The Relevant Facts
8 Cowdroy J set out the relevant background facts in his judgment on the conviction (Minister Administering the Ports Corporation & Waterways Management Act 1995 v Hakim [2005] NSWLEC 92 [7]-[21]):
"[7] The defendant and his wife, Mrs Yvonne Hakim ('the Hakims') are the owner of land known as 10 Fortescue Street Chiswick being lot 115 of Deposited Plan 1111 ('the site'). The site has rear boundary to the Parramatta River ('the river') comprising a rock cliff face. The site slopes unevenly from the street frontage to the river frontage. Prior to November 2002 the site was roughly terraced with sandstone outcrops and a single storey dwelling existed on the site.
[8] By Development Application number 915/02 dated 3 December 2002 ('the first D/A') made pursuant to s 78A of the Environmental Planning and Assessment Act 1979 ('the EP&A Act') the Hakims sought consent from the City of Canada Bay Council ('the Council') to demolish the existing dwelling and to erect a two-storey dwelling house on the site.
[9] Although the first D/A did not involve any development on the river frontage the plans showed an excavation for a concrete slab for the proposed dwelling. A substantial portion of such slab lay within 40 m of the top of the bank of the river. Such portion of the slab was located on "protected land" as defined in the Act .
[10] Section 22C of Pt 3A of the Act makes provision for the issue of a permit by the Waterways Authority (otherwise known as Waterways) to enable an excavation to be made on 'protected land' as defined in Pt 3A. Since a permit was required in addition to consent of the Council, the development constituted integrated development as defined in s 91 of the EP&A Act. The Council therefore referred the first D/A to Waterways.
[11] By letter dated 4 March 2003 Waterways advised the Council that such a permit would be issued subject to special conditions as set out in its letter. It also advised that a separate application for a Pt 3A permit would be necessary before any physical works commenced on the site.
[12] By letter dated 12 May 2003 ('the consent') the Council notified the Hakims that the first D/A had been approved by the Council subject to conditions. Condition 6 of the consent provided:-
6. Waterways Requirements
a) No works are to commence at the site prior to a Part 3A Permit under the Rivers and Foreshores Improvement Act, 1984, being issued by the Waterways authority.
Numerous conditions numbered b) to k) specified further Waterways requirements.
[13] By Development Application 423/03 ('the second D/A') made on or about 18 June 2003 the Hakims sought development consent from the Council for a seawall on the river frontage of the site. Plans accompanying the second D/A show a rock ledge overhanging proposed access steps and the site of the proposed seawall and infill between the seawall and the cliff face. The accompanying statement of environmental effects stated that the purpose of the development was to allow access to the existing jetty. The following statement under 'Site Characteristics' provides:-
There is an overhanging sandstone ledge along two thirds of this waterfront. That rock is weathered and fractured to the point of possibly being danger a to anyone moving under it.
The foreshore was described as a:-
jumble of rocks with a Sydney Water sewer line cut through the rock shelf for the full width of the frontage and extending both north and south.
Since the second D/A was also one for integrated development, the Council referred it to Waterways.
[14] By letter dated 8 September 2003 Waterways informed the Council that a Pt 3A permit would not be issued for the proposed development. The reasons for refusal related to the destruction of natural habitat values and prevention of tidal movements. It also noted that the statement of environmental effects failed to address comprehensively the potential harm to the natural intertidal rock platform.
[15] The second D/A was refused by the Council. Despite this refusal, the Hakims again sought development consent for the same seawall by application for development to the Council number 847/03 dated 26 November 2003 ('the third D/A'). The statement of environmental effects accompanying the third D/A is virtually identical to the previous statement of environmental effects. Plans accompanying this proposal show more extensive development than the second D/A. They show a pool terrace, swimming pool and stairs leading down through a rock area at the cliff face. The following notation is shown:-
existing cracked unstable rock overhang removed.
[16] By letter dated 27 October 2003 the defendant forwarded to Council a report of Luke Tsougranis & Associates Pty Limited, consulting structural and civil engineers, dated 24 October 2003. The report related to the stability of large rocks at the cliff face and especially of a substantial crack for the full length of the overhanging rock at the cliff face. The report concluded that the rock could collapse at any time without warning.
[17] By letter dated 30 October 2003 the Council wrote to the Hakims informing them inter alia as follows:
Further, the proposed works constitute Integrated Development and are required to be referred to the Waterways Authority and the Foreshores and Waterways Planning and Development Advisory Committee.
On 27 January 2004 the Council's Development Assessment Planner Mr Daniel West forwarded such report to Waterways.
