Hardt v Environment Protection Authority
[2007] NSWCCA 338
•12 December 2007
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Hardt v Environment Protection Authority [2007] NSWCCA 338
FILE NUMBER(S):
2007/3255
HEARING DATE(S): 29 November 2007
JUDGMENT DATE: 12 December 2007
PARTIES:
Bernard Hardt - Appellant
Department of Environment & Climate Change (formerly Environment Protection Authority)
JUDGMENT OF: Giles JA Grove J Harrison J
LOWER COURT JURISDICTION: Land and Environment Court
LOWER COURT FILE NUMBER(S): 50066/04
LOWER COURT JUDICIAL OFFICER: Preston CJ
LOWER COURT DATE OF DECISION: 19 July 2006 (Liability); 1 May 2007 (Sentence)
LOWER COURT MEDIUM NEUTRAL CITATION:
Environment Protection Authority v Hardt [2006] NSWLEC 438; Environment Protection Authority v Hardt [2007] NSWLEC 284
COUNSEL:
D C Fitzgibbon - Appellant
D A Buchanan SC - Crown
SOLICITORS:
Daphne Kennedy, Cooranbong, NSW - Appellant
Stephen Garrett, EPA - Respondent
CATCHWORDS:
Environmental offence - permitting land to be used as a waste facility - "permitting" requires awareness of the actions of using the land as a waste facility and failure to exercise a right or power to prevent it - does not require purpose that land be used as a waste facility.
LEGISLATION CITED:
Protection of the Environment Operations Act 1997, Pt 8.2
CASES CITED:
Adelaide Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481;
Broad v Parish (1941) 64 CLR 588;
Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1;
Miller v Williams (1990) 53 SASR 82;
Owen v Willtara Constructions Pty Ltd (1998) 103 LGERA 137;
R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329.
DECISION:
Appeal dismissed. Determination of the Land and Environment Court confirmed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 2007/3255
L & E 50066/04GILES JA
GROVE J
HARRISON JWednesday 12 December 2007
HARDT v ENVIRONMENT PROTECTION AUTHORITY
Judgment
GILES JA: This is an appeal against a conviction and sentence in the Land and Environment Court in the exercise of its Class 5 jurisdiction to hear and dispose of in a summary manner proceedings under Pt 8.2 of the Protection of the Environment Operations Act 1997 (“the Act”) (Land and Environment Court Act 1979, s 21(a)).
The appellant was charged -
“ … that, from about 24 May 2002 and continuing until about 23 May 2003 inclusive at Wyee in the State of New South Wales, he committed an offence against section 144(1) of the Protection of the Environment Operations Act 1997 in that he, being the owner of land that could not lawfully be used as a waste facility, permitted the land to be used as a waste facility.”
After a hearing by Preston CJ in March 2006, on 19 July 2006 his Honour published reasons in which he found beyond reasonable doubt that each of the elements of the offence against s 144(1) of the Act was proved and the appellant was pronounced guilty: Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61. After a further hearing in April 2007, on 1 May 2007 his Honour published reasons in which he formally convicted the appellant and made orders whereby the appellant was fined $12,000, ordered to pay the respondent’s legal costs in the agreed sum of $105,000 and ordered to take specified action to remediate the deposited waste: Environment Protection Authority v Hardt [2007] NSWLEC 284.
The appellant appealed against his conviction and against the order for remediation. He stated twenty three grounds of appeal, twenty as to conviction and three as to sentence. A number of the grounds of appeal were abandoned at the hearing, leaving nine grounds as to conviction and one as to sentence.
The offence
Section 144 of the Act, which has since been amended, provided in 2002-2003 -
“(1)A person who is the owner or occupier of any land that cannot lawfully be used as a waste facility and who permits the land to be used as a waste facility is guilty of an offence.
Maximum penalty:
in the case of a corporation - $250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
in the case of an individual - $120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
(2)In any proceedings for an offence under this section the defendant bears the onus of proving that the land concerned can lawfully be used as a waste facility.”
“Waste facility” was defined in the Dictionary to the Act as -
“any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided by the Regulations).”
It was not suggested that the Regulations made relevant provision.
