Environment Protection Authority v Mouawad

Land and Environment Court (NSW)|2019-11-26|Before: Robson J, Ms J, Pepper J

Judgment

By notices of motion filed on 6 September 2019, Paul Mouawad seeks orders in each of proceedings 104770 and 104772 of 2018 that he be granted leave to withdraw his pleas of guilty entered on 23 November 2018 to offences against s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act').
The Environment Protection Authority ('EPA') opposes the applications.
The hearing of the motions proceeded on 26 November 2019. Mr R Daoud, solicitor, appeared for Mr Mouawad, and Mr E C Muston of senior counsel appeared with Ms J S Caldwell of counsel for the EPA.
Each of the parties provided detailed written and oral submissions.
For the reasons that follow, I consider that leave should not be granted for Mr Mouawad to withdraw his pleas of guilty, and each motion should be dismissed.

Background

The uncontentious background facts give context to the submissions made and are summarised as follows: 1. On 4 April 2018, the EPA commenced two proceedings against Mr Mouawad for two offences of knowingly supplying false and misleading information about the disposal of asbestos waste from a site at 293-297 Abercrombie Street, Darlington ('Site') on 30 June 2016 and 7 July 2016, contrary to s 144AA(2) of the POEO Act ('present proceedings'). Mr Mouawad entered a plea of guilty to each of those charges before Pepper J on 23 November 2018; 2. Mr Mouawad was an employee of and the son of the sole director of Aussie Earthmovers Pty Ltd ('Aussie Earthmovers'), which had been subcontracted by Peter O'Brien Constructions Pty Ltd ('Peter O'Brien Constructions') to engage in a range of works at the Site, including demolishing the existing building, undertaking excavation, and removing all material from the Site; 3. In May 2016, asbestos was discovered at the Site. Peter O'Brien Constructions engaged Aussie Earthmovers to dispose of the contaminated waste at a landfill in Kemps Creek ('Landfill') operated by SUEZ Recycling and Recovery Pty Ltd ('Suez'), previously known as SITA Australia Pty Ltd; 4. It is alleged that Mr Mouawad supplied Peter O'Brien Constructions with a "Ticket List Report" purportedly created by Suez in relation to the alleged disposal of approximately 84 truckloads of soil contaminated with asbestos at the Landfill ('proceedings 104770 of 2018'). It is also alleged that Mr Mouawad supplied Peter O'Brien Constructions with approximately 29 waste disposal dockets purportedly issued by Suez containing information in relation to the alleged disposal of 29 truckloads of soil contaminated with asbestos at the Landfill ('proceedings 104772 of 2018'); 5. The EPA alleges that the Ticket List Report and all but one of the waste disposal dockets were known by Mr Mouawad to be false at the time he provided them to Peter O'Brien Constructions; were not created by Suez; and, with the exception of one truckload, the waste referred to in those documents was not disposed of at the Landfill. In reliance on those falsified documents, Peter O'Brien Constructions paid invoices totalling $225,876.76 into a bank account which Mr Mouawad had informed was held by Suez but which was in fact held by Aussie Earthmovers; 6. The present proceedings were first listed for mention before this Court on 1 June 2018. The matter was thereafter adjourned on a number of occasions to enable Mr Mouawad to progress an application for legal aid; 7. From at least 23 August 2018, Mr Mouawad was represented by Bilal Rizk, solicitor of Rizk & Associates. Mr Mouawad was represented by Mr Rizk up until Mr Rizk formally withdrew from the matter at the time of or shortly before or after Mr Mouawad entered his guilty pleas on 23 November 2018; 8. At the time Mr Mouawad entered his guilty pleas in the present proceedings, two other prosecutions were on foot against him: 1. First, the New South Wales Police laid a charge against Mr Mouawad in the Local Court in respect of an offence of dishonestly obtaining a financial benefit by deception contrary to s 192E(1) of the Crimes Act (these are the Local Court proceedings referred to at [7] above). That charge concerned Mr Mouawad's conduct in providing the false documents to Peter O'Brien Constructions. Mr Mouawad pleaded guilty to that offence on 27 September 2018 (two months before the entry of the pleas in the present proceedings) and he was sentenced on 19 December 2018 to a term of imprisonment of 18 months, with a non-parole period of 12 months. On appeal to the District Court, Mr Mouawad's sentence was reduced to an intensive correction order of 15 months ('District Court proceedings'); 2. Second, on 24 August 2018, the EPA commenced proceedings against Mr Mouawad in this Court for three alleged offences contrary to ss 142A(1), 143(1) and 144(1) of the POEO Act in respect of his conduct (alleged to involve polluting land, unlawfully using a place as a waste facility, and causing waste to be transported to a place that could not be used as a waste facility) in relation to a site at Arcadia in New South Wales (proceedings 260542, 260536 and 260553 of 2018) ('Arcadia proceedings'). On 23 November 2018, the same day as Mr Mouawad entered his pleas of guilty before Pepper J in the present proceedings, Mr Mouawad entered pleas of not guilty before Pepper J to the charges in the Arcadia proceedings; and 1. Mr Mouawad first indicated to this Court that he may apply to reverse his pleas in the present proceedings on 1 March 2019. The matter was subsequently adjourned on a number of occasions to enable Mr Mouawad to obtain legal representation. Mr Mouawad advised the Court on 23 August 2019 that he was represented by Sydney Criminal Defence and Traffic Lawyers ('SCDTL'). Since that time, SCDTL has continued to appear for Mr Mouawad.

