The Hills Shire Council v Suciu (No 2)

[2009] NSWLEC 168

Land and Environment Court

of New South Wales

CITATION:

The Hills Shire Council v Suciu (No 2) [2009] NSWLEC 168

PARTIES:

PROSECUTOR
The Hills Shire Council

DEFENDANT
Petre Suciu

FILE NUMBER(S):

50085 of 2008

CORAM:

Pepper J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application for adjournment of delivery of sentencing judgment - ex parte sentencing hearing - application after hearing but before judgment delivered - possible miscarriage of justice if no opportunity afforded to guilty defendant to be heard - adjournment granted

LEGISLATION CITED:

Criminal Procedure Act 1986 s 250
Protection of the Environment Operations Act 1997 s 143
Land and Environment Court Rules 2007 r 5.2(h)
Uniform Civil Procedure Rules 2005 Pt 36 r 16.2(b)

CASES CITED:

The Hills Shire Council v Suciu [2009] NSWLEC 145

DATES OF HEARING:

22 September 2009

EX TEMPORE JUDGMENT DATE:

22 September 2009

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D Buchanan SC
SOLICITORS
The Hills Shire Council

DEFENDANT
Mr C Carter
SOLICITORS
Nyman Gibson Stewart

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

22 September 2009

50085 of 2008 The Hills Shire Council v Petre Suciu (No 2)

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: This is the defendant’s urgent oral application for an adjournment of an ex tempore sentence judgment that I was about to deliver. The circumstances in which it is made are set out below.

Background

2 On 28 July 2009, a hearing into the innocence or guilt of the defendant, Mr Petre Suciu, for an offence of unlawfully transporting waste pursuant to s 143 of the Protection of the Environment Operations Act 1997 was held.

3 The hearing took place on an ex parte basis pursuant to an order made by Sheahan J on 10 July 2009, under s 250 of the Criminal Procedure Act 1986.

Events of 31 August 2009

4 On 31 August 2009, the Court found Mr Suciu guilty of the offence charged (see The Hills Shire Council v Suciu [2009] NSWLEC 145).

5 There is no question that the Court had the power to convict Mr Sucui in his absence for the reasons I set out in that judgment at [8] and [9]. They stated:

8 There is no question that the Court has the power to convict the defendant in his absence ( Environment Protection Authority v Peters [2006] NSWLEC 465 at [20]-[22] of the “Annex: Reasons for Proceeding Ex Parte” and Port Stephens Council v Robinsons Anna Bay Sand Pty Ltd [2007] NSWLEC 240 at [2]-[4]). In Bentley v BGP PropertiesPty Ltd (2006) 145 LGERA 234 Preston CJ stated at [30]-[32] and [34]-[35]:

[30] Notwithstanding the non-appearance of the defendant at the hearing, the Court has power to convict and sentence the defendant in its absence.
[31] Section 41 of the Land and Environment Court Act 1979 NSW (LEC Act) provides that Pt 5 of Ch 4 of the CP Act applies to proceedings in Class 5 of the Court's jurisdiction. Section 41 took effect from 7 July 2003. The section was inserted by the Justices Legislation Repeal and Amendment Act2001 NSW (s 4, Schs 2, 2.132[3]).
[32] Section 250 of the CP Act (which is in Pt 5 of Ch 4) confers power on the Court to proceed to hear and determine the matter in the absence of the defendant:
If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned) the court may, if satisfied that the order was served on the accused person:
(a) proceed to hear and determine the matter in the absence of the accused person…
…
[34] In Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147, this Court proceeded ex parte against a company in liquidation pursuant to s 49 of the LEC Act. Section 250 of the CP Act is the successor to s 49 of the LEC Act, which was amended by the Justices Legislation Repeal and Amendment Act (s 4, Schs 2, 2.132[3]).
[35] The Court can and should proceed to hear and determine the proceedings, notwithstanding the absence of the defendant.
9 Prior to the order by Sheahan J referred to above, the defendant had not entered a plea, and accordingly, the matter proceeded as if the defendant had entered a plea of not guilty ( Environment Protection Authority v Emerald Peat Pty Ltd (In Liq) [1999] NSWLEC 147 and Port Stephens Council v Robinsons Anna Bay Sand Pty Limited [2007] NSWLEC 240).

6 The Court also stated (at [10] – [13]) the following:

10 At the commencement of the hearing the Court was informed by the prosecutor that Mr Stewart of Nyman Gibson Stewart, solicitors, remained the solicitor on the record for the defendant. Whilst Mr Stewart had filed a Notice of Ceasing to Act, the Notice only pertained to summonses that had previously been withdrawn by the prosecutor and which were not the subject of the present proceedings.