“Waste” was defined in the Dictionary in wide terms, including -
“(a)any substance (whether solid, liquid, or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment; or
(b)any discarded, rejected, unwanted, surplus or abandoned substance; or
(c)any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale, recycling, processing, recovery or purification by a separate operation by that which produced the substance; or
…
A substance is not precluded from being waste for the purposes of this Act merely because can be reprocessed, re-used or recycled”.
The appellant had owned Lot 72 in DP 755238, known as 327 Manhire Road, Wyee (“the land”), since 1988. In 1994 he was granted development consent for the erection of a “metal dwelling 3 bedrooms inside a metal garage workshop, storage area and dam” in approximately the middle of the land, on conditions which included that an access road be constructed “for the full length of the road reserve from Schofield Road to the property”. Schofield Road was a sealed road to the east of the land. A road reserve ran from it to the eastern boundary of the land; had been gazetted in 1989 and was known as Manhire Road. Manhire Road terminated at the north-eastern corner of the land, and there was no road reserve on the land.
By arrangement with the appellant, materials were deposited on the land in order to bridge across a gully so as to provide road access to the improvements for which development consent had been granted. The bridging was extensive; the filled area was about 300 m long and up to 33 m wide. It was not on the road reserve referred to in the condition, being within the land. The materials were deposited by Skip the Tip, the business of Derwin Waste Management Solutions Pty Ltd, and by another business identified as East Coast Demolitions. They were waste within the definition, and the judge said -
“5 The fill comprised a large variety of waste materials, including oil containers, bottles, batteries, sheeting, pipes, metal, plastic, fibrosheeting, bricks, cut vegetation, building timber, car bodies and municipal wastes such as household rubbish, old toys, food waste and wrappers. Parts of the cleared area had been covered with a layer of clay. The nature of the materials, the large quantities disposed of and the method of disposal on the land were consistent with the use of the land as a waste facility.”
The judge’s decisions
The judge noted as the elements of the offence that the defendant was the owner or occupier of land, that the land could not lawfully be used as a waste facility and that the defendant permitted the land to be used as a waste facility. The first element was not in contest.
As to the second element, the judge found that the land could not lawfully be used as a waste facility on alternative grounds. One was that a licence to use it as a waste facility was required under the Act, and a licence had not been granted. The other was that “cannot lawfully be used” in s 144(1) extended to lawfulness of use under other statutes, that development consent for use of the land as a waste facility, alternatively for landfill, was required under the Environmental Planning and Assessment Act 1979, and development consent had not been granted.
As to the third element, the judge said that the evidence established that the appellant intentionally allowed waste to be brought onto and disposed of on the land. His Honour noted the competing submissions. The respondent submitted that “permits” in s 144(1) did not require proof that the defendant intended to use the land for the purpose of a waste facility and that it was sufficient to establish that the defendant allowed the physical actions which constituted a waste facility such as the disposal of waste on the land. The appellant submitted that “permits” required not only that the defendant allowed the physical actions but also that the defendant intended that the carrying out of the physical actions on the land be for the purpose of a waste facility, and that such an intention had not been proved.
The judge held -
“106 In my opinion, the prosecutor’s submissions on the mental element of “permits” in s 144(1) of the Act are to be preferred over the defendant’s submissions. On a proper construction of s 144(1) of the Act, the mental element of permitting operates only on the physical actions of storage, treatment, processing, sorting or disposal of waste that constitute use as a waste facility. The mental element will be established on proof by the prosecutor to the requisite criminal standard of beyond reasonable doubt that the accused intentionally allowed the land, in respect of which the accused is the owner or occupier, to be used for the storage, treatment, reprocessing, sorting or disposal of waste. The concept of permitting does not import a further requirement that the accused has intentionally allowed that land to be used for the purpose of a waste facility.
107 In Blacktown City Council v Pace (2002) 121 LGERA 432 at 438 [20], Pain J rejected the same argument. Pain J held:
‘The prosecutor is not required to demonstrate the purpose of the use of the land was as a waste facility…, only that in the circumstances there was such a use.’
I agree.
108 In this case, all the prosecutor is required to establish is that the defendant intentionally allowed the land to be used for, relevantly, the disposal of waste. The defendant’s motive, such as to create a foundation of fill upon which to construct an access road, is legally irrelevant to the element of the offence of permitting the use of the land as a waste facility. Factually, however, it provides evidence from which the element of permitting the use as a waste facility, in the sense of intentionally allowing the disposal of waste on the land, can be established.
