Wingecarribee Shire Council v O'Shanassy (No 3) [2014] NSWLEC 48

Land and Environment Court New South Wales

Medium Neutral Citation: Wingecarribee Shire Council v O'Shanassy (No 3) [2014] NSWLEC 48 Hearing dates: 16 April 2014 Decision date: 17 April 2014 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [47]. Catchwords: CRIMINAL LAW: application to reopen case by prosecutor - applicable legal principles - whether very special or exceptional circumstances present - whether prosecutor could have foreseen the new evidence - application granted. Legislation Cited: Criminal Procedure Act 1986, s 247K, Div 2A

Environmental Planning and Assessment Act 1979, ss 76A, 125(1)

Wingecarribee Local Environmental Plan 2010, cl 7.3(2) Cases Cited: Morris v R [2010] NSWCCA 152

R v Chin ([1985] HCA 35; (1985) 157 CLR 671

Shaw v R [1952] HCA 18; (1952) 85 CLR 365

Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32

Wollongong City Council v Ensile Pty Limited; Wollongong City Coucil v Hogarth (No 7) [2008] NSWLEC 202 Category: Interlocutory applications Parties: Wingecarribee Shire Council (Prosecutor) Mr Paul O'Shanassy (Defendant) Representation: Mr T Howard SC (Prosecutor) Mr M Pesman SC (Defendant) Shaw Reynolds Bowen & Gerathy Pty Ltd (Prosecutor) Mr P O'Shanassy (in person) (Defendant) File Number(s): 51130 of 2012

EX TEMPORE Judgment

The Prosecutor Applies for Leave to Reopen Its Case to Adduce Further Evidence 1This is an application by the prosecutor, Wingecarribbee Shire Council ("the council"), for leave to reopen its case to adduce further evidence in a contested criminal matter in Class 5 of the Court's jurisdiction. 2The application comes in circumstances where the council has closed its case and the defendant, Mr Paul O'Shanassy, has all but done the same. That is to say, save for this potential evidence, Mr O'Shanassy is ready to formally close his case and final oral submissions can commence. 3Although finely balanced, in my opinion, the council ought to be given the leave it seeks given the very special circumstances in which the evidence has come into the possession of the council.