Denning v Department of Environment and Conservation

Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485; CASES CITED: Director of Public Prosecutions (NSW) v Dodds [2005] NSWCA 115; McCann v Penrith City Council [2004] NSWLEC 232

APPLICANT Mr P R Glissan (barrister) SOLICITORS Not Applicable LEGAL REPRESENTATIVES: RESPONDENT Mr M M Kelly (solicitor) SOLICITORS Environment Protection Authority

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

WILLIAM JAMES DENNING V DEPARTMENT OF ENVIRONMENT AND CONSERVATION

1 HIS HONOUR: These proceedings involve an appeal from the Local Court which convicted and fined the appellant, Mr William Denning. Separate questions as to the competency and nature of the appeal have been fixed for a preliminary hearing. This judgment determines these separate questions. The conviction, sentence and appeal 2 Mr Denning pleaded guilty in the Local Court at Port Macquarie on 7 August 2006 to having committed an offence against s 112G(1) of the National Parks and Wildlife Act 1974 in that he, being the captain of the vessel named Discovery, did approach two Megaptera novaeangliae (humpback whales) at a distance closer that 100 metres being the distance prescribed by cl 57(3)(a)(2) of the National Parks and Wildlife Regulation 2002 as then in force. The Local Court (Magistrate W Evans) convicted him, fined him $3,000 and ordered him to pay the prosecutor's legal costs of $800 and court costs of $67. 3 Mr Denning was dissatisfied with the Local Court's decision to convict and fine him. Mr Denning says that although he gave instructions to his solicitor, Mr Magni, to enter a plea of guilty, he did not feel he was guilty. He says he relied on his solicitor's knowledge and expertise and his advice that Mr Denning should plead guilty and that if he contested the charge and was found guilty by the Court he would be ordered to pay huge costs. 4 The solicitor had given Mr Denning the example of a recent case before the same Magistrate where a man had videoed a dog in pain that had been bitten by a snake. The man was prosecuted by the RSPCA, was found guilty by the Court, was convicted and fined, and ordered to pay over $30,000 in costs. 5 The solicitor advised Mr Denning that "if you plead guilty, the fine will be minimal" but "if you do not plead guilty, you also run the risk of huge costs like the RSPCA case involving the dog of over $30,000. You should plead guilty". Mr Denning had responded, as he recalls it, "Well, you're the solicitor. You know about court proceedings. I've got to leave it up to you but I'm not guilty". After this discussion, Mr Denning knew that his solicitor was going to plead guilty on his behalf and to make a plea of mitigation to the Local Court. Mr Denning was in the Local Court on 7 August 2006 while his solicitor did so. Mr Denning did not at any time at the hearing before the Local Court object to his solicitor's entry of the plea of guilty on his behalf or making the plea of mitigation. 6 Nevertheless, Mr Denning says, he "felt devastated" when the Local Court convicted him and fined him $3,000. 7 Two and a half weeks later, Mr Denning attended the Registry at the Port Macquarie Court House which serves both the Local Court and the District Court of New South Wales. Mr Denning said he had a conversation with a court officer employed in the Registry to the following effect:

Denning: "My name is Bill Denning. I want to appeal against my conviction and sentence in a case which was dealt with by the Magistrate here on 7 August. Is there some form I have to file?"

