Lin v Fairfield City Council

CITATION : Lin v Fairfield City Council [2007] NSWLEC 568

Bankstown City Council v Le (2003) 133 LGRA 155; Brown v Chandler (1985) 18 A Crim R 257; Camilleri's Stock Feed Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683; Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692; Cookson (1989) 45 A Crim R 121; CASES CITED: Denning v Department of Environment and Conservation [2007] NSWLEC 258; Director of Public Prosecutions (NSW) v Dobbs [2005] NSWCA 115; Hijazi v Canterbury City Council (No.2) [2007] NSWLEC 367; Power v Penthill House Pty Limited (1993) 80 LGERA 247; R v Sloane (1990) 49 A Crim R 270; Ridgeway v The Queen (1995) 184 CLR 19; Robinson v Woolworths Ltd (2005) 64 NSWLR 612

B: - I am appealing the above sentence because the penalty is too severe." 5 Both of these grounds which were printed on the standard form were left without any crossing out thereby indicating that it was an all grounds appeal. 6 Because the application for leave to appeal and the accompanying notice of appeal were stated to be to the District Court, the matter was forwarded by the Local Court to the District Court. On 23 February 2007, Judge Sides of the District Court held that the District Court had no jurisdiction to hear the appeal. Subsequently, the matter was referred by the District Court to the Land and Environment Court and the matter was fixed for hearing of the application for leave to appeal. 7 On the hearing of the application for leave to appeal before me, the respondent, the prosecutor in the court below, took no issue that this Court had jurisdiction to deal with the matter and accepted that the applicant's application for leave to appeal with the accompanying notice of appeal was competent to commence an application pursuant to s 33 of the Crimes (Appeal and Review) Act 2001: see Director of Public Prosecutions (NSW) v Dobbs [2005] NSWCA 115 (11 April 1005) at [20] - [22] and Denning v Department of Environment and Conservation [2007] NSWLEC 258 (15 May 2007) at [44] and [45]. The defect in the application for leave to appeal, being the reference to the District Court rather than the Land and Environment Court, can be corrected pursuant to s 62 of the Crimes (Appeal and Review) Act 2001. Accordingly, the matter should proceed on the basis that there is a competent application to the Court for leave to appeal pursuant to s 33 of the Crimes (Appeal and Review) Act 2001. 8 Section 33 of the Crimes (Appeal and Review) Act 2001 provides that any application for leave to appeal outside the twenty-eight day period prescribed by s 31(2)(a) can be made but must be made within three months after the relevant conviction, sentence or order is made or imposed: s 33(2). As I have noted the applicant's application for leave to appeal was made on 19 December 2006, within a few days of the expiry of the three month period from the date of conviction and sentence by the Local Court on 22 September 2006. 9 An application for leave to appeal under s 33 is required to be made by lodging a written application for leave to appeal together with a written notice of appeal: s 34(3). The application for leave to appeal must state the general grounds of the application and in the case of an application under s 33, must state the reasons why an appeal for an application for leave to appeal was not made within the time allowed by s 31: see s 34(4). As I have noted, the application for leave to appeal did state, at the highest level of generality possible, the grounds of the application, namely "conviction and severity of sentence". The accompanying draft notice of appeal also stated grounds to that effect in the terms of those on the printed form. No details of the grounds of appeal against conviction or sentence were stated in either document. 10 However, neither the application for leave to appeal nor the accompanying notice of appeal stated the reasons why an appeal or an application for leave to appeal was not made within the time allowed by s 31, namely, the twenty-eight day period. The applicant tendered on the hearing of the application for leave to appeal the transcript of the hearing in the Local Court together with five exhibits that were tendered in the Local Court. None of this evidence discloses why an appeal was not made within the twenty-eight day period allowed by s 31 or why the application for leave to appeal was made only a few days short of the three months period. 11 From the bar table, counsel for the applicant (who I note was not the counsel who appeared in the Local Court below) submitted that the delay was explicable for the following reasons: the applicant speaks very little English; the applicant did not understand the first hearing before the Local Court or the process that was involved in the prosecution, hearing, conviction and sentence; and the applicant had changed solicitors in the meantime, that is subsequent to the hearing in the Local Court and before the making of the application for leave to appeal. As I have said, no evidence was adduced nor were these grounds articulated as required by s 34(4) on the application for leave to appeal. However, certain of these submissions are borne out by the evidence in the Local Court. The transcript reveals that an interpreter was used both in the investigation process by the council and also in the giving of evidence in the Local Court and these facts support the submission that the applicant speaks very little English. The evidence of the applicant at the hearing recorded in the transcript reveals that upon being given the court attendance notice the applicant did not seem to understand the process. It may be a reasonable inference to draw that that understanding did not come any later in the process. The change of solicitors may be borne out by looking at the notices of appearance of the solicitors acting for the applicant on this appeal as compared to the solicitors who appeared for the applicant in the court below. 