Posted on October 2, 2018 by

When timing is everything in commencing class 5 prosecutions…

A recent decision of the Land and Environment Court is compulsory reading for statutory authorities with prosecution powers (or those the subject of a prosecution) as it examines how the period of limitation for commencing proceedings should be construed, as well as considering the Court’s jurisdiction to apply common law doctrines which have not been incorporated into a statute.

In Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145, the Land and Environment Court (“Court”) was asked to consider the following separate questions arising from class 5 proceedings:

• whether the proceedings were brought out of time; and
• whether the Court had power to determine charges in relation to accessorial liability pursuant to common law principles.

Circumstances of the case

In May 2018, Cumberland Council (“Council”) commenced proceedings against Mr Oueik for carrying out unauthorised building works in 2014, involving the construction of a mosque.

The Council alleged that Mr Oueik engaged Mr Younan as a site supervisor and H & M Renovations Pty Ltd as the construction company to carry out the works.

By its summons, one against each defendant, the Council pleaded that each defendant committed an offence against s125(1) of the Environment Planning and Assessment Act 1979 (“EPA Act“) in that they commenced the erection of a building in accordance with a development consent but without a construction certificate in breach of s81A of the EPA Act.

The Council also filed summonses against each defendant alleging that they committed an offence against s125(3A) of the EPA Act in that they “aided, abetted, counselled or procured others” to commence the erection of a building without a construction certificate in breach of s81A of the EPA Act (“s125(3A) Summonses“).

The s125(3A) Summonses were subsequently dismissed because the alleged offences preceded the date on which s125(3A) of the EPA Act came into force being 31 July 2015.

The relevant provisions at the time of the alleged offences can be accessed below:
Section 125(1) of the EPA Act
Section 81A of the EPA Act

At the time of the alleged offences, s127 of the EPA Act prescribed that:

…
(5) Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.
(5A) However, proceedings for any such offence may also 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 an authorised officer within the meaning of Division 2C of Part 6.
(5B) If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established.
(5C) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

…

Based on the evidence of Council’s witnesses in cross-examination, Council conceded that the evidence of the alleged offence, but not the identity of the defendants, came to the attention of Council’s investigation officer prior to 3 May 2016, that is, more than 2 years before the proceedings were commenced.

Whether the proceedings were commenced out of time

The proceedings were brought under s127(5A) because the time limit under s127(5) had expired.

The argument before the Court proceeded on the narrow basis of what was meant by “evidence of the alleged offence” in s127(5A).

Council’s submissions
The Council argued that since s125(1) prescribes that “a person” is required for the offence, s127(5A) should be construed as requiring that evidence of each element of the offence, including the identity of the offender, must come to the attention of an authorised officer. Consequently, there may be different times in which proceedings for an offence can be brought under s127(5A) where different offenders are involved and when their identities become known.

Defendants’ submissions
The Defendants argued that the principles of statutory construction show that “evidence of the alleged offence” within the meaning of s127(5A) does not involve “evidence of the alleged offender”.

It was asserted that the text of s81A is in the passive tense and demonstrates that an offence is committed when the erection of a building is commenced without a construction certificate having been obtained, regardless of the identity of the person who has commenced the construction.

Moreover, it was also submitted that Council’s interpretation would result in absurd situations where years after the conviction of a builder for breach of s81A of the Act, an authorised officer could be given evidence of another person’s involvement which would result in the time restarting and Council being able to commence fresh proceedings against a new alleged offender.

Court’s consideration
Justice Moore applied the principles of statutory interpretation which begin with the consideration of the text of the statute itself, taking into account that its meaning may require consideration of the context, including the general purpose and policy of the provision.

Consequently, Moore J held at [78] that:
“… “evidence of the alleged offence” on its face means evidence capable of indicating that an offence has been committed. In this circumstance, it would be insufficient merely to have evidence that construction works had commenced. An investigation officer would also need to have evidence brought to his or her attention capable of showing that a construction certificate had not been obtained. However once evidence of both of these elements is brought to his or her attention, and assuming the time limit provided s 127(5) has expired, the time limit provided by s 127(5A) is engaged.”

Justice Moore also opined at [81] –[82] that:
“The extension of time provided by s 127(5A) operates to extend the time in which a prosecutor is able to bring proceedings where the actual commission of the offence, as opposed to the identity of the offender, does not come to the attention of the prosecutor’s attention until sometime later.

It does not permit the prosecutor from holding off investigating the offence, thereby failing to discover the identity of the person responsible and extending the period of time in which it is able to commence the proceedings. It would be unusual if s 127(5A) did have this effect given that the intention of the time limit included in s 127(5) is presumably to encourage prosecuting authorities to bring proceedings for a breach of the EPA Act as quickly as possible and create certainty in that regard.”

Justice Moore ultimately held that the proceedings were commenced out of time and they were dismissed.

Whether the Court has jurisdiction to hear charges in relation to accessorial liability

Given his Honour’s decision that the proceedings were commenced out of time, it was strictly unnecessary to consider whether the Court had jurisdiction to hear the charges in relation to accessorial liability. However, as the matter raised an important legal question and was fully argued before the Court, his Honour proceeded to consider the parties’ submissions.

The Defendants argued that the Court only has jurisdiction with respect to an offence and a provision such as 125(3A) which it has been specifically conferred by statute.

The Council argued that the defendants could be properly charged in relation to accessorial liability pursuant to the common law.

The Court agreed with the Council and held that had the proceedings been commenced in time, the Court would have had jurisdiction to hear those charges relying on the common law concept of accessorial liability.

Justice Moore commented that if common law principles such as accessorial liability needed to be specifically referred to by a statute in order to apply, it would mean that common law principles such as the doctrines of coincidence, standing and precedence would not apply in the Court unless a statute specifically incorporated them.

A copy of the judgment can be accessed here.

To discuss this blog, please contact Carlo Zoppo, Partner, on 8235 9705.