Wingecarribee Shire Council v O'Shanassy

Legislative Framework and the Case Management of Criminal Matters in the Court 25In Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121, Biscoe J helpfully described the current case management of criminal matters in Class 5 of the Court's jurisdiction under the Criminal Procedure Act and set out the applicable statutory framework. Given that this application appears to be only the third decision of this Court under the new legislative regime set out in Pt 5 Div 2A of that Act (in addition to Benedict, see also Environment Protection Authority v Bulga Coal Management Pty Ltd [2013] NSWLEC 47), it is worth repeating in full his Honour's observations concerning the operation of the Division, which I respectfully adopt and endorse (at [3]-[9], [11], [13]-[17]): 3. Case management of criminal matters in class 5 of the Court's jurisdiction is governed by Division 2A (ss 247A-247Y) Part 5 Chapter 4 of the Criminal Procedure Act. Division 2A is entitled: "Case management provisions and other provisions to reduce delays in proceedings". Division 2A applies to the Supreme Court, and the Land and Environment Court, in its summary jurisdiction: s 247A. The Land and Environment Court is a court of summary jurisdiction only. Division 2A came into force in 2012 and is modelled on the older case management provisions applicable to indictable offences in Division 3 (ss 134-149F) Part 3 Chapter 3. These provisions abrogate the defendant's right to silence to a substantial degree. Further substantial abrogation of the right to silence in the case of indictable offences only will occur upon the coming into effect (expected to be on 1 September 2013) of the Criminal Procedure Amendment (Mandatory Pre-trial Defence Dialogue) Act 2013 and the Evidence Amendment (Evidence of Silence) Act 1989. For example, the accused will be required to disclose the nature of his defence including particular defences to be relied on: s 143(1)(b) of the first mentioned amending 2013 Act. It may be a legislative oversight that that none of the 2013 amendments apply to summary offences. 4. The purpose of Division 2A is stated in s 247B: 247B Purpose (1) The purpose of this Division is to reduce delays in proceedings before the court in its summary jurisdiction by: (a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and (b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings. (2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned. 5. The purpose and aims of Division 2A inform understanding of how its provisions should be interpreted and applied. An aim of Division 2A, in my view, is to narrow the issues to those that are genuinely in dispute. I think that is clear but, if it is not, then reference may be made to the Attorney General's Agreement in Principle speech when introducing the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 incorporating Division 2A, which confirms that that is so (emphasis added): Used properly, the provisions of this Bill provide an opportunity to reduce hardship to parties and to witnesses, to prevent unnecessary costs and to allow parties and the court to spend their time and money on what really matters - that is, on those issues that are genuinely in dispute. The bill represents the Government's commitment to a form of justice in which the real issues in dispute are determined without undue delay or expense. 6. To a large extent, the purpose and aims of Division 2A are comparable with the overriding purpose of civil procedure to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56 Civil Procedure Act 2005. There is, however, the important difference that the starting point with our system of criminal justice is that it is accusatorial. The underlying principle of the accusatorial system "is that it is for the prosecution to put its case both fully and fairly before the jury, before the accused is called on to announce the course that will be followed at trial": R v Soma [2003] HCA 13, (2003) 212 CLR 299 at [27] per Gleeson CJ, Gummow, Kirby and Hayne JJ. This accusatorial characterisation of our system of criminal justice explains the accused's right to silence. Absent a clear legislative statement that the accusatorial system is to be abrogated, a statutory power should be read as not authorising steps to compel an accused to provide information for the purposes of the proceedings: NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252, (2008) 72 NSWLR 456 at [148]- [151], [159] per Spigelman CJ (Hidden and Latham JJ agreeing). Division 2A abrogates the defendant's right to silence to a substantial extent under ss 247F, 247K, 247O and 247V (discussed below). For example, the defendant is required under s 247K to state its objections to the prosecutor's proposed evidence and to serve a copy of any report of an expert witness whom the defendant proposes to call at the hearing. 7. Division 2A contains a prescriptive disclosure regime. It contemplates two rounds of discretionary disclosure orders, which in this case the Court made by consent, for disclosure of prescribed matters by notices between the parties: (a) the first round is under s 247D for "directions with respect to the future conduct of the proceedings"; (b) the second round is under s 247I for "preliminary disclosure". 8. A copy of such a notice must be filed with the Court as soon as practicable after giving it, or as otherwise directed by the Court: s 247Q(5). 9. The first round of disclosure orders is made at the first mention of proceedings, under s 247D. They are orders for the prosecution to give "notice of the prosecution case" under s 247E - a heavy obligation - and for the defendant to give "notice of the defence response" s 247F - a relatively mild abrogation of the defendant's right to silence. Of particular significance in the present case is s 247E(1)(b) and (c): 247E Notice of prosecution case to be given to defendant (1) The prosecutor is to give to the defendant notice of the prosecution case that includes the following: ... (b) a statement of facts, (c) a copy of the affidavit or statement (whichever is applicable) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings, ... 