Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander

Land and Environment Court (NSW)|2010-07-01|Before: Pepper J, Mr P

Introduction 1 HER HONOUR: This was an application for the vacation and adjournment of Class 5 proceedings in respect of both defendants due to the possible unfitness to stand trial of one of the defendants, Mr Kelvin Alexander. Mr Alexander is also the principal director of the other defendant, Source & Resources Pty Limited ("S&R"). In order to understand the circumstances which gave rise to the application and the orders made by the Court it is necessary to have regard to the procedural history of matter. The Charges 2 By summons filed on 22 January 2010, the Department of Environment, Climate Change and Water ("DECCW") alleged that contrary to s 12(1) of the Native Vegetation Act 2003 ("the NVA"), S&R did through its contractor, Vin Heffernan Pty Ltd ("Vin Heffernan"), unlawfully clear native vegetation. 3 Further, by summons of the same date DECCW alleged that contrary to s 12(1) of the NVA, Mr Kelvin Alexander committed the same offence pursuant to s 45(1) of that Act, by reason of the fact that he was, at all material times, a director of S&R. 4 It is alleged that the clearing of approximately 22 ha took place between 1 November 2007 and 20 March 2008, on land at Broadwater, New South Wales, Lot 3 DP 1067054 ("the property"). 5 The clearing works involved clearing, stacking and burning cleared vegetation, site preparation and some earthworks. 6 No development consent had been granted to clear the property and the clearing was not the subject of a property vegetation plan ("PVP"). 7 In addition, by summons also filed on 22 January 2010, DECCW alleged that contrary to s 118D(1) of the National Parks and Wildlife Act 1974 ("the NPWA") S&R did, through its contractor Vin Heffernan, cause damage to the habitat, not being critical habitat, of a threatened species, namely, the Glossy Black-Cockatoo, knowing that the land damaged was habitat of that kind. 8 A similar charge was brought against Mr Alexander for committing the same offence as that of S&R pursuant to s 175B(1) of the NPWA because he was, at the time of the commission of the offence by the corporation, a director of S&R. 9 The habitat that was damaged included 17 or 18 species of cleared native vegetation, one of which was Allocasuarina littoralis, or Black She-Oak, which is a habitat of the Glossy Black-Cockatoo. 10 Both S&R and Mr Alexander pleaded not guilty to the charges. 11 Mrs Marika Alexander, Mr Alexander's wife, was also a director of S&R until September 2010. She has not been charged with any offence. The Defendants Were Initially Legally Represented 12 At the time the not guilty pleas were entered to all four charges, both defendants were represented by Kennedy & Cooke Lawyers, and in particular, by Mr Mark Hagan, solicitor. Appearances in respect of each summons were filed on 16 March 2010. 13 During the period in which the defendants were represented, consent orders were made for the filing and serving of evidence, including evidence by the defendants, in respect of the charges and the matter was set down for a two week hearing commencing 8 November 2010. These orders were not largely complied with by the defendants. 14 On 25 October 2010, and in breach of the minimum 28 day notice requirement contained in r 7.29(2)(a) of the Uniform Civil Procedure Rules 2005 (the hearing dates were set down on 2 July 2010), notices of ceasing to act were filed by "Anthony Mark Hagan" of Kennedy & Cooke Lawyers in all four matters. The Court understood that Mr Anthony Mark Hagan was the same person as Mr Mark Hagan and inferentially found this to be so. 15 On the evidence before the Court it appeared that Mr Hagan acted as a 'post box' for the defendants. This was so notwithstanding that the defendants, and in particular Mr Alexander, were facing serious criminal charges. It further appears that Mr Hagan did not obtain proper instructions from Mr Alexander that would assist either him or S&R in the preparation of their defences. Nor was a proof of Mr Alexander's evidence obtained. 16 These omissions are significant because Mr Alexander is an 83 year old man who, by his own admission, suffers from memory lapses in addition to experiencing hearing loss. Case Management Conference on 1 November 2010 17 At a case management conference on 1 November 2010, Mr Alexander, by telephone, informed the Court that he would not be filing any witness statements in support of his case. Further, that he did not want to cross-examine any of the prosecution's witnesses and that he would be relying on a short typewritten statement that he would give to the Court at the start of the trial. 18 Consequential orders were made for the filing and serving of an agreed statement of facts, a list of all affidavits to be read by the prosecutor, a list of all documents in the prosecutor's tender bundle to be relied on by the prosecutor and an outline of legal issues. 19 These orders were made, first, because Mr Alexander was unrepresented, and second, because of the significant volume of evidence that the prosecution indicated to the Court that it would be relying upon at the hearing. This included three volumes of affidavits, two volumes of tender bundle and a volume of exhibits. This was in addition to the agreed statement of facts that was filed and served, which contained a number of admissions by Mr Alexander on behalf of himself and the company. The Hearing Commences on 8 November 2010 20 On the first day of the hearing on 8 November 2010, Mr Alexander appeared unrepresented but assisted by his wife, Mrs Alexander. The Court was informed by both Mr and Mrs Alexander that Mrs Alexander would not be giving evidence in the trial. The Court explained to Mrs Alexander that while she would be permitted to assist Mr Alexander, she could not give evidence on his behalf in doing so. 21 The prosecutor, no doubt because of the unrepresented status of Mr Alexander and S&R, proceeded to make a comprehensive opening. During the course of the opening it became apparent that none of the materials and evidence served upon the defendants by the prosecutor had been brought to Court by Mr and Mrs Alexander. When asked by the Court why this was so, Mr Alexander informed the Court that the material had been left in Eden, where he and his wife reside. The prosecution properly and promptly assisted by giving to Mr and Mrs Alexander an additional copy of the statement of agreed facts (which included a small volume of associated material) so that, at the very least, the opening could be followed by them. 22 After the prosecutor's opening, Mr Alexander elected to make an oral statement to the Court (while this was at the Court's invitation, the Court nevertheless stressed to Mr Alexander that he was not obliged to say or do anything at this stage). The statement was rambling, inconsistent in parts and generally difficult to follow. During the course of this statement Mr Alexander sought to furnish the Court with various documents which he asserted would establish his defence. The Court accepted the documents but did not receive them into evidence. 23 The statement by Mr Alexander and the documents he handed up to the Court revealed the following: (a) that the defendants believed that they were permitted to clear "regrowth" pursuant to the NVA, and that in their view advice had been obtained from the Catchment Management Authority that permitted the clearing of "regrowth" on the property;

