Cessnock City Council v Courtney (No. 4) [2004] NSWLEC 489

Land and Environment Court of New South Wales

CITATION : Cessnock City Council v Courtney (No. 4) [2004] NSWLEC 489 PROSECUTOR Cessnock City Council PARTIES : DEFENDANT Wayne Leslie Courtney FILE NUMBER(S) : 50013 of 2004 CORAM: Cowdroy J KEY ISSUES: Prosecution :- applications for a no case to answer direction or a Prasad direction refused LEGISLATION CITED: Cessnock Local Environmental Plan Environment and Planning Assessment Act 1979 R v Crooks; R v Hudson (1944) 44 SR (NSW) 390; Doney v The Queen (1990) 171 CLR 207; CASES CITED: JMR (1991) 57 A Crim R 39; Narendra Prasad (1979) 2 A Crim R 45; R v R (1989) 18 NSWLR 74; Ross v The King (1922) 30 CLR 246 DATES OF HEARING: 17/08/2004; 18/08/2004; 19/08/2004; 20/08/2004; 24/08/2004 EX TEMPORE 08/24/2004 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 24 August 2004 50013 of 2004 CESSNOCK CITY COUNCIL v WAYNE LESLIE COURTNEY

Judgment – No. 4 no case to answer and Prasad direction 1 At the conclusion of the evidence for the prosecution, the defendant has made an application for a direction that there is no case for the defendant to answer. Such submission is made upon the basis of the principle considered by the Criminal Court of Appeal in JMR (1991) 57 A Crim R 39. Additionally the defendant submits that whilst there may be a scintilla of evidence to justify the charge against the defendant, the evidence is so unsatisfactory that it would be unsafe for the proceedings to continue and that the Court would be justified in finding that there is no charge to be answered. 2 Alternately, the defendant submits that the evidence which may exist against the defendant is so unsatisfactory that the charge should be dismissed. For this second ground, the defendant relies on the principle contained in Narendra Prasad (1979) 2 A Crim R 45. 3 The prosecution opposes both applications and submits that the second challenge made under the no case challenge is in substance no different from a Prasad challenge. 4 In order to consider the merits of each claim it is essential to have regard to the prosecution evidence. The defendant submits that the charge makes it clear that the defendant allegedly carried out development namely the levelling of Mount Molly Morgan and the construction of a road to the Mountain top for the purpose of the construction of a dwelling house. The defendant acknowledges that such purpose would require development approval due to the provisions of the Environment and Planning Assessment Act 1979 ("the E&PA Act") if such purpose be established by the evidence. However, the defendant submits that the evidence does not establish such purpose. The defendant submits that development for agricultural purposes does not require consent and that there is evidence that the proposed development undertaking by the defendant was for agricultural purposes. 5 The defendant refers to the affidavit of Mr Lyndon Stanley Everett sworn on 6 February 2004 and says that no reason is advanced in Mr Everett's evidence, either written or oral, to support the charge. At the highest Mr Everett gave evidence that he was undertaking work for the defendant to "construct a building pad". The nature of the building was not identified and a building pad is not to be equated with construction of a dwelling. The defendant submits that the building pad is consistent with forming an area for the growing of grapes, barbeque and similar structures. He says that a jury could not be satisfied that such evidence is consistent with that of the house. The defendant maintains that no clear statement was made by the defendant to Mr Everett to state the purpose for with the pad was required and the evidence is that Mr Everett was instructed to replace topsoil is consistent with an agricultural use. 6 The defendant refers to the evidence of Mrs Nadine Louise Ash and, in particular, her affidavit of 30 January 2004 wherein she deposed to the following conversation: "It looks like you are building a building platform for your house to me". The defendant is stated to reply: "I can do this for agriculture and I can plant what I like". No admission was made by the defendant that the pad was required for the construction of a house. 7 The defendant refers to the evidence of Mr Rodney James Sandell contained in his affidavit of 6 May 2004 and particularly to the conversation in which the defendant referred to the construction of a house. Mr Sandell in his affidavit of 17 August 2004 deposed the following conversation with the defendant in which the defendant was said to comment: "my wife wants it sited up here". During cross-examination Mr Sandell confirmed that the defendant said that he wished to plant vines on the top of the mountain. 8 The defendant also refers the affidavit of Mr Stephen Forde Leathley sworn on 20 July 2004. The defendant admits that no mens rea is gleaned from the affidavit and indeed Annexure "C" to Mr Leathley's affidavit which contains notes of the interview with the defendant is distorted and does not corresponded to hand written notes which he made at the time of the interview. The defendant submits that Annexure "C" was contrived to, in effect, give a false impression and that it would not be safe for a jury to rely upon such unreliable evidence. 9 As an additional element of the same challenge the defendant submits that whilst the evidence might amount to scintilla evidence, in the absence of any admission by the defendant, the remaining evidence is insufficient to found the charge. The alleged distortion of Mr. Leathley's interview records and the fact that the evidence of the witnesses Ms Ash, Mr Sandell and Mr Everrett did not add anything further to the allegations warrant the proceedings be dismissed. 10 In respect of the Prasad challenge, the defendant submits that the evidence is unsafe or unsatisfactory and the question arises whether a jury could be instructed properly to convict. The defendant submits that the defendant does not have to prove his innocence but rather the prosecution must prove guilt and that mere suspicion does not establish the guilt of the defendant as charged. 11 The defendant submits that the prosecution's evidence that at some subsequent date to the charge he made an application to build a house upon the level platform or building pad does not lead to the conclusion that such proposal was his intent at the date of the charge.