[18] The existing house on the site was demolished and excavation commenced on protected land in October 2003 in the absence of both a Pt 3A permit and a certificate pursuant to s 109D of the EP&A Act ('the construction certificate') required by the conditions of the consent. Accordingly such work was carried out in breach of the consent.
[19] On 29 December 2003 the Council issued a Notice of Demand to Stop Work ('Council stop work order') on the ground that construction had commenced without the issue of a construction certificate. On 14 January 2004 the Council issued to the Hakims a Notice of Proposed Order under s 121B of the EP&A Act. The proposed order foreshadowed demolition of all works carried out without the benefit of a construction certificate and, inter alia, sought submission of a Pt 3A permit under the Act.
[20] On 3 February 2004 Waterways issued a stop work order ("Waterways stop work order") pursuant to s 22D(1) of the Act. The Waterways stop work order provided details of the Waterways officer who might be contacted as follows:
Should you have any questions regarding this matter please contact Brendan Dowd on telephone [number].
[21] The Waterways stop work order was received by the defendant on 5 February 2004. On that day a portion of the cliff face was found in the river. On 6 February 2004 further excavation occurred at the site on protected land. Part of such excavation comprised the removal of the cliff face to make a ramp down to the river for the alleged purpose of enabling the excavator to remove rocks which had fallen on Sydney Water's sewer line. Work ceased on 6 February 2004."
9 There were a number of factual matters in dispute. Generally, as will appear, his Honour's findings were adverse to the Appellant. However, his Honour did not find in favour of the prosecution with respect to its case that the rock fall from the cliff face on 5 February 2004 was an intentional and deliberate act.
10 The construction of the dwelling on the Appellant's land was to be carried out pursuant to a contract between the Appellant and his wife as owners and Jensay Pty Ltd as builder. The principal of Jensay was Mr Achilles Constantinidis. The onsite building supervisor was Mr Dennis Goumis. The driver of the bulldozer that conducted excavation on the site was Mr Georgeakopoulos.
11 During the course of its investigation the Respondent, pursuant to its powers under s22I of the Act, required certain persons to answer questions. The answers provided by Mr Gomutis and Mr Georgeakopoulos were tendered in evidence. Originally the prosecutor did not intend to call either witness. Eventually Mr Gomutis was called. Mr Georgeakopoulos was not called. Mr Constantinidis was not called in the prosecution case but gave evidence in the defence case. Mr Hakim also gave evidence.
12 It was an important part of the Appellant's case at trial that, pursuant to the contract, Jensay had control of the site and was subject to a contractual obligation to carry out the development in accordance with the consent issued by the Council, including condition 6(a) of that consent, set out in par [13] of the judgment of Cowdroy J. The Appellant submitted to his Honour that, as Jensay had possession of the site, the defendant could not interfere with operations at the site.
13 Cowdroy J referred to the evidence about the terms of the contract as "conflicting and unsatisfactory evidence" and concluded at [182] that he could not be: "satisfied of the contractual arrangements for the performance of the work. Further the Court is not satisfied that the contract removed all control of the site from the defendant".
14 His Honour did not expressly make a finding that the condition giving possession of the site to Jensay was a term of the contract. However, that may be implicit in his Honour's finding that the Appellant could have complied with s22B of the Act by applying for a permit, irrespective of the fact that possession of the site had been given to Jensay [183]. His Honour held (at [184]) that he was not satisfied that the defendant was unable to issue instructions to stop the excavation.
15 The next relevant event is the fall of rocks from the cliff face at that part of the site adjoining the Parramatta River. This occurred on 5 February 2004 depositing rocks on a sewerage line of Sydney Water. Pursuant to a request by employees of Sydney Water to remove those rocks, a ramp was constructed on 6 February 2004. That construction involved the removal of part of the cliff wall.
16 It is a central point of the Appellant's case under Ground 2 that the excavation for the area of the concrete slab was a distinct excavation from that which occurred at the cliff face after the rock fall. The prosecution case had throughout been that there was a single excavation and that the charge related to the whole of excavation activity that occurred between October and 7 February. (See Appeal Book 904 lines 45-48.) His Honour upheld this contention of the prosecution.
17 The section of his Honour's judgment expressly concerned with findings resolved matters that had been in dispute. His Honour's recitation of the evidence and submissions also set out evidence that was not challenged.
18 The facts relevant to the issue of whether or not the Appellant caused or allowed the excavation, include the following:
· The Appellant was the part owner of the property and entered into a contract with Jensay pursuant to which that company would carry out the works required for the project, the subject of the development consent.
· The Court could not be satisfied of the precise contractual arrangements for the performance of the work.
· On 21 January 2004, the Appellant was issued with an owner builder permit, apparently because of difficulty experienced by Mr Constantinidis in securing "home owners insurance" (sic).
