Land and Environment Court of New South Wales CITATION : Sutherland Shire Council v Signorelli Investments Pty Ltd and Anor [2000] NSWLEC 77 PROSECUTOR: Sutherland Shire Council PARTIES : DEFENDANTS: Signorelli Investments Pty Ltd Monte Cristo Lounge Pty Ltd FILE NUMBER(S) : 50091 of 1999; 50092 of 1999; 50095 of 1999; 50096 of 1999; 50097 of 1999; 50098 of 1999 CORAM: Talbot J KEY ISSUES: Prosecution :- standard of proof for circumstantial evidence - failure of accused to give evidence - failure of prosecution to call a witness it might be expected to call LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A, s 76B, s 125 Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202; Chamberlain and Anor v The Queen (No 2) (1984) 153 CLR 521; CASES CITED: Jones v Dunkel and Anor (1959) 101 CLR 298; RPS v The Queen (2000) 74 ALJR 449; Shepherd v The Queen (1990) 170 CLR 573; Weissensteiner v The Queen (1993) 178 CLR 217 DATES OF HEARING: 10/04/2000, 11/04/2000 DATE OF JUDGMENT: 04/19/2000 PROSECUTOR: Mr J E Robson (Barrister) SOLICITORS: Abbott Tout LEGAL REPRESENTATIVES: DEFENDANTS: Mr T S Hale SC with Mr T M Thawley (Barrister) SOLICITORS: The Law Firm of Solari's JUDGMENT: IN THE LAND AND Matter Nos. 50091-2; 50095-8 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 19 April, 2000 Sutherland Shire Council Prosecutor v Signorelli Investments Pty Ltd Monte Cristo Lounge Pty Ltd Defendants REASONS FOR JUDGMENT 1. In matter No 50091 of 1999 the charge against Signorelli Investments Pty Ltd is that between May 1999 and June 1999 it committed an offence against s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") whereby it carried out development between May and June 1999 contrary to the provisions of the environmental planning instrument named Sutherland Shire Local Environmental Plan 1993 ("the LEP") at Lot 498, DP550299, Belgrave Esplanade, Sylvania Waters. It is alleged that the carrying out of development was in contravention of s 76B of the EP&A Act. The development is identified as for the purposes of a car park other than ancillary to a permissible use. 2. The table in cl 47 of the LEP provides that, on land zoned 6(a) Public Recreation, development for the purposes of car parking other than car parking ancillary to a permissible use is prohibited. 3. In matter No 50096 of 1999 the charge against Signorelli Investments Pty Ltd is that between May 1999 and June 1999 it carried out development contrary to the provisions of the environmental planning instrument named Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment ("the REP"). It is alleged that development for the purposes of disposal of untreated stormwater was carried out on Lot 498 between May 1999 and June 1999. The table in cl 11 of the REP provides that works that dispose of untreated stormwater into the Georges River or its tributaries are prohibited. 4. In matter No 50098 of 1999 the charge against Signorelli Investments Pty Ltd is that it carried out development for the purposes of car parking in contravention of s 76A of the EP&A Act contrary to the provisions of cl 47 of the LEP. The table provides that on land zoned 6(a) Public Recreation, development for the purposes of car parking ancillary to a permissible use is allowed only with development consent. 5. The distinction between the charge in matter Nos 50091 of 1999 and 50098 of 1999 arises as a consequence of the alternative effect of cl 47 which depends upon whether the reference to car parking ancillary to a permissible use is to a use permissible within the 6(a) land or ancillary to a permissible use on any land. 6. In matter Nos 50092 of 1999 and 50095 of 1999 the charges against Monte Cristo Lounge Pty Ltd are identical to the charge laid against Signorelli Investments Pty Ltd in matter No 50098 of 1999. During the course of the hearing the prosecutor filed an amended summons in matter No 50092 of 1999 seeking to amend the charge to the same as that alleged against Signorelli Investments Pty Ltd in matter No 50091 of 1999, it being asserted that the summons in matter No 50092 of 1999 was issued in its original form as the consequence of a clerical error. 7. The remaining summons in matter No 50097 of 1999 calls upon Monte Cristo Lounge Pty Ltd to answer a charge which is identical to the charge laid against Signorelli Investments Pty Ltd in matter No 50096 of 1999. 8. In summary, the companies are respectively charged that they carried out development permissible with consent without obtaining development consent, contrary to s 76A of the EP&A Act in breach of cl 47 of the LEP or that alternatively, the development was prohibited. Both companies are charged with carrying out prohibited development in contravention of s 76B of the EP&A Act in breach of cl 11 of the REP. All offences are alleged to have occurred between May and June 1999 on Lot 498, DP550299 which is land owned by the prosecutor, being land adjoining a property known as Doltone House, owned by Signorelli Investments Pty Ltd upon which business is carried on by Monte Cristo Lounge Pty Ltd under the registered business name of Doltone House Function Centre. 9. The application for leave to amend the summons in matter No 50092 of 1999 was reserved during the course of the hearing by consent of both parties. 