Mr O'Haire Seeks to Correct the Entry of Guilty Pleas
On 19 July 2018, the following exchange took place, and orders were made, during the course of a directions hearing in respect of eight charges commenced against Mr Brian O'Haire under the Water Management Act 2000 ("WMA"):
Ms Bonnor for the Prosecutor
Mr J Vanaalst for the Defendant
---
HER HONOUR: Is that the representation for all eight matters?
VANAALST: It is indeed.
HER HONOUR: Yes.
BONNOR: Your Honour I understand that the defendant's in a position to enter a plea. So if that might be dealt with first and then I have some short minutes.
HER HONOUR: Thank you yes.
VANAALST: I'm instructed on behalf of my client to inform the court he would be entering a plea.
HER HONOUR: In all eight matters.
VANAALIST: In all eight matters.
HER HONOUR: A plea of guilty.
VANAALIST: Guilty I should say. And secondly we accept the prosecutor's statement of facts, there will be no dispute with that again. I just had a short conversation with my friend, I think we put it on for court an agreed statement of facts based on that statement of facts.
HER HONOUR: All right just bear with me one moment while I formally note that a plea of guilty is entered in all eight matters. Now you have some short minutes to hand up.
BONNOR: Yes your Honour, if I might hand those up.
HER HONOUR: Thank you.
BONNOR: Your Honour will see that the dates are left blank for the moment. It's a timetable all the way through to hearing. My friend has indicated he anticipates the hearing of one plus days because of cross-examination of a couple of prosecution witnesses. He is also - if my friend doesn't mind me saying indicated that his client may wish to give some evidence.
VANAALIST: No we'll give some--
HER HONOUR: All right that's fine.
BONNOR: If I might also just indicate that the prosecutor has briefed two additional witnesses relevant to sentence. One is relevant to environmental harm and one is to the administration of the regime. That evidence is due imminently if not today so will not hold up the timetable to hearing. But because of that there is Order 1 and then if that evidence is able to be agreed as fact it can go into an expanded agreed facts as contemplated in 3.
HER HONOUR: I appreciate that, again I'm in the party's hands then in terms of - so do you say that your evidence can be - the remainder of your evidence will be filed and served today.
BONNOR: Well perhaps two weeks or three weeks just to - I haven't received it yet your Honour I'm expecting it imminently. They have been briefed. I'm told it will be here very soon. I was told today that it may - I don't know there may be some hold-up that I'm not aware of today.
HER HONOUR: Two weeks.
BONNOR: Two weeks yes your Honour.
HER HONOUR: Does that cause a difficulty?
VANAALIST: That's fine.
HER HONOUR: We will construct the timetable going forward.
BONNOR: Yes.
HER HONOUR: The Prosecutor is to serve and file any evidence upon which he relies on or before the 2 August. How long does the defendant think that--
VANAALIST: I think we'd need 21 days to put on our evidence.
HER HONOUR: I can't see that would be a problem. So say by 23 August.
VANAALIST: Thank you your Honour.
HER HONOUR: So an agreed statement of fact by when after 23 August?
VANAALIST: Two weeks later.
BONNOR: Perhaps two weeks.
HER HONOUR: 6 September.
BONNOR: Yes thank you your Honour.
VANAALIST: Yes.
BONNOR: Now in relation to Order 4 anticipating evidence on sentence at the hearing there may still be real utility in an outline of written submissions being, at least from the prosecutor being provided to my friend ahead of time.
VANAALIST: Can I assist there, and I agree with that. Also we'll put on a brief outline of our position in respect of the defence so that the court knows where we're coming from.
HER HONOUR: That would be expected normally in this court. What I might just say for the prosecutor's written submissions on sentence. Two weeks before, or three weeks before the hearing.
VANAALIST: Three.
HER HONOUR: Three all right. I'll read these out again once we're finished. And for the defendant one week before is that satisfactory?
VANAALIST: Yes.
BONNOR: That's satisfactory your Honour.
VANAALIST: I take it that is to be also copies to be given to the trial judges.
HER HONOUR: If you just file it downstairs they will eventually make their way to me. I'll put down an estimate of two days.
BONNOR: Thank you your Honour.
HER HONOUR: There's been some changes, I'll read out what I have got. The first order will read that the prosecutor is to serve any further evidence on which he relies on or before 2 August 2019.
The second order reads the defendant is to serve any evidence on which he relies on or before 23 August 2019.
The third order says an agreed statement of facts is to be filed and served on or before 6 September 2019.
The fourth order is that the prosecutor has written submissions on sentence and any objections to the evidence of the defendant is to be filed and served three weeks before the commencement of the hearing.