(b) that the cleared vegetation was, in the mind of the defendants, "regrowth" as defined in the NVA;

(c) that the defendants believed that the remaining uncleared vegetation also constituted habitat for the Glossy Black-Cockatoo, and that, therefore, no damage had been done to its habitat in breach of s 118D(1) of the NPWA; and (d) that it had never been the intention of the defendants to damage the habitat of that bird. 24 The statement and documents referred to evidence from other persons who were not, the Court was informed by Mr Alexander, intended to be called as witnesses for the defendants. 25 As a consequence of the events on the first day of the hearing, the Court formed the view that Mr Alexander did not appear to fully comprehend the matters being put by the prosecution during its opening and did not comprehend the gravity of the charges against S&R and himself. Furthermore, Mr Alexander did not appear to appreciate that possible defences legitimately raised by the defendants were, in the absence of any cogent and admissible evidence, unlikely to succeed. 26 As a consequence, when Court resumed the next day it was suggested to Mr Alexander that he obtain pro bono assistance through the New South Wales Bar Association's Legal Referral Assistance Scheme. A short adjournment was granted to Mr Alexander for the purpose of doing so. No objection to this course was made by the prosecution. 27 Prior to granting the adjournment, and while the Court was indicating its concern to the parties about Mr Alexander's failure to appreciate the seriousness of the situation in which he and S&R presently found themselves, Mrs Alexander informed the Court that the reason why neither defendant was represented was because they could not afford legal representation and that attempts had been made by the defendants to obtain legal representation but that these had not been successful. 28 When the matter resumed, Mr Peter McEwen SC announced that he was appearing on behalf of the defendants. Not unreasonably, he requested an adjournment so that he could take instructions from Mr Alexander and to review the filed evidence of the prosecution. The prosecution did not object to this course. As a consequence, the proceedings were stood over to 12 pm on 11 November 2010, for further mention. 29 When the matter resumed on 11 November 2010, Mr McEwen SC informed the Court that on the limited evidence that he had seen and on the instructions that he had been given to date, it appeared that several defences were potentially available to the defendants: (a) first, that the vegetation that had been cleared may have been "regrowth" for the purpose of the NVA, and therefore, was lawfully cleared; and

