Citation: Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186
Court: Court of Criminal Appeal
Date: 24 August 2016
Judges: Price J at [1]; Garling J at [129]; N Adams J at [155]
Background
The appellants were a property company (the appellant company) and its sole director and shareholder (the appellant director). They owned land in Annandale on which a late Victorian-era building stood. A development consent, and subsequent modifications, required retention of the majority of the building's front southern façade as part of an approved redevelopment.
A demolition subcontractor was engaged, and in October and November 2011 the front southern façade was demolished. The respondent council prosecuted the appellants in the Land and Environment Court for carrying out development in contravention of the Environmental Planning and Assessment Act 1979 (NSW). After a 15-day trial, both appellants were convicted.
The trial judge found that the appellant director was the guiding mind behind the decision to demolish the façade, having personally negotiated and agreed to demolition with the subcontractor at a coffee shop meeting in early October 2011, several weeks before the works commenced. The appellants appealed to the Court of Criminal Appeal on two grounds.
Legal Issues
- Whether the prosecutor's failure to call the project manager (Foong) as a witness at trial amounted to a breach of prosecutorial duty and caused a miscarriage of justice (Ground 1)
- Whether the development consent, read together with the construction certificate and annexed plans (including notes 7 and 8 of the Basement Demolition Plan), authorised demolition of the front southern façade (Ground 2)
Decision
Ground 1: Failure to call a material witness
Price J and N Adams J held, and Garling J agreed, that Foong was a material witness who ought to have been called. He was present at virtually every significant stage of the events, including the initial negotiations, the site meetings, the coffee shop meeting, and the execution of the demolition contract (at [77], [130]). Price J and N Adams J characterised the prosecutor's decision not to call Foong as an error of judgment (at [82], [159]). Garling J went further, concluding the conduct amounted to a deliberate, tactical decision rather than an error of judgment (at [137]).
Despite reaching different conclusions on characterisation, the majority (Price J and N Adams J, Garling J dissenting) held that the failure to call Foong did not result in a miscarriage of justice. The appellants bore the evidentiary onus of establishing a miscarriage of justice, and they produced no material indicating what Foong would in fact have been likely to say (at [90]). Neither the prosecution nor the appellants had obtained a statement or proof of evidence from Foong. The High Court's reasoning in Hellicar was applied: the critical distinction is between the testimony a witness was in fact likely to give and what the witness might theoretically give (at [89]). What Foong might have said remained speculation (at [90]).
The majority further found that, given the strength of independent evidence against the appellants, including the appellant director's own admissions in correspondence and in interviews with the council's compliance officer, his two prior failed attempts to obtain council approval to remove the façade, and the terms of the draft demolition contract sent by Foong himself, there was no basis to suppose Foong would have given evidence consistent with the appellants' case (at [91]-[94], [165]-[166]). No disadvantage to the appellants was demonstrated (at [95]).
Garling J dissented on this ground, concluding that the trial judge's assessment of John Loukis as an impressive witness was made without any competing account of the critical meetings, and that it was not possible to say that, had Foong been called, no other conclusion would have been open. Garling J concluded a miscarriage of justice occurred and would have ordered a new trial (at [151]-[154]).
Ground 2: Construction of the development consent
The appellants argued that notes 7 and 8 on the Basement Demolition Plan, which formed part of the construction certificate annexed to the development consent, permitted demolition of the front southern façade on the structural engineer's direction. The Court of Criminal Appeal unanimously rejected this argument.
Reading notes 7 and 8 in the context of the development consent and construction certificate as a whole, the Court accepted that the notes permitted only the replacement of structural elements such as the ground floor columns between the shop bays, and did not authorise demolition of the front southern façade (at [123]-[124]). The associated Demolition Management Plan made no reference to demolishing the façade for safety reasons and expressly contemplated its retention (at [114]-[116]). The companion plan CSMP4 similarly showed the façade walls were not among those marked for removal (at [112]-[113]). No evidence supported the appellants' contention that the "structural elements" referred to in the notes included the front wall itself (at [119]).
Orders Made
- Appeals dismissed
Key Takeaways
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A prosecutor's decision not to call a material witness will constitute an error of judgment where it is based on no more than intuition, suspicion, or an untested three-year-old allegation of unreliability, particularly where the prosecutor never conferred with the witness or obtained a statement from him (at [78]-[79], [82], [134]-[135]).
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Even where a prosecutorial error of judgment is established, the appellants bear the evidentiary onus of demonstrating that a miscarriage of justice actually occurred. Following Hellicar, the relevant question is whether the uncalled witness was in fact likely to give testimony favourable to the accused, not whether he or she might theoretically have done so (at [89]-[90]).
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In dismissing Ground 1, the Court of Criminal Appeal applied a fact-specific analysis: where independent evidence, including the accused's own admissions and contemporaneous documentary records, strongly corroborated the prosecution case, and no proof of the absent witness's potential evidence existed, the appellants could not discharge their onus of establishing a miscarriage of justice (at [91]-[95]).
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Regulatory authorities prosecuting summary criminal offences are subject to the same prosecutorial duties regarding the calling of material witnesses as Crown prosecutors; those duties are not confined to the Director of Public Prosecutions (at [66], [157]).
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Construction certificates and their annexed plans form part of a development consent under s 80(12) of the Environmental Planning and Assessment Act 1979, but notes or annotations in those plans must be construed in the context of the consent and construction certificate as a whole, and will not be taken to permit demolition of a retained heritage element unless the plans clearly and unambiguously authorise it (at [103], [118], [122]-[124]).
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB, 6
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 80, 96, 125
- Evidence Act 1995 (NSW), s 38
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 89, 90
Cases
- Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
- Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404
- Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399
- Leichhardt Council v Geitonia Pty Limited and Gertos [2015] NSWLEC 25
- Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51
- R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- R v Armstrong [1998] 4 VR 533
- R v Jensen (2009) 23 VR 591; [2009] VSCA 266
- R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
- R v O’Brien (1996) 66 SASR 396
- R v Shaw (1991) 57 A Crim R 425
- R v Wilson [1997] QCA 244
- Richardson v R (1974) 131 CLR 116; [1974] HCA 19
- Subramaniam v R (2004) 79 ALJR 116; [2004] HCA 51
- Tien Tran v Magistrates’ Court of Victoria [1998] VSC 337
- Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42