Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth

Killick v The Queen (1981) 147 CLR 565 CASES CITED: Shaw v The Queen (1952) 85 CLR 365 The Queen v Chin (1984) 157 CLR 671 Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149

PROSECUTOR Mr Matthew Fraser SOLICITORS Kells the Lawyers LEGAL REPRESENTATIVES: DEFENDANTS Mr T G Howard SOLICITORS Burrell Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ROBERT MARTIN (AKA BOB) HOGARTH Defendant

JUDGMENT Jagot J: 1 By notice of motion filed on 25 June 2008 the prosecutor seeks leave to adduce evidence in reply with respect to the defence of existing use rights.

3 The prosecutor commenced the proceedings by summons filed on 29 March 2007. On 14 May 2007 the defendants' solicitor wrote to the prosecutor's solicitor asserting that the land had been lawfully used for purposes including agriculture/grazing and trail riding/equestrian activities for many years and the clearing of timber was at all times permissible as ancillary to those activities. The defendants' solicitor referred to these matters having previously been raised with officers of the prosecutor. In particular, the solicitor drew the prosecutor's attention to a commission of inquiry in 1994 where the history of the pattern of the use of the land had been raised.

4 The prosecutor's solicitor responded on 29 May 2007 requesting details, being the documents on which the defendants relied to establish the dates on which the agriculture/grazing and trail riding/equestrian uses commenced, the nature and physical extent of the uses, and any changes in the nature and extent of those uses to date, as well as the page references of the commission of inquiry report. The prosecutor's solicitor responded again on 20 June 2007 to the effect that the defendants' allegations were not sufficiently clear so that the prosecutor was not able to undertake investigations into the prospective defence of existing use rights. The prosecutor's solicitor said that if details were given at the trial then the prosecutor would seek an adjournment to meet the allegations.

5 On 6 July 2007 the matter came before the Court (there had been earlier mentions). Lloyd J asked whether all the prosecutor's evidence was on. Counsel for the prosecutor said it was not as the prosecutor wished to file and serve evidence in relation to the foreshadowed defence of existing use rights by 20 July 2007. The defendants objected on the basis that the defence had been foreshadowed for some time including in the letter of 14 May 2007 and the prosecutor, at an earlier mention, said it had filed all its evidence despite being aware of the proposed defence. Lloyd J gave the prosecutor an opportunity to file and serve evidence relating to existing use rights.

6 The prosecutor did so, in particular, filing and serving the affidavit of Andrew Carfield sworn 11 July 2007. This affidavit contained evidence analysing historical aerial photographs and Mr Carfield's conclusions, based on that analysis, about the uses that had been made of the land since 1948. The opinion evidence was not admitted under s 76 of the Evidence Act 1995 (s 79 being inapplicable for reasons that need not be restated here).

7 On 19 September 2007 the prosecutor's solicitors wrote to the defendants' solicitors to the effect that, insofar as it could, the prosecutor had been investigating the use of the land and existing use rights said to make the removal of vegetation lawful. The letter referred to the submission the prosecutor put in the commission of inquiry in answer to the defendants' submission abut existing use rights.

8 The hearing commenced on 14 April 2008. The defendants' counsel referred to the defence being existing use rights and eight witnesses proposed to be called by the defence about the use of the land back to about 1937. The defendants' counsel admitted the acts constituting the clearing (but for the specific evidence about cutting down mature trees) but said they were lawful by reason of the existing use rights relied upon by the defendants. On 15 April 2008 the defendants provided the prosecutor with five draft or final proofs of evidence or affidavits from witnesses relevant to the potential defence of existing use rights.

9 The hearing continued for a further 7 days (until 24 April 2008). During the course of the hearing the parties agreed that I should rule on the issue of onus with respect to existing use rights as soon as possible. I did so on 17 April 2008 (Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149). I found that existing use rights constituted an exception to a general statement of liability on which the defendants bore the onus of proof on the balance of probabilities.

10 On 22 April 2008 the prosecutor called one of the deponents of a statement to be relied on by the defendants in the prosecutor's case (Mr Buckley). The prosecutor closed its case later on the same day. Following a no case to answer application, the defendants opened their case. On 23 April 2008 the defendants' counsel made a detailed opening statement of the evidence to be called focusing on evidence of existing use rights. The defendants then called witnesses on 23 and 24 April 2008 (the defendant Robert Hogarth, William Collins, Leslie Blackwell, and Shane Everingham). The hearing was adjourned part heard to recommence in the week of 11 August 2008.

