(2) A person may plead guilty upon grounds which extend beyond that person's believe in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen at 157; Wong v Director of Public Prosecutions at 45-46.
14 The most recent NSW authority on point 6 is Loury v R [2010] NSWCCA 158 which post dated this decision. That case refers to a number of authorities in paragraphs 97-100
15 There are three issues to consider in this case. Firstly, whether Holmes was induced to enter a plea of guilty. Secondly, whether when he entered a plea of guilty he did so genuinely and conscientiously admitting his guilt and thirdly, did he understand the elements of the offence. The offence has been the subject of a recent decision of the Land and Environment Court of NSW (Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4, at [6]-[8]). The case relates to a property in the Gwydir area in northern NSW where wetlands were destroyed by Hudson. The decision was handed down after Holmes was charged but it binds this Court.
16 Whether Holmes is successful in the application to change his plea depends on the evidence. Holmes entered a plea of guilty having had the opportunity of conferring with his legal advisor and he does so for a number of reasons. The first reason given for entering a plea of guilty is that he wished to avoid the cost of defending the proceedings, which were estimated by his solicitor to be tens of thousands of dollars. He took the view that in the interests of commerciality and economy that he would be best placed to enter a plea of guilty avoiding delay and expense. Holmes was under the impression that a small fine would be imposed and that there would be no reparation order made in relation to the land which DECC says had been affected by his conduct.
17 The land cleared is in excess of 240 hectares. Trees cleared included native vegetation which DECC argue Holmes destroyed without securing the necessary approvals. Holmes has throughout the proceedings been concerned about a reparation order because, on his own evidence, such an order would preclude use of the land for a significant period of time. Holmes had a number of conversations with Beaman from DECC about the likely sentence and he asked to be kept up to date and informed of any changes in the DECC's approach.
18 Beaman and Holmes had a number of conversations. The affidavit of Beaman refers to conversations on 16 January 2008 at Karumba Cotton, which is near Boomi, on 2 April 2008 and on 30 April 2008. There was an inspection of the property on 5 June 2008 and on 16 September 2008. There was also a view of the property organised by the Court on 1 October 2008.
19 During those conversations the Court finds that the DECC did not advise Holmes that there would be no remediation order made. Remediation was referred to in the conversations but at no time was it suggested by Beaman there would be no such order. Beaman mentioned to Holmes that there had been a case under similar provisions on the North Coast which had been dealt with by the Local Court. It was similar to this case and the land owner had been fined.
20 Beaman did not deny making reference to the case. He did not remember precisely the words used. He was trying to convey to Holmes an understanding that DECC was fair and reasonable in its dealing with people charged with offences and that this matter was not being presented in the Land and Environment Court but in the Local Court which has a significantly reduced jurisdiction. The Court does not find that he made reference to the coastal case to give some hint to Holmes about the likely outcome but rather as an indication of the fair way in which the DECC conducts its business and prosecutions. These conversations influenced Holmes' approach.
21 Holmes told Beaman on more than one occasion that he wished to be kept appraised of all developments in relation to the prosecution of the case. This was not disputed by Beaman. What Holmes was seeking was information about the likely outcome of the case should he enter a plea of guilty.
22 The importance of the information imparted by the DECC about outcomes was that Holmes had a concern all along about a remediation order being made. Holmes probably thought that remediation orders could be made after conviction. After he entered the plea of guilty, he remained concerned about the DECC's attitude to a remediation order.
23 The DECC pointed out that Holmes' understanding of the effect of a plea on a remediation order was wrong. The legislation makes it very clear that a remediation order can be made by the DECC regardless of whether any finding is made against the land owner or a plea of guilty is entered. A remediation order has nothing to do with the criminal proceedings before this Court. The remediation order can be made by the DECC under s 38 of the Native Vegetation Act 2003. Where the order is made and the land owner has an objection to it, there is a process for review in the Land and Environment Court of the remediation order under s 39 of the Act.
24 The legislation is clear on remediation orders. There is no evidence that Holmes understood the difference between the criminal proceedings before the Court and the remediation process. Remediation orders have nothing to do with whether there is a conviction or a plea of guilty leading to the conviction of a land owner. They can be made discreetly and in circumstances where a land owner is not convicted of any offence.
25 Holmes mistakenly may have believed there was a link between the two and that is why he was concerned about the impact that these proceedings might have upon the owner of the property, an American company. Holmes is the manager of the property. He entered a plea of guilty because of matters not associated directly with his consciousness of guilt but rather because of his commercial attitude to the proceedings and to the risk of a remediation order being made if he did otherwise. So far as his consciousness of guilt is concerned, at the time he entered the plea, he was of the view that he was in fact not guilty of this offence. It is said by the DECC that in his record of interview Holmes makes certain admissions to Beaman about what was going on. In the DECC's view Holmes had a clear understanding of the elements of this offence and that his entering a plea of guilty subsequently was an acknowledgement that he was conscious that he was guilty of the offence as charged.
26 A close reading of the record of interview and the evidence that was given in Court leads to the view that Holmes did not have a clear understanding of the elements of this offence. When asked about the planning process, he was vague. He did not do any more than acknowledge that at an earlier time he had sighted certain provisions of the Native Vegetation legislation but he was not familiar with its provisions. He advised that he was not the person responsible for the destruction of the native trees on the property. Another employee of the company was responsible for that work. That person was identified. He had the role of stockman on the property and it was his responsibility in Holmes' view to organise the land clearance in accordance with the legislative requirements.
27 He assumed that the stockman had obtained the necessary authorities to clear the land. Holmes asked the Stockman to ensure that necessary approvals were obtained. Holmes never thought that he was the person directly responsible for any offences alleged by the DECC. He does not deny that the stockman was a direct report to him. He does not deny giving directions to the stockman to get on and do the job. But he does deny that he carried out the clearance and he assumed that the stockman had approval for the land clearance on Karumba Cotton.
28 At the time he entered the plea of guilty he did not hold a genuine consciousness of his guilt but rather he entered a plea because he wanted to expedite the proceedings, save money and, hopefully, avoid a remediation order. Holmes says that he was induced into entering a plea of guilty by Beaman on behalf of the DECC in an improper way. The evidence does not support this. Rather, it is the Court's view that Holmes interpreted what he was told or not told by Beaman in a certain way. He was comfortable about entering the plea of guilty because he thought that no remediation order would be made and it would result in a better commercial outcome for the owners of the property. In that regard he was wrong. He was wrong in his understanding. He had not sought or obtained legal advice about remediation orders. His solicitors did not give him advice about remediation orders. Their advice focussed on the issues of costs.