10. Apart from questions of construction of the respective planning instruments, the primary defence in each case is that the prosecutor has not proved beyond reasonable doubt that the defendant carried out any relevant development between May and June 1999. The evidence 11. Clause 47 of the LEP lists "car parking ancillary to a permissible use" as development allowed only with development consent. 12. The Planning Control and Consultation Table in cl 11 of the REP provides in par 20 as follows:- 20 STORMWATER MANAGEMENT SYSTEM OR WORKS Definition Carrying out of works designed to collect, channel, store, treat or disperse stormwater runoff from areas of urban development or from development adjacent to the Georges River or its tributaries. Untreated stormwater is water which has not been subjected to measures designed to reduce litter, suspended solids, nutrients or other substances which contribute to a decline in the quality of water in the Georges River or its tributaries. Planning Control Development consent is required except where works are in accordance with a Stormwater Management Plan approved by the Director-General of the Environment Protection Authority. Works that dispose of untreated stormwater into the Georges River or its tributaries are prohibited. 13. The undisputed evidence is that there is a creek or waterway within Lot 498 adjacent to the eastern boundary and that the creek flows through Sylvania Waters into the Georges River. Eight drainage pits have been constructed within Lot 498 within a car park area. There are drainage lines between pits one and two, two and three, and three and four. The drainage line from pit one discharges into the tidal waterway as do the drainage lines from pits five, six, seven and eight. The evidentiary question of fact to be determined is whether or not any development for the car park or the drainage system comprising the pits was undertaken by or on behalf of either one of the defendants and if so, whether that occurred between May and June 1999 as alleged. 14. On 7 June 1990 the council issued a notice of determination of development application No 680/89 lodged by the council itself in respect of Lot 498, DP550299. The approved development is described as the filling, levelling, grading and grassing of a reserve and its occasional use for overflow parking. The conditions of the consent provide that development will be implemented substantially in accordance with details set out in a specified plan which has not been produced. The only evidence in relation to the implementation of this development consent is that a search of the council discloses nothing to show that it has been acted upon. 15. On 13 September 1996 Jones Nicholson Pty Ltd, Consulting Civil and Structural Engineers, who purported to be acting on behalf of Signorelli Investments Pty Ltd as the owners of Doltone House, wrote a letter to the council, inter alia, as follows:- … [t]he vacant land partly surrounding Doltone House has been utilised and some areas been maintained by Doltone House for in excess of 10 years. This area is known as Lot 498 Belgrave Esplanade, Sylvania Waters and is owned by Sutherland Council. The area is mainly turfed but has not been maintained by Council during this period. Passing over the site are large electrical transmission easements which restrict the site for most types of commercial or residential use. The Council land between Doltone House and the water channel has been landscaped and maintained by Doltone House for at least 10 year period and is utilised for garden photographs for wedding receptions etc. This arrangement has been known by Council and to date been satisfactory to both parties. The Council land to the rear of Dolton House has been used for additional carparking spaces. This arrangement has also been known by Council and until recently been creating no problems to either party. As this area that Doltone House was using for parking was roughly formed (ie. partly constructed from Road base and turf) it was decided by Doltone House that they should clean the area up and provide more suitable parking arrangements, for the patrons using the centre. They thought that as Council had never mown the turf or utilised or maintained the area in any fashion, that they were improving the area for themselves and Council. During the construction of the carpark Mr W Robinson building inspector for Council, carried out a site inspection for a application we had before Council to increase the kitchen and service area in the reception centre. At that inspection Mr Robinson noticed the carpark construction and telephoned our office enquiring if an approval had been obtained to construct the work. 16. The letter went on to state how the construction work had been commenced in the belief that the owners of Doltone House were doing a favour to all concerned and suggesting that the problem might be resolved by the purchase of the property from council, with remaining car parking works to be completed after submission and approval of a building application. 