· On 30 January 2004, the Council wrote to the Appellant referring to the commencement of work at the site. His Honour found that that letter was discussed between a council officer and Mr Hakim.
19 Cowdroy J found that, as charged, the Appellant excavated the land between 1 October 2003 and 7 February 2004. Relevantly, his Honour identified the excavation in the following way:
"[162] The excavation took place to level the site for the purpose of pouring the concrete slab. Approximately half of the area of the slab is located on protected land … The excavation continued on 6 February 2004 by the removal of the remainder of the cliff face."
20 Excavation with respect to the site of the proposed house had in fact commenced in October 2003 and was completed in November. The concrete slab at that location was in fact poured on 4 February 2004.
21 Much of the evidence in the case, particularly the evidence about which there was dispute, was concerned with the events of the 5 and 6 February 2004. There was no dispute that there was a rock fall on 5 February. The appeal must proceed on the basis that there was no finding that that rock fall was deliberately caused by any act of the Appellant or his builder and the builder's sub-contractors. It was also not in dispute that the cliff face was further cut back on 6 February for the alleged purpose of constructing a ramp in order to remove rocks that had fallen from the cliff face the previous day onto a Sydney Water sewerage line.
22 Shortly prior to these events, on his Honour's findings, the locality of the work being conducted on the site was drawn to the Appellant's attention.
23 On 30 January 2004 the Council forwarded a letter to the defendant which indicated that work had commenced at the site in the absence of a construction certificate from the Council. Furthermore, the evidence of the council records was that an officer of the Council had spoken to the Appellant about these matters. The Appellant gave evidence that he could not recall receiving such a letter and denied having a conversation with Council officers. His Honour rejected the Appellant's evidence in this respect.
24 On 3 February 2004, Waterways issued a stop work order with respect to the site which is the subject of the charge under s22D of the Act. His Honour found that the stop work order was received by the defendant on 5 February 2004 ([21]).
25 A letter dated 5 February 2004 signed by the Appellant and forwarded to the Council stated as follows:
"I wish to inform you that the rock that was advised to the Council and Waterways as posing a risk of collapse has eventually collapsed causing damage to both the sewer and jetty attached to my property. …
… I contacted my solicitors who advised I report the incident immediately to the Water Board as it posed a health risk. The Water Board reviewed the damage at approximately 4.30pm and were unable to inspect the extent of the damage and the Waterway has redirected the sewer temporarily until tomorrow and has instructed me to clear the debris immediately to ascertain the damage to the sewerage pipe.
We are promptly trying to arrange the removal of debris to avoid and [sic] EPA/Waterway issue we require your approval to construct a ramp to gain access by a machine to remove the debris.
I have instructed my contractor to begin removing the rock as the Waterway has instructed me that if the sewer leaks into the river the EPA will need to be called in."
26 In his oral evidence the Appellant denied that he had issued any instruction of the character referred to in the last sentence. He asserted that the letter was drafted by his solicitor and he had never given any instructions to the sub-contractors. Cowdroy J rejected the Appellant's evidence in this respect.
27 A neighbour gave evidence of the occurrence of the rock fall on 5 February. She also observed work being done with a jackhammer on the site at about 9.00am on 6 February. She took photographs of the Appellant at the site during that period. The sequence of photographs show the jackhammer operating on the rock, which comprised part of the cliff face. She gave evidence that during the course of this period the defendant threw rocks at her and said: "Haven't you got anything better to do, you slut?". The Appellant denied this incident but his Honour accepted the evidence of the neighbour.
28 A solicitor for the prosecutor, in the presence of two officers of Waterways who confirmed her version of the events, telephoned the defendant and gave evidence of the conversation which did not coincide with the Appellant's version. His Honour accepted the evidence of the solicitor for the prosecutor. Her evidence was that in the course of this conversation she referred to the stop work order; that the Appellant acknowledged that he had received this order the previous evening and had said: "I'm not carrying out any works". In response to an express request for "an undertaking that you won't be doing any works on site", the Appellant responded "Yes sure I'm not doing any works" ([39]).
29 His Honour also found that the evidence of the Appellant and of Mr Goumis was unreliable and that the evidence of Mr Constantinidis was so vague as to be of little assistance.
30 The Appellant submitted that the excavation to construct the ramp on 5 February was undertaken pursuant to what he chose to characterise, more than once, as an "instruction" from Sydney Water which he described, also more than once as a "regulatory authority". Of course, all that the Water Board did was to require removal of the rocks. Nothing was said about constructing the ramp whereby the cliff was excavated.