109 I find the evidence establishes beyond reasonable doubt that the defendant permitted waste to be disposed of on the land and hence permitted the use of the land as a waste facility.”
The judge finally considered the appellant’s submission that there was available to him the defence of honest and reasonable mistake, and that he had made it out in that he believed that he was allowing the construction of an access road on the land. The judge held -
“111 The prosecutor submits that the belief held by the defendant cannot amount to a defence of honest and reasonable mistake for four reasons: first, any such belief of the defendant does not make the defendant’s actions innocent, secondly, the belief of the defendant is as to a matter of law not fact, thirdly, the defendant did not have a positive belief, not that he was building a road (which does not by itself suffice) but that he was not permitting a set of facts to exist which amounted to his land being used as a “waste facility” under the Act and, fourthly, even if the defendant had such a positive belief, it was not reasonable.
112 I reject the defence of honest and reasonable mistake, for the reasons given by the prosecutor.
113 First, the defence of honest and reasonable mistake lies where the defendant has an honest and reasonable belief in a state of facts, which, if they existed, would make the defendant’s act innocent and afford an excuse for doing what would otherwise be an offence: Proudman v Dayman (1941) 67 CLR 536 at 540.
114 If the mental element of permitting in s 144(1) of the Act is limited to intentionally allowing the physical actions of storage, treatment, reprocessing, sorting or disposal of waste on the land and does not import any requirement of intentionally allowing the land to be used for the purpose of a waste facility (as I have held above), then the holding by the defendant of a belief that the land was to be used, not for the purpose of a waste facility, but rather for another purpose of construction of a road, must be legally irrelevant. The holding of that belief, even if held honestly and reasonably, does not create a state of affairs which, if true, would make the defendant’s act innocent. The belief is extraneous to the mental element of the offence.
115 Secondly, any belief that the Act imported a requirement of intentionally allowing the land to be used for the purpose of a waste facility would be one of law not fact. The defence of honest and reasonable mistake is not available for a mistake of law: Von Lieven v Stewart (1990) 21 NSWLR 52 at 66; State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 724.
116 Thirdly, the evidence does not establish that the defendant, turning his mind to facts that relate to the elements of the offence against s 144(1), formed a positive belief in a set of facts which would, if true, have amounted to him not using his land as a waste facility. Absent such a positive belief, the defence of honest and reasonable belief cannot be made out: State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 725-726.
117 Fourthly, having regard to the character, extent and other features of the use (notably, the nature, extent and volume of the waste disposed of and the methods of disposal on the land) any belief of the defendant that the land was not being used as a waste facility could not be seen to be reasonable: State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 726.
118 Accordingly, I reject the defence of honest and reasonable mistake in this case.”
It is not necessary for the sole ground of appeal to describe the judge’s reasons for the orders made on sentencing the appellant.
The presentation of the appeal
As I have said, the appellant stated twenty-three grounds of appeal. Their introductory words were not auspicious, being that the appellant “says that the action brought by the Prosecution contravenes the basic principles of Criminal Law in the following ways … ”. The grounds of appeal should have been directed to the appellant’s conviction and his sentence, not to “the action brought by the Prosecution”.
The grounds of appeal were difficult to understand. Rule 23C of the Criminal Appeal Rules requires that a notice of appeal be accompanied by written submissions in support of the appeal. The written submissions filed for the appellant, signed by his counsel, did little more than repeat the grounds of appeal, occasionally giving a reference to a statute or reported decision or adding a sentence or two which provided little enlightenment. Of the ten grounds of appeal which were maintained, only for two was there anything additional, and it provided no enlightenment. Compliance with r 23C is of great importance in enabling the respondent to an appeal to meet the appellant’s grounds of appeal, and enabling the Court to understand the appellant’s complaints in order to determine the appeal. The appellant’s submissions did not comply with the rule, and did not serve either purpose.
The respondent filed extensive written submissions, seventy pages in all, explaining the proceedings and endeavouring to meet the grounds of appeal. The appellant filed submissions in reply. They compounded the difficulty with the grounds of appeal.
