Fletcher v Byron Shire Council - [2010] NSWLEC 185

Land and Environment Court

of New South Wales

CITATION: Fletcher v Byron Shire Council [2010] NSWLEC 185

PARTIES:
APPELLANT:
Michael Hume Fletcher
RESPONDENT:
Byron Shire Council

FILE NUMBER(S): 60003; 60004 of 2010

CORAM: Biscoe J

KEY ISSUES: APPEAL :- appeal against sentence - application for leave to appeal against conviction in Local Court made out of time and refused - appellant allowed to file and serve fresh evidence.

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001, ss 32, 33, 64

CASES CITED: Lin v Fairfield City Council [2007] NSWLEC 568, 159 LGERA 264

DATES OF HEARING: 24 September 2010

EX TEMPORE JUDGMENT DATE: 24 September 2010

LEGAL REPRESENTATIVES: APPELLANT:
Mr M Fletcher (in person)
SOLICITORS:
n/a

RESPONDENT:
Mr T March
SOLICITORS:
HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 September 2010

60003 and 60004 of 2010

FLETCHER v BYRON SHIRE COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion filed on 24 September 2010 by the appellant, Mr Michael Fletcher, who is self-represented, that the Court (a) grant him leave to appeal against his conviction in the Local Court in his appeal 60004 of 2010 (the trees matter) and (b) to allow him to adduce fresh evidence in both that appeal and in his appeal 60003 of 2010 (the waste matter).

2 The two appeals are unrelated, although they concern offences that occurred on the same land.

3 In the Local Court Mr Fletcher pleaded guilty in the trees matter and not guilty in the waste matter. He was convicted and sentenced in relation to both matters on 9 February 2010.

4 The appeal in the waste matter is against conviction and sentence. The appeal in the trees matter is against sentence.

LEAVE TO APPEAL AGAINST CONVICTION IN TREES MATTER

5 Mr Fletcher seeks leave to appeal against conviction in the trees matter, notwithstanding that he pleaded guilty in the Local Court.

6 In my opinion the Court does not have power to grant Mr Fletcher leave to appeal against conviction because of the time bars in the Crimes (Appeal and Review) Act 2001 ss 32 and 33 which relevantly provide:

“ 32 Appeals requiring leave

(i) within 28 days after sentence is imposed, or

…

33 Late applications for leave to appeal

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.

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Details

Case: [2010] NSWLEC 185
Decision Date: 24 September 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Michael Hume Fletcher, the appellant, filed a notice of motion seeking leave to appeal against his conviction and sentence in two matters against the Byron Shire Council, the respondent. The first matter, identified as the trees matter, involved an appeal against sentence only, while the second matter, the waste matter, involved an appeal against both conviction and sentence. Both matters pertained to offences that occurred on the same land but were deemed unrelated. The Local Court had convicted and sentenced Fletcher on 9 February 2010, after he pleaded guilty in the trees matter and not guilty in the waste matter.

The primary legal issues before the court were whether Fletcher could appeal against his conviction in the trees matter, which he had pleaded guilty to in the Local Court, and whether he could file and serve fresh evidence in both appeals. The court had to consider statutory provisions under the Crimes (Appeal and Review) Act 2001, which imposed specific time limits for making applications for leave to appeal. The court also had to determine whether Fletcher's attempts to commence proceedings in the Federal Court could excuse his failure to comply with the court's directions to file and serve additional evidence within specified times.

The court held that Fletcher could not appeal against his conviction in the trees matter as the statutory time limits under sections 32 and 33 of the Act had expired. The court found that section 64 of the Act, which allowed an appeal court to hear appeals in respect of other convictions made on the same day, did not apply to unrelated matters. Therefore, the application for leave to appeal against conviction was dismissed. However, the court granted Fletcher an extension until 8 October 2010 to file and serve any additional evidence he intended to rely upon in both appeals, despite his failure to comply with previous court directions. The court emphasised that the respondent would have an opportunity to consider the new evidence and potentially apply to the court regarding its admissibility. Both appeals were listed for further directions on 15 October 2010.

The court issued orders dismissing the appellant's notice of motion concerning leave to appeal against conviction in the trees matter, allowing the appellant to file and serve fresh evidence by 8 October 2010, and setting a date for further directions on 15 October 2010. The respondent was required to file and serve any notice of motion concerning the appellant’s proposed additional evidence by 12 October 2010.

Orders