Environment Protection Authority v Mouawad

Land and Environment Court (NSW)|2023-04-05|Before: Pritchard J, There Bathurst CJ

Introduction

This matter is set down for a four week trial before me commencing Wednesday, 26 April 2023 until 24 May 2023. The proceedings were commenced in August 2018. They were previously scheduled twice to be heard: from 25 October 2021 to 19 November 2021; and from 5 to 30 September 2022. Both hearings were vacated.
The matter was listed today before me for a pre-trial mention. Two days ago, on 3 April 2023, the defendant filed a notice of motion, identifying his representative as "Ninoska Mouawad (Defendant Spouse)", seeking an order that the hearing dates of 26 April 2023 to 24 May 2023 "be assessed under sections 35 and 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020". The motion was accompanied by an affidavit of Ms Mouawad, sworn 3 April 2023, filed for the defendant.
Given what the prosecutor submitted was the manifest urgency of the question of the defendant's fitness to stand trial being determined prior to the hearing set down to commence on 26 April 2023, and the procedural history, I heard submissions and subsequently made directions in relation to the preparation of an inquiry into the defendant's fitness to stand trial.

Representation

Ms Mouawad sought to appear at the pre-trial mention this morning. Section 63(1) of the Land and Environment Court Act 1979 (NSW) provides: A person entitled to appear before the Court may appear in person, or by an Australian legal practitioner, or (except in proceedings in Class 5, 6 or 7 of the Court's jurisdiction) by an agent authorised by the person in writing.
The prosecutor submitted that having regard to the decision of the Court of Criminal Appeal in Hudson v Director-General, Department of Environment, Climate Change and Water (2012) 187 LGERA 207; [2012] NSWCCA 92 (Hudson) at [63]-[64], s 63(1) does not by necessary implication prohibit the Court from giving leave to a person being represented by an unqualified person in Class 5 proceedings. There Bathurst CJ said: [63] Section 63(1) of the Land and Environment Court Act in terms entitles a litigant as of right to appear by an authorised agent in proceedings in the court except in proceedings in Classes 5, 6 or 7. It does not in terms prohibit the court granting leave for an agent to appear in proceedings in those Classes. The purpose of the subsection was self-evidently to give persons with expertise in the areas within the jurisdiction of the court, town planners and the like, the right to appear whilst not extending that right to the criminal and quasi-criminal matters generally covered by Classes 5, 6 and 7. [64] In my opinion this section does not by necessary implication prohibit the court from giving leave to a person being represented by an unqualified person in Class 5 proceedings. Even though the court is a statutory court it has the power to control its own proceedings. In Damjanovic v Maley above, an appeal from a decision by a District Court (a statutory court) judge to refuse leave to commit an unqualified person to represent a plaintiff, Stein JA, with whom Mason P and Sheller JA agreed, made the following remarks (at [33]): [33] According to Halsbury's Laws of Australia a court has an inherent right, in regulating its own proceedings, to allow a person (not being a lawyer) to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice.
The prosecutor did not object to Ms Mouawad being given leave to appear as an agent for the defendant at the pre-trial mention today. However, the prosecutor would oppose a grant of leave for the defendant to appear by Ms Mouawad as an agent at any fitness inquiry, or at the trial set down for 26 April to 24 May 2023.
Having regard to the authority of the Court of Criminal Appeal in Hudson, and the position of the prosecutor, I gave leave for the defendant to be represented by Ms Mouawad for the purposes of the pre-trial mention today. I also directed that the defendant, in writing, authorise Ms Mouawad to appear as his agent at the pre-trial mention.
In relation to the question of representation, I also directed that the defendant approach the New South Wales Bar Association and Law Society of New South Wales with a view to obtaining pro bono legal assistance for the hearing of these proceedings commencing on 26 April 2023, and to provide evidence to the Court and the prosecutor of those approaches and the outcome of them by 17 April 2023.

