O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator

Decision of the primary judge

1. In accordance with authority, and in a manner which was not challenged in this Court, the primary judge addressed the claim of bias first and before any other issue. Her Honour recited the correct test and, after hearing argument, refused to disqualify herself from hearing the motion. The primary judge held that any reasonable reading of the 19 July 2019 transcript (set out at [5] above), demonstrated that Mr Van Aalst told the court not only that his client "would be entering a plea" in all eight matters, but that such pleas were in fact being entered. This was the only way to understand the passage where the Court stated "all right just bear with me one moment while I formally note that a plea of guilty is entered in all eight matters" and nothing was said by Mr Van Aalst in response. Her Honour was not persuaded that a fair minded observer, aware of the critical facts, might form the view that her Honour might not bring an impartial mind to bear on Mr O'Haire's application.
2. As to the substance of the application under Uniform Civil Procedure Rules 2005 (NSW), r 36.17, her Honour concluded that as there had 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 was not available.
3. Her Honour nevertheless addressed Mr O'Haire's case on the contingent hypothesis that the power to correct a judgment or order under UCPR r 36.17 was available in this case.
4. The primary judge cited relevant authority about the operation of the slip rule, and observed that Spigelman CJ in Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 cautioned that the precise terms of r 36.17 must be carefully construed and should not be conflated with the construction of other statutory rules containing a similar power, or with the case law about the inherent jurisdiction, which may be significantly broader (at [19]-[20], [24]-[26]).
5. Her Honour concluded that 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, the evidence would need to demonstrate that such a mistake was not deliberate.
6. Her Honour found that Mr O'Haire's affidavit, at its highest, established that he believed that the guilty pleas were entered in error. As earlier noted, Mr O'Haire's evidence on the motion was that he nevertheless intended to plead guilty. There was no evidence before the primary judge from Mr Van Aalst.
7. 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, the primary judge was 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".
8. Importantly, her Honour concluded her judgment by recording that: "[56] 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."

Consideration

1. I think it unlikely that there was in this case a judgment or order of the Court upon the entry of a plea of guilty by counsel for Mr O'Haire capable of being corrected or amended by r 36.17 of the UCPR. This is because there was no conviction until there was a judgment of the Court. So much was established in Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 at 507 and 509. The authorities relied upon by the applicant about the meaning of a "conviction" in the context of the superseded Proceeds of Crime Act 1987 (Cth) do not assist in resolving this question. Given my conclusion at [39]-[40] below, which is predicated on a plea of guilty being capable of being corrected or amended by r 36.17 of the UCPR, it is unnecessary finally to determine this issue.
2. It may also be that the dismissal of the notice of motion (and the related refusal of the application alleging bias) in this case was not an "interlocutory judgment or order given or made in the proceedings" within the meaning of s 5F of the Criminal Appeal Act. On the other hand, whether or not an order of the court is one falling within the description in s 5F is notoriously difficult. As R A Hulme J (Hoeben CJ at CL and Harrison J agreeing) said in AF v R [2015] NSWCCA 35 at [31]: "It has been acknowledged that there is no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other."
3. The remarks of Leeming JA (McCallum and Bellew JJ agreeing) in Cabot (a pseudonym) v R [2018] NSWCCA 265 at [48]-[53] about a not unrelated question should also be borne in mind.
4. I am prepared to assume that this was a case where there was an "interlocutory judgment or order given or made in the proceedings" within the meaning of s 5F of the Criminal Appeal Act. Leave to appeal should nevertheless be refused.

Bias

1. At the outset Mr O'Donnell SC, who appeared for Mr O'Haire in this Court, abandoned reliance on any claim of actual bias. He was correct to do so. That claim was never arguable.
2. In relation to the application of the test for apprehended bias described in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, no reason was shown to doubt the conclusion of the primary judge that the "double might" test was not satisfied here.
3. Apprehended bias is not demonstrated by a judge having read the relevant papers before coming on to the bench. Nor is apprehended bias demonstrated by a judge making clear to counsel that a proposition being advanced in those written submissions is untenable. The construction of the transcript being advanced by Mr Van Aalst was untenable.
4. After the critical discussion about which Mr O'Haire complains, the parties proceeded to discuss timetabling orders for the matter to proceed to a sentencing hearing. That discussion, and the setting aside of valuable court time for sentence proceedings by the primary judge, is only explicable on the basis that her Honour had been asked formally to note that a plea of guilty had been entered in all eight matters.
5. A fair minded observer would not conclude that her Honour might not bring an unbiased mind to the question before her. The primary judge was plainly correct to refuse the application that she disqualify herself for apprehended bias.

