The inevitable fate…when you impersonate!

16 June 2020

Kelledy Jones Lawyers recently acted on behalf of the City of Port Adelaide Enfield to successfully prosecute Mr Kingsley Cotter in the Environment, Resources and Development Court. Mr Cotter was charged with falsely representing that he was an authorised officer or a person with powers, contrary to section 14(6)(e) the Local Nuisance and Litter Control Act 2016 (“the Act”).

The Council was also successful in its application for costs, significantly above the scale costs that are, ordinarily, awarded in summary prosecution proceedings of this type.

The case is:

  • the first prosecution of its kind under the Act;
  • relevant when considering whether to exercise a prosecutorial discretion where there is a strong public interest to do so;
  • deals with an offence provision that exists in similar terms in most regulatory legislation enforced by councils; and
  • is important in highlighting the significant cost implications that can arise where the conduct of a party in proceedings is linked to an ulterior and improper motive.

The Defendant had been employed by the Council for a short period more than ten years earlier as an authorised officer. Before the offending conduct, the Defendant created an organisation that he referred to as ‘Animal & Inspectorial Management Services’ or ‘AIMS’. Through AIMS, he had unsuccessfully sought to procure support from both the State government and various councils to establish a ‘centralised litter control inspectorate’ to assist in the enforcement of offences under the Act.

Between July and August 2019, the Defendant made contact with and engaged in telephone and email communications with the principal and the secretary of a school, requesting details about a student at the school. The requests were premised on the information being required in connection with the Defendant’s investigation of hazardous litter that had been unlawfully dumped.

During the course of his communications with the school, the Defendant, dishonestly, informed the principal and the secretary that he, through AIMS, “investigates a variety of offences on behalf of both State and Local Government” and that the investigation of illegal dumping was pursuant to section 33 (of the Act). Both the principal and secretary understood from the Defendant’s communications that he was investigating on behalf of the Council and had statutory authority for this purpose.

When the Defendant did not receive the information in response to his first request, he sought to compel the school to provide the details by threatening that he would seek a Court order and the school would be liable for costs. The principal of the school made contact with the Council whereupon it became apparent that the Defendant was not working with or authorised by the Council in the matter. Following a thorough investigation into the Defendant’s conduct, the Council instructed us to prosecute him on the single count of contravening section 14(6)(e) of the Act.

The matter proceeded to trial and the prosecution witnesses were found to be ‘witnesses of truth’. In contrast, the Defendant’s evidence was held to be implausible, unreliable, incredible, untruthful and without foundation or inconsistent with the objective evidence.

Not surprisingly, the defendant was found guilty as charged.

Durrant J, found the offending conduct to have been “very serious”, particularly given the impacts upon the staff of the school and the parents of the child that was the subject of the Defendant’s request. The penalty imposed was a fine of $7,500 (the maximum being $10,000). It was relevant that the Defendant had knowledge at the time of the offending (including through his dealings with staff of the EPA) that he was required to be appointed as an authorised officer in order to pursue investigations into offences under the Act.

In light of the seriousness of the Defendant’s conduct, including at trial, we sought costs against him over and above the applicable scale of costs. Whilst the award of costs on such a basis is rare, we considered the request to be justified on the basis it became increasingly apparent at trial that the Defendant had sought to use the trial for an ulterior purpose (namely to challenge the Council’s processes and approach to enforcing the Act). In our submission, the Defendant never had any reasonable prospects of successfully defending the matter.

Durrant J agreed with our submissions and awarded costs in favour of the Council so that the Defendant is required to pay 80% of the costs incurred in prosecuting the matter.

Overall, a very successful prosecution and an excellent outcome for the Council.

If you have any questions regarding this case or in connection with the prosecution of summary offences more broadly, please contact Cimon Burke on 8113 7105 or cburke@kelledyjones.com.au or Brian Ngugi on 8113 7116 or bngugi@kelledyjones.com.au.