Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull

Land and Environment Court (NSW)|2019-09-27|Before: Pain J, Pepper J, Johnson J, Mason CJ, McHugh J, Deane J, Garling J

SOLICITORS: Office of Environment and Heritage (Prosecutor) Cole & Butler (Defendant) File Number(s): 16/151113

Judgment

These contested criminal proceedings concerning a charge of unlawfully clearing native vegetation were set down for hearing to commence on Monday 30 September 2019 for 10 days. On Friday 27 September 2019 I refused to vacate the hearing dates and ordered that the hearing be postponed to commence on Tuesday 8 October 2019. I said I would publish my reasons for this order this week and do so in this judgment.
The Defendant's notice of motion to vacate the 10 days of hearing filed 24 September 2019 was heard the last working day 27 September 2019 before the 10 day hearing was to commence.
In an application by the Defendant to vacate the same hearing dates refused by Pepper J on 28 August 2019 (Chief Executive, Office of Environment and Heritage v Turnbull [2019] NSWLEC 125 (Turnbull No 1)) relevant principles to consider on such an application were set out at [12]-[18] and I repeat these here: 12 In an application to vacate a criminal trial the onus rests on the party seeking to vacate the hearing, irrespective of whether or not that party is the accused or the prosecutor (R v BK [2000] NSWCCA 4; (2000) 110 A Crim R 298 at [12] and R v Warwick (No 64) [2019] NSWSC 163). 13 As the prosecutor submitted, it is important that anyone charged with a criminal offence be brought to trial expeditiously. Not only is this in their own interests, but it is also in the interest of the witnesses and in the administration of justice. It is essential to the orderly disposition of the work of the courts that trials are not adjourned unnecessarily (Murphy v R [1989] HCA 28; (1989) 167 CLR 94 at 99). The rights of parties to have matters heard as expeditiously as possible in the Court are a matter of public interest (Abdallah v R [2015] NSWCCA 233 at [7]). 14 Accordingly, there is a strong public interest that once fixed for hearing on the basis of the parties being ready to proceed, a criminal trial should ordinarily proceed with expedition (Slotboom v R [2013] NSWCCA 18 per Johnson J at [36]). 15 Although remarks such as these were made in the context of the case management provisions in Div 3 of Pt 3 of Ch 3 of the Criminal Procedure Act 1986, which do not apply in summary criminal proceedings in this Court, the observations are nevertheless apposite given the analogous case management provisions that apply in these proceedings under Div 2A of Pt 5 of Ch 4 of the Criminal Procedure Act. 16 But notwithstanding these pronouncements, the overriding principle guiding the exercise of the Court's discretion in this application is the right to a fair trial; a central pillar of our criminal justice system. Courts can and should stay criminal proceedings which will result in an unfair trial (Dietrich v R [1992] HCA 57; (1992) 177 CLR 292). 17 Dietrich is authority for the proposition that, depending on all the circumstances of the particular case, a lack of legal representation might mean that an accused is unable to receive a fair trial (Mason CJ and McHugh J at 299-301 and Deane J at 334-335). 18 Most recently in Warwick (No 64) Garling J discussed and explored the principles espoused in Dietrich. Given their direct application to the present motion, I gratefully set out his Honour's pellucid summary of the relevant law (at [15]-[22]): 15. The principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 address the right to relief by way of a temporary stay of a criminal trial where an indigent defendant is charged with a serious criminal offence and who, through no fault of his or her own, find themselves without adequate legal representation. Where a court is satisfied that in the absence of legal representation, the trial would be unfair, the court has jurisdiction to adjourn or stay proceedings until legal representation can be arranged. 16. In State of NSW v Canellis [1994] HCA 51; (1994) 181 CLR 309, at 328, Mason CJ, Dawson, Toohey and McHugh JJ, said of the decision in Dietrich: "… the principle established by the decision … is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation." 