The grounds of appeal maintained by the appellant are set out later in these reasons. Of the grounds of appeal which were abandoned, grounds 1 and 2 were the subject of oral submissions and were then abandoned. Counsel for the appellant was invited to reconsider over the luncheon adjournment which of the remaining grounds he wished to maintain, which brought abandonment of further grounds. Appreciating that the abandoned grounds other than grounds 1 and 2 had not been the subject of oral submissions, in my opinion all appeared to be fundamentally misconceived either in law or in their availability as grounds for challenging the appellant’s conviction or sentence, or both.
The hearing of the appeal was marked by inability on the part of counsel for the appellant to present structured or reasoned submissions to assist the Court to understand the grounds of appeal and to appreciate their relevance to the conviction or sentence and their merits. Time and again it was necessary to draw counsel back to the ground or grounds of appeal which he had been addressing, and to invite counsel to explain how the ground of appeal bore upon the conviction or sentence and why it should be upheld. This was largely a futile endeavour.
The unsatisfactory presentation of the appeal does not relieve the Court from its obligation to determine the appeal according to law.
Grounds of appeal 10, 11 and 12
These grounds of appeal can conveniently be dealt with together. They were -
“10.Section 144 of the Protection of the Environment Operations Act 1997, as found by the Chief Justice of the Land and Environment Court in this case to be ‘an offence of strict liability’ not requiring ‘mens rea’ and without the normal safeguards of common law and statute to those charged with criminal offences is beyond power and ultra vires.
11.The Appellant says that it was an error of law as found in the judgment of 19th July 2006 by Chief Justice Preston that the word ‘permits’ in Section 144 of the Protection of the Environment Operations Act 1997 does not require intention.
12.The Appellant says that it was an error of law to find that the Appellant, by permitting the disposal and/or storage and/or sorting of the ‘waste’ on the land. The Appellant, therefore, had the requisite ‘intention’ for a finding of guilt beyond reasonable doubt. The evidence establishes only one intention by the Appellant, namely that of the use of part of the premises to build a road. Therefore it is submitted his Honour erred in rejecting the defence of ‘Honest and reasonable mistake’.
These grounds were concerned with the third element of the offence and the defence of honest and reasonable mistake.
Ground 10 was abandoned so far as it asserted that s 144 was beyond power and ultra vires. What that left of the ground was not intelligibly explained. The judge did not find that s 144 was an offence of strict liability not requiring mens rea. Nor did the judge find, as ground 11 asserted, that “permits” in s 144(1) does not require intention.
Within ground 12 there appear to be two separate assertions. Treating the first two sentences as intended to be read as one, the first is that the judge erred in law in holding that “permits” in s 144(1) was satisfied if the defendant intentionally allowed the land to be used for the storage, treatment, reprocessing, sorting or disposal of waste. The second is that the judge erred in rejecting the defence of honest and reasonable mistake, it seems because as a matter of fact the evidence established the sole intention on the appellant’s part of providing road access.
(a) “Permits” in s 144(1)
The appellant’s submissions did not enable a better understanding of the ground. “Permits” plainly has a mental element. Permitting something requires awareness of it and failure to exercise a right or power to prevent it: R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329 at [22]-[34]. In that case Mason P cited at [32] from the judgment of Knox CJ in Adelaide Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 at 487, where in holding that the Corporation permitted the use of a hall for the performance of a copyright work the Chief Justice said -
“I agree with the learned Judges of the Supreme Court in thinking that indifference or omission is "permission" within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done; (2) has the power to prevent it; (3) makes default in some duty of control or interference arising under the circumstances of the case; and (4) thereby fails to prevent it. This statement of the legal position was not challenged in argument before this court.”
See also the judgment of Isaacs J in Adelaide Corporation v Australasian Performing Rights Association Ltd at 490-1 to the same effect and the joint judgment of Gavan Duffy and Starke JJ at 505.
It appears that the appellant wished to maintain the submission made on his behalf at the trial, that it was necessary that the carrying out of the physical actions of storage, treatment, processing, sorting or disposal of waste was for the purpose of a waste facility. Another way of putting that submission, perhaps a preferable way because it better accords with the language of s 144(1), may be that the awareness had to extend to awareness that the physical actions would amount to use of the land as a waste facility.