(b) second, that the defendants lacked the requisite knowledge necessary for a successful prosecution under s 118D(1) of the NPWA. 30 Further, Mr McEwen SC commented on the large amount of material that the prosecution had filed in the proceedings and stated that he was not in possession of all of it. In addition to the evidence which was located in Eden, further evidence was at the offices of the defendants' former solicitor, Mr Hagan. 31 Mr McEwen SC informed the Court that while he was willing and able to continue representing the defendants, he nevertheless required further time to gather and review the evidence filed to date and to prepare a short written statement from Mr Alexander. It was intended that this statement would constitute the evidence-in-chief of both defendants. 32 Mr McEwen SC also informed the Court that in addition to this written statement, there was expert evidence already filed in the Court by the prosecution, a report authored by Mr Nick Kariotoglou dated 2002, that the defendants would be relying upon. Mr McEwen SC stated that he had made enquiries as to Mr Kariotoglou's whereabouts and that regrettably he was presently in New Zealand and would not be returning to Australia until very late in the second week of the scheduled two week hearing. 33 Nevertheless it was Mr McEwen's belief that the proceedings could, unless Mr Kariotoglou was required for cross-examination by the prosecutor, if they resumed on 17 November 2010, conclude within the time allocated to hear the matter. 34 Mr Mark Higgins, on behalf of the prosecution, informed the Court that if this expert material was to be relied upon, the prosecution would seek to cross-examine Mr Kariotoglou. Furthermore, he indicated that there was expert evidence filed in the Court, namely, that of Mr Dimitri Young and Mr Kenneth Turner, which specifically addressed the matters contained in Mr Kariotoglou's report. It would therefore follow that, he submitted, it was highly likely that Mr McEwen SC would wish to cross-examine these witnesses. Thus, in his view, it was highly unlikely, if the trial were to resume as late as 17 November 2010, that it would finish within the allocated time. Accordingly, the prosecution stated, it could not consent to the adjournment sought. 35 In response, Mr McEwen SC candidly admitted that he was aware neither of the evidence of Mr Turner nor Mr Young and he accepted that it was possible that he would seek to cross-examine them. He again stated, which I accepted in all the circumstances, that he would simply not be ready to proceed until 17 November 2010. This time was necessary in order to obtain sufficient instructions from Mr Alexander to prepare the evidence of the defendants and to obtain and review the material filed to date. 36 The adjournment sought by Mr McEwen SC on 11 November 2010 was therefore, in part at least, granted by the Court, with the proceedings set down for further mention on 15 November 2010. The Effect of the Deficiencies in, and the Absence of, the Defendants' Legal Representation Prior to the Hearing Commencing 37 The reasons for granting the adjournment were as follows. First, while the defendants' prior lack of representation did not of itself mean that a miscarriage of justice would occur if the hearing was not adjourned, the question was whether, in all the circumstances, the defendants could receive a fair trial (Dietrich v The Queen (1992) 177 CLR 292 at 311, 325 and 343, Gassy v R (2008) 236 CLR 293 at [150] and Berben v R [2008] NSWCCA 125 at [23]). In the present case, the defendants had clearly been prejudiced by their lack of legal representation prior to the commencement of the trial. 38 Second, the offences with which the defendants were charged were serious (Philopos v R [2008] NSWCCA 66 at [62]-[63] and Director General, NSW Department of Industry & Investment v Mato Investments Pty Ltd (No 2) [2010] NSWLEC 196 at [9]). The maximum penalty for breach of s 12 of the NVA either by an individual or by a corporation is a fine of $1.1 million. For breach of s 118D of the NPWA the maximum penalty is a fine of $110,000 or imprisonment for one year or both. 39 Third, in my view, both during and after the departure of Mr Hagan the defendants were unable to obtain legal representation through no fault of their own (Philopos (at [63])). In the present case, the precise circumstances leading to Mr Hagan filing notices of ceasing to act were not known. The only evidence before the Court was an oral statement from Mrs Alexander that the representation could not continue due to a lack of funds. For present purposes I accepted this explanation. It therefore could not be said that the absence of legal representation was caused by any act of the defendants. I also accepted that, as Mrs Alexander stated, genuine attempts were made by the defendants to obtain legal representation prior to the hearing. These attempts consisted of contacting Legal Aid which, according to Mrs Alexander, told her that no funds would be made available. Mr Higgins stated that from his knowledge and experience of the guidelines for a grant of legal aid what Mrs Alexander stated was correct. 40 Fourth, whilst the defendants had it, the legal representation did not, from what Mr McEwen SC has submitted to the Court, appear to have provided much by way of assistance. While this factor alone would not have necessitated an adjournment of the proceedings (Cesan v The Queen; Mas Rivadavis v The Queen (2008) 236 CLR 358 at [83]-[89]), it was nevertheless one of the matters that I had regard to when considering all of the circumstances of the adjournment application. 41 It should be noted in this context that a solicitor on the record in any litigation has duties to both the Court and his or her client. In QGC Pty Ltd v Bygrave (2010) 186 FCR 376 Reeves J elaborated on these duties and their importance (at [52]-[54]): The importance of the role of a solicitor on the record

