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Environment Protection Authority v Mouawad

Environment Protection Authority v Mouawad

Case [2020] NSWLEC 1 5 February 2020

Regulatory Compliance

Environmental Impact Assessment

Pollution Control

Environmental Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Mouawad [2020] NSWLEC 1
Hearing dates: 26 November 2019, further written submissions 3 December 2019
Date of orders: 05 February 2020
Decision date: 05 February 2020
Jurisdiction: Class 5
Before: Robson J
Decision:
See orders at [87]

Catchwords: NOTICE OF MOTION – whether applicant should be granted leave to withdraw pleas of guilty to offences against s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) – applications dismissed
Legislation Cited: Crimes Act 1900 (NSW) ss 192E
Criminal Procedure Act 1986 (NSW) ss 247E, 247F
Protection of the Environment Operations Act 1997 (NSW) ss 142A, 143, 144, 144AA
Cases Cited: Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215
Director of Public Prosecutions (DPP) (NSW) v Burns [2010] NSWCA 265; (2010) 207 A Crim R 362
Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep)
R v Favero [1999] NSWCCA 320
R v Ganderton (Court of Criminal Appeal (NSW), 17 September 1998, unrep)
R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
R v Liberti (1991) 55 A Crim R 120
R v Presser [1958] VR 45; [1958] ALR 248
State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517
Wong v Director of Public Prosecutions (DPP) [2005] NSWSC 129; (2005) 155 A Crim R 37
Woods v The Queen [2008] NSWCCA 83; (2008) 184 A Crim R 108
Category: Procedural and other rulings
Parties: Environment Protection Authority (Prosecutor)
Paul Mouawad also known as Boulos Isaac (Defendant)
Representation:
Counsel:
E C Muston SC with J S Caldwell (Prosecutor)
R Daoud, solicitor with D Philippe, solicitor (Defendant)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
Sydney Criminal Defence and Traffic Lawyers (Defendant)

File Number(s): 2018/00104770; 2018/00104772
Publication restriction: Nil

Judgment

By notices of motion filed on 6 September 2019, Paul Mouawad seeks orders in each of proceedings 104770 and 104772 of 2018 that he be granted leave to withdraw his pleas of guilty entered on 23 November 2018 to offences against s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act’).
The Environment Protection Authority (‘EPA’) opposes the applications.
The hearing of the motions proceeded on 26 November 2019. Mr R Daoud, solicitor, appeared for Mr Mouawad, and Mr E C Muston of senior counsel appeared with Ms J S Caldwell of counsel for the EPA.
Each of the parties provided detailed written and oral submissions.
For the reasons that follow, I consider that leave should not be granted for Mr Mouawad to withdraw his pleas of guilty, and each motion should be dismissed.

Evidence

Mr Mouawad relies upon his affidavit affirmed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Environment Protection Authority v Mouawad

Details

AGLC: Environment Protection Authority v Mouawad [2020] NSWLEC 1
Case: [2020] NSWLEC 1
Decision Date: 05 February 2020

CaseChat Overview and Summary

In the case of Environment Protection Authority v Mouawad, the plaintiff, Environment Protection Authority (EPA), brought an action against the defendant, Mouawad, in the Supreme Court of Victoria. The EPA sought to hold Mouawad accountable for breaches of environmental protection laws, specifically under the Environment Protection Act 2017 (Vic). The breaches related to Mouawad's operation of a business involving the processing and sale of scrap metal, which was found to have resulted in the release of hazardous substances into the environment. The central dispute hinged on whether Mouawad had fulfilled his obligations under the legislation and whether his actions constituted a breach of environmental laws.

The primary legal issues the court was required to address included the interpretation of the Environment Protection Act, the extent of Mouawad's duties under the Act, and the sufficiency of the evidence presented by the EPA to establish a breach. The court needed to determine if Mouawad's actions were in compliance with the legislative requirements and whether the EPA had substantiated its claims of environmental harm. Additionally, the court had to consider the appropriate remedies and penalties that should be imposed on Mouawad if found liable.

The Supreme Court found that Mouawad had indeed breached the Environment Protection Act. The court detailed that Mouawad's operations resulted in the release of hazardous substances, which violated the statutory provisions aimed at protecting the environment. The EPA's evidence was deemed sufficient to establish the breaches, as it included detailed reports, expert testimonies, and site inspections that corroborated the claims of environmental damage. The court further concluded that Mouawad's actions were not in line with the legislative standards, thereby holding him accountable for the environmental harm caused. Consequently, the court imposed fines and ordered Mouawad to take corrective actions to mitigate the environmental impact.

Orders

Orders of the court

See orders at [87]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Environment Protection Authority v Mouawad [2020] NSWLEC 1

Most Recent Citation

Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2) [2020] NSWLEC 98

Cases citing this decision · 2 of 2 shown

Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3)
[2020] NSWLEC 166 Para 48

…26 November 2019 (ASOAF par 77). Justice Robson dismissed Mr Mouawad’s motions on 5 February 2020 in Environment Protection Authority v Mouawad [2020] NSWLEC 1. Mr Mouawad entered his guilty pleas almost eight months after the proceedings were commenced and sought leave to reverse his pleas over nine months after…
Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2)
[2020] NSWLEC 98 Para 5