11 The prosecutor informed the Court that Mr Stewart was aware of the hearing date of these proceedings, but that he had informed the prosecutor’s solicitor that he would not be attending today and that he would file a Notice of Ceasing to Act later in the day. As at both the date of the hearing and the date of the publication of these reasons, no Notice had been filed.

12 Mr Stewart also stated to the prosecutor’s solicitor during the same telephone conversation that he had received a photograph from a woman claiming to be the defendant’s wife allegedly showing the defendant in a hospital bed overseas. No further details, however, were given.

13 As there was no application before the Court to set aside the orders of Sheahan J made on 10 July 2009 that this matter be heard ex parte , and given the highly unsatisfactory nature of the evidence in relation to the alleged photograph, the Court proceeded to hear the matter. The Court noted that Mr Stewart was still the solicitor on the record for the defendant.

7 Accordingly, on 31 August 2009 the Court made the following orders.

(1) the defendant is guilty of the offence of unlawful transport of waste as charged in the summons; and

(2) the matter is to be set down for final hearing on sentence on 21 September 2009.

8 As a matter of prudence, the Court made the following additional orders by way of short minutes of order:

(1) The prosecutor to take the following steps for the purpose of notifying the defendant of these orders:

(i) send a copy of the judgment and these orders, including the order setting the matter down for hearing to Nyman Gibson Stewart, solicitors on the record for the defendant;

(ii) send a copy of the judgment and these orders, including the order setting the matter down for sentence, to the liquidator of Maraline Pty Limited; and

(iii) have a processor attend Mr Suciu’s last known residential address, as notified or known to the prosecutor, and attempt to serve Mr Suciu and, if he is not in attendance, to place a copy of the judgment and the orders referred to above at the front door of that address.

Events of 21 September 2009

9 At the commencement of the hearing on sentence on 21 September 2009, Mr Suciu was not present. The matter was called three times outside the Court but there was no appearance by him. The hearing therefore proceeded on an ex parte basis.

10 At the hearing, the prosecuting council (“the council”) tendered evidence demonstrating that, in my view, sufficient steps had been taken by it to attempt to inform Mr Suciu that the sentence hearing was to take place at 10.00am on 21 September 2009. This evidence consisted of:

(a) two affidavits of Mr Matthew Pearce, the corporate lawyer for the council, sworn on 8 and 18 September 2009 respectively (together with exhibits), proving that a copy of the orders made by the Court on the last occasion together with a copy of the judgment were served on the liquidator for Maraline Pty Limited (Moore Stevens, accountants), and the solicitor on the record for Mr Suciu at the time of the conviction hearing, Nyman Gibson Stewart; and

(b) an affidavit from a process server, Mr Andrew John, sworn 18 September 2009, demonstrating that a copy of the judgment, together with a letter from the council’s solicitors stating the date and time of sentencing hearing, was served on the last known residential address of Mr Suciu.

11 The sentencing hearing was adjourned to 9.15am on 22 September 2009, that is today’s date, to enable the Court to deliver an ex tempore judgment.

12 When the matter was called on today at 9.15am, Mr Carter appeared on behalf of Mr Suciu. He informed the Court that he was instructed by Nyman Gibson Stewart, solicitors, who acted for Mr Suciu.

13 An adjournment until 4.00pm today was granted to Mr Carter in order for him to seek further instructions. The Court informed Mr Carter that if he had not received instructions by 4.00pm the Court would proceed to deliver its judgment on sentence.

14 At 4.00pm, Mr Carter made the oral application for an adjournment of the delivery of the judgment on sentence pursuant to Pt 36 r 16.2(b) of the Uniform Civil Procedure Rules 2005 (which apply to this Court pursuant to r 5.2(h) of the Land and Environment Court Rules 2007).

15 In support of the application, Mr Carter read an affidavit of Mr Philip Stewart sworn 22 September 2009. I set it out in full:

1 I am the solicitor for the defendant.

2 On 13 May 2009 I received an email from Maria Suciu, wife of Petre Suciu informing me that he had been involved in a serious motor vehicle collision in Lima, Peru and was in a hospital in a coma with a ‘cranium fracture’.

3 I replied by email requesting that Mrs Suciu obtain a medical certificate.

4 On 20 May 2009 I contacted Matthew Pearce, corporate counsel acting for the Hills Shire Council in the prosecution of Mr Suciu. I informed Mr Pearce of my conversation with Mrs Suciu. I forwarded a Medical Certificate to him that Mrs Suciu forwarded to me.

5 On 2 July 2009 I received a letter from Mr Pearce indicating that inquiries by or on behalf of the Hills Shire Council as to the authenticity of the Medical Certificate revealed the ‘medical letter’ to be fake.

