Buttsworth v Director-General of the Department of Land and Water Conservation

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Environment Protection Authority v Cianfrano [2003] NSWLEC 147

PARTIES:
PROSECUTOR
Environment Protection Authority

DEFENDANT
Robert David Cianfrano

CASE NUMBER: 50120 of 2002

CATCH WORDS: Prosecution

LEGISLATION CITED:
Land and Environment Court Rules 1979 r 11(4)
Supreme Court Rules 1970 Pt 75

CORAM: Talbot J

DATES OF HEARING: 04/06/2003

EX TEMPORE DATE: 04/06/2003

LEGAL REPRESENTATIVES

PROSECUTOR
Mrs J C Kelly (Barrister)
SOLICITORS
Environment Protection Authority

DEFENDANT
In Person
SOLICITORS
N/A

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

50120 of 2002
Talbot J
4 June 2003

Environment Protection Authority

Prosecutor

v

Robert David Cianfrano

Defendant

Judgment

Introduction

HIS HONOUR: The Court has before it an application by the defendant, Robert Cianfrano, to change a plea of guilty entered by his legal representative on 11 March 2003 on his behalf and, as it appears, in accordance with his instructions. Mr Cianfrano has explained to the Court in an affidavit, and reiterated it, one might say, quite forcibly in the witness box, that the primary issue that exercised his mind when instructing his legal representative, Mr O’Brien, to enter a plea of guilty was that the questions that he wished to litigate would be matters that would involve a cost and that the cost, as he understood it, would be beyond his means. Mr Cianfrano was not in Court on the day that the plea of guilty was entered but nevertheless there is no question that it was entered according to his instructions.

I am satisfied that it is more probable than not that a conversation along the lines outlined by Mr Cianfrano regarding the cost of the litigation would have taken place. What is not clear is how it came about that with the benefit of the legal advice that he then had Mr Cianfrano entered the plea of guilty notwithstanding his own conviction that he was not guilty. Nevertheless it is apparent from what I have been told in the affidavit and from the witness box nevertheless that Mr Cianfrano understood that the evidence that had been filed and served on him by the Environment Protection Authority (“the EPA”) established a case against him and that if things were left on the basis of that case then the advice he received, and I am sure he understood this, was that he was most likely to be convicted.

