Wingecarribee Shire Council v O'Shanassy

Legal Principles Applicable in Determining a No Case to Answer Application 11The question to be asked in a no case to answer submission is whether Mr O'Shanassy could lawfully be convicted on the evidence before the Court at the time of the application. This was explained in the seminal authority of May v O'Sullivan (1955) 92 CLR 654 (at 658): When, at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. 12This was reiterated most recently by Adams J in Regina v PL [2012] NSWCCA 31 (at [31]). 13In the High Court case of Doney v the Queen [1990] HCA 51; (1990) 171 CLR 207, the Court elaborated upon the May v O'Sullivan test as follows: (at 214-215): It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. 14The May v O'Sullivan test has been applied in numerous subsequent cases in this and other courts (Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 at [47]; The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd and Kinnarney [2012] NSWLEC 30 at [2]; R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 at [127] and R v R M C [2013] NSWCCA 285 at [41]). 15In deciding whether to dismiss the proceedings on the basis of there being no case to answer, it is not for the judge to consider the probative value of the evidence as a whole, but to determine whether, if accepted as true, the prosecutor's evidence could substantiate its case against the defendant (Serratore at [127]). 16In Elskaf, Garling J, with respect, helpfully summarised the legal principles applicable in determining a no case application (at [47]): (a)at the end of the prosecution evidence, it is open to a defendant to make a "no case" submission, which is determined by the court as a matter of law: Cox v Salt (1994) 12 WAR 12 at 14; Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 ; 122 A Crim R 166 at [48]-[50] per Ipp AJA (Powell and Giles JJA agreeing); (b)the standard of proof to be applied in a no case submission is proof beyond a reasonable doubt: R v Murphy (1985) 4 NSWLR 42 at 69B; (c)the question to be determined is whether on the evidence, the defendant could be lawfully convicted of the offence charged: May v O'Sullivan [1955] HCA 38 ; 92 CLR 654 at 658; R v Serratore [1999] NSWCCA 377 ; (1999) 48 NSWLR 101 at [127] per Dunford J (Greg James J agreeing); (d)the determination of a no case submission is based upon all of the prosecution's evidence, if accepted, and (i)taken at its highest and strongest: DPP v Lee [2006] NSWSC 270 at [31]; Wunderwald at [28]; (ii)even if it is tenuous, inherently weak or vague: Doney v R [1990] HCA 51 ; 171 CLR 207 at 214-5; (iii)unless the evidence is inherently incredible: Haw Tua Tau v Public Prosecutor [1982] 1 AC 136 at 151; and (iv)unless the evidence is manifestly self-contradictory or the product of a disorderly mind: R v Bilick (1984) 36 SASR 321 at 337; Cox at 15; Marsden at [50]. (e)a no case submission should not be rejected even if the prosecution case is a weak one, because the finding that there is a prima facie case, calls upon the defendant to make answer to that case. There is no reason why a weakness in the prosecution case may not be eked out by something in the case for the defence: Zanetti v Hill [1962] HCA 62 ; 108 CLR 433 at 442-443 per Kitto J; Wunderwald at [26]; (f)a no case submission is to be kept distinct from any subsequent decision involving a question of fact, namely whether to accept the evidence of the prosecution witnesses or any of them, beyond a reasonable doubt. This distinction is no empty formality: DPP v Lee at [32]. 17Accordingly, consistent with the authorities above, what is required to establish that there was a case to answer in these proceedings is: (a)that development consent was required for the alleged works; (b)that there was no development consent for the works; and (c)that the evidence before the Court, taken at its highest, demonstrates that the works could have been carried out in the charge period.

Legal Principles Applicable to a Prasad Direction 18It is convenient at this point to also consider the legal principles applicable in determining whether a Prasad direction should be given. 19Even if the Court has found there to be a case to answer, the judge can nevertheless consider whether to dismiss the proceedings by giving a Prasad direction (Elskaf at [48]). 20A Prasad direction is given where the evidence put before the Court is so tenuous and fraught that to convict upon it would be unsafe. In The Queen v Prasad [1979] 23 SASR 161, King CJ said (at 163): I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. 21In Acevedo it was stated that (at [35] per Davies J): 35 It is clear that a Prasad direction is concerned with the position where, although the tribunal of fact could lawfully convict on the evidence, to do so might be unsafe because of some weakness in the evidence. 22As was cautioned in R v Pahuja (1987) 49 SASR 191, a Prasad direction (at 201): ...should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution's case. 23These principles were applied in Seymour v the Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576 (at [61]); Dean v R (1995) 65 SASR 234 (at [239]); Elskaf (at [48]); and Acevedo (at [31], [34] and [43]).

