Land and Environment Court New South Wales Medium Neutral Citation: Holroyd City Council v Khoury [2011] NSWLEC 157 Hearing dates: 6 September 2011 Decision date: 06 September 2011 Jurisdiction: Class 5 Before: Pain J Decision: Application to hear and determine criminal matter in the absence of the Defendant under s 250(a) of the Criminal Procedure Act 1986 granted. Catchwords: PROSECUTION - Application to proceed in the absence of the Defendant under s 250(a) of the Criminal Procedure Act 1986 - whether sufficient notice to, and service of, the Defendant Legislation Cited: Criminal Procedure Act 1986 s 250(a) Environmental Planning and Assessment Act s 121B Category: Procedural and other rulings Parties: Holroyd City Council (Prosecutor) Robert Khoury (Defendant) Representation: Mr J Johnson (Prosecutor) No appearance (Defendant) HWL Ebsworth Lawyers (Prosecutor) File Number(s): 50397 of 2011 EX TEMPORE Judgment 1Before me is a Class 5 matter this morning . The Defendant has not appeared before the Court, having been called outside the Court. The Prosecutor is making an application that the matter proceed ex parte under s 250(a) of the Criminal Procedure Act 1986 , which states that: If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person: (a) proceed to hear and determine the matter in the absence of the accused person 2I note that an order has been made for the hearing to be adjourned until today as provided for in the section. The Court may, if satisfied that the order was served on the accused person, proceed to hear and determine this matter in the absence of the accused person. 3I have before me evidence concerning the service of the original summons and orders to appear before this Court in the affidavit of Mr Hill sworn on 1 July 2011. Mr Hill attests that he attended, personally, at the premises at South Wentworthville. These premises are the subject of the order under s 121B of the Environmental Planning and Assessment Act 1979 the subject of these proceedings. He attests to the service of a letter, the order to appear issued by the Court, the summons and four affidavits to be relied on by the Prosecutor in this matter. Service of these documents is confirmed by this evidence. 4The order to appear identified that the Defendant was required to appear before the Court on the first return date, which was 1 July 2011. 5I have also been provided with two affidavits of Mr Brown, solicitor. The first, sworn 22 July 2011, identifies a number of occasions on which he has sent letters to Mr Khoury, the Defendant, at a post office box in Merrylands New South Wales in relation to the subsequent adjournments of this matter to 22 July 2011 and to 5 August 2011. The Defendant has failed to appear on all occasions the matter was before the Court. Mr Brown has served three further affidavits to be relied on by the Prosecutor in these proceedings which is also referred to in his affidavit. 6A further affidavit of Mr Brown sworn today, 6 September 2011, provides evidence of notice to Mr Khoury of the callover on 5 August 2011 before the Court and attests to various telephone conversations with somebody purporting to be Mr Khoury. It also identifies the telephone number on which Mr Brown sought to reach him on numerous occasions which is known to him in the context of Class 4 proceedings as being Mr Khoury's telephone number. 7I have been further advised, through an affidavit of Mr Walker sworn today, 6 September 2011, that Mr Walker went to the premises at South Wentworthville yesterday and left a letter dated 5 September 2011 from the Council's solicitor advising of the hearing of the matter today at the door and in the letter box. 8I have also been provided with an affidavit of Mr Walker, sworn 20 April 2011, which confirms that the address in South Wentworthville is the home of Mr Khoury. In further support of the application I was provided with an affidavit of Mr Staley, sworn 14 July 2011. Mr Staley is the manager of financial services at the Council. Through his affidavit the Council successfully establishes the usual mailing address for correspondence given by Mr Khoury is a post office box in Merrylands New South Wales, which is the address to which the correspondence referred to in Mr Brown's affidavit has been sent. 9In light of the material before me I consider there has been more than sufficient notice to and adequate service of Mr Khoury of all relevant documents. These would have alerted him of the need to attend today for the Court hearing. 10I consider I should proceed in his absence. I grant the Council's application made under s 250(a) of the Criminal Procedure Act 1986 that the matter proceed to hearing and determination in the absence of the accused person . 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. Decision last updated: 22 December 2011