17. In Attorney-General for NSW v Milat (1995) 37 NSWLR 370 at 373, the Court of Criminal Appeal (Gleeson CJ, Kirby P and Mahoney JA) in a joint judgment wrote: "(1) Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. (2) However, under Australian law, an accused has the right to a fair trial or, perhaps more accurately, a right not to be tried unfairly. (3) The courts have an inherent jurisdiction which extends to a power to stay proceedings in order to prevent the prosecution of a criminal proceeding which will result in a trial which is unfair. (4) Each case needs to be examined in the light of its own particular circumstances. However, ordinarily, where an indigent person has been charged with a serious criminal offence, if, by reason of lack of means and the unavailability of other assistance, that person is denied legal representation, the trial will be unfair. (5) Accordingly, where an indigent person has been charged with a serious criminal offence, and he or she is denied legal representation by reason of lack of means, and the unavailability of other assistance, the Court has jurisdiction to stay the proceedings until he or she is provided with legal representation necessary for a fair trial, or with the resources necessary for such representation." 18. The common law recognises that an unrepresented accused may face disadvantages in the conduct of a trial: McInnes v R [1979] HCA 65; (1979) 143 CLR 575, at 590 per Murphy J. Nevertheless, in Australia, there is no right of an accused to be provided counsel at public expense: Dietrich at 297‑298 per Mason CJ and McHugh J; at 316 per Brennan J; at 330 per Deane J; at 343 per Dawson J; at 352 per Toohey J; at 364 per Gaudron J. 19. Instead, the question of legal representation is framed according to the imperative right of an accused to have a fair trial, or perhaps more accurately expressed as "… a right not to be tried unfairly …": Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 at 29 per Mason CJ; 56 per Deane J; 72 per Toohey J; 75 per Gaudron J; Dietrich at 299 per Mason CJ and McHugh J. 20. Speaking generally, in order to obtain a stay of a criminal trial, the accused has the onus to prove: 1. that he or she is indigent; 2. that he or she is unable to obtain legal representation; 3. that to proceed without representation would render the trial of a serious criminal offence unfair; and 4. that he or she has not conducted themselves in a way which has unreasonably brought about any of these circumstances. 21. These general statements require some elaboration but in the application of the authorities discussed below, it is necessary to keep in mind the following overarching contextual considerations: 1. the attributes of a fair criminal trial cannot be, and have not been, listed exhaustively: Dietrich at 300 per Mason CJ and McHugh J; 2. the requirement of fairness is independent from, and additional to, the requirement that a trial be conducted in accordance with law: Dietrich at 363 per Gaudron J; 3. the inquiry as to whether a trial will be fair necessarily depends upon the circumstance of the particular case, but that does not mean that the Court exercises its inherent powers according to idiosyncratic notions of what is fair and just: Dietrich at 364 per Gaudron J; 4. a trial is not necessarily unfair because it is less than perfect (Dietrich at 365 per Gaudron J; Jago at 49 per Brennan J) or else simply because evidence which once existed has been lost or destroyed, or else because less than all of the material which could relevantly bear on the matter is available: R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31]; 5. it is of fundamental importance that unless the interests of justice demand it, courts should exercise their jurisdiction particularly to try individuals charged with serious criminal offences: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ; and 6. in judging fairness, the interests of the Accused cannot be considered in isolation without regard to the community's right to expect that persons charged with a criminal offence are brought to trial: Jago at 33 per Mason CJ; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 102 per Gibbs ACJ and Mason J. 22. Ordinarily, where a person charged with an indictable offence is indigent and unrepresented, they will be denied a fair trial: Dietrich at 337 per Deane J. These assumptions arise from the adversarial nature of a criminal trial, the complicated and obscure nature of criminal laws and rules governing evidence and the forensic contest that takes place between parties: Dietrich at 370 per Gaudron J.