In my opinion, there is no warrant for so understanding “permits” in s 144(1). Given the definition of “waste facility”, awareness of the physical actions of storage etc of waste carried with it awareness that the premises would be used as a waste facility, and it was not necessary that the defendant was aware of the definitions of “waste” and “waste facility” in the Act. Nor does permission involve the defendant’s purpose in failing to exercise a right or power to prevent the physical actions and the resultant use of the premises as a waste facility. The failure may be due to indifference or omission, see Adelaide Corporation v Australasian Performing Rights Association Ltd, without a positive purpose on the part of the defendant. So in Owen v Willtara Constructions Pty Ltd (1998)103 LGERA 137, in which a builder was charged with “allowing the disposal of waste upon a public place”, it was said to be sufficient that the builder knew that its excavation subcontractor stockpiled soil on a public road and “sanctioned it” or failed to prevent it (at [68]).
In Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 one question was whether the developer had polluted waters by permitting the pollutant to be placed in a position where it fell or was likely to fall into the waters. A sub-subcontractor to the developer had damaged a pipeline whereby oil was discharged. “Permits” was given by Lloyd J the meaning of “intentionally allows”, and it was held that the evidence did not suffice for a finding that the developer permitted the pollution. In the authorities said to give this meaning to “permits”, one did so expressly (Broad v Parish (1941) 64 CLR 588 at 595 per Starke J), but the others were concerned with the awareness necessary before the defendant permitted something. In Miller v Williams (1990) 53 SASR 82, for example, there was an extensive discussion at 87-92 of the need for actual knowledge of what is happening or about to happen or possibly of something less than actual knowledge. “Intentionally allows” does not carry that the defendant acted or failed to act with the intention that the particular result should come about, and the phrase is perhaps misleading. “Intentionally” really means with knowledge, and the phrase refers to the awareness required in permitting something.
The appellant relied on Environment Protection Authority v Multiplex Constructions Pty Ltd at trial, submitting to the effect that “intentionally allows” directed attention to the appellant’s intention and his intention was not to use his land as a waste facility but to build road access to the improvements for which development consent had been granted. The judge adopted the language of intentionally allowing at [106], [108], but did not do so in acceptance of the appellant’s submission. As can be seen in particular from the reference at [102(b)] to Environment Protection Authority v Multiplex Constructions Pty Ltd for the requirement of awareness of the act and failure to exercise a right or power to prevent it, part of the prosecutor’s submissions which the judge preferred at [106], by intentional allowance his Honour meant allowed with awareness of the physical actions of storage, treatment, processing, sorting or disposal of waste.
(b) Honest and reasonable mistake
The judge prefaced his consideration of honest and reasonable mistake by noting that the appellant submitted that the defence would be available “as the offence against s 144(1) of the Act could be characterised as a strict liability offence … ” (at [110]). His Honour evidently dealt with the defence on that assumption.
The basis of the appellant’s submission was that the appellant believed that he was building a road. The explication of the ground was in oral submissions, in the terms -
“ … the issue of honest and reasonable mistake, if I can deal with that for a moment just very quickly bearing in mind the time, the problem here is this. Even the judge comes to the position at a point in the sentencing where he said it may well be there were two developments, and on the evidence here there were. There are certainly two development numbers. So to reject what this man says and say it is not a reasonable mistake in fact is an error of law.”
The submissions did not go further. The judge declined to accept the defence of honest and reasonable mistake for four reasons. They are not answered by stating that the appellant believed that he was building a road. At least two of the reasons were factual, and no submissions were made that the judge’s assessment of the facts was incorrect. No basis has been shown for error in rejecting the (assumed) defence.
I do not think error has been shown. These grounds of appeal should not be upheld.
Grounds 13, 14 and 15
These grounds can also conveniently be dealt with together. They were -
“13.That it was an error of law to make an assessment of the guilt of the accused, when the Prosecution has chosen not to charge the two corporations namely ‘Skip the Tip’ and ‘Eastern Distributors’ [sic] or their Directors. Both entities are said to be corporations. Section 143 of the Protection of the Environment Operations Act is an offence of strict liability (subject to limited exceptions).
14.The failure to charge both above entities had the effect of altering the burden and onus of proof in relation to the Appellant on the facts established in this matter.