Submissions of Mr O'Shanassy 24Mr O'Shanassy's submissions with regard to the no case to answer submission may be summarised as follows: (a)that the council had failed to establish to the requisite threshold that the two excavation contractors who worked for Mr O'Shanassy, namely, Mr William Symonds and Mr Beau Woodward ("the excavation contractors"), had in fact excavated more than they were instructed to by Mr O'Shanassy; and (b)that the council should have called additional sub-contractors and council members as witnesses to "test" Mr O'Shanassy's contention that the works had been carried out prior to the charge period. In short, the council, he claimed, hadn't "made the proper enquiries as to who did the work". 25With regard to the giving of a Prasad direction, Mr O'Shanassy submitted that: 20On the state of the evidence at the close of the prosecution case it has not been proven beyond reasonable doubt that the defendant instructed contractors to carry out the alleged works. The Court could not be satisfied that it could safely convict. 26Mr O'Shanassy further submitted that the evidence of the council's town planner, Mr Shannon Webb, and that of Mr O'Shanassy's neighbour, Mr Joe Lorincz, suffered from the following fundamental weaknesses: (a)that the knowledge of both witnesses of the height of the ridge before the charge period was inadequate. Mr Webb's knowledge was lacking because it was based only on photographs from the council file taken in 2002-2003 and on a site visit made in 2009. Mr Lorincz's knowledge was deficient because he had not moved into the adjoining property until September 2011, which meant that his knowledge of the height of the ridge preceding the charge period was in doubt; (b)that the evidence of Mr Webb failed to demonstrate beyond reasonable doubt that there was no development consent for the alleged works because it was merely an "expression of opinion" by him; and (c)that Mr Webb was not a surveyor and could not read plans with sufficient accuracy to understand the scope of an earlier development consent granted by the council permitting him to build his house on the land. It was Mr O'Shanassy's position that this consent authorised the subsequent removal of the ridge.

Submissions of the Council 27The council submitted that all that it was required to prove in order to establish that there was a case to answer, was that, taking the case at its highest, consent was required for the alleged works and that none had been granted. 28The council argued that there was "proof of each of the elements of the offence" and relied upon the following evidence to demonstrate that, taken at its highest, it could support a lawful conviction against Mr O'Shanassy: (a)that the LEP applied to the property, which meant that development consent was required for the earthworks; (b)that there was evidence from Mr Webb that there was no such consent; and (c)that there was evidence from Mr O'Shanassy's estranged wife, Ms Lana Lake, Mr Webb, Mr Lorincz, Mr Woodward and Mr Symonds, that earthworks were carried out during the charge period by Mr O'Shanassy. 29The council disputed the proposition put by Mr O'Shanassy that the excavation contractors had ignored his instructions when they undertook the excavations. The council submitted that the evidence of these witnesses was to the contrary, that is, that at all times they had complied with the directions given to them by Mr O'Shanassy. 30It was the council's position that the evidence of Ms Lake and Mr Lorincz in relation to Mr O'Shanassy's supervision and control over the earthworks corroborated the evidence of the excavation contractors. 31The council further submitted that, in any event, whether or not the excavation contractors had followed Mr O'Shanassy's instructions was irrelevant. If the excavation contractors had carried out instructions that amounted to development that required consent, this was sufficient to convict Mr O'Shanassy because the offence was one of strict liability. 32Finally, the council submitted that a Prasad direction was unnecessary because the Court had before it "a powerful body of evidence, corroborated by photographs", with each witness' account consistent with that of other witnesses and with the objective evidence. In short, the evidence was not "so lacking in weight and reliability that no reasonable tribunal could safely convict on it".