52 A solicitor on the record in any litigation has duties to both the Court and his or her client. However, it is significant in this context, that a solicitor's duty to the Court is "paramount" or "overriding": see Giannarelli v Wraith (1988) 165 CLR 543 at 555-556 per Mason CJ and 572 per Wilson J.

53 Both sets of duties serve very important purposes in the administration of justice. The main purpose of the former is to have an officer of the Court who is responsible to the Court for the proper conduct of the litigation before the Court and who is answerable to the Court should anything untoward occur in the litigation: see Myers v Elman [1940] AC 282 ( Myers ). The solicitor on the record therefore represents an essential component of the Court's ability to maintain control over the litigation before it .

54 As Lord Atkin observed in Myers [1940] AC at 302: If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible and will be admonished or visited with such pecuniary penalty as the Court thinks necessary in the circumstances of the case. 42 Albeit stated in the context of a conflict of interest in civil litigation, these comments are equally apposite, if not more so, in criminal proceedings where an individual's liberty may be at risk. By filing an appearance but only acting as a mere 'post box' for the defendants and by failing to file a notice of ceasing to act in a timely manner, Mr Hagan's representation appears to have been to the detriment of both the defendants and the Court. 43 Fifth, although the prosecutor had attempted to reduce the volume of material upon which it sought to rely, the fact remained that a brief adjournment of only one or two days would have been insufficient for Mr McEwen SC, only recently instructed to appear in the proceedings, to absorb and advise on the evidence. The Court was also conscious of the fact that Mr McEwen SC was not assisted by either a solicitor or junior counsel. Nevertheless, he commendably remained committed to representing the defendants, a fact about which the Court was, and continues to be, most grateful. 44 None of the above should in any way be seen to shed negative light on the conduct of the prosecutor which has, in my opinion, at all times been entirely proper. Indeed, it was because of the defendants' failure to indicate until very late what facts they agreed to (this did not occur until 3 November 2010, when the agreed statement of facts was finalised) that the prosecution correctly considered itself to be put to strict proof in respect of all elements of all four charges, thereby contributing to the compendious nature of the evidence filed. 45 Sixth, accommodation was also made for Mr Alexander's advanced age and the frailties associated with his memory and hearing. This meant that extra time was needed for Mr McEwen SC to conference with him. 46 Accordingly, in circumstances where: (a) the charges were serious;

(b) the defendants had not been legally represented through no fault of their own;

(c) the legal representation that had previously been afforded to the defendants was, on the evidence presently available to the Court, less than satisfactory;

(d) one of the defendant's, namely, Mr Alexander, was of advanced age and suffered from memory lapses and hearing loss;

(e) the volume of material filed to date and relied upon by the prosecutor was not insignificant;

(f) none of the evidence was in the possession of the defendants at Sydney; and

(g) there were genuine practical constraints imposed upon the defendants' recently obtained pro bono counsel,

