Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146

Port Macquarie-Hastings Council v Waite [2019] NSWLEC 146

The recorded interview was a required questioning of Mr Waite by an investigation officer under s 119K of the Environment Planning and Assessment Act 1979. Although Mr Waite initially suggested a meeting, the meeting became a formal recorded interview conducted in the context of the Council's Div 1C investigation and after an unlawful demand that he cease operating the caravan park. Because Mr Waite was a natural person giving answers in compliance with a requirement under Div 1C, the Council was required to give the warning in s 119S(3)(b) that he could object to answering on the ground that an answer might incriminate him. The Council did not give that warning. By operation of s...

Jurisdiction
Australia
Judgment Date
09 October 2019
Procedural Posture
Class 5 Criminal Proceedings; Voir Dire as to Admissibility of a Record of Interview / Preliminary Evidentiary Ruling During Hearing
Outcome
Accused's record of interview inadmissible.
Legal Topics
['admissibility of Record of Interview' 'privilege Against Self Incrimination' 'investigative Powers of Council Officers' 'exclusion of Improperly or Illegally Obtained Evidence' 'admissions in Criminal Proceedings' 'development Without Consent and Prohibited Development']
['criminal Law' 'evidence' 'planning and Environment Law' 'local Government Law'] ['admissibility of Record of Interview' 'privilege Against Self Incrimination' 'investigative Powers of Council Officers' 'exclusion of Improperly or Illegally Obtained Evidence' 'admissions in Criminal Proceedings' 'development Without Consent and Prohibited Development']

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings; Voir Dire as to Admissibility of a Record of Interview / Preliminary Evidentiary Ruling During Hearing

Legal Issues

  1. 1 ['Whether Mr Waite was required under s 119K of the Environment Planning and Assessment Act 1979 to attend and answer questions in the recorded interview.' 'Whether the Council was required by s 119S(3)(b) of the Environment Planning and Assessment Act 1979 to warn Mr Waite that he could object to answering questions on the ground of self-incrimination.' 'Whether the absence of that warning rendered the record of interview inadmissible.' 'If the interview was not required under s 119K, whether the record of interview should be excluded under ss 138, 90 or 85 of the Evidence Act 1995.']

Ratio Decidendi

The recorded interview was a required questioning of Mr Waite by an investigation officer under s 119K of the Environment Planning and Assessment Act 1979. Although Mr Waite initially suggested a meeting, the meeting became a formal recorded interview conducted in the context of the Council's Div 1C investigation and after an unlawful demand that he cease operating the caravan park. Because Mr Waite was a natural person giving answers in compliance with a requirement under Div 1C, the Council was required to give the warning in s 119S(3)(b) that he could object to answering on the ground that an answer might incriminate him. The Council did not give that warning. By operation of s...

Court Disposition

Accused's record of interview inadmissible.

Orders

  • ["Mr Waite's record of interview is inadmissible." "Mr Waite's objection to the tender of the record of interview by the Council is upheld." 'The exhibits on the voir dire are to be returned.']