Evidence Relied Upon by the Council 33The council relied on the evidence of Mr Webb to demonstrate that there was no development consent for the earthworks. Mr Webb's affidavit, affirmed on 8 November 2012, stated the following: 12 I have reviewed Council's register of development consents and complying development certificates kept under section 100 of the Act applying to Lot 11, Lot 12, Lot 1 and Lot 4. An extract from Council's register for Lot 11, Lot 12, Lot 1 and Lot 4 is at TAB 8. 13 I have reviewed consents and approved plans for applications nominated within the extract from Council's register of development consents and complying development certificates contained at TAB 8. None of the consents or approved plans I reviewed permitted or required earthworks of the nature that have been performed at Lot 11 and on surrounding lots to be carried out. 34The evidence of Ms Lake (referring to "Ballingarry", which was the family name for Mr O'Shanassy's house) included the following exchange during cross-examination (T356.36-T356.41): Q. Do you know from your own knowledge how it was that the land came to change its appearance at the rear of the house at Ballingarry between the time you took these photos, exhibit L, in early 2011 and the time you moved out of the house in May 2012? A. Yes, my husband arranged for earth movers to remove the land and the trees. 35The affidavit of Mr Lorincz, affirmed on 11 September 2012, recorded a conversation between himself and Mr O'Shanassy on 1 October 2011, after he observed the earthworks taking place: I said: "What is going on here with all this work?" Paul said: "I am doing a big extension to my house." I said: "But how did you possibly get permission to fell all these magnificent trees? Have you got permission?" Paul said: "Council had to give me permission so I could do the extension." I said: "But I don't understand. I know Council's policy about trees and I know first hand Council's ridgeline policy DCP 53. I wanted to build on a block in Lees Road on the ridgeline and there was no way in the world I could get permission. How did you get permission to remove the entire ridge?" Paul said: "Council had no alternative but to give me permission, there was no way to do the extension otherwise." 36Mr O'Shanassy told him that he had permission from the council to undertake the works and showed Mr Lorincz architectural plans. However, there was no council stamp on the plans and after further questioning by Mr Lorincz, Mr O'Shanassy indicated that the approved drawings were "with the contractor in Goulburn". Mr Lorincz requested to see the approved plans and drawings. Mr O'Shanassy said he would send the plans and drawings to Mr Lorincz within three days. This never occurred. 37Mr Lorincz's affidavit also annexed photographs that he took on 7 October 2011, of what appeared to be piles of excavated soil and an excavated area next to a large house. He stated that the photographs were taken by him and showed the earthworks occurring on Mr O'Shanassy's and Mr Lorincz's land. 38The affidavit further annexed aerial photographs that Mr Lorincz had taken from his airplane on 14 November 2011, which revealed a large excavated site around Mr O'Shanassy's house with felled trees scattered throughout in the excavated area. 39Additional aerial photographs taken by Mr Lorincz on 9 March 2012 and 3 May 2012, showed a larger excavated area than the area depicted in the 2011 photograph, with the ridgeline pushed further away from the house. The photographs showed a large pile of excavation spoil located on the top of the ridgeline. 40Finally, photographs taken by Mr Lorincz on 30 April 2012, showed Mr O'Shanassy on top of some excavated soil, near earthmoving machinery, next to a man who I infer to be a contractor (he was wearing high visibility safety clothing). 41The evidence of the excavation contractors provided details concerning the instructions Mr O'Shanassy had given them in relation to the alleged works. Mr Symonds' first affidavit, affirmed 30 August 2012, stated as follows: 5 Whilst on the Site on both occasions I met a person who identified himself as Paul O'Shanassy ("O'Shanassy"). I clearly remember the meeting in August 2011 as it was the day after my brother in law had a heart attack. During my meeting with O'Shanassy, we had a conversation to the following effect: He said: "Thanks for coming out. Paul O'Shanassy is the name. I want to know if you can do some earthmoving for me." I said: "What's it involve?" At this point O'Shanassy pointed to an area to the east and north-east of the Site and continued the conversation to the following effect: He said: "If you can level out that area there, I'll be able to see the lights of Sydney and that could increase the value of my house by another $4 million. I'll need you to ensure there is a fall away from the house." .... 8When I left the Site I estimate that approximately 16,000m³ of heavy clay and rock had been excavated and tipped where I had been directed to tip it. ... 18While working on the site, I received all instructions for undertaking the work from O'Shanassy. I observed O'Shanassy on the Site regularly during the time that the work was being undertaken and on occasions he would approach me and discuss the work and to provide instructions. 42His written evidence was confirmed orally (T534.44-T534.45 and T545.49-T546.6): A. Well, in the case of a job like yours, you put the pegs in, we were just excavating to your pegs. .... Q: Thank you. Mr Symonds, you say at paragraph, paragraph 7, six and seven of your 30 August 2012 - if you'd like to take a look at it again, please-- A. Yes. Q. --that I made reference to pegs and pointed and that was the way in which I gave, gave you instructions to what I wanted done; is that right? A. Well, any, any pegs that was put in on that job either you put them in or you got someone employed by you to put them in. We, we never put any pegs in. 43Similarly, in an affidavit affirmed on 11 September 2012, Mr Woodward attested to the following: 7 Also on 9 January 2012, Mr O'Shanassy provided me with instructions for the earthworks. Annexed hereto and marked with the letter "B" is a true copy of the material provided to me by Mr O'Shanassy. 8 While I was working on the Property, I had a conversation with Mr O'Shanassy to the following effect: He said: "Keep pushing the fill over the hill." I said: "It wasn't in the quote." He said: "Just jump into your machine and keep pushing." I said: "I can't do that as it was not what I was asked to do. Check the plans." My reference to "the plans" was the plans at Annexure B, provided to me by Mr O'Shanassy and the basis upon which I had quoted for the job.