Order 5 reads the defendant's written submissions and any objections to the prosecutor's evidence is to be filed and served one week before the commencement of the hearing.
Order 6 I have re-written to be as follows, that the parties are granted leave to approach the Registrar forthwith for the allocation of a hearing date. Estimate of two days.
Order 7 will be liberty to restore on three days' notice.
Is there anything further the court needs.
VANAALIST: Thank you your Honour.
BONNOR: No your Honour.
VANAALIST: Was that two days' notice or three?
HER HONOUR: Three days' notice. And I can't emphasise enough given that the hearing date is going to be allocated that if there are any difficulties whatsoever on either side that the matter is to be brought back before the court. Now if you just hold on one moment my associate will just finish filling in the appearances for all eight matters and then she'll give you the files and if you go downstairs to level 1 you'll get a hearing date.
BONNOR: As the court pleases.
VANAALIST: Thank your Honour.
The charges concern the unlawful taking of water by Mr O'Haire other than in accordance with a water allocation licence contrary to s 60C(2) of the WMA.
As the affidavit of Mr O'Haire sworn on 16 October 2019 indicates, following the entry of the pleas of guilty in relation to the eight charges, media coverage adverse to Mr O'Haire ensued.
Following this media coverage, Mr O'Haire filed a notice of motion seeking to, by recourse to the slip rule contained in r 36.17 of the Uniform Civil Procedure Rules 2005 ("UCPR"), correct the recording of the pleas of guilty on the basis that they had been mistakenly entered. The orders sought in the motion were as follows:
1 Order pursuant to 36.17 of the UCPR that by reason of an error or accidental slip Justice Pepper on 19 July 2019 formally noted that a plea of guilty was entered that day in all eight matters, whereas the Court was informed that the defendant would be entering a plea, intending it to occur on the first day of the hearing of the sentencing of the defendant.
2 Order that it be noted that in lieu of the plea having been entered on 19 July 2019, the Court notes that the defendant would enter a plea of guilty to all eight matters on 19 November 2019.
Rule 36.17 of the UCPR provides as follows:
36.17 Correction of judgment or order ("slip rule")
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
The slip rule applies to proceedings commenced in Class 5 of the Court's jurisdiction by reason of r 5.2(2)(h) of the Land and Environment Court Rules 2007 ("the LEC Rules"), which picks up and applies Pt 36 of the UCPR. Whether the slip rule applies to the entry of pleas of guilty in general, and in this instance, is, however, another matter. For the reasons explained below, in my opinion, it does not, and the notice of motion must be dismissed.
In his affidavit in support of the motion, Mr O'Haire deposed to the following matters:
1 I am the defendant.
2 I applied in August 2019 for a copy of the transcript of the directions hearing which took place before Justice Pepper on 19 July 2019 a copy of which is annexed hereto marked "A".
3 I instructed Mr Hertz and my counsel to inform the Court that I would be entering a plea of guilty to each of the eight sequences when the hearing on the sentence was to be heard.
4 I read the transcript when I received it because I was concerned that the Prosecutor and the Crown Solicitor's Office was asserting a plea of guilty was entered on 19 July 2019.
5 I confirm that the record in page 1 of the transcript between lines [40] and [45] is an accurate record of the instructions I gave to my counsel.
6 It was not until I read the transcript of those proceedings that I discovered the Court on 19 July entered the pleas of guilty which I believe to be entered in error, possibly caused by Ms Bonnor's understanding recorded at lines [35] to [40].
7 It remains my intention to formally enter a plea of guilty on 19 November when the hearing of these matters is to be heard.
8 Annexed hereto marked "B-1" to "B-3" are copies of the letters from John Hertz & Associates to the Crown Solicitor's Office dated respectively 23 July 2019 (including the attachments referred to in that letter), 16 September 2019 and 11 October 2019.
9 Those letters were sent to the Crown Solicitor's Office on my instructions given to Mr Hertz and counsel.
The letter dated 23 July 2019 (that is, after the directions hearing on 19 July 2019) referred to in Mr O'Haire's affidavit stated the following:
As you are aware, we act for Brian Vance O'Haire the defendant in the proceedings commenced by Grant Barnes in his capacity as the Chief Regulatory Officer in the Land & Environment Court.
Attached you will find copies of the following articles, one was published in Facebook yesterday by ABC Riverina, and the other was published today in the newspaper Sunraysia Daily both of which record information given to them by Grant Barnes in his capacity as the Chief Regulatory Officer which contain defamatory imputations concerning our client.
At no stage did our client steal water as alleged in those articles.
