Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126

Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126

The photographs were not admitted because their probative value was limited, their provenance and date were unknown, the photographer was unidentified, there was no explanation why they could not have been tendered in the Local Court, and admitting them could delay finalisation of the appeal; therefore admission was not in the interests of justice for the conviction appeal. In any event, the photographs were inadmissible because they were not shown to be relevant to issues in the conviction or sentence appeals, constituted hearsay absent evidence from the photographer, and would have been excluded under s 135 of the Evidence Act 1995. The application to call the council officer failed...

Jurisdiction
Australia
Judgment Date
07 August 2015
Procedural Posture
Class 6 Appeal Against Conviction and Sentence in the Local Court / Procedural Ruling on Applications to Adduce Fresh Evidence and to Call a Person to Give Evidence
Outcome
Application to adduce fresh evidence refused; application to call evidence from a person refused.
Legal Topics
['class 6 Appeal' 'fresh Evidence' 'photographic Evidence' 'relevance' 'hearsay' 'development Consent' 'heritage Conservation Area' 'exempt Development' 'witness Attendance on Appeal']
['environmental Planning and Assessment' 'criminal Procedure' 'evidence' 'appeals'] ['class 6 Appeal' 'fresh Evidence' 'photographic Evidence' 'relevance' 'hearsay' 'development Consent' 'heritage Conservation Area' 'exempt Development' 'witness Attendance on Appeal']

Case Brief

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Procedural Posture

Class 6 Appeal Against Conviction and Sentence in the Local Court / Procedural Ruling on Applications to Adduce Fresh Evidence and to Call a Person to Give Evidence

Legal Issues

  1. 1 ['Whether Heatscape should be granted leave to adduce fresh photographic evidence in its appeal against conviction.' 'Whether the photographs were admissible in the appeal against conviction or sentence given their unknown provenance, unknown date and unidentified photographer.' 'Whether Heatscape should be permitted to call a council officer to give oral evidence identifying the building and window depicted in the photographs.' 'Whether the photographs were relevant to whether development consent was required, whether the works were exempt development, or the extent of environmental harm for sentence.']

Ratio Decidendi

The photographs were not admitted because their probative value was limited, their provenance and date were unknown, the photographer was unidentified, there was no explanation why they could not have been tendered in the Local Court, and admitting them could delay finalisation of the appeal; therefore admission was not in the interests of justice for the conviction appeal. In any event, the photographs were inadmissible because they were not shown to be relevant to issues in the conviction or sentence appeals, constituted hearsay absent evidence from the photographer, and would have been excluded under s 135 of the Evidence Act 1995. The application to call the council officer failed...

Court Disposition

Application to adduce fresh evidence refused; application to call evidence from a person refused.

Orders

  • ['The application to adduce fresh evidence not before the Local Court was dismissed.' 'The tender by Heatscape of the photographs was rejected.' 'The application to call the council officer was refused.' 'The costs of both failed applications were reserved.' 'The exhibits, being the photographs, were returned.']