11 The evidence in reply the prosecutor seeks to lead consists of evidence of current and former Council officers and other persons who had seen the land at various times between mid 1975 and 2005. The proposed evidence is anticipated to relate to their observations of the use of the land for agricultural and grazing purposes, the presence of cattle yards, cattle, goats, and horses on the land, and the slashing of vegetation. The evidence is identified as relevant to the existence, nature and extent of any existing use of the land for agricultural or other purposes. The prosecutor also seeks to lead evidence in reply from an expert in aerial photography who will analyse stereo pairs of aerial photographs of the land using appropriate technology. This evidence will relate to opinions about agricultural uses of the land also being relevant to the existence, nature and extent of any existing use of the land for agricultural purposes. The evidence is to be called from Alan Doughton a planner formerly employed by the prosecutor, Philip Lloyd, a current employee of the prosecutor, Norman Hitchens, a former employee of the prosecutor, David Bartlett from the Rural Fire Service, Kevin Mills (an ecologist) and employees of Sydney Water.

12 According to the affidavit from the solicitor employed by the prosecutor's solicitor she reviewed files and other documents in the Council's possession in 2007 relating to existing use rights but found nothing admissible and relevant to such rights. Although the solicitor said she limited her review to the commission of inquiry and related files because the letter from the defendants' solicitor of 14 May 2007 led her to believe that those documents contained all of the evidence on which the defendants would rely the prosecutor accepted that the letter merely referred to those documents as evidencing the type of matters relied on by the defendants.

13 The applicable principles are as follows. (1) The trial judge has a discretion to allow evidence in reply but it has been described as one available only where the "circumstances are very special or exceptional" ( The Queen v Chin (1984) 157 CLR 671 at 676 and 684).

(2) The guiding principle is that the prosecution must present its case completely before a defendant is called upon for a defence ( Chin at 676 and 684; Shaw v The Queen (1952) 85 CLR 365 at 379 - 381 and 383; Killick v The Quee n (1981) 147 CLR 565 at 568 - 572).

(3) Examples of very special or exceptional circumstances might include where the prosecution could not have anticipated the defendant's evidence about a matter where the onus did not lie on the prosecution or where the evidence was not available when the prosecution closed its case or involves a purely formal, technical or non-contentious matter ( Chin at 667 and 684). However, courts have avoided prescribing any strict formula beyond the observation that evidence the prosecution could reasonably have foreseen or which would have been covered if the prosecution's case had been strictly proved is generally not seen as falling within the scope of a very special or exceptional circumstance ( Chin at 684).

(4) Where the onus to prove an exculpatory matter lies on the defence a prosecutor may call evidence rebutting the matter "provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue" ( Chin at 677). Irrespective of the concept of splitting a case, if the nature of the defence's evidence sought to be rebutted should have been known to the prosecutor "so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence" ( Chin at 685).

(5) In summary: The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence ( Chin at 685 - 686).

14 The prosecutor submitted that it could not have reasonably foreseen the details of the evidence of existing use rights as they unfolded during the hearing. The notice given by the defendants of the defence was vague and unsatisfactory and did not permit the prosecutor to make any investigations additional to those it in fact made. Killick, in particular, referred to the "details" of an alibi being known to a prosecutor (at 569). In the present case the prosecutor did not know the details of the way in which the defendants proposed to put their case for existing use rights. The prosecutor did not bear the onus on that issue. The existing use rights issue was a form of civil trial within a criminal trial. The proceedings were summary proceedings. There was no jury to be swayed unduly by the last evidence heard. The prosecutor submitted that having regard to the nature and complexity of the case, the onus being on the defendants to prove existing use rights, the fact that the prosecutor requested details of the existing use rights but was provided with vague and unsatisfactory material only and investigated that material as far as possible, the summary nature of the proceedings and lack of a jury, and the aim of criminal trials being to find the truth as far as possible (Shaw at 383), the circumstances were exceptional and the prosecutor should thus be given leave to lead evidence in reply on that issue.