As you must be aware every time our client accessed water from the Murray River it was being recorded in real time by the SCADA telemetry system throughout the water years which are the subject of each of the charges which we understand is a fundamental part of your client's case.
Furthermore, if those articles accurately report the conversations Mr Barnes had with somebody from ABC Riverina and with Simon Cameron the journalist who wrote the article in the Sunraysia Daily, it is our view that in addition to being defamatory, they are misleading and deceptive.
In light of the Court having been informed on Friday that our client will enter a plea of guilty to the eight counts under s60C (2) of the Water Management Act which concerns taking water otherwise than in accordance with his water allocation license, it was a fundamental breach by the prosecutor in his role as a model litigant to in any way be involved with his misguided public relations venture.
In the letter dated 11 October 2019 referred to in his affidavit, Mr O'Haire, through his solicitors, said as follows:
We refer to our letter sent to you by email yesterday in particular to the issue concerning our client's position in relation to the plea of guilty.
We give notice that we are arranging for this matter to be relisted before Justice Pepper to correct the transcript at page 2 [5] to add the omitted words "to be" between the words "while I formally note that a plea of guilty is "to be" entered
Alternatively, to note on the record that she had no power to enter the plea as a consequence of the information conveyed to her by counsel recorded at page 1 [40].
We shall notify you to arrange a suitable date for the mention before Her Honour.
[3]
Mr O'Haire Makes an Application for Recusal on the Grounds of Apprehended Bias
The hearing of the notice of motion was set down for two hours commencing, unusually, at 2 pm on 24 October 2019. Given the orders sought in the motion, the dictates of the Court diary heading towards the end of the law term (including the fact that the judge hearing the motion was on leave from 2 to 17 November 2019), and that the sentence hearing was set for two days commencing on 19 November 2019, the final determination of the application was attended by a degree of urgency. It was imperative that, at the very least, the hearing of the motion be concluded on 24 October 2019.
In preparation for the hearing, especially in the absence of orders for the filing and serving of submissions in advance of the hearing of the motion (in order to assist the Court in the timely disposition of the matter), the Court read the accompanying affidavit material and did some preliminary research on the application of the slip rule to the present case.
Approximately 30 minutes prior to the commencement of the hearing, the Court received and read written submission from the prosecutor. Approximately 10 minutes prior to the commencement of the hearing, the Court received and quickly read the written submission of Mr O'Haire.
At the commencement of the hearing, Mr O'Haire's counsel, Mr Van Aalst, moved on the motion and read Mr O'Haire's affidavit. There were no objections to the affidavit and Mr O'Haire was not required for cross-examination. Mr Van Aalst drew to the Court's attention the last paragraph of the letter dated 23 July 2019 annexed to Mr O'Haire's affidavit (set out above).
Once the above formalities were completed, in the interests of time, the Court informed the parties that it had read the affidavits in support, read the written submissions, and that it had undertaken some preliminary research on the issues raised by the motion.
Again, in the interests of time, the Court then informed Mr Van Aalst, as a matter of fairness and transparency to his client, that it was troubled by the following matters:
1. first, whether or not the slip rule applied to proceedings in Class 5 of the Court's jurisdiction;
2. second, if it did, what was the scope of the operation of the rule. In particular, whether it could apply to mistakes not occasioned by the Court, but occasioned by the parties to the proceedings;
3. third, that the transcript of the directions hearing on 19 July 2019 did not, objectively read, disclose any error on the part of the Court. Pleas of guilty had been clearly entered by Mr O'Haire through Mr Van Aalst and on no occasion had Mr Van Aalst sought to correct any mistaken entry of those pleas during the course of the mention. Moreover, the making of the subsequent orders during the directions hearing for the filing and service of evidence and submissions in preparation for a sentence hearing, including the provision of an agreed statement of facts, was consistent with the fact that pleas of guilty had been entered and recorded by the Court; and
4. fourth, that if there had been some miscommunication between Mr O'Haire and Mr Van Aalst such that Mr Van Aalst had made a mistake in entering pleas of guilty, that this was not unequivocally reflected in the evidence, including Mr O'Haire's affidavit.
This prompted, together with with interjections by the Court, Mr Van Aalst to make an application, albeit after some prevarication, that I recuse myself on the grounds of bias, as the following exchange between the Court and Mr Van Aalst makes plain (T3:01 - 5:46):
VAN AALST: Your Honour will see it's a letter from John Hertz and Associates, my instructing solicitor. It's dated 23 July, which is the Monday after appearing on the Friday the 19th.
HER HONOUR: Yes.
