Mosman Municipal Council v Waratah Village Partners Pty Ltd & Anor

Mosman Municipal Council Prosecutor v Darren Mitchelson Defendant REASONS FOR JUDGMENT

The defendants are each charged with an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The defendants apply by a notice of motion for orders that each proceeding be struck out and the summons in each case be dismissed on the ground that neither summons discloses an offence known to the law. The defendants seek in the alternative a declaration that the charge in each case is duplicitous and that the prosecutor elect which offence is to be prosecuted.
The amended summons upon which the prosecutor relies in each case is in identical terms and is as follows: [T] hat the Defendant … appear before a Judge of the Court to answer the offence against Section 125(1) of the Environmental Planning and Assessment Act, 1979 that between 19 January 2001 and 30 January 2001 at Mosman in the State of New South Wales the Defendant did cause to be carried out development, to wit, demolition of structures known as Bradleys Head Private Hospital erected on land at 66 Bradleys Head Road, Mosman, otherwise than in accordance with a prior development consent obtained and in force and issued by the Mosman Municipal Council pursuant to Mosman Local Environmental Plan 1998.
Section 125(1) of the EP&A Act is as follows: (1) Where any matter or thing is by or under this Act other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
Reference must also be made to s 76A(1) of the EP&A Act which provides: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.
In accordance with the directions made by Talbot J, the defendants each made a request for particulars, which was answered by the prosecutor. Question 2 of the request for particulars in each case was: "Is it alleged that the defendant is the principal offender or accessory?" By its answer the prosecutor alleged that both the defendants are guilty as principal offenders. The prosecutor also stated that it relied upon s 55 of the Land and Environment Court Act 1979 ("the Court Act"). The section is as follows: 55. Aiding, abetting, counselling or procuring the commission of offences A person who aids, abets, counsels or procures the commission by another person of an offence punishable in the summary jurisdiction of the Court is guilty of the like offence and may be tried at the same time as or before or after the trial of the principal offender. The Defendants' Submissions
Mr I J Hemmings appearing for the defendants made the following submissions: (1) There is no offence of a principal causing to be carried out development otherwise than in accordance with a development consent; and similarly, there is no offence of an accessory aiding, abetting, counselling or procuring, pursuant to s 55 of the Court Act, the causing to be carried out of development otherwise than in accordance with a development consent. There is a distinction, in his submission, between a charge of causing something to be carried out and a charge of carrying something out, either directly or as an aider or abettor. (He referred to O'Sullivan v Truth & Sportsman Limited (1957) 96 CLR 220, inter alia ). Although the legislation creates an offence of carrying out, that is "a person must not carry the development out", there is no offence of causing to be carried out development. Mr Hemmings submits that there is a distinction between on the one hand causing, and on other hand, aiding and abetting; and, similarly, there is a similar distinction between causing and carrying out the proscribed activity. (2) Alternatively, if the charge is not defective, the prosecutor must elect whether either defendant is charged as a principal or as an accessory. There are different elements of each offence; different defences are available and different elements requiring proof for each charge; and different considerations may arise on sentence depending upon whether the defendant is guilty as principal or as an accessory. The Prosecutor's Submissions
Mr P C Tomasetti, appearing for the prosecutor, made the following submissions. There is no defect in the charges as there is no separate offence in acting as a principal offender on one hand or as an accessory on the other hand. Section 55 of the Court Act does not create separate or different substantive offences, but merely re-states the common law doctrine of secondary participation by providing, in effect, that no distinction is to be drawn between a principal offender and the secondary participant. Accordingly the charges are not bad for duplicity either. The particulars furnished put the defendants clearly on notice of the case that is alleged against them. Conclusions
In Giorgianni v The Queen (1985) 156 CLR 473, it was held that s 351 of the Crimes Act 1900, (which is to the same effect as s 55 of the Court Act), is only declaratory of the common law position that anyone who "would have been a principal in the second degree, or an accessory, was a principal offender and was treated as if he had taken the same part as the active perpetrator of the facts constituting the offence" (per Gibbs CJ at 480-481). Wilson, Deane and Dawson JJ stated the position as follows (at 500): That section merely restates the common law by providing, in effect, that in proceeding against a secondary participant in a misdemeanour, no distinction is to be drawn between the principal offender and the secondary participant.
