Director General, NSW Department of Industry & Investment v Mato Investments Pty Ltd & Ors

THIRD DEFENDANT: Dzeladin Ceman

FOURTH DEFENDANT: James Lawrence Coomes

FILE NUMBER(S) : 50052; 50053; 50054; 50055; 50056; 50057; 50058; 50059; 50060; 50061; 50062; 50063; 50064; 50065; 50066; 50067 of 2009

KEY ISSUES: PROSECUTION :- application by three of four defendants to postpone their joint trials due to their inability to obtain legal representation by the trial dates due to changed financial circumstances - whether their joint trials should be postponed - whether the trial of fourth defendant should nevertheless proceed - whether fourth defendant's costs thrown away and relating to the postponement application should be paid by other defendants.

Criminal Procedure Act 1986, ss 29(3), 216(2) LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125(1) Fisheries Management Act 1994, s 220ZD(1) Legal Aid Commission Act 1979, s 57

Director General, NSW Department of Industry & Investment v Mato Investments Pty Ltd & Ors [2010] NSWLEC 56 CASES CITED: Dietrich v R (1992) 177 CLR 292 R v Fernando [1999] NSWCCA 66 Philopos v R [2008] NSWCCA 66

PROSECUTOR: Mr T Howard, barrister SOLICITORS Crown Solicitor's Office

FIRST TO THIRD DEFENDANTS LEGAL REPRESENTATIVES: Mr S Nash, barrister SOLICITORS Neville & Hourn Legal

FOURTH DEFENDANT: Mr C Ireland, barrister SOLICITORS Moray & Agnew

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DIRECTOR GENERAL, NSW DEPARTMENT OF INDUSTRY & INVESTMENT v MATO INVESTMENTS PTY LTD & ORS

EX TEMPORE JUDGMENT INTRODUCTION 1 HIS HONOUR: This is an application by three of the four defendants to postpone their joint trials in these criminal proceedings in Class 5 of the Court's jurisdiction on the ground that they are unable to afford legal representation by the fixed trial dates due to changed financial circumstances. 2 Sixteen prosecutions against the four defendants for various related offences are to be heard and determined together pursuant to an order of the Court made on 24 March 2010: Director General, NSW Department of Industry & Investment v Mato Investments Pty Ltd & Ors [2010] NSWLEC 56 (Preston CJ). The trials have been set down for three weeks from 11 to 29 October 2010 inclusive. 3 The defendants are Mato Investments Pty Ltd (Mato), its two directors Ian Charles Bennett and Mr Dzeladin Ceman, and Mato's project manager Mr James Lawrence Coomes. 4 Mato and Messrs Ceman and Bennett now move to postpone their trials on the ground that due to changed financial circumstances of Mato, which was going to pay those three defendants' legal costs, they are unable to afford legal representation by those dates but, at least in the case of Mato and Mr Ceman, are likely to be able to afford legal representation within a few months. I accept that all three are unable to afford legal representation by those dates. There is a challenge by Mr Coomes as to whether Mr Ceman has proved that he cannot pay for legal representation from his own resources but I think the evidence is sufficient to establish that he cannot.

5 Mato and Mr Ceman are arranging to borrow funds from a relative of Mr Ceman who will need to liquidate assets for that purpose, which it is estimated will take approximately two months. Mr Bennett has applied for legal aid. The evidence indicates that his legal aid application should be determined in about a week or so and that if it is refused he intends to appeal. In that event, it is mandatory to adjourn the proceedings against him in the absence of certain circumstances (which it is not suggested are applicable): s 57 Legal Aid Commission Act 1979.

THE ISSUES 6 The prosecutor does not formally consent to postponement of the trials but suggests that there is a risk of the trials miscarrying in relation to at least Mr Ceman and Mr Bennett if the adjournment is not granted under the principles in Dietrich v The Queen (1992) 177 CLR 292, referred to in Philopos v R [2008] NSWCCA 66 at [62] - [63]. "62 The relevant principles were considered by the High Court in Dietrich v The Queen (1992) 177 CLR 292. An accused person has a right to a fair trial, which includes the right to retain counsel. In some circumstances a lack of legal representation may result in a miscarriage of justice. In Dietrich Mason CJ and McHugh J said at 315: 'In view of the differences in the reasoning of the members of the court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.'

