Manly Council v Leech

WHETHER PROCEEDINGS INITIATED WITHOUT REASONABLE CAUSE OR CONDUCTED IN AN IMPROPER MANNER - s 257D(1)(b)

1. Mr Leech submits that the proceedings were initiated without reasonable cause because: 1. as regards the "direction" case, even if the evidence of the prosecution witnesses were accepted at its highest, it could never have established that Mr Leech gave a direction to construct the Stairs; and 2. the "control over the builder" case was bound to fail.
2. He also submits that once the defendant's solicitors wrote to the prosecutor on 9 April 2015 with detailed representations as to why the summons should be withdrawn, it was unreasonable for the prosecutor to continue and this constituted conducting the proceedings in an improper manner.

The direction case

1. Mr Leech submits as follows. The Court held that he did not direct the builder, rather Mr Poche did. This evidence was always available to the prosecutor. The highest the evidence ever rose against Mr Leech in relation to the first stage was that he was said to have been present at a later meeting when he said he would "sort it out with Council", which the Court found was not a direction to do the work. The prosecutor had ample evidence that the owners instructed the builder to replace the Stairs but the prosecutor's evidence that Mr Leech instructed the builder to do so was flimsy and somewhat equivocal.
2. In relation to the second stage of the work, Mr Leech submits as follows. The prosecutor had contemporaneous evidence, being the "finish penguin handrail" notation in the builder's site manager, Mr Ian Dearlove's, site diary on 29 January 2013. Although Mr Leech's intention regarding what he meant by that reference was not available to the prosecutor until Mr Leech gave evidence, there was sufficient uncertainty as to what it meant that no prosecutor could have reasonably come to the view that the note was sufficient evidence. In addition, Mr Dearlove did not suggest in his pre-trial record of interview that Mr Leech had given an instruction to complete the Stairs handrail, and the prosecutor always had the approved plans which described the retaining wall at the top of the cliff as a "handrail". In April 2015 the defendant wrote to the prosecutor identifying evidence at the heart of the Court's findings and inviting the prosecutor to withdraw the summons. However, in oral submissions Mr Leech accepted that the proceedings were initiated with reasonable cause against him in relation to the second stage of the work.
3. I do not accept that the proceedings were initiated without reasonable cause.
4. In relation to the first stage of construction, the defendant's submission that I held that Mr Leech did not direct the builder is inaccurate. Rather, I held that I was not satisfied beyond reasonable doubt that he directed the builder, essentially because of the state of the prosecution evidence as it emerged at trial, as stated at [101] of my first judgment: …At its highest, if the evidence of the prosecution witnesses Mr Dearlove, Mr Efrat and Mr Moses were to be considered in isolation from the competing evidence of Mr Little and Mr Leech, I would have decided that after the meeting of 30 July 2012 there was another meeting when the owners or one of them again instructed the builder to replace the old stairs and that Mr Leech said he would sort it out with Council. Given the differences between and within their evidence and between their evidence and earlier records of interview of Mr Dearlove and Mr Moses, I would not have been prepared to conclude that Mr Leech said any more than that. …Mr Leech's statement that he would sort it out with Council did not constitute an instruction to the builder to construct the Stairs.