Mr Mouawad's position

Mr Mouawad seeks leave to withdraw his pleas of guilty on the following grounds: 1. He asserts that he was depressed, overwhelmed and did not have clarity of mind at the time he entered the pleas due to the fact that he was facing three sets of criminal charges and was suffering from financial and familial stress; 2. He claims that he was unrepresented when he entered his pleas and did not receive comprehensive legal advice as to the implications of pleading guilty; 3. He alleges that he was not in possession of all material documentation setting out the case against him; 4. He submits that he did not entertain a genuine consciousness of guilt or enter pleas of guilty for the sake of convenience. He says that this is a "clear case" where the seriousness of his mental state impacted the "integrity of his pleas"; and 5. He claims that he has a possible defence based upon the principles of autrefois convict and autrefois acquit.
These grounds will be further expanded upon below.
Mr Mouawad contends that he was diagnosed with major depression and could not adequately deal with the overwhelming pressures of the legal system stemming from the Local Court criminal proceedings and the EPA proceedings in this Court. Mr Mouawad submits that his depression was aggravated by the concurrent court matters where he was being prosecuted by both the New South Wales Police and the EPA. He relies upon the letter of Dr Way dated 16 December 2018 which was prepared for and tendered in the sentencing hearing in the Local Court proceedings (on 19 December 2018).
Mr Mouawad also contends (a matter which is in dispute) that he was not legally represented at the time of entering his pleas and therefore was not apprised as to how or why he should plead guilty.
Mr Mouawad further submits that he was not in possession of all material documentation setting out the case against him and he was "in a state of overwhelm" at the time of entering the pleas. Mr Mouawad notes that he did not have clarity of mind at the relevant time, having lost his family home, having placed strain on his family, and having entered into bankruptcy.
Mr Mouawad submits that he first presented with symptoms of depression in 2013 and that in the months prior to December 2018, he had become more depressed and felt a sense of hopelessness. Mr Mouawad contends that his depression was aggravated by the "perceived onslaught" of proceedings brought against him and that the media interest he received from radio broadcaster Ray Hadley and the New South Wales Environment Minister, Gabrielle Upton (who he says branded him as an "illegal dumper") negatively affected his ability to exercise clear and proper judgment.
Mr Mouawad seeks to rely upon the principles of autrefois convict and autrefois acquit as a possible defence in the present proceedings, and submits that his possible defence also encompasses the wider rule against double jeopardy.
Mr Mouawad provides detailed written submissions in relation to a possible defence and accepts that to establish the defence, the charges must be the same or similar, and arise from substantially the same facts: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 ('Pearce'). Mr Mouawad accepts that he bears the burden of proof to establish the principle.
Mr Mouawad details the elements of the offence for which he was found guilty in the Local Court proceedings (that is, dishonestly obtaining a financial benefit by deception contrary to s 192E(1) of the Crimes Act), the particulars of the charge, and a summary of the relevant facts in that matter. As I have recorded above, on 19 December 2018, Mr Mouawad was sentenced in the Local Court to a term of imprisonment of 18 months with a non-parole period of 12 months. A severity appeal was subsequently lodged, and on 12 March 2019, Mr Mouawad's sentence was varied to a term of imprisonment of 15 months, to be served by way of an intensive correction order in the community, and additional orders were made, including an order requiring Mr Mouawad to pay compensation in the amount of $225,056.76 to Peter O'Brien Constructions.
Mr Mouawad also details the elements of the offences for which he has been charged in the present proceedings (that is, knowingly supplying false and misleading information about the disposal of asbestos waste contrary to s 144AA(2) of the POEO Act) and summarises the particulars as outlined in the summonses. Mr Mouawad submits that the offences under s 192E(1)(b) of the Crimes Act and s 144AA(2) of the POEO Act are similar in nature for the following reasons: 1. Both offences involve common elements of dishonesty and deception; 2. A dishonestly minded individual may engage in conduct to deceive another person to achieve their personal objective. In relation to the s 192E(1) offence, the benefit is by way of financial advantage, whereas the benefit under s 144AA(2) concerns the evasion of forms of waste levy; and 3. Deception in both charges can include, but is not limited to, the making of false or misleading representations.
Mr Mouawad further submits that in both proceedings, he is identified as the person who supplied information that he knew was false or misleading in a material respect to the managers of Peter O'Brien Constructions to achieve his own personal objective.

The EPA's position

The EPA contends that many of Mr Mouawad's claims are unsupported by the evidence, and, in any event, none of the matters raised provide a basis for granting leave to Mr Mouawad to withdraw his pleas.
The EPA notes that Mr Mouawad relies on the letter of Dr Way which is dated 16 December 2018, nearly four weeks after Mr Mouawad entered his guilty pleas in the present proceedings. While Dr Way expressed the opinion that Mr Mouawad's mood was "depressed and affect restricted", the EPA emphasises that he concluded that Mr Mouawad exhibited "no formal thought disorder", showed good insight into his problems and that his current judgment was fair. The EPA submits that these contemporaneous conclusions, reached by Mr Mouawad's treating psychiatrist, directly contradict the factual premise underpinning the primary ground upon which Mr Mouawad seeks to have his pleas withdrawn.
Further, the EPA notes that Dr Way did not state that he observed any diminution in Mr Mouawad's cognitive abilities.
The EPA submits that Mr Mouawad's claim that he could not mentally deal with the constraints of the legal system (and did not have clarity of mind) sits uncomfortably with the fact that on the same day he entered guilty pleas in the present proceedings, he entered pleas of not guilty in the Arcadia proceedings. The EPA contends that Mr Mouawad's differing approaches to these charges suggests that he was able to engage with the issues raised in the various proceedings brought against him and exercise his discretion as to the appropriate plea to enter in relation to each charge.
The EPA submits that Mr Mouawad's assertion that he was "in a state of overwhelm" due to the loss of his home and his bankruptcy must be viewed with some circumspection given that, according to his affidavit sworn on 18 December 2018 read in the Local Court proceedings, he lost his home around June 2016, and was declared bankrupt shortly afterwards. The EPA submits that the suggestion that these events affected Mr Mouawad's "normal rational state" on the date he entered his pleas two and a half years later but that these and other stressors did not affect his mental state "prior to and since then", is inherently implausible. The EPA notes that Mr Mouawad provided no evidence as to why his mental state when his pleas were entered on 23 November 2018 was different from his mental state prior to and since the entry of his pleas.
The EPA submits that Mr Mouawad's contention that the media interest he received from Ms Upton negatively affected his ability to exercise clear and proper judgment does not withstand scrutiny primarily because the evidence is that the first media release issued by Ms Upton concerning Mr Mouawad was published after Mr Mouawad entered his guilty pleas (evidenced by the fact that the media release itself concerned the entry of those pleas), and although there may have been earlier statements, they do not alter the position.
The EPA submits that to the extent that Mr Mouawad pleaded guilty due to a concern about the publicity he had received from either Ms Upton or Mr Hadley, as well as the strain placed on his family, this is not a proper basis for acceding to an application to withdraw a plea.
Although it is accepted that Mr Mouawad was experiencing depression at the time he entered his guilty pleas, the EPA submits that there is no evidence to suggest that his depression or general mental state affected the integrity of his pleas. Rather, the EPA contends that the evidence supports a conclusion that Mr Mouawad was of sound mind and understanding at the relevant time and entered the pleas in the exercise of a free choice. The EPA submits that Mr Mouawad has failed to establish that a miscarriage of justice would occur if his application to withdraw the pleas was refused due to his mental state at the time.
In relation to legal advice and representation, the EPA submits that Mr Mouawad was first represented in the present proceedings at the mention on 24 August 2018, at which time an agent appeared on Mr Rizk's behalf. Mr Rizk thereafter appeared for Mr Mouawad on 28 September 2018, 12 October 2018, 2 November 2018 and 16 November 2018 and attended Court with Mr Mouawad on 23 November 2018. The EPA submits that it is clear that Mr Rizk was providing advice during that period, evidenced by the fact that Mr Rizk filed and served Mr Mouawad's Notice of Defence Response in accordance with s 247F of the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act') on 10 October 2018, and provided representations on Mr Mouawad's behalf to the EPA's solicitor on 1 November 2018.
The EPA further submits that the evidence of Mr Verzosa was that Mr Rizk appeared for Mr Mouawad on 23 November 2018 and only withdrew from the present proceedings after Mr Mouawad entered his guilty pleas. This is to be contrasted with the mention in the Arcadia proceedings on 23 November 2018, when Mr Mouawad appeared in person, accompanied by Mr Rizk.
In any event, the EPA submits that the fact that an accused person is not legally represented on the day they enter a plea of guilty does not, in itself, constitute a basis for granting leave to the person to withdraw the plea.
In respect of the legal advice Mr Mouawad received, the EPA says that it is significant that Mr Mouawad does not assert that Mr Rizk provided him with no advice, or that Mr Rizk provided him with advice that was erroneous, imprudent or inappropriate. Rather, the substance of Mr Mouawad's complaint is that Mr Rizk did not provide him with comprehensive advice as to the implications and ramifications of how he should plead. Again, the EPA submits that the fact that a person has not received comprehensive advice does not constitute a basis for permitting a guilty plea to be withdrawn. The EPA further submits that it is also unclear how the alleged lack of advice provided to Mr Mouawad as to the implications and ramifications of pleading guilty, which have the appearance of matters relevant to sentence rather than culpability, could have any bearing on the integrity of his pleas.
Finally, the EPA submits that Mr Mouawad has not identified how any legal advice (or lack thereof) provided by Mr Rizk caused him to plead guilty to the offences. Even if it is accepted that Mr Rizk failed to provide Mr Mouawad with comprehensive advice about the implications and ramifications of entering guilty pleas, the EPA contends that Mr Mouawad has not established that such a failure would lead to a miscarriage of justice if his application for leave to withdraw the pleas is refused.
In relation to "lack of possession of material documentation", the EPA submits that the uncontested evidence of Mr Verzosa is that Mr Mouawad was personally served with the summonses, two certificates, sealed orders and 27 affidavits in the present proceedings between 4 April 2018 and 12 June 2018. The Notice of Prosecution Case and the Prosecutor's Statement of Facts were also served on Mr Rizk on 7 September 2018, two and a half months before Mr Mouawad entered his guilty pleas.
In relation to "consciousness of guilt and integrity of plea", the EPA submits that Mr Mouawad's guilty plea in the Local Court proceedings reveals that he accepted his guilt in respect of his conduct of dishonestly obtaining a financial benefit by deception by providing the false documents to Peter O'Brien Constructions in contravention of s 192E(1) of the Crimes Act. The EPA contends that this has some bearing on Mr Mouawad's consciousness of guilt in respect of his conduct in supplying false and misleading information about waste in the course of dealing with waste (the subject of the charges in the present proceedings).
The EPA reminds the Court that Mr Mouawad pleaded guilty to the s 192E(1) offence in the Local Court approximately two months before he entered pleas of guilty in the present proceedings, and was sentenced for that offence approximately one month afterwards. Further, Mr Mouawad gave evidence (as per his 18 December 2018 affidavit read in the Local Court proceedings) at the sentencing hearing that he provided weigh bridge dockets to Peter O'Brien Constructions and that he realised from an early stage that those documents were not true. He accepted that this conduct "was incorrect and it was wrong".
The EPA submits that the evidence strongly suggests that on the day Mr Mouawad entered his pleas of guilty in the present proceedings (which was in the period between the day he pleaded guilty to the s 192E(1) offence and the day he was sentenced for that offence), Mr Mouawad accepted responsibility for providing information about waste to Peter O'Brien Constructions in the course of dealing with waste, being information that he knew was false or misleading in a material respect. Further, the EPA submits that Mr Mouawad has not established that he did not entertain a genuine consciousness of guilt for the offences to which he has pleaded guilty in the present proceedings, and the evidence actually suggests that he entertained a genuine consciousness of guilt at the relevant time.
In response to the detailed written submissions provided by Mr Mouawad in relation to his reliance on autrefois acquit and autrefois convict, the EPA submits that: 1. a plea of autrefois acquit is not available as Mr Mouawad was not acquitted of the Local Court offence; 2. given that the present offences are prosecuted summarily and in a court of summary jurisdiction, a plea of autrefois convict is also unavailable to Mr Mouawad. However, a defence "in the nature of a plea of autrefois convict" is available, which, if established, would give effect not to the technical plea, but to the maxim reflected in the double jeopardy rule; and 3. the expression "double jeopardy" is an expression that is employed in relation to three different stages of the criminal justice process: prosecution, conviction and punishment, and the question of double punishment does not yet arise in the present proceedings as Mr Mouawad has not been sentenced for the present offences.
The EPA submits that the onus of establishing a plea in bar is on the accused, and Mr Mouawad's written submissions have wrongly relied upon Pearce to suggest that a plea in bar is available if a person is charged with different offences arising out of substantially the same set of facts.
The EPA submits that the basis for Mr Mouawad's proposed defence appears to be that the present offences are "similar in nature" to the Local Court offence, and Mr Mouawad sets out some factual matters which he claims are common to the Local Court proceedings and the present proceedings. However, the EPA contends that the relevant test is not whether the offences are similar in nature, or whether the offences concern the same or substantially the same set of facts. Rather, the EPA says that the relevant test, as set out in Pearce, looks to the elements of the offences concerned. If each of the offences require proof of a fact which the other does not, no plea in bar could be upheld.
The EPA submits that the Local Court offence contained an element and required proof of a fact which the present offences do not, namely that Mr Mouawad "dishonestly obtained a financial advantage". Accordingly, the evidence required to support the present offences is not sufficient to have procured a legal conviction upon the Local Court offence.
Similarly, the EPA submits that the present offences contain elements and require proof of facts which the Local Court offence did not, namely that Mr Mouawad "supplie[d] information about waste to another person" and that the information was supplied "in the course of dealing with the waste". Thus, the evidence necessary to support the Local Court offence is not sufficient to produce a legal conviction upon the present offences.
Accordingly, the EPA contends that no plea in bar could be upheld in the present case.
Even if regard is had to the factual basis for the Local Court offence and the present offences, the EPA submits that there are material differences. This is reflected in the fact that the Local Court offence occurred on 15 June 2016, and three other offences placed on a Form 1 before the Local Court were particularised as occurring on 20 June 2016, 1 July 2016 and 21 July 2016. These dates reflect the dates on which Mr Mouawad provided false invoices to Peter O'Brien Constructions for the payment of $41,000, $58,978.40, $69,974.69 and $55,923.67 respectively. The invoices related to costs allegedly incurred by Mr Mouawad in disposing of the soil contaminated with asbestos at the Landfill. The provision of these fraudulent invoices to Peter O'Brien Constructions resulted in Mr Mouawad dishonestly obtaining a financial advantage.
In contrast, the EPA submits that the present offences are particularised as occurring on or about 30 June 2016 and 7 July 2016, which were the dates on which Mr Mouawad supplied, or caused to be supplied, information about waste (namely, the "Ticket List Report" and scanned copies of 29 waste disposal dockets) to Peter O'Brien Constructions in the course of dealing with such waste, being information he knew was false or misleading in a material respect.
For the above reasons, the EPA submits that Mr Mouawad's proposed defence is without merit.

