Willoughby City Council v Screnci

[2015] NSWLEC 192

Land and Environment Court

New South Wales

Medium Neutral Citation:

Willoughby City Council v Screnci [2015] NSWLEC 192

Hearing dates:

16-18 June 2015; 17 November 2015

Date of orders:

10 December 2015

Decision date:

10 December 2015

Jurisdiction:

Class 5

Before:

Craig J

Decision:

Proceedings 50765 of 2014

 

1. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

 

2. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

 

3. The exhibits other than Exhibit A may be returned.

 

Proceedings 50766 of 2014

 

4. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

 

5. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

 6. The exhibits other than Exhibit B may be returned.

Catchwords:

CRIMINAL LAW – plea of guilty entered – sentence hearing held – application to withdraw guilty plea and enter plea in bar – offences against s 125(1) of the Environmental Planning and Assessment Act – defendant caused development to be carried out without consent – prosecution must establish proceedings were commenced within limitation period – s 127(5) of the Environmental Planning and Assessment Act – evidence does not establish the proceedings were commenced in time – statutory bar upon commencement of proceedings cannot be waived – court to give effect to statutory bar even if plea has been entered – plea in bar established – leave to withdraw pleas of guilty – defendant acquitted of charges alleged

Legislation Cited:

Crimes Act 1958 (Victoria)
Criminal Procedure Act 1986 (NSW)
Environmental Offences and Penalties Act 1989 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Industrial Relations Act 1996 (NSW)

Cases Cited:

Brown Brothers v Pittwater Council [2015] NSWCA 215; 209 LGERA 53
Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; 209 LGERA 280
Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
Environment Protection Authority v CSR Ltd t/as CSR Woodpanels [2001] NSWLEC 41; 114 LGERA 217
Industrial Registrar v Matters [2007] NSWIRComm 250
Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; 150 LGERA 231
Kim v R [2015] NSWCCA 115
Morgan v Babcock & Wilcox Ltd [1929] HCA 25; 43 CLR 163
R v Cooling [1990] 1 Qd R 376
R v Stone [2005] NSWCCA 344; 64 NSWLR 413
R v Tait [1995] VSC 154; (1996) 1 VR 662
Screnci v Willoughby City Council [2015] NSWLEC 1256
WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd [2002] NSWIRComm 68

Category:

Principal judgment

Parties:

Willoughby City Council (Prosecutor)
Joseph Robert Screnci (Defendant)

Representation:

Counsel:
A M Pickles SC (Prosecutor)
P W Larkin SC with C D Norton (Defendant)
Solicitors:
King & Wood Mallesons (Prosecutor)
HWL Ebsworth (Defendant)

File Number(s):

50765 of 2014 and 50766 of 2014

Judgment

1. Joseph Robert Screnci is charged with two offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). Those charges relate to building work as well as site works for landscaping undertaken at a residential property known as 57 Minimbah Road, Northbridge (the Property). That Property is jointly owned by Mr Screnci and his wife.

2. Mr Screnci entered a plea of guilty to each offence on 27 March 2015. A sentence hearing took place on 16, 17 and 18 June last, in the course of which several affidavits were read by each party, oral evidence was given and a large number of documents tendered. Mr Screnci was represented by senior and junior counsel while the prosecutor was represented by (then) junior counsel. Following completion of addresses on the third day of hearing, my decision on sentence was reserved.

3. As a result of the decision by a Commissioner of the Court in related proceedings and delivered on 10 July 2015 (Screnci v Willoughby City Council [2015] NSWLEC 1256), the parties were invited to make any further submissions relevant to these proceedings that arose from the Commissioner’s decision. The last of those written submissions was provided to me on 30 July 2015.

4. On 10 August 2015 I was requested by the parties to refrain from delivering my judgment on sentence, the delivery of which I had then foreshadowed. Upon the matter being relisted before me, I was informed that Mr Screnci wished to raise a plea in bar, which, if made good, would necessitate the charge being dismissed and an order of acquittal made, notwithstanding the plea of guilty that had been entered.