to adjourn the proceedings temporarily as sought by Mr McEwen SC was not only "just", but would in all likelihood result in a 'quicker' and 'cheaper' resolution of the real issues for determination in the proceedings (s 56 of the Civil Procedure Act 2005). 47 In so determining, I was nevertheless conscious that the adjournment would involve prejudice to the prosecutor, and moreover, that it would be unlikely that the trial would conclude in the time allocated to hear it. 48 However, these latter factors did not outweigh the significant prejudice and unfairness that would have been visited upon the defendants if the hearing was not adjourned to permit whatever defence was available to the defendants to be properly prepared and presented to the Court by Mr McEwen SC. Questions are Raised As to Mr Alexander's Fitness to Stand Trial 49 Upon application by Mr McEwen SC, the parties in fact returned before the Court on 12 November 2010. 50 On this occasion, Mr McEwen SC informed the Court that he was having difficulty obtaining instructions from Mr Alexander and that he was concerned that Mr Alexander may not be fit to stand trial. 51 This concern arose from significant deficiencies in Mr Alexander's memory and rational thought process that Mr McEwen SC had observed and experienced. Mr McEwen SC stated that Mr Alexander had, disturbingly, no recollection of critical aspects of the prosecution's evidence, including evidence that had clearly been sent to both Mr Alexander and to Mr Alexander's solicitor, who in turn had also provided it to Mr Alexander. Indeed, of the 35 affidavits filed by the prosecution, Mr Alexander could only recall having seen eight of them. 52 Mr McEwen SC also stated that over three days of conferences he had observed Mr Alexander and he was troubled by the fact that he was unable to engage in meaningful and relevant discussion with Mr Alexander concerning both the evidence but also critical aspects of the prosecution's case. In particular, Mr Alexander's answers to questions posed by Mr McEwen SC were frequently not relevant, were inconsistent, were irrational, or were all of the above. Mr McEwen SC observed that Mr Alexander relied heavily on the assistance of his wife and that when she was not present he was severely limited in his capacity to give instructions. 53 Accordingly, Mr McEwen SC stated that he was unable to properly represent Mr Alexander and S&R by reason of his inability to obtain instructions from Mr Alexander. 54 Mr McEwen SC further informed the Court that he had been instructed that the defendants did not currently have the financial means available to obtain an expert psychiatric report in respect of Mr Alexander's current mental health. 55 Mr McEwen SC proceeded to take the Court to the Mental Health (Forensic Provisions) Act 1990 ("the Act"). For present purposes, the structure of that Act was that if the question of a defendant's unfitness to be tried for an offence was raised after the person was charged, a court had to adjourn the proceedings in order to hear submissions into the conduct of an inquiry in order to determine whether the person was unfit to be tried for the offence charged (ss 9 and 10 of the Act). The Mental Health (Forensic Provisions) Act Does Not Apply to the Land and Environment Court 56 The prosecutor submitted that the Act applied to these proceedings. I did not agree. 57 Parts 2 and 3 of the Act provide a legislative process for the conduct of an inquiry into the fitness of an accused person to stand trial. 58 Section 4 of the Act states that Pt 2, entitled "Criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders", applies to: …criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and criminal proceedings in the District Court. 59 Part 3 applies only to summary proceedings before a magistrate (s 31 of the Act). 60 Nowhere in the Act is reference made to the Land and Environment Court. 61 The prosecution submitted that the Act was, in effect, picked up and applied to this Court pursuant to ss 170 and 171 of the Criminal Procedure Act 1986. 62 Sections 170 and 171 of the Criminal Procedure Act relevantly provide as follows: 170 Application

(1) This Chapter applies to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily.

(3) Part 5 applies to the following proceedings: (a) proceedings before the Supreme Court, (b) proceedings before the Industrial Relations Commission in Court Session, (c) proceedings before the Land and Environment Court, (d) proceedings before the Court of Coal Mines Regulation, (e) any other proceedings prescribed by the regulations.

court means a court to which the relevant provision of this Chapter applies and includes (where applicable) an Industrial Magistrate.

