Land and Environment Court of New South Wales CITATION : Cessnock City Council v Courtney (No. 3) [2004] NSWLEC 488 PROSECUTOR Cessnock City Council PARTIES : DEFENDANT Wayne Leslie Courtney FILE NUMBER(S) : 50013 of 2004 CORAM: Cowdroy J KEY ISSUES: Prosecution :- admissibility of records prepared by the defendant or prepared on the defendant's instructions LEGISLATION CITED: Supreme Court Rules 1970, Pt 75 r 11 Bunning v Cross (1978) 141 CLR 54; CASES CITED: R v Ireland (1970) 126 CLR 321; R v Swaffield (1998) 192 CLR 159 DATES OF HEARING: 17/08/2004; 18/08/2004; 19/08/2004; 20/08/2004 EX TEMPORE 08/20/2004 JUDGMENT DATE : PROSECUTOR Mr T Howard (Barrister) SOLICITORS Cleaves Mallik Gibbs LEGAL REPRESENTATIVES: DEFENDANT Mr P Arden SC Mr J Kildea (Barrister) SOLICITORS Thompson Norrie JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Cowdroy J 20 August 2004 50013 of 2004 CESSNOCK CITY COUNCIL v WAYNE LESLIE COURTNEY Judgment – No. 3 admissibility of evidence 1 The defendant objects to the tender of documents which for convenience have been described as exhibit 2. Exhibit 2 comprises correspondence which has passed between the solicitors for the respective parties. On 10 August 2004 the solicitors for the prosecutor wrote to the solicitor for the defendant indicating that the prosecutor wished to rely upon additional documents in the following terms:- We further give you notice that the Prosecutor reserves it [sic] rights to rely on documents filed by the Defendant's agent, Synergy Environmental Planning, in relation or on its behalf in the Class 1 proceedings, being proceedings number 11353 of 2003. Since these documents are already in your possession we presume that it is not necessary for us to re-serve these documents upon you. Kindly advise if you require re-service. 2 Such letter was responded to the next day by facsimile in which the defendant's solicitor wrote as follows:- We refer to your letter of 10 August 2004 and note that the Prosecutor is still introducing in to these proceedings fresh material contrary to the Court's direction. We reject that the Prosecutor has any right to rely on documents filed in other proceedings. If you wish to give us notice of your intention to introduce such documents please specify precisely which documents you intend to seek to introduce. We will then be in a position to obtain instructions in relation to the request contained in the third paragraph of your letter. 3 By letter dated 12 August 2004 the prosecutor's solicitor advised as follows:- We refer to your letter of 11 August 2004 and advise that the Prosecutor reserves its rights to rely on all material including plans, survey plans and experts reports filed by or on behalf of the Applicant in the Class 1 proceedings, on the basis that the Applicant at all material times was an agent for the Defendant in these proceedings. 4 The defendant submits that the admission of the documents, the subject of the correspondence, would be contrary to the directions which have been made by the Court for the orderly preparation of these proceedings for hearing. The defendant claims that the prosecutor's conduct would constitute a departure from Pt 75 r 11(4)(b) of the Supreme Court Rules 1970. Such rules are adopted by this Court and apply in these proceedings. Pt 75 r 11 relates to pre-trial procedures and makes provision for directions to be given by a judge for the preparation of the hearing. It includes matters such as the provision of particulars, giving copies of any documents or statement, providing inspection and indicating the evidence to be adduced. 5 These proceedings were first returnable before the Court on 26 May 2004 and subsequent directions hearings took place on 2 June 2004 and 9 June 2004. On the last mentioned day, a hearing date was allocated. Prior to 10 August 2004 no notification had been provided of the intention by the prosecutor to rely upon the documents referred to in the correspondence. The defendant submits that the admission of such evidence would be prejudicial since no opportunity has been afforded to him to consider the documents. The defendant claims that such documents take him by surprise. For the prosecutor it is submitted that the defendant could not be taken by surprise since the defendant knows of the documents and has relied upon them in previous proceedings. 6 The Court has been referred to various authorities which relate generally to the conduct of criminal trials. Principally the prosecutor relies upon the documents in support of its contention that the road works and earth works, the subject of these proceedings, were undertaken ultimately for the construction of dwelling house and that the motive of the defendant in undertaking such works was to carry out that development for which consent was required. 7 It is apparent from the letter of 10 August 2004 that the width of the reference to documents was too wide. It provided no limit upon the category of documents except in saying that the documents were those "in relation or on its behalf in the Class 1 proceedings". Such a vague description of itself is unfair because it does not categorise or itemise the particular documents which are to be relied upon. However that defect was remedied in the subsequent letter dated 12 August 2004 in which the prosecutor's solicitor confined the category of documents as being those documents described as "material including plans, survey plans and experts reports filed by or on behalf of the Applicant in the Class 1 proceedings". Accordingly the nature of the documents was confined clearly to those documents prepared by or filed by the applicant in the class one proceedings. 8 The Court has a discretion to admit or reject such documents. In R v Ireland (1970) 126 CLR 321 at p 335 Barwick CJ said:- Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. 9 Such passage has been quoted subsequently: see Bunning v Cross (1978) 141 CLR 54. 10 In R v Swaffield (1998) 192 CLR 159 at p 202 their Honours Toohey, Gaudron and Gummow JJ at said:- In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations. 11 The notification of the prosecutor's intention to rely upon the documentation was clearly stated in the letter of 12 August 2004 which was three clear business days prior to the commencement of these hearings. A weekend also intervened. The class of documents sought to be relied upon has been clearly identified. Had the documents been records of some other party the Court would have considered that the defendant may have been placed in an unfair position because he would need to consider the true scope and nature of the documents concerned. However this is not the case in these proceedings. The documents sought to be relied upon are those of which the defendant can be assumed to have intimate knowledge since they were prepared for him or upon his instructions for the preparation of class one proceedings. 12 The Court being satisfied that the identification of the documents is clear. The defendant has had warning prior to the commencement of the hearing, which is now in its fourth day, that the documents will be relied upon by the prosecutor. Accordingly the Court will admit the documents. 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.