It is important for authorities to discharge their duties or will face substantial cost implications. In a recent case of Kogarah City Council v El Khouri  NSWLEC 196 the prosecutors failed to prove a fundamental element of the case. This element was that the defendants did not have development consent for the cutting down of six trees.
Mr El Khoury was charged with environmental law offences of causing six trees to be cut down and removed without first obtaining a development consent or permit. At the conclusion of the prosecution’s case the defence submitted there was no case to answer. The Magistrate then dismissed the proceedings.
The defendants were awarded costs on the basis that the prosecutor failed to adduce evidence dealing with an element of the offence. This was allowed under s214(1)(d) of the Criminal Procedure Act 1986 which states:
“because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.”
The court found that the failure to adduce evidence was an exceptional circumstance.
For a copy of the judgement click on the following link –https://www.caselaw.nsw.gov.au/decision/54a640013004de94513dcb22 (link is external)
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