12 However, even if these submissions can be seen to be factually correct for the reasons I have just given, there is no explanation of why these facts have caused the delay in complying with the statutory time period for lodging an appeal. At least two of the submissions, namely speaking very little English and not understanding the first hearing process, applied equally before as after the Local Court hearing. There is no explanation that there was proffered any advice as to the need to comply with the twenty-eight day period which was not understood by the applicant or any other causal connection between the submissions advanced on behalf of the applicant and the delay. 13 In any event, s 36(2) of the Crimes (Appeal and Review) Act 2001 provides that this Court must not grant leave to appeal in relation to an application under s 33 unless the Court is satisfied that it is in the interests of justice that leave be granted. As counsel for the respondent submits, this statutory provision requires the Court to start from the proposition that leave "must not be granted" to an application under s 33 for leave to appeal outside the twenty-eight day period prescribed under s 31(1) unless the Court forms the opinion of satisfaction that it is in the interests of justice that leave be granted. 14 The full scope of the concept of "the interests of justice" in s 36(2) need not be explored in this case. At least the concept includes the reasons why an appeal and application for leave to appeal was not made within the time allowed by s 31, this being the requirement in s 34(4). I say this because if there were cogent reasons explaining why the applicant was unable to lodge an appeal under s 31(1) within the time period prescribed then it would be in the interests of justice to allow that appeal to be made notwithstanding it would be outside the twenty-eight day period. On the other hand, if there are no cogent reasons why the time period prescribed was not complied with then the interests of justice may not support the granting of leave. 15 Another factor which would go to whether it is in the interests of justice that leave be granted is the merits of the prospective appeal. That proposition is supported by at least two decisions, the first being Brown v Chandler (1985) 18 A Crim R 257 and the second being Cookson (1989) 45 A Crim R 121. In each of those cases the Court of Criminal Appeal, the first in Queensland and the second in Western Australia, examined the prospective grounds of appeal and determined that they were not sufficiently strong so that it could be said that there was any miscarriage of justice such as would warrant the granting of the application for an extension of time in which to appeal. 16 As I have noted, the applicant does not state in either the application for leave to appeal or the attached notice to appeal, the precise grounds on which the applicant says that the conviction or the sentence should be interfered with by this Court. Nevertheless, in submission, counsel for the applicant stated that, at least in relation to conviction, the applicant would wish to argue that certain evidence ought to have been excluded under s 138 of the Evidence Act 1995 (NSW) as having been obtained improperly or in consequence of an impropriety. The evidence was that of a Mr Gorton. Mr Gorton was apparently engaged by the respondent council to visit the applicant's premises at 190 Cabramatta Road. The evidence-in-chief of Mr Gorton was given orally. There had been a written proof of evidence provided to the applicant but that statement was not tendered in evidence. The evidence of Mr Gordon was brief and it may be convenient if I set it out as it will help to explain my reasons in relation to the applicant's foreshadowed argument. 17 Mr Gorton after giving his name, address and occupation was asked what he did on 5 March 2006. This date was the date of the offence. Mr Gorton answered as follows: "Yes. At about 3 o'clock in the afternoon I arrived at 190 Cabramatta Road, I went in, I was greeted by a young woman aged about 25, I asked for a half hour massage, she led me through to the first room, I - she massaged me for about 20 minutes using her elbows and knuckles causing great pain. After that she asked me to roll over, she rubbed powder on my chest and rubbed by nipples in a very painful manner and then she asked me if I wanted my penis massaged and she used a hand gesture to indicate that as well. I said, 'Yes, how much?', she said, '$20'. She rubbed oil on my penis, massaged it til I was erect, this continued until I ejaculated, she then wiped the ejaculate off me. I paid her $20 for the hand job, I got dressed and left". 18 There then followed cross-examination by the applicant's legal representative. Of relevance to the arguments that the applicant puts on the hearing of its application for leave to appeal is that Mr Gorton was asked whether he was self-employed, Mr Gorton answered "yes"; he was asked "as an investigator?" and the magistrate said "no, he said a businessman"; he was then asked "are you a businessman?" he said "yes". Subsequently, after some legal argument, the question was re-framed to be as follows: Q. Sir, are you a registered private investigator?