VAN AALST: Can I draw your attention to the last paragraph in that letter.
HER HONOUR: The one that commences, "In light of"?
VAN AALST: "In light of...under s 60C(2)", and that's clear an objective evidence of what was understood to be the position when I appeared before you on the 19th, and if I can take your Honour back to the transcript if you don't mind, your Honour.
HER HONOUR: Are you seeking to use this letter to construe the objective words of the transcript?
VAN AALST: I am using this letter as objective evidence as to the understanding of my client when he gave me instructions, which are set out in his affidavit.
HER HONOUR: That may be so but the difficulty that the Court has - well, there are several difficulties. First of all, you have to show that the slip rule applies to class 5 proceedings in this Court, one; secondly, you have to show the ambit of the slip rule, does it apply to mistakes or omissions or slips that have not been caused by any fault on behalf of - on the part of the Court but caused by fault on behalf of the parties appearing before the Court that have then led the Court to make a different decision than that which was intended. And then, finally, you need to show to me in the affidavit where it is that there is an acknowledgement that whatever the instructions were that your client gave you, that when you appeared in front of me on the relevant date that you made a mistake insofar as you did not convey to the Court your client's instructions.
VAN AALST: Your Honour--
HER HONOUR: I have looked in vain and I cannot find that evidence in your affidavit.
VAN AALST: I don't have an affidavit on, your Honour.
HER HONOUR: Sorry, you're quite right, I apologise. In Mr O'Haire's--
VAN AALST: Can I rely upon the transcript--
HER HONOUR: Sorry, just wait. O ' H A I R E Mr O'Haire's affidavit.
VAN AALST: I rely upon the transcript, your Honour. Can I take--
HER HONOUR: Well, I've told you that the transcript indicates very clearly that you entered a plea.
VAN AALST: No, your Honour. Your Honour, I have the impression that your Honour has already decided this matter.
HER HONOUR: No, no, no, no. I'm concerned because it seems to me that there has been - I am concerned about this matter because the Court acted pursuant to what it was told on the day that the pleas were entered.
VAN AALST: 19 July.
HER HONOUR: On Friday 19 July. And I recall it. It's not all that long ago. And, indeed, the Court was at pains on that occasion to make sure that, indeed, what was occurring was the entry of a plea in all eight matters. And it said that several times.
VAN AALST: Your Honour, can I have the opportunity of addressing you now?
HER HONOUR: Well, I'm just finishing off what I was - my response to your query.
VAN AALST: Well, you're prejudging the matter without having heard any submissions.
HER HONOUR: No, no, I'm not. I'm trying to indicate to you as a matter of fairness so that you don't see it from me for the first time in a judgment what my concerns are so that you can address my concerns, so that you can address the issues. Yes, I have read the submissions in advance. Yes, I have read the evidence in evidence. Yes, I have done a little bit of homework on this matter in advance, but I have certainly not prejudged the issue. I want to, as a matter of fairness to your client in a criminal proceedings, tell you transparently and clearly what my concerns are so that you can address those concern.
VAN AALST: Well, with respect--
HER HONOUR: I think that's only fair to Mr O'Haire.
VAN AALST: Standing here, your Honour, and listening to your Honour, with respect, we submit that your Honour is foreshadowing that you have prejudged this matter.
HER HONOUR: Are you making an application now for me to recuse myself on the grounds of bias?
VAN AALST: I have to, your Honour. I have no choice.
HER HONOUR: All right. I shall hear you on that application then, and then I shall hear the prosecutor on the response to that application. That's your
application?
VAN AALST: Well, your Honour, I've said it several times. I repeat my application is that I have not had the opportunity of taking you calmly through what my application is. You have come on the bench and effectively you - it will be on the transcript now - that you have already indicated you have prejudged this matter.
HER HONOUR: Well, again, no doubt you will take me to the relevant provisions - sorry, not provisions--
VAN AALST: Now, if I can--
HER HONOUR: --the relevant authorities in the case law which will satisfy the test in the case law of prejudgment.
VAN AALST: Well, before that, your Honour, I have to take you to the transcript that I am concerned with, and I'm concerned very much so in relation to the discussion we have had up until this point of time, and I am left with the strong impression that our Honour has prejudged this matter. Could I have the opportunity of now making submissions?
HER HONOUR: Well, no. We have to first deal with your application that I recuse myself, which I understood about 30 seconds ago or so you wished to formally put before the Court, or are you withdrawing that application?
VAN AALST: I am hoping to avoid making that application--
HER HONOUR: Well, it's been raised, though, by you.
VAN AALST: --but I would like the opportunity now to make my submissions.
