learning-from-past-mistakes-tips-for-local-government-prosecutions

Learning from past mistakes – tips for local government prosecutions

 

A suc­cess­ful pros­e­cu­tion requires care­ful and con­sid­ered action to be tak­en by pros­e­cu­tors from the ini­tial inves­ti­ga­tion stages, through to the final stages of the enforce­ment process. There are a num­ber of exist­ing guide­lines which pro­vide help­ful infor­ma­tion on some of the key prin­ci­ples and process­es that local enforce­ment author­i­ties should refer to when exer­cis­ing their enforce­ment pow­ers or oblig­a­tions. In addi­tion, it is also ben­e­fi­cial to reflect on real life exam­ples of cas­es where a pros­e­cu­tion has or has almost been unsuc­cess­ful, so as to pin point what poten­tial issues can arise in such mat­ters and what steps can be tak­en so that the same prob­lems do not under­mine inves­ti­ga­tions and the suc­cess of future pros­e­cu­tions.

Investigation techniques and the limitations on certain powers

Once a coun­cil has con­clud­ed that an inves­ti­ga­tion of an alleged breach is nec­es­sary, it is impor­tant that a con­sid­ered and coor­di­nat­ed method for car­ry­ing out the inves­ti­ga­tion is fol­lowed by the coun­cil, which will require prop­er record keep­ing and mon­i­tor­ing of the unau­tho­rised activ­i­ty to be under­tak­en. How­ev­er, before an inves­ti­ga­tion pro­ceeds to this point, it is crit­i­cal that the coun­cil has con­firmed it has the juris­dic­tion and pow­er to enforce com­pli­ance. This is crit­i­cal so that the inves­ti­ga­tion or pros­e­cu­tion of a mat­ter is not sub­se­quent­ly chal­lenged by the accused on the basis that the inves­ti­ga­tor has unknow­ing­ly act­ed with­out the appro­pri­ate del­e­ga­tions of author­i­ty to car­ry out the inves­ti­ga­tion or obtain cer­tain evi­dence in con­nec­tion with the inves­ti­ga­tion.

Limitations on powers of investigation officers to require answers and record evidence

An exam­ple of where a coun­cil strayed beyond the pow­ers it has under the Envi­ron­men­tal Plan­ning and Assess­ment Act 1979 (EP&A Act) was con­sid­ered in Zhang v Woodgate and Lane Cove Coun­cil [2015] NSWLEC 10. In this case, Lane Cove Coun­cil had issued notices under for­mer s118BA of the EP&A Act (now s9.23) to a con­sul­tant that the defen­dant had engaged as part of the car­ry­ing out of unau­tho­rised works, in an attempt to com­pel the con­sul­tant to pro­vide answers in rela­tion to the alleged breach of the EP&A Act, where crim­i­nal pro­ceed­ings had already been com­menced in rela­tion to that breach. The NSW Land and Envi­ron­ment Court found that the notice issued to the con­sul­tant was invalid because the notice failed to iden­ti­fy the mat­ter in rela­tion to which the con­sul­tant was required to answer ques­tions. The Court held that because the notice failed to iden­ti­fy these mat­ters, it was in con­tra­ven­tion of the require­ments for such notices under s118BA of the EP&A Act.

Limitations on notices requiring persons to provide information and records

A sim­i­lar issue was con­sid­ered in Port Mac­quar­ie-Hast­ings Coun­cil v Mans­field [2019] NSWCCA 7. In this case the defen­dant built a large struc­ture with­out devel­op­ment con­sent. When the unau­tho­rised works were brought to the council’s atten­tion they issued notices under for­mer s119J (now s 9.22) of the EP&A Act for infor­ma­tion to be pro­vid­ed by the defen­dant. After this, and once pro­ceed­ings had been com­menced by the coun­cil, sub­poe­nas were issued based on those notices. The key argu­ment raised by the defen­dant in these pro­ceed­ings was that these notices were issued while the coun­cil was aware it was con­sid­er­ing bring­ing charges against the defen­dant, and thus the notices were invalid as it was an improp­er use of the pow­er grant­ed under s119J of the EP&A Act. For­tu­nate­ly, in this case, despite the alleged inva­lid­i­ty of the notices the Court decid­ed in favour of the coun­cil, stat­ing that the issu­ing of the notices was still part of the inves­ti­ga­tion of a poten­tial EP&A Act breach, and even if it was issued for dual pur­pos­es, the EP&A Act pro­vides the pow­er for the notices to be issued as they were to assist the coun­cil in deter­min­ing poten­tial con­tra­ven­tions of the EP&A Act.

The above­men­tioned cas­es high­light the impor­tance of ensur­ing strict com­pli­ance with the require­ments for any notices that a coun­cil issues in rela­tion to a pros­e­cu­tion. If a coun­cil fails to com­ply with the rel­e­vant statu­to­ry require­ments in the issu­ing of notices, there is a rea­son­able risk that any evi­dence obtained pur­suant to such notices will not be admis­si­ble in the pro­ceed­ings.

