The Defendant, Mr Eveston, has been charged with two offences relating to the failure to comply with two conditions of an amended revocation notice dated 12 February 2019 issued in relation to an environment protection licence. The failures relate to the removal of waste from a site at Goulburn in stages in a specified timeframe. Mr Eveston has pleaded guilty to both charges. He has filed a notice of motion dated 14 December 2021 seeking an order vacating the sentencing hearing presently set down for 9-10 February 2022.
Mr Eveston is represented by his barrister Mr Farrell who is acting pro bono and has only recently been briefed in November 2021. Mr Eveston was unrepresented from 12 July 2021 until recently.
[2]
Evidence
Mr Eveston has sworn an affidavit dated 14 December 2021 attesting to the conduct of these proceedings and related Class 1 proceedings to date which chronology is lengthy. A chronology of events is set out in par 3 as follows:
15/5/20 - the EPA issued the 2 criminal actions (these proceedings).
20/5/20 - the EPA served the 2 criminal actions.
19/6/20 - the EPA's expert witness Mr Marton's [sic] swears his first affidavit attaching his report (dated 19/6/20) (Martons [sic] report)
25/6/20 - Mr Martons [sic] affidavit & report were served.
14/8/20 - I entered please of guilty to both of the EPA's criminal charges
28/5/21 - the NSW LEC dismissed both my applications for orders to make the EPA release my $250,000 security (that I paid as a condition of the EPL, which the EPA revoked in March 2018) which meant I didn't have nay money to pay for the clean-up required at the Goulburn Site.
6/21 - BAL Lawyers stopped acting for me in these proceedings.
6/8/21 - the EPA served 2 certificates of conviction, and affidavit of Mr Heinze and a further affidavit by Mr Martons [sic].
7/9/21 - the EPA issued clean up notice 1597035 regarding the Goulburn Site to Northern Park Pty Ltd (Northern Park). Northern Park owns the land comprising the Goulburn Site.
29/10/21 - this Court made a direction that a request be made to its pro bono panel for a lawyer to represent me.
Mr Eveston attests that Mr Farrell has told him he is unable to prepare the case until February 2022. Further he has had substantial difficulty finding an expert witness to give evidence to respond to the evidence of Dr Martens called by the Environment Protection Authority (EPA) and wishes to dispute that there is water pollution occurring at the site. He has found an expert witness, but that person is not available to do the necessary report until February 2022.
The EPA has issued a clean-up notice to Northern Park Pty Ltd (Northern Park) the landowner of the site in similar terms to that served on Mr Eveston. He was unable to raise funds to pay for the clean-up costs. He considers it is likely that Northern Park can raise the funds for the necessary clean up with prospects that could occur before the sentencing hearing if held after 6 May 2022. If the hearing is not vacated he will have to represent himself and will not have the benefit of expert evidence.
The EPA opposed the order for vacation and relied on an affidavit of Ms Rooney, solicitor, dated 15 December 2021 which also provided a procedural history of the matters to date. A Class 1 appeal was commenced in 2020 by Mr Eveston seeking to vary the terms of the amended revocation notice and joined by a notice of motion filed by Mr Eveston in relation to 2018 Class 1 proceedings, seeking to extend the dates for compliance with the amended revocation notice. These were heard over three hearing dates and were the subject of an unsuccessful mediation between late January 2021 and late March 2021. Judgment was delivered in the Class 1 proceedings in May 2021 (Eveston v Environment Protection Authority [2021] NSWLEC 52) dismissing the 2020 Class 1 proceedings and the 2018 Class 1 notice of motion. Mr Eveston filed a notice of motion dated 11 November 2020 seeking to stay the Class 5 proceedings pending the resolution of the Class 1 proceedings. In Environment Protection Authority v Eveston [2020] NSWLEC 178 a temporary stay order was made with the Court noting that the reason for seeking the adjournment was that Mr Eveston wished to remove the waste from the Goulburn site and had not been able to do so because of lack of funds.