63 The reference to "no fault on his or her part" was not explained. However, the High Court returned to that issue in Craig v South Australia (1995) 184 CLR 163. After setting out the passage from the reasons of Mason CJ and McHugh J in Dietrich which I have set out above the court said at 183-184: 'The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being 'through no fault on his or her part' was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that: '… what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.' A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused." 7 The fourth defendant, Mr Coomes, (a) opposes postponement of the trials; (b) alternatively, says that the trial of him alone should proceed on the dates that have been allocated; and (c) alternatively, seeks an order that the other three defendants pay his costs thrown away as well as his costs relating to the other three defendants' notices of motion. 8 Thus the issues are:

(a) should the trial of the three defendants who seek postponement be postponed? (b) if so, should the trial of the fourth defendant Mr Coomes also be postponed? (c) if so, should certain costs of Mr Coomes be paid by the other three defendants? THE CHARGES ARE SERIOUS 9 The charges are serious. One charge is under s 125(1) of the Environmental Planning and Assessment Act 1979 and carries a maximum penalty of $1.1 million. There are also three charges under s 220ZD(1) of the Fisheries Management Act 1994 each of which carries a maximum penalty of $110,000.

THE EVIDENCE 10 Mr Ross Neville was the solicitor on the record for Mato and Messrs Ceman and Bennett. On 13 September 2010, he filed and served on them notices of intention of ceasing to act at the expiration of 28 days from that date. 11 Mr Neville received instructions in about July 2009 from Mato Investments in relation to Class 4 proceedings in this Court brought by the Environment Protection Authority (EPA) for enforcement of an enforceable undertaking given by Mato to the EPA to pay the costs of certain works at Mato's property known as "Kunanadgee" located near Corowa. These works were required to rectify actions alleged by the prosecutor to give rise to the charges in these proceedings. Those actions related to the removal of woody debris from waterways and depositing of soils.

12 On 11 September 2009 orders were made by this Court declaring that Mato had breached the enforceable undertaking and (inter alia) ordering it to pay a balance of over $57,000 due to the Department of Primary Industries and a sum of over $33,000 due to the Soil Conservation Service (in each case pursuant to the undertakings) and costs by specified dates. Subsequently, certain costs payable by Mato were agreed at $5,000 and it was agreed they would be added to the monies payable in accordance with the said orders. Between September 2009 and April 2010 Mato paid sums totalling $40,000 to the Department of Primary Industries and the NSW Soil Conservation Service. A balance of over $56,000 due on 31 May and 30 June 2010 is outstanding pursuant to the said orders.

13 Following the commencement of the Class 5 proceedings, in late September 2009 Mato and Messrs Bennett and Ceman instructed Mr Neville to engage senior and junior counsel to defend the proceedings. Fee disclosure followed. A relevant expert was located and a quotation obtained for his report.

14 On 23 April 2010 the proceedings were set down for hearing for three weeks commencing on 11 October 2010.

15 On or about 12 August 2010 the Bank of Western Australia served a notice of demand on Mato for a sum of over $3.3 million under a facility secured over Kunanadgee. Payment has not been made in accordance with the notice of demand.

16 The said payments and liability to the EPA and the continuing servicing of a Bank of Western Australia loan secured over Kunanadgee in circumstances where development work at that property has been unable to proceed have adversely affected the financial position of Mato to the extent that Mato has no funds at its disposal.

17 On 13 September 2010 Mr Neville filed a notice of intention of ceasing to act in relation to Mato and Messrs Bennett and Ceman.

18 On the same day Mr Bennett made an application to Legal Aid NSW for a grant of legal aid in relation to his defence of the proceedings. On 29 September 2010, Legal Aid sent an email to Mr Bennett asking certain questions in relation to his legal aid application. Mr Bennett provided answers by email on 30 September 2010, in which he also said that he has no means of funding the litigation, is not represented and desperately needed legal aid support.

19 Mato and Messrs Bennett and Ceman have informed Mr Neville that they are not presently in a position to properly instruct him or counsel previously engaged to appear to defend the charges against them at the trial listed to commence on 11 October 2010. As I have previously indicated, Mato and Mr Ceman wish to have that trial postponed so that they can borrow funds from a relative of Mr Ceman to permit them to be legally represented to defend the charges against them and the relative requires a period of approximately two months to liquidate assets for that purpose.