Officer: "You pleaded guilty, so you can't appeal against your conviction. You can only appeal against the severity of your sentence. Here, fill out this form in your own handwriting, sign it and date it. Your appealing on ground A". 8 Mr Denning says the officer handed to him, over the counter, a form headed "Notice of Appeal to the District Court". Mr Denning says he filled out the form in his own handwriting, signed and dated it. The officer witnessed his signature on the Notice of Appeal, completed it in his handwriting, and date stamped it with the Registry's filing stamp after Mr Denning paid the filing fee of $82.00. 9 The form "Notice of Appeal to the District Court", which Mr Denning completed, had the following printed words on it: "I am appealing on the following grounds: (NB: cross out whichever is not applicable) A:- I am appealing the above sentence BECAUSE THE PENALTY IS TOO SEVERE B:- I am appealing the above conviction/order BECAUSE I AM NOT GUILTY C:- I am appealing because I CONTEST THE APPREHENDED VIOLENCE ORDER MADE IN THE PROCEEDINGS". 10 Mr Denning circled the letter A and placed a tick to the left of the circled A. The letter A referred to the first ground of "appealing the above sentence because the penalty is too severe". 11 Mr Denning did not circle the letter B or tick it or otherwise positively identify the second ground of appealing the conviction because of a lack of guilt. 12 Similarly, Mr Denning left unannotated the third ground, ground C, in relation to contesting an apprehended violence order. It obviously had no relevance to Mr Denning's case. 13 Although the instructions on the printed form stated "NB: cross out whichever is not applicable", Mr Denning did not cross out any of the grounds, even the clearly non-applicable ground C of contesting an apprehended violence order. Instead, Mr Denning evidenced his intended ground of appeal by circling and ticking the letter A referring to the first ground of appeal. By his so doing and by not circling and ticking or otherwise positively identifying any of the other grounds, Mr Denning evidenced his intention to appeal only on the ground of severity of sentence. This accords with what Mr Denning said the court officer told him that he should do. 14 Mr Denning says, however, that notwithstanding the manner in which he completed the form, he still believed that he was not guilty and he wanted to appeal against his conviction and sentence. The problem for Mr Denning is that that is not what he did on the form which constitutes the Notice of Appeal. 15 After Mr Denning had filed his Notice of Appeal, the prosecutor, the Department of Environment and Conservation, were served with a copy of the Notice of Appeal filed 25 August 2006. The prosecutor noted that the appeal stated it was an appeal to the District Court. 16 On 6 September 2006, the prosecutor sent Mr Denning's solicitor a letter advising that the appeal had been lodged in the incorrect jurisdiction and inviting Mr Denning to withdraw the appeal from the District Court and to lodge the appeal in the Land and Environment Court. 17 On 22 September 2006, Mr Denning wrote to the prosecutor requesting documents, including videos, statement and affidavits. 18 On 29 September 2006, the prosecutor responded to Mr Denning's letter enclosing the requested documents. 19 On 4 October 2006, Mr Denning's solicitor wrote to the District Court at Port Macquarie, with a copy to the prosecutor, stating: "Due to inexperience, the writer and court staff at Port Macquarie incorrectly caused the abovementioned matter to be listed for severity appeal in the District Court. With assistance from Mr Samuels of Parks & Wildlife we now belatedly realise that it has to be transferred to the Land and Environment Court. That court staff are aware of Mr Denning's plight and will accept the transfer of appeal to the Registry in Sydney". 20 Also on 4 October 2006, Mr Denning received oral advice from a barrister, Mr Glissan. That advice was confirmed in writing on 5 October 2006. Mr Glissan advised: " This appeal [to the District Court lodged on 25 August 2006] is a nullity, as the District Court of New South Wales has no jurisdiction to hear it; ·On your telephone instructions to me that you are not guilty of this offence, you wished to plead not guilty to it in the Port Macquarie Local Court on 7 August 2006, but you did not do so on the advice of your solicitor, Mr Magni, the only avenues open to you are: (1) Pursuant to Section 5 of the Crimes (Local Courts Appeal and Review) Act 2001 ("the Act"), you may apply to the Minister for annulment of your conviction and sentence (in which event, if satisfied that a question or doubt exists as