He says he was given advice that the case might take five days. He was given advice or at least interpreted the advice to mean that that could mean some tens of thousands of dollars, possibly including the prosecutor’s costs. Certainly in his mind was something in the order of $100,000, being a sum of money which he could ill-afford, perhaps not even ill-afford but could not afford.
Mr Cianfrano has told the Court that he has had a struggle with the prosecutor and that he believes he has been frustrated, deliberately or otherwise, by the EPA in gaining access to documents which he believes are essential to the proper conduct of his case. It was in the light of those difficulties, in addition to the prospect of costs of the hearing, that he tells the Court he also gave up on seeking to acquire that information through the medium of either a subpoena or notice to produce against the prosecutor. He says he was advised that the argument about the subpoena would be a case in itself and that he was given an estimate of $2,500 for the day.
I do not wish to comment on the veracity or quality of the advice that Mr Cianfrano received because I accept that he was given advice to the effect, and he understood, that it was going to cost a lot of money and that it would be beyond his means if he persisted with legal representation to defend the matter. At the same time the Court now understands that Mr Cianfrano had engaged a consultant or consultants with expertise in hydrology or conservation in respect of aspects of the case about which, of course, the Court has not been fully informed.
Having seen Mr Cianfrano in the witness box and assessed his demeanour and having read his affidavit I am satisfied that he does hold a belief that he is not guilty of this offence and that he has throughout the whole period since the summons was first served on him genuinely held that belief. I am also satisfied that when the plea of guilty was entered it was not really attributable to a consciousness of guilt but rather to an end of expedience in terms of saving costs as he was advised at that time. Since then he has had, so he says, the benefit of some results from the scientific investigation that he has commissioned, again with some difficulty in terms of the costs in relation to the engagement of the consultants, that reinforces his belief that he should defend this matter.
He has made the decision to come to this Court and seek to reverse the plea of guilty which he entered and presumably will thereafter attempt to run the case himself without legal representation. Unfortunately, notwithstanding some directions that I gave him in regard to obtaining the benefit of pro bono or other advice through the facility of the Registry of this Court, that did not result in a positive outcome. I will not go into that but it appears that he was referred to persons who in reality do not, on the face of it, appear to be appropriate for a pro bono application. Of course the consequence is he appears here today unrepresented.
The prosecutor, quite properly, has put Mr Cianfrano to his proof that firstly, his plea of guilty was entered on a premise which is not a reflection of an understanding of guilt at the time and secondly, that he has a genuine belief that he has an answer to the charge that has been brought against him. Nothing has been raised in the course of what I have heard today that would lead the Court to conclude, in any final way, that his application is based on an ill-founded belief that some material, be it a fact in relation to the occurrence that is alleged against him itself or some scientific fact, would be a proper defence at law.
There has been a lot of talk about Mr Cianfrano pursuing documents from the prosecutor through a Freedom of Information (“FOI”) course of action. I am not satisfied that will bear any fruit that will assist in the conduct of these proceedings. I do not understand that documents produced as a consequence of a FOI exercise are thereupon necessarily documents that can be used without the usual production and tendering process. However, that is a course that has been taken by Mr Cianfrano as a preferred financial option.
Ultimately if the documents are to be produced despite the resistance of the EPA then either that will have to be done pursuant to some direction, either under Pt 75 of the Supreme Court Rules 1970 (“the Supreme Court Rules”) or otherwise, in accordance with a subpoena or notice to produce properly drawn. For the moment there is no relevant subpoena. The subpoena, which was foreshadowed to be the subject of a challenge, has been withdrawn. However, that is for the future.
For the moment what the Court has to decide is whether leave should be granted to allow Mr Cianfrano to change his plea from guilty to not guilty. I am satisfied that Mr Cianfrano holds and has always held a sincere and conscientious belief that he is not guilty of the charges. I am satisfied that the plea of guilt was entered at a time when he did not have a consciousness of guilt and that the plea of guilty was entered as a matter of expedience based upon his financial circumstances.
If Mr Cianfrano has now decided that he wishes to conduct the defence himself or that he will seek to obtain such legal advice that he can afford either for parts of the proceedings, for example in the issue of further subpoenas, or for the whole of the proceedings then he is entitled, in my view, to have that opportunity. This is an appropriate case for the Court to grant leave for the defendant to change his plea.
However, I must say that it was not until today, as far as I can see, when an affidavit dated 3 June 2003 was filed in Court and served on the prosecutor, that the position was made clear in terms of grounds that could support such an application for leave. In those circumstances I want to make it quite clear that the actions of the prosecutor in firstly, resisting the grant of leave and secondly, testing the evidence of Mr Cianfrano put forward so that the Court could be satisfied that it was appropriate to grant leave were justified.
I grant leave for the defendant, Robert Cianfrano, to change the plea of guilty entered on 11 March 2003 to a plea of not guilty and I accept that plea.
The question now arises as to how the proceedings should be conducted from here on in. Firstly, it is obvious that Mr Cianfrano is seeking to rely upon scientific evidence which at this stage, as far as I can gather, is not in a form which can be presented to the Court. Nevertheless, being expert evidence, it is appropriate for that evidence to be filed and served rather than the prosecutor and the Court being in a position where it is faced with the problem of dealing with expert evidence and seeking to reply to it or to understand it without there being a proper opportunity to do so.
Part 75 of the Supreme Court Rules incorporated in the proceedings by the Land and Environment Court Rules 1979 deal with pre-trial procedures and in particular with the orders that may be made in regard to particulars of the case.
Mrs Kelly, are you in a position to tell the Court whether or not there are persons who have made statements in writing but who it is expected will not be called?
KELLY: No your Honour.