On 11 June 2021 the Class 5 proceedings were set down for hearing on 9-10 February 2022. Mr Eveston's solicitors filed a notice of ceasing to act on 12 July 2021. The EPA was not served with a copy. Further evidence was served by the EPA on 6 August 2021, a draft statement of agreed facts (SOAF) on 13 August 2021 on Mr Eveston's former lawyers and a notice of ceasing to act was then served on the EPA. There were numerous further communications between Mr Eveston and Ms Rooney. As the timetable was not complied with the matters were restored to the Friday List on 29 October 2021, variation of the orders for the filing of the SOAF were made and an order for Mr Eveston to swear an affidavit to support an application for pro bono assistance was made and the matter was stood over to 5 November 2021 for mention before Pain J as trial judge. On 14 November 2021 an order was made under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) referring Mr Eveston to the Registrar of the Court for referral to a barrister or solicitor for pro bono assistance inter alia.
[3]
Submissions
Mr Eveston's counsel submitted that it was in the overriding interests of a fair hearing that the hearing dates should be vacated and this outweighed the public purpose of the expeditious hearing of criminal matters. The relevant principles were summarised in Chief Executive, Office of Environment and Heritage v Turnbull [2019] NSWLEC 125 (OEH v Turnbull) by Pepper J at [12]-[18]. Mr Farrell cannot be prepared in time for the February 2022 hearing, the expert is not then available, Mr Eveston has not been represented since July 2021 and is impecunious and could not therefore undertake the clean-up required. The EPA has served additional evidence and the draft SOAF since Mr Eveston became unrepresented and he has not been able to manage a response. The site may be cleaned up by May 2022 and that is relevant in mitigation of the offences. Mr Eveston's father is a director of Northern Park. Mr Eveston is entitled to a fair sentencing hearing.
The EPA submitted that Mr Eveston has had ample time to prepare for the sentencing hearing, including getting an expert report given that Dr Martens' primary report was served on 25 June 2020. The matter has already been adjourned once to enable the resolution of the 2020 Class 1 proceedings, including on the basis that a clean-up of the site would be a relevant matter in mitigation, yet the site remains not cleaned up. That a clean-up notice has been served on Northern Park is irrelevant to whether this notice of motion ought be granted.
[4]
Consideration
As identified in OEH v Turnbull at [12] where vacation of hearing dates is sought the onus rests on the moving party. The authorities identified by Pepper J in OEH v Turnbull at [13]-[18] identify that the right to a fair trial must be weighed up with the public interest in the expeditious dispatch of criminal proceedings. I consider similar considerations apply here to a sentencing hearing as apply in a trial on liability. These are criminal proceedings with the possibility of a substantial penalty being imposed on Mr Eveston.
The two prosecutions have a lengthy history attested to in both the affidavits read and summarised above including being already temporarily stayed for some months pending the outcome of the 2020 Class 1 proceedings and the notice of motion in the 2018 Class 1 proceedings, as particularly emphasised by the EPA's submissions.
Given that Mr Eveston has pleaded guilty to both offences, understandably wishes to present the best case he can at the sentencing hearing, will only be able to benefit from the pro bono assistance offered by Mr Farrell and the expert to respond to Dr Martens if the hearing dates are vacated, weighs in favour of vacation of the hearing dates. The inability of Mr Eveston to be ready for the sentencing hearing is due in large part to his impecuniosity. The dates will be vacated as sought in Mr Eveston's notice of motion dated 14 December 2021. As there are limited dates available in the first half of next year the new dates should be set down promptly and inquiries in that regard will need to be made today and a new date fixed.
[5]
In proceedings 2020/145596 and 2020/145597
The Court orders:
1. Vacate the sentencing hearing listed on 9 and 10 February 2022.
2. List the matter before the List Judge on 25 February 2022 for directions.
3. The sentencing hearing is listed for 12-13 October 2022.
[6]
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Decision last updated: 21 December 2021