Director of Public Prosecutions v Kitanovski (Ruling No. 1)

[2018] VCC 2267

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-17-00510

DIRECTOR OF PUBLIC PROSECUTIONS

v

MENDO KITANOVSKI

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JUDGE:	His Honour Judge Johns
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2018
DATE OF RULING:	17 December 2018
CASE MAY BE CITED AS:	DPP v Kitanovski (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2018] VCC 2267

REASONS FOR RULING
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Subject:  Criminal law ruling      
Catchwords:            Change of plea application
Legislation Cited:     
Cases Cited:            
Ruling:  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Russell	Office of Public Prosecutions
The Accused was not represented

HIS HONOUR:

1.The applicant Mr Mendo Kitanovski seeks leave to withdraw his plea to indictment No.G12385663 alleging his contravention of the requirement of clean-up notices without reasonable cause, contrary to s.62A(3) of the Environment Protection Act 1970. The applicant's entry of a plea of guilty to the charge on 12 December 2017 is sought to be withdrawn on various basis. Most prominent of which are:

(1), the plea did not reflect a genuine acknowledgement of guilt of the elements of the offence;

(2), the plea was entered based on a misunderstanding of what the applicant was pleading guilty to, and in particular, the terms of any plea agreement. 

2.To paraphrase the applicant, he stated in his evidence he had a belief that he was pleading to an apple, but in fact it was an orange.  He stated that the plea was entered under pressure and in oppressive circumstances; he submitted that he could not, as a matter of law be convicted of the charge. Double jeopardy was also raised – it was common ground that the applicant had been prosecuted pursuant to Council by-laws in respect of the deposits on his land, prior to being charged.  Much of the evidence elicited by the applicant during the change of plea application, related to the standard required of a clean-up.  As stated during the application, this was a peripheral issue at best and not one which tended to undermine the integrity of the plea entered on 12 December 2017. 

Background 

3.The applicant is the occupier of the premises at 267-703 Plumpton Road, Plumpton.  The premises are described as semi-rural and consist of two adjacent paddocks.  The applicant's residence is located in a small fenced-off area at the premises.  It is alleged that during the period 27 April 2012 and 19 February 2014, the applicant permitted the deposit of industrial waste at his premises.  The waste is alleged to be industrial waste as it arose from commercial industrial or trade activities.  On 27 April 2012, Environment Protection Authority authorised officers attended the premises and observed multiple large piles of soil in various locations. 

4.It was concluded this was industrial waste, on the basis that the soil contained concrete, brick and timber appearing to come from construction or demolition sites.  The applicant was in attendance when the EPA officers inspected the premises.  The applicant indicated to the EPA officers that he had been provided with some documentation from the drivers of trucks who had left the waste at the premises.  On 8 May 2012, EPA officers attended again at the premises and served a minor works pollution abatement notice, requiring the applicant to cease accepting industrial waste at the premises. 

5.On 27 June 2017, EPA officers re-attended the site and observed additional piles of soil that had been deposited since their last inspection.  These deposits allegedly contained ceramic, PVC pipe, plastic and brick.  The applicant was present during this inspection.

6.On 12 July 2017, a clean-up notice was served upon the applicant which required him to remove all the industrial waste at the premises.  The applicant indicated to the EPA officers on that occasion that he would remove the offending material once the ground was dry enough to permit machinery to enter and be used. 

7.Despite the service of this clean-up notice, it is alleged and in fact admitted, that the applicant continued to permit trucks to enter and make deposits at the premises.  What is in contention by the applicant is whether what was deposited, is industrial waste.  On 20 November 2017, EPA officers observed in excess of 30 large truck movements entering and exiting the applicant's premises.  The applicant was present at the premises when the EPA officers attended after making their observations.  The EPA officers observed that piles of soil in the southern paddock had increased since the previous visit and there was waste included in some of the new piles. 

8.On 7 December 2017, EPA officers attended and served upon the applicant a notice of contravention for failure to comply with the minor works pollution abatement notice.  On this occasion the EPA officers observed a truck entering the premises and driving towards the tipping area and they intervened.

9.On 2 May 2013, a new clean-up notice was served upon the applicant, requiring him to stop accepting waste at the premises and for all current waste at three separate and specified locations within the premises, to be removed from the premises by 1 November 2013.  On this occasion, trucks were observed arriving and were sent away without depositing their loads. 