HER HONOUR: No, no, I cannot listen to you. I cannot entertain this matter until I have dealt with any application that I recuse myself.
VAN AALST: Well, then, I make that application now and I do so on the basis that you have indicated to me--
HER HONOUR: Well, what--
VAN AALST: --and you're interrupting me in the course of making submissions, and I object to that, your Honour, and with the greatest of respect, you have come on to the bench. We have had a discussion. The clear indication you have indicated that you have already decided this matter, and that I am asking your Honour, accordingly with the greatest of respect, to recuse yourself.
The Court adjourned the matter for approximately 40 minutes to enable Mr Van Aalst to prepare his application, Mr Van Aalst not being in a position to state the test for, or provide any authorities in respect of, recusal on the grounds of either actual or apprehended bias.
At 3 pm the hearing resumed. Mr Van Aalst indicated to the Court that the application was being made on the grounds of apprehended bias only and he handed up a copy of the decision in Tarrant v R [2018] NSWCCA 21. The Court's attention was drawn to paragraph [9] of that case where the relevant test for apprehended bias was set out.
Mr Van Aalst then sought two adjournments so that he could obtain a transcript of the hearing in order to properly prepare the recusal application. Given the brief passage of time between the commencement of the hearing of the motion at 2 pm and the matter adjourning approximately 20 minutes later (it is to be noted that Mr Van Aalst was assisted by an instructing solicitor) whereupon it resumed at 3 pm, the Court declined to grant an adjournment.
After being told repeatedly that no adjournment would be granted, Mr Van Aalst refused to make any further submissions with respect to the recusal application (T9:22-48).
The Court therefore heard from the prosecutor and proceeded to give a very brief ex tempore ruling refusing the recusal application, with the promise of more fulsome and comprehensible written reasons to be delivered later. These reasons are set out immediately below.
[4]
The Recusal Application Was Refused
Where actual bias is not alleged, the test to establish apprehended bias is settled. As summarised in Tarrant, it is as follows (at [9], footnotes omitted):
9 There was no issue in this Court that, where actual bias is not alleged, the legal test, as expressed in Johnson v Johnson, requires the court to be satisfied that "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." The High Court has reaffirmed the salience of the test on subsequent occasions, including in Michael Wilson & Partners Ltd v Nicholls. The so-called "double might" test is by no means easy to apply: its application requires attention to four discrete elements.
(1) First, there is the postulate of the "fair-minded lay observer". Use of that expression reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not, as explained in Johnson v Johnson, "the assessment by some judges of the capacity or performance of their colleagues."
(2) Secondly, the test has been described as "objective", by which is meant a third party's assessment of the judge's conduct and capacity, and not, as with actual bias, an assessment of the judge's own state of mind.
(3) Thirdly, there is said to be a two-stage process required; it is necessary to articulate "the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making."
(4) Fourthly, use of the term "might" lowers the burden of proof below that of probabilities. Thus the court need not be satisfied that the fair-minded lay observer "would" have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities.
The attributes of the hypothetical fair-minded lay observer were discussed in British American Tobacco Australia Services Limited v Laurie ([2011] HCA 2; (2011) 242 CLR 283) where Heydon, Kiefel and Bell JJ relevantly opined (at [132], footnotes omitted):
132 The attributes of the hypothetical observer have been considered in a number of decisions of this Court. In Johnson v Johnson the emphasis was on the need to assess any suggested apprehension of bias in the context of ordinary judicial practice. At issue in that case was the expression of views by the trial judge in the course of exchanges with counsel. It was accepted that the lay observer must be taken to have some understanding that modern judges, responding to the need for active case management, are likely to intervene in the conduct of the proceedings and in so doing may well express tentative opinions on matters in issue.
The standard of what a person might apprehend is difficult to define and apt to be imprecise. As the Court of Criminal Appeal observed in Tarrant (at [12], footnotes omitted):
12 There is also a level of unavoidable imprecision in the standard of what a person "might" apprehend. Clearly a fanciful or speculative possibility must be put to one side and the reasonable fear of the observer must be "firmly established".
More recently, the test has been usefully explained and applied in this Court in Young v King (No 12) [2017] NSWLEC 150 (at [26]-[35], which I respectfully adopt).
Applying the principles outlined above, it is clear that, having regard to the circumstances surrounding the making of the application by Mr Van Aalst, the "double might" test was not satisfied for the following reasons.