Judge includes a judge of the Supreme Court, the Land and Environment Court and the Court of Coal Mines Regulation and the President or a judicial member of the Industrial Relations Commission and any other person of a class prescribed by the regulations for the purposes of this definition. … 63 Proceedings in the Class 5 jurisdiction of this Court are summary proceedings. So much so is confirmed by s 21(i) of the Land and Environment Court Act 1979, which states: 21 Class 5 - environmental planning and protection summary enforcement The Court has jurisdiction (referred to in this Act as "Class 5" of its jurisdiction) to hear and dispose of the following in a summary manner: … (i) any other proceedings for an offence which an Act provides may be taken before, or dealt with by, the Court 64 Plainly, therefore, the Criminal Procedure Act applies to this Court. However, there is nothing in the Criminal Procedure Act that rendered applicable the provisions of the Mental Health (Forensic Provisions) Act to the Court. No support for this proposition can be derived from either ss 170 and 171 of the Criminal Procedure Act or s 21(i) of the Land and Environment Court Act. 65 The prosecution noted that the express mention of the District and Supreme Courts in s 4 of the Act implied the exclusion of any other court, in particular, the Land and Environment Court. However, the prosecution further stated that any rule of construction premised on the expressio unis principle ought to be applied with extreme caution. In circumstances where an application of the expressio unis rule would deny the defendants the statutory procedure available to them under Pt 2 of the Act following a determination of unfitness, the application of the rule, and any construction that flowed from it, ought to be rejected in preference of an interpretation of s 4 that implicitly included the Land and Environment Court. This was particularly so given that the enactment was premised on an adoption of a uniform procedure for dealing with persons with mental health conditions who were present in the criminal justice system. Thus, the prosecution submitted, s 4 of the Act was to be construed so as to include its application to the Land and Environment Court because to do so would promote the Act's legislative purpose. 66 In my opinion, however, there was no warrant for any departure in meaning from the plain and unambiguous words contained in s 4 of the Act. The provision plainly stated the courts to which the Act applies. An adherence to the precise language used in s 4 did not defeat the manifest intention of the statute. Furthermore, no conflict arose between the terms of that Act and those of the Criminal Procedure Act which would permit the strained construction for which the prosecution contended (see generally the principles of statutory interpretation enunciated in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]-[14]). Rather, when s 4 was read both literally and in the context of Pt 3 of the Act and the Act as a whole, what was readily apparent was that the Act applied only to those jurisdictions expressly referred to therein. It could only be assumed that it was either not the intention of Parliament to extend the reach of the Act to this Court, or alternatively, the failure to do so was a legislative oversight. 67 Thus in my view the Act did not apply to this Court. This was regrettable inasmuch as the clear steps outlined in the Act could not guide the Court as to the applicable procedure. Applicable Principles at Common Law 68 Recourse therefore had to be had to the common law for the applicable principles. Relevantly they were as follows below. 69 The concept of a defendant person's fitness to stand trial derives from the common law (John Frith (1790) 22 St Tr 307 and R v Pritchard (1836) 7 C&P 303). In R v Dashwood (1943) 1 KB 1 at 4 Humphreys J stated: It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself. 70 In Eastman v The Queen (2000) 203 CLR 1 the High Court stated (at 64]): 64 Traditionally, an accused person has not been put on trial unless fit to plead because of ''the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing'' . That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead. 71 A detailed exposition of the origin and development of the common law rules concerning the fitness of a defendant to stand trial was given by Wood CJ at CL in R v Mailes (2001) 53 NSWLR 251 (at [112]-[144]). 72 The capacity in question is not simply limited to the mental health of the accused. Rather, the concept encompasses a broader consideration of the defendant's capacity for comprehension of the proceedings (Eastman at [22] and R v Sexton (2000) 116 A Crim R 173 at 184). 73 Fitness to stand trial is an issue that must be resolved once a party (or the court) raises "a real or substantial" (R v Presser [1958] VR 45 at 46) question for consideration. Once this occurs, the trial must be halted unless and until a determination is made that the defendant is fit to stand (Eastman at [86]). 74 In the seminal decision of Presser Smith J discussed the circumstances in which a defendant is unfit to be tried without unfairness or injustice to him or her (at 48): He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any. 75 In summary, the minimum standards which Smith J stated were necessary for trying a defendant without "unfairness or injustice" are that the defendant must (Kesavarajah v The Queen (1994) 181 CLR 230 at 245): (1) be able to understand the nature of the charge;

(3) be able to understand generally the nature of the proceedings, albeit not all the court processes, namely, that it is an inquiry into whether the defendant committed the offence charged;

(4) be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, although an understanding of the purpose of court formalities is not necessary;

(5) understand the substantial effect of any evidence given in support of the prosecution; and

(6) be capable of making a defence or answer to the charge. 76 This passage is often referred to as the 'Presser test'. Its endorsement and application was surveyed by the New South Wales Court of Criminal Appeal in Clarkson v R (2007) 209 FCR 387 (at [130]-[142] and see also Mailes at [145]-[181]), albeit largely in its application to the Mental Health (Forensic Provisions) Act and its predecessor, the Mental Health (Criminal Procedure) Act 1990. At [142] the Court of Criminal Appeal stated: 142 In R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7, the Court (Mason P, Wood CJ at CL and Sully J) held at [279] that the question of fitness to be tried was to be determined by application of the Presser test: "The test for determining fitness to stand trial is whether the accused has a sufficient mental state, and intellect, to comprehend the course of the proceedings involved in the trial, so as to follow those proceedings, and so as to make a proper defence. The factors to be taken account have been accepted as being those developed in R v Presser (supra), an authority which has been consistently followed in this State and elsewhere: see for example R v Mailes , R v Zhang [2000] NSWCCA 344, R v Tier (2001) 121 A Crim R 509, and Kesavarajah v The Queen (1994) 181 CLR 230." 77 A determination of whether or not a defendant is fit for trial is not the culmination of a balancing process, although it is accepted that depending on the basis of the alleged unfitness in some cases adjustments can be made to overcome any unfairness (Mantell v Molyneux (2006) 68 NSWLR 46 at [33] and [35]): 33 It seems to me, with respect, that the learned magistrate erred in considering that a balancing process was involved in determining whether it would be fair to conduct a trial in the circumstances. If a defendant is not fit to stand trial in the R v Presser sense, the trial is by virtue of that very fact necessarily unfair and the public interest in the trial of the person charged with criminal offences must give way. Some elements of unfairness may be able to be overcome by, for example, requiring the cross-examiner not to put leading questions to the appellant, but such an order strikes me as involving an inappropriate interference with the conduct of the trial by the prosecution. It is difficult to think of any other orders that might compensate for the fundamental limits in understanding and ability to communicate, especially an ability to communicate in the court environment, which were identified by Ms Pikett and Mr Hudman.