17. Further evidence of the pre-existing car park improvements on the land is gathered from a letter written by Sydney Water to the prosecutor on 28 November 1996 which refers to recent construction of a new car park for use by Doltone House patrons on council land at the rear of the property and in front of Sydney Water's land. Sydney Water was writing to council to point out that as a direct result of the car park construction, the overland runoff paths for stormwater had been drastically altered. 18. On 20 January 1997 the council received a plan which delineated the land, council land, Doltone House, the Sydney Water land and the "approximate position of new car park" . The council's Environmental Assessment Administrator, Paul Nicholas Vergotis, gave evidence that the sketch plan bore a date 15 December 1996. 19. On the 24 January 1997 the Manager - Property reported to the Manager - Roads and Traffic, that further to an on-site meeting regarding an illegally constructed car park at Lot 498, future action was considered by council officers Mr Lake and Mr Binns. A number of options were considered. The Manager - Property observed that the first option, to order removal of the car park structures, would result in council ordering the removal of a structure which Planning Services and Parks indicated may be required for public parking when the area is developed for public recreation purposes. 20. The chairman of the Land Management Committee of council reported to the Manager - Planning Services on 28 January 1998 that the area had been "formed up" as a parking area by the owners of Doltone House and had been used for parking by both the patrons of the nearby rugby union field and Doltone House over the past 15 years. 21. On 29 January 1998 the council wrote to Jones Nicholson Pty Ltd referring to the past history of the use of the area and the "current semi constructed state of the area as a carparking area". 22. In support of a development application for approval of an extension to a function room within Doltone House, Jones Nicholson Pty Ltd lodged an environmental assessment dated 19 March 1998 with the council. 23. The environmental assessment referred to the car park within the site and within council's open space reserve. It was stated that the external area is to be extended in accordance with a plan attached from 65 to 92 spaces. Car park access was proposed by way of a driveway adjacent to the creek. The driveway and external car park would be bitumen paved and kerb and guttered with cross falls and drainage to engineer's details. 24. On 8 July 1998 valuation and property consultants, McLennan Steege & Associates prepared a Ground Rental Valuation of Part Lot 498 under instructions from the council. Photographs included in the valuation report show what is described as "current sealed & unsealed parking area" and an unsealed access to car park facilities. The valuer states that a portion of the subject site has been utilised for parking facilities in association with Doltone House and that "(t)he car parking requirements are in accordance with Council's Development Consent". 25. The improvements are described as follows:- Currently the northern area of the car park, containing 25 car parking spaces is tar sealed, the balance of the car parking spaces are contained within suitably drained and marked unsealed car parking facility to the south of the previously mentioned tar sealed area. 26. On 20 July 1998 the council adopted a resolution by the Environment and Health Committee that the request from the proprietors of Doltone House to use Lot 498 to accommodate approximately 60 car parking spaces be endorsed in principle subject to advice from the Department of Planning and Urban Affairs and the Department of Local Government and other conditions including a condition that the proprietors of Doltone House be requested to develop and implement a landscape plan to stabilise the canal banks and improve the access road and car park with appropriate native species. 27. On 9 April 1999 Jones Nicholson Pty Ltd wrote to council enclosing a marked plan noting the surrounding area which Doltone House wished to maintain and upgrade on the public reserve. The letter noted that the work proposed is not new works and is merely to maintain existing areas. The offer was refused by letter dated 1 June 1999. 28. In a report to the council meeting on 12 July 1999 it was stated that council's Area Building Inspector, Graeme Harlor, at the direction of Senior Building Inspector, Warren Robinson, inspected the site on 3 June 1999 and observed "that unauthorised civil works had been undertaken on the open space land, in that the area had been levelled and surfaced with road base to form a carparking area delineated by kerbing and perimeter landscaping. Other work was also being undertaken within the open space land immediately adjoining the function centre building". 29. In a file note which he made on 3 June 1999, Mr Harlor noted he visited the site at about 11.30am on 3 June at the request of W Robinson "regarding unauthorised construction of a carpark on council land". Mr Harlor produced photographs of the site taken on 3 June 1999. He returned to the site at about 12.00pm when he observed bricklayers and pavers continuing to work in the area adjacent to the south eastern part of the building. 