First, on any objective analysis of the transcript, the Court did not prejudge the determination of the motion; in seeking to immediately raise the central issues of concern to the Court, the Court was endeavouring to provide Mr O'Haire the opportunity of addressing it on these matters. In other words, the Court was endeavouring to afford Mr O'Haire procedural fairness given the truncated time allocated to determine the motion to finality. On any reasonable view, the language used by the Court did not indicate that the Court had prejudged the application, rather it was attempting to quickly and transparently communicate to Mr O'Haire's legal representative the questions that the Court required assistance with. It must be recalled that the Court had told Mr Van Aalst at the commencement of the hearing that it had already read the parties' submissions and Mr O'Haire's affidavit, which had the transcript of the directions hearing on 19 July 2019 attached to it.
Second, as the transcript of the hearing of the motion reveals, interventions and interruptions occurred by both the Court and Mr Van Aalst during the course of argument. The interventions by the Court did not, as a matter of objective fairness, be characterised as giving rise to any apprehension that it had prejudged Mr O'Haire's application.
Accordingly, the Court declined to accede to the recusal application.
[5]
The Slip Rule Does Not Apply to the Entry of a Plea
Upon the recusal application being refused, Mr Van Aalst refused to participate further in the proceedings, notwithstanding his refusal to withdraw the motion (T11:07-12:06, 13:40-14:03, and 19:37-20:05).
The Court therefore proceeded to deal with the motion given that it remained extant, relying on the written submissions and affidavit material of Mr O'Haire.
The prosecutor read an affidavit of Ms Melinda Listing, affirmed 22 October 2019. Ms Listing is a solicitor employed by the Office of the Crown Solicitor for New South Wales, and who has carriage of the matter. Her affidavit did no more than annex correspondence between the parties.
[6]
The Scope of the Slip Rule
Mr O'Haire's argument can be succinctly put. In short, he contended by reference to the transcript, that the Court was told on 19 July 2019 that he "would be entering" a plea of guilty to the eight charges at the sentence hearing commencing on 19 November 2019, not that he was entering pleas of guilty on that day. This was, he submitted, permitted by s 192(2) of the Criminal Procedure Act 1986. The slip rule was therefore relied upon to correct the error made by the Court.
Although, as explained above, r 36.17 applies to proceedings in Class 5 of the Court's jurisdiction, Mr O'Haire's application is wholly misconceived and his submission must be rejected.
First, as any reasonable reading of the transcript on 19 July 2019 reveals, it is tolerably clear that on that day Mr Van Aalst told the Court that his client not only "would be entering a plea" in all eight matters (T1:42-43), it was his intention, communicated to the Court, that such pleas in fact be entered. This is consistent with the Court stating, "all right just bear with me one moment while I formally note that a plea of guilty is entered in all eight matters" (T2:06-07). Nothing was said by Mr Van Aalst in response to this remark by the Court. On the contrary, the parties and the Court proceeded to discuss and subsequently make timetabling orders for the matter to proceed to a sentence hearing. This is entirely consistent with pleas of guilty having been entered by Mr O'Haire and recorded by the Court. Were it otherwise, and not guilty pleas or no pleas had been entered, the matters would have been either adjourned for the entry of pleas on the next occasion, or dealt with as if the matters would proceed to a contested hearing on liability. Neither occurred.
It therefore follows that whatever be the genesis of any mistaken entry of a plea of guilty in all eight matters before the Court on 19 July 2019, the fault was not that of the Court (or, for that matter, the prosecutor). Any assertion to this effect by Mr O'Haire is untenable on the objective evidence. The blame must therefore fall elsewhere (in this regard it is noted that Mr O'Haire was not present in Court when the pleas were entered by Mr Van Aalst).
Second, Mr Van Aalst's reliance on s 192(2) of the Criminal Procedure Act in his submissions is entirely misplaced. That section is contained in Div 3 of Pt 2 of the Criminal Procedure Act, which is concerned with "Trial procedures in lower courts". The Court is not a "lower court" to which Pt 2 applies. Rather, it is Pt 5 of that Act that governs criminal proceedings in the Court.
Third, although the power in r 36.17 of the UCPR can extend to correct accidental mistakes made by a party's legal representatives that have resulted in the Court making orders that were not intended to be made (Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411 at [116] and [153), this was not such an instance, as is explained in more detail below.
Historically, courts have an inherent jurisdiction to correct any clerical mistake or error in a judgment or order where it was the result of an accidental slip or omission (Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 449-452 and Newmont Yandal at [18]). That power is now contained in r 36.17 of the UCPR.
The slip rule can be used to correct mistakes or errors in order to reflect the true objective intention of the decision maker at the time the decision and orders were made (Al Maha v Huajun [2018] NSWCA 245; (2018) 233 LGERA 170 at [267] and Newmont Yandal at [116]).
In Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2, Gleeson JA described the scope and operation of the slip rule as follows (at [35]-[36]):
35 The slip rule has been held to permit applications for variations of orders where the mistake or error requiring the change lay in a party's failure to advert to a matter at the time of the hearing. In Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140 at [24], Giles JA (Spigelman CA and Handley JA agreeing) referred with approval to the following statement by Toohey J in Raybos Australia Pty Ltd v Tectran Corporation Ltd(1988) 77 ALR 190 at 191:
In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order was pronounced …
36 Giles JA continued at [25] as follows:
Applications under a slip rule have been entertained to vary orders by inclusion of interest in a judgment (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2)(1982) 151 CLR 590; Gould v Vaggelas(1983) 157 CLR 271), ordering repayment of the judgment sum (The Commonwealth of Australia v McCormack(1984) 155 CLR 273; Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2)(1991) 27 NSWLR 659) and making an order for costs (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd). This has been so "regardless of whether the order has been drawn up, passed and entered" (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) at 595; see also Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) at 661).
The rule can also be used where a matter that should have been raised or adverted to was not considered at hearing. In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, Lockhart J (Black CJ agreeing) observed that (at 391):
It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the Court's order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth of Australia (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: Fritz v Hobson at 561-562; Chessum and Sons v Gordon [1901] 1 KB [sic] 694; Tak Ming Co Ltd at 304; Shaddock per Mason ACJ, Wilson and Deane JJ at 594-5; and Gould v Vaggelas at 274-275.
It should, however, be noted that in Elyard Lockhart J was dealing with O 35 r 7(3) of the Federal Court Rules 1979 (Cth), which is more extensive in terms than r 36.17 of the UCPR. As Spigelman CJ cautioned in Newmont Yandal, the precise terms of r 36.17 must be carefully construed and should not be conflated with the construction of other statutory rules construing a similar power, or with the case law on the ambit and scope of the inherent jurisdiction, which may be significantly broader (at [24]-[26]).
The power conferred by r 36.17 must be interpreted on the basis of the words used and the context in which they appear (Newmont Yandal at [19]). In particular, the power must be construed having regard to the overriding purpose provided for in s 56 of the Civil Procedure Act 2005.
The UCPR are made under the Civil Procedure Act, and therefore, a court must seek to give effect to the overriding purpose when exercising the power to correct a judgment or order under r 36.17 (Newmont Yandal at [26]-[27]). In light of s 56(2) of the Civil Procedure Act, the words "error" and "correct" in r 36.17 should not be given a narrow interpretation (Newmont Yandal at [116]).
In relation to the determination of whether there has been an "error", in Newmont Yandal Spigelman CJ stated that it must be determined "whether the Court's order can be characterised as arising from an accidental slip or omission. Inadvertence or inefficiency on the part of legal representatives may explain why the Court's order can be so characterised" (at [153]). But the conduct of the legal representatives must be able to be characterised as "accidental", rather than "deliberate", in order for the power in r 36.17 to be enlivened (Newmont Yandal at [164]).
It has been held that the test for whether a mistake or omission is accidental is generally whether "if the matter had been brought to the court's attention would the correction at once have been made" (Storey & Keers at 453). This test has been endorsed in Newmont Yandal at [137] and Elyard at 404.
If the "error" derives from a decision-maker's reconsideration of the original decision, the appropriate method to correct such a mistake is by way of appeal. As was stated in Mutual Shipping Corp of New York v Bayshore Shipping Co of Monrovia [1985] 1 All ER 520 at 526 by Donaldson MR (cited with approval in Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287; (2015) 90 NSWLR 268 at [66]):
It is the distinction between having second thoughts or intentions and correcting an award of judgment to give true effect to first thoughts or intentions, which creates the problem. Neither an arbitrator nor a judge can make any claim to infallibility. If he assesses the evidence wrongly or misconstrues or misappreciates the law, the resulting award or judgment will be erroneous, but it cannot be corrected … The remedy is to appeal, if a right of appeal exists. The skilled arbitrator or judge may be tempted to describe this as an accidental slip, but this is a natural form of self-exculpation. It is not an accidental slip. It is an intended decision which the arbitrator or judge later accepts as having been erroneous.
