Thaler v Cooma Monaro Shire Council

[2013] NSWLEC 126

Land and Environment Court

New South Wales

Medium Neutral Citation:	Thaler v Cooma Monaro Shire Council [2013] NSWLEC 126
Hearing dates:	2 August 2013
Decision date:	02 August 2013
Jurisdiction:	Class 6
Before:	Biscoe J
Decision:	Defendant was not convicted in his absence and therefore does not require leave to appeal
Catchwords:	APPEAL - against conviction in Local Court - whether defendant was convicted in his "absence" - if so leave to appeal required and the time for applying for leave had expired - defendant present throughout hearing in the Local Court but, having unsuccessfully applied to have the Magistrate recuse himself, told Magistrate he would not participate because he would not have the Magistrate hear it.
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 4, 31, 32
Cases Cited:	Director of Public Prosecutions v Arab [2009] NSWCA 75 Krakouer v The Queen [1998] HCA 43, (1998) 194 CLR 202
Texts Cited:	Macquarie Dictionary (4th ed) Oxford English Dictionary (2nd ed)
Category:	Procedural and other rulings
Parties:	Andrew Thaler (Applicant) Cooma Monaro Shire Council (Respondent)
Representation:	COUNSEL: R O'Gorman-Hughes (Defendant) A Thaler, in person SOLICITORS: Bradley Allen Love (Applicant) N/A (Respondent)
File Number(s):	60566/13

EX TEMPORE JUDGMENT

1. This is an appeal by Mr Andrew Thaler against this conviction by the Local Court at Cooma on 27 November 2012 for failing to comply with conditions of a development consent. On the same day the appellant lodged a notice of appeal against conviction to this Court. The matter is now before the Court for directions. The appellant appears in person, as he did in the Local Court.

1. The respondent prosecutor has raised a threshold issue as to whether the appeal is incompetent. The prosecutor contends that the appeal is incompetent because the appellant was convicted in his absence and therefore under the Crimes (Appeal and Review) Act 2001 requires leave to appeal (ss 31(1A), 32(1)) but is out of time for applying for leave to appeal (s 32(4)):

31 Appeals as of right

(1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

(1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty.

(2) An appeal must be made:

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

(b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,

but (in the case of an appeal against conviction) may not be made before sentence is imposed.

32 Appeals requiring leave

(1) Any person who has been convicted by the Local Court, in the person's absence or following the person's plea of guilty, with respect to an environmental offence may appeal to the Land and Environment Court against the conviction, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.

(2) Any person against whom:

(a) an order has been made by a Magistrate in relation to the person in any committal proceedings with respect to an environmental offence, or

(b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings with respect to an environmental offence,

may appeal to the Land and Environment Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.

(3) An application for leave to appeal under subsection (1) may not be made in relation to a conviction in respect of which the defendant:

(a) is entitled to make an application under section 4 but has not done so, or

(b) has made an application under section 4 but the application has not been disposed of under Part 2.

(4) An application for leave to appeal must be made:

(a) in the case of a conviction referred to in subsection (1):

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

(ii) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,

but may not be made before sentence is imposed, or

(b) in the case of an order referred to in subsection (2), within 28 days after the relevant order is made.

(emphasis added)

1. After (I am told) unsuccessfully applying to the Magistrate to recuse himself on the ground of bias, the appellant said to the Magistrate: "I will not participate in those hearings because I will not have you hear it. You are not applying the principles of justice". The Magistrate replied: "I have noted the papers that Mr Thaler refuses to participate in the hearings. On that basis I will proceed ex parte...". The appellant remained in court and apparently at the bar table. The Magistrate proceeded to receive the prosecution evidence and submissions. Whilst the Magistrate was then delivering ex parte reasons for judgment, the appellant interrupted and the Magistrate responded by saying: "You refused to participate in the hearing and I've allowed you to remain at the table as a courtesy, but if you interrupt in the delivering of the judgment then I would have to ask you to leave". The Magistrate then concluded his reasons for judgment and convicted and fined the appellant.

1. The prosecutor contends that in those circumstances the appellant was convicted in his "absence".

1. The prosecutor refers me to dictionary definitions of "absence" and "absent". The Macquarie Dictionary (4th ed) relevantly defines "absence" as "a state of being away", and "absent" as "not in a certain place at a given time; away". The Oxford English Dictionary (2nd ed) relevantly defines "absence" as "the state of being absent or away (from any place)", and "absent" as relevantly "being away, withdrawn from, or not present". In my view, these definitions weigh against the prosecutor's contention because they suggest that the ordinary meaning of "absence" is the state of being physically elsewhere.

1. In aid of a more expanded meaning to cover the circumstances of the present case, the prosecutor then contrasts s 4(1) of the Act, which provides for an application for annulment of a conviction imposed by the Local Court only if the defendant "was not in appearance" before the Local Court when the conviction was made. The expression "not in appearance" is a linguistic curiosity and may be contrasted with the expression "in the person's absence" in s 31(1A) and s 32(1). The expression "not in appearance" in s 4(1) was considered in Director of Public Prosecutions v Arab [2009] NSWCA 75 particularly at [9], [17], [37] and [38]. The court there noted that the phrase "not in appearance" bears a certain linguistic novelty and concluded that it can only mean, to use the language of other statutes, "does not appear": at [37]. It is unnecessary to delve further into the meaning of "not in appearance" in s 4(1) because, whatever its meaning, I do not think it weighs against a conclusion that the words "in the person's absence" in ss 31 and 32 bear a meaning that accords with the dictionary definitions.

1. Finally, and again in aid of a more expanded meaning, the prosecutor submits that in principle there is no difference between the following two cases and in both the defendant should be regarded as absent when convicted and, therefore, as requiring leave to appeal. First, a case where a defendant deliberately does not enter court or leaves court because a particular Magistrate is presiding whom he does not want to hear the case. Secondly, a case such as the present, where a defendant deliberately refuses to participate in the hearing, because a particular Magistrate is presiding, but remains in court. If the defendant in the first case is regarded as being convicted in his absence and therefore entitled to appeal only with leave, should the defendant in the second case be treated the same way? There is something to be said for both being treated the same way as a matter of legislative policy (although which way may be a matter of opinion). However, I cannot go outside the clear words of the statute. Clear words in a penal statute affecting criminal liability should not be interpreted by giving them a wider scope: Krakouer v The Queen [1998] HCA 43, (1998) 194 CLR 202 at [62]. The fact is that, in ordinary parlance, the defendant was present, not absent, when convicted. Although refusing to "participate", he remained at the bar table throughout. At an inappropriately late stage, whilst judgment was being delivered, he attempted to participate by interrupting the Magistrate.

1. I therefore determine the threshold issue adversely to the prosecutor. In my opinion, the defendant was not convicted in his absence and therefore does not require leave to appeal.