Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 2) [2008] NSWLEC 146

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 2) [2008] NSWLEC 146

Assuming any impropriety or contravention in entering the property without notice, the desirability of admitting the affidavit evidence outweighed the undesirability of admitting it. Any breach was at worst an unintended mistaken belief in lawful authority, the entry was open and with Mr Hogarth's knowledge, it was onto open areas of a large rural property rather than a home, the charge was serious, the evidence had potentially high probative value and importance, and lawful entry could have been achieved by notice or authority.

Jurisdiction
Australia
Judgment Date
15 April 2008
Procedural Posture
Prosecution / Objection to Admissibility of Affidavit Evidence on Voir Dire
Outcome
Evidence admitted; defendants' objection not upheld.
Legal Topics
['admissibility of Evidence' 'improperly or Illegally Obtained Evidence' 'entry Onto Property Without Notice' 'powers of Authorised Officers' 'section 138 Discretion']
['evidence' 'environmental Planning and Assessment' 'protection of the Environment Operations'] ['admissibility of Evidence' 'improperly or Illegally Obtained Evidence' 'entry Onto Property Without Notice' 'powers of Authorised Officers' 'section 138 Discretion']

Case Brief

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Procedural Posture

Prosecution / Objection to Admissibility of Affidavit Evidence on Voir Dire

Legal Issues

  1. 1 ['Whether paragraphs 14 to 21 of the affidavit of Jedda Saffron Lemmon sworn 25 January 2007 were obtained improperly or in contravention of an Australian law.' 'Whether Council officers had authority to enter the property without notice under the Protection of the Environment Operations Act 1997 or were required to give notice under the Environmental Planning and Assessment Act 1979.' 'If the evidence was improperly or illegally obtained, whether the desirability of admitting it outweighed the undesirability of admitting evidence obtained in that way under s 138(1) of the Evidence Act 1995.']

Ratio Decidendi

Assuming any impropriety or contravention in entering the property without notice, the desirability of admitting the affidavit evidence outweighed the undesirability of admitting it. Any breach was at worst an unintended mistaken belief in lawful authority, the entry was open and with Mr Hogarth's knowledge, it was onto open areas of a large rural property rather than a home, the charge was serious, the evidence had potentially high probative value and importance, and lawful entry could have been achieved by notice or authority.

Court Disposition

Evidence admitted; defendants' objection not upheld.

Orders

  • ['Paragraphs 14 to 21 of the affidavit of Jedda Saffron Lemmon sworn 25 January 2007 admitted under s 138(1) of the Evidence Act 1995.']