to your guilty, the Minister may refer your application to the Port Macquarie Local Court for hearing); (2) Pursuant to Section 32 of the Act, you may appeal to the Land and Environment Court against your conviction only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court; Pursuant to Section 33 of the Act, you must make an application for leave to appeal to the Land and Environment Court within 3 months of your conviction and sentence - i.e. by 7 November 2006; Pursuant to Section 34 of the Act, you must make an application for leave to appeal to the Land and Environment Court by lodging a written application for leave to appeal, together with a written notice of appeal, with the Registrar of the Port Macquarie Local Court - in the application for leave to appeal you must state the general grounds of your application and why you did not make it within 28 days of your conviction; You should appear in person at the District Court of New South Wales at 22-26 Murray Street, Port Macquarie at 10.00 am next Monday, 9 October 2006, mention the current appeal on behalf of both parties, inform the presiding Judge that it is a nullity because the District Court of New South Wales has no jurisdiction to hear it, and ask the Judge to dismiss it for that reason with no order as to costs; You should urgently apply for legal aid to pursue both the above avenues open to you under Sections 5 and 32 of the Act…" 21 On 9 October 2006, the mention of Mr Denning's appeal was stood across to 10 October 2006. 22 On 10 October 2006, initially Mr Denning then his solicitor Mr Magni addressed the District Court (Judge Morgan). The Judge ordered the appeal be transferred from the District Court to the Land and Environment Court. 23 In fact, there is no power for the District Court to transfer matters to the Land and Environment Court. 24 Nevertheless, by 7 November 2006, the Notice of Appeal that had been filed on 25 August 2006 in the Local Court at Port Macquarie had been received by the Land and Environment Court and had been allocated to Class 6 of the Court's jurisdiction. Class 6 involves appeals as of right, against convictions or sentences of the Local Court with respect to environmental offences: see s 21A of the Land and Environment Court Act 1979. 25 After the District Court purported to transfer the appeal to the Land and Environment Court on 10 October 2006 but before the Land and Environment Court received it on 7 November 2006, Mr Denning applied to the Legal Aid Commission for legal aid. This was in accordance with Mr Glissan's advice. The application for legal aid by Mr Denning was dated 30 October 2006. 26 In the application for legal aid, Mr Denning noted, in answer to the question "2. When is the next court date (if you know)?", that "not known - criminal appeal to be lodged by 7/11/06". 27 Mr Denning sets out his version of the circumstances surrounding the entry of the plea of guilty in the Local Court on 7 August 2006 and the subsequent conviction and fine. He then refers to his lodging of the appeal on 25 August 2006 in these terms: "Because I believe I was not guilty of any offence, I lodged an appeal form given to me by the Port Macquarie Local Court Registry - this appeal was before the District Court on 10/10/06 for mention - the Magistrate/Judge transferred the matter to the Land and Environment Court". 28 Mr Denning refers to the receipt of legal advice from Mr Glissan: "Since the D.E.C. wrote + advised that my appeal was filed in the wrong jurisdiction, I have been lucky to have been assisted free of charge by a relative of one of the cruise boat staff members - barrister, Paul Glissan, who will act on legal aid rates for me. I attach a letter dated 5 October 06 from Mr Glissan to myself" (This is the advice of Mr Glissan dated 5 October 2006 earlier referred to). 29 Mr Denning then specifically refers to that part of Mr Glissan's advice that a written application for leave to appeal to the Land and Environment Court, together with a written notice of appeal, had to be prepared and lodged with the Registrar of the Port Macquarie Local Court within three months of the conviction and sentence, i.e. by 7 November 2006. Mr Denning states: "Mr Glissan has to urgently prepare both my applications (as detailed in his letter + file them by 7 Nov 06 ". 30 From these statements in his application for legal aid, Mr Denning can be seen to be aware that his Notice of Appeal lodged on 25 August 2006 did not constitute either an application for leave to appeal against the conviction of the Local Court or a notice of appeal against that conviction and that instead both such documents needed to be urgently prepared and filed by 7 November 2006. 