Best practice interviewing techniques

In Ku-ring-gai Coun­cil v John David Chia (No 15) [2019] NSWLEC 1, the Court was asked to con­sid­er whether the inves­ti­ga­tion and inter­view­ing tech­niques used by an inves­ti­ga­tor result­ed in the cor­rob­o­ra­tion of evi­dence of a wit­ness, which would cause the wit­ness’ evi­dence to be deemed unre­li­able and not tak­en into account by the Court on this basis. Ku-ing-gai Coun­cil had hired a pri­vate inves­ti­ga­tor who had allowed wit­ness­es to be inter­viewed togeth­er as well as shar­ing with wit­ness­es infor­ma­tion that had been pro­vid­ed from oth­er wit­ness­es and also try­ing to reach wit­ness­es through oth­er wit­ness­es (that may have been com­plic­it). The judge ulti­mate­ly found that the way the inves­ti­ga­tion had been con­duct­ed and the inter­view­ing of wit­ness­es was ‘less than ide­al’, how­ev­er after con­sid­er­ing the facts of the case he ulti­mate­ly deter­mined that no cor­rob­o­ra­tion had occurred, despite the oppor­tu­ni­ties for cor­rob­o­ra­tion that had been pro­vid­ed by the inves­ti­ga­tor. In this case, a num­ber of best prac­tice inter­view­ing prin­ci­ples for coun­cils to adhere to were iden­ti­fied, includ­ing the fol­low­ing:

• it is impor­tant to keep wit­ness­es sep­a­rate dur­ing the inter­view process;
• wit­ness­es should nev­er be inter­viewed togeth­er because there is a chance of con­t­a­m­i­na­tion and the wit­ness with the stronger per­son­al­i­ty may over­bear the wit­ness with the weak­er per­son­al­i­ty;
• it is impor­tant inves­ti­ga­tors do not sug­gest mate­r­i­al to wit­ness­es as to do so may influ­ence what they say and deprive the inves­ti­ga­tor of the abil­i­ty to check what the wit­ness­es actu­al­ly know;
• by impart­ing infor­ma­tion to a wit­ness, the wit­ness is put on notice in rela­tion to spe­cif­ic issues which may mean that a com­plete and inde­pen­dent ver­sion of what occurred can­not be obtained; and
• where it is with­in his con­trol, the inves­ti­ga­tor should not allow Wit­ness A to come into con­tact with Wit­ness B unless he/she had an inde­pen­dent ver­sion of facts from each of them.

In addi­tion to the above, it is also impor­tant for inves­ti­ga­tors to remem­ber that indi­vid­u­als have a right to silence and the priv­i­lege against self-incrim­i­na­tion (unless they have been direct­ed or com­pelled under the EP&A Act or the Pro­tec­tion of the Envi­ron­ment Oper­a­tions Act 1997 to answer ques­tions).

If dur­ing ques­tion­ing an inves­ti­ga­tor forms a belief that there is suf­fi­cient evi­dence to estab­lish that the per­son has com­mit­ted an offence, then they must cau­tion the per­son of their right to silence. If they do not, then any evi­dence obtained from that point on may be held to have been improp­er­ly obtained.

It has also been held that evi­dence may be improp­er­ly obtained where an employ­ee (who is not a sus­pect) is mak­ing admis­sions against their employ­er and they have not been cau­tioned.

Has council commenced the proceedings in time?

The right to take legal action in respect of an alleged unlaw­ful activ­i­ty will often be sub­ject to a leg­isla­tive time lim­it. Depend­ing on the offence, the applic­a­ble statute of lim­i­ta­tion may restrict a coun­cil from tak­ing action from the date of the alleged offence, or for oth­er mat­ters, the start­ing time may be from the point in time that coun­cil first became aware of the offence.

Sub­ject to the inves­ti­gat­ing offi­cer ensur­ing that he/she has the prop­er del­e­gat­ed author­i­ty required to com­mence a for­mal inves­ti­ga­tion, the inves­ti­ga­tor must ensure that all the steps that need to be under­tak­en in con­nec­tion with the inves­ti­ga­tion take into account any statute of lim­i­ta­tion that may apply. With­out prop­er­ly plan­ning the inves­ti­ga­tion process, coun­cils may expose them­selves to a risk that by the time the inves­ti­ga­tion is com­plete, they may already be out of time to com­mence pro­ceed­ings.

