front portion of the house in any event. 22 It is not for me on appeal to re-determine the whole case. My responsibility on appeal is to determine whether or not the findings of the learned Magistrate establish a ground that involves a question of law alone, as a ground for allowing the appeal. 23 In the circumstances for the reasons I have given I find that each one of the three grounds for appeal should be dismissed. The appeal is dismissed. 24 The respondent in the first matter has been successful and prima facie is entitled to costs. I am not assisted by any submission to the contrary from the council. Accordingly I order that the appellant council in the first matter pay the respondent's costs of today in relation to the first appeal. 25 By consent the second appeal in Proceedings No. 60009 of 2006 is withdrawn, dismissed and each party is to pay their own costs.

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