11. The second round of disclosure orders under s 247I is for the prosecutor to give the defendant a "prosecution's notice" in accordance with s 247J, the defendant to give the prosecutor a "notice of the defence response" to the prosecution's notice in accordance with s 247K - a substantial abridgment of the defendant's right to silence - and the prosecutor to give a "notice of the prosecution response to the defence response" in accordance with s 247L. ... 13. In addition to any material the prosecutor has that is adverse to the defendant's credibility, the second round prosecution's notice under s 247J must include, and in this case did include, "the matters required to be included in the notice of the prosecution case" under s 247E and "a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor". Those s 247J requirements are, in my view, not merely confirmatory of matters included in the s 247E notice, but require updating of those matters, including updating of evidence. This is, I think, clear enough, but, if it is not, then it is permissible to refer to the Agreement in Principle speech of the Attorney General when introducing the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 which incorporated Division 2A, on 24 November 2011, which confirms that that is so (emphasis added): "Under clause 247J, the preliminary disclosure requirements for the prosecutor include the matters they were required to disclose at the initial exchange of notices, which may need to be updated, any material they have that is adverse to the defendant's credibility, and a list identifying the evidence of the prosecution witnesses." 14. The second round s 247K notice of the defence response constitutes a substantial abridgement of a defendant's right to silence. Subsections (b) - (f) are of particular significance in the present case: 247K Defence response-court-ordered preliminary disclosure For the purposes of section 247I (1) (b), the notice of the defence response is to contain the following: (a) the matters required to be included in a notice under section 247F, (b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of s 191 of the Evidence Act 1995) or the defendant disputes the fact, (c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out, (d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection, (e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed, (f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings, 15. One of the aims and consequences of requiring a defendant to disclose under s 247K(d) its objections to the admissibility of prosecution evidence disclosed in the prosecution notice, is to empower the court to dispense with requirements for formal proof of prosecution evidence to which no objection is taken: s 247M. 16. The s 247L notice of the prosecutor's response to the defence response is to contain (inter alia) notice as to whether the prosecutor disputes any proposed defence expert evidence and whether the prosecutor proposes to dispute the admissibility of disclosed defence evidence. 17. There is nothing in Division 2A which mandates that the evidence in the prosecution case cannot be supplemented after the second round s 247J prosecution's notice is served. Sections 247J, 247O, 247V and 247N suggest that it can, for they contemplate continuing disclosure including, I think, any further evidence that the prosecutor proposes to adduce. Under s 247O there is a continuing obligation on the parties to comply with the requirements for "preliminary disclosure" imposed by Division 2A until the defendant is acquitted or sentenced or the prosecution terminated. Accordingly, if anything occurs after preliminary disclosure that would have affected that preliminary disclosure if it had occurred before preliminary disclosure was made, it must be disclosed to the other party "as soon as practicable". Section 247O includes, in my view, an obligation to disclose any affidavits of witnesses whose evidence the prosecutor proposes to adduce at the hearing which are additional to those identified in the s 247J notice. Secondly, disclosure may occur even at the trial or sentencing hearing despite the fact that it should have occurred earlier, for s 247V empowers the court on or after commencement of the trial or sentencing hearing to make orders for its efficient management and conduct, including ordering disclosure of any matter that was, or could have been, required to be earlier disclosed under Division 2A. Thirdly, evidence may be admitted even if there has been failure to comply with preliminary disclosure requirements, for s 247N contains sanctions for non-compliance with preliminary disclosure requirements and gives the court a discretion whether to reject or admit evidence sought to be adduced by a party who failed to disclose it to the other party in accordance with requirements for preliminary disclosure under Division 2A: 247N Sanctions for non-compliance with preliminary disclosure requirements (1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for preliminary disclosure imposed by or under this Division. Note. The only evidence required from a defendant in the context of a preliminary disclosure is expert evidence (see section 247K (f)). Accordingly, such evidence may also be dealt with by the court under subsection (2). (2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for preliminary disclosure imposed by or under this Division. (3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for preliminary disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment. (4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent a defendant adducing evidence unless the prosecutor has complied with the requirements for preliminary disclosure imposed on the prosecution by or under this Division.