A. No. 19 I should note here that the council officer who engaged Mr Gorton was also called to give evidence. His name was Mr Bruce. Mr Bruce's written proof of evidence was tendered and became exhibit 4 in the Court below and exhibit E in this Court. The council officer, Mr Bruce, was asked why he did not engage a licensed investigator, to which Mr Bruce answered "well, I was of the impression that Mr Gorton was a licensed investigator". 20 As I understand the argument, the applicant submits that the evidence of Mr Gorton was evidence that was obtained improperly or in consequence of an impropriety under s 138(1) of the Evidence Act 1995 in two respects. 21 First, it was said that Mr Gorton was not a licensed private investigator. This relies upon the question and answer to which I have earlier referred where Mr Gorton accepted that he was not a registered private investigator. The argument is that a person who carries out any private inquiry agent activity must do so in accordance with an operator licence for that activity under the Commercial Agents and Private Inquiry Agents Act 2004: see s 11(1). A private inquiry agent activity is defined in that Act, s 4, as involving the "investigation of persons or surveillance of persons". The investigation of persons is, in turn, defined to mean "any activity carried out by a person on behalf of a second person (not being his or her employer), being an activity that involves finding a third person or investigating a third person's business of personal affairs". 22 The applicant's argument is that Mr Gorton was carrying out an activity on behalf of a second person, being the council, which involved investigating a third person's business, namely the business of the applicant in this case. The argument is that, therefore, Mr Gorton was required, in order to carry out that private inquiry agent activity, to be licensed but Mr Gorton had admitted not being registered, which I take to be licensed, under the Act. Hence, it was said, Mr Gorton was committing an offence against the Commercial Agents and Private Inquiry Agents Act. It was then submitted that any evidence obtained by Mr Gorton in these circumstances should be taken to be obtained improperly or in consequence of an impropriety within the meaning of s 138(1) of the Evidence Act 1995. 23 Secondly, the applicant submitted that the fact that Mr Gorton allowed the applicant's employee to perform the act of masturbation rather than stopping at the point where there had been an offer to provide the service of masturbation and the agreement of a price, involved impropriety. The applicant submitted that it would have been sufficient, in order to establish the offence of carrying out development for the prohibited purpose of a brothel, if the evidence had stopped with the offer to provide the service of masturbation and the agreement of the price for that service without the necessity of carrying out the act of masturbation and the payment of the price for the service. It was said therefore, that the evidence that was obtained, having gone through the act of masturbation and paying of the money for the service, was obtained improperly or in consequence of an impropriety. 24 It should be noted at the outset that the mere fact that evidence might have been obtained improperly or in consequence of impropriety does not automatically lead to the exclusion of that evidence. Section 138(1) states that evidence that is obtained improperly or in consequence of impropriety is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. In determining that balancing act of whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, regard may be had to the factors in s 138(3) of the Evidence Act 1995: see also Hijazi v Canterbury City Council (No 2) [2007] NSWLEC 367 at [26]. I will come back to these factors later. 25 It should also be noted that the evidence of Mr Gorton was admitted at the hearing in the Local Court without any objection from the applicant. As I have noted, a written proof of the evidence of Mr Gorton was served on the applicant. The applicant and her legal representatives, therefore, knew what was the nature of the evidence that would be adduced. They knew that the date of the offence, 5 March 2006, was the date on which Mr Gorton attended the premises and obtained the masturbation services. They knew from the evidence of Mr Bruce that Mr Gorton had been engaged to obtain the evidence of carrying out development for the prohibited purpose of prostitution. In other words, the applicant and her legal representatives knew that the critical evidence upon which the council's case turned was Mr Gorton's evidence. The applicant and her legal representatives also knew, or at least must have suspected, that Mr Gorton was not a licensed private investigator. Within a very short time of beginning cross-examination, Mr Gorton was asked whether he was a licensed private investigator and, the answer was given that he was not. No application was made, on hearing that evidence, to exclude the evidence that had been given by Mr Gorton on the basis now advanced of impropriety. 26 Although it is not necessary for the purpose of determining an application for leave to appeal to determine whether any ground for appeal against conviction is made out, it is relevant to inquire as to the strength of the ground for determining whether it would be in the interests of justice to grant leave to appeal under s 33 of the Crimes (Appeal and Review) Act 2001. For that reason, I will briefly deal with the foreshadowed grounds. 