Lin v Fairfield City Council [2007] NSWLEC 568

Lin v Fairfield City Council [2007] NSWLEC 568

Leave to appeal out of time was refused because the applicant did not establish cogent reasons for failing to appeal within the statutory period and the proposed appeal had slim prospects. The investigator's evidence had been admitted without objection in the Local Court and no exceptional circumstances justified excluding it on appeal. In any event, the applicant did not show relevant impropriety under s 138 of the Evidence Act 1995: the Council believed the investigator was licensed, the conduct merely provided an opportunity rather than inducement, the investigator acted like an ordinary customer, and allowing the act to occur was understandable to prove the prohibited development...

Jurisdiction
Australia
Judgment Date
20 August 2007
Procedural Posture
Application for Leave to Appeal From Local Court Conviction and Sentence for an Environmental Offence / Application for Leave to Appeal Outside the Prescribed 28 Day Period
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['prohibited Development' 'brothel Use' 'leave to Appeal Out of Time' 'improperly Obtained Evidence' 'private Investigators' 'costs']
['planning and Environment Law' 'criminal Procedure' 'evidence'] ['prohibited Development' 'brothel Use' 'leave to Appeal Out of Time' 'improperly Obtained Evidence' 'private Investigators' 'costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Local Court Conviction and Sentence for an Environmental Offence / Application for Leave to Appeal Outside the Prescribed 28 Day Period

Legal Issues

  1. 1 ['Whether it was in the interests of justice to grant leave to appeal outside the 28 day period prescribed by s 31 of the Crimes (Appeal and Review) Act 2001.' 'Whether evidence given by an undercover investigator should have been excluded under s 138 of the Evidence Act 1995 as obtained improperly or in consequence of an impropriety.' "Whether the investigator's lack of a private inquiry agent licence made the evidence improperly obtained." 'Whether allowing the sexual act to occur, rather than stopping at an offer and agreed price, constituted impropriety.' 'Whether the Local Court sentence was too severe.']

Ratio Decidendi

Leave to appeal out of time was refused because the applicant did not establish cogent reasons for failing to appeal within the statutory period and the proposed appeal had slim prospects. The investigator's evidence had been admitted without objection in the Local Court and no exceptional circumstances justified excluding it on appeal. In any event, the applicant did not show relevant impropriety under s 138 of the Evidence Act 1995: the Council believed the investigator was licensed, the conduct merely provided an opportunity rather than inducement, the investigator acted like an ordinary customer, and allowing the act to occur was understandable to prove the prohibited development...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['The application for leave to appeal is dismissed.' "The applicant is to pay the respondent's costs as agreed or assessed, such costs to be paid to the registrar of the original Local Court at Fairfield within three months of the amount of costs being either agreed or assessed."]