The common law doctrine of secondary participation meant that a secondary party to a misdemeanour may be convicted on an information or indictment as if he committed the offence as principal (Giorgianni, at 491, per Mason J). Moreover, as Mason J stated in Giorgianni (at 491): It is essential to conviction on the basis of secondary participation, however, both (a) that the person charged aids, abets, counsels or procures the commission of the misdemeanour and (b) that the misdemeanour is actually committed…
Mason J then examined (at 492-493) the four terms "aid, abet, counsel or procure" (which are the same four terms employed in s 55 of the Court Act): Once it is acknowledged that those terms are merely declaratory of the common law, it is to the common law concept of secondary participation, and not to the ordinary meaning of the words themselves, that regard must be had. … In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard I would adopt the observation of Cussen A.C.J. in R. v Russell ([1933] V.L.R. 59, at p. 67), as being applicable to secondary participation in misdemeanour. Having listed various words, including "aiding" and "abetting" which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed: "All the word abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission." Mason J further noted the substantial overlap of the terms at common law with the general concept which they embody.
The ordinary meaning of the word "procure" includes "to effect; cause; bring about;…" (Macquarie Dictionary). Moreover, if it is accepted that the words are instances of one general idea, then the act of causing to be carried out the proscribed activity is caught not only by the common law doctrine of secondary participation but also by the express terms of s 55 of the Court Act. In another words, the general concept of the words in s 55 embody the concept of causing something to be carried out. It follows then, the offence with which the defendants are charged is one which is recognised by the law.
For the same reasons, it also follows that I reject Mr Hemmings' submission that there is a distinction between causing the proscribed activity and aiding, abetting, counselling and procuring the proscribed activity. That submission is contrary to the decision of Mason J which I have set out in par [10] above. Mr Hemmings relies for his submission, however, on an obiter observation by Bignold J in Border v David Brown Corporation of Australia Pty Ltd (1987) 62 LGRA 207 at 209 in which his Honour said that the charge of causing the proscribed activity is manifestly not the same as, or synonymous with, the charge of aiding, abetting, etc. In so stating, Bignold J relied upon O'Sullivan v Truth & Sportsman Limited at 228: "What amounts to a causing within this view by no means coincides with the definition of an accessory before the fact.'' However, the fact that at common law the terms, "aid, abet, counsel or procure" substantially overlap with and are descriptive of a single general concept, together with the fact that the ordinary meaning of "procure" includes "to cause", together with the general common law concept of secondary participation, all suggests to me that the submission is unsound and must be rejected.
This brings me to Mr Hemmings' alternative submission. As noted above, by its answers to the defendants' request for particulars, the prosecutor alleges that the defendants are guilty as principal offenders and the prosecutor also relies upon s 55 of the Court Act.
There is, in my opinion, no need for the prosecutor to elect. At common law, a defendant was and is able to be prosecuted as a principal offender even though he might be a secondary participant. Section 55 of the Court Act does not change the offence or create a separate offence (Burrell v Jacenko (1998) 99 LGERA 173 at 176, which was approved by the Court of Appeal in Rao v Canterbury City Council (2000) 112 LGERA 360 at 366). Moreover, as Mason P said in Rao (at 366): A simple indictment for murder can be basis for a Crown case that proceeds by alternative routes, including the route of accessorial liability.
There are no alternative offences here. The defendants are each charged with a single offence against s 125(1) of the EP&A Act, and the precise forbidden act being that which is set out in s 76A(1) as noted above.
In the present case the summonses are adequate and sufficient to identify the essential factual ingredients of the offence. The particulars furnished by the prosecutor make plain the ways in which guilt is sought to be proved. There is no defect in either the substance or the form of the summonses, and neither are bad for duplicity. Whilst it is true, as Mr Hemmings submits, that different considerations may arise on sentence depending on whether the defendant is guilty as a principal or an accessory, such considerations would no doubt be taken into consideration by a sentencing judge. Orders
I make the following orders in each case: 1. The defendants' notice of motion is dismissed.
The costs of the notice of motion shall be the prosecutor's costs in the proceedings. I hereby certify that the preceding 17 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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