10.On 1 August 2013, EPA officers attended the premises to check the progress of compliance with clean-up notices issued on 2 May 2013.  There was some evidence of an attempt to move some of the waste and it was observed that two workers were sorting through some rubble.  However, it was also observed that the majority of the waste still remained at the premises.  The applicant stated on that occasion, that two loads of waste had been removed. 

11.A further clean-up notice dated 26 September 2013 was served on the applicant, to deal with the further waste observed during the inspection on 1 August 2013.  That clean-up notice required the waste to be removed by 3 February 2014, which was considered to be an adequate time to comply with the Notice.  Officers attended again on 8 November 2013 to ascertain compliance with the Notice issued on 2 May 2013.  They observed various piles of soil containing metal, concrete, tiles, plastic, timber, brick and asphalt. 

12.EPA officers attended again on 19 February 2014 to ascertain compliance with the second clean-up notice, which related to a specific area in the premises.  It was concluded by then that the area contained minimal construction waste, but still contained the PVC piping, concrete and brick.  The applicant was interviewed in relation to contravening the clean-up notices.  He had made admissions to having received loads of soil from November 2011.  He also admitted to having been paid $5.50 per cubic metre for loads deposited. 

13.Charges were filed in the matter on 3 August 2016.  The matter proceeded in the summary stream at Sunshine Magistrates' Court and was set down for a contest mention on 2 December 2016.  The applicant did not consent to summary jurisdiction and the matter proceeded to a filing hearing at the Melbourne Magistrates' Court.  On 16 March 2017, the applicant indicated he would seek a sentencing indication.  The court advised that he would only be able to receive a sentencing indication if the matter was remitted to the summary stream. The applicant declined to have the matter remitted and proceeded by way of straight hand-up brief to be committed to the County Court.

14.A directions hearing was set down at the County Court for 15 June 2017.

15.On 9 June 2017, a meeting took place between the OPP, counsel and the applicant, who was then unrepresented, at the OPP's request.  An offer of settlement was made to the applicant that he could plead guilty to one charge, only if he were to clean-up the premises.  The applicant indicated by email, dated 13 June 2017, that he was considering the offer.

16.

Funding mentions relating to possible legal representation took place in the County Court on 15 June 2017, 16 August 2017, 6 September 2017,

27 September 2017, 25 October 2017 and 8 November 2017.  At the mention on 8 November 2017, Dr Alexander represented the applicant, instructed by Deakin Law Clinic.  Dr Alexander indicated to the court that the matter was likely to settle.

17.

On 29 November 2017, a settlement offer was made by the applicant's representatives.  At a final directions hearing on 1 December 2012, it was again indicated the matter was likely to resolve. On

8 December 2017, the applicant's representative sent a letter to the OPP indicating that the matter had resolved and requesting a six-month adjournment for plea in order to complete the clean-up.

18.On 12 December, the current indictment was filed and the applicant entered a plea of guilty before Her Honour Judge Hannan.  The matter was adjourned for a plea hearing on 10 May 2018.  As part of the settlement, the prosecution indicated that they would take a lenient approach to disposition if the premises were cleaned up by the plea date, and I refer to the transcript from that hearing.

19.Between December and early May, there were several correspondences relating to the requirements of cleaning up and the prospect of inspection by the EPA before the plea hearing.  On 30 April, by email, the applicant through his solicitors requested the consent of the OPP for an adjournment of the plea.  On 1 May, the inspection took place, revealing an inadequate clean-up as far as the prosecution are concerned.

20.

On 2 May, the prosecution indicated they would oppose the adjournment application.  On 10 May, the applicant was represented at his plea hearing by

Mr Antos of counsel, instructed by Deakin Law Clinic. 

An adjournment of the hearing was sought by the applicant's counsel.

21.When the adjournment was refused, the applicant terminated his instruction of his solicitors and counsel, and indicated he wished to change his plea to not guilty.  The applicant gave evidence before Judge Higham on 10 May as to his wish to change his plea and his reason for doing so.

22.The applicant stated - and again, I paraphrase - that pressure was applied by the prosecution to him prior to his entry of a plea of guilty.  He said he made a choice to plead guilty on the presumption of what the prosecution "offered me".

23.On 14 May, the applicant persisted with his change of plea application, represented by a new solicitor.  He raised a reason for changing his plea as being poor advice from his previous solicitors regarding sourcing an expert report.  The applicant filed submissions in support of his application on 22 June.  He filed an affidavit in support dated 27 June 2018. 