Chronology

The history of the proceedings can be summarised as follows: 1. 1 March 2016 - Class 5 summons filed. 2. 16 December 2016 - plea of not guilty entered. 3. 31 March 2017 - notice of the prosecution case given under s 247J of the Criminal Procedure Act 1986 (CP Act). 4. 6 October 2017 - matter set down for trial for 10 days commencing 4 June 2018 (first hearing dates). 5. 23 May 2018 - notice of motion filed by the Defendant to vacate first hearing dates due to serious injury of the Defendant. 6. 24 May 2018 - first hearing dates vacated by consent. 7. 1 June 2018 - matter set down for trial for 10 days commencing 18 February 2019 (second hearing dates). 8. 22 January 2019 - notice of motion filed by the Defendant to vacate second hearing dates on the basis that the Defendant's senior counsel Mr Alexis SC had withdrawn his brief due to non-payment of fees and that the Defendant needed time to procure alternative representation and to prepare for the hearing. Notice of motion opposed by the Prosecutor. 9. 1 February 2019 - second hearing dates vacated. 10. 15 February 2019 - matter set down for trial for 10 days commencing 30 September (third hearing dates). 11. 22 August 2019 - notice of motion filed by the Defendant to vacate third hearing dates because senior counsel was ill. Notice of motion opposed by the Prosecutor. 12. 28 August 2019 - notice of motion to vacate third hearing dates dismissed in Turnbull No 1. 13. 16 September 2019 - pre-trial mention, no appearance for the Defendant. 14. 24 September 2019 - notice of motion to vacate third hearing dates filed.

Defendant's evidence

The Defendant tendered the affidavit of Mr Spiers remote sensing expert for the Prosecutor dated 4 September 2015 (Ex A), the affidavit of Dr Jenkins geographic information system and remote sensing specialist dated 28 January 2015 which the Defendant may adduce (Ex B), the defence reply pursuant to s 247K of the CP Act (Ex C) and an undated letter from Ms Pascall legal officer of the Prosecutor to the Defendant outlining the 10 affidavits that the Prosecutor intended to rely on (Ex D) [note, the Prosecutor now intends to rely on 11 witnesses].
The Defendant read the affidavit of Mr Penfold solicitor for the Defendant dated 23 September 2019. The firm representing the Defendant currently has three practising solicitors and four additional staff. The firm had a personal secretary for Mr Penfold and Mr Joseph (junior partner) who resigned on 23 August 2019. Since then the firm has been understaffed and both Mr Penfold and Mr Joseph have had to do the bulk of their secretarial work.
On 2 September 2019, Mr Joseph sent an email to the Defendant informing him that the notice of motion dated 22 August 2019 to vacate the hearing dates had been dismissed. From 2 to 13 September 2019, the firm was awaiting a decision of the Defendant's financier the ANZ bank in relation to the firm's letter dated 30 August 2019 requesting an extension of the Defendant's overdraft in order to fund further legal fees.
Mr Joseph contacted the Defendant on 13 September 2019 to discuss how the firm would approach the proceedings in light of the Defendant's unsuccessful notice of motion to vacate, no response having been received from the ANZ bank and the fact that no counsel had been retained. A file note annexed to Mr Penfold's affidavit dated 13 September 2019 indicates instructions to make an application to vacate the hearing dates and to engage Mr Brezniak as counsel.
Mr Brezniak remains to be briefed by Mr Penfold with numerous expert reports that the Prosecutor intends to adduce and Mr Spiers' expert report dated 2014. The Prosecutor intends to rely on the reports of 11 witnesses. Mr Penfold believes that Mr Brezniak has been asked to consider pre-trial applications such as an application for a stay for so much of the period of the prosecution dates as may be statute barred and on the grounds of various abuses of process.
Mr Penfold was told that Mr Joseph went overseas between 19 and 28 September 2019. He was also told that Mr Joseph has been subpoenaed to attend court for a trial in a criminal matter in Sydney in the week beginning 30 September 2019 for one day. Mr Penfold believes that Mr Brezniak will require Mr Joseph for the hearing given Mr Joseph's intimate knowledge of the proceedings and the fact that Mr Brezniak has only recently been engaged.
Mr Joseph transferred carriage of the matter to Mr Penfold on 19 September 2019 by memo. In this memo Mr Joseph stated that the relevant material had been sent to Mr Brezniak and Mr Penfold should await further advice as to whether a notice of motion to vacate the hearing dates should be filed. Mr Penfold is not in a position to appear as an instructing solicitor in this matter due to conflicting professional commitments and his lack of knowledge of the matter and the Land and Environment Court.
In cross-examination Mr Penfold stated that Mr Joseph sent emails to Mr Brezniak containing expert reports on or about 17/18 September 2019 which were not received by Mr Brezniak. Mr Penfold requested that the firm's secretary try sending the documents again. According to Mr Penfold these documents were sent on 24 September 2019. Mr Penfold did not send a hard copy of the documents to Mr Brezniak because he thought that Mr Joseph had already done this. Mr Penfold cannot recall whether there was a letter enclosing the hard copy documents sent by Mr Joseph to Mr Brezniak on the file. From 19 September 2019 to present, the firm has not sent any hard copies of documents to Mr Brezniak. Mr Penfold was told that Mr Joseph went overseas to Japan.
In re-examination, Mr Penfold stated that his workload has increased since his and Mr Joseph's personal secretary resigned on 23 August 2019. Mr Joseph has been stressed about meeting deadlines.