30. In a second affidavit sworn on 10 April 2000, Mr Harlor stated he had been at Lot 498 on a number of occasions in 1998 and early 1999. He said that on these previous occasions he had seen a small formed car park of about 250 square metres close to the rear of Doltone House. Further, on those previous occasions, including a visit in March 1999, he had not seen any other development for car parking on Lot 498. 31. He confirmed that photographs of the site taken by Mr Vergotis on 19 August 1999 accorded with his observations on 3 June 1999. 32. After being shown photographs of the site taken in July 1996, Mr Harlor agreed that the size of the car park in March 1999 was "quite a bit larger" than the 250 square metre area referred to in his affidavit sworn on 10 April 2000. 33. Photographs bearing date 26 July 1996 extracted from the council file show an expansive area apparently in the course of construction surrounded by concrete kerbing. It is not possible to discern from the photograph what area of the car park shown is located on Lot 498, nor is it possible to estimate the total area the subject of the then uncompleted construction. It is nevertheless sufficiently expansive to justify the reconsideration of the area estimated by Mr Harlor after his visit to the site in March 1999. 34. During an inspection of the site on 19 August 1999 by Mr Vergotis in the company of another council officer, Adam Stephen Markham, Mr Vergotis says he saw a car park constructed on Lot 498 comprising about 4,500 square metres in area. Eight drainage pits had been constructed within the car park area together with concrete kerbing, some of which showed signs of age, indicating in his opinion that it had been in existence for some time. However, he said most of the kerbing looked to be of recent construction. Road base containing at least rocks, gravel, clay and asphalt covered all of the car parking area. His evidence was no more definitive than as I have just stated in so far as the date and staging of the construction is concerned. 35. Mr Vergotis also said that he saw wood mulch fill deposited around the perimeter of the car park and he noted a gap of 170 centimetres in the kerbing on the car park at which a path had been newly laid. 36. Although he claims no expertise as an engineer, Mr Vergotis inspected the drainage pits and gave evidence that he saw no stormwater treatment measures at the discharge pipes. 37. Mr Vergotis also inspected the land used for Doltone House and observed wood mulch similar in appearance and age as the wood mulch fill seen around the perimeter of the car park on Lot 498, deposited on that private land. 38. There is no direct evidence of what work, if any, was carried out on Lot 498 between March 1999 and 3 June 1999 nor of any specific activity which was occurring on 3 June 1999. Moreover, there is no direct evidence of what work, if any, occurred after 3 June 1999 except the evidence of Mr Harlor who stated that the photographs taken by Mr Markham and Mr Vergotis on 19 August 1999 "accord with my observations of 3 June 1999" . 39. Mr Markham, who accompanied Mr Vergotis on 19 August 1999, in addition to corroborating the evidence of observations made by Mr Vergotis, told the Court that he undertook a water flow test to see if the drainage pits functioned properly. According to Mr Markham, a number of the drainage lines did not function. He inspected the drainage discharge pipes connected to drainage pits five, six, seven and eight and said that the stormwater that discharges from them is untreated and has already caused erosion of the creek bank. In cross-examination he explained that the water flow tests consisted of the scooping of water from the tidal waterway in a plastic bucket. Water was then tipped into a pit and he observed whether there was a discharge into the waterway. 40. Ian Nolan Drinnan is the prosecutor's senior environmental scientist. He inspected Lot 498 on 19 and 24 August 1999. He told the Court of his concerns about the impact of the construction of the car park on the western bank of the creek adjacent to the land and the discharge from the stormwater outlets into the sensitive environment of the inter-tidal zone. He made several recommendations in order to address the impacts of the works, including that the outlets of the stormwater system needed to be either relocated or that appropriate stormwater treatment installed in accordance with cl 11, par 20 of the REP. The prosecutor's case 41. The prosecutor relies on the evidence of the course of conduct of the defendants since 1996 and the observations made by Mr Harlor on 3 June 1999 to establish a strong circumstantial case to show that it is beyond reasonable doubt that significant construction work has been carried out on Lot 498, either by Signorelli Investments Pty Ltd or Monte Cristo Lounge Pty Ltd, and that the work was carried out either without consent or was prohibited. 42. It is alleged that the continuing involvement of Jones Nicholson Pty Ltd and the correspondence with council on behalf of Signorelli Investments Pty Ltd amounts to an admission by Signorelli Investments Pty Ltd that it was responsible for the construction of the car park. 43. Mr Robson relies upon the development application lodged with council on 13 March 1998 by Doltone House, with the consent of Monte Cristo Lounge Pty Ltd and Signorelli Investments Pty Ltd, to show that the car parking had been provided up to that time for the benefit of the patrons of Doltone House. Monte Cristo Lounge Pty Ltd carries on business as Doltone House Function Centre. 