31 Legal aid was eventually granted to Mr Denning, but not until a decision by the Legal Aid Review Committee on 24 January 2007, which upheld Mr Denning's appeal against the Legal Aid Commission's earlier refusal of legal aid. 32 However, Mr Denning did not take the action that Mr Glissan had advised Mr Denning that he should take and that Mr Denning had repeated in his application for legal aid, of lodging a written application for leave to appeal to the Land and Environment Court together with a written notice of appeal against conviction by 7 November 2006 or, indeed, at all. The separate questions concerning the appeal 33 After the matter had commenced in the Land and Environment Court on 7 November 2006, concern was expressed as to the competency of the appeal by Mr Denning in three respects: first, whether, by reason of the route by which the appeal came to be filed in the Land and Environment Court, namely by transfer from the District Court, the Land and Environment Court has jurisdiction to entertain the appeal; second, whether the appeal is limited to an appeal on severity only or is also an appeal against conviction; and third, whether Mr Denning can now withdraw his plea of guilty. 34 On 8 March 2007, the Court separated and fixed for separate determination at a preliminary hearing three issues intended to address these concerns. The three questions are: "(a) Whether the Court had jurisdiction to entertain the appeal? (b) Whether the appeal is limited to an appeal on severity only? (c) Whether the appellant may now withdraw the plea of guilty?" 35 The hearing of these three questions took place on 7 May 2007. I have determined that the questions should be answered as follows: (a) Yes; (b) Yes; and (c) No. My reasons are as follows. Jurisdiction 36 Under s 31 of the Crimes (Appeal and Review) Act 2001, a person who has been convicted or sentenced by a Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence: s 31(1). However, if the person is convicted in the person's absence or following the person's plea of guilty there is no appeal as of right against the conviction: s 31(1A). An appeal must be made within 28 days after sentence is imposed: s 31(2) of the Crimes (Appeal and Review) Act 2001. 37 If the person was convicted in the person's absence or following the person's plea of guilty, the person may appeal but only by leave of the Land and Environment Court and then only on a ground that involves a question of law alone: s 32(1) of the Crimes (Appeal and Review) Act 2001. The application for leave must be made within 28 days of sentence being imposed: s 32(4) of the Crimes (Appeal and Review) Act 2001. 38 If this 28 day period has elapsed, late application can still be made but only by leave of the Land and Environment Court: s 33(1) of the Crimes (Appeal and Review) Act 2001. The application for leave must state the reasons why an application for leave to appeal was not made within the 28 day period allowed by s 32(4): s 34(4) of the Crimes (Appeal and Review) Act 2001. Any such late application must be made within three months after the conviction, sentence or order is made or imposed: s 33(2) of the Crimes (Appeal and Review) Act 2001. The Court is not to grant leave to appeal in relation to an application under s 33 unless it is satisfied that it is in the interests of justice that leave be granted: s 36(2) of the Crimes (Appeal and Review) Act 2001. 39 The means of lodging either an appeal under s 31 or an application for leave to appeal under s 32 or s 33 is specified in s 34 of the Crimes (Appeal and Review) Act 2001. An appeal as of right under s 31 is to be made by lodging a written notice of appeal with the registrar of any Local Court: s 34(1)(a). The notice of appeal must state the general grounds of appeal: s 34(2). 40 An application for leave to appeal under s 32 or s 33 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with the registrar of any Local Court: s 34(3)(a). The application for leave to appeal must state the general grounds of the application and, in the case of a late application for leave to appeal under s 33, must state the reasons why an appeal or an application for leave to appeal was not made within the time allowed by s 31 or s 32 as the case may be: s 34(4) of the Crimes (Appeal and Review) Act 2001. 41 On the granting of leave to appeal, an appeal is taken to be made in accordance with the written notice of appeal that is required by s 34(3) to accompany the written application for leave to appeal: s 34(5) of the Crimes (Appeal and Review) Act 2001. 42 The consequence of these statutory provisions is that at the time Mr Denning attended the Local Court at Port Macquarie wishing to appeal:

(a) he could appeal as of right under s 31(1) only against the sentence imposed by the Local Court on 7 August 2006;

(b) he was within the 28 day period for an appeal against sentence under s 31(2);

(c) the appeal against sentence was required to be made by lodging a written notice of appeal with the registrar of the Local Court under s 34(1)(a); and

(d) The written notice of appeal was required to state the general grounds of appeal under s 34(2) of the Crimes (Appeal and Review) Act 2001. 43 Mr Denning's written Notice of Appeal that he filed on 25 August 2006: was a written notice of appeal, although wrongly entitled as an appeal to the District Court rather than the Land and Environment Court; was filed within the required 28 day period; was lodged with the Registrar of the Local Court at Port Macquarie; and did state the general ground of appeal as being an appeal against severity of sentence (by circling the letter A and inserting a tick next to the letter A of the first ground of appeal). 44 Mr Denning's Notice of Appeal filed on 25 August 2006 was competent to commence an appeal pursuant to s 31 of the Crimes (Appeal and Review) Act 2001 against the severity of the sentence imposed by the Local Court. The defect in the Notice of Appeal of refering to the District Court rather than to the Land and Environment Court can be amended by the Land and Environment Court pursuant to s 62 of the Crimes (Appeal and Review) Act 2001. The Notice of Appeal indicated an intention to appeal to a court able to hear such an appeal and the only such court for an environmental offence is the Land and Environment Court: see Director of Public Prosecutions (NSW) v Dodds [2005] NSWCA 115 (11 April 2005) at [20]-[22]. 45 Once Mr Denning's appeal was made on 25 August 2005, nothing that occurred in the District Court subsequently affected the competency of the appeal. The District Court had no jurisdiction to hear an appeal from a conviction or sentence of the Local Court with respect to an environmental offence. Only the Land and Environment Court had such jurisdiction. Accordingly, the directions and orders of the District Court that were made after filing of the Notice of Appeal on 25 August 2006 up to and including 10 October 2006, were a nullity. 46 Nevertheless, as a matter of fact, the written Notice of Appeal ultimately was forwarded to the Registrar of the Land and Environment Court. The fact that it came via the District Court rather than from the Local Court does not affect the validity of the Notice of Appeal. 47 Accordingly, the Land and Environment Court has jurisdiction to hear and determine the appeal against severity of sentence imposed by the Local Court, which appeal was made by Mr Denning on 25 August 2007, including having jurisdiction to make such amendments as are necessary to correct any defects in the Notice of Appeal. Nature of appeal 48 The statutory provisions and the circumstances referred to in answer to the first question also have the consequence that the appeal is limited to being an appeal on severity only. 49 As I have stated, because Mr Denning was convicted following a plea of guilty, he was not entitled to appeal as of right under s 31 of the Crimes (Appeal and Review) Act 2001 against the conviction. Mr Denning could appeal against the conviction only by leave of the Land and Environment Court and then only on a ground that involves a question of law alone. The granting of leave to appeal is an essential jurisdictional prerequisite to Mr Denning being able to appeal against the conviction. 50 At the time Mr Denning completed the form given to him by the court officer at the Port Macquarie Local Court, Mr Denning had not applied for and the Land and Environment Court had not granted leave to appeal against the conviction. Accordingly, Mr Denning could not at that time lodge a written notice of appeal against the conviction imposed by the Local Court on 7 August 2006. 51 In any event, as I have noted, Mr Denning did not in fact lodge a written notice of appeal against conviction. Instead, by his annotations on the letter A on the first ground of appeal, Mr Denning indicated that he was only appealing on the first ground of severity of sentence. 52 The notice of appeal also cannot be construed as an application for leave to appeal against the conviction because, first, it does not purport, either expressly or by necessary implication from the written notice, to be an application for leave to appeal against the conviction, whether to the Land and Environment Court or any other court; second, it does not state the general grounds of the application for leave to appeal as required by s 34(4); and third, it was not accompanied by a written notice of appeal which itself stated the general grounds of appeal against the conviction, as required by s 34(3) and (2) of the Crimes (Appeal and Review) Act 2001. 