In May 2018 Cum­ber­land Coun­cil expe­ri­enced first­hand a chal­lenge against pro­ceed­ings it brought against an indi­vid­ual for the car­ry­ing out of unau­tho­rised build­ing works in 2014, which result­ed in the devel­op­ment of a mosque with­out a con­struc­tion cer­tifi­cate hav­ing been first obtained. In Cum­ber­land Coun­cil v Tony Younan; Cum­ber­land Coun­cil v Ron­ney Oueik; Cum­ber­land Coun­cil v H & M Ren­o­va­tions Pty Ltd [2018] NSWLEC 145, Cum­ber­land Coun­cil com­menced pro­ceed­ings alleg­ing that the defen­dant failed to com­ply with a devel­op­ment con­trol order, there­by com­mit­ting an offence in con­tra­ven­tion of s9.37 (for­mer­ly s125) of the EP&A Act. Due to the rel­e­vant time lim­it under the EP&A Act hav­ing expired, Cum­ber­land Coun­cil sought to bring the pro­ceed­ings under for­mer s127(5A) (now s9.57(5A)) of the EP&A Act which pro­vides that pro­ceed­ings for any such offence under the EP&A Act or reg­u­la­tions may be com­menced with­in, but not lat­er than, 2 years after the date on which “evi­dence of the alleged offence” first came to the atten­tion of any inves­ti­ga­tion offi­cer who is a mem­ber of the staff of the Depart­ment. The defen­dant argued that the pro­ceed­ings were com­menced out of time.

Ulti­mate­ly in this case the Court found that “evi­dence of the alleged offence” means that evi­dence capa­ble of indi­cat­ing that an offence has been com­mit­ted has to have been secured. In the case of Cum­ber­land Council’s pro­ceed­ings, the Court held that the inves­ti­ga­tion offi­cer need­ed to have evi­dence that con­struc­tion works on the mosque had com­menced and evi­dence brought to his or her atten­tion capa­ble of show­ing that a con­struc­tion cer­tifi­cate had not been obtained when this occurred. Once evi­dence of both of these ele­ments was brought to the inves­ti­gat­ing offi­cer atten­tion, the time lim­it pro­vid­ed by s127(5A) would have been engaged. As coun­cil was unable to demon­strate that both of these ele­ments were sat­is­fied, the Court deter­mined that coun­cil had com­menced the pro­ceed­ings out of time.

Sep­a­rate­ly, in the case of Willough­by City Coun­cil v Scren­ci [2015] NSWLEC 192, Willough­by Coun­cil charged the defen­dant with two offences under s125 (now s9.50) of the EP&A Act for the car­ry­ing out of a large amount of devel­op­ment work with­out devel­op­ment con­sent. The key issue which arose in this case was whether the pro­ceed­ings were statute-barred by rea­son of being com­menced after the expi­ra­tion of the rel­e­vant lim­i­ta­tion peri­od of two years fixed by s127(5) of the EP&A Act. By the time pro­ceed­ings had been com­menced, it had been more than two years since the builder (as a wit­ness) had fin­ished the work. In these cir­cum­stances, coun­cil was out of time to com­mence pro­ceed­ings and pre­vent­ed from bring­ing action against the defen­dant under s127(5). Amongst oth­er mat­ters, the Court was required to con­sid­er:

• whether the onus was on coun­cil as the pros­e­cu­tor in this case to estab­lish that the pro­ceed­ings were com­menced in time; and
• whether the statu­to­ry bar upon com­mence­ment of pro­ceed­ings could be waived by the Court.

The Court con­clud­ed that in cir­cum­stances where the com­mence­ment of the pro­ceed­ings for an offence charged is the sub­ject of a statu­to­ry lim­i­ta­tion peri­od, the pros­e­cu­tor bears the onus of estab­lish­ing that the pro­ceed­ings have been com­menced with­in the rel­e­vant time lim­it. It is there­fore impor­tant that coun­cil is able to pro­vide evi­dence to estab­lish that any pro­ceed­ings it com­mences have been brought in time.

Fur­ther, once the statu­to­ry lim­i­ta­tion pro­vi­sion is valid­ly raised by a par­ty, the Court must give effect to the statu­to­ry bar that applies. Even if a plea of guilty has been entered by the defen­dant in rela­tion to the offence pri­or to the issue of the statu­to­ry bar issue being raised, the Court does not have dis­cre­tion to main­tain the defendant’s guilty plea.

Mov­ing for­ward

Not­ing that this arti­cle pro­vides just a few exam­ples of some of the impor­tant mat­ters which must be con­sid­ered by a coun­cil in rela­tion to pros­e­cu­tions, should you require any assis­tance or have any queries, please do not hes­i­tate to con­tact the Plan­ning and Envi­ron­ment team at McCul­lough Robert­son lawyers for assis­tance.

Spe­cial thanks to Eliz­a­beth Ryan, Lawyer for her assis­tance in putting this arti­cle togeth­er.

 

This pub­li­ca­tion cov­ers legal and tech­ni­cal issues in a gen­er­al way. It is not designed to express opin­ions on spe­cif­ic cas­es. It is intend­ed for infor­ma­tion pur­pos­es only and should not be regard­ed as legal advice. Fur­ther advice should be obtained before tak­ing action on any issue dealt with in this pub­li­ca­tion.