Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97

Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97

Although the prosecutor's preparation and late service of substantial and complex new evidence was unsatisfactory, excluding the evidence would potentially be catastrophic to the prosecutions because absence of consent was central to all five charges, while the defendant's prejudice from further delay was not shown to be severe, irremediable or incapable of being addressed by appropriate orders. Fairness required that Benedict have a reasonable opportunity to consider and respond to the new material, so leave was granted but the hearing was vacated.

Jurisdiction
Australia
Judgment Date
10 June 2015
Procedural Posture
Class 5 Criminal Environmental Offence Proceedings / Interlocutory Application by the Prosecutor for Leave to Rely on Further Affidavits and Amend Div 2 a Notices on the First Day of a Listed Four Week Trial
Outcome
Leave granted to the prosecutor to rely on the further evidence and amend its Div 2A notices; the hearing was vacated; costs reserved.
Legal Topics
['environmental Offences' 'case Management' 'leave to Adduce Further Evidence' 'div 2 a Notices' 'adjournment or Vacation of Trial' 'prejudice to Defendant' 'prosecutorial Delay']
['environmental Law' 'criminal Procedure' 'planning Law'] ['environmental Offences' 'case Management' 'leave to Adduce Further Evidence' 'div 2 a Notices' 'adjournment or Vacation of Trial' 'prejudice to Defendant' 'prosecutorial Delay']

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Procedural Posture

Class 5 Criminal Environmental Offence Proceedings / Interlocutory Application by the Prosecutor for Leave to Rely on Further Affidavits and Amend Div 2 a Notices on the First Day of a Listed Four Week Trial

Legal Issues

  1. 1 ['Whether the prosecutor should be granted leave to file and rely upon 10 additional affidavits and amend its Div 2A notices under the Criminal Procedure Act 1986.' 'Whether the new evidence should be excluded under s 247N(1) of the Criminal Procedure Act 1986 because of delay, prejudice and case management considerations.' 'Whether, if leave were granted, the trial should proceed, be adjourned part-heard, or be vacated.']

Ratio Decidendi

Although the prosecutor's preparation and late service of substantial and complex new evidence was unsatisfactory, excluding the evidence would potentially be catastrophic to the prosecutions because absence of consent was central to all five charges, while the defendant's prejudice from further delay was not shown to be severe, irremediable or incapable of being addressed by appropriate orders. Fairness required that Benedict have a reasonable opportunity to consider and respond to the new material, so leave was granted but the hearing was vacated.

Court Disposition

Leave granted to the prosecutor to rely on the further evidence and amend its Div 2A notices; the hearing was vacated; costs reserved.

Orders

  • ['Leave is granted to the prosecutor to file the further affidavits and Div 2A notices referred to in its amended notice of motion.' "The question of costs thrown away occasioned by the vacation of the hearing date and the costs of the prosecutor's application for leave are reserved." 'The parties are to bring in...