Prosecutor's evidence

The Prosecutor read the affidavit of Ms Hoult acting principal legal officer for the Prosecutor dated 26 September 2019. In the lead-up to the hearing, the Prosecutor and its counsel have been engaged in hearing preparations. On 1 August 2019, Ms Hoult became aware that junior counsel previously briefed in this matter had become unavailable for the hearing. Mr Hartford-Davis was sent a brief on 6 September 2019 after the third application to vacate the hearing was dismissed. Since then the Prosecutor has incurred the costs of Mr Hartford-Davis preparing for the hearing. The 11 witnesses the Prosecutor intends to call live in Sydney, Armidale, Orange, Canberra, Albury, Dubbo, Inverell and Tamworth. Flight and accommodation arrangements have been made for the six witnesses who will be travelling from outside of Sydney to attend the hearing. Each of the witnesses has made arrangements within their workplaces and personal lives to attend Sydney for the hearing.

Defendant's submissions

Mr Brezniak who is briefed in the overall matter submitted that he needs more time to prepare for the trial. There have been problems with delivery of the whole brief to Mr Brezniak and he is yet to fully appreciate the Prosecutor's expert witness reports or why the s 247K notice states as it does.
Mr Brezniak needs time to evaluate the Prosecutor's evidence. He has not yet received or read the expert reports that the Prosecutor intends to rely on. Mr Spiers' expert report dated 4 December 2015 (Ex A) and Mr Jenkins' expert report dated 28 January 2015 (Ex B) are examples of the type of complex material Mr Brezniak will need to analyse before the trial commences. The Prosecutor intends to rely on Mr Spiers' 2017 report but Mr Brezniak has not yet had access to Mr Spiers' earlier reports which are also referred to. Even if the Prosecutor has decided or decides not to rely on any of the earlier expert reports of Mr Spiers, Mr Brezniak needs time to read through the material to see if it assists the Defendant's case. Mr Brezniak does not yet understand the differences between the methodology used by Mr Spiers and experts the Defendant may call. The Prosecutor has knowledge which the Defendant's counsel does not constituting unfair prejudice to the Defendant. Since Mr Brezniak has yet to traverse the entirety of the Prosecutor's evidence, the Defendant cannot indicate how long it requires to be prepared for the hearing.
Mr Brezniak has no prior experience in this matter albeit he is experienced in criminal law. The hearing dates should be vacated to ensure the just determination of proceedings. Through no fault of the Defendant the previous senior counsel became ill, the hearing dates were not vacated by the Court and a new barrister has had to be found at very short notice.
There was no unreasonable delay in the Defendant filing its motion or providing Mr Brezniak with the outstanding expert reports since Mr Penfold is overworked in circumstances where the solicitor with carriage of the matter was overseas and the firm was understaffed (see at [6] and [13] above).
The motion was filed by the Defendant in good faith. He is of good character and has no prior criminal record apart from previous convictions relating to land clearing. The application is not careless and not so unreasonable that the Court would dismiss it.
If the Defendant's motion to vacate the hearing dates is granted, the progression of the proceedings will not be delayed unreasonably. This is because the first adjournment of the proceedings occurred only recently in June 2018 [occurred 24 May 2018].

