Citation: Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186
Court: Court of Criminal Appeal (NSW)
Date: 24 August 2016
Judges: Price J at [1]; Garling J at [129]; N Adams J at [155]
Background
The appellants, a property company and its sole director, owned a disused late Victorian-era commercial building in Annandale. A development consent had been granted for redevelopment of the site, but that consent required retention of the majority of the front southern facade facing Parramatta Road. During demolition works carried out in late 2011, the facade was demolished.
The appellants were prosecuted by the council in the Land and Environment Court, sitting in its summary jurisdiction, for carrying out development in contravention of the development consent, contrary to the Environmental Planning and Assessment Act 1979 (NSW). A third co-defendant, the project manager, was also charged but played no active part at trial as it was in liquidation. After a 15-day hearing, the trial judge convicted all three defendants.
On appeal, the appellants challenged their convictions on two grounds: first, that the prosecution had breached its duty to call all material witnesses by failing to call the project manager's general manager, a central figure in the demolition arrangements; and second, that the trial judge had wrongly construed the development consent as prohibiting the demolition that occurred.
Legal Issues
- Whether the prosecutor's failure to call a material witness (the project manager's general manager) amounted to a miscarriage of justice, given his involvement in conveying instructions to demolition subcontractors.
- Whether the development consent, on its proper construction, authorised the demolition of the front southern facade.
- What standard applies when assessing whether a prosecutor's decision not to call a witness constitutes a miscarriage of justice.
- Whether the appellants demonstrated that the uncalled witness would likely have given evidence consistent with their case.
Decision
Ground 1: Failure to call a material witness
The Court acknowledged that the uncalled witness was undeniably a material figure. He had initiated the contractual negotiations with the demolition subcontractor, was present on site throughout, and was the conduit through which the appellants' instructions were communicated. The prosecutor had declined to call him on the basis that he would be an unreliable witness, citing an allegation that he had once attempted to fabricate evidence. However, the prosecutor had never spoken to the witness, never obtained a statement from him, and had no proof of his likely evidence. The Court found this fell well short of the standard required before a prosecutor may properly decline to call a witness on reliability grounds.
Despite identifying a failure by the prosecutor, the Court applied the criminal appeal test under the Criminal Appeal Act 1912 (NSW) and asked whether any substantial miscarriage of justice had actually occurred. The appellants argued only that the witness "might" have given different evidence to that of John Loukis, but they could point to no concrete basis for concluding he would have supported their case. The Court found that, in light of all the evidence at trial (including admissions made by the director, the terms of the draft demolition contract, and the fact that the director had twice previously sought and failed to obtain council approval to demolish the facade), the appellants had not discharged their onus of establishing that the uncalled witness would have given evidence consistent with their position. Accordingly, no substantial miscarriage of justice was established on this ground.
Ground 2: Construction of the development consent
The appellants argued that the development consent, properly construed, authorised the demolition of the facade that had in fact occurred. The Court rejected this argument. The trial judge had found that the original consent, and all subsequent modifications under section 96 of the EPA Act, consistently required retention of the majority of the front southern facade. The Court of Criminal Appeal upheld that construction and found no error in the trial judge's reasoning on this point.
Orders Made
- Both appeals dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that a prosecutor's decision to decline to call a witness on grounds of unreliability must be grounded in identifiable circumstances that clearly establish that unreliability. A bare, untested allegation of past dishonesty, unsupported by any statement or interview with the witness, does not satisfy that standard.
- Where a prosecutor's failure to call a material witness is established, an appellant must still demonstrate that the omission caused a substantial miscarriage of justice. Showing only that the witness "might" have given different evidence is insufficient.
- The distinction between what a witness was "likely" to say and what a witness "might theoretically" say is critical. An appeal on this ground requires more than speculation about alternative testimony.
- Under the EPA Act, carrying out development that departs from a development consent is an offence. Where a consent consistently requires retention of a heritage element across its original grant and subsequent modifications, demolition of that element falls outside the consent's authorisation.
- In dismissing the appeals, the Court applied the curative provision in the Criminal Appeal Act 1912 (NSW), which permits an appellate court to dismiss an appeal despite an error at trial where no substantial miscarriage of justice has actually occurred.
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
- Richardson v R (1974) 131 CLR 116; [1974] HCA 19
- Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42