15.The Appellant told both Directors that there was only to be hard fill and no noxious material dumped. The Directors of both corporations agreed with that proposition, and that emerged as part of the evidence in the prosecution against the Appellant. However, material was dumped that could constitute noxious material. Both Corporations through their Directors denied they had placed on the Land anything other than ‘hard fill’. Therefore, the failure to charge both corporations directly affects the issue of the Appellant’s guilt or innocence. That failure also affects the issue of liability both as to degree of fault (if any) and to costs of rehabilitating the site.”
Nothing in the appellant’s submissions intelligibly explained why failure to charge Skip the Tip and East Coast Demolitions or their directors bore upon the charge against the appellant, as a matter of law or by in some manner affecting proof of the respondent’s case or conduct of the appellant’s defence. Section 143 of the Act provides for the offence of transporting waste to a place that cannot lawfully be used as a waste facility for that waste, but charging or not charging the depositors of the materials was not relevant to the charge against the appellant. If, as ground 15 might suggest, the appellant wished to contend that the “noxious material” was dumped by someone other than Skip the Tip or East Coast Demolitions, that could have been (but was not) an issue at the trial whether or not those entities or their directors were charged.
There was on conviction no “issue of liability … as to degree of fault”, and if in some manner failure to charge the other entities or their directors affected the costs of rehabilitating the land that was not relevant to conviction. Mr Derwen of Skip the Tip gave evidence in relation to sentencing, but was not cross-examined, and relevance of failing to charge to sentencing was not explained.
These grounds of appeal should not be upheld.
Ground 16
The ground was -
“16. It was an error of law to find that the words ‘cannot lawfully be used’ has an unrestricted meaning in Criminal Law and can, therefore, extend to more than the offence charged and extend to other legislative acts.”
The appellant’s counsel appeared unable to elucidate this ground. Grove J put to him that his point was that “cannot lawfully be used” in s 144(1) should be construed to mean lawfully under the Act, and did not extend to lawfulness of use under other statutes. He agreed.
It is not necessary to decide this question. In the judge’s reasoning the land could not lawfully be used as a waste facility under the Act, because a licence was necessary and had not been granted, and use contrary to the Environmental Planning and Assessment Act because development consent was needed and had not been granted was an alternative. The judge said at [95] that his conclusion as to the first way in which the land could not lawfully be used “makes it strictly unnecessary to deal with the second way in which the prosecutor submits the land could not be lawfully be used as a waste facility … ”. No ground of appeal challenged the first way in which unlawfulness of use was found. Even if the judge was incorrect in construing s 144(1) to extend to lawfulness of use under other statutes, and I express no view one way or the other, it would not affect the conviction.
This ground of appeal should not be upheld.
Grounds 19 and 20
These grounds can conveniently be considered together. They were -
“19. It was an error of law to find that the consents [sic] granted to the Defendant for the construction of a road in 1994 are relevant to an offence under Section 144 of the Protection of the Environment Operations Act.
20. It is a fact that the conditions attached to the 1994 consent were unlawful at the time of the grant, in that the consent purported to be given by the Lake Macquarie City Council over a Crown public road to which the Crown department involved had not given consent. Nor had the council made application to accept a transfer under Section 151 of the Road Act 1953. Such conditions were, therefore, ultra vires, as outside power section 7 of the Roads Act 1993.”
The submissions directed to these grounds appeared to take issue with [68] of the judge’s reasons, in which he recorded a submission by the respondent that the “landfill” was not authorised by the 1994 development consent because the appellant had breached or failed to comply with the conditions of the consent.
The judge referred to the 1994 development consent and its condition involving the construction of an access road because the appellant had submitted that it authorised the construction of an access road from Manhire Road to the improvements to be constructed on the land, and so authorised the depositing of the waste. It may also have been relied on by the appellant in connection with holding a belief that he was allowing the construction of an access road on his land. As best as I understand it, the appellant’s submissions were meant to deprive the respondent of its submission as to breach of or failure to comply with the conditions of the development consent, by maintaining that the consent was irrelevant and the conditions were unlawful. This, of course, would strike down the appellant’s reliance on the development consent as authorising the depositing of the waste.