Prosecutor's submissions

Firstly, it is important to the administration of justice that criminal charges be heard and determined expeditiously. The proceedings were commenced almost three and a half years ago. The trial has been vacated twice already. The most recent application was made and dismissed some five weeks ago: Turnbull No 1. The proceedings should be heard and determined without further delay.
Secondly, the Defendant will not be denied a fair trial if the trial dates are maintained. The Defendant has been represented throughout by the same solicitor who is intimately familiar with the charges. The skilled instructing solicitor Mr Joseph returns on 28 September 2019 after his absence in Japan at a vital preparation time for the hearing. Further Mr Brezniak, an experienced and able counsel, is available for the whole trial. If Mr Brezniak has not been adequately briefed with the evidence in the proceedings since 13 September 2019 that is the fault of the Defendant or his solicitor. There is no explanation for the Defendant's solicitors' failure to simply email and/or post a full brief to Mr Brezniak. With the benefit of instructions from a solicitor who has had carriage of this matter for years, it is reasonable to expect that counsel of Mr Brezniak's capability and experience can properly represent the Defendant at trial. The matter is neither particularly complex nor are the issues or evidence of particularly broad ambit. The evidence as a whole is not insubstantial but the Prosecutor has indicated to the Defendant discrete parts it intends to rely on. The Prosecutor has told the Defendant it intends to rely on 11 witnesses. All 11 are presently required for cross-examination. Six of these witnesses are largely procedural and their evidence should be uncontentious. The Prosecutor's core witnesses are Mr Farago (catchment management officer), Mr Fisher (officer of the Department of the Environment and Energy (Cth)), Mr Mazzer (ecologist), Dr Nadolny (ecologist) and Mr Spiers. The ambit of their affidavits that the Prosecutor intends to read has been confined.
Thirdly, the conduct of the Defendant or his solicitors since 28 August 2019 has been unreasonable. The Court refused the application to vacate the hearing dates on 28 August 2019. Since then there has been: 1. delay on the part of Mr Joseph in communicating the decision to the Defendant (from 28 August to 2 September 2019); 2. delay on the part of Mr Joseph and the Defendant in seeking or giving instructions to obtain new counsel (from 28 August to 13 September 2019); 3. delay on the part of Mr Joseph and Mr Penfold in providing Mr Brezniak with a full brief in circumstances where the briefs from the previous counsel had been returned (from 13 to 23 September 2019 and ongoing to the present); and 4. delay on the part of the Defendant in making this application to vacate the hearing dates (from 13 to 23 September 2019). The Defendant did not appear at the pre-trial mention on 16 September 2019 and the Court nor the Prosecutor were told that at that time the Defendant's solicitors had instructions to file a notice of motion to vacate the trial dates.
The Defendant is not indigent. Contrary to what Mr Penfold stated in his affidavit, there is nothing in the firm's letter to the ANZ bank dated 30 August 2019 which suggests that the Defendant required additional money to fund his legal proceedings. The letter suggests that additional funds were required for the Defendant's convenience to continue to pay asset finance and other periodic payments out of the overdraft. The Defendant is referred to as having good equity.
Further, any pre-trial application should have been made at an earlier time. Under s 247K(k) of the CP Act the Defendant in providing its response to the Prosecutor's notice issued under s 247J was required to outline "any significant issue the defendant proposes to raise regarding an application for an appearance order" inter alia. The Defendant in failing to notify the Prosecutor of its intention to make a pre-trial application in its s 247K defence response failed to comply with that provision.
Finally, it is apparent that the Defendant has been afforded many opportunities by this Court at significant public inconvenience (that is, in the vacation of the February 2019 hearing dates) to properly brief counsel of his preference. His failure to avail himself of that opportunity is a matter for which he is responsible.

