Wingecarribee Shire Council v O'Shanassy (No 3) [2014] NSWLEC 48

Wingecarribee Shire Council v O'Shanassy (No 3) [2014] NSWLEC 48

Leave was granted because the late and totally unforeseen production of Mr Allman's photographs, which had not been produced pursuant to subpoena in 2013 and whose existence the council could not reasonably have known, constituted very special or exceptional circumstances. Although the council ought to have foreseen the need to rebut the defendant's claim that the ridgeline had been excavated before the charge period, it could not reasonably have foreseen the need to tender photographs it did not know existed.

Jurisdiction
Australia
Judgment Date
17 April 2014
Procedural Posture
Contested Criminal Matter in Class 5 of the Land and Environment Court's Jurisdiction Concerning Alleged Development Without Consent / Interlocutory Application by the Prosecutor for Leave to Reopen Its Case to Adduce Further Evidence After the Prosecutor Had Closed Its Case and the Defendant Was Nearly Ready to Close
Outcome
Application granted
Legal Topics
['application by Prosecutor to Reopen Case' 'very Special or Exceptional Circumstances' 'foreseeability of Further Evidence' 'development Without Consent' 'earthworks and Excavation']
['criminal Law' 'environmental Planning Law' 'evidence and Procedure'] ['application by Prosecutor to Reopen Case' 'very Special or Exceptional Circumstances' 'foreseeability of Further Evidence' 'development Without Consent' 'earthworks and Excavation']

Case Brief

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Procedural Posture

Contested Criminal Matter in Class 5 of the Land and Environment Court's Jurisdiction Concerning Alleged Development Without Consent / Interlocutory Application by the Prosecutor for Leave to Reopen Its Case to Adduce Further Evidence After the Prosecutor Had Closed Its Case and the Defendant Was Nearly Ready to Close

Legal Issues

  1. 1 ['Whether the prosecutor should be granted leave to reopen its case after closing to adduce further evidence' 'Whether very special or exceptional circumstances existed' 'Whether the prosecutor ought reasonably to have foreseen the need to call the new evidence' 'Whether late production of photographs by a subpoenaed witness justified reopening']

Ratio Decidendi

Leave was granted because the late and totally unforeseen production of Mr Allman's photographs, which had not been produced pursuant to subpoena in 2013 and whose existence the council could not reasonably have known, constituted very special or exceptional circumstances. Although the council ought to have foreseen the need to rebut the defendant's claim that the ridgeline had been excavated before the charge period, it could not reasonably have foreseen the need to tender photographs it did not know existed.

Court Disposition

Application granted

Orders

  • ['The Court grants leave to the council to reopen its case to read the affidavit of Mr Jim Allman affirmed 14 April 2014.' 'Upon publication of this judgment, the exhibits on the application are to be returned.']