Manly Council v Leech (No 2) [2015] NSWLEC 204

Manly Council v Leech (No 2) [2015] NSWLEC 204

Mr Leech did not establish any exception in s 257D(1). The prosecution had evidence capable of supporting the direction case, including alleged admissions and the 29 January 2013 diary entry, and the alternative contractual control case was an arguable point of law. The prosecutor's refusal to withdraw the summons after defence representations was not improper. Although Mr Little was not interviewed until shortly before trial and was not called by the prosecution, the prosecutor's determination that he was incapable of giving relevant and truthful evidence was not shown to be unreasonable, and the investigation was not shown to have been conducted unreasonably or improperly or to involve...

Jurisdiction
Australia
Judgment Date
23 December 2015
Procedural Posture
Class 5 Criminal Proceedings Costs Application / Defendant's Notice of Motion for Costs Following Acquittal on an Unlawful Development Charge
Outcome
The defendant's notice of motion for costs was dismissed.
Legal Topics
['professional Costs Against Prosecutor Acting in a Public Capacity' 'proceedings Initiated Without Reasonable Cause' 'improper Conduct of Proceedings' 'unreasonable or Improper Investigation' 'failure to Investigate Relevant Matters' "prosecutor's Obligation to Call Available Witnesses"]
['costs' 'criminal Procedure' 'planning and Environment'] ['professional Costs Against Prosecutor Acting in a Public Capacity' 'proceedings Initiated Without Reasonable Cause' 'improper Conduct of Proceedings' 'unreasonable or Improper Investigation' 'failure to Investigate Relevant Matters' "prosecutor's Obligation to Call Available Witnesses"]

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings Costs Application / Defendant's Notice of Motion for Costs Following Acquittal on an Unlawful Development Charge

Legal Issues

  1. 1 ['Whether the unlawful development proceedings against Mr Leech were initiated without reasonable cause under s 257D(1)(b) of the Criminal Procedure Act 1986.' "Whether the prosecutor conducted the proceedings in an improper manner by not withdrawing the summons after receiving representations from Mr Leech's solicitors." "Whether the prosecutor's alternative vicarious liability case based on control over the builder was bound to fail." 'Whether the investigation was conducted in an unreasonable or improper manner because the prosecutor did not interview Mr Little until shortly before trial.' 'Whether the prosecutor unreasonably failed to investigate relevant matters suggesting Mr Leech might not be guilty after interviewing Mr Little.']

Ratio Decidendi

Mr Leech did not establish any exception in s 257D(1). The prosecution had evidence capable of supporting the direction case, including alleged admissions and the 29 January 2013 diary entry, and the alternative contractual control case was an arguable point of law. The prosecutor's refusal to withdraw the summons after defence representations was not improper. Although Mr Little was not interviewed until shortly before trial and was not called by the prosecution, the prosecutor's determination that he was incapable of giving relevant and truthful evidence was not shown to be unreasonable, and the investigation was not shown to have been conducted unreasonably or improperly or to involve...

Court Disposition

The defendant's notice of motion for costs was dismissed.

Orders

  • ["The defendant's notice of motion for costs filed on 1 October 2015 is dismissed." 'The exhibits may be returned.']