44. A significant element of the prosecutor's case is a written undertaking received by council on 4 June 1999 on the letterhead of Doltone House above the signature of Paul Signorelli - Director, that all external works currently being constructed at Doltone House will cease immediately until further meetings have occurred between both parties. 45. The photos taken by council officers in August are relied upon in the light of the evidence from Mr Harlor that the items of construction shown in these photographs accord with his observations on 3 June 1999. 46. Mr Robson asks the Court to accept that it is beyond doubt that the work was conducted at or about the time Mr Harlor visited the site in June and not at some distant time before that. 47. Mr Robson says that given the whole of the material before the Court and in the absence of any evidence in rebuttal there is a strong circumstantial case that development work was carried out during the period of May and June as alleged in the summons. 48. Reliance is placed upon the following conversation between Mr Bruce Signorelli and Mr Harlor on 3 June 1999:- HARLOR: Can you produce to me any evidence of approval for the work of this car park? SIGNORELLI: No HARLOR: You must cease all works immediately. 49. The Court is asked to deduce from that conversation that work was proceeding at that time. 50. The Court is asked to find that development works were carried out on council land in May and June 1999 contrary to the provisions of the EP&A Act either in breach of s 76A or s 76B, depending on how the Court construes cl 47 of the LEP. If the council fails on the threshold evidentiary point and the Court is not persuaded beyond reasonable doubt that any relevant development took place in May or June 1999, the question of whether the development is prohibited or permissible with consent simply does not arise. 51. Although relying on circumstantial evidence to establish primary liability, the prosecutor asserts that the presumption is so clear that work was carried out in breach of the EP&A Act, in the absence of evidence that could have been called, it has proved beyond reasonable doubt the defendants committed the offences as charged. The defence 52. Mr Hale SC, for the defendant, relies upon the failure of the prosecutor to prove what the actual works were that the council nominates as being development and which of those works were undertaken in the two month period particularised in the summons. There is some evidence of the state of the land on 3 June 1999 and subsequently in August of that year. Mr Hale says that it is unclear as to what was actually going on at the site in May and June. There is no evidence of the state of the land immediately prior to May 1999. Mr Hale identifies a number of council officers who might have been called to prove the critical facts, but as they were not called and no explanation in that regard is forthcoming it may lead rationally to an inference that the evidence of those witnesses would not help the council's case ( Jones v Dunkel and Anor (1959) 101 CLR 298). 53. Mr Hale refers specifically to discussions between a representative of Jones Nicholson Pty Ltd and a Mr Des Hewett at the council on 8 April 1999 and earlier discussions with council's town planners, Mr R Aberline and Mr G Irving, all referred to in a letter to council from Jones Nicholson Pty Ltd dated 9 April 1999. 54. Furthermore, following an on-site meeting in January 1997, the alleged illegally constructed car parking on Lot 498 was considered by council officers Mr Lake and Mr Binns. 55. In a report to council's meeting on 12 July 1999, reference is made to an inspection of the site and observation of "unauthorised civil works" by Graeme Harlor on 3 June 1999 at the direction of Senior Building Inspector, Warren Robinson. In a file note made on 3 June 1999 Mr Harlor confirms that he visited the site on 3 June at the request of W Robbinson [sic]. 56. Apart from Mr Harlor, none of the above persons were called upon to give evidence for the prosecutor. 57. In a letter to council dated 9 April 1999 Jones Nicholson Pty Ltd noted "the surrounding area which Doltone House wish to maintain and upgrade on public reserve. The work proposed is not new works it is merely to maintain existing areas". The work detailed in the letter and shown on the marked up plan enclosed is described as follows:- (1) ACCESS ROAD (hatched blue) Existing road base track to be bitumen sealed on a prepared sub-base with timber edge strips. (2) LANDSCAPE MOUND (shaded orange) To continue the landscape mound (approximately 1.2m maximum height) and provide screen planting to match existing mound. (3) COURTYARD AREA (hatched pink) To upgrade existing perimeter garden bed with stone edge and provide new planting and replace turfed areas with brick pavers. 58. The above is the only description of any works, proposed or executed, which is in any way contemporaneous to the period between May and June 1999 particularised in the summons. 59. The defendants rely on cl 47 of the LEP which provides that within zone 6(a) Public Recreation, works (other than buildings) for the purpose of landscaping, gardening or bushfire hazard reduction are developments allowed without development consent. 60. Mr Hale also points to cl 35 of the Model Provisions which provides that nothing in the LEP shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit the carrying out of any development required in connection with the construction, reconstruction, improvement, maintenance or repair of any road, except the widening, realignment or relocation of such road. In Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 at 205, Cripps J expressed the opinion that a "road" appearing as a use permissible with consent in Canterbury Planning Scheme Ordinance, as it then was, was a reference to a way or track on which vehicles pass. His Honour said its meaning is not confined to a dedicated public road. 61. Arguably therefore, according to Mr Hale, none of the items referred to in the letter dated 9 April 1999 required development consent. 62. Photographs taken by Mr Harlor on 3 June show piles or heaps of material without sufficient particularity to identify the material or its location. One of the photographs shows a machine with an attached bucket and another piece of machinery but there is no explanation of the purpose for which they were being used at the time. The bucket machine is sitting on the trailer of a large articulated vehicle with the bucket resting on the ground. It is not possible for the Court to understand what, if any, was the nature of the work being undertaken on 3 June merely by reference to the photographs taken by Mr Harlor. The explanations in his affidavit and file note take the matter no further. 63. The report to the meeting of council on 12 July 1999, dated 28 June 1999, is for the purpose of submitting to council a number of "action options" following the alleged unauthorised development of Lot 498. 64. Apart from a reference to the inspection by Mr Harlor on 3 June there is no specificity as to when the works undertaken up to that date were in fact carried out. The report concentrated on the prospects for the future use of the land and in particular whether the car park should remain. 65. Even though by its letter dated 4 June 1999, the council requested a formal undertaking in writing that all building and construction works at Doltone House and in the adjoining reserve stop forthwith, the "numerous unauthorised works and uses" were not identified. 66. The photographs taken in 1996 and 1999 are not so dissimilar that they raise on their face any significant distinction between the state of the land at those respective times. They certainly do not assist the Court to fix a time when any works may have been undertaken after 1996. 67. The witness who was in a position to provide the greatest assistance to the Court was forced to change his opinion that prior to 3 June 1999 he had "seen a small formed car park of about 250 square metres close to the rear of Doltone House" . Mr Harlor resiled from the estimate of 250 square metres after being shown the photographs taken in 1996, during cross-examination. 68. Mr Hale relies heavily on the failure of the prosecutor to discharge the obligation, in a case of circumstantial evidence, to exclude all reasonable hypotheses consistent with the innocence of the defendant. Not only should guilt be a rational inference, but it should be the only rational inference drawn from the circumstances. In a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see joint judgment of Gibbs CJ and Mason J in Chamberlain and Anor v The Queen (No 2) (1984) 153 CLR 521 at 536). 69. Mr Hale refutes any suggestion that the failure of any person to give evidence on behalf of the defendants may lead to speculation as to why that election was made ( RPS v The Queen (2000) 74 ALJR 449 at 452 par 15 and 455 at par 27). Whether the offence has been proved 70. In the joint judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217 at 229, it is stated that the failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be because it is the exercise of a right which the accused has, to put the prosecution to its proof. 71. At 237 - 238 in Weissensteiner , Brennan and Toohey JJ emphasised that the onus of proof is correctly placed on the prosecution. The facts from which an inference of guilt may be drawn are identified as facts which the prosecution is able to prove. An inference of guilt will not be assisted by an accused's failure to give evidence unless it is reasonable to expect some denial, explanation or answer by the accused to the prima facie case made against him or her. 72. However, turning back to the joint judgment of Mason CJ, Deane and Dawson JJ at 228, it is important to note that even if there are facts peculiarly within the accused's knowledge, the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof placed upon the prosecution. 73. In the joint judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS at 452, their Honours further embrace the principle that the prosecution bears the onus of proof and that it is not appropriate to speculate why an accused has not given evidence. At 455 and 456, in the same joint judgment, the limit of the application of the reasoning in Jones v Dunkel to criminal cases is identified by requiring the Court to take into account the consideration that not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. 74. In Shepherd v The Queen (1990) 170 CLR 573 Dawson J at 579 defines circumstantial evidence as evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. He observes how it is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. 75. It appears to have been accepted in Shepherd that a fact can be relied upon to found an inference of guilt in a circumstantial evidence case even if it is not proved beyond reasonable doubt. Nevertheless, if it is necessary to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, then that fact must be proved beyond reasonable doubt. McHugh J explained the operation of the qualification at 593:- In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. 76. The prosecutor has proved that the construction of a car park was undertaken on Lot 498 by persons acting on behalf of one or other of the defendants under the supervision of their consulting engineers, Jones Nicholson Pty Ltd. 77. The Court is satisfied beyond reasonable doubt that these works took place progressively at some time between at least 1996 and August 1999. 78. There is no direct evidence of the actual work, if any, that took place in May or June of 1999. 79. The prosecutor has not excluded a reasonable hypothesis that any work carried out on Lot 498 during those months was development for the purposes of landscaping or a road not being development which was prohibited or required development consent. 80. Nor has the evidence clearly discriminated between works on the council land and the private land at the rear of Doltone House itself. 81. The relationship, if any, between the development approved on 7 June 1990 and the works existing in May and June 1999 has not been explained. 82. In the circumstances of this case, the defendants are entitled to rely upon the failure of the prosecutor to call a witness, whom it might have been expected to call, to give direct evidence of development carried out on Lot 498 during the period particularised in the summons. 83. The cumulation of facts proved by the prosecutor and relied upon to found the inference of guilt do not establish beyond reasonable doubt that either of the defendants carried out development for the purposes of a car park at the relevant time. 84. It follows therefore that the prosecutor has failed to prove beyond reasonable doubt, either by direct evidence or by relying on circumstantial evidence that the defendants are guilty of the offences particularised in any of the respective summons. 85. The prosecutor has not made out a prima facie case against the defendant such that it is reasonable to expect some denial, explanation or answer by the defendants (see Weissensteiner , above). 86. It is not necessary in the circumstances to deal with the application for leave to amend the summons in matter No 50092 of 1999 as even if the summons was amended the prosecutor would fail. Orders 87. The failure of the council to prove beyond reasonable doubt that the defendants or either one of them carried out any development work including the construction and installation of drains during May and June 1999 has the consequence that each summons will be dismissed. 88. There has been no argument in relation to the question of costs. The decision to dismiss the summons in each case for the reasons I have given would generally lead to the Court exercising its discretion in favour of the defendants. I will therefore make a formal order in respect of each summons that the prosecutor pay the defendant's costs. 89. However, as there has been no formal argument and there may be matters that could bring the Court to a different conclusion on the issue of costs, the prosecutor will be given leave to apply in respect of the costs orders within seven days. 90. The formal orders of the Court are:- 1. In matter No 50091 of 1999 the defendant, Signorelli Investments Pty Ltd is found not guilty. 2. In matter No 50091 of 1999 the summons is dismissed. 3. In matter No 50092 of 1999 the defendant, Monte Cristo Lounge Pty Ltd is found not guilty. 4. In matter No 50092 of 1999 the summons is dismissed. 5. In matter No 50095 of 1999 the defendant, Monte Cristo Lounge Pty Ltd is found not guilty. 6. In matter No 50095 of 1999 the summons is dismissed. 7. In matter No 50096 of 1999 the defendant, Signorelli Investments Pty Ltd is found not guilty. 8. In matter No 50096 of 1999 the summons is dismissed. 9. In matter No 50097 of 1999 the defendant, Monte Cristo Lounge Pty Ltd is found not guilty. 10. In matter No 50097 of 1999 the summons is dismissed. 11. In matter No 50098 of 1999 the defendant, Signorelli Investments Pty Ltd is found not guilty. 12. In matter No 50098 of 1999 the summons is dismissed. 13. In each of the matters, 50091 of 1999, 50092 of 1999, 50095 of 1999, 50096 of 1999, 50097 of 1999 and 50098 of 1999, the prosecutor is ordered to pay the respective defendant's costs. 14. The prosecutor is granted leave to apply in respect of Order 13 within seven (7) days. 15. The exhibits may be returned. 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.