The Council's Supplementary Evidence 26At first blush the council's supplementary evidence appears to be substantial both in terms of content and volume. It may be summarised as follows: (a)Mr Symons is an excavator operator who was engaged by Mr O'Shanassy to carry out earthmoving on his behalf. In his principal affidavit he states that Mr O'Shanassy told him that he had development consent to carry out the works. Mr Symons' supplementary affidavit refers to his principal affidavit and does no more than correct and clarify his earlier deposition. It is brief in compass; (b)Mr Lorincz describes himself in his principal affidavit as a "Construction Professional". Mr Lorincz deposes that he purchased a property in effect adjoining that upon which the alleged unlawful development was undertaken by Mr O'Shanassy. In his first affidavit, Mr Lorincz deposes to conversations he had with Mr O'Shanassy and observations he made both prior to, and post, his purchase of the property. In his subsequent affidavit, with the exception of an additional conversation between himself and Mr O'Shanassy, Mr Lorincz refers to his earlier observations and attaches a number of photographs depicting what he described witnessing. The photographs purport to demonstrate the extensive nature of the earthworks carried out by Mr O'Shanassy. On occasion, further observational detail is provided in the supplementary affidavit in relation to events already referred to in his principal affidavit. As stated above, the only exception is a conversation between himself and Mr O'Shanassy during the course of which a heated exchange took place; and (c)Mr Webb is a town planner employed by the council. In his principal affidavit Mr Webb describes the various planning instruments applicable to the land the subject of the charge and states that, in effect, none of the consents or approved plans that he had viewed from the council's registered development consents and complying development certificates permitted earthworks of the nature undertaken by Mr O'Shanassy. Unlike the supplementary affidavits of Mr Lorincz and Mr Symons, the supplementary affidavit of Mr Webb is not insubstantial and contains, contrary to the description of the council, evidence in chief that travels well beyond mere supplementation or clarification of matters contained in his principal affidavit. On any view, it is material that ought to have been included in the first s 247E notice of the prosecution case. For example, Mr Webb deposes to inspections undertaken by council officers, including himself, and attaches photographs of what he observed during those inspections, none of which were referred to in his principal affidavit. While the attachments are not, contrary to the submissions of Mr O'Shanassy, particularly voluminous, there is no doubt that, given their relevance and probative value, the content of the affidavit will need to be met by reply material from Mr O'Shanassy. Having said this, at least one of the annexures, namely, the memo authored by Mr Webb on 17 October 2011, was a document that was provided in the first round of prosecution case disclosure pursuant to s 247E on 25 March 2013 (see above at [21]). 27No explanation whatsoever was provided by the council in Mr McFadzean's affidavit as to why this supplementary affidavit material had not been included in the first s 247E prosecution notice by the council. Rather, from the bar table, Mr Howard SC, counsel for the council, stated that it was not until he became involved in the conferencing of these three witnesses that it became apparent that this material was required. Although the frankness of Mr Howard's admission is commendable, an explanation provided to the Court in this form is unsatisfactory. 28Mr O'Shanassy's reasons for opposing the granting of leave are essentially three-fold: (a)first, the absence of any explanation in Mr McFadzean's affidavit as to why leave is now sought by the council to adduce the supplementary evidence; (b)second, the increase in legal costs that he will incur by having to meet this evidence; and (c)third, as stated from the bar table by Mr O'Shanassy's counsel, Mr O'Gorman-Hughes, at least four concessions were made by Mr O'Shanassy in his defence response notice under s 247K that would not have otherwise been made had this evidence been provided earlier. It is not necessary to set out each of the four concessions relied upon by Mr O'Shanassy other than to note that they related to "Proposed Interim Measures" in a document described by Mr O'Shanassy as the "Rein Warry Report". The report was not before the Court on the application. 