The No Case Application Should be Dismissed 44In my opinion, the no case to answer application should be dismissed. Mr O'Shanassy has not demonstrated that the council's evidence, taken at its highest, could not support a verdict of guilty beyond reasonable doubt. 45Turning to the matters that need to be proved in order to establish a case to answer in these proceedings, first, it was an agreed fact that development consent was required for the earthworks. Second, according to Mr Webb, there was no such consent. Third, Ms Lake's evidence, taken at its highest, provided compelling evidence of Mr O'Shanassy's guilt. Fourth, although whether the works were carried out during the charge period was a matter of debate between the parties, it was nevertheless an agreed fact that some earthworks occurred during the charge period. Moreover, the council adduced sufficient evidence that, taken at its highest, demonstrated that works were carried out during the relevant time period in breach of ss 76A and 125(1) of the EPAA and cl 7.3(2) of the LEP. This is enough to found a case to answer. 46I reject Mr O'Shanassy's submission that the council was unable to disprove his contention that the excavation operators had ignored his instructions and had excavated more than they were instructed to do. This claim is inconsistent with the evidence. But in any event, because the offence is one of strict liability, even if Mr O'Shanassy's assertion was true, it would not be material to any determination of guilt. 47Mr O'Shanassy's further submission that the prosecutor had not called enough witnesses from the council or the construction industry to support a lawful conviction, must also be rejected. The prosecutor relied upon witnesses from the council (Mr Webb) and called the excavators who had dealt with Mr O'Shanassy at the relevant time, namely, Mr Woodward and Mr Symonds. Their evidence was neither inherently incredible nor the product of a disorderly mind (Elskaf at [24]). 48The question is whether the Court could lawfully convict on all of the evidence before it. Proceedings are not dismissed merely because the prosecutor's evidence is weak, or the evidence is tenuous or vague (Doney v the Queen at 214-215). This is not to say that the council's evidence suffered from these characteristics. The asserted failure to call additional witnesses from the council or the construction industry did not reach the requisite threshold making it impossible to convict on the totality of the council's evidence.

The Request for a Prasad Direction Should be Refused 49Mr O'Shanassy's contention that "it has not been proven beyond reasonable doubt that the defendant instructed contractors to carry out the alleged works" and that, therefore, "the Court could not be satisfied that it could safely convict" is, as the principles discussed above make plain, a misstatement of the law. 50The council does not have to prove the elements of the offence beyond reasonable doubt. What is required for the Court to give a Prasad direction is a conclusion that the evidence relied upon by the council is so lacking in weight and reliability that it would be unsafe to convict upon it. As discussed above, none of the council's evidence can be characterised in this way. A Prasad direction resulting in the dismissal of the proceedings would therefore be inappropriate. 51Dealing with Mr O'Shanassy's complaints in turn, first, the absence of any knowledge by either Mr Lorincz or Mr Webb of the height of the ridge before the charge period is immaterial having regard to the council's evidence in this regard, evidence that included site and elevation drawings by the architect Craig Watson dated August 2001; plans by Felton Constructions dated February 2002; surveys by Matthew and Peter Freeburn Land, Engineering and Mining Surveyors dated July 2002 and Richard Cox Surveyors Pty Ltd dated May 2010; and architectural drawings by Allman Johnson Architects dated December 2010. The council also relied upon the photographs taken by Ms Lake. It cannot therefore be said that the evidence relating to the height of the ridge before the charge period is "so lacking in weight and reliability that no reasonable tribunal could safely convict on it". The Court would not convict on Mr Webb and Mr Lorincz's evidence alone, but on the totality of the evidence relied upon by the council on this issue. The totality of the evidence does not suffer from any of the deficiencies required to give a Prasad direction. 52Second, Mr Webb's assertion that there was no development consent for the alleged works was not merely a "matter of opinion", as asserted by Mr O'Shanassy. It was a statement from a witness in his capacity as a planner engaged by the council. Mr O'Shanassy has not established that Mr Webb's evidence is likely to be untruthful or unreliable. 53Third, the absence of Mr Webb's knowledge of the detail of the relevant survey plans is irrelevant to whether or not the earthworks required development consent. The council's development register speaks for itself. 54In summary, therefore, the evidence adduced to date by the council does not satisfy the test in Prasad. In other words, the evidence is sufficiently cogent to support a verdict of guilty such that it would be safe to convict upon it.

Orders 55The Court therefore makes the following orders: (1)the no case to answer application is dismissed; and (2)the application for the Court to give a Prasad direction is refused

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