Citation: SAAD v Canterbury City Council [2002] NSWCCA 62
Court: Court of Criminal Appeal, New South Wales
Date: 18 April 2002
Judge(s): Spigelman CJ, Grove J, Barr J (Barr J delivering the principal judgment, with which Spigelman CJ and Grove J agreed)
Background
The appellant was a co-director of a building company that obtained development consent from Canterbury City Council in August 1999 to demolish two dwellings and construct town houses at Punchbowl. The consent included conditions requiring the retention of certain trees on the south-eastern boundary of the site, protected by a bond and physical barriers during construction.
On or about 23 December 1999, one of those protected paperbarks was removed and the other was severely lopped, in breach of the consent conditions. Council officers investigated, and the Council's development panel subsequently refused a modification application and resolved to take legal action.
The Council's landscape architect telephoned the appellant in April 2000 to clarify the date on which the trees had been interfered with. In that conversation, the appellant confirmed he had been on site on 23 December 1999 and gave an account of the events. That conversation became the critical piece of evidence establishing that the offending occurred within the six-month limitation period for prosecution. The appellant was convicted in the Land and Environment Court and appealed to the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge erred in admitting evidence of the telephone conversation containing the appellant's admission, having regard to sections 85, 90, 137 and 138 of the Evidence Act 1995
- Whether the telephone call constituted "official questioning" under section 85(1) of the Evidence Act 1995, triggering the reliability inquiry under section 85(2)
- Whether the trial judge failed to exercise the discretions and exclusionary rules arising under sections 90, 137 and 138 of the Evidence Act 1995
- Whether the evidence was ambiguous as to which trees the appellant was referring to in the conversation, and whether that ambiguity created a reasonable doubt
Decision
On the first ground (admissibility of the admission): The Court examined whether the telephone call amounted to "official questioning" under section 85 of the Evidence Act 1995, which applies to admissions made by a defendant in the course of official questioning or as a result of inducement by a person capable of influencing the prosecution. The Court found that any error in the trial judge's approach to section 85 did not result in a substantial miscarriage of justice, and the challenge to admissibility on this basis failed.
On the related arguments under sections 90, 137 and 138, the Court was not persuaded that the trial judge had erred in declining to exclude the evidence. The conversation was a relatively straightforward telephone call, the appellant had not been subjected to oppressive questioning, and there was no sufficient basis to exclude the admission on discretionary or mandatory grounds.
On the second ground (ambiguity of the admission and sufficiency of evidence): The appellant argued that his statement in the telephone call might have referred to trees that were lawfully authorised for removal, rather than the two trees protected by condition 40. The Court rejected this argument. It reviewed the extensive background of communications between the parties, all of which had concerned trees three and four (the protected trees). The trial judge was entitled to conclude there was no reasonable possibility the appellant had been referring to any other trees.
A further ambiguity argument was put on the basis that removal and lopping may have occurred on different dates. The Court dismissed this as well, noting that the trial judge had expressly rejected the appellant's own evidence as "confusing, evasive and generally unreliable and unconvincing." That credibility finding foreclosed the argument.
Orders Made
• The appeal is dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that a telephone call by a council officer to a defendant for the purpose of clarifying the date of an alleged offence may engage section 85 of the Evidence Act 1995, though any error in the analysis under that section must result in a substantial miscarriage of justice before it will ground a successful appeal.
- Where a trial judge makes an explicit and reasoned finding that a defendant's evidence was unreliable and evasive, an appellate argument premised on that same evidence will not ordinarily succeed.
- Contextual evidence about the history of communications between the parties can establish, to the requisite standard, what the subject matter of an ambiguous admission actually was, even where the statement does not identify trees or other objects with precision.
- In dismissing both grounds of appeal, the Court reaffirmed that an admission in a telephone conversation, absent coercion or inducement, is capable of being reliable and admissible evidence in a prosecution for breach of development consent conditions.
- Under the Environmental Planning and Assessment Act 1979, the six-month limitation period for prosecuting development consent breaches is a live issue, and a single contemporaneous admission by a defendant may constitute the sole evidence establishing that the offence occurred within time.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 85, 90, 137, 138
- Environmental Planning and Assessment Act 1979 (NSW), s 127
Cases:
- Soulemezis v Dudley Holdings (1987) 10 NSWLR 247
- Colonial Life Insurance v Donnelly (1998) 82 FCR 418