Procedural history

The prosecutor read an affidavit of Mr Ryan Verzosa, one of the solicitors of the prosecutor with carriage of the proceedings. The relevant procedural history, derived largely from the chronology exhibited to the affidavit of Mr Verzosa, affirmed 4 April 2023, is as follows.
The prosecutions each arise from the defendant's alleged involvement in the transportation of fill material between about 31 January 2017 and 28 August 2017 to a site at 22 Geelans Road, Arcadia. On 28 August 2018, the proceedings were commenced by three summonses filed by the prosecutor. The alleged offences are: 1. From 31 January 2017 to 28 August 2017, the defendant committed an offence against s 142A(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), in that he polluted land at 22 Geelans Road, Arcadia NSW. 2. From 31 January 2017 to 28 August 2017, the defendant committed an offence against s 143(1) of the POEO Act, in that he caused waste to be transported to a place, at 22 Geelans Road, Arcadia NSW, that could not lawfully be used as a waste facility for that waste. 3. From 31 January 2017 to 28 August 2017, the defendant committed an offence against s 144(1) of the POEO Act, in that he was the occupier of a place at 22 Geelans Road, Arcadia NSW, and caused the place to be used as a waste facility without lawful authority.
On 5 October 2018, the first mention took place, and the Court made orders for the filing of notices pursuant to s 247E of the Criminal Procedure Act 1986 (NSW) (CP Act) in relation to the notice of the prosecution case to be given to the defendant. At this time, the defendant had engaged Rizk & Associates as his legal representative for the proceedings. There was no appearance by a legal representative at that mention.
On 2 November 2018, the prosecutor filed and served a s 247E notice pursuant to the CP Act.
On 23 November 2018, at a further mention, the defendant remained represented by Rizk & Associates. On that occasion, the defendant entered a plea of not guilty to each of the alleged offences.
On 30 November 2018, the defendant was self-represented. At a mention on that date, the matter was adjourned to enable the defendant to obtain legal representation. Orders to the same effect were made at three further mentions on 29 March 2019, 28 June 2019, and 26 July 2019.
The defendant subsequently engaged Sydney Criminal Defence Lawyers as his legal representative. At a mention on 23 August 2019, the matter was adjourned to enable the new legal representative to consider the material that had been filed and served in the proceedings. Orders to the same effect were made on 29 September 2019.
On 1 October 2019, the Court made orders for the filing of notices pursuant to s 247J (prosecution notice - court ordered preliminary disclosure) and 247K (defence response - court ordered preliminary disclosure) of the CP Act. The prosecutor served its s 247J notice on 11 October 2019.
On 31 January 2020, the prosecutor filed a notice of motion, seeking to rely on supplementary evidence. That motion was heard on 22 February 2020. At that hearing, orders were again made for the filing of a s 247K notice by the defendant.
On 16 April 2020, the Court again made orders for the filing of a s 247K notice by the defendant.
On 8 May 2020, the Court made orders for the filing of amended ss 247E and 247J notices by the prosecutor, and further orders for the filing of a s 247K notice by the defendant.
On 19 June 2020, the Court again made orders for the filing of a s 247K notice by the defendant.
On 8 July 2020, Sydney Criminal Defence Lawyers filed a notice of intention of ceasing to act for the defendant. The notice of ceasing to act was filed on 17 July 2020.
On 10 July 2020, the defendant appeared for himself, and the proceedings were again adjourned to enable the defendant to obtain legal representation.
On 31 July 2020, the defendant, represented on that occasion by counsel, Mr Damien Beaufils, informed the Court that he was now represented by Karim + Nicol Lawyers.
On 21 August 2020, the Court again made orders for the filing of a 247K notice by the defendant, and a 247L notice in response by the prosecutor (prosecution response to defence response - court ordered preliminary disclosure).
On 18 September 2020, Karim + Nicol Lawyers, acting for the defendant, filed and served a s 247K notice. On 23 October 2020, the Court ordered that the defendant respond to a letter from the prosecutor dated 13 October 2020 seeking additional information in relation to the s 247K notice. On 27 November 2020, the Court made a further order that the defendant respond to the prosecutor's letter of 13 October 2020, and that the prosecutor file a s 247L notice and the prosecutor's bundle of primary documents.
On 21 December 2020, the defendant served an amended s 247K notice. The defendant was then still represented by Karim + Nicol Lawyers.
On 15 January 2021, the prosecutor filed and served a s 247L notice in response to the defence response. On 22 January 2021, the prosecutor also served its bundle of primary documents.
On 5 February 2021, the Class 5 proceedings were listed for hearing between 25 October and 19 November 2021. The Court made timetabling orders for the preparation of the trial, including the preparation of a statement of agreed facts. On 29 April 2021, the Court amended those orders to adjust the timetable relating to the preparation of the statement of agreed facts.
On 18 June 2021, Karim + Nicol Lawyers provided to the Court a notice of ceasing to act for the defendant. The defendant thereupon reverted to being self-represented.
On 3 September 2021, the defendant filed a notice of motion seeking to vacate the Class 5 hearing, set down between 25 October and 19 November 2021, on the basis that: 1. the defendant was at the time legally unrepresented; 2. the defendant did not consent to the matter being conducted over telephone or AVL (under the then Covid-19 policy of the Court which applied); and 3. the defendant wished for any outstanding issues in relation to the state of evidence to be resolved before the trial took place. That motion was heard by Moore J on 15 September 2021. The defendant's application to vacate the hearing dates between 25 October and 19 November 2021 was granted.
On 21 October 2021, the Court again listed the proceedings for hearing between 5 and 30 September 2022. Pain J made new timetabling orders to prepare the matter for trial.
On 29 April 2022, the prosecution filed a notice of motion seeking to rely on supplementary evidence and to amend its statement of facts. The motion was heard by Moore J across a number of days between June and September 2022. On 25 July 2022, his Honour vacated the hearing dates between 5 and 30 September 2022.
On 28 September 2022, Moore J granted the prosecutor leave to amend its statement of facts, its ss 247E and 247J notices, and to file additional evidence. His Honour then set the matter down for hearing between 26 April and 25 May 2023, and made new timetabling orders in preparation for the trial on those dates.
On 14 March 2023, the prosecutor filed a notice of motion seeking to have the trial judge (Pain J) recused on the basis of apprehended bias. The motion was heard on 17 March 2023, and Pain J made orders recusing herself from hearing the matter. At the hearing of the notice of motion, the defendant's wife, Ms Mouawad, appeared as agent for the defendant. The substantive proceedings were subsequently set down before me.