27 The first hurdle which the applicant faces is that, as I have noted above, no objection was taken to the admission into evidence of Mr Gorton's evidence in the Local Court below. In order to succeed on any appeal against conviction in this Court, the applicant would need to have the evidence of Mr Gorton excluded from the evidence to be considered on the appeal. Obviously, if it was, then there may be very little evidence establishing that the defendant carried out development for the purpose of a brothel. 28 Section 37 of the Crimes (Appeal and Review) Act 2001 provides that an appeal is to be dealt with by way of re-hearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by s 38. Fresh evidence may be given, but only by leave of the Court, which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given: see s 37(1) and (2) of the Crimes (Appeal and Review) Act 2001. 29 The nature of an appeal to this Court under the Crimes (Appeal and Review) Act is a re-hearing and not a hearing de novo. The nature of that re-hearing has been described in Camilleri's Stock Feed Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 and Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 (1 December 2005) at [17]. This has a consequence that if evidence is admitted without objection in the trial below, it is not open to the appellant to challenge the admissibility of the evidence before this Court. This was the holding of Kirby P in Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 686 and Talbot J in Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 at [19] and [20]. 30 In Camilleri's Stock Feeds Kirby P stated: "Before this court, the appellant sought to have the evidence of prior emissions excluded from the evidence to be considered. By reason of the appellant's consenting to the admission of the evidence at the trial, it was not, in my view, open to the appellant to challenge the admissibility of the evidence before this Court. Ordinarily, a party consenting to the admission of evidence at trial cannot, unless there are exceptional circumstances, seek, upon an appeal by way of re-hearing (as distinct from an appeal by way of hearing de novo), to have such evidence excluded. To allow such a facility would be contrary to the law of evidence.": at 686 31 Similarly, Talbot J in Cliftleigh said at [20] that the Crimes (Appeal and Review) Act 2001 contains no opportunity for evidence in substitution for the evidence given at the trial below: see also Hijazi v Canterbury City Council (No 2) [2007] NSWLEC 367 at [24]. 32 Accordingly, the evidence of Mr Gorton having been admitted without objection in the Local Court in the trial below, it is not open to the applicant on this appeal to seek to have such evidence excluded, unless there are exceptional circumstances. No exceptional circumstances are evident in the evidence before me. 33 The applicant was legally represented in the Local Court by a Mr Sheen. Objection was taken to certain evidence, namely that of Mr Bruce in part, indicating that the admissibility of evidence was at least considered. As I have noted, a written proof of the evidence of Mr Gorton had been provided to the applicant. The fact that Mr Gorton was not a licensed private investigator, if not known beforehand, was certainly disclosed in the course of cross-examination. The fact that Mr Gorton had been engaged by the council was evident both from the written proof of evidence of Mr Bruce which was tendered in evidence and the oral evidence Mr Bruce gave at the trial. The critical nature of the evidence of Mr Gorton in the prosecution case against the applicant was also self-evident. All of these factors point to the fact that any decision not to object to the evidence of Mr Gorton must reasonably be considered to be taken. In any event, as I have said, there is no evidence to suggest that there was anything exceptional which would justify now not admitting the evidence. 34 Secondly, dealing with the actual argument of impropriety it is not at all obvious why the fact that Mr Gorton was not a licensed private inquiry agent should result in the evidence in the circumstances of this case being considered to be obtained improperly or in consequence of an impropriety. There must be some relevant causal connection between the impropriety and the obtaining of the evidence. What Mr Gorton did was nothing more than any ordinary citizen could have done. The business of the applicant was open for any customer to walk in and ask for the services of a massage. This was done by Mr Gorton. It was in the course of providing that service that the particular masseur offered the additional service of masturbation for a fee. The recording of what occurred was not something which was unique to carrying out the investigation by the private inquiry agent. 35 In any event, the impropriety needs to flow back to the council, being the law enforcement agency that has obtained the evidence. As I have earlier indicated, the evidence of Mr Bruce was that he engaged Mr Gorton in the belief that he was a licensed private inquiry agent. 36 The decision of the Court of Criminal Appeal in Robinson v Woolworths Ltd (2005) 64 NSWLR 612; 158 A Crim R 546 provides some guidance in relation to s 138 of the Evidence Act 1995. Basten JA, with whom Barr J agreed, said at [23]: "It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be 'quite inconsistent with' or 'clearly inconsistent with' those standards. Thirdly, the concepts of 'harassment' and 'manipulation' suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases the joint judgment in Ridgeway (at 39) referred to offence being procured or induced." 