Great Lakes Council v Mood

Great Lakes Council v Mood - [2007] NSWLEC 705 - NSWLEC 2007 case summary — Zoe

[9]

3 The "information" referred to in the charge was in a letter dated 27 September 2006 from the defendant's solicitors to the prosecutor answering questions in the prosecutor's notice to provide information under s 193(1) of the Protection of the Environment Operations Act 1997. The questions related to the demolition of a cottage on land at 35 Parkes Street, Tuncurry (the Land) which a company alleged to be controlled by the defendant had recently purchased. In separate proceedings, the prosecutor has charged the defendant with the offence of demolishing the cottage without development consent and the defendant has pleaded not guilty to that charge. The said questions and answers were as follows: (a) In the period on or before 30 May 2005, did you instruct any person or persons to demolish the then existing cottage located on the property? If so, what instructions did you give and to whom? No. (b) In the period on or before 30 May 2005, did you instruct any person or persons to remove and/or dispose of the demolition waste created by the demolition of the cottage located on the property? If so what instructions did you give and to whom? No. (c) Did you cause the cottage on the property to be demolished? No. (d) Did you permit or authorise the cottage on the property to be demolished? No. (e) Prior to the demolition of the cottage on the property commencing on about 28 May 2005, did you have any knowledge of the proposed demolition of the cottage? If so, what did you know about that? No. (f) Are you aware of the identity of the persons [sic] or persons who demolished the cottage on the property in the period between about 28 May 2005 and 30 May 2005? If so, what is the identify of that person or those persons? No. (g) Are you aware of the identity of the persons who removed the demolition waste from the property in the period between about 28 May 2005 and 30 May 2005? If so what is the identify of that person or those persons? No. (h) In the period up to and including 30 May 2005, did you or any person on your behalf or any company of which you were then a director engage or cause to be engaged, Mr Alan Bestwick or his business or company to carry out works on the property? If so, please provide full details of when Mr Bestwick or his business or company were engaged and what works he or it was engaged to carry out. No. Our client believes that the person to whom you refer is Ron Beswick who was engaged to remove foliage from the back yard of the subject property. (i) What further information do you have knowledge of which could assist the Council in finding where the asbestos waste created by the demolition of the cottage located on the property on or about 28 May 2005 was taken to or disposed of? Our client is not aware of who demolished the cottage or where the demolished materials were taken to. (emphasis added to those questions and answers of particular significance for present purposes)

[16]

(a) on 23 March 2005, a company owned and controlled by the defendant (John Mood Nominees Pty Ltd) purchased the Land. (b) at the time of purchase, situated on the Land was a fibro cottage and garage. There was a significant quantity of asbestos sheeting in the walls, and possibly the ceiling, of the fibro cottage and garage. (c) the defendant purchased the Land for the purpose of carrying out a development involving the demolition of the existing fibro cottage and garage and the construction of dual occupancy development. He had plans drawn up in April 2005 for the purpose of carrying out the development. (d) from Friday 27 May 2005 to Sunday 29 May 2005, the cottage and garage were demolished by two or three men, whose identities are not known to the prosecutor. They used sledge hammers to break up the building and they used a blue utility with a trailer to cart the demolition waste away. (e) the process of demolition caused asbestos sheeting to be broken up into numerous fragments which, having been broken were rendered friable and were thereby potentially hazardous. (f) on 30 May 2005, Mr Greg Pevitt, a regulatory control officer employed by Great Lakes Council, and an authorised officer under the Protection of the Environment Operations Act 1997 attended the Land following receipt of a complaint. The cottage and garage had been demolished and there were remnant fragments of friable asbestos widely scattered over the site. Relevantly, on that day, he spoke with the defendant on-site and the defendant made a number of admissions consistent with the defendant having been the principal party in organising the demolition of the cottage, but the defendant declined to disclose the identity of the persons who had carried out the development - saying that it was "a friend of a friend of a friend". Mr Pevitt told the defendant that the material was asbestos. (g) at the time Mr Pevitt attended the Land on 30 May 2005, there was an excavator on the site knocking down trees and vegetation at the rear of the Land. This was a separate exercise to the demolition of the cottage. (h) by way of a notice under s 193 of the Protection of the Environment Operations Act 1997 dated 12 September 2006, Mr Pevitt required the defendant to provide information in relation to the demolition of the cottage and the transport and disposal of the demolition waste. Particular questions were posed in the notice. (i) by way of a letter from his solicitors, Barraclough Jones and Associates, dated 27 September 2006, the defendant provided answers to the questions posed under the notice in which the defendant claimed that he had no foreknowledge of the demolition of the cottage and professed ignorance as to identity of the persons who carried out the demolition and where the waste was taken. The charge relates to these answers. 8 The crux of the present application is that the defendant swore an affidavit for the sentencing hearing in which he made statements in paragraphs 47 and 48 that, he submits, are admissions of guilt. The prosecutor submits they do not constitute admissions of guilt and therefore the plea of guilty should be rejected. In order to put paragraphs 47 and 48 in context, reference should also be made to paragraphs 20, 28, and 40, as follows: 20. In either late April or early May 2005 I was on the site at No 29 and had a conversation with Duke Daskal to the following effect: DD: What are you going to do with the old cottage up the road?

[19]

JM: As far as I am concerned he can have the hot water service and any internal fittings he wants. We'd better make sure the power is cut off before he takes anything out . … 28. JR Richards & Sons is a garbage contracting business which operates in the Great Lakes area. They offer a service where they deliver skip bins to sites for the purpose of larger waste removal. I used this service at No 29 and ran a monthly account for both skip bins and Portaloos. The bins were usually ordered when necessary by the Builder, the trades or myself. A review of my records indicates that JR Richards & Sons were asked to provide a skip bin for the Property which was removed from that site on 30 May 2005. Annexed hereto and marked with the letter " F " is a copy of the Tax Invoice Statement showing the removal of the skip bin from 35 Parkes Street Tuncurry on 30 May 2005. I authorised the skip bin to be ordered after I gave authority for the removal of the hot water service and internal fittings from the Property. … 40. I was not present when any demolition work took place. I first became aware that the cottage had been demolished on 30 May 2007 [sic 2005]. … 47. I refer to paragraphs 21 and 22 of the Statement of Agreed Facts and the Notice pursuant to section 193 of the Protection of the Environment Operations Act 1997. In respect to the requirements on page 2 of the Notice I comment as follows: (i) Paragraph (e) I accept that the answer provided by Barraclough Jones & Associates on my behalf in their letter dated 27 September 2006 to item (e) was not complete and accurate in that I was aware that I had given permission for the removal of the hot water service and internal fittings from the Property. (ii) Paragraph (g) At the time I instructed Barraclough Jones & Associates to provide the answer to item (g) I held in my records the Tax Invoice from JR Richards and Sons which is annexure F to this Affidavit. The existence of that Tax Invoice should have been referred to in the response to Great Lakes Council. (iii) Paragraph (i) At the time I instructed Barraclough Jones & Associates to provide the answer to item (g) I held in my records the Tax Invoice from JR Richards and Sons which is annexure F to this Affidavit. I acknowledge that the copy of the Tax Invoice from JR Richards and Sons should have been provided to Great Lakes Council in response to item (i) as this would have assisted in establishing where the waste created by the demolition of the cottage was disposed of. 48. I acknowledge that in providing instructions to reply to the notice from Council I should have conducted a more thorough review of my records and made more thorough enquiries. I acknowledge that provision of the material at that time would have been of assistance to great Lakes Council. I sincerely regret my failure to do so and apologise for the inconvenience caused to the Officers of Great Lakes Council and other parties involved. 9 The tax invoice from J R Richards and Sons Pty Ltd (Annexure F to the affidavit) is addressed to the defendant and refers to the provision of a skip at the Land on 30 May 2005 for the sum of $55. The defendant has filed an affidavit of Gregory Turner, a contracts manager of J R Richards and Sons Pty Ltd, sworn on 5 October 2007 who says that it was the practice of the company to take full skips to the company's depot at Tuncurry, then to compact the waste and transfer it to the Tuncurry landfill facility. Mr Turner also says that the holding capacity of the skip bins in operation by the company at the relevant time was 1.5 cubic metres.

[20]

10 On analysis, it appears from the affidavits in the defendant's case that he says that he is guilty because: (a) in late April or early May 2005 he had given permission for removal of a hot water service, light fittings and other internal fittings from the cottage; and (b) afterwards (on an unspecified date) he authorised the skip to be ordered from J R Richards and Sons Pty Ltd which was removed from the site on 30 May 2005. The clear inference is that the skip was to remove the hot water service, light fittings and other internal fittings. That is reinforced by the small size of the skip which is inconsistent with the removal of an entire demolished cottage. Submissions 11 The prosecutor submits that removal of a hot water system, light fittings and other internal fittings cannot constitute demolition of the cottage and therefore that the matters in paragraphs 47 and 48 of the defendant's affidavit cannot in law amount to admissions of guilt. The prosecutor further submits that the plea was not genuine because it did not admit any of the particulars of the charge alleged by the prosecutor. The defendant contests both submissions and contends that the skip may have had a "dual connection", the other connection (as I understand the contention) being the removal of demolished cottage material. The defendant submits that one does not employ a skip merely to remove light fittings or the like. The defendant also submits that removal of internal fittings (such as cupboards, doors, fireplaces and utility services) could constitute partial demolition of a cottage. The defendant submits, in any event, that there are two discretionary reasons why the power to reject the plea should not be exercised: (a) the consequence of the rejection of the plea would be that the prosecutor now has the advantage of having an agreed statement of facts and a sworn affidavit of Mr Mood about the circumstances of the alleged offence, including a good deal of incriminating material. Those documents were promulgated by the defendant for the purposes of the hearing on sentence. It would prejudice Mr Mood to require him to go to trial on the charge with that significant head-start to the prosecutor; (b) it would also be a consequence of the rejection of the plea that the prosecutor would attempt to undo the agreed position of the parties arising from a charge negotiation and proceed against the defendant on the second charge of demolishing the cottage without demolition consent (see letter from Stacks to Barrraclough Jones dated 19 October 2007). Consequently, it is said, in facing that second charge the defendant would be jeopardised. Demolition 12 The meaning of the word "demolish" was considered in Nelson v Healy [1948] VLR 415 at 417 where O'Bryan J observed: "the usual meaning of the word demolish is to destroy (particularly in relation to a building) by violent disintegration of its fabric; to pull or throw down; pull to pieces; reduce to ruins". In Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158, a case raising questions under the Local Government Act 1993, Bignold J applied at [27] what his Honour said was the ordinary meaning of the word "demolish" ("to destroy by disintegration of the fabric of, to pull or throw down; to reduce to ruin", referring to the Shorter Oxford Dictionary) to the extended meaning of the term "building" (that is, a building or part of building). There can be demolition of part of a building. The removal of part only of the building (an art studio at the rear of a dwelling-house) was considered to be demolition in The Turnbull Group Pty Ltd v Pittwater Council [2007] NSWLEC 445 at [9]. In Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 at [1] Pain J referred to the demolition of unauthorised building works, being an air-conditioning room and part of a plant room on the roof of a residential property.

[23]

Dawson J said 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. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence [ R v Forde [1923] 2 KB 400 at 403; R v Murphy [1965] VR 187 at 188; R v Chiron [1980] 1 NSWLR 218 at 235; R v Liberti (1991) 55 A Crim R 120 at 121-122; R v Ferrer-Esis (1991) 55 A Crim R 231 at 232-233]. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. 16 In Maxwell v The Queen (1995) 184 CLR 501 at 509 Dawson and McHugh JJ said: In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court [ Griffiths v The Queen (1977) 137 CLR 293 at 313-314 27], a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester [1971] AC 481 at 488: It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise. It is the disposal of the case which results in the judgment of the court embodying a determination of guilt…

[25]

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered [See Hawkins, Pleas of the Crown , 8th ed (1824), vol 2, p 466; R v Jerome and McMahon [1964] Qd R 595; P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751; (1978) 67 Cr App R 305; R v Clayton (1984) 35 SASR 232; Marlow v The Queen [1990] Tas R 1. It would seem that the references in Griffiths v The Queen (1977) 137 CLR 293 (at 302, per Barwick CJ; at 317, per Jacobs J; at 334, per Aickin J) to the fact that a court is not obliged to accept a plea of guilty envisage these circumstances]. But otherwise an accused may insist upon pleading guilty. That is illustrated by R v Martin (1904) 21 WN (NSW) 233 where the trial judge, the Chief Justice, suggested that the accused should enter a plea of not guilty. The accused declined to do so and insisted upon pleading guilty. Upon a case stated by the Chief Justice, the judgment of the court was delivered by Owen J, who said [ R v Martin (1904) 21 WN (NSW) 233 at 235]: It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the Judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance. 19 In Maxwell Toohey J also expressed the view (at 522) that the court may refuse to accept a guilty plea (citing Marlow v The Queen [1990] Tas R 1) or direct that a not guilty plea be entered (citing R v Jerome and McMahon [1964] Qd R 595). Similarly, Gummow and Gaudron JJ said (at 531): In general terms and leaving aside a plea to a lesser charge, the power to reject a plea is a power which is exercised where the plea is equivocal or does not constitute a confession of guilt (for example, if it is accompanied by a statement which indicates that the accused denies or does not admit some element of the offence charged [ R v Jerome and McMahon [1964] Qd R 595 at 603; R v Tatnell [1962] Qd R 11]) or, for some other reason, there are grounds for thinking that the accused is not criminally responsible for the offence to which he or she has pleaded guilty. 20 One of the cases cited in Maxwell by Dawson and McHugh JJ was P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751. There O'Connor J (with whom Widgery CJ and Lloyd J agreed) said at 754 - 755: In my judgment, a clear distinction must be drawn between the duties of a court faced with an equivocal plea at the time it is made and the exercise of the court's jurisdiction to permit a defendant to change an unequivocal plea of guilty at a later stage of the proceedings. A court cannot accept an equivocal plea of guilty: it has no discretion in the matter; faced with an equivocal plea the court must either obtain an unequivocal plea of guilty or enter a plea of not guilty. For a plea to be equivocal the defendant must add to the plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. An example of this type of qualification is found where a man charged with handling a stolen motor car pleads guilty to handling but I didn't know it was stolen . It is not every qualification which makes a plea of guilty equivocal; for example, the burglar charged with stealing spoons, forks and a camera, who pleads guilty but I did not take the camera is making an unequivocal plea to burglary.