20 On 16 September 2010 Mr Coome's solicitor, Elissa Morton, received a letter from Mr Neville advising that his firm had filed and served notices of intention of ceasing to act on their clients, and that Mr Bennett was making an application for assistance to the Legal Aid Commission. On 22 September 2010 Ms Morton was advised that by reason of those matters the prosecutor would be seeking an order at a directions hearing on 24 September 2010 to adjourn the date for the joint trials. Ms Morton is informed that adjournment of the proceedings would cause Mr Coomes stress, inconvenience and unnecessary expense in the form of costs thrown away preparing for the hearing. A letter from Mr Coomes indicates that those costs thrown away (so far as they are pressed before me) comprise non-refundable accommodation costs for 15 nights for the period of the trial totalling $2,385.

21 An email from Mr Coomes evidences that he and his wife are both suffering substantial stress as a result of these proceedings and are concerned that if their trial does not commence on 11 October and is postponed they will experience continued stress and discomfort. Mr Coomes details significant symptoms of stress that he has experienced. He also says that the stress has caused his wife sleep disturbance for which she has sought medical assistance and been prescribed valium. He makes some comments about the potential for his wife developing a heart condition but I do not attach any weight to that in the absence of medical evidence. A short letter from a medical practitioner certifies that Mr and Mrs Coomes are very stressed with the upcoming hearing, are showing symptoms and are receiving medical therapy. The medical practitioner expresses concern that postponing the hearing would only delay and worsen the difficulties they are experiencing.

SHOULD THE TRIALS OF MATO AND MESSRS CEMAN AND BENNETT BE POSTPONED? 22 The three defendants who seek postponement of their trials acknowledge that postponement would involve prejudice to the prosecutor, as well as to Mr Coomes if the latter's trial is also postponed. On the other hand, if the hearing dates are not vacated so far as the three defendant applicants are concerned, then as things stand they will have no legal representation. Notwithstanding an apparent lacuna in the evidence as to what the applicant defendants were doing for about a month or more after the bank's letter of 12 August 2010, they submit that balancing all the relevant considerations, the prejudice to them outweighs other considerations.

23 The prosecutor submits that the principles in Dietrich quoted earlier govern the position so far as individual defendants are concerned. The prosecutor accepts the submission made on behalf of Mr Coomes that the Dietrich principles are limited to individuals rather than to corporations. In my opinion, that is correct. Therefore, the prosecutor says, the trial dates should be postponed, at least so far as those two individual applicant defendants are concerned. For other reasons, the prosecutor says that the trial dates should be postponed for all four defendants. I shall come to those other reasons shortly.

24 Mr Coomes submits that the three applicant defendants have not established that they are unable to obtain legal representation "through no fault on his or her part", which were the words used in Dietrich quoted above. Emphasis is placed in that regard on the apparent delay after receipt of the bank's notice of demand of 12 August 2010 before Mr Bennett sought legal aid and Mato and Mr Ceman set about trying to raise money elsewhere and before they sought postponement of the trial.

25 In my opinion, the trials of the three applicant defendants should be postponed. The offences with which they are charged are serious. They are unable to obtain legal representation by the dates fixed for trial because of a change in financial circumstances and because on 13 September 2010 their solicitor filed a notice of intention of ceasing to act. Until the latter event, it appears that the solicitor was prepared not to take that course of action, notwithstanding the change in financial circumstances. Following 13 September, the three applicant defendants seem to have moved with reasonable expedition, particularly in the case of Mr Bennett. If Mr Bennett's pending legal aid application is refused, his trial must be adjourned under s 57 of the Legal Aid Commission Act because he intends to appeal. I am not prepared to conclude on the evidence that the three applicant defendants are unable to obtain legal representation because of fault on their part. In the passage in Philopos at [63] quoted above, Mason CJ and McHugh J said it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been as a matter of objective fact contributing fault on the part of the accused. I mention that passage because even if there was an element of contributing fault, I do not think it is sufficient to deprive the Court of the power to postpone the trial dates and I do not think it is sufficient to deter me from doing so in the circumstances of this case so far as those three applicant defendants are concerned.