Fitness to stand trial

Given what I accept is the manifest urgency of the Court dealing with the question of the defendant's fitness to stand trial, the question having been raised so close to trial and the considerable logistical challenges facing both parties in preparing for trial, Ms Mouawad for the defendant was invited to, and read for the purposes of the pre-trial mention, her affidavit sworn 3 April 2023 in support of the notice of motion in relation to the defendant's fitness. The prosecutor read the affidavit of Mr Verzosa, solicitor with carriage of the proceedings for the prosecutor, affirmed 4 April 2023, and tendered an exhibit to that affidavit.
Annexed to the affidavit of Ms Mouawad was a medical certificate dated 31 March 2023 from Dr Vedi Safi of Parramatta Park View Medical Centre certifying that the defendant (known to Dr Safi as Boulos Isaac) "has severe anxiety and depression", and had been referred "to his psychiatrist for further review on him and his medication", an appointment having been arranged for 4 April 2023. Dr Safi certified that Mr Isaac was "unwell for his work" from 3 to 7 April 2023, and was "not able to attend the court on 4 April 2023". At the pre-trial mention, the defendant, through Ms Mouawad, relied on a corrected certificate from Dr Safi certifying the defendant's inability to attend court today, 5 April 2023.
I accept that the question of the defendant's fitness to stand trial needs to be resolved prior to the hearing scheduled to commence on 26 April 2023. The prosecutor proposes to call some 60 witnesses. The logistical challenges are considerable.
I also accept the prosecutor's submission that in this Court, the question of fitness is not to be resolved by reference to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), but rather by reference to the common law and the test in R v Presser [1958] VR 45, known as the Presser test. So much follows from the decision of Pepper J in Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander [2010] NSWLEC 235.
There, her Honour (at [64]) held that there was nothing in the CP Act that rendered the provisions of the then Mental Health (Forensic Provisions) Act 1990 applicable to the Court. In her Honour's opinion (at [60]), there was no warrant for any departure from the plain and unambiguous words contained in s 4 of that Act (in relevantly identical terms to s 8 of the current Mental Health and Cognitive Impairment Forensic Provisions Act 2020), which provided: 4 Application This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and criminal proceedings in the District Court.
Her Honour concluded that the Mental Health (Forensic Provisions) Act did not apply to the Court, and recourse had to be had to the common law for the applicable principles. Pepper J continued: [69] The concept of a defendant person's fitness to stand trial derives from the common law (John Frith (1790) 22 St Tr 307 and R v Pritchard (1836) 7 C&P 303). In R v Dashwood (1943) 1 KB 1 at 4 Humphreys J stated: It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself. … [73] Fitness to stand trial is an issue that must be resolved once a party (or the court) raises "a real or substantial" (R v Presser [1958] VR 45 at 46) question for consideration. Once this occurs, the trial must be halted unless and until a determination is made that the defendant is fit to stand (Eastman at [86]). … [80] However, such an assessment could only be determined on the balance of probabilities (R v Rivkin (2004) 59 NSWLR 284 at [301]) after a properly constituted and conducted hearing, observing the usual formalities of court process (R v Zvonaric (2001) 54 NSWLR 1 at [19] and [22]), into Mr Alexander's fitness to stand trial, assisted with the benefit of suitably qualified expert evidence. For present purposes it was sufficient that the question had been raised by Mr McEwen SC in the manner in which it had.
Her Honour's decision was cited with approval by Sheahan J in Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No. 2) [2011] NSWLEC 196 at [30].
In relation to the threshold for determining whether an inquiry should be held into a defendant's fitness to stand trial, the prosecutor accepted that the threshold is not high, and that the question to be determined, on the balance of probabilities, is whether there is a "real or substantial question" as to fitness.