[27]

22 In R v Tatnell [1962] Qd R 11 at 14, Hanger J (with whom Mansfield CJ agreed) held that: These cases seem to me ample authority for a proposition that, though the prisoner in fact announced a plea of guilty to a charge, yet where he makes statements, at the time or before sentence, which show that…he alleges facts which would amount to a defence to the charge, then in these circumstances, he should be treated as pleading not guilty . 23 In R v GV [2006] QCA 394 at [37], the Queensland Court of Appeal summarized the effect of the authorities on this point to be that: …a plea of guilty which is not in plain, unambiguous and unmistakeable terms must be treated as a plea of not guilty, and further that where, on a plea of guilty, a defendant so qualifies the plea by giving an explanation in relation to the matter with which he has been charged, he should be taken to be pleading not guilty. 24 In R v Marchando (2000) 110 A Crim R 337 at [4] Simpson J (with whom the other members of the NSW Court of Criminal Appeal agreed) said: The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: R v Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: R v Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: R v Davies (1993) 19 MVR 481. 25 The following principles, in my view, are supported by these authorities: (a) the Court must accept a plea of guilty which is unequivocal and not made in circumstances suggesting that it is not a true admission of guilt (those circumstances include ignorance, fear, duress, mistake or the desire to gain a technical advantage). If a plea of guilty is equivocal the Court must enter a plea of not guilty. However, ordinarily, a plea of guilty is not finally accepted by a court until sentence has been passed. See Maxwell at 511, Foster , R v Jerome and McMahon, R v Tatnel, R v GV. (b) a person is free to plead guilty even if he is not, and may do so for all manner of reasons (for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than if convicted after a plea of not guilty). It is not a miscarriage of justice for the court to act on an unequivocal, freely made plea of guilty even if the person is not guilty: Meissner at 141, 157. (c) if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the defendant to withdraw the plea and plead not guilty; but he cannot compel the defendant to do so: Maxwell at 510. (d) the court has a discretion to permit a change of plea at anytime prior to sentence if it would be a miscarriage of justice not to do so: R v Marchando at [4]. 26 It is unclear, to my mind, what the scope of the distinction is between the "desire to gain a technical advantage" which is a circumstance suggesting that it is not a true admission of guilt (Maxwell at 511), and on the other hand, permissible reasons for a person to plead guilty when he or she is not guilty which include the "hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty" (Meissner at 157). Conclusion 27 The authorities draw a distinction between the duty of the Court to enter a plea of not guilty when faced with an equivocal plea of guilty, and the discretion of the Court to permit an unequivocal plea of guilty to be changed. However, it is not clear to me that the Court has power to reject an unequivocal, freely made plea of guilty to which a defendant unequivocally and freely wishes to adhere. That is the present case. According to Meissner, a person is entitled to plead guilty even if he is not and may do so for all manner of reasons. According to Maxwell (per Dawson and McHugh JJ), a trial judge cannot compel a defendant to change his plea of guilty to not guilty even if the trial judge forms a view that the evidence does not support the charge or that for any other reason the charge is not supportable. It may be that there is such a power at least where the plea of guilty is in order to gain an impermissible "technical advantage" (Maxwell at 511).

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