Citation: Livbuild Pty Ltd v Willoughby City Council [2017] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 18 October 2017
Judge(s): Ward CJ in Eq, Price J, Beech-Jones J
Background
The appellant, a building contractor, was charged by a local council with two offences under the Environmental Planning and Assessment Act 1979 (EPAA) for carrying out development on land without the required consent. The work had taken place on a Northbridge property and ceased in March 2012. The council filed the charges in September 2014, more than two years after that date.
The contractor pleaded guilty in November 2014 and was convicted and fined a total of $67,000 by the Land and Environment Court in March 2015. It was not until late 2016 that the contractor became aware of a separate Land and Environment Court decision involving the same council and the same property, in which the court had found that the council's inspector who observed the works was not an "authorised officer" within the meaning of the relevant division of the EPAA. That status was critical because the EPAA allowed a prosecution to be commenced within two years of when evidence of an offence first came to the attention of an authorised officer, extending the ordinary two-year limitation period from when the offence was committed.
After the contractor's solicitor corresponded with the council, the council confirmed in June 2017 that its inspector was not, in fact, an authorised officer under the relevant division of the EPAA at the time. The council therefore conceded that both prosecutions had been commenced outside the applicable statutory time limit, and it agreed the convictions should be set aside.
Legal Issues
- Whether prosecutions filed beyond the statutory limitation period under s 127(5) of the EPAA could be maintained, given that the extended time period under s 127(5A) was unavailable because the council's inspector was not an "authorised officer" within the meaning of Division 2C of Part 6 of the EPAA.
- Whether a conviction entered on a guilty plea can be set aside on appeal where the underlying prosecution was commenced in breach of a statutory time bar.
- What orders should follow if the convictions are set aside.
Decision
The Court of Criminal Appeal held that the council's concession was correctly made. The ordinary two-year limitation period ran from when the offence was committed (here, no later than March 2012), and the proceedings filed in September 2014 were out of time. The extended limitation period under former s 127(5A) required evidence to have come to the attention of "an authorised officer within the meaning of Division 2C of Part 6." Because the council accepted that its inspector did not hold that status, s 127(5A) could not be engaged.
On the question of whether a guilty plea prevents a conviction from being set aside, the court confirmed that it does not. Drawing on interstate authority, including the Victorian Court of Appeal's analysis in R v Tait, the court reaffirmed the principle that where a prosecution was commenced in breach of a statutory time bar, an accused who pleaded guilty "could not in law have been convicted of the offence charged." Accordingly, the convictions constituted a miscarriage of justice.
The Court of Criminal Appeal also noted that this principle had recently been treated as settled in Faehringer v R [2017] NSWCCA 248, in which an appeal under s 5(1) of the Criminal Appeal Act succeeded on the same basis. The court saw no reason to depart from that approach when dealing with appeals under ss 5AA and 5AB of the same Act.
The court drew a distinction between a direct appeal of this kind and a collateral challenge to a conviction on limitation grounds. A collateral challenge typically does not attract jurisdictional error, but that consideration was not relevant here where the matter came before the court as a direct appeal.
Orders Made
- The orders made by the Land and Environment Court on 9 March 2015 in proceedings number 50764 and 50767 of 2014 were set aside.
- Acquittals were entered in favour of the appellant on both charges.
- Both proceedings were dismissed.
Key Takeaways
- A conviction entered on a guilty plea will be set aside on appeal where the prosecution that produced it was commenced in breach of a statutory limitation period, because on the admitted facts the accused could not lawfully have been convicted.
- The Court of Criminal Appeal confirmed that this principle applies to appeals brought under ss 5AA and 5AB of the Criminal Appeal Act 1912, not only to appeals under s 5(1).
- Under the version of s 127(5A) of the EPAA in force at the relevant time, the extended two-year limitation period running from when evidence first came to an officer's attention was only available if that officer was an "authorised officer within the meaning of Division 2C of Part 6." An officer authorised to perform other council functions did not satisfy this requirement.
- Where the ordinary two-year period in s 127(5) applies, time runs from when the offence was allegedly committed, not from when it was discovered.
- A direct appeal on limitation grounds is analytically distinct from a collateral challenge to a conviction: unlike collateral challenges (which generally do not engage jurisdictional error), a direct appeal can result in the conviction being set aside and an acquittal entered.
Legislation and Cases Referenced
Legislation
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1), 122I(1), 125(1), 127
- Environmental Planning and Assessment Amendment Act 2014 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 5AB, 10(1)(b)
Cases
- Faehringer v R [2017] NSWCCA 248
- Willoughby City Council v Screnci [2015] NSWLEC 192
- Willoughby City Council v Livbuild Pty Ltd [2015] NSWLEC 34
- R v Tait [1995] VSC 154; [1996] 1 VR 662
- R v Cooling [1990] 1 Qd R 376
- R v Forde [1923] 2 KB 400
- Meissner v The Queen (1994-1995) 184 CLR 132; [1995] HCA 41
- Parisienne Basket Shoes Proprietary Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7
- Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545; [1938] HCA 37