Environment Protection Authority v Mouawad

Prosecutor's submissions

The Prosecutor submitted that the three offences charged are strict liability offences but depending on the defence that Mr Mouawad may mount, such as whether he had lawful authority, issues of his credit will potentially arise at trial.
Because of my involvement in the Darlington proceedings: 1. I convicted Aussie Earthmovers and made findings that Mr Mouawad was aware of the falsity of documents, and I sentenced Mr Mouawad for dishonesty offences having made findings of dishonesty by him. 2. Each of the three pending charges relate to asbestos waste and in that context I considered Mr Mouawad was dishonestly acting in relation to the removal of asbestos waste. 3. As set out in the Darlington proceedings I was required to actively engage in Mr Mouawad's criminal history and other offences in relation to which he has been convicted under s 143 of the POEO Act. 4. I am aware that he was charged with obtaining a benefit by deception in relation to the Darlington offences (s 192E Crimes Act 1900 (NSW)).
The application has been made in a timely way (pars 17-22 of Mr Verzosa affidavit).
The 'might/might' test is articulated in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [8]. Relevant principles in applying the Ebner test are identified in Hills Shire Council v Mouawad (2014) 203 LGERA 233; [2014] NSWLEC 59 (Hills Shire Council) at [24]-[47], in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] cited in Hills Shire Council at [25] and in R v El-Zeyet [2012] NSWSC 340 (El-Zeyat) at [21]-[23], [25]. Applying the test in Ebner the fair minded observer might reasonably apprehend that I might not bring a completely open mind to Mr Mouawad's truthfulness.
Mr Mouawad is not legally represented. There is a risk that if an appeal is made this could be an appeal point raised by him subsequently, a risk referred to by Johnson J in El-Zeyat at [25].