5. In order to formalise his application, in effect to re-open the hearing before me, a notice of motion, in identical terms, was filed in each proceeding on 18 September last. Each motion sought an order that Mr Screnci be given leave both to withdraw the plea of guilty that he had entered and instead to enter a plea:

“ … that the proceedings are statute-barred by reason of being commenced after the expiration of the relevant limitation period in s 127 of the Environmental Planning and Assessment Act 1979”.

6. Those motions have now been heard. For the reasons that follow, I have concluded that the plea in bar has been made out, with the consequence that the charge in each proceeding must be dismissed.

Background

7. The prosecutions against Mr Screnci were commenced by way of summons filed on on 19 September 2014. At that time, each summons charged that Mr Screnci carried out development in breach of s 125(1) of the EPA Act. An amended summons was filed and served in each proceeding on 27 March 2015, charging that the defendant caused development to be carried out in breach of the EPA Act. It is the offence charged in the amended summons filed in each proceeding to which Mr Screnci pleaded guilty.

8. In proceedings 50765 of 2014, Mr Screnci is charged that the offence was committed “between December 2009 and 27 February 2014”. It is alleged that what he did was forbidden to be done by s 76A(1)(b) of the EPA Act in that he:

“ … caused development to be carried out on land, being development which required development consent, otherwise than in accordance with a development consent which had been obtained and was in force in respect of the development where an environmental planning instrument applied to the land and provided that the development may not be carried out except with development consent.”

9. The particulars of the charge, as expressed in the summons, indicate that the breach is directed to the carrying out of building work inside the dwelling on the Property. Relevantly, the manner in which Mr Screnci is alleged to have contravened the EPA Act by carrying out work particularised in the summons is stated as follows:

“The Defendant instigated Livbuild Pty Ltd and persons acting on behalf of and under the direction of Livbuild Pty Ltd to carry out the building work particularised in paragraph (b) above.”

10. The offence that is the subject of those proceedings was described by the parties as “the internal works offence”. It is convenient to use that description when making reference to those proceedings.

11. The second offence, being that charged in proceedings 50766 of 2014, alleges an offence against s 125(1) involving works forbidden to be done by s 76A(1)(a) of the EPA Act. The charge alleges that the offence was committed “between about 2003 and February 2013” in that the defendant:

“ … caused development to be carried out on land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where a development consent had not been obtained and was not in force with respect to the development.”

12. The offence so charged relates to work carried out in the grounds of the Property, extending from the rear of the dwelling and adjoining pool structure to the Property boundary with Sailors Bay, an inlet of Middle Harbour. This area of the Property, referred to as the foreshore land, sloped steeply from the rear of the existing dwelling towards Sailors Bay. Although the offending work was compendiously described as “landscaping work”, it involved significant alteration to existing site contours, removal of some vegetation, as well as the construction of a series of sandstone retaining walls, staircases and concrete terraces. The building work that is the subject of this charge also included construction of a room within a structure that supported an elevated spa and pool. As the parties have done, it is convenient to refer to the offence that is the subject of this charge as “the foreshore works offence”.

13. The particulars to the charge relating to the foreshore works offence also identify the manner in which it is alleged Mr Screnci contravened the EPA Act. Those particulars are in identical terms to those included in the summons for the internal works offence, that is, that Mr Screnci “instigated Livbuild Pty Ltd and persons acting on behalf of or under the direction of Livbuild Pty Ltd” to carry out the works for which development consent was required but had not been obtained.

14. Michael Rimac is a licensed builder and managing director of Livbuild Pty Ltd (Livbuild) who, with employees and contractors engaged by him, carried out the work that is the subject of each charge. Affidavits sworn by Mr Rimac for the purpose of these proceedings were read by the prosecutor at the sentence hearing. He was also called to give evidence at the hearing and was cross-examined by Mr Screnci’s counsel. The essential issues between Mr Screnci and Mr Rimac were first, the extent to which Mr Screnci involved himself in and gave directions for the work that he “instigated” Livbuild to carry out and second, whose function it was to obtain the relevant development consents.