24.The application proceeded before me on 10 December 2018.  The following materials were before me as part of the hearing of the application on 10 December 2018:  affidavit of Mendo Kitanovski, dated 3 May 2018, affidavit of Mendo Kitanovski, dated 27 June 2018, Mr Kitanovski's outline of submissions, dated 18 May 2018, affidavit of Dr Theo Alexander, dated 27 June 2018, together with exhibits, affidavit of Tass Antos and exhibits, affidavit of Rebecca Tisdale and exhibits, affidavit of Carol Toop and exhibits.

25.Evidence was led on the application from Mr Kitanovski's previous legal team.  The prosecution called the witnesses Dr Alexander, Tass Antos and Rebecca Tisdale; however, this was done for Mr Kitanovski's convenience and it was Mr Kitanovski who elicited material from each of them.

26.They were each impressive witnesses.  Their evidence was supported by the emails, letters and file notes attached to their affidavits.  The key facts established by their evidence in combination with the exhibited documents can be summarised:

27.Dr Alexander engaged in careful analysis and research of Mr Kitanovski's matter with the assistance of the legal team at Deakin Law Clinic.  Mr Kitanovski was reluctant to plead guilty.  Dr Alexander was of the view that Mr Kitanovski felt he was not guilty and wanted to fight the matter.

28.Despite Mr Kitanovski's instincts and reluctance, he made a considered choice to plead guilty.  He did so largely on the basis of a deal that he understood to involve the roll-up of two charges into one, the dropping of a third charge, and the prosecution concession of perhaps a good behaviour bond being available if the land was cleaned up to their satisfaction.

29.Detailed written advice was provided to Mr Kitanovski setting out his case and the issues he had raised, including the issue of whether lawful entry was made by the EPA officers which was an issue Mr Kitanovski continues to agitate.

30.

Mr Kitanovski understood the nature of the charge, the elements of the charge, and the effect of his plea.  He pleaded guilty in this court on 12 December 2017.  He was represented at arraignment by Dr Alexander. 

At arraignment, Mr Russell appeared for the prosecution.  The plea date of 10 May was set in order to provide ample time for clean-up.  Mr Russell foreshadowed to the court the prosecution's lenient approach to sentencing should clean-up be effective.

31.Subsequent to the entry of Mr Kitanovski's plea, in either late December or January, Dr Alexander stated that some of the legal team were invited to Mr Kitanovski's premises for what was described as an "excellent lunch" and to observe what needed to be cleaned up and/or the state of the clean-up to date.

32.Dr Alexander was aware that Mr Kitanovski was concerned about a term of the plea settlement, which referred to the removal of “all” waste rather than clean-up to a “reasonable standard”.

33.Much of the discussion and evidence on this application focussed on this discrepancy.  In short, in my view, this is a distinction without a difference.  The consistent legal advice Mr Kitanovski had was that “all” could be equated with the phrase, "To a reasonable standard."

34.Mr Kitanovski was advised that if there was a dispute about the clean-up, he could obtain an expert report and/or submissions could be made on his plea.

35.Solicitor Rebecca Tisdale gave evidence. Her evidence supported that of Dr Alexander.  It was clear from her evidence that Mr Kitanovski received detailed written advice at all times.

36.Mr Kitanovski's concern about the replacement of “reasonable standard” with the word "all" was something discussed between him and his legal team.  He was given detailed written advice on this issue also.

37.Mr Tass Antos gave evidence.  Mr Kitanovski challenged Mr Antos as to the content of conversations between them on and around 10 May 2018, however, no evidence to the contrary was introduced in the application.

38.It was also put to Mr Antos that Mr Antos did not explain Mr Kitanovski's position adequately during the application for adjournment on 10 May.  In my view, this accusation is not borne out by the transcript.

39.I also digress to observe that the disquiet expressed to me during the application about Judge Higham's unfair treatment is not supported in my view by the hearing transcript.

40.The effect of Mr Antos' evidence confirms the following:  Mr Kitanovski's desire for an adjournment to effect the clean-up.  Mr Kitanovski's pre-occupation with the terms regarding the clean-up.  The fact that the ultimate disposition of the court was a driving force behind Mr Kitanovski's decision to plead guilty. Mr Kitanovski first sought to change his plea only once the adjournment was denied.