Document obtained under subpoena from Mr Rizk

In his oral submissions in reply, Mr Daoud "called upon" a document (being a file note produced by Mr Mouawad's previous solicitor, Mr Rizk, in response to a subpoena issued by the EPA on 18 October 2019). That document was not produced in response to the call at the time but was later attached to the EPA's further written submissions dated 3 December 2019 (received after the hearing of the motions).
The EPA does not oppose that document being received into evidence, and notes that it is a file note of Mr Rizk dated 22 November 2018, the day before Mr Mouawad entered his guilty pleas in the present proceedings. The EPA submits that contrary to Mr Mouawad's oral evidence that he spoke to Mr Rizk by telephone the day before he entered his pleas, the file note states that Mr Mouawad "arrived 5:20pm". The file note further states that Mr Rizk advised Mr Mouawad that he needed to appear on his own and enter pleas, or seek an adjournment. It also states that Mr Rizk indicated to Mr Mouawad that he could not give him any advice as he had not been funded.
The EPA submits that the file note has little bearing on Mr Mouawad's motions. The EPA contends that there is some ambiguity about the extent to which the material contained in the file note relates to the Arcadia proceedings (which were also listed on 23 November 2018), and no attempt has been made by Mr Mouawad to resolve this ambiguity. The EPA submits that this omission is significant given that Mr Mouawad does not assert that he received no legal advice from Mr Rizk, but that he did not receive comprehensive legal advice as to the "implications and ramifications" of how he should plead.
The EPA contends that whether or not Mr Mouawad received advice on the evening immediately prior to the entry of his pleas is immaterial in circumstances where it may comfortably be inferred that Mr Rizk was providing advice to him when he filed and served Mr Mouawad's Notice of Defence Response on 10 October 2018 and provided representations to the EPA's solicitor on 1 November 2018.
In any event, the EPA notes that Mr Rizk advised Mr Mouawad on 22 November 2018 that he had two options at the mention the following day: he could enter his pleas, or seek an adjournment. If Mr Mouwad was, as he now alleges, "in a state of overwhelm" on that day, the EPA submits that he could have sought an adjournment. Mr Mouawad previously sought adjournments when he appeared on his own in the present proceedings on 1 June 2018, 29 June 2018 and 27 July 2018. The EPA contends that Mr Mouawad could also have entered pleas of not guilty, a decision his plea in the Arcadia proceedings makes clear was within his capabilities on 23 November 2018, and he elected not to do so.