15. For present purposes, it is unnecessary to address the controversy between Mr Screnci and Mr Rimac on these issues. It is sufficient to record the evidence of Mr Rimac that he ceased to carry out any work on the Property on 29 March 2012. That fact is not controversial. Indeed, in the Statement of Agreed Facts tendered in respect of the internal works prosecution, it is stated that Livbuild completed works at the Property “in early 2012” (Ex A, para 29). In the Statement of Agreed Facts tendered in respect of the foreshore works offence, it is also stated that Livbuild ceased construction work “in early 2012” (Ex B, para 35).

16. At the sentence hearing, the prosecutor also read the affidavit of Steven Balafas sworn on 9 September 2014. Mr Balafas is a development enforcement officer employed by the prosecutor. He was primarily responsible for investigating the offences. Exhibited to his affidavit was a folder of documents tendered as Exhibit D. Among those documents were various file notes to which were attached photographs taken by him at the time of his inspections of the Property. It will be necessary to refer to these photographs in due course. He was cross-examined on that material.

17. For present purposes, it is also unnecessary to refer to that evidence in any detail. It is sufficient to record the unchallenged evidence of Mr Balafas that evidence of the foreshore works offence first came to his attention on 8 February 2013, while evidence of the internal works offence first came to his attention on 27 February 2014.

18. The parties accept that all of the evidence tendered and received at the sentence hearing in June is, so far as is relevant, before me for the purpose of determining the present notices of motion. The only additional evidence relied upon by Mr Screnci for the purpose of the motions is that found in an affidavit sworn by Paul Jayne on 19 August 2015 to which no objection was taken by the prosecutor. Mr Jayne is the solicitor having carriage of the matter for Mr Screnci. He was not required for cross-examination.

19. Relevantly, Mr Jayne stated that prior to advising Mr Screnci to enter a guilty plea, the possibility of a plea in bar was considered by him and discussed both with the partner in his firm then responsible for the matter and also with counsel who were retained to appear for Mr Screnci. The possibility of raising the plea was not pursued at that time because it was understood, mistakenly as it happens, that Mr Balafas was “an authorised officer” of the Council within the meaning of the relevant provisions of the EPA Act. Mr Jayne states that in early August he was reading material directed to the legislation amending the EPA Act, including amendments made to s 127. It was then that the possibility of raising the plea in bar had again occurred to him. He promptly raised the matter with the prosecutor, resulting in both parties requesting that I refrain from delivering judgment. In so doing, the prosecutor expressly did not concede that the plea would be made good, but accepted that it should allow the plea to be agitated.

Statutory provisions

20. Critical to the determination of the issue raised by Mr Screnci’s motions are the provisions of s 127 of the EPA Act. That section was amended on 31 July 2015. It is accepted by the prosecutor that the amendment has no retrospective operation so that the provisions of s 127, as they were before 31 July, apply to the present proceedings.

21. The unamended section relevantly provided:

“127   Proceedings for offences

(1)   Proceedings for an offence against this Act may be taken before the Local Court or before the Court in its summary jurisdiction.

…

(4)   If proceedings in respect of an offence against this Act are brought in the Court in its summary jurisdiction, the Court may impose a penalty not exceeding the maximum penalty provided by this Act in respect of the offence.

(5)   Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.

(5A) However, proceedings for any offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6.

(5B)   If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which the evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established.

(5C)   This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.”

22. Both the original and the amended summons filed in each proceeding had, in purported compliance with s 127(5B), stated the date upon which evidence of the offence had first come to the attention of Mr Balafas. The statement had also asserted that Mr Balafas was an “authorised officer”. However, it is now acknowledged by the prosecutor that while Mr Balafas was authorised to perform certain functions of the prosecutor, he was not “an authorised officer within the meaning of Division 2C of Part 6”, with the consequence that the provisions of subs (5A) were not engaged. The time within which proceedings were required to be commenced for the charges brought against Mr Screnci was therefore governed by the provisions of subs (5).