The slip rule

1. Rule 36.17 UCPR provides: "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."
2. The slip rule applies to proceedings commenced in Class 5 of the Land and Environment Court's jurisdiction by reason of r 5.2(2)(h) of the Land and Environment Court Rules 2007 (NSW) which picks up and applies Pt 36 of the UCPR.
3. In Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2, Gleeson JA (with whom Ward JA and I agreed) at [35] said: "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."
4. 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 [24]. In particular, the power must be construed having regard to the overriding purpose provided for in s 56 of the Civil Procedure Act 2005 (NSW): Newmont Yandal at [26].
5. If the guilty plea had not been entered, the matter would have been adjourned for a brief mention or set down for a contested hearing on liability. Neither course occurred. Instead, the matter was fixed for a sentencing hearing. Her Honour would not have made orders directing evidence and submissions on sentence or set aside valuable court time for a sentence hearing unless a plea of guilty had been entered.
6. The primary judge was correct to conclude that no slip or error was made by the Court. Her Honour was also correct to conclude, on the basis of the evidence before her, that the entry of the pleas of guilty on behalf of Mr O'Haire was deliberate. There was no evidence of any accidental slip or omission.
7. Established principles apply to the withdrawal of a plea of guilty entered by mistake. The grant of leave to withdraw a plea of guilty in a criminal case involves much more than a simple alteration of the record: Maxwell at 531 per Gaudron and Gummow JJ. There was no arguable error in the exercise of discretion by the primary judge in refusing to apply the slip rule and make the orders sought in the notice of motion.
8. Finally, on the question of leave to appeal, it bears emphasising that there is no injustice to Mr O'Haire in refusing leave to appeal. Mr O'Haire is as free now as he was at the conclusion of the hearing of the slip rule application before the primary judge to seek to withdraw his guilty pleas. Her Honour recorded that the prosecutor "would not stand in the way of that application" and "it is likely to enjoy success".
9. Any collateral benefit sought by Mr O'Haire, whether in threatened defamation proceedings (see [7] above), or in the permanent stay application (see [8] above), provides no reason to grant leave to appeal.