37 The onus lies on the party resisting admission of evidence pursuant to s 138 to establish impropriety: at [33]. 38 So to come back to the three propositions stated in Robinson v Woolworths Ltd. The applicant must show that the council, being the body entrusted with powers of law enforcement in relation to planning and environmental laws, is under a minimum standard which society expects and requires, not to engage a person who is not a licensed private inquiry agent under the Commercial Agents and Private Inquiry Agents Act (2004) to gain evidence in the enforcement of planning and environmental laws. 39 I note in the decision of Bankstown City Council v Le (2003) 133 LGRA 155 evidence of a licensed inquiry agent was sought to be excluded under 138 of the Evidence Act. Bignold J refused to reject the evidence under that section. His Honour held that there was nothing improper in the obtaining of evidence using undercover agents in brothel cases. Indeed his Honour went on to say that: "[22] The use of undercover agents to obtain evidence in brothel cases is generally normative. Except in cases where admissions are made, this type of evidence is customarily adduced to prove acts of prostitution et cetera conducted in private". 40 So it is not the fact that the use of a private inquiry agent acting undercover is improper. The applicant in this case has to go further to show that it is the fact that Mr Gorton did not have a licence under the Commercial Agents and Private Inquiry Agents Act. It is not at all clear that there is a pre-existing, minimum standard, deriving from society's expectations and requirements, that those entrusted with powers of law enforcement must only use private inquiry agents who are licensed under that Act. If there is no relevant pre-existing standard to be breached, impropriety rarely would lead to evidence being excluded: see Robinson v Woolworths Ltd at 622-623 [37]. But even if there be such a standard, it is imposed upon those entrusted with powers of law enforcement, that is the council itself. In this case the council believed that Mr Gorton was licensed and therefore they were using a licensed private inquiry agent. On this view, the Council did not fall short of the standard. 41 The applicant needs to go yet further again and show that notwithstanding that the council believed that Mr Gorton was licensed, the fact that unbeknown to the council he was not licensed has the effect of tainting any evidence that Mr Gorton might have obtained with impropriety. I am not persuaded that the applicant has discharged the onus of showing that such a proposition is correct and that that is a standard which society imposes upon those entrusted with the powers of law enforcement. 42 There is another hurdle which the applicant must overcome and that is the third proposition referred to by Basten JA in Robinson v Woolworths Limited. This is that there needs to be some level of encouragement, persuasion or importunity in relation to the commission of the offence. Often this level of encouragement, persuasion or importunity falls into the category of entrapment. But even entrapment has a reasonably high standard before it will be established and evidence obtained will be considered to be improperly obtained. 43 In R v Sloane (1990) 49 A Crim R 270 at 272-273, Gleeson CJ said that: "The concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed or would have been unlikely to commit." 44 Gleeson CJ continued at 273: "A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment." 45 In Ridgeway v The Queen (1995) 184 CLR 19, Gaudron J adopted a similar distinction between the mere provision of an opportunity to commit a crime and inducement to commit a crime. Her Honour noted at 77 that: "In cases of 'mere opportunity', the accused person is fairly regarded as wholly responsible for his own actions. That is so even if there is some illegality associated with the opportunity provided, as for example, that involved in the purchase of contraband where it is clear that it is generally available to all who wish to purchase it." 46 Her Honour then distinguished a different category of case and continued at 77: "But in cases which go beyond the provision of mere opportunity, where the offence results from the illegal actions of those whose duty it is to uphold the law, it is they who, in a real sense, are responsible for its commission, not the accused. In such circumstances, the accused and society in general may well view prosecution as a serious injustice." 47 These passages from the decisions in Sloane and Ridgeway were quoted by Basten JA in Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at 619 [25]-[27]. They are relevant to the present case because the evidence that I have set out above of Mr Gorton shows that, at most, there was simply a mere opportunity and there was no entrapment or inducement by Mr Gorton for the employee of the applicant to commit the act of providing sexual services for payment. On these authorities, therefore, even if the first two propositions referred to by Basten JA in para 23 of Robinson v Woolworths Ltd were to be found to be established, the third proposition is not established, that is to say, there was not the requisite level of encouragement, persuasion or importunity in relation to the commission of the offence. At best all that can be said is that Mr Gorton was there at the time and was the person on whom the sexual service was provided. But the evidence of Mr Gordon shows quite clearly that the person who was the moving force in offering the provision of the sexual service was the employee of the applicant. Mr Gorton did not ask for it. So, in these circumstances, the third proposition would not be established and that would have the consequence that there was not the relevant degree of impropriety. 