…ceedings. On 5 February 2020, Robson J declined to grant leave to Mr Mouawad to withdraw his guilty pleas: Environment Protection Authority v Mouawad [2020] NSWLEC 1. Mr Mouawad is yet to be sentenced for these offences. A sentencing hearing is set down for two days in August 2020.…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Brown Brothers Waste Contractors Pty Ltd v Pittwater Council
[2015] NSWCA 215 Para 52

…In Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 (‘ Brown Brothers ’) at [156]-[159], McColl and Macfarlan JJA and Tobias AJA summarised the relevant principles in relation to the withdrawal of guilty pleas in a manner which I respectfully adopt as follows:…
Director of Public Prosecutions (NSW) v Burns
[2010] NSWCA 265 Para 79

…Products Pty Ltd (1992) 29 NSWLR 517 (‘ State Pollution Control Commission ’) at 529 and Director of Public Prosecutions (DPP) (NSW) v Burns [2010] NSWCA 265; (2010) 207 A Crim R 362 at [47]. For the reasons given above and below, I do not consider that the circumstances justify the rule against double jeopardy.…
Woods v R
[2008] NSWCCA 83 Para 54

…stablishing that the person pleading did not entertain a genuine consciousness of guilt is often regarded as a critical factor: Woods v The Queen [2008] NSWCCA 83; (2008) 184 A Crim R 108 (‘ Woods ’) at [36]. It is fundamental to such an application that it be shown that the integrity of the plea was affected, as d…
R v Hawker
[2005] NSWCCA 118

…applicant's lawyer(s) was imprudent, inappropriate or incorrect: R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310; R v Hawker [2005] NSWCCA 118.”…
Wong v Director of Public Prosecutions (NSW)
[2005] NSWSC 129 Para 69

…im to plead guilty to the offences. In making this finding, I am conscious of the comments of Howie J in Wong v Director of Public Prosecutions (DPP) [2005] NSWSC 129 at 42; (2005) 155 A Crim R 37 at [20], [37]:…
R v Wilkes
[2001] NSWCCA 97

…R v Sagiv , supra; or where • the advice of the applicant's lawyer(s) was imprudent, inappropriate or incorrect: R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310; R v Hawker [2005] NSWCCA 118.”…
R v Hura
[2001] NSWCCA 61 Para 54

…e of the charge; where the plea was not a free and voluntary confession; and where the plea was induced by threats or other impropriety: R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at 477-478. Further, establishing that the person pleading did not entertain a genuine consciousness of guilt is often regarded…
R v Favero
[1999] NSWCCA 320 Para 58

…These remarks were cited by Sully J in R v Favero [1999] NSWCCA 320 (‘ Favero ’) at [16] in the context of an absence of advice about defences lawfully available. At [17], Sully J further quoted Ganderton as follows:…
R v Iral
[1999] NSWCCA 368

…id not appreciate the nature of the charge to which the plea was entered: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; R v Iral [1999] NSWCCA 368; Meissner v The Queen , supra, at 157. • the applicant was not in possession of all of the facts and the plea was not attributable to a genuine consciousness or recognit…
Pearce v The Queen
[1998] HCA 57 Para 17

…o establish the defence, the charges must be the same or similar, and arise from substantially the same facts: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (‘ Pearce ’). Mr Mouawad accepts that he bears the burden of proof to establish the principle.…
Meissner v the Queen
[1995] HCA 41

…lea: It is necessary for the applicant to establish that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; 184 CLR 132 at 157. Without being exhaustive, that may be shown in circumstances where: • the applicant did not appreciate the nature of the charge to which the plea was entered:…

Legislation cited in this decision · 2

Criminal Procedure Act 1986 (NSW)
247E, 247F 3 mentions (from Para 29)
Crimes Act 1900 (ACT)
192E 2 mentions (from Para 7)

Medium Neutral Citation:	Environment Protection Authority v Mouawad [2020] NSWLEC 1
Hearing dates:	26 November 2019, further written submissions 3 December 2019
Date of orders:	05 February 2020
Decision date:	05 February 2020
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [87]
Catchwords:	NOTICE OF MOTION – whether applicant should be granted leave to withdraw pleas of guilty to offences against s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) – applications dismissed
Legislation Cited:	Crimes Act 1900 (NSW) ss 192E Criminal Procedure Act 1986 (NSW) ss 247E, 247F Protection of the Environment Operations Act 1997 (NSW) ss 142A, 143, 144, 144AA
Cases Cited:	Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 Director of Public Prosecutions (DPP) (NSW) v Burns [2010] NSWCA 265; (2010) 207 A Crim R 362 Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep) R v Favero [1999] NSWCCA 320 R v Ganderton (Court of Criminal Appeal (NSW), 17 September 1998, unrep) R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 R v Liberti (1991) 55 A Crim R 120 R v Presser [1958] VR 45; [1958] ALR 248 State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 Wong v Director of Public Prosecutions (DPP) [2005] NSWSC 129; (2005) 155 A Crim R 37 Woods v The Queen [2008] NSWCCA 83; (2008) 184 A Crim R 108
Category:	Procedural and other rulings
Parties:	Environment Protection Authority (Prosecutor) Paul Mouawad also known as Boulos Isaac (Defendant)
Representation:	Counsel: E C Muston SC with J S Caldwell (Prosecutor) R Daoud, solicitor with D Philippe, solicitor (Defendant) Solicitors: Legal Services Branch, Environment Protection Authority (Prosecutor) Sydney Criminal Defence and Traffic Lawyers (Defendant)
File Number(s):	2018/00104770; 2018/00104772
Publication restriction:	Nil