In Regina v TJ Tier [2001] NSWCCA 53 (TJ Tier), Kirby J (Sheller JA and Grove J agreeing) said at [54]-[56] in relation to the common law in respect of unfitness: [54] Before examining the Mental Health (Criminal Procedure) Act, 1990, it is instructive to look at the common law, and comparable legislation interstate. Justice requires that any person put on trial should be fit to stand trial. In R v Dashwood (1943) 1 KB 1, Humphries J said this, on behalf of the Court: (at 4) "It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself." [55] An accused person must be in a position to comprehend the course of proceedings, so as to make a proper defence (per Alderson B in R v Pritchard (1836) 7 Car & P 303; 173 ER 135; R v Presser (1958) VR 45 per Smith J). [56] Three things follow from this fundamental precept. First, the obligation to raise any issue concerning the fitness of the accused rests not simply with the parties, but with the Court. If, through observation or information (such as depositions), the Court becomes aware that the accused is unfit, it must call a halt to the trial and, through inquiry, resolve that issue. It should do so even though neither the prosecution, nor the defence, urges such an inquiry (R v Dashwood (supra) at 2; Eastman v The Queen (2000) 74 ALJR 915 at 969 (para 294) and 971 (para 300) per Hayne J.) And at [60]: [60] Thirdly, if there is error as to whether the accused is fit to plead or stand trial, it is a fundamental flaw in the trial process (Gaudron J in Eastman (supra) at 924, para 62; Kesavarajah v The Queen (1994) 181 CLR 230 at 247). There is a mistrial. See also at [62]-[65].
The prosecutor submitted, having regard to Kirby J's comments in TJ Tier at [72] that when the question of fitness is raised, there is a prima facie obligation upon the trial judge to halt the trial, and to conduct the inquiry before a separate jury. There Kirby J said: [72] …Where an accused's representative raises a question concerning the unfitness of the accused, the trial Judge would ordinarily be expected to accept that the issue has been raised in good faith. Legal representatives, whether barrister or solicitor, are subject to professional obligations. Once raised by a practitioner there is, prima facie, an obligation upon the trial Judge to halt the trial, and to conduct an inquiry before a separate jury. If, however, the basis for concern is not obvious, or the validity of that concern is dubious, it is appropriate for the trial Judge to seek an elaboration upon the matters giving rise to the concern (cf Ngatayi v The Queen (supra) at 8). Where that elaboration demonstrates a real and substantial question, good faith will be presumed. The question of unfitness must then be determined by a separate jury. It is only where there is patently no real and substantial question that the Court may impute an absence of good faith, and decline to conduct an inquiry (s10(2)).
I raised with the prosecutor whether those comments apply to a trial in the Land and Environment Court where prosecutions in Class 5 are conducted without a jury, and where a question concerning the fitness of an accused is raised. The prosecutor was unable to identify any authority on this issue, however submitted that a precautionary approach would have a separate judge conduct a fitness inquiry in light of the possibility of an assessment of credit having to be made on such inquiry. I accept that submission.
Ms Mouawad deposed that the defendant is currently receiving treatment from a psychiatrist and psychologist, and has been seeing his psychiatrist Dr Raymond Way since 3 December 2013, and his psychologist since October 2022.
As noted at [36] above, Ms Mouawad annexed to her affidavit a medical certificate from Dr Vedi Safi, dated 31 March 2023, and deposed to confirmation of a scheduled appointment on 4 April 2023, that is yesterday, with Dr Way.
In circumstances in which, despite the lateness of the application and the procedural history which I have set out above at [9]-[34], the prosecutor makes no submission as to bad faith on the part of the defendant in bringing the application, having regard to the evidence adduced by the defendant through his agent, I am satisfied that there is a real and substantial issue as to the defendant's fitness to stand trial. I am also satisfied that the question ought be determined separately, and as expeditiously as possible, having regard to the public interest in the timely disposition of serious criminal offences, and the wasted resources of the parties and the wasted public resources of the Court: see Payne JA in R v Cranston (No 8) [2021] NSWSC 9 at [25].
The prosecutor provided draft short minutes of order in relation to the listing of and preparation for an inquiry into the defendant's fitness to be tried. Ms Mouawad stated that she agreed with those orders.
Accordingly, I make the orders at the conclusion of these reasons in relation to an inquiry into the defendant's fitness to be tried, such inquiry to be heard and determined by a separate judge of this Court in advance of the trial set down to commence on 26 April 2023.

