Byron Shire Council v Vigden CJ & Donna's Beach Pty Limited [1999] NSWLEC 121

Land and Environment Court of New South Wales CITATION: Byron Shire Council v Vigden CJ & Donna's Beach Pty Limited [1999] NSWLEC 121

PARTIES PROSECUTOR Byron Shire Council

DEFENDANT Vigden CJ & Donna's Beach Pty Limited

NUMBER: 50148-51 of 1998

CORAM: Cowdroy AJ

KEY ISSUES: Environmental Offences :- Prosecution - failure of prosecutor to file affidavits in support of summonses - delay resulting in prejudice to defendants - failure of prosecutor to explain delay - permanent stay of proceedings necessary to prevent injustice

LEGISLATION CITED: Land & Environment Court Act 1979 Land & Environment Court Rules 1996

DATES OF HEARING: 05/24/1999

DATE OF JUDGMENT DELIVERY: 06/01/1999

PROSECUTOR Mr W R Davison SC

SOLICITORS Wroth Wall LEGAL REPRESENTATIVES: DEFENDANT Mr J J Webster

SOLICITORS Halliday & Stainlay

JUDGMENT: Background

1. On 7 May 1999 judgment was delivered in relation to notices of motion which had been filed in each of the above proceedings. In summary the Court determined that the summonses which had been issued to each of the defendants were not invalid and the prosecutions could continue. The proceedings have now been returned to the Court in response to a further notice of motion filed in each of the proceedings by the defendants seeking orders that the prosecution be permanently stayed.

2. At the date of filing the notice of motions no affidavits had been served in support of any summonses and the defendants claim that in consequence of delay the preparation of their defences has been prejudiced. It is asserted that two vital witnesses who could have given evidence cannot now be located.

Obligation to serve affidavit evidence

3. This application raises a fundamental question concerning the material which is required to be provided to a defendant in support of a prosecution instituted under the provisions of the Environmental Planning and Assessment Act 1979 ("the Act"). The summonses allege that each of the defendants breached s 76B of the Act by cutting down trees and understorey vegetation (land clearing) when such work was prohibited pursuant to the Byron Local Environmental Plan 1988. The circumstances in which the prosecutions were launched have been considered in the judgment delivered on 7 May 1999.

4. The prosecutor contends that in the circumstances where no affidavits were used to obtain the Class 5 Orders, no rule requires service of affidavits with the summons. Part 6 Rule 2(1) of the Land and Environment Court Rules 1996 ("the Rules") specifically adopts Division 2 of Part 75 of the Supreme Court Rules 1970 ("SC Rules"). Part 75 Rule 9(2) of the SC Rules provides:- Subject to any Act, a minute of any order made under s4(1) or section 10(b) of the subject Act and any affidavits used to obtain either of those orders shall be served personally upon the defendant. 5. Part 6, Rule 2 of the Rules makes provision for service of affidavits in Class 5 proceedings. Part 6 Rule 2(2) provides:-

(2) Despite sub-rule (1) a summons seeking an order pursuant to s41 of the Act is to be accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offence charged.

6. The prosecutor submits that since no affidavits were placed before His Honour Mr Justice Sheahan upon the making of the order Class 5, SC Rule Part 75 Rule 9(2) has no application. Such submission however does not allow for any consideration to be given to the requirements of Part 6 Rule 2(2) of the Rules. Whilst there was an implied variation of the Rules upon the making of the Class 5 orders in view of the alleged urgency, such dispensation has not extended to service of affidavits which were contemplated by the Rules. The Orders being made, the prosecutor ought to have proceeded in accordance with the procedure provided by Part 6 Rule 2(2) of the Rules. The prosecutor apparently was also of this view, as it filed a Notice of Motion seeking an extension of time for this very purpose on 7 May 1999.