41.Mr Kitanovski called a witness, Mr Waddington.  Mr Waddington was apparently present during most of Mr Kitanovski’s legal conferences apparently.  The effect of Mr Waddington's evidence was that Mr Kitanovski at all times was reluctant to plead guilty. However, Mr Waddington also supported the evidence of Dr Alexander and Ms Tisdale.  He gave clear evidence that Mr Kitanovski exercised a free choice to plead guilty based upon the evidence and the advice given, and in no small part, the hope for disposition.

42.Mr Kitanovski gave evidence.  In his evidence, he was fixated on the events of 10 May.  I had endeavoured throughout the hearing to bring Mr Kitanovski's focus to the issue of the integrity of the plea entered on 12 December 2017.  Mr Kitanovski remained fixated on what he sees as an unfair deal.

43.I also took from his evidence that he sees it as potentially impossible to fulfil the clean-up requirement.  I took from his evidence that his principal grievance is that, by 10 May 2018, due to ill health or perhaps some other reasons, perhaps multiple reasons, he was unable to clean-up the property to what he felt would be the required standard.

44.Mr Kitanovski felt that the circumstances on 10 May 2018 were not what he had anticipated they might be when he entered his plea on 12 December 2017.  He made reference to the distinction between an apple and an orange, the effect being, on his evidence, what he pleaded guilty to was not what he ultimately faced on 10 May.

45.Mr Kitanovski expanded on these matters in submissions.  He also addressed me in relation to the issue of whether, as a matter of law, he could be convicted of the charge.  Mr Kitanovski argued that he couldn't be convicted of the charge as a matter of law. This argument had several aspects to it, the first of which was the issue of right of entry.  Mr Kitanovski's argument is that the EPA officers had no lawful right of entry and as such, evidence relating to the inspection and what they have detected at the times of entry could not be relied upon.

46.This is not a matter I need to determine.  This sort of admissibility argument is far from decisive in the context of a change of plea application.  In my view, it would be an error if I strayed into considering whether I would rule the evidence of inspection out of a     hearing if there was a contested hearing.  If the question were unequivocal that the evidence in no circumstances could be relied upon, it would perhaps be different, but it is not unequivocal.

47.The fact Mr Kitanovski may have a viable legal strategy if he was permitted to change his plea, does not amount to a miscarriage of justice occurring if he was held to his plea.  I am fortified in this view by the written legal advice provided to Mr Kitanovski prior to the entry of his plea which dealt with this issue.

48.During the course of the hearing, Mr Kitanovski also tendered the legal advice which he contends is contrary, which deals purely with an interpretation of s.55 of the Act.  On this point, he has not persuaded me on balance that there is a flaw in the case or a flaw in the evidence to the degree that he could not be convicted of the offence as a matter of law.

49.Mr Kitanovski also raised in his written submissions and oral submissions, that there was no proof that this was industrial waste on his land and also the contention that the offence did not apply to private individuals on their own land, not engaged in a commercial enterprise.  He has not persuaded me on balance, that either of these propositions have substance.  To the contrary, the evidence that supports the charge, the affidavit material and Mr Kitanovski’s conduct and admissions provides ample proof of the charge.  And by evidence I refer to the depositions which I have had regard to.

50.Now the legal principles regarding change of plea are important for Mr Kitanovski to understand.  The test to be applied is whether a miscarriage of justice would ensue, if leave was not granted to an accused to withdraw the plea of guilty and enter a plea of not guilty.  The principles derive from the case of The Crown v Middap [1989] 43 A Crim R 362. The test from Middap at p.364 states;

"The only test which is to be applied, is whether a miscarriage of justice in the view of the judge, would occur if the leave sought were denied the applicant.  Each case must be examined on its own particular facts and merits.  And there is no question but that the judge has a discretion, indeed perhaps a wide discretion, to exercise in relation to the matter which must be exercised judicially and having regard to the test, to which I have referred.  It is common ground that the onus of satisfying a judge that a miscarriage of justice would occur if leave was denied, is on the accused or the applicant". 

That is Mr Kitanovski.  In the case of Meissner v R [1995] 184 CLR 132 Justice Dawson said, and this is an important point to remember in Mr Kitanovski’s case,

"It is true that a person may plead guilty upon grounds which extend beyond the 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".

In a case of R v Liberti [1991] 55 ACR 120, at 122, paragraph 121 the court said,

"From these and other cases, it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, it appears, (a) that the appellant did not appreciate the nature of the charges, or did not intend to admit that he was guilty of them; or (b), that the appellant upon the admitted facts, could not in law have been convicted of the offence charged".