If there was an error on the part of Mr Van Aalst as to whether or not Mr O'Haire intended to enter a plea on 19 July 2019, on the authorities above, the evidence would need to demonstrate that such a mistake was not deliberate. Having regard to the conduct of Mr Van Aalst evidenced in the transcript and the equivocal nature of the evidence contained in Mr O'Haire's affidavit (at its highest he believes that the guilty pleas were entered in error. The letters post-dating the entry of the pleas cannot assist in determining Mr Van Aalst's conduct on 19 July 2019), the Court is not sufficiently confident that the entry of guilty pleas on 19 July 2019 came about through an "error arising from an accidental slip or omission". On the contrary, I find that the entry of the guilty pleas on that day by Mr Van Aalst was deliberate. Where the "error" comes about from the party changing their mind about the timing of the entering of a guilty plea, which is what appears to have occurred in the present case, such a change cannot properly the subject of an application under r 36.17 of the UCPR.
Even if a relevant "error" occurred on 19 July 2019, the power under r 36.17 of the UCPR is discretionary and a court may refuse to make an order where a mistake or error is identified (Storey & Keers at 453).
Having regard to Mr O'Haire's evidence contained in his affidavit that he intends to enter a plea of guilty "on 19 November 2019 when the hearing of these matters is to be heard", there is, in my view, scant utility in correcting the record to enter no plea or a plea of not guilty when, not only is such a plea necessary to progress the matter to a sentence hearing (Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 507, 509, and 510), it is Mr O'Haire's stated intention to plead guilty to all eight charges.
More fundamentally, however, is the difficulty that there is no judgment or order of the Court upon the entry of a plea of guilty that can be corrected or amended by r 36.17 of the UCPR. This is because there is no conviction until there is a judgment of the Court, ordinarily in the form of a sentence following upon a verdict on a plea (R v Holton [2004] NSWCCA 214; (2004) 41 MVR 89 at [21] quoting Maxwell at 507). As was noted in Maxwell (at 509 per Dawson and McHugh JJ):
…whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.
This has been reiterated more recently in this Court by Moore J, when his Honour observed that (Environment Protection Authority v Wellington Council [2017] NSWLEC 5; (2017) 222 LGERA 31 at [75]-[79] and [87]):
75 There will then follow, at a time somewhat after the "guilty" plea is entered to the Court, a sentencing hearing - akin to the process embarked upon by McInerney J. Indeed, the "guilty" plea may have been entered some considerable time prior to the sentencing hearing (in this instance, a little over a year prior to this strike-out application being heard).
76 Subsequent to entry of the plea, there will be a Statement of Agreed Facts settled on behalf of the Prosecutor and the Defendant(s) and tendered as evidence in the sentencing proceedings. This may also be supplemented by additional factual material that is either expanding on the Statement of Agreed Facts or may be the subject to contest as to the accuracy of those additional asserted facts.
77 In the sentencing hearing, whatever the nature of the factual material that forms the evidence accepted by the Court, it is nonetheless necessary for the sentencing judge to be satisfied that that factual material provides a proper and sufficient basis to support a conviction based on the "guilty" plea earlier entered.
78 When that occurs, the first of the orders made by the sentencing judge is one which convicts the defendant(s).
79 In circumstances such as these where there has been no evaluative process undertaken by this Court to determine that there is such a proper basis to convict founded on the "guilty" plea in conjunction with the agreed facts or such contested facts as are accepted by the judge concerning the alleged offending conduct, the entry of the plea of "guilty" does not mean that the Court has already found the offence proved, or that the provisional conviction has crystallized into a formal conviction for or order founded on the offence.
…
87 In environmental offences such as these, where a "guilty" plea has been entered, despite that plea it remains necessary for a court first to be satisfied that there is a proper basis to convict founded on that plea prior to convicting.
Thus in circumstances where there has been no finding of guilt by the Court, and therefore, no correlative judgment or order convicting Mr O'Haire of the offences as charged, the power contained in r 36.17 of the UCPR to correct an order or judgment cannot be employed.
[7]
Conclusion and Orders
For the reasons discussed above, the slip rule is not available to Mr O'Haire to change his guilty pleas to not guilty pleas (or to record no entry of a plea). Even if it were available, I would be disinclined to exercise it given that I am not convinced that the entry of the guilty pleas was occasioned by a species of relevant error, and moreover, it is Mr O'Haire's unequivocal stated intention to plead guilty to all eight charges.
If Mr O'Haire wishes to change his pleas he should seek to formally withdraw his guilty pleas (Brown Brothers Waste Contractors Pty Ltd v Pittwater Council [2015] NSWCA 215; (2015) 90 NSWLR 717 at [156]-[159]). In circumstances where the prosecutor "would not stand in the way of that application" (T12:35-36), it is likely to enjoy success.
The notice of motion is therefore dismissed. Costs are reserved.
[8]
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Decision last updated: 29 October 2019
Parties
Applicant/Plaintiff:
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator