HIS HONOUR: Mrs Maria Cmunt stood charged before Cooma Local Court with five offences under the Protection of the Environment Operations Act 1997 (the POEO Act). Those matters were 2016/329321, 345002, 347368, 351770 and 359528. Mr Jiri Cmunt was charged with two offences pursuant to the POEO Act. They were matters 2016/390688 and 2017/431140.
The relevant timetable for the dealing with the matters with which Mrs Cmunt was charged, as I have been able to ascertain it from the relevant court files, was that, on 14 December 2016, Mrs Cmunt gave written notice of her intention to plead "not guilty". The next relevant date is that, on 18 July 2017, Mrs Cmunt was convicted and sentenced in the Local Court in Cooma. On 9 August 2017, Mrs Cmunt completed and signed a document headed "Notice of Appeal to the District Court".
During the course of her oral evidence to me today, Mrs Cmunt has testified that she was provided this form by the staff of the Cooma Local Court Registry. She has given evidence that she was advised that this was the appropriate avenue for appeal against her convictions.
The next relevant date is 16 November 2017, when Graham ADCJ, sitting at Queanbeyan Court House, struck out the appeals. The District Court's file records the orders that were made by his Honour on that day. They record the following orders made by his Honour:
The Court does not have jurisdiction to determine an appeal against conviction. See s 277(1)(b) of Environmental Operations Act 1997.
All appeals are struck out for want of jurisdiction.
Both orders appear above his Honour's signature and are dated 16 November 2017.
On 17 November 2017, the Registrar of the District Court in Queanbeyan wrote to Mrs Cmunt advising her of the outcome of the District Court proceedings. Mrs Cmunt gave evidence today of enquiries made of the High Court concerning special leave to appeal. Those matters are not relevant to my consideration of matters before me today. Matters that are relevant concern discussions which Mrs Cmunt had with District Court staff after the orders were made by his Honour.
Mrs Cmunt has given evidence that the District Court staff advised her that it was not possible to transfer the matters to the Land and Environment Court after his Honour's orders. The District Court staff, however, provided her with a formal Summons for lodgement with this Court. That Summons, appealing against her conviction and sentence in the various matters that were before the Local Court, was filed on 12 December 2017.
A similar position arises with respect to Mr Cmunt.
The initial timetable differs in a number of dates which are appropriate to record. On 16 February 2017, Mr Cmunt gave notice of his intention to plead "not guilty" to the two offences with which he had been charged. On 9 June 2017, Mr Cmunt was convicted of both offences and sentenced in the Local Court in Cooma. On 30 June 2017, Mr Cmunt also completed a form headed "Notice of Appeal to the District Court".
On 16 November 2017, his appeals were also disposed of by Graham ADCJ. His Honour made orders in Mr Cmunt's matter, identical in terms to those made in Mrs Cmunt's appeals. Mr Cmunt gave oral evidence before me today, he having been in court during the course of Mrs Cmunt's evidence, that the matters that had preceded and had followed his proceedings were the same as those which had happened in his wife's proceedings.
As a consequence of the filing of the Summonses in this Court on 12 December 2017, following a series of interlocutory proceedings that do not need to be described in detail, the matter was set down for a one-day hearing before me in Cooma Courthouse on 25 September 2018.
On 21 September 2018, submissions were filed on behalf of the Prosecutor by Mr Seymour, counsel appearing for the Commissioner of Police (as the original charges had been laid by a member of the New South Wales Police Force).
Mr Seymour's submissions were brief and proposed that I should dismiss each of the proceedings brought by Mr and Mrs Cmunt, and that I should order costs against them. The basis of the submissions was that the appeals were not within the time provided for by the Crimes (Appeal and Review) Act 2001 or any more beneficial provision which might be available under the Court's legislation, the Land and Environment Court Act 1979.