5. The prosecutor had evidence in an affidavit of Office of Environment and Heritage officer Ms Deborah Stevenson that on 16 October 2012 Mr Leech admitted to her that he had instructed the builder to replace the Stairs, in an affidavit of Mr David Moses that on 15 October 2012 either Mr Leech or Ms Van Norton said we had asked Mr Dearlove to replace the Stairs, and in an affidavit of Mr Dearlove supported by an entry in his site diary that on 29 January 2013 Mr Dearlove told him to finish the "penguin handrail".
6. In relation to the second stage of construction, the diary entry of 29 January 2013 was solid evidence of guilt when coupled with evidence of the unfinished handrail and Mr Dearlove's evidence. The prosecutor's case as to the meaning of the diary entry was consistent with the understanding of Mr Dearlove. It was also consistent with the understanding of Mr Little, but for the purposes of s 257D(1)(b) that may not be significant since Mr Little was not a prosecution witness and was not interviewed by the prosecutor until shortly before trial. In the end, however, the diary note did not carry the day for the prosecutor and I was left with a reasonable doubt as to Mr Leech's guilt for a number of reasons, set out at [134] of my first judgment. Prominent among those reasons was the evidence of Mr Leech as to what he intended by the "penguin handrail" reference recorded in the diary, which I accepted and which was previously unknown to the prosecutor.
7. The prosecutor also adduced contextual evidence that Mr Leech was involved extensively in the development through dealings with Council, obtaining of approvals and attendance on site.
8. Cross-examination and submissions by counsel for Mr Leech in relation to the first and second stages were instrumental in my entertaining a reasonable doubt as to his guilt.
9. It may be accepted that there were some weaknesses in the prosecutor's evidence. In particular, Ms Stevenson's contemporaneous file note did not record Mr Leech's admission and she did not give oral evidence of the admission; Mr Moses' pre-trial record of interview did not attribute to Mr Leech the words attributed to him (or Ms Van Norton) in Mr Moses' affidavit; in Mr Dearlove's record of interview he said that Ms Van Norton gave the instruction to complete the handrail (on the other hand, he did not have his diary notes at the interview); and the affidavits of Ms Stevenson and Mr Moses were not filed until after the summons was filed. However, in my opinion, these matters are insufficient to justify a conclusion that the proceedings were initiated without reasonable cause, or at least to enliven the costs discretion against the prosecutor.
10. The defendant further submits that the prosecutor conducted the proceedings in an improper manner by not withdrawing the summons after the defendant's solicitor wrote to the prosecutor on 9 April 2012 inviting it to do so and identifying the following evidence at the heart of the Court's findings: Mr Leech was seldom on site and not present at any site meetings in August 2012; the owners instructed the builder to construct the Stairs; words attributed to Mr Leech that he would "sort it out with Council" did not amount to a direction to the builder; and Mr Leech's reference to a "handrail" in the site diary of 29 January 2012 was a reference to the retaining wall at the top of the cliff. The defendant invokes the principle that in determining whether it is reasonable to institute proceedings, a prosecutor would weigh the evidence in support of a prima facie case against any evidence of a reasonable possibility of innocence: R v Pavy [1997] 98 A Crim R 396 at 399-400.
11. This submission does not give sufficient weight to the evidence against Mr Leech to which I have earlier referred and to the defence case marshalled at trial. Having regard to those matters, I do not consider that by not withdrawing the summons after receiving the April 2012 letter, the prosecutor conducted the proceedings in an improper manner.

The control over the builder case

1. The defendant submits that the prosecutor's alternative vicarious liability "control over the builder" case was bound to fail. The defendant accepts that such a case may be legally available, but this depends on the factual and legal context.
2. I considered the control over the builder case at [138]-[149] of my first judgment. It turned on questions of contractual interpretation and took up a relatively short time at trial. In my view, the prosecutor's proposed contractual interpretation was an arguable point of law, albeit not strong, and does not justify a conclusion that the proceedings were initiated without reasonable cause or conducted in an improper manner.

WHETHER INVESTIGATION CONDUCTED IN UNREASONABLE OR IMPROPER MANNER OR UNREASONABLE FAILURE TO INVESTIGATE - s 257D(1)(a) and (c)

1. The defendant contends that: (a) the investigation into the alleged offence was conducted in an unreasonable or improper manner because the prosecutor failed to interview a material witness, Mr Little, until 18 August 2015; and (b) once the prosecutor interviewed Mr Little and became aware of the evidence he would give, the prosecutor failed to investigate or investigate properly relevant matters of which it was aware or ought reasonably to have been aware which suggested that the defendant might not be guilty.
2. At trial, Mr Little was called as a witness by the defendant.
3. On 2 April 2015 the defendant's solicitors wrote to the prosecutor requesting the prosecutor to withdraw the summons and making detailed representations as to the evidence. One of the representations was that Mr Leech's reference to the "handrail" was to the retaining wall at the top of the cliff, not to the Stairs.
4. On 20 May 2015 the prosecutor's solicitors wrote a detailed reply including reference to evidence from Office of Environment and Heritage officer Ms Stevenson that on 16 October 2012 the defendant admitted to her that he had instructed the builder to "replace the stairs", and to evidence that on 29 January 2013 the defendant specifically instructed the builder to complete the Stairs.
5. On 9 June 2015 a solicitor for the defendant inquired whether he had been interviewed by the prosecutor and Mr Little said he had not.
6. At the end of July 2015 the defendant's solicitors received from the prosecutor transcripts of records of interviews of prosecution witnesses, which the solicitors had requested in early June 2015.
7. On 10 August 2015 the defendant's solicitors wrote to the prosecutor requiring it to call Mr Little to give evidence, contending that it was critical given that a number of those interviewed confirmed his presence at relevant site meetings in August 2012, and contending that this accords with the defendant's evidence that he was not present but Mr Little may have been. They requested that the summons against the defendant be withdrawn.
8. On 12 August 2012 the prosecutor's solicitors wrote the following letter in reply stating that the prosecutor did not view Mr Little as a material witness and indicating that therefore the prosecutor did not intend to call him as a witness: There is no power to direct the prosecution to call a particular witness, see Whitehorn v R (1983) 152 CLR 657, R v Apostilides (1984) 154 CLR 563 at 575, Leichhardt Council v Geitonia Pty Ltd [2015] NSWLEC 25. Further, the prosecutor, having considered the evidence currently contained in the brief, does not view Mr Little to be a material witness. It is conceded there is evidence in the brief that suggests that Mr Little was present at some of the site meetings, however there is no evidence to suggest that Mr Little participated in any discussion regarding the unauthorised works currently the subject of the proceedings against Mr Leech. The preponderance of evidence suggests that Mr Leech was in charge of obtaining all approvals from Manly Council concerning the development at 10 Addison Road Manly and Mr Little played no part in such activity. It is always open for Mr Leech to call Mr Little in his own case, but as the evidence in the brief currently stands, Mr Little is not considered to be a material witness by the prosecution as there are numerous witnesses to give evidence of the site meetings and the participation in the site meeting by Leech relevant to the alleged offence. We are instructed that Council has carefully considered your request to withdraw the Summons' in respect of Mr Leech. We are instructed that the Summons in respect of Mr Leech will not be withdrawn.
9. Nevertheless, less than a week later, on 18 August 2012, the prosecutor by its two counsel and a solicitor interviewed Mr Little. In an affidavit sworn in November 2015 for the purposes of this costs application, a prosecution solicitor who was present at that interview deposed that after the interview the prosecutor determined not to call Mr Little as a witness because the prosecutor had determined that he "was incapable of giving relevant and truthful evidence". The solicitor deposed that this was based partly on his relationship with Mr Leech and his inability to recall any site meeting details after 30 July 2012 to 24 September 2012 where Mr Leech, Mr Dearlove and the owners were all present and the Stairs were discussed. However, he offered a recollection of the owners attending and Mr Poche instructing the builder at a site meeting on 30 July 2012 referred to in his single page diary entry, which did not record the attendances. In closing submissions the prosecutor said that demeanour entered into the assessment: although that was not expressly mentioned in the solicitor's affidavit it may be inferred and I take it into account. The solicitor's handwritten notes of the interview are not easy to read but it is clear that they record Mr Little recalling, by reference to his diary note dated 30 July 2012, that there was a site meeting that day attended by the owners when he heard Mr Poche instruct the builder to go ahead and replace the Stairs. The diary note did not record the attendances at the meeting.
10. On 28 August 2015 the defendant's solicitors wrote to the prosecutor's solicitors stating they understood Mr Little had been interviewed by the prosecutor and requesting a copy of the record of interview. During the trial, which ran from 24 August to 4 September 2015, the prosecutor's solicitors provided the defendant's solicitors with a copy of the prosecutor's handwritten notes of the interview with Mr Little. I delivered judgment on 17 September 2015. On 18 September 2015 the defendant's solicitors asked the prosecutor's solicitors to provide a further copy by email of those handwritten orders, which they did on 22 September 2015.
11. Circumstances justifying a prosecutor not calling a material witness were analysed in R v Kneebone [1999] NSWCCA 279, 47 NSWLR 450: [41] In Whitehorn v The Queen (1983) 152 CLR 657, Deane J (at 663-664) characterised the obligation of a prosecutor for the Crown in these terms:- In performing the function of presenting the case against an accused, a Crown Prosecutor must act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. … [49] Since both experience and logic confirm that merely because a witness' evidence is inconsistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability: see Apostilides (supra, at 576); DPP Guidelines (supra), at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion. [50] In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness' evidence is seen as not fitting the prosecution's view of the case is likely to lead to a miscarriage of justice. Apostilides (supra) deals with the consequence of such an approach. A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly: Regina v Anderson (1991) 53 A Crim R 421. [51] The advisability, if not necessity for a conference is reinforced by the decisions in Tran v Magistrates' Court of Victoria & Anor (1998) 4 VR 294; Regina v Armstrong (1998) 4 VR 533, where the prosecutor refused to interview the witness or to consider notes proffered by counsel for the defence indicating the substance of the evidence it was anticipated the witness would give; and R v O'Brien (1996) 66 SASR 396 particularly in the judgment of Doyle CJ at 398-399. There the prosecutor had sensibly spoken to and proofed the witness before concluding that there was a clear allegiance on the part of the witness to the accused. [52] In Regina v Shaw (1991) 57 A Crim R 425, the Victorian Court of Criminal Appeal had regard to an assertion that the witness was unreliable and found the assertion unacceptable in the absence of the prosecutor having, by an appropriate technique such as conferring with the witness, satisfying him or herself properly of the witness' capability to give relevant and truthful evidence. In relation to an assertion that the prosecution should be able to disregard witnesses inconsistent with the general case. Nathan J said (at 450):- ... eye witnesses do not belong to a camp, but are within the class of persons from whom juries expect and are entitled to hear. The characterisation of witnesses being in camps is unfortunate. It necessarily implies that the prosecutor might choose to call only those witnesses favourable to his camp. This is an absolute derogation of a prosecutor's responsibilities. [53] I agree with his Honour's observations. They accord with the generally accepted view of the role and responsibility of a Crown Prosecutor (see, for example, Richardson v The Queen (1974) 131 CLR 116).
12. In Diehm v Director of Public Prosecutions (Nauru) [2013] HCA 42, 303 ALR 42 at [63], the High Court said (citations omitted): …The objective of a fair trial requires the prosecutor to call all available witnesses unless there is some good reason not to do so. Mere apprehension that testimony of a particular witness will be inconsistent with the testimony of other prosecution witnesses is not a good reason for not calling that witness. Nor is it a good reason that the witness is regarded as "in the camp of" the accused.
13. The prosecutor decided not to call Mr Little as a witness because after interviewing him it determined that he was incapable of giving relevant and truthful evidence.
14. The defendant's overarching contention, as it emerged in oral submissions, boils down to the proposition that the prosecutor's view that Mr Leech could not give relevant and truthful evidence was unreasonable. The defendant submits that: 1. The prosecutor's duty of fairness to the accused and to the Court included calling relevant and material witnesses that are essential to the unfolding of the narrative, regardless of whether the evidence accords with the prosecutor's theory of the accused's guilt: R v Kneebone; R v Apostilides [1984] HCA 38, 154 CLR 563. 2. Mr Little was a material witness and, as the prosecutor's record of interview with a prosecution witness Mr Dearlove shows, was known by the prosecutor at the start of the investigation to be present at relevant meetings. 3. On 10 August 2015 the defendant wrote to the prosecutor requiring it to call Mr Little to give evidence. On 18 August 2015 the prosecutor interviewed Mr Little for the first time and advised the defendant that it did not intend to call him. 4. The defendant then had no choice but to obtain an affidavit from Mr Little and call him to give evidence. The Court accepted Mr Little's evidence that at a 30 July 2012 meeting he witnessed Mr Poche directing the builder to construct the Stairs. This was central to the Court's finding that the defendant did not instruct the builder to construct the Stairs: first judgment at [61], [64], [81]-[84]. 