7. The prosecutor also submits that it has not filed any of its affidavits to date because of the motions which the defendants have instituted. However the conduct of the defendants is irrelevant to the prosecutor's obligations and does not excuse the prosecutor from serving affidavits as envisaged by SC Rules Part 75 Rule 9(2). Such rule clearly intended that affidavits would be served to inform the defendants of the details of the charges. Although, for reasons described in the judgment of 7 May 1999, no affidavits were provided the above rule required service of the prosecutor's affidavits. Accordingly, there has been a breach of the court rules.

Has the breach of the Rules caused prejudice?

8. The prosecutor submits that no real prejudice has been occasioned to the defendants. Affidavits have now been prepared but pursuant to an undertaking given on the 13 May 1999 service has been withheld pending the outcome of the notices of motion now before the court. It also submits that the evidence discloses the vegetation allegedly destroyed by the defendants was the habitat of natural fauna and it could not be said that the offences are not serious. The prosecutor argues the evidence concerning the alleged vital witnesses is weak and little weight should be given to it.

9. The defendants submit that whilst some of the documentation provided to His Honour Justice Sheahan has now been served it is inadequate to enable them to identify the sites of the alleged offences. There is no evidence before the court to reveal the extent of such material. The defendants also submit that the charges do not reflect the commission of serious crimes but claim grave prejudice will be occasioned to them if the charges to continue. Upon the unchallenged evidence two vital potential witnesses for the defendants cannot now be located and the material which was served upon the defendants is insufficient to enable them to know the facts relied upon by the prosecution in support of its charges. Against these competing contentions the court is required to consider whether prejudice has been occasioned.

10. The facts reveal that the alleged offences occurred in July 1998. No steps were taken by the prosecutor to institute any proceedings until 24 December 1998. The summonses were served without any affidavits or supporting material. By 19 February 1999 when the matter was first returnable no affidavits or supporting had been served. Notices of motion seeking to have the summonses declared a nullity were filed and determined by judgment delivered on the 7 May 1999. On that day the prosecutor applied for an extension of time to file affidavits. By the 13 May 1999 namely the date upon which the current notices of motion were filed the prosecutor had still not filed any affidavits.

11. In Regina v Nicholson (CCA 60241, 22 July 1998) the Court of Criminal Appeal allowed a permanent stay of proceedings where the hearing had been repeatedly adjourned because of the prosecutors inability to proceed. Smart J applied to the principles referred to in Jago v District Court (NSW) (1989-90) 168 CLR 23 and in Walton v Gardiner (1992-93) 177 CLR 378. In Jago , Mason CJ said at p30:- In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that the trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay.

12. The prosecutor was aware in July 1998 of the circumstances giving rise to the charges. It has filed no affidavit to explain the delay or reason for the non-service of its affidavits. Its conduct is therefore inexplicable.

13. In Jago (supra) at p56 Deane J said:- The stage can, however, be reached where delay in the institution or prosecution of criminal proceedings is so prolonged that it becomes unreasonable. If and when that stage is reached will depend upon the particular circumstances, such as when the relevant authorities first became aware of the alleged criminal conduct and of the material said to prove the accused's guilt and whether the charge is a complex or a simple one. When that stage is reached an accused can, if he does not share responsibility for the delay, justifiably claim that the burden pending the criminal proceedings has passed beyond what can be justified in the due administration of justice. The delay in instituting the proceedings and the prosecutor's failure to prepare its case over eleven months is inordinate. It is inappropriate that any defendant be left in a state of uncertainty for so long and the circumstances require a stay to be granted. Deane J in Jago (supra) said at p58:- Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process...

Where such circumstances exist, the power of a court to prevent abuse of its process extends to making of an order that proceedings be permanently stayed.

14. The defendants have demonstrated the requisite prejudice and the need for a permanent stay. In these circumstances the proceedings will be dismissed.

Orders

15. The court orders:-

1. The summonses in each case be dismissed. 2. The prosecutor to pay the costs of each defendant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.