Any relevance of the development consent arose from submissions on behalf of the appellant, which the judge did not accept. Any unlawfulness of the conditions of the 1994 development consent would have been contrary to the appellant’s then position. Invalidity of the development consent or its conditions would not result in upholding the appeal, and the grounds were misconceived.
These grounds of appeal should not be upheld.
Ground 23
This ground was concerned with sentence, and was -
“23 It is not open to the prosecution having failed to prove a requisite intention on the trial, to use the penalty phrase [sic] to try the issue again.”
As I have said, the appeal against sentence was against the order for remediation. It is not clear how this ground went to remediation as distinct from the fine or the costs order. The ground as expressed did not make sense. If a requisite intention was not proved, the conviction was bad. There could not be a trying again of the issue of the requisite intention.
As best I understand the appellant’s submissions, they were to the effect that the judge had held that “permits” in s 144(1) does not require intention (see ground 11), and accordingly that the appellant’s intention was entirely irrelevant and the respondent should not have been permitted to cross-examine the appellant in the sentencing hearing concerning his intention in making the arrangements with Skip the Tip and East Coast Demolitions under which the waste was deposited on the land.
The judge did not hold that “permits” does not require intention, and the appellant’s submissions did not identify a finding as to intention of which the appellant complained in the judge’s reasons of 1 May 2007, or suggest how the cross-examination of the appellant resulted in an adverse finding. In fact the judge said at [46], after considering the submissions as to the appellant’s purposes, that he did not find “that the defendant’s reasons for committing the offence increase the seriousness of the offence”. It appears that whatever was “tried again” did not end up adverse to the appellant.
The ground of appeal is in any event without substance. Subject to The Queen v de Simoni (1981) 147 CLR 383 considerations, it is relevant to sentence for a strict liability offence or an offence with a mental element less than intention to commit the offence to consider with what intention and appreciation of the offence it was committed. Depending on the intention, the offence may be regarded as more serious. It was open in principle to the respondent to explore in cross-examination, when the appellant gave evidence at the sentencing hearing, matters such as his knowledge of the nature of the waste to be deposited on the land and that the deposit of the materials was for the disposal of waste rather than for the construction of an access road, and generally his intention in making the arrangements with Skip the Tip and East Coast Demolitions.
The result
In my opinion, the appeal should be dismissed and the determination of the Land and Environment Court should be confirmed.
The conduct of the appeal on behalf of the appellant occasions considerable concern. I have earlier referred to its unsatisfactory presentation. It gives no pleasure to observe that counsel for the appellant did not appear to have an understanding of the reasons why the judge came to the conclusions he did, of matters arising therefrom which could properly be raised on appeal, or in some respects of fundamental legal principle.
The judges of the Court of Criminal Appeal are judges of the Supreme Court. The Supreme Court admits legal practitioners, who are officers of the Court, and I do not think its judges when sitting in the Court of Criminal Appeal can pass over the apparent inability properly to conduct the appeal. I do not take this step lightly, but consider it necessary to direct that the Registrar of the Court send a copy of these reasons to the President of the New South Wales Bar Association, for such action as the President might consider appropriate, together with copies of the grounds of appeal, the appellant’s written submissions, the respondent’s written submissions, the appellant’s written submissions in reply and the transcript of the hearing in this Court.
GROVE J: I agree with Giles JA.
I note my express agreement with the direction proposed in the final paragraph of his Honour's judgment. Obviously the proposal emanates from apparent deficiencies observed during the hearing of an individual appeal. Neither a general nor a more limited conclusion is sought to be conveyed but the inadequacies in the presentation of this appeal appeared to be of an order which would at least warrant some appropriate investigation.
HARRISON J: I agree with Giles JA and with the order he proposes.
I have also had particular regard to his Honour’s remarks concerning the conduct of the appeal on behalf of the appellant. I share his Honour’s concerns and agree that the matter should be referred to the President of the New South Wales Bar Association. This appeal was not one in which any other outcome was likely and the patent deficiencies in its presentation are unrelated to the final result. However, the standards that the public and the courts are entitled to expect from accredited and certified legal practitioners were not met by counsel for the appellant in this case and I would be troubled if what I consider to have been fundamental problems were not appropriately examined and addressed at the earliest opportunity.
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