At the commencement of the proceedings in Cooma, Mr Seymour tendered the relevant transcripts of the Local Court hearings when Mr Cmunt and Mrs Cmunt were convicted. Having read Mr Seymour's submissions prior to travelling to Cooma, I was concerned that Mr Seymour may not have had regard to a relevant decision of the Chief Judge of this Court. That decision was reported as Denning v The Department of Environment and Conservation (2007) 153 LGERA 200; (2007) NSWLEC 258.
In that case, his Honour had concluded that because Mr Denning who had sought to appeal from a determination of the Local Court (but had done so pursuant to a "Notice of Appeal to the District Court", in circumstances similar to those described by Mrs Cmunt), Mr Denning's appeal could validly be continued before this Court despite the running out of time in the sense described by Mr Seymour in his written submissions. I provided Mr Seymour with a copy of his Honour's decision and invited him to address me on why I should not adopt a similar approach.
His Honour's decision explained in [43] that Mr Denning's appeal had been filed within the relevant statutory period. That position appears to apply to both Mr and Mrs Cmunt's positions in these proceedings.
In [44] of his Honour's decision, his Honour explains how that matter can constitute the commencement of a valid appeal to the Land and Environment Court. What subsequently occurred in Mr Denning's matter was that his appeal was transferred to the Land and Environment Court without further substantive order made by the District Court. That is made clear by [45] and following, of his Honour's decision.
His Honour concluded, in [47], that the Land and Environment Court did have jurisdiction to hear and determine his appeal and to make such amendments as were necessary correcting defects in the Notice of Appeal.
As Mr Seymour submitted to me, there is one significant distinction to be drawn between the process that was followed in Mr Denning's appeal and the circumstances which arise in these appeals by Mr and Mrs Cmunt.
In Mr Denning's appeal, the original "Notice of Appeal to the District Court" remained on foot to be transferred to the Land and Environment Court.
In these proceedings, I have no District Court appeal being transferred to me as a consequence of the orders made by Graham ADCJ on 16 November 2017 in the District Court. What I have, in the alternative, are fresh Summonses on behalf of each of Mr and Mrs Cmunt filed with the Land and Environment Court on 12 December 2017.
Under the circumstances, I have concluded that there is a real issue arising as a consequence of the District Court orders as to whether there are any proceedings validly capable of being dealt with by me - given that the District Court orders appear to dispose of, finally, the appeals commenced within time by Mr and Mrs Cmunt pursuant to the notices I have earlier described.
I have contemplated how it would be possible, or if it would be possible, to permit Mr and Mrs Cmunt to have an appeal heard on the merits against their convictions in the Local Court.
I have concluded that because the District Court orders were dispositive of their appeals, and their Summonses in the Land and Environment Court dated 12 December 2017 are clearly out of time, I have no jurisdiction to deal with these appeals in any substantive fashion, despite the fact that that position appears to arise through no fault of Mr and Mrs Cmunt.
I have therefore reached the conclusion that it is appropriate for me to strike out each of their appeals. However, as I indicated to Mr Seymour, and to Mr and Mrs Cmunt, I do not propose to make formal orders striking out the appeals at this time. I am able, pursuant to s 5BA(1) of the Criminal Appeal Act 1912, to submit a question of law to the Court of Criminal Appeal for determination through the process known as "stating a case". I have concluded that it would be appropriate to follow this process, rather than immediately making orders striking out Mr and Mrs Cmunt's appeal.
I have provided a copy of a draft question to form the basis of a stated case to Mr Seymour and to Mr and Mrs Cmunt inviting comments on that draft. I have concluded that the draft question should be submitted to the Court of Criminal Appeal as I determined it and in the following terms:
Did I err in concluding that the orders of the District Court of 16 November 2017 in striking out all these appeals for want of jurisdiction mandated that I strike out each of the summonses filed in this Court on 12 December 2017 seeking to appeal against the relevant Local Court conviction on each charge?
[2]
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Decision last updated: 08 October 2018