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. 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.