Consideration

As already identified, this is the second application by the Defendant to vacate the third hearing dates. The first application was dismissed in Turnbull No 1. Two earlier applications to vacate the first and second hearing dates were granted in May 2018 and February 2019 respectively.
The authorities referred to in Turnbull No 1 identify the need to balance affording a defendant fairness at trial with the public interest in getting a contested criminal matter heard in a timely fashion. As Pepper J was considering an application for vacation based on the absence of counsel, a number of authorities cited are dealing with fairness in the context of no legal representation being available to a defendant. Since the Defendant now has adequate legal representation, at issue is whether lack of time for trial preparation results in such unfairness that the trial should again be postponed. Unsurprisingly given the procedural history to date, the Prosecutor emphasised in submissions authorities such as Murphy v R (1989) 167 CLR 94; [1989] HCA 28 at 99 and Slotboom v R [2013] NSWCCA 18 at [36] which confirm the desirability of the expeditious hearing of criminal trials. The third hearing dates were allocated in February 2019 several months ago. There has self-evidently been a long delay in this matter getting to trial.
The authorities cited in Turnbull No 1 set out above also concern balancing competing objectives where a defendant is indigent and the impact that lack of legal representation may have in contested criminal proceedings. The Defendant is not indigent as is clear from the letter to the ANZ bank from his solicitor attached to the affidavit of Mr Penfold. As the Prosecutor submitted, that letter is not drafted on the basis that funds are required for legal fees.
The Defendant has competent legal representation. While I appreciate that Mr Brezniak is in a challenging position I do not consider it is insurmountable given the orders I intend to make to delay the hearing within the allotted time period for the hearing. He has the benefit of being instructed by a solicitor with long-standing and intimate knowledge of the matter. That Mr Joseph chose to absent himself from NSW during an important period of trial preparation and in the absence of adequate secretarial support leaving the matter to Mr Penfold his employed solicitor, who at that stage had no knowledge of the matter, cannot be a relevant consideration in the Defendant's favour.
Much of Mr Penfold's affidavit summarised above in [8]-[12] details the efforts made to brief counsel following Turnbull No 1, difficulties in providing some of the brief to Mr Brezniak, namely expert reports due to problems with emails as well as the absence of Mr Joseph leaving the matter with Mr Penfold who had no previous knowledge of it. The Prosecutor is critical of what it submitted is tardy behaviour by the solicitors as set out in [23] above, some of which I agree with in terms of the lack of timely and effective briefing of Mr Brezniak and delay in making this application for vacation of hearing dates.
The Prosecutor's estimate of the hearing time is presently four days based on the evidence it intends to adduce and given the existing s 247K notice filed by the Defendant. The Prosecutor has informed the Defendant in opening submissions the evidence to be relied on with particularity in relation to, for example, the parts of the transcript of related Class 4 proceedings to be relied on. The material is not particularly voluminous. As the Prosecutor submitted, of the 11 witnesses to be called, five raise core matters, with the balance essentially dealing with procedural matters suggesting no, or very limited, cross-examination of these witnesses will be necessary.
That estimate of trial time appears reasonable given the nature of the evidence to be adduced although I appreciate that it is difficult to know precisely in the absence of knowledge of the Defendant's case.
While the affidavit of Mr Penfold refers to consideration of pre-trial applications concerning strike-out of some of the charge on the basis that part is statute barred and/or an abuse of process, there has been many months, indeed years, for these matters to be considered by the Defendant's earlier legal team(s). No such application has yet been made. That provides no basis for further delay of this contested hearing.
Balancing the various matters referred to above in the exercise of my discretion the hearing should commence on Tuesday 8 October 2019 which allows five hearing days of the allotted 10 to be used and will hopefully be sufficient. The Defendant is provided with an additional full week of preparation time and Mr Joseph is available to instruct Mr Brezniak for most of that time.

Orders

The Court orders: 1. The Defendant's notice of motion dated 24 September 2019 is dismissed. 2. The hearing dates 30 September to 4 October 2019 are vacated. 3. The hearing dates 8 to 14 October 2019 are maintained.

Amendments 03 October 2019 - Cover sheet and [36] Order (1) - typographical error - "Respondent" changed to "Defendant" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2019

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Cases Cited (22)

Cited By (1)