HIS HONOUR: I do not need to make a direction in that respect?

KELLY: Every person from whom a statement or whatever has been taken is now on evidence in affidavit.
HIS HONOUR: That is the first thing that I wanted to check. Rule 11(4), “The giving by the plaintiff to the defendant a list of documents or things which it is expected will be tendered in evidence at the trial”. Is there a bundle of documents of that category been prepared?
KELLY: As I understand it your Honour and I am not involved in the main carriage of the matter because it was a plea of guilty--

HIS HONOUR: Nevertheless you can only operate on your instructions at this stage and I may not be able to deal with it if you have not got those instructions.

KELLY: My instructions are, as I understand it, that all the documents the EPA wishes to rely on are annexed or exhibited to affidavits.
HIS HONOUR: But if they are exhibited they are not produced.
KELLY: Your Honour we have to check but my instructing solicitor’s recollection, without being bound by it, is that the only exhibit there was, was a video, a copy of which has been given to Mr Cianfrano. In terms of documents there are no documents as exhibits which have not been given to him but if there are exhibits that have not been given to him we will certainly give them to him.
HIS HONOUR: I am going to proceed on the basis that there are no documents which are outstanding so that I do not need to make a direction upon it. Mr Cianfrano therefore can proceed at this stage on the basis that the affidavit evidence is the whole of the evidence taken from witnesses upon whom the EPA relies and further than that it covers any statements made in the course of investigations by EPA officers. It also covers, one way or another, any of the documents upon which the EPA proposes to rely. I note the undertaking that, if that is not the case, it will be remedied forthwith. Accordingly, I will not make any direction in that respect.
Mr Cianfrano, the position is that the EPA is not going to use any evidence about which you do not know, that is the first step. The second step is that you seem still to be in a dilemma about some documents that you wish to see and which have not been produced. The FOI course that you are taking may well make you aware of documents which may then give you the opportunity to issue a subpoena which identifies the particular documents and therefore may overcome the “too wide” problem because you can then say in the subpoena a particular document dated 14 June 2001 from Fred to Bill, as it were, if you find it out in that FOI course.
On the other hand, it may be, and I suggest with the benefit of legal advice, that does not mean you have got to engage someone for the whole trial but it may well be that you might take the benefit of some legal advice, pro bono or otherwise, on the drafting of a subpoena which may be sufficiently specific to enable firstly, the EPA to understand what you are looking for and secondly, relates to matters which can be properly the subject of a subpoena. Equally, a notice to produce may achieve the same objective.
It is not my position, nor is it the EPA’s position, to draft subpoenas for you. The only time that the Court will get involved is if a subpoena is called upon and there is an objection. The Court will rule whether or not the subpoena should be, either in whole or part, set aside. Even then the Court is not going to re-draft the subpoena for you. It would not have done that on the last occasion. All it might have done is struck it out or allowed it to go through after argument. At this stage the Court cannot assist you with the drafting of your subpoena.
What I propose to do nevertheless is to appoint a date for return of subpoenas so that, to use a colloquialism, you have got to get your act together in that regard and either decide whether you have another go at drafting it yourself, which may not be the best course of action, or whether you get the local solicitor up where you live to draft a subpoena or some barrister that you find by going down to the Registry or referring to Mrs Kelly who may assist you to find a barrister to act pro bono.
It may be that the cost of drafting a subpoena is not something that is beyond your means. They are the various choices that you might have. Beyond that I cannot go. However, today is 4 June 2003, I am going to direct that any subpoenas be returnable before the Registrar at 9:00am on 4 July 2003.
KELLY: Could your Honour just perhaps make it clear, if it is your intention, that it should be subpoenas to whoever it is that Mr Cianfrano wishes to get documents?