Consideration

At issue is whether in the circumstances outlined in Mr Verzosa's affidavit a fair minded lay observer might reasonably apprehend that I might not be able to bring an impartial mind to determine the guilt or innocence of Mr Mouawad in relation to the pollution and waste offences alleged in the three pending criminal proceedings (the Ebner test), in light of my consideration of and sentencing for these offences of Mr Mouawad individually and as the controlling mind of Aussie Earthmovers in the Darlington proceedings.
Justice Johnson identified in El-Zeyet at [19] the apprehension of bias rule could be subject to waiver, necessity or possibly special circumstances, none of which obviously arise or have been raised on this application. The issue of necessity was helpfully addressed by Pepper J in Hills Shire Council extracted below in [16] at [48]-[52]. I will refer briefly to this matter again below.
In Hills Shire Council Pepper J stated at [25]-[27], [48]-[52]: 25. The rationale for the apprehension of bias rule was described in British American Tobacco Australia Services Limited as follows (at [139]): 139. It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature. 26. The manner in which the test is to be applied was set out in Ebner (at [8], restated in Michael Wilson & Partners at [63]): 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 27. Whether the test comprises two steps or three (as to the latter, see R v El-Zeyat and Aouad [2012] NSWSC 340 at [20] per Johnson J) does not ultimately matter. Translated to the present application, it involves, first, a consideration of whether the matters raised by Mr Mouawad have a logical connection with the feared deviation by me from the course of determining the issues raised by the 2014 LEC proceedings on the merits by reason of pre-judgment. Pre-judgment means having a closed mind as to the creditworthiness of Mr Mouawad, in the sense of not being open to persuasion by any evidence or submissions from him that he is a witness of truth. … Exceptions to the apprehended bias rule 48. In his written submissions Mr Mouawad opined that it was "rare" for the same judicial officer to have the potential to hear a subsequent criminal trial, having heard one earlier involving the same parties. While this may be true in other larger superior courts, it is not the case in small and specialised courts such as the Land and Environment Court, which hears and determines most of the serious environmental crime in this State. 49. The result is that it is not unusual for the same parties and witnesses to appear regrettably regularly before the same judge in both civil and criminal matters. The further result is that if a judge disqualifies himself or herself at short notice, it is not always possible to find a replacement judge to hear the matter in order to preserve the allocated hearing date, thereby causing the parties to waste legal costs and the Court to waste resources. 50. Exceptions to the apprehension of bias rule have been identified to include necessity, waiver and, "possibly", special circumstances (British American Tobacco Australia Services Limited at [146] and the cases cited thereat). In British American Tobacco Australia Services Limited the High Court rejected an argument that the trial judge's refusal to recuse himself could be justified on the ground of necessity. In doing so, the Court observed that "while the [Dust Diseases] Tribunal is a small one and is currently constituted by three judges, the persons qualified to be members of the Tribunal included judges or Acting Judges of the Supreme and District Court of New South Wales" (at [147]). 51. This Court is only constituted by six judges, but, acting judges from the Supreme Court and other qualified persons (for example, retired judges from the Federal Court of Australia) may be appointed to hear and dispose of matters where no other permanent judge is available to do so (see s 11 of the Land and Environment Court Act 1979). Any exception to the apprehended bias rule based on the doctrine of necessity may therefore be difficult to apply. The small number of permanent judges appointed to this Court, however, reinforces the need for recusal applications to be made in a timely manner. 52. As neither party sought to raise any of the exceptions to the apprehended bias rule, I do not consider them further.
In El-Zeyat Johnson J stated at [21]-[23], [25]: … 21. A judge should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter: Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 504 [45]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352. 22. A judge is obliged to recuse himself or herself from hearing a matter only if, in the judge's view, there is a real possibility that the judge's participation in a case might lead to a reasonable apprehension of bias: Livesey v New South Wales Bar Association at 294. 23. Where, as here, reasonable apprehension of bias is said to arise by way of prejudgment, it is necessary to consider the nature and strength of any previous findings which are relied upon in support of the application, and in particular whether the findings concern the credibility of a witness or witnesses: British American Tobacco Australia Services Limited v Laurie at 331-333 [139]-[145]; Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 86 ALJR 14 at 20-21 [31]-[33], 26-27 [67]-[73]. The hypothetical observer will have in mind the fact that judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence in the particular case: British American Tobacco Services Limited v Laurie at 331-332 [140]. … 25. It has been said that, in a case of real doubt, where the application for recusal is based upon a substantial ground for contending that the judge is disqualified from hearing the case, a judge may decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification: Ebner v Official Trustee in Bankruptcy at 348 [20]. Matters relevant to that assessment include, amongst other things, the stage at which an objection is raised and the practical possibility of arranging for another judge to hear the case: Ebner v Official Trustee in Bankruptcy at 348 [21].
The importance of the apprehension of bias rule is identified in Hills Shire Council at [25], citing British American Tobacco at [139].
Considering the two steps identified in Ebner, turning to step 1 (restated in Michael Wilson & Partners Limited v Nicholls (2011) 86 ALJR 14; [2011] HCA 48, cited in Hills Shire Council at [26]), as the Prosecutor has identified I sentenced Mr Mouawad following his plea of guilty to two offences of knowingly supply false and misleading information about waste in breach of s 144AA(2) of the POEO Act, the elements of which offences inherently include dishonest behaviour. Following a contested hearing on liability, I found that Mr Mouawad acted dishonestly when he was the controlling mind of Aussie Earthmovers in relation to two other offences of knowingly supply false and misleading information about waste in breach of s 1444AA(2) of the POEO Act in the Darlington proceedings. I sentenced him on the basis of these findings. I am aware of his criminal antecedents having actively considered his prior criminal history in the course of sentencing him in the Darlington proceedings, see EPA v Mouawad (No 2); EPA v Aussie Earthmovers (No 3) at [66]-[68], which includes a charge of obtaining a benefit by deception under s 192E of the Crimes Act which arose from the same circumstances giving rise to the Darlington proceedings.
Concerning the second step in Ebner (restated in Michael Wilson & Partners Limited v Nicholls, cited in Hills Shire Council at [25])), the pending charges to which Mr Mouawad has pleaded not guilty allege pollution of land under s 142A of the POEO Act, that he was an occupier of a place that caused the place to be used as a waste facility without lawful authority in breach of s 144(1) of the POEO Act and that he caused waste to be transported to a place that could not lawfully be used as a waste facility for the waste in breach of s 143(1) of the POEO Act. I observe these charges also concern the management of waste including asbestos waste, as did the Darlington proceedings. While no mental element is part of the elements of any of the charges, the factual circumstances surrounding them particularly in relation to whether lawful authority was held, are very likely to give rise to credit questions concerning Mr Mouawad's behaviour in relation to the two waste charges in particular.
Mindful of the admonishment of Johnson J that a judge should not too readily disqualify themselves, application of the Ebner test on this occasion suggests that the matters in relation to which I have expressed an opinion in the Darlington proceedings, which addressed Mr Mouawad's credit directly in a highly adverse way, are likely to arise in relation to the three pending charges and the apprehension of bias rule does arise.
I accept that the application has been made by the Prosecutor in a timely manner as identified in the affidavit of Mr Verzosa.
Mr Mouawad is unrepresented at this stage. He has expressed no view on the notices of motion. Should he ultimately choose to appeal on the basis of apprehension of bias there is a risk that an appeal court may take a different view if I do not disqualify myself, a matter identified in El-Zeyet at [25].
In all these circumstances in order to avoid the appearance of bias for a lay observer the 'might/might' test in Ebner warrants my disqualification.
As already noted above, the question of necessity was referred to by Pepper J above at [48]-[51] in obiter observations. It does not arise on this application. The Prosecutor has advised that other judges of the Court can hear the three criminal matters listed for hearing on liability due to their lack of involvement with proceedings involving Mr Mouawad to date. As advised to the parties during the hearing of the notices of motion, if I disqualify myself whether the current hearing dates can be kept is presently unknown.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (6 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (15)