35 In my view, the question of fitness for trial is fundamental. In some cases, adjustments can be made to overcome the defendant's unfitness, as by providing a deaf person with a signing interpreter. But this is not to make the trial of a person who is unfit for trial a fair one: it is to remove the unfairness. 78 Finally, in respect of memory loss, the following passage from Mailes is instructive (at [172]): 172 In R v Drummond (Court of Criminal Appeal, 27 May 1994, unreported), the issue arose in a case where the accused claimed that he had amnesia and could not recall committing the offence. It was held applying R v Podola and Russell v His Majesty's Advocate , and following R v Dennison (Court of Criminal Appeal, 3 March 1988, unreported), that a condition of amnesia resulting from brain damage of a diffuse kind, does not operate to bar the trial of an accused, and that as a consequence the direction by the trial Judge to the jury to find the accused fit was correct. Gleeson CJ observed, (at 9-10).

"As had been pointed out by Grove J, the decision in R v Dennison is supported by a line of English and Scottish authorities to the effect that amnesia does not constitute unfitness to plead to a criminal charge. The common sense behind this conclusion is, I consider, fairly apparent. There may be any number of reasons why a person accused of a crime may be unable to recollect the events of the occasion on which the alleged crime occurred. Amnesia may be one such reason; age, other forms of infirmity, or simply distance in time between the alleged events and the trial, might explain the inability to recollect. The fact that an accused person cannot, for one reason or another, recollect the events of the occasion of the alleged crime does not mean that the accused is, within the words of R v Presser... incapable of letting Counsel know what his version of the facts is. The accused person who says to his counsel 'I can't remember what happened on that day' is not thereby unfit to plead." 79 Notwithstanding that Mr Alexander's loss of memory was an aspect of his possible unfitness to stand trial, having regard to the principles established in the authorities referred to above, it appeared that the concerns articulated by Mr McEwen SC readily gave rise to a real or substantial question as to Mr Alexander's fitness to stand trial. 80 However, such an assessment could only be determined on the balance of probabilities (R v Rivkin (2004) 59 NSWLR 284 at [301]) after a properly constituted and conducted hearing, observing the usual formalities of court process (R v Zvonaric (2001) 54 NSWLR 1 at [19] and [22]), into Mr Alexander's fitness to stand trial, assisted with the benefit of suitably qualified expert evidence. For present purposes it was sufficient that the question had been raised by Mr McEwen SC in the manner in which it had. 81 I therefore determined that the issue having been adequately raised, a hearing into the fitness of Mr Alexander to stand trial had to be conducted. 82 In light of the defendants' asserted and unchallenged impecuniosity the proceedings were again stood over to 15 November 2010, to permit further enquiries to be made by Mr McEwen SC as to the possibility of obtaining a pro bono psychiatric assessment of Mr Alexander and concomitant expert report. 83 When the matter came back before the Court on 15 November 2010, Mr McEwen SC indicated that he had contacted several psychiatrists, the names of which had been helpfully provided to him by the prosecution, some of whom had indicated that they would be prepared to assess Mr Alexander on a pro bono basis. However, these psychiatrists had indicated that they did not have any available time to examine Mr Alexander until January 2011. 84 In light of the defendants' stated parlous financial affairs, and a real question having been raised as to Mr Alexander's fitness to stand trial, the Court therefore vacated the remainder of the Class 5 hearing and adjourned the proceedings generally until such time as Mr Alexander's fitness could be determined. The Fitness of S&R to Stand Trial 85 However, this was not before it was submitted by both parties that the concept of unfitness to stand trial pertained only to an individual defendant and not a corporate defendant. No authority was cited for this proposition and none could readily be found. 86 While superficially the submission was attractive, I remained unconvinced that it was correct. For example, if Mr Alexander was the sole director of S&R and the only person who could give evidence on its behalf, it could be argued that as the "directing mind and will" of S&R (see the discussion by Biscoe J in Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) (2009) 172 LGERA 225 at [78]-[97]), the company was also unfit to stand trial. 