Expiration of the time period under s 127(5)

23. As will be apparent from the terms in which the charge in each matter is framed, nominating dates between which the impugned conduct is alleged to have occurred, the offences charged are identified as continuing offences. The limitation period imposed by s 127(5) must therefore be calculated from the date on which the offence was complete or, differently expressed, calculated from the date upon which the offending conduct concluded (Environment Protection Authority v CSR Ltd t/as CSR Woodpanels [2001] NSWLEC 41; 114 LGERA 217 at [35]; Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; 209 LGERA 280 at [44]).

24. If the date from which the limitation period of two years commences to run is the concluding date alleged in each charge, the limitation period for the internal works offence would expire on 27 February 2016 while the limitation period for the foreshore works offence would have expired in February 2015. As the proceedings in respect of each offence were commenced on 19 September 2014, each would appear to satisfy the requirement of s 127(5).

25. Applying the subsection as yielding the result just expressed would, at least superficially, appear to accord with its text. After all, the subsection identifies the time for commencement of proceedings as being not later than two years “after the offence was alleged to be committed” (emphasis added). The charge in each matter did “allege” the commission of the two offences that were each completed in the sense that the offending conduct ceased at a date that was less than two years before the proceedings were instituted.

26. However, upon the proper construction of the section, that result seems unlikely. If subs (5) is construed in the context of s 127 as a whole, reference to the offence “alleged” must surely be the offence alleged by reference to the evidence adduced by the prosecutor. That context is provided by subss (5A) and (5B) where the criterion for any possible extension of the two year period is referable to the date upon which an authorised officer discovers “evidence of the offence”.

27. Importantly, the manner in which a provision such as that expressed in s 127(5) is to be applied has been determined by the Court of Criminal Appeal. In Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79, that Court was required to determine a case stated from this Court in a prosecution for an offence against the Environmental Offences and Penalties Act 1989 (NSW) (now repealed). A question arose as to whether the proceedings prosecuting the offence had been commenced within the time allowed by s 12 of that Act. That section relevantly provided:

“Notwithstanding the provisions of the Justices Act 1902 or any other Act

…

(b)   proceedings for an offence (being proceedings that are to be dealt with summarily) … may be commenced not later than twelve months after the date alleged to be the date on which the offence was committed.”

28. The leading judgment in that case was delivered by Hunt CJ at CL (Grove and Allen JJ agreeing). His Honour first accepted the concession made by the prosecutor that it must bear the onus of establishing that the proceedings had been commenced within the time allowed by s 12. That concession, as his Honour recorded, was correctly made, having regard to the decision of the High Court in Morgan v Babcock & Wilcox Ltd [1929] HCA 25; 43 CLR 163 at 175. After discussing the relevant legislative provisions and their prior use in other legislation, his Honour expressed this conclusion (at 85):

“In my opinion, and despite the reference in s 12 to ‘the date alleged to be the date on which the offence was committed’, the prosecution must establish that the offence was in fact committed within that [limitation] period.” (Original emphasis.)

29. The textual differences between s 12(b) of the Environmental Offences and Penalties Act and s 127(5) of the EPA Act are not such that the decision in Environment Protection Authority v Bathurst City Council can be distinguished. It follows that in the present case the prosecutor was bound to prove that the proceedings in respect of each offence were commenced not later than two years after the date upon which the evidence establishes that each offence was committed. Being a criminal proceeding, the prosecution was bound to prove that fact beyond reasonable doubt.

29. It will be recalled that the unchallenged evidence received at the sentence hearing and which I accept is that the offending work had been carried out by Mr Rimac on behalf of Livbuild and that he had ceased all work on the Property on 29 March 2012. Based on that evidence, the last date for commencement of any prosecution against Mr Screnci for the offences with which he was charged was 29 March 2014. As the proceedings were not commenced until September 2014, on their face they were commenced after the limitation period had expired.

30. The prosecutor sought to address this consequence in two ways. First, it submitted that time was not an essential element of the offences charged, with the consequence that any misstatement of dates did not derogate from the validity of the charge. The dates upon which the offences were alleged to have been committed were capable of amendment by invoking the provisions of s 16(1)(g) of the Criminal Procedure Act 1986 (NSW).

31. Secondly, it was submitted that despite the particulars to the charge, there was evidence tendered in the sentence hearing, establishing that the charges were brought within the two year period. It is appropriate to address each of these submissions in turn.

32. I accept, as did counsel for Mr Screnci, that time is not an essential element of an offence against s 125(1) and s 76A(1) of the EPA Act (Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; 150 LGERA 231 at [10]). However, the circumstance that time is not an essential element of the offence in no way provides an answer to the operation and effect of a time bar such as is found in s 127(5). While time is not an element of the offence, s 127(5) limits the time within which a prosecution for the offence must be commenced. The subsection imposes a control upon the process for prosecuting an offence rather than identifying any element of the offence itself.

33. The Council’s reliance upon evidence, said to support the charges against Mr Screnci as having been commenced inside the limitation period, needs to be considered in context. Once Mr Screnci gave notice that he wished to raise the present plea in bar, the process by which that plea would be considered and argued before me was the subject of case management. At the initial case management hearing, the parties were asked to consider whether there was any additional evidence upon which they would seek to rely, beyond that tendered at the sentence hearing. At the second mention, when the present notices of motion were fixed for hearing, the parties agreed that apart from the additional affidavit evidence of Mr Jayne to which I have earlier referred, the evidence to be considered for the purpose of determining the motions was that tendered at the sentence hearing.

34. When the hearing of the present motions before me commenced, it was agreed between the parties that Mr Screnci should first present his case. He did so by reading the affidavit of Mr Jayne, otherwise confirming that evidence previously tendered was relied upon for the purpose of the motions. The prosecutor then stated that it did not seek to adduce any further evidence, with the consequence that the case for each party was closed. After senior counsel for Mr Screnci completed his submissions, the prosecutor then commenced to make its submissions.

35. In the course of making those submissions, the prosecutor contended that the evidence before the Court demonstrated that offending work relevant to the foreshore works offence continued in the foreshore area to a date that fell within the two year limitation period. The evidence upon which it sought to rely was found in Exhibit D, being the material exhibited to the affidavit of Mr Balafas sworn 9 September 2014.

36. Relevantly, I was asked to compare photographs included in Exhibit D that were taken by Mr Balafas on 27 February 2013 with photographs also included in the Exhibit and taken by him on 23 July 2014. While it was apparent that the photographs being compared were not taken from exactly the same location in each case, they generally depicted the undercroft area of the pool extension, the decking around the area and the steps commencing the stairway from that area to the waterfront, all within the foreshore area. Based upon that comparison of photographs, I was asked to infer that walls depicted in the photographs taken on 27 February 2013 had, by 23 July 2014 been painted. That fact, so it was submitted, demonstrated that further work had been carried out during the period. As the original work had not been carried out in accordance with any consent, further work, even painting, was work for which consent was required. Contrary to the particulars given for that charge, additional work had been carried out by persons unknown.

37. I declined to draw the inference that the prosecutor sought to have me draw. Although there were several reasons for so doing based upon that photographic evidence, not the least reason for my refusal to draw the inference sought was that the colour of the July 2014 photographs that had been tendered was so obviously distorted that no proper inference could be drawn. The July 2014 photographs are recorded as having been taken at 14.27 hrs, yet the sky behind the buildings and structures depicted is a deep purple or midnight blue with an overall yellow hue to each of the photographs on which reliance was sought to be placed. The prosecutor accepted that those photographs, as tendered, did not appropriately provide an accurate or realistic colour for comparison, assuming it was otherwise appropriate to make that comparison for the purpose intended by the prosecutor.

38. Once I had indicated that I was not prepared to draw the inference sought from the photographs, the prosecutor sought to read a further affidavit sworn by Mr Balafas on 11 September 2015. In that affidavit Mr Balafas sought to describe a difference in appearance of structures in the foreshore area of the Property between what he observed in February 2013 and what he observed in July 2014. A description of any such difference did not appear in the text of the affidavit to which Exhibit D was exhibited, nor in the file note to which the photographs sought to be relied upon were annexed in that Exhibit.

39. Mr Screnci objected to that affidavit being read. Among his objections was the prejudice that he would suffer if the evidence was allowed. Although the affidavit of Mr Balafas sworn on 11 September 2015 had been served in support of a motion by the prosecutor to amend the summons, that motion was not listed for hearing, as its determination depended upon the outcome of the present motions. More significantly, it had been stated on behalf of the prosecutor that the affidavit would not be relied upon for the purpose of the present motions. As a result, Mr Screnci had not investigated the allegations of fact made in that affidavit but would have done so had he been on notice that the affidavit was to be relied upon.

40. From the time Mr Screnci identified his intention to raise the plea in bar and the reasons for it, the prosecutor was on notice that it was required to establish by evidence that conduct constituting the offences was occurring on or after 19 September 2012, being the two year period immediately preceeding commencement of the present proceedings. It was afforded ample opportunity so to do but failed to avail itself of that opportunity. As a consequence of the circumstances I have identified, I did not allow the September 2015 affidavit of Mr Balafas to be read.

41. In the result, the evidence before me does not establish that the proceedings prosecuting the offences with which Mr Screnci was charged were commenced “not later than two years after” the evidence shows those offences to have been committed. That finding then gives rise to the need to consider how the proceedings should be resolved, given the plea of guilty that has been entered.

The statutory limitation period: its relevance to the plea of guilty

43. As a matter of statutory construction, the effect of provisions such as s 127(5) would seem to be that not only is the commencement of proceedings for an offence outside the limitation period proscribed but so also must a conviction for an offence that cannot be prosecuted outside that period. That is the thrust of the decision of the Queensland Court of Criminal Appeal in R v Cooling [1990] 1 Qd R 376. In that case, the position is succinctly stated by Derrington J where his Honour said (at 380):

“If a person cannot be prosecuted for an offence because the [Criminal] Code says so, he cannot upon his own volition choose to disregard the law and agree to a prosecution for such an offence. Nor would it be within the power of the court to accept a plea of guilty in such circumstances.”

44. In Cooling the appellant was first arrested, charged and subsequently indicted for rape. Upon his trial he pleaded not guilty to rape but guilty to unlawful carnal knowledge. That plea was accepted by the Crown in full discharge of the indictment. He was sentenced to imprisonment for the offence to which he had pleaded guilty. However, a provision of the Criminal Code required that the prosecution for the offence of unlawful carnal knowledge “must be begun within 6 months after the offence is committed”. The arrest of the appellant was accepted as being the commencement of the prosecution, albeit begun with a charge of rape. More than 6 months had elapsed from that time of his arrest until he pleaded guilty to the lesser charge. The time limitation imposed by the Criminal Code had apparently been overlooked by the Crown Prosecutor and certainly had not been brought to the attention of the trial judge. Nonetheless, the limitation imposed by the Code was successfully raised on the appeal, notwithstanding the plea of guilty entered at trial.

45. The leading judgment in Cooling was delivered by Thomas J (Ambrose J concurring). His Honour said (at 378):

“Section 215 is an example of a statute of limitation in the context of criminal law. Such provision in no way destroys the jurisdiction of a court to determine whether it applies or not (Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369), or to proceed in accordance with that determination. In short, it is a point ‘not going to jurisdiction but to process’: Parisienne Basket Shoes case at 393 … . Sometimes such provisions are described as ‘a defence against an information which is out of time’ (Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545), although the concept of a defence is not really appropriate … Once it comes to the notice of the court that the prosecution is out of time it would be wrong for it to allow the prosecution to continue, even if defence counsel refused to rely on it.”

46. His Honour later observed (at 378-379) that once a statutory limitation point is raised “it is the duty of the court to give effect to it”. His Honour also contrasted the position in civil law proceedings, where a limitation may be waived, with the position that pertains in criminal proceedings. He said (at 380):

“In civil law a party may, and frequently does, wittingly or unwittingly, waive the benefit of a limitation act. However such an analogue may not safely be drawn in this respect in the criminