Harrison v Harris (No 2)
[2013] NSWLEC 135
•14 August 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Harrison v Harris (No 2) [2013] NSWLEC 135 Hearing dates: 14 August 2013 Decision date: 14 August 2013 Jurisdiction: Class 5 Before: Craig J Decision: Orders as set out at [9]
Catchwords: PRACTICE AND PROCEDURE - application to stay orders made on sentence - whether stay order must be made by the judge who made orders on sentence - Rule 12 of the Criminal Appeal Rules - application adjourned for determination by trial judge Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Water Management Act 2000 (NSW)Cases Cited: Harrison v Harris [2013] NSWLEC 105 Category: Procedural and other rulings Parties: Russel Harrison (Prosecutor)
Ronald Norman Harris (Defendant)Representation: B G Docking (Prosecutor)
A A Henskens SC with S B Docker (Defendant)
Crown Solicitor's Office (Prosecutor)
Kemp Strang Solicitors (Defendant)
File Number(s): 50028 of 2012
ex tempore Judgment
On 17 July 2013 Pepper J delivered judgment on sentence for an offence by the defendant against s 91K(1) of the Water Management Act2000 (Harrison v Harris [2013] NSWLEC 105). The defendant had pleaded guilty to that offence. Her Honour convicted the defendant and imposed a fine. In addition, the defendant was ordered to pay the prosecutor's legal costs and also ordered to publish a notice in two newspapers requiring public disclosure of his conviction for the offence and the penalty imposed by the Court. The making of an order of the latter kind was sanctioned by s 353G(1)(a) of the Water Management Act.
By arrangement made with the Court's Registry, the matter was listed before me today as Duty Judge, as the defendant indicated that he wished to seek a stay of both the costs order and the publication order made by her Honour on 17 July. The urgency attending the present application is said to arise from the circumstance that compliance with each of the orders sought to be stayed was required by either today or tomorrow.
Regrettably, the basis for the defendant's application was not known before the hearing commenced. The only indication given to the Registry with the request that the matter be listed before the Duty Judge as a matter of urgency was that the defendant sought a stay of the orders made by her Honour on 17 July 2013. Apart from being given notice that the application was to be listed during the course of today and agreeing to attend, it would seem that the prosecutor knew little of the basis for the present application until shortly prior to the commencement of the hearing before me.
The defendant's notice of motion seeking stay orders was filed in Court together with a short affidavit in support of that motion sworn by the defendant. That affidavit, together with the opening observations of Mr Henskens SC, who with Mr S Docker appeared for the defendant, indicated that the defendant intended to appeal to the Court of Criminal Appeal against the determination of penalty. I was informed that a notice of intention to appeal had been filed in accordance with s 10(1)(a) of the Criminal Appeal Act 1912 but that a notice of appeal had yet to be filed. Those instructing Mr B Docking, who appeared for the prosecutor, indicated that they were unaware that a notice of intention to appeal had been served.
The defendant cited Rule 15 of the Criminal Appeal Rules as the source of jurisdiction to grant the stay that he sought. That Rule provides:
"15 Suspension of penalty or costs pending appeal
Where a person is ordered to pay money as a penalty or for costs, the Judge of the Court of Trial may suspend the payment thereof upon such person entering into recognisances (Forms Nos XX and XX1) to prosecute an appeal and abide the judgment of the Court thereon, before such persons, in such amount and with or without sureties, or upon any other terms and conditions that such Judge directs."
The prosecutor indicated that there were several bases upon which the defendant's reliance upon Rule 15 was challenged, one basis being that I had no power to make the order because I was not "the Judge of the Court of Trial". If correct, that presented a significant, albeit temporary, difficulty as Pepper J was not presently available.
Given that the issue just identified could, at a practical level, be addressed in the short term and given the exigencies that had attended the listing of the matter on such short notice, a practical course was suggested to accommodate the adequate presentation of argument by both parties and also remove an argument based upon the identity of the judge determining the application. It was possible to list the present motion before Pepper J next week provided the position of either party was not prejudiced by reason of the hearing of the motion being postponed. While both parties agreed that it was desirable for the motion to be determined by Pepper J, given her familiarity with the proceedings, the defendant was concerned that if a stay was not granted today, failure to comply with the orders in the interim pending hearing and determination may found a claim for breach of orders, including one that might be used by the prosecutor to found a motion for contempt.
Upon that concern being identified, Mr Docking sought and obtained instructions from the prosecutor that no reliance would be placed upon any alleged failure to comply with the orders in question between today's date and the date of determination of the motion by Pepper J. As a consequence, the parties have agreed upon the terms of orders that should be made to preserve the status quo pending determination of the motion to be listed before Pepper J next week. I am prepared to accept as appropriate the substance of their agreed orders.
Accordingly, the orders that I make are as follows:
- Stand over the defendant's notice of motion to Monday 19 August 2013 for hearing before Pepper J.
- Note the undertaking by the prosecutor not to rely upon an alleged failure to comply with Order 6 made on 17 July 2013 during the period commencing on 14 August 2013 until the defendant's notice of motion filed on 14 August 2013 is determined by Pepper J.
- Direct that the defendant, as applicant on the notice of motion, serve by 15 August 2013, with a copy to the Associate to Pepper J, an outline of submissions in point form only indicating which Acts, Rules or Regulations are relied upon by the defendant to make the orders sought; the specific grounds of appeal that are relied upon (if any) and any authorities to be relied upon in support of the notice of motion.
- Direct the prosecutor, as respondent to the motion, serve a reply outline of submissions with the same content as in the preceding order, with a copy of those submissions provided to the Associate to Pepper J.
- Costs are reserved.
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Decision last updated: 15 August 2013