Order

1. It was for these reasons that on 12 February 2020 I joined in the order of the Court refusing leave to appeal under s 5F of the Criminal Appeal Act.
2. BEECH-JONES J: The background to this matter is set out in the judgment of Payne JA. On 12 February 2020 I joined in the orders made by the Court as I was not convinced that the application for leave to appeal had any utility. Before the primary judge the applicant swore an affidavit stating that if the entry of his plea was corrected under the "slip rule" he would nevertheless enter a plea of guilty. Why would this Court embark on the hearing of an appeal just to allow the applicant to enter the same plea that was being "corrected" with the result that he would then lose the benefit of an early plea? The only matter pointed to was the possibility that he might then pursue his application for a stay which appears to be based on the statements made by the prosecutor to the press noted by Payne JA in [7]. As his Honour points out the application for a stay can still be pursued regardless of whether or not a plea of guilty is recorded. Otherwise I agree with Payne JA in relation to the allegation of apprehended bias on the part of the primary judge. I express no view on whether the recording of the entry of a plea of guilty was an order that was amenable to correction under Uniform Civil Procedure Rule 36.17.
3. N ADAMS J: I concurred in the making of the orders on 12 February 2020 because I was not satisfied that the applicant had identified any basis for a grant of leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). I did so for the reasons provided by Payne JA (save as for in one respect), and the additional reasons provided by Beech-Jones J. The only aspect of Payne JA's decision I do not expressly adopt is that, in the context of this being a refusal to grant leave to bring an interlocutory appeal, I would prefer not to express any view on the question of whether Uniform Civil Procedure Rule 36.17 applies to "correcting" the entry of a plea of guilty. In addition to adopting their Honours' reasons I wish to make some further observations regarding the relevant test to be considered when determining whether to grant leave to bring an interlocutory appeal to this Court.
4. In opposing the grant of leave in this matter, the respondent relied upon the principles derived from R v Ho (NSWCCA, unreported, 18 July 1994). Before I turn to consider that decision it is pertinent to note that s 5F was only inserted into the Criminal Appeal Act in 1987 by Sch 1, s 2 of the Criminal Appeal (Amendment Act) 1987 (NSW), which commenced on 18 December 1987. That is, the provision was still relatively new at the time that R v Ho was decided. Prior to the enactment of s 5F, the Supreme Court Act 1970 (NSW) provided that interlocutory judgments or orders in District Court criminal proceedings could be appealed to the Court of Appeal. That provision was repealed at the same time that s 5F was enacted. As the second reading speech made clear, the background to this change was as follows: "The proliferation of these interlocutory applications to the Court of Appeal has resulted in significant disruption to the criminal justice system and the tying up of already overburdened resources. There have been many instances of abuse of this procedure in that applications that clearly have no merit have been brought on the first day of a trial with the apparent intention of appealing to the Court of Appeal, thereby causing the trial to abort. In extreme cases this can be a means of avoiding trial by a particular judge. It has meant that trial dates have had to be vacated on extremely short notice with consequential disruption of trial lists, particularly in country areas, and juries which have already been empanelled for the trial have had to be discharged. Interlocutory applications to the Court of Appeal have not been limited to stay of proceedings matters. They have also involved applications requiring a District Court judge to reconsider his refusal to allow an accused to withdraw a plea of guilty, to change the listed trial date, and to seek declarations as to the elements of the offences charged in the District Court. With around 4 000 cases awaiting trial in the District Court, the potential for continued disruption through this avenue is enormous. The present intercession by the Court of Appeal in District Court criminal proceedings creates a number of anomalies in criminal proceedings in this State which cannot be allowed to continue." [2]
5. This Court (Gleeson CJ, with whom Lee CJ at CL and Grove J agreed) considered this new statutory provision in R v Matovski (1989) 15 NSWLR 720. That decision concerned applications for leave to appeal under s 5F(3) against a decision of the District Court refusing to stay the applicants' prosecution on the basis of entrapment. The applicants sought to persuade the court to take a different view of the facts than that found by the trial judge. In refusing leave Gleeson CJ observed: "I would not suggest that there may not be cases in which substantial factual error could form the basis of a successful application for leave to appeal under s 5F. I do not intend to suggest that the only cases in which this Court would give leave to appeal would be cases where the applicant can point to some error of law or mistake in principle concerning the way in which a discretion of the kind involved in an application such as that presently in question should be exercised. No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which reference has already been made. Accordingly, it is not appropriate to circumscribe the discretion which this Court has in deciding whether to grant or withhold leave to appeal. Equally, however, it is necessary to attend to the statutory requirement that leave be granted where an appeal against an interlocutory judgment is contemplated by a party to proceedings other than one of the persons mentioned in s 5F(2). The present case is not in my view one in which leave to appeal should be granted." (Emphasis added.)
6. In R v Ho, which was determined a few years later, Mahoney JA, with whom Gleeson CJ and Dunford J agreed, observed the following in relation to the requirement of leave under s 5F, albeit in the context of a trial rather than a plea: "… The procedure which has been set up to enable courts, prior to the trial of an offence, to deal with interlocutory matters is a beneficial procedure and it is one which, in my opinion, should receive, if I may so describe it, the support of appellate courts. I do not think that appellate courts should readily interfere with what a judge does at the interlocutory stage of the matter. As I understand the interlocutory procedures set up, it was not the intention of the legislature that orders made in the course of exercise of those interlocutory powers should ordinarily be the subject of appeals which would complicate trials or delay them. The purpose of the interlocutory procedure was, I think, to clear away any possible irregularities in advance and so to facilitate trials rather than to invite a sequence of appeals against interlocutory orders. No doubt it was for this purpose that s 5F provided that in a case such as this there was to be no appeal against the interlocutory orders except by leave of this Court. I do not think that leave should readily be granted. Having said this I, of course, add that if an appropriate case is made out, showing an error of principle apt to cause irregularity or injustice, then no doubt this Court will grant leave to appeal. But unless a proper case is made out, it is in my opinion contrary to the purpose of the procedure for making interlocutory orders that this Court should over-readily interfere." (Emphasis added.)
7. It was the italicised words in this passage that were advanced by the respondent as being the test for the grant of leave in the present application. These observations by Mahoney JA in Ho were quoted with approval by Ipp AJA in Regina v Chami; Regina v Sheikh [2002] NSWCCA 136 (Sully J and Bell J (as her Honour then was) agreeing as to the relevant principles but Bell J disagreeing as to the result) as follows: "… Appellate courts will not readily interfere with what a judge does at an interlocutory stage. Leave to appeal will not readily be granted although, of course, if an appropriate case is made out, showing an error or principle apt to cause irregularity or injustice, then this court will grant leave: R v Van Phu Ho (NSWCCA, unreported, 18 July 1994)." (Emphasis added.)
8. The decision in R v Ho does not appear to have been cited with approval since that time.
9. For my part, I have some doubt as to whether the observations by Mahoney JA in R v Ho that an applicant for leave under s 5F(3) needs to establish an "error of principle apt to cause irregularity or injustice" reflects the current test to be applied. It is not ultimately necessary for me to make any finding in this regard as I was not satisfied that any basis for this court's intervention was established in this matter.
10. The transcript of the proceedings before Pepper J on 19 July 2019, extracted at [5] of the judgment of Payne JA, reflects that the applicant's counsel informed her Honour that his client "would be entering a plea", informed the Court that he accepted the "prosecutors' statement of facts", was present in court when her Honour asked the parties to "bear with" her whilst she "formally note[d] that a plea of guilty is entered on all eight matters", and then participated in a discussion about the sentence hearing on 19 November 2019. Adding to this are the factors that: the applicant still intends to plead guilty (if his stay application is unsuccessful); the respondent would not oppose an application for him to reverse his plea in the Land and Environment Court; and, as senior counsel for the respondent indicated at the hearing of this application, the entries of the pleas of guilty are no procedural bar to the applicant pursuing his pending stay application. As Beech-Jones J posed in his reasons above: "[w]hy would this Court embark on the hearing of an appeal just to allow the Applicant to enter the same plea that was being 'corrected' with the result that he would then lose the benefit of an early plea?"

Endnotes

1. Section 363B of the Water Management Act provides: a Tier 2 penalty corresponds to a maximum penalty of - … (ii) in any other case, 4,550 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues…

A penalty unit is $110: Crimes (Sentencing Procedure) Act 1999 (NSW), s 17. 2. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 March 1987 at 16087 (Mr Sheahan, Attorney General and Minister Assisting the Premier). 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: 21 February 2020