87 Accordingly, the issue arose as to whether or not the proceedings should be split and the prosecution against S&R continue notwithstanding that the proceedings against Mr Alexander had to be adjourned. 88 The prosecution noted that Mrs Alexander had, until September 2010, been a director of the company. It was therefore possible, the prosecutor stated, to proceed with the charges against S&R. 89 However, the Court was informed by Mr McEwen SC that Mrs Alexander was a nominal director only. That is to say, it was Mr Alexander who at all times was responsible for the practical day-to-day management of S&R. Accordingly, to the extent that evidence in defence of S&R could be given, this could only be provided by Mr Alexander. The prosecution did not cavil with this suggestion, which was consistent with the evidence filed to date and the fact that Mrs Alexander has not been charged with any offence. 90 In the end, the prosecution submitted that to bifurcate the proceedings would not facilitate the "just, quick and cheap" resolution of the real issues for determination in all four prosecutions, because to pursue a separate prosecution against S&R in respect of two of the four charges would not only considerably augment the total costs of the prosecutions, it would also result in a duplication of evidence, including subjecting witnesses to multiple cross-examinations. 91 The Court accepted both the defendants' and prosecution's submission that the prosecution of S&R ought not separately proceed. As a consequence, it was not necessary to decide whether a corporation could be unfit to stand trial. 92 Consequently, all four proceedings were adjourned and the remaining hearing dates vacated. Orders 93 The consequential orders made as a result of this determination were as follows: (1) the hearing of all four Class 5 matters (50005, 50006, 50008 and 50009 of 2010 - "the proceedings") are vacated; (2) the proceedings are adjourned part-heard to a date to be fixed, such date to be after the determination of a hearing into whether or not Mr Kelvin Alexander is fit to stand trial; (3) the reasons for the adjournment of the proceedings and vacation of the remaining hearing dates are to be published. Such publication is to occur after the parties have been given an opportunity to make submissions on whatever issue they see fit in relation to the need for a vacation and adjournment of the proceedings. Any submissions are to be filed and served by the parties no later than 17 November 2010; (4) the defendants' evidence, both lay and expert, on the fitness of Mr Kelvin Alexander to stand trial to be filed and served by no later than 4 February 2011; (5) the prosecution's evidence, both lay and expert, on the issue of Mr Kelvin Alexander's fitness to stand trial to be filed and served by no later than 4 March 2011; and (6) the proceedings to be stood over to 9.30am on 11 March 2011, for directions before Pepper J. It is anticipated that a hearing date in respect of the issue of Mr Kelvin Alexander's fitness to stand trial will be set at this time.

01/06/2011 - Remove quarter symbol - Paragraph(s) 78

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CITATION : Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander [2010] NSWLEC 235 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Berben v R [2008] NSWCCA 125 Cesan v The Queen; Mas Rivadavis v The Queen [2008] HCA 52; (2008) 236 CLR 358 Clarkson v R [2007] NSWCCA 70; (2007) 209 FCR 387 Dietrich v The Queen (1992) 177 CLR 292 Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225 Director General, NSW Department of Industry & Investment v Mato Investments Pty Ltd (No 2) [2010] NSWLEC 196 Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 Gassy v R [2008] HCA 18; (2008) 236 CLR 293 John Frith (1790) 22 St Tr 307 Kesavarajah v The Queen (1994) 181 CLR 230 CASES CITED: Mantell v Molyneux [2006] NSWSC 955; (2006) 68 NSWLR 46 Philopos v R [2008] NSWCCA 66 QGC Pty Ltd v Bygrave [2010] FCA 659; (2010) 186 FCR 376 R v Dashwood (1943) 1 KB 1 R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 R v Presser [1958] VR 45 R v Pritchard (1836) 7 C&P 303 R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 R v Sexton [2000] SASC 276; (2000) 116 A Crim R 173 R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198

(2009) 172 LGERA 225

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