51.In Weston v R [2015] VSCA 354, a recent Court of Appeal decision, the applicant sought leave to appeal convictions on the grounds the trial judge erred in rejecting his application to change his plea. He had previously been found guilty by a jury of certain sexual offences. After the verdict he pleaded guilty to five charges on a second Indictment. A few months later he applied to change his plea to not guilty in relation to those five charges.

52.Mr Weston argued that due to the rushed nature of the conference with his legal team and his emotional state, he did not understand the nature of what he was pleading guilty to.  The trial judge did not accept this explanation and found that he made his plea as a result of considered legal advice, over a significant period of time.  In the application for leave to appeal the trial judge's decision, Mr Weston argued that although the court addressed the question of whether his plea was made freely and voluntarily, the question of whether he intended by his plea to admit his guilt, was never addressed. 

53.It was submitted that there was a requirement that the guilty plea was a true admission of guilt.  The Court of Appeal considered whether a factor required to be shown by the applicant in order to vitiate the plea, was that the guilty plea was not attributable to a genuine consciousness of guilt of the offence charged.  Whelan JA and Kaye JA did not find it necessary to decide the point, but doubted that such an unwarranted addition or qualification should be grafted onto the test propounded in Middap. 

54.Justice Redlich, having surveyed a number of authorities and focusing on Kumar No.2, Kumar v R [2014] VSCA 102, made observations as to the distinction between an attempt to withdraw a guilty plea at the time of arraignment, or at any time up to the conviction, as distinct from challenge to the integrity of the plea being raised for the first time on appeal. He opined that the passage in Kumar No.2, as to the requirement that evidence be adduced that the accused did not intend by his plea to accept guilt, for an offence for which he believed himself to be guilty, was confined to a change of plea application prior to conviction.

55.His Honour summarised the propositions which could be drawn from the authorities relevant to circumstances where, as in the case before me, the plea is sought to be withdrawn before conviction.  The basis of a plea on arraignment, is that in open court an accused freely says what he is going to do.  And the law attaches so much importance to a plea of guilty in open court, that no further proof is required of the accused's guilt;

(2), the plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made.  Its significance rests in part upon the high public interest in the finality of legal proceedings;

(3), to permit the withdrawal of a plea of guilty before conviction, or the overturning of a conviction on appeal, where the integrity of the plea has not previously been   challenged, depends upon there being in the court's opinion, a miscarriage of justice if the applicant were to be held to his plea;

(4), the applicant seeking to question the integrity of his plea, whether before or after conviction, bears the onus of establishing such miscarriage;

(5), to impugn the integrity of the plea, whether before or after conviction, the applicant must show an issuable question of guilt and the existence of some circumstance which effects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety, or that it was not offered with a consciousness of guilt.

(6), It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise.  The exercise of the discretion is not to be feted by any preconceptions of limitations arising from the approach taken in a previous decision.

(7), A claim, whether before or after conviction, that circumstances exist which affect the integrity of the plea process must be approached with caution.

(8), Where the integrity of the plea is in issue at the time of the plea, or its challenge before conviction, the position is, as stated in Kumar:  "Where the applicant seeks to alter his plea before conviction and sentence, the judge may entertain that course upon finding a circumstance established that affects the integrity of the plea."

(9), Consistent with the reasoning of the joint judgment in Kumar, even if the plea is free and voluntary, it will also be within a sound exercise of the discretion to allow the applicant to change his plea before conviction and sentence if the applicant established that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage.

(10), It is for the applicant to identify the grounds which it is claimed establish a miscarriage of justice and adduce evidence that persuades the judge such grounds exist.

56.In reviewing the cases cited in argument and other cases relevant to change of plea applications, I conclude that I should refuse the applicant's request for leave to change his plea.

57.In the applicant's case, whilst I have no doubt he did so reluctantly, there is strong evidence that he did so after considering for a lengthy period of time and in the context of receiving high-level legal advice and representation.  His conduct both before his plea and prior to the plea hearing indicate an acceptance that he needed to clean-up the property.

58.

The plea went sour for the applicant when he found the task of clean-up to be too onerous and perhaps resented the oversight of the EPA and the prosecution. He also became dissatisfied with his legal representatives.  In my view, these misgivings do not undermine the integrity of the plea entered on

12 December 2017.

59.I have already indicated my view as to whether the applicant persuaded me that he could not, as a matter of law, be convicted of the charge.  I reject this proposition.  I note his own conduct and implied admissions contradicts their proposition.  In the circumstances, I refuse leave to change the plea.

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