McCann v Penrith City Council

Land and Environment Court (NSW)|1993-12-16|Before: Cowdroy J

Introduction 1 This appeal arises in consequence of the conviction of the appellant in the Local Court at Penrith in respect of two charges arising under the Protection of the Environment Operations Act 1997 ("PEO Act"). 2 The charges were the subject of separate summonses issued from the Local Court on 25 May 2001. One charge alleged that the appellant failed to comply with a clean up notice issued to him in respect of land known as 8 Donohoes Avenue, Mulgoa ("the land") pursuant to the provisions of s 91 of the PEO Act which relevantly provides:- (1) Notices The appropriate regulatory authority may, by notice in writing, do either or both of the following: (a) direct an occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,… to take such clean-up action as is specified in the notice and within such period as is specified in the notice. 3 The other charge alleged that the appellant failed to respond to a formal intention statement. Section 211 of the PEO Act relevantly provides:- (1) A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under this Chapter is guilty of an offence. 4 On 13 March 2002 the appellant pleaded guilty before Magistrate E Jacob and was convicted of each charge. A penalty of $750 was imposed in respect of the failure to comply with the clean up notice and a fine of $300 for failing to provide information. However the final order imposed a penalty for the two offences of $1000 and the appellant was ordered to pay court costs of $58. The Court was also informed that the appellant was ordered to pay the respondent's costs, although no transcript of such order is available.

Findings 15 The Court is satisfied that no ground exists to justify any order being made in the appellant's favour on the ground that the convictions, orders or sentences cannot be supported having regard to the evidence, as provided by s 104(1)(c) of the Justices Act. The Magistrate, upon the evidence before her, has made no error. The challenge to her orders upon this ground must therefore fail. 16 The Court will now consider the claim made pursuant to s 104(1)(b) of the Justices Act. In Regina v Davies (Court of Criminal Appeal, 16 December 1993, unreported) Badgery-Parker J (with whom Wood and Matthews JJ agreed) said:- The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake or OTHER CIRCUMSTANCES AFFECTING THE INTEGRITY OF THE PLEA AS AN ADMISSION OF GUILT, the court should readily grant leave. But if the plea has been entered IN FULL KNOWLEDGE OF ALL THE FACTS and intentionally as a plea to the charge which it is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person IN POSSESSION OF ALL THE FACTS and intending to plead guilty as an admission of all the legal ingredients of the offence ( O'Neill (1979) 2 NSWLR 582 , 1 A Crim R 59) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings." 17 Such principle was adopted in Regina v Ganderton (Court of Criminal Appeal, 19 September 1998, unreported) and also in Regina v Favero [1999] NSWCCA 320. In Liberti v Regina (1991) 55 A Crim R 125 Kirby P (as he then was) referred to the circumspection with which an appellate Court would consider an application to withdraw a plea of guilty or go behind it, saying:- "An accused person will not always know the legal consequences of the facts to which he pleads guilty. He or she is normally entitled, where represented, to look to the lawyers to explain those facts for their legal significance." 18 The evidence in the appeal before the Court establishes that the decision by the appellant to plead guilty was made contrary to his original intention and was made only as a result of questionable advice and representation. Additionally the evidence establishes that the appellant suffers from various medical conditions, including claustrophobia and agoraphobia. The Court accepts the submissions that such conditions made the appellant vulnerable to acceptance of the advice given to him during the short conference before the hearing and that his pleas of guilty to the charges resulted from his fear of imprisonment and the financial penalty as told to him by his legal practitioner. In fact the penalties for the offences did not include imprisonment. 19 Taking these matters into consideration the Court is satisfied that the appellant did not have a genuine recognition of his guilt and accordingly such pleas cannot be relied upon as constituting genuine pleas of guilt. 20 In Von Lieven v Steward; Kemish v Godfrey and Anor (1990) 21 NSWLR 52 Handley JA distinguished between reasonable mistake of fact and mistake of law at p 66 - p 67 as follows:-

It is beyond argument that a reasonable but mistaken belief can only furnish an excuse where the mistake is one of fact: see He Kaw Teh v The Queen (at 532-533, 550-551, 572-574, 576 and 593). Otherwise the general principle applies that ignorance of the law is no excuse: see R v Turnbull (1943) 44 SR (NSW) 108 at 109; 61 WN (NSW) 70 at 71 per Jordan CJ. Accordingly a belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this. Nor can inadvertence excuse either. The only excuse is the existence of an actual or positive belief based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent: see Proudman v Dayman (1941) 67 CLR 536 at 541 and He Kaw Teh v The Queen (at 575). 21 In the present proceedings, but for the pleas of guilty, prima facie a finding may have been made by the Magistrate that the appellant had a genuine belief based upon the letter, that he had a reasonable or lawful excuse for failing to comply with the notices. The issues thus raised in this appeal constitute mixed questions of both law and fact. Accordingly the appeal should be upheld pursuant to s 104(1)(b) and s 133AVB of the Justices Act. 22 The appellant submits that if the appeal is upheld the convictions should also be quashed. However, the respondent has had no opportunity to present its evidence in support of the notices issued to the appellant because of the pleas of guilty made by the appellant. The proper forum for such evidence is the Local Court. Accordingly the proceedings will be remitted to the Local Court at Penrith for determination.

Costs 23 The appellant submits that costs should follow the event. The respondent submits that it should be awarded costs because it was not responsible for the guilty pleas made by the appellant which have resulted in these proceedings. 24 The actions of the appellant in pleading guilty to both charges led to the initiation of proceedings in the District Court and then in this Court. The respondent is not responsible for the manner in which the appellant elected to conduct the proceedings in the lower court and this appeal has arisen solely as a result of that conduct. In the exercise of the Court's discretion granted to it pursuant to s 69(2) of the Court Act the Court determines that the discretion should be exercised in favour of the respondent.

ORDER that convictions of the appellant and orders arising from summonses based upon Infringement Notice number P1962840 and Infringement Notice number P1962850 be set aside;

ORDER that the hearing of the summonses based upon Infringement Notice number P1962840 and Infringement Notice number P1962850 be remitted to the Local Court at Penrith for hearing;

ORDER that the appellant pay the respondent's costs of this appeal;

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.

CITATION : McCann v Penrith City Council [2004] NSWLEC 232 APPELLANT Stanley John McCann PARTIES : RESPONDENT Penrith City Council FILE NUMBER(S) : 70001 of 2003 CORAM: Cowdroy J KEY ISSUES: Appeal :- appeal against clean up notice and failure to provide information - plea of guilty - no genuine recognition of guilt- mixed questions of fact and law - conviction set aside and prosecution remitted to Local Court Crimes (Sentencing Procedure) Act 1999, s 10 LEGISLATION CITED: Justices Act 1902, s 104, s 133AVB Land and Environment Court Act 1979, s 21B, s 69(2) Protection of the Environment Operations Act 1997, s 91, s 211 Liberti v Regina (1991) 55 A Crim R 125; Regina v Davies (Court of Criminal Appeal, 16 December 1993, unreported); CASES CITED: Regina v Favero [1999] NSWCCA 320; Regina v Ganderton (Court of Criminal Appeal, 19 September 1998, unreported); Von Lieven v Steward; Kemish v Godfrey and Anor (1990) 21 NSWLR 52 DATES OF HEARING: 10/05/2004; 11/05/2004 EX TEMPORE 05/11/2004 JUDGMENT DATE :

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