HIS HONOUR: Whoever, not just the EPA. If you have got Fred down the road or whatever and you want some documents from him or you want it from some other body, say the Land and Water Conservation Commissioner or somebody else then that is the day that the subpoenas have got to be returnable. That will mean you will issue a subpoena and it will be returnable on that day whoever it is against, not just the EPA. Now that is giving you a full month to get that act together. That will then presumably bring matters to a head.
I direct further, Mr Cianfrano, that by a date, that we will discuss in a moment, you are required to file and serve the statements of evidence from experts upon which you rely. Here again we are going to run into the snag of you paying for it, here again we are going to run into the snag of these people completing their reports and here again we are going to run into the snag of these people being prepared to give evidence. However, there has got to be an end to it somewhere. I am going to recognise that documents required on subpoena - one or other of your experts may require that he or she wants to see what is kept by the Department of Agriculture - for goodness sake do not think I am suggesting that you go to all these places - or from Bathurst Council or somebody, before the report can be completed, I am going to make an allowance for that.
I am going to therefore require that your experts’ statements upon which you rely be filed and served by 31 July 2003. I am being pretty generous to you here Mr Cianfrano but that will allow you to get these FOI’s and everything else that is going on in your head out of the way.
DEFENDANT: Thank you your Honour.
HIS HONOUR: I will then bring the matter back before me for directions and setting down for hearing on 7 August 2003 at 9.30am. This has all gone on long enough. In those directions, in terms of the way these cases are run in this Court, a very generous allowance is given to you. It takes account of the fact that you are ostensibly on your own and that it may take you a little more time to put things together but Mrs Kelly will tell you that the Court does not normally allow such an expansive program. So no doubt your diligence will result in those directions being complied with.
DEFENDANT: Yes your Honour.
HIS HONOUR: Then when we come back on that day in August the purpose will be to determine how long the case is going to take and to set it down for hearing. Short of some unforeseen circumstance that is what will happen on that day. If you have not got your experts in for some reason or other it may still be set down notwithstanding that because cases take several months to get on anyway. You have been given an indulgence today and the directions that I have given are designed to make sure that this case now proceeds in an orderly fashion. I encourage you again to try and go down the pro bono route even if it is for the purpose of getting advice from time to time about this and that such as, as I said a moment ago, drawing subpoenas. Mrs Kelly, if I make those directions is there anything you want to put to me before I do?
KELLY: Your Honour the only matter I would - it is clear to me but I just wanted to make sure, unless I am wrong, your Honour made a comment which was not particularly in point to the directions that you made about the FOI proceedings and they can go on, et cetera. My understanding was that your Honour is making it quite clear that the FOI applications and proceedings have got nothing to do with this.
HIS HONOUR: Nothing to do with this Court.
KELLY: And regardless of what happens there he can keep making FOI applications till the sun--
HIS HONOUR: That is right, you can make them forever but they are not going to persuade me that there is any reason for deferring anything. The FOI process goes nowhere in terms of proving anything for this case. If you want to prove things and have documents produced that you consider to be relevant then it has got to be done with the processes of this Court. I am not confident the FOI process will do anything but prove maybe interesting or, alternatively, might turn up a document or two or three or a hundred that you want to subpoena but they will not get them here, that will not get them here in such a way that you can deal with them. Mrs Kelly is quite right, I have not heard anything that changes my view about the utility of the FOI procedures that you are undertaking in terms of preparing in a formal way for this trial. So pursue it if you like.
DEFENDANT: I will endeavour to use the subpoenas your Honour.
HIS HONOUR: That is a matter for you. I am not saying don’t use the FOI process, I am just warning you that do not come back to me on that day in August and say “but the FOI process is still going on”, because I am unlikely, unless I get some further material that I have not got before me now, to see that that is terribly relevant to anything I have got to do.

[2003] NSWLEC 169

9 July 2003