29Turning to the last reason first, the Court placed very little weight on this ground. Presented as it was, namely, by way of statements from the bar table, it was unable to be tested by the council. Rather, the explanation should have been provided in affidavit form. It was also not apparent to the Court that the concessions would not have been made in any event given the content of the three supplementary affidavits. 30While it is true that the council is, in relation to some of the supplementary evidence, taking advantage of Mr O'Shanassy's disclosure to supplement its case, it is not doing so, in my view, because "its earlier evidence is grossly deficient nor has it acted in bad faith, and its ability to do so is a product of the statutory scheme" (Benedict Industries at [34]). 31Second, as to the further costs to be incurred by Mr O'Shanassy in meeting evidence which he conceded was not irrelevant, this is a matter that may be properly dealt with at the conclusion of the trial. If Mr O'Shanassy is ultimately unsuccessful in defending the charge against him, then there is nothing precluding him from seeking the costs of this application from the trial judge. Indeed, the council all but conceded that it could not resist an application for the costs thrown away occasioned by leave being granted to the council to rely upon the additional three affidavits. While reiterating that ultimately this is an issue for the trial judge, I agree with the assessment of the council in this regard. In the alternative, if Mr O'Shanassy is successful in defending the charge, then it is likely that he will be awarded not only the costs thrown away as a result of leave being granted in this application, but he may also be eligible to claim the costs of the entire proceedings. 32Lastly, although the Court agrees with Mr O'Shanassy that the explanation provided by the council for its failure to adduce the evidence in the first s 247E prosecution notice is inadequate, I do not consider this to be determinative. 33Had Mr O'Shanassy been able to demonstrate irremediable unfairness consequent upon the granting of leave, the outcome of this application may have been different. However, in circumstances where the hearing date is not yet fixed, no real prejudice other than costs will be suffered by Mr O'Shanassy, and given the relevant and probative nature of the evidence, the appropriate exercise of the Court's discretion is to grant leave to the council to permit the supplementary evidence to be relied upon by it. 34To the extent that Mr O'Shanassy relied for support upon the decision in Environment Protection Authority v Gilmour [2000] NSWLEC 144; (2000) 109 LGERA 228, there is nothing in that decision that, in my opinion, assists him. In Gilmour, Bignold J considered that it was just and efficient to extend the time for filing prosecution evidence after the time permitted by an earlier direction and after a defendant's plea of guilty. In that case, his Honour held that justice did not require precluding admissible evidence provided that fair notice of it was given to the defendant (at [37]). His Honour's comment is equal apposite in the present case. 35In the present case, there is no suggestion that at the first round of disclosure the council in fact proposed to adduce supplementary evidence but did not disclose that intention. As Biscoe J noted in Benedict Industries, to the extent that there is any alleged unfairness to Mr O'Shanassy, this flows from the effect of the legislation which encroaches on his right to silence by requiring him to give notice of various matters, including any dispute as to facts in the council's statement of facts (at [30]). In the present case, Mr O'Shanassy has received fair notice of the council's intention to file supplementary evidence at a relatively early stage of the proceedings. 36For all of these reasons, it is appropriate to grant the leave sought by the council in its notice of motion.

Orders 37The orders of the Court are therefore as follows: (1)the prosecutor is granted leave to supplement its notice of the prosecution case pursuant to s 247E of the Criminal Procedure Act 1986 by adding to the list of affidavits to be relied upon by it, the following affidavits: (a)Mr William Symons affirmed on 4 September 2013 and filed on 16 September 2013; (b)Mr Joe Lorincz affirmed on 13 September 2013 and filed on 16 September 2013; and (c)Mr Shannon Webb affirmed on 25 September 2013 and filed on 2 October 2013; and (2)the matter is relisted for further directions before the List Judge on 22 November 2013.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2013