Pre-trial directions

The prosecutor also provided draft short minutes of order in relation to the preparation of the proceedings for trial commencing on 26 April 2023. Ms Mouawad submitted that neither she nor the defendant would be in a position to adhere to the prosecutor's proposed pre-trial directions, as they had not had the opportunity to review the voluminous documents, the prosecutor's bundle of primary documents being over 5,000 pages in length, and the affidavits of some 60 witnesses.
Ms Mouawad submitted that a large amount of the evidence was still in the possession of Karim + Nicol Lawyers, the defendant's previous solicitors, who had taken the role of explaining all the documents in the proceedings to the defendant as they arose. Since that firm had ceased to act for the defendant, the defendant had not had any capacity to review or understand what was in evidence. The defendant had been "in and out of gaol" for the past five years and had served an intensive correctional order. In his current state, it was submitted he had no mental capacity to review even one document as it would send him on a "downward spiral".
The prosecutor referred to the procedural history, largely set out above at [9]-[34], and submitted that the Court should view the defendant's submission in relation to voluminous documents and affidavits with scepticism. Firstly, it was submitted that the defendant has been in possession of the vast majority of the prosecutor's evidence since January 2020 in its preliminary disclosure. Secondly, the defendant's previous legal representative was able to file a s 247K notice and an amended s 247K notice in 2020, both of which directly responded to the prosecutor's evidence. Accordingly, it was submitted that it should be inferred that the defendant had sufficient capacity and understanding of the evidence to provide instructions to his legal representative retained at that time. Thirdly, it was submitted that the prosecutor served its bundle of primary documents on the defendant in January 2021, and offered assistance to the defendant in navigating that bundle.
I find for the purpose of the pre-trial mention that the defendant has had sufficient opportunity to review the prosecutor's materials in the proceedings. In the circumstances and given the imminence of the trial dates, I will make timetabling orders as proposed by the prosecutor to facilitate preparation for the trial dates in the event that the defendant is found fit to stand trial.
Accordingly, I will make the orders in relation to preparation for the trial in accordance with the prosecutor's draft short minutes of order dated 5 April 2023.

Fitness inquiry 1. The matter is listed for hearing of an inquiry into the defendant's fitness to stand trial on Friday 21 April 2023 before Duggan J. 2. The defendant is to file any further evidence relied upon in relation to the question of his fitness to stand trial by Friday 14 April 2023. 3. The defendant is to attend any appointments scheduled with any qualified medical or psychological or other allied health practitioners that are notified by the prosecutor within 48 hours of the scheduled appointment, on the basis that the practitioner(s) may prepare a written report, and if necessary, provide oral evidence in relation to the appointment for the purposes of informing the Court as to the defendant's fitness. 4. The prosecutor is to file any evidence in relation to the defendant's fitness to stand trial by Tuesday 18 April 2023. 5. In the event that the defendant wishes to rely on any reports or other evidence of medical, psychological or other allied health practitioners for the purposes of demonstrating that he is not fit to stand trial, the defendant must make those practitioners available for cross-examination by way of video link at the inquiry into fitness.

Preparation for trial (6) The defendant is to serve on the prosecutor a list of witnesses required for cross-examination by 11 April 2023. (7) The time for compliance with order 10 of the orders made by Moore J on 28 September 2022 (in relation to filing and service of opening submissions of the Prosecutor) be extended until 11 April 2023. (8) The prosecutor is to file and serve an amended electronic court book by 14 April 2023. (9) The defendant is to serve on the prosecutor a list of objections to the prosecutor's evidence by 17 April 2023, clearly identifying any objections that were not contained in the defendant's amended s 247K notice. (10) Pursuant to s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 the Court directs that the appearance of the following witnesses (if required by the defendant) is to be by way of audio visual link: 1. Andre Smit 2. Joel Bryant 3. Nichola Clarke 4. Nicholas Passlow 5. Scott Watson 6. Thomas Frederick (11) The Court directs that service of documents referred to in orders 10, 12 and 13 of the Short Minutes of Order dated 28 September 2022 made by Moore J may be effected by the prosecutor sending the documents to the defendant by email to paulmowad@yahoo.com and nina.mouawad@yahoo.com.au. (12) By 19 April 2023, the prosecutor is to file and serve: 1. an electronic copy of the prosecutor's bundle of primary documents (contained at tab 426 of the electronic court book), with electronic bookmarking/tabbing to separate between documents within that PDF document; and 2. a hard copy of the prosecutor's bundle of primary documents (at tab 426 of the electronic court book), together with an index to that bundle which identifies where the documents in the bundle are located in the electronic court book. (13) The Court directs that service of the hard copy documents referred to in order 12(b) above be effected by the prosecutor couriering the documents to the defendant at the following address 23 Grand Avenue, West Ryde NSW 2114. (14) Pursuant to ss 247M and 247V of the Criminal Procedure Act 1986 (NSW), all affidavits are to be taken as the evidence in chief of the relevant deponents. (15) Liberty to restore on 2 days' notice.

Amendments 06 April 2023 - Corrected formatting error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2023

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

(2012) 187 LGERA 207

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