53 Finally, although no written application has been made by Mr Denning, the Notice of Appeal against the severity of sentence cannot now be amended by the Land and Environment Court pursuant to s 62 of the Act to add an application for leave to appeal under s 32 or 33 of the Crimes (Appeal and Review) Act 2001 as any such application is outside the time limits prescribed. The three month period for making a late application under s 33 expired on 7 November 2006. Applications outside the three month period are not possible: Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 (8 August 2006) at [24]-[28]. 54 For these reasons, Mr Denning's appeal is limited to an appeal against the severity of the sentence only. Withdrawal of plea 55 The powers of the Land and Environment Court on hearing an appeal against a conviction or the severity of a sentence imposed by Local Court are limited to those prescribed under the Crimes (Appeal and Review) Act 2001. The appeal is to be by way of a rehearing on the basis of the certified transcripts or evidence given in the original Local Court except if leave is granted to give fresh evidence: s 37(1) and (2) of the Crimes (Appeal and Review) Act 2001. In the case of an appeal against the severity of sentence, this does not involve a rehearing addressing the conviction; rather only the order made by the Local Court as a consequence of its having convicted the appellant: see definition of "sentence" in s 3(1) of the Crimes (Appeal and Review) Act 2001. In determining the appeal against the severity of the sentence, the Court's powers are specified in s 39(2) to be setting aside the sentence, varying the sentence, or dismissing the appeal. These powers of rehearing and determination of an appeal against sentence do not include the power to allow a defendant who has pleaded guilty before and has been convicted and had a sentence imposed by the Local Court, to withdraw his plea of guilty on the appeal in the Land and Environment Court. 56 The decision of Cowdroy J in McCann v Penrith City Council [2004] NSWLEC 232 (11 May 2004) is distinguishable. That case was decided at the time when this Court's powers in hearing and determining an appeal in Class 7 against a conviction, order or sentence of the Local Court was under the Justices Act 1902. In particular, s 133AVB(2) of the Justices Act gave the Court power to allow an appeal against a conviction, order or sentence on any ground under s 104 of the Justices Act. These grounds were not restricted to a ground that involved a question of law alone (s 104(1)(a)) (as is the case now under s 32(1) and 43(1) of the Crimes (Appeal and Review) Act 2001) but also included a ground that involves a question of mixed law and fact (s 104(1)(b)) and a ground that the conviction, order or sentence cannot be supported having regard to the evidence (s 104(1)(c)). 57 Cowdroy J upheld the appellant's appeal on a ground he found to involve a question of mixed law and fact: at [21]. In reaching that conclusion, Cowdroy J found that the appellant did not have a genuine recognition of his guilt and accordingly the pleas of guilty could not be relied upon as constituting genuine pleas of guilty: at [19]. Cowdroy J held that but for the pleas of guilty, prima facie, a finding may have been made by the magistrate that the appellant had a genuine belief that he had a reasonable or lawful excuse for failing to comply with the notices. The issues thus raised in the appeal constituted "mixed questions of both law and fact. Accordingly, the appeal should be upheld pursuant to s 104(1)(b) and s 133AVB of the Justices Act": at [21]. 58 These powers and grounds of appeal under the Justices Act 1902 are no longer available to this Court. The powers and grounds of appeal under the Crimes (Appeal and Review) Act 2001 are considerably more confined. The conclusion Cowdroy J reached could not be made under the current statutory regime. 59 Accordingly, the answer to the third question is in the negative. Conclusion 60 The answers to the preliminary questions are:

(a) Whether the Court had jurisdiction to entertain the appeal? Yes.

(b) Whether the appeal is limited to an appeal on severity only? Yes.

(c) Whether the appellant may now withdraw the plea of guilty? No. 61 The matter should now be fixed for hearing for the appeal against severity of the sentence.

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