48 It is also relevant to look at the facts of the case of Robinson v Woolworths Ltd. There the Department of Health procured minors to purchase cigarettes from retailers as part of its investigation into compliance with s 59(1) of the Public Health Act 1991 (NSW) which prohibits the supply of cigarettes to minors. An employee of the defendant sold cigarettes to a minor so procured by the departmental officers. 49 The Court of Criminal Appeal in Robinson v Woolworths Ltd held that there was not any relevant impropriety for the purposes of 138 of the Evidence Act. In addition to the propositions established by the Court of Criminal Appeal that I have already stated above are the following: · "In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety": at 622 [36]. · "The conduct of the law enforcement authority provided the opportunity for the commission of the offence, but did not involve the application of any form of pressure, persuasion or manipulation": at 625 [46(a)]. · "The conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no inappropriate harassment": at 625 [46(b)]. · "The two girls acted in the manner of ordinary members of the public seeking to purchase cigarettes": at 625 [46(c)]. · "In the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance": at 625 [46(d)]. · "Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct [of the law enforcement authority] constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent on receipt of complaints": at 625 [46(e)]. · "A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law": at 625 [46(f)]. 50 Accordingly, the conduct of the Department of Health in that case was not capable of constituting impropriety with the purposes of s 138 of the Evidence Act: at 626 [50]. 51 These propositions are also applicable to the facts of this case. The mere doubt about the desirability or appropriateness of the council using an undercover, private inquiry agent who unbeknown to the council was unlicensed, to obtain evidence of a breach of the law, is not sufficient to demonstrate impropriety. 52 The conduct of the investigator in visiting the applicant's premises and receiving of the lawful service of a massage may have provided the opportunity for the commission of the offence, but it did not involve the application of any form of pressure, persuasion or manipulation for the employee of the applicant to carry out the proscribed act of providing sexual services for a payment. 53 The conduct involved an acceptance of an unsolicited offer that was made in the course of the legitimate business of the massage parlour and it did not involve any intrusion on individual rights or freedoms and certainly there was no harassment. 54 The investigator acted in the manner of ordinary members of the public seeking to, first, obtain a massage from the business and, secondly, in accepting the unsolicited offer of the provision of sexual services for payment. 55 The offence of carrying out development that is prohibited does not involve criminal intent; indeed it has been held to be a strict liability offence: see Power v Penthill House Pty Limited (1993) 80 LGERA 247. As was said in Robinson v Woolworths Limited, therefore, the policy against tempting people to commit crimes which otherwise may not have occurred is of limited significance. 56 As in Robinson v Woolworths Limited, persons who receive by consent sexual services for payment are unlikely to complain about the provision of such services. Accordingly, the conduct of the council in engaging persons to go to the premises and engage, if offered, in sexual services for the payment of money is conduct that constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent upon receipt of complaints. 57 Finally, a properly run compliance program backed by the possibility of prosecution where contravention occurs is itself a reasonable and proper means of promoting compliance with the law. It should not be seen to be improper. This last point is also made out by the comments of Bignold J in Bankstown City Council v Le. 58 Accordingly, I am not satisfied that the conduct of the council in using a private inquiry agent who as it happened was not licensed, constituted relevant impropriety for the purposes of s 138 of the Evidence Act. 59 As to the second way the applicant submitted impropriety arose, much of what I have said in relation to the first way would also be applicable. The second way is that the council should have not allowed its private inquiry agent to carry out the sexual act. However, it is important to remember the nature of the offence. The offence is carrying out development contrary to s 76B of the Environmental Planning and Assessment Act. That section states that: "If an environmental planning instrument provides that:

(2007) 159 LGERA 264

(1993) 32 NSWLR 683

(1993) 80 LGERA 247

(1995) 184 CLR 19

(2005) 64 NSWLR 612

[2007] NSWLEC 258