Legal principles

In Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 ('Brown Brothers') at [156]-[159], McColl and Macfarlan JJA and Tobias AJA summarised the relevant principles in relation to the withdrawal of guilty pleas in a manner which I respectfully adopt as follows: [156] Because a guilty plea "is an admission of all of the legal ingredients of an offence and is the most cogent admission of guilt that can be made", an "asserted want of understanding of what was involved in [such a] plea … is approached with 'caution bordering on circumspection'." Such circumspection rests in part on the cogency of the plea itself and, too, "on the high public interest in the finality of legal proceedings". The principle of finality is not offended once it is established that there will be a miscarriage of justice if a withdrawal application is not allowed. [157] In order to be given leave to withdraw a guilty plea: It is necessary for the applicant to establish that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; 184 CLR 132 at 157. Without being exhaustive, that may be shown in circumstances where: • the applicant did not appreciate the nature of the charge to which the plea was entered: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; R v Iral [1999] NSWCCA 368; Meissner v The Queen, supra, at 157. • the applicant was not in possession of all of the facts and the plea was not attributable to a genuine consciousness or recognition of guilt: R v Murphy [1965] VR 187 at 191; R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep); R v Ganderton (Court of Criminal Appeal (NSW), 17 September 1998; unrep); and R v Favero [1999] NSWCCA 320. • there was a mistake or other circumstance affecting the integrity of the plea as an admission of guilt: R v Sagiv, supra; or where • the advice of the applicant's lawyer(s) was imprudent, inappropriate or incorrect: R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310; R v Hawker [2005] NSWCCA 118." [158] There is no "presumption one way or another … in favour or against an applicant for leave to have his plea of guilty changed to one of not guilty … [t]he only test [being] whether a miscarriage of justice, in the view of the judge, would occur if the leave sought were denied the applicant". The fundamental proposition is that "it is a matter for the discretion of the Judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken." Nevertheless, "[i]t is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave." [159] It is incumbent upon an applicant seeking leave to withdraw a guilty plea to identify clearly the substance of the proposed defence if the plea reversal is permitted and to "put forward at least some evidence, independent of his own evidence, and which, if accepted, would have justified a finding that the application to reverse the plea of guilty was a bona fide application."
Courts have emphasised that an application to withdraw a plea must be approached with caution given the public interest in the finality of litigation. As Kirby P (with whom Grove and Newman JJ agreed) stated in R v Liberti (1991) 55 A Crim R 120 at 122: For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence.
I consider, albeit with some repetition of the above, that the "exceptional cases" in which a court will allow the withdrawal of a guilty plea include where the applicant did not appreciate the nature of the charge; where the plea was not a free and voluntary confession; and where the plea was induced by threats or other impropriety: R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at 477-478. Further, establishing that the person pleading did not entertain a genuine consciousness of guilt is often regarded as a critical factor: Woods v The Queen [2008] NSWCCA 83; (2008) 184 A Crim R 108 ('Woods') at [36]. It is fundamental to such an application that it be shown that the integrity of the plea was affected, as demonstrated by Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 ('Meissner') at 141 where the High Court held that no miscarriage of justice arises if a person enters a guilty plea, even if that person is not guilty, providing the plea was entered by a person of full age, sound mind and understanding, and was entered in the exercise of a free choice.
In Meissner (also referenced by Tobias AJA in Brown Brothers), in the context of an appeal against conviction based on a guilty plea, Dawson J stated at 157: It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.
To prove that there would be a miscarriage of justice if leave to withdraw a plea were refused, an applicant must demonstrate that there is an "issuable question of guilt". In R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep) ('Davies'), Badgery-Parker J stated: …If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Justice Scholl 'an issuable question of guilt' - to put it more simply, if there is a real question to be tried…
In making my findings below, I am also conscious of the commentary in R v Ganderton (Court of Criminal Appeal (NSW), 17 September 1998, unrep) ('Ganderton') which adopted statements from Davies as follows: If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial.
These remarks were cited by Sully J in R v Favero [1999] NSWCCA 320 ('Favero') at [16] in the context of an absence of advice about defences lawfully available. At [17], Sully J further quoted Ganderton as follows: Belief by the accused that he is guilty of the offence charged may arise from a mistaken or possible mistaken understanding of the facts.... It may also arise from a failure on the part of the accused's legal representative to inform the accused accurately of the elements of the offence, so that the accused incorrectly believes that the facts as alleged and admitted constitute the offence charged. ....
In Ganderton (quoted in Favero at [17]), the Court also commented that if there had been an arguable case for acquittal, there was no "genuine consciousness of guilt" when the appellant pleaded guilty to the charges, and there was an "issuable question of guilt" to be tried.

Whether leave should be granted for Mr Mouawad to withdraw his guilty pleas

Despite Mr Mouawad's reliance on the report of Dr Way, I note that that report was clearly prepared for the sentence hearing in the Local Court proceedings, and it concluded that Mr Mouawad exhibited "no formal thought disorder". I also note that Dr Way opined that Mr Mouawad "showed good insight into his problems and his current judgment is assessed to be fair". Further, and in my view tellingly, Dr Way considered that "it would appear that his judgment was adversely impacted by his mood state, which he later regretted. He has expressed remorse and pleaded guilty..." I consider that this finding is in contradistinction to that which is now put on behalf of Mr Mouawad. Dr Way, on any reasonable view, was referring to Mr Mouawad's "judgment" at the time he undertook the conduct that was the subject of the Local Court proceedings, not at the time he entered the plea in the Local Court proceedings, nor as at 16 December 2018 (the date of Dr Way's report).
I consider Mr Mouawad's present claims that "he could not mentally deal with the constraints of the legal system" and did not have "clarity of mind" sit uncomfortably with Dr Way's opinion and Mr Mouawad's guilty plea in relation to the Local Court proceedings which was entered in September 2018. More relevantly, Mr Mouawad's claims do not sit comfortably with his conduct in this Court on 23 November 2018, the date on which he entered his pleas of guilty in the present proceedings and not guilty in each of the Arcadia proceedings.
I am also conscious of the fact that, as submitted by the EPA, Dr Way does not suggest that he observed the absence of any of the factors identified in R v Presser [1958] VR 45; [1958] ALR 248 ('Presser') at 48 which must be present for an accused to be fit to be tried. These include Mr Mouawad's ability to understand what he was charged with, to plead to the charges, to exercise his right of challenge, and to understand generally the nature of the proceedings. Although the test for determining fitness is different from the test for determining whether to grant leave to withdraw a plea, the fact that there is no suggestion that Mr Mouawad did not possess any of the Presser factors supports the view that no miscarriage of justice would occur if Mr Mouawad's application to withdraw his pleas were refused.
In his affidavit, Mr Mouawad deposed that at the time of entering the guilty pleas, he did not entertain a "genuine consciousness of guilt" and he did not enter the pleas of guilty for the sake of convenience. Moreover, Mr Mouawad says that his mental state impacted upon the "integrity" of his pleas. I consider that the evidence of Dr Way does not suggest that Mr Mouawad did not entertain a consciousness of guilt in respect of his conduct in supplying false and misleading information about waste in the course of dealing with waste, the subject of the charges in the present proceedings. My reasons follow.
Mr Mouawad pleaded guilty to the offence against s 192E(1) of the Crimes Act in the Local Court shortly before his pleas of guilty were entered in the present proceedings, and the evidence he gave by affidavit on 18 December 2018 and the oral evidence he gave in the Local Court (the transcript of which became Exhibit 2 in the present proceedings) that his conduct "was incorrect and it was wrong" (Tcpt, 19 December 2018, p 8(25)), and that he accepted full responsibility for what had occurred (Tcpt, 19 December 2018, p 5(30)), is indicative of an acknowledgement of guilt.
Having considered the report of Dr Way, having read the two affidavits of Mr Mouawad and the evidence he gave in the Local Court proceedings, and having heard his oral evidence, I do not find that Mr Mouawad's depression or general mental state was of such a degree so as to have affected the integrity of his pleas. Mr Mouawad has failed to establish that a miscarriage of justice would occur if his application to withdraw his pleas were refused either on the basis of his mental state at the time or on account of any of the other matters raised in his applications.
It is clear that on various occasions, and at least on 28 September 2018, 12 October 2018, 2 November 2018 and 16 November 2018, Mr Rizk appeared for Mr Mouawad. The uncontested evidence of Mr Verzosa deposed to correspondence between Mr Verzosa (on behalf of the EPA) and Mr Rizk from at least 23 August 2018, and, more relevantly, from Mr Rizk to Mr Verzoasa on 25 September 2018. In that correspondence, Mr Rizk noted that he had received "10 full volumes of brief material" and that at the next directions hearing, he would seek a short adjournment to complete his reading of the material and prepare a response. Moreover, by email of 10 October 2018, Mr Verzosa provided Mr Rizk with a Notice of Prosecution Case pursuant to s 247E of the Criminal Procedure Act and correspondence from Mr Rizk on 1 November 2018 attached "our offer to the EPA" and a request for an adjournment for some weeks.
Further, by correspondence of 15 November 2018, Mr Rizk stated that he intended to adjourn the matters (listed on 16 November 2018) for two weeks in order to "withdraw from the matter with Paul entering pleas in two weeks' time". On 21 November 2018, two days before the entry of the pleas in the present proceedings, Mr Rizk again wrote to Mr Verzosa and stated that Mr Mouawad "...will be in attendance on Friday and he will enter pleas I believe of guilty to all matters relating to Darlington and Arcadia. I will withdraw before that happens but stay in court till the matters are finished and a sentence date is given". The letter also suggests that the "current Hearing date" be kept and "...have it listed as a sentence date?"
Mr Verzosa also deposed that: in April 2018, he arranged for Mr Mouawad to be personally served with sealed summonses and six affidavits in the present proceedings; in May 2018, he provided copies of a further 18 affidavits to Mr Mouawad at his residential address; and on 12 June 2018, a further three affidavits were provided to Mr Mouawad at his residential address. Further, on 7 September 2018, a copy of the Notice of Prosecution Case pursuant to s 247E of the Criminal Procedure Act was provided to Mr Mouawad.
In considering the above matters, I accept the EPA's submission that Mr Rizk was providing advice to Mr Mouawad from at least late August 2018. I note that in his letter of 22 August 2018, Mr Rizk confirmed that at that time, he had not reviewed the evidence served on Mr Mouawad, and it is clear that subsequent to that date, Mr Rizk received and considered that material. Further, in my view, the fact that Mr Rizk was the legal representative of Mr Mouawad in respect of the Arcadia proceedings from "at least 27 September 2018 until Mr Rizk formally withdrew on 23 November 2018" as per Mr Verzosa's evidence, also shows that Mr Rizk acted in those proceedings and (at least) accompanied Mr Mouawad when pleas of not guilty were entered in those proceedings. I also accept the EPA's submission that it is not suggested that Mr Rizk did not provide advice or that the advice he provided was erroneous, imprudent or inappropriate. Moreover, Mr Mouawad has not identified how the advice actually provided by Mr Rizk, or the contended lack of "comprehensive" advice, caused Mr Mouawad to plead guilty to the present offences.
I find that the file note of 22 November 2018 does not affect my findings. The evidence shows that Mr Rizk was acting for Mr Mouawad for some time, and that he attended a conference with him on 22 November 2018. In passing, and although not determinative, I note that while it is unclear which proceedings (the present proceedings or the Arcadia proceedings) the file note is referring to in relation to each matter discussed therein, Mr Rizk clearly notes that he advised Mr Mouawad that "he must appear on his own and enter pleas or seek adjournment".
In the circumstances, I do not consider that Mr Mouawad has established that the alleged failure to provide "comprehensive" advice, or as Mr Daoud submitted, "fulsome" advice, would lead to a miscarriage of justice if the applications for leave to withdraw the pleas is refused. As such, I cannot accept, and it does not appear to be submitted by Mr Mouawad, that Mr Rizk's advice was imprudent, inappropriate or incorrect.
I find that Mr Mouawad has not identified how any legal advice (or lack thereof) provided by Mr Rizk caused him to plead guilty to the offences. In making this finding, I am conscious of the comments of Howie J in Wong v Director of Public Prosecutions (DPP) [2005] NSWSC 129 at 42; (2005) 155 A Crim R 37 at [20], [37]: [20] In the proceedings before the first Magistrate the solicitor for the plaintiff informed the bench that the plea of guilty was 'based on the provision of inadequate legal advice by his former legal representatives'. The nature of that advice was never revealed. It was said to have resulted in confusion on the part of the plaintiff, but it was a matter left for conjecture as to what it was that he was confused about or how that confusion impacted upon his decision to plead guilty. The submissions never touched on the crucial issue of what the plaintiff believed the plea of guilty meant or why it was that, notwithstanding his denials from the time he had been confronted with the allegation, he was prepared to plead guilty while legally represented. … [37] [I]f the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.
Further, I consider the comments of Hulme J in Woods at [37] to be instructive: Although some of the cases upon which reliance was placed by the Appellant contain statements in unequivocal terms to the effect that a plea may be allowed to be withdrawn if the person pleading was not in possession of all the facts or had received imprudent or inappropriate advice, such statements should not be regarded as encompassing all and any fact or imprudent or inappropriate advice. The "facts" or evidence or advice involved in criminal trials and relevant at a time when consideration is being given to the entry of a plea of guilty are liable to cover a wide area. They may include reference to the statutory specification of the elements of an offence or of a relevant defence. They may, as in this case, include one or more discrepancies or inconsistencies in the evidence of a Crown witness: They may include less than 100% positive identification of an offender, or arguably obvious pauses (revealed on video tape) before an identification is made: They may include a variety of matters having no relevance except to the credibility of a witness. Advice as to the likely result of a contested trial may vary from the very positive to the most pessimistic with all shades of grey in between. Mere error, even imprudent or inappropriate error, in these matters is not sufficient to justify allowing the withdrawal of a plea. As the Chief Justice pointed out during the course of argument in the case, the topic of advice is not to be approached as some sort of forensic game. To justify allowing the withdrawal of a plea, an error must be one that affects the integrity of the plea.
I find that there is no compelling material in the evidence to indicate that Mr Mouawad did not understand the nature of the charges, or that, in the circumstances, he did not intend by his pleas to admit his guilt.
Although it was submitted by Mr Mouawad that there was a lack of material documentation setting out the case against him, there was little evidence and no comprehensive submissions justifying this contention as a discrete matter of concern. Despite this, as noted above, the evidence of Mr Verzosa clearly indicates that the EPA's material (which was not insignificant) was provided to Mr Mouawad personally as well as being provided to Mr Rizk thereafter. The correspondence with Mr Rizk and the uncontested evidence of Mr Verzosa makes this abundantly clear. Accordingly, I do not accept that Mr Mouawad was in some way deprived of "all material documentation" setting out the case against him.
In relation to a possible defence, despite Mr Mouawad's reliance on the principles in Pearce, it is important to note the context of that case. In Pearce, after an unsuccessful application for a stay, the appellant had been convicted of an offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm under s 113 of the Crimes Act, and an offence of breaking and entering a dwelling house and whilst there, inflicting grievous bodily harm under s 110 of the Crimes Act. The charges arose out of a single episode involving the appellant breaking into the victim's house and beating him. The two offences each contained an element that the other did not. However, the appellant argued that he had a plea in bar or was entitled to a stay of the proceedings because he could not be convicted of different offences "in respect of the same or substantially the same set of facts". McHugh, Hayne and Callinan JJ stated at [18]-[20], [24], [28]: [18] It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for 'substantially the same' offence, or for an offence the 'gist' or 'gravamen' of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins, for the 'same matter'. It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts. [19] Much of the difficulty in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts can be seen to stem from two sources: first, the uncertainties inherent in the proposition that it is enough that the offences are 'substantially' the same; and secondly, the attempt to identify the 'sameness' of two offences by reference to the evidence that would be adduced at trial. But these difficulties may be more apparent than real. [20] In each of Chia Gee v Martin and Li Wan Quai v Christie, Griffith CJ identified the test for whether a plea in bar would lie as being 'whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first'. At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the enquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events. … [24] On closer analysis, therefore, it may be that Wemyss and other cases that are said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts do not do so. Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other". … [28] Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an inquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J. The stream of authorities in this country runs against adopting such a test and there is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld. (citations omitted and emphasis added)
When considering the relationship between charges, the different ways in which charges are framed reflects the gravamen of the two offences. As Gleeson CJ noted in Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 at 508, where two or more different statutory prohibitions apply to the same set of primary facts, this will "often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another".
I accept the EPA's submission that in respect of the Local Court offence, the gravamen of the offence was Mr Mouawad's dishonest obtaining of a financial advantage through the provision of false invoices to Peter O'Brien Constructions, and in respect of the present offences, the gravamen of the alleged offences is Mr Mouawad's provision of false or misleading information about the waste contaminated with asbestos in the course of disposing of the waste.
Further, I find that a plea of autrefois acquit is not available in this instance as Mr Mouawad was not acquitted of the Local Court offence, and, in light of the fact that the present offences are prosecuted summarily (that is, not on indictment), a plea of autrefois convict is also unavailable. However, I accept that despite the unavailability of a plea of autrefois convict, a defence based upon a plea "in the nature of a plea of autrefois convict" may be available if the circumstances justify the rule against double jeopardy: State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 ('State Pollution Control Commission') at 529 and Director of Public Prosecutions (DPP) (NSW) v Burns [2010] NSWCA 265; (2010) 207 A Crim R 362 at [47]. For the reasons given above and below, I do not consider that the circumstances justify the rule against double jeopardy.
I find that the Local Court offence and the present offences are not "the same offences". As such, I accept the EPA's submissions summarised at [40]-[45] above. As Abadee J stated in State Pollution Control Commission at 534, 536: That a man is not to be punished twice for the same act or for the same offence, or in effect the same or substantially the same offence is not to say that the person cannot twice be punished for the same act or substantially the same act. … …in New South Wales the decisions of this Court support the view that the common law, although preventing a person from being punished twice for the same "offence", has never prevented him from being punished twice for the same act or that "offence" and "act" both mean the same thing. There is no reason why the same act may not be prohibited by two separate statutes and involve an offence against each of them: see Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 510; affirmed [1973] 1 NSWLR 229; Sydney City Council v Paul Dainty Corporation Pty Ltd [1984] 3 NSWLR 104 at 107-108; R v Wallace (Court of Criminal Appeal, 6 February 1991, unreported) per Campbell J (at 4-5) with whom Hunt J and Newman J agreed and the earlier case of Australian Oil Refining Pty Ltd v Cooper per Hunt J (at 282).
As such, I do not find Mr Mouawad's submission that the offence in the Local Court proceedings and the offences in the present proceedings are "similar in nature" to be compelling in circumstances where the same act may be prohibited by the Crimes Act and the POEO Act, but can involve an offence against each of them.
Relevantly, in Pearce, although the High Court rejected the appellant's arguments regarding double prosecution, it allowed his appeal on sentence on the basis that he was doubly punished for a single act, namely the infliction of grievous bodily harm. McHugh, Hayne and Callinan JJ stated (at [40]): To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
I consider that, to the extent that the Local Court offence and the present offences contain common elements, this can be taken into account on sentence in a way which is not compromised by Mr Mouawad's guilty pleas.

Conclusion

Taking the legal principles enunciated above into account, and approaching the matter with what has been referred to in a number of authorities as "caution bordering on circumspection", I do not consider that any of the discrete matters raised on behalf of Mr Mouawad, either considered individually or collectively, are such as to warrant leave being granted to withdraw his guilty pleas.
In summary, as I have found above, I do not consider that Mr Mouawad's mental state at the time of entering the pleas is persuasive, and I am not of the view that Mr Mouawad did not receive appropriate legal advice given the circumstances surrounding the entry of the pleas, including the fact that he had legal representation at least up until the day of the entry of the pleas (noting that separate pleas were entered in the Arcadia proceedings). Further, I do not accept that Mr Mouawad and/or his legal representative at the time had not received all material documentation setting out the case against him, and the evidence contrary to that assertion is clear. Further, and for the reasons set out above, and particularly in relation to the elements of the offences and the manner in which the High Court has considered a plea in bar in Pearce, I do not consider that Mr Mouawad has shown that he had an available defence. Finally, taking into account all the evidence, I do not consider that there is an "issuable question of guilt".
I consider that there is no miscarriage of justice in refusing to allow Mr Mouawad to withdraw his pleas. Accordingly, each notice of motion should be dismissed.

In proceedings 2018/00104770: 1. Notice of Motion filed 6 September 2019 is dismissed. 2. The matter is stood over for directions before the List Judge on Friday 21 February 2020.

In proceedings 2018/00104772: 1. Notice of Motion filed 6 September 2019 is dismissed. 2. The matter is stood over for directions before the List Judge on Friday 21 February 2020.

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Environment Operations Act 1997(NSW)ss 142A, 143, 144, 144AA

Crimes Act 1900(NSW)ss 192E

Criminal Procedure Act 1986(NSW)ss 247E, 247F

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