31 If the submission was intended to suggest that the Appellant and/or his contractors were acting in any way pursuant to a lawful order, there is nothing to support any such contention. Sydney Water was the owner of property which had been damaged and the provider of a service which had been interfered with. There was nothing capable of constituting a lawful excuse for any contravention of the Act. Nor, I should add, was any such defence advanced.
32 The "instruction" from Sydney Water was, at most, relevant to penalty and his Honour expressly took it into account in his judgment on penalty. (See at [33].)
33 There are four grounds of appeal as follows:
Ground One: relating to both counts
The prosecutor failed to discharge his responsibility to call all relevant witnesses and in the circumstances this caused a miscarriage of justice. In particular, the prosecutor:
(a) Failed to obtain and serve a statement by Andrew Georgeakopoulos and failed to call him to give evidence at the trial.
(b) Failed to obtain and serve a statement by Achilles Constantinidis and failed to call him to give evidence at the trial.
(c) Failed to obtain and serve a statement from the relevant officers of Sydney Water who on 5 February 6 February 2003 at tended the site where the offences are alleged to have been committed, and failed to call those officers to give evidence.
Ground Two: relating to the first charge on the summons
Regarding charge number 50057, brought under s22B of the River and Foreshores Improvement Act 1948, that is making an excavation without the necessary permit, the terms of the summons were duplicitous and the prosecutor should have been required to elect as to which of the two excavations disclosed by the evidence was that on which the charge was based.
Ground Three: relating to the first charge on the summons
Regarding charge number 50057, brought under s22B of the River and Foreshores Improvement Act 1948, that is making an excavation without the necessary permit, the conviction is unreasonable having regard to the evidence: Criminal Appeal Act 1912, s6(1).
Ground Four: relating to the second charge on the summons
Regarding charge number 50058, under s22D of the Rivers and Foreshores Improvement Act 1948, that is failure to comply with a stop work order made pursuant to that section, the conviction is unreasonable having regard to the evidence: Criminal Appeal Act 1912, s6(1).
34 When the matter came before the Court for hearing Mr P Byrne SC accepted the force of the written submissions of Mr I Lloyd QC, who appeared for the Respondent, that the reference to s6(1) of the Criminal Appeal Act in Grounds 3 and 4 was in error. That section refers only to an appeal from a conviction on indictment. Accordingly, the formulation found in s6(1) that "the conviction is unreasonable having regard to the evidence" is not directly applicable. Mr Byrne submitted that an equivalent ground of appeal was available under s5AB, applying s5AA of the Act. The Respondent did not object to the Court hearing the appeal on the basis that Grounds 3 and 4 should be read as if the words "the conviction is unreasonable having regard to the evidence: Criminal Appeal Act 1912 s6(1)" were deleted and the words "the conviction constituted a miscarriage of justice" inserted.
35 The Respondent did not contend that miscarriage of justice was not an appropriate ground of appeal.
36 The Criminal Appeal Act 1912, contains parallel regimes for appeals from indictable and summary offences. There are pertinent differences.
37 The conferral of a right to appeal "against the conviction" for a summary offence under s5AA, does not differentiate between appeals on questions of law and on the facts, as s5 does with respect to indictable offences, the latter requiring leave. The conferral of powers on the Court of Criminal Appeal under s5AA(4) is not expressed to turn on a particular finding, e.g. miscarriage of justice, unlike s6(1) in the case of a conviction on indictment.
38 The conferral of summary criminal jurisdiction on the Land and Environment Court, relevantly by the combined effect of s26 of the Act and s21(i) of the Land and Environment Act 1979, is expressed in terms of "proceedings for an offence". Such proceedings, Parliament undoubtedly intended, have to be proceedings in accordance with law. Any proceedings attended by a miscarriage of justice, encompassing issues of both outcome and process (see Nudd v The Queen (2005) 80 ALJR 61 at [3]-[7]), are not proceedings according to law.
39 For analogous reasons, this Court has determined that a qualification of the character expressed in the proviso to s6(1) of the Criminal Appeal Act 1912, should be adopted when exercising the powers under s5AA(4) of that Act. (See Gilmour v Environment Protection Authority (2002) 55 NSWLR 593.)
40 The jurisprudence on what constitutes a miscarriage of justice is now well established. Although that expression relevantly has its origins in a statutory formulation, it is a body of jurisprudence which is equally applicable to appeals from summary criminal proceedings, even in the absence of an equivalent statutory formulation.
41 After oral submissions in this matter, additional written submissions were made pursuant to leave. The Appellant also filed further submissions, described as "Part B", which went beyond the leave granted. The Respondent objected to the Court considering these further submissions. I do not believe further leave should be granted. However, I have read the Part B submissions and taken them into account. As, in my opinion, they do not affect the result, I have not thought it necessary to seek further submissions from the Respondent.