6 On 2 July 2009 I sent an email to Maria Suciu indicating the content of the letter from the Hills Shire Council requesting confirmation of Mr Suciu’s condition and updated medical certificates.

7 On or about 10 July 2009 I received a phone call from Mr Pearce inquiring as to whether I had received any further information about Mr Suciu. I informed Mr Pearce that I had not received any further information and that I would file a Notice of Ceasing to Act. Mr Pearce said words to the effect, “If it turns out that he is ill, then I suppose we will cross that bridge later.” I caused one of my employed solicitors to attend the Land and Environment Court to withdraw from the matter.

8 On 10 July 2009 I received an email from Maria Suciu indicating that she was surprised at the allegations raised by the Council and that to her knowledge Petre Suciu was still ill. She indicated that she would contact relatives in Lima for an ‘update health status’.

9 On 10 July 2009 I responded to that email indicating that our firm had withdrawn from the matters due to lack of instructions. I invited Mrs Suciu to forward any up to date medical certificates.

10 On 21 September 2009 at 5.58pm I received a phone call from Petre Suciu. To the best of my recollection, the conversation was as follows (emphasis added):
Mr Suciu: Philip, it’s Petre, Petre Suciu.
I said: Hello Petre, how are you and where are you?
He said: I am in Lima. I will be coming back in about two weeks. I have problem still with my heart.
I said; Did you really have a car accident and go to hospital?
He said: Yes. Roads here and traffic unbelievable. Very dangerous.
I said: I requested further medical certificates because the Council said it was false.
He said: No. It is true. But it costs a lot of money to get report from hospital. I have to borrow money to get report. I will have the ambulance report and it say what happen.
I said: I had to stop acting for you because I could not get information to say the certificate was true. I told Maria.
He said: It is all true. I am back in about two weeks and I want to fight this matter.
I said: You need to get medical reports to prove your injury.
He said: I will have ambulance report. I borrow money and get hospital report. Please go to the Court for me tomorrow .
11 At 7:45 am 22 September 2009 I attempted to contact Matthew Pearce, corporate counsel. I left a message on his mobile to the effect that Mr Suciu had contacted me last night, would be returning to Australia and would be able to establish that he was involved in a car accident as claimed.

16 The application was consented to by the council on the basis that it was necessary to prevent a possible miscarriage of justice on the prima facie evidence of Mr Stewart, whom the council did not seek to cross-examine. The council submitted that the defendant had to be given the opportunity of vindicating his rights if the contents of the affidavit proved to be correct.

17 The affidavit is in a curious form. The conversation between Mr Suciu and Mr Stewart states at paragraph 10 that Mr Suciu said to Mr Stewart, “I will have ambulance report. I borrow money and get hospital report. Please go to the court for me tomorrow.”

18 On one view, this suggests that Mr Suciu had prior knowledge of the delivery of the sentence judgment and of the hearing on sentence which had taken place the day before. In this regard, Mr David Buchanan SC, who appeared for council, informed me from the bar table that members of Mr Suciu’s family were present in Court during the course of the sentence hearing and that persons purporting to speak on behalf of Mr Suciu had been in contact with the Court registry staff.

19 This information reinforces the notion that Mr Suciu knew about the sentence hearing in advance of it taking place. Yet, it was not until 5.58pm last night that he contacted Mr Philip Stewart to instruct him to seek an adjournment in Court today.

20 Notwithstanding these observations, I accept the submissions of the parties and propose to grant the adjournment. These are criminal proceedings in which Mr Suciu has been convicted for the offence charged. It is a serious matter. If there is any truth whatsoever in his claim that he was incapacitated at the time of either the hearing as to his guilt or as to sentence, then he must be given the opportunity of being heard. In order to do so, he must be afforded time to bring whatever application he considers appropriate.

21 In all the circumstances, therefore, I grant the adjournment sought and make orders in accordance with the consent short minutes of order handed to the Court. The orders are crafted on the basis that Mr Suciu has told Mr Stewart that he will be “back in about two weeks”.

Orders

22 The orders of the Court are:

(1) that an adjournment of the delivery of the sentence judgment is granted;

(2) that the defendant is to file and serve any application to set aside the judgment of this Court of 31 August 2009 by no later than 4.00pm on 16 October 2009;

(3) that the defendant is to file and serve the evidence upon which he will rely in support of any such application by no later than 4.00pm on 16 October 2009;

(4) that the proceedings are adjourned to 19 October 2009 at 9.30am for mention before me; and

(5) the costs of today’s application be reserved.

23 Finally, the Court notes the warning given to Mr Suciu’s counseI, Mr Carter, that if no application is received by 4.00pm on 16 October 2009 (together with supporting evidence), that the Court will be extremely reluctant to further extend the adjournment of the delivery of the sentence judgment.

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