5. In relation to the second stage of construction and the builder's diary note recording the defendant's instruction to construct the "handrail to penguin fence", Mr Little's evidence and an email of 16 December 2012 from Ms Van Norton to the defendant corroborated the defendant's evidence that the owners were concerned about outstanding works and the final inspection report from the certifier: first judgment at [134(f)]. 6. Had the prosecutor interviewed Mr Little during the investigation it would have been aware of factual matters and documents demonstrating that there was reasonable doubt as to his guilt. The documents include the agenda for the 30 July 2012 meeting, Mr Little's file note of that meeting, the email of 16 December 2012 (referred to in the first judgment at [82], [84], [107] and [134(e)]) and Mr Little's diary notes and site diary. Most of these documents were subpoenaed by the defendant at trial and produced. 7. The prosecutor's evidence and submissions that the decision not to call Mr Little was based in part on his inability to recall a meeting, does not withstand scrutiny. This is because his non-recollection may have been indicative of there being no such meeting at which he was present; the Court was unable to conclusively determine that there was a further meeting: first judgment at [101]; and even if there was, the Court concluded that Mr Leech did not say any more than that he would sort it out with Council. 8. The fact that Mr Leech had a professional relationship with Mr Little was not a reason not to investigate or call him as a witness. 9. By the time the prosecutor interviewed Mr Little, it had shut its eyes to investigating evidence that would suggest Mr Leech was not guilty.
15. The prosecutor submits that its determination, after interviewing Mr Little, that he was incapable of giving relevant and truthful evidence was not unreasonable having regard to the matters referred to above at [39]. The prosecutor points out that Mr Little swore an affidavit and gave evidence for the defendant, on which he was cross-examined. The prosecutor says that its assessment that Mr Little would not give relevant evidence against Mr Leech was because he could not recall anything relevant relating to Mr Leech. The prosecutor submits that its assessment of his truthfulness where Mr Leech was concerned derives some further support from Mr Little's opinion in cross-examination that Mr Leech would never give an instruction to do anything unlawful yet, as was put to him at trial, Mr Leech did give an instruction in relation to a footpath crossing that was clearly illegal.
16. When the prosecution was launched, the prosecutor had records of interview and affidavits in which, as the prosecutor submits, no-one was focussing attention on Mr Little or Mr Hannigan (the owners' clerk of works who usually attended site meetings and was also not called to give evidence), and it was not unreasonable for the prosecutor to think that Mr Little had nothing of value to add to the case against Mr Leech particularly in relation to his 29 January 2013 direction. Although the proceedings were commenced in 2014, it was not until August 2015 that the defendant required the prosecutor to call Mr Little. The prosecutor's response shortly afterwards was reasonable: it interviewed Mr Little and obtained further affidavit evidence from Mr Dearlove.
17. The main thrust of Mr Little's affidavit thereafter obtained and read by the defendant at trial was that on 30 July 2012 at a site meeting attended by the owners, Mr Poche instructed the builder to replace the Stairs. I accepted that evidence. It aided the prosecution case against the owners and supplemented a good deal of other prosecution evidence that in or about August 2012 the owners instructed the builder to replace the Stairs. I do not think that Mr Little's affidavit evidence assisted Mr Leech's case beyond stating that Mr Little did not recall any site meeting between June 2012 and February 2013 when Mr Leech was present. I disagree that my acceptance of his evidence concerning the 30 July 2012 meeting was central to my reasonable doubt as to whether Mr Leech gave any instruction to replace the Stairs before construction of the first stage. The reason for that reasonable doubt was the state of the prosecutor's other evidence as it emerged at trial. Contrary to the defendant's submission, I was not unable to conclusively determine that there was a further meeting after 30 July 2012 that Mr Leech attended; rather I said it was unnecessary to do so.
18. Documents obtained from Mr Little now emphasised by the defendant on costs, such as the 16 December 2012 email from Ms Van Norton, were not mentioned in his affidavit. The defence skilfully harnessed them to assist in casting doubt as to what Mr Leech meant by the 29 January 2013 instruction concerning the second stage. I do not think that the prosecutor should reasonably have been expected to see them in the same way even if the prosecutor had been aware of them from the start. I am not satisfied that I should accept the defendant's submission that by the time the prosecutor interviewed Mr Little it had closed its eyes to investigating evidence that would suggest Mr Leech was not guilty.
19. Although other reasonable minds may well not have made the same determination, I am not satisfied that the prosecutor's determination not to call Mr Little was unreasonable.
20. In the result, I am not satisfied that the prosecutor's investigation into the alleged offence was conducted in an unreasonable or improper manner, nor that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware and which suggested that the defendant might not be guilty.

ORDER

1. The defendant's notice of motion for costs filed on 1 October 2015 is dismissed. The exhibits may be returned.

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