SHOULD THE TRIAL OF MR COOMES BE POSTPONED? 26 I turn to the second issue, which is whether the trial of the fourth defendant, Mr Coomes, should also be postponed.

27 Section 29(3) of the Criminal Procedure Act 1986 was the subject of consideration in the earlier judgment that the proceedings should be heard together: see [2] above. It provides: "Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice." 28 Mr Coomes submits that in light of the circumstances that now exist, s 29(3) should be revisited. Mr Coomes submits that the Court should form the statutory opinion that his matter ought to be heard and determined separately in the interests of justice having regard to the following circumstances: (a) there will likely be significant further delay if his trial is postponed and it seems likely that any new trial date will not be until new year. That, it is said, is substantially longer than what was contemplated when the order that the proceedings be heard together was made. It is pointed out that in fixing trial dates there are a large number of witnesses, including experts, as well as counsel whose availability has to be taken into account; (b) postponement of his trial will continue the stress Mr and Mrs Coomes have been experiencing and will cause accommodation costs to be thrown away.

29 The prosecutor points out the medical evidence is limited and that stress for defendants is a virtually inevitable feature of criminal proceedings. Nevertheless, in my opinion, it is a real factor to take into account.

30 In opposing duplication of trials, the prosecutor points out that this will result in duplication of prosecution costs and inconvenience to prosecution witnesses. There are some 12 witnesses for the prosecution, only one of whom is in Sydney, and a substantial number are from interstate and regional areas.

31 Further, the prosecutor submits, it is desirable that there be a joint trial in order to avoid the undesirable consequences considered in R v Fernando [1999] NSWCCA 66 at [195] - [205]. That is, if there were to be separate trials, there would be a prospect of cut-throat defences leading to verdicts that are inconsistent on the facts; and only half of the picture would be presented. In order to do complete justice, the Court is entitled to see and hear all those who are alleged to have acted in the enterprise.

32 It is necessary to balance the competing considerations. In my opinion, on balance and notwithstanding the stress for a further period that Mr and Mrs Coomes would, on the evidence, have to bear, it is in the interests of justice that all the proceedings be heard together.

33 One of the considerations raised for Mr Coomes was that his non-refundable accommodation expenses will be thrown away. I propose to make an order against the other three defendants that they pay those expenses: see [38] below.

MR COOMES' COSTS 34 That leads me to the final issue, Mr Coomes' costs relating to the postponement of the trials.

35 Section 216 of the Criminal Procedure Act 1986 limits the circumstances in which costs may be ordered: "(1) A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made. (3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings. (4) An order may be made whatever the result of the proceedings."

36 Mr Coomes submits that he has incurred additional costs because of delays or the unreasonable conduct of the other three defendants and therefore they should be ordered to pay certain costs that he has incurred: namely, his unrefundable accommodation costs of $2,385, his costs of attending before the List Judge last week on 24 September 2010, and the costs of the other three defendants' notices of motion (including the hearing today).

37 Mr Coomes argues that there have been delays after 12 August 2010 by the other three defendants in variously not moving more quickly to seek legal aid or not taking steps more quickly to obtain finance for the trials such as through the relative of Mr Ceman. Although there should be taken into account that the solicitor for those defendants did not file a notice of intention of ceasing to act until 13 September 2010 I am persuaded on balance that because of the delays of the other three defendants, the fourth defendant has incurred non-refundable accommodation costs. I do not think that the other three defendants should have to pay the costs of the appearance on 24 September. That is because even if there had been no delay it would have been necessary for the parties to come before the Court to seek postponement of the trial. But I think that if there had been no delay, it probably would have been unnecessary to appear for a second time, as has happened today, and for there to have been a full blooded contest as to whether the trials should be postponed. In the circumstances I am prepared to order the other three defendants to pay Mr Coomes' costs of their notices of motion (including the hearing today). ORDERS 38 The orders of the Court are as follows: 1. The hearing dates of 11-29 October are vacated. 2. The first, second and third defendants are to pay the following costs of the fourth defendant: (a) the sum of $2,385 for non-refundable accommodation costs; (b) the costs of their notices of motion filed on 30 September 2010. 3. The exhibits may be returned. 4. The matter will be in the Registrar's list on 6 October 2010 for the purpose of the parties obtaining new hearing dates.

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