Cessnock City Council v Courtney (No. 2) [2004] NSWLEC 487

Land and Environment Court of New South Wales

CITATION : Cessnock City Council v Courtney (No. 2) [2004] NSWLEC 487 PROSECUTOR Cessnock City Council PARTIES : DEFENDANT Wayne Leslie Courtney FILE NUMBER(S) : 50013 of 2004 CORAM: Cowdroy J KEY ISSUES: Prosecution :- statement admitted for limited purpose of corroboration not for an unfavourable inference LEGISLATION CITED: Evidence Act 1995, s 89 CASES CITED: DATES OF HEARING: 17/08/2004; 18/08/2004; 19/08/2004 DATE OF JUDGMENT: 08/19/2004

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 19 August 2004 50013 of 2004 CESSNOCK CITY COUNCIL v WAYNE LESLIE COURTNEY

Judgment – No. 2 admissibility of evidence 1 Objection is taken to a passage in the affidavit of Mr Leathley contained in paragraph seven, wherein Mr Leathley is alleged to have said to Mr Courtney:- Yes, well that is great advice you have got, but you're going to have to prove it is for agriculture. Anyway, Wayne, you have shown Nadine plans of a big round house you want to build up here. 2 Those two sentences originally formed part of a larger paragraph, the residue of which has already been disallowed. The question is whether the first two paragraphs should also be disallowed under s 89 of the Evidence Act 1995 ("the Act"). 3 Upon an examination of s 89 of the Act, it is apparent that an inference unfavourable to a party cannot be drawn from evidence that the party or another person has failed or refused to answer a question or respond to a representation put to a party or the other person in the course of official questioning. Secondly, pursuant to s 89(2) of the Act, evidence of that kind is not admissible if it can be used only to draw such an inference. 4 The objection is taken on the ground that not only is s 89(1) and s 89(2) of the Act infringed, but also the fact that the statement is not corroborative. The prosecutor relies upon the evidence to show that it confirms the evidence of Ms Nadine Ash. 5 The Court is satisfied that the content of the two sentences, confined solely for that purpose, is admissible. It does not infringe s 89 of the Act. The Court will admit the two sentences.