15 The defendants submitted that it was difficult to imagine a less meritorious application by a prosecutor for leave to re-open. The prosecutor had been put on notice of the foreshadowed defence based on existing use rights to clear timber ancillary to lawful agricultural/grazing and horse related activities. The prosecutor had obtained leave of the Court on 6 July 2007 to file and serve all evidence of existing use rights on which it wished to rely. The prosecutor had led such evidence in chief (Mr Carfield and, in part, Ms Lemmon about tree removal identified by the prosecutor as potentially relevant to existing use rights). The defendants gave the prosecutor five sworn and draft statements on the second day of the hearing all going to the defence of existing use rights. Many days later the prosecutor closed its case. The defendants went into evidence on that basis including calling Mr Hogarth. According to the defendants the prosecutor knew the defence of existing use rights at all times. The prosecutor had given no satisfactory explanation why the new evidence could not have been put on pursuant to the leave granted by Lloyd J on 6 July 2007. The new material would unfairly prejudice the defendants. The prosecutor was effectively running a new case (including seeking to put on expert evidence about aerial photographs when such evidence, based on stereoscopic analysis, was obviously potentially relevant to existing use rights).

16 In short, I accept that the discretion to allow a prosecutor to lead evidence in reply should not be exercised. The prosecutor, on the available evidence, has known that there was a live issue about existing use rights for agricultural/grazing purposes attaching to this land since 1994 (the commission of inquiry). When the charges were laid the defendants' solicitor told the prosecutor what the defence would be. This caused the prosecutor to seek leave from the Court on 6 July 2007 to put on additional evidence to deal with the foreshadowed defence. The prosecutor filed its evidence relating to existing use rights. It led evidence about existing use rights. More to the point it had many of the statements from the witnesses to be called by the defendants on the second day of the hearing. Those people were available to be called by the prosecutor in its case. The prosecutor called its evidence then closed its case about a week after receiving those statements. It made no application for an adjournment. It allowed the defendants to go into evidence, including by calling Mr Hogarth.

17 The analogy the prosecutor draws between not knowing the details of an alibi and not knowing the precise way in which the defendants intended to put their existing use rights case is not realistically available. Alibis are potentially infinite in number and nature. Existing use rights over land depends on a statutory definition about the use of the land over time having regard to the provisions of environmental planning instruments regulating those uses and their continuation.

18 The defendants did not have to give the prosecutor the evidence in order to put the prosecutor on notice of the issue. The defendants told the prosecutor that the uses were agricultural, grazing and horse related. All of the evidence now foreshadowed by the prosecutor could have been obtained back in 2007. In other words, it is reasonably obvious that when the issue is existing use rights evidence about the historical use of the land will be relevant. It is also reasonably obvious that there are multiple potential sources of such evidence (including people who have seen the land in the past, aerial photographs, maps, as well as documents).

19 The case cannot be characterised as in any way exceptional or special. It is not a case where the prosecution could not have anticipated the defendants' evidence about a matter where the onus did not lie on the prosecution or where the new evidence was not available when the prosecution closed its case. Nor does the new evidence involve a purely formal, technical or non-contentious matter (Chin at 667 and 684). Moreover, there would be patent unfairness to the defendants in acceding to the prosecutor's motion. Having had the benefit of the nature of the defence for a year or more, having had the opportunity to put on all the evidence it wished to about the very issue, having in fact seen much of the defendants' evidence on the second day of the hearing about the issue, the prosecutor closed its case, made no application for an adjournment and thus allowed the defendants (including Mr Hogarth personally) to go into evidence. Having cross-examined the witnesses that were available to be called as part of the prosecutor's own case, the prosecutor now seeks leave to put on evidence in reply from people that include its own current and former employees, further aerial photographic analysis (from a person experienced in stereoscopic analysis) and employees of other departments and instrumentalities. I do not accept the suggestion that any need for the evidence was not reasonably foreseeable or that the evidence could not have been put on earlier due to some vagueness in the defendants' notice of the foreshadowed defence.

20 For these reasons the prosecutor's motion filed 25 June 2008 is dismissed. The defendants' costs of the prosecutor's motion are reserved.

25/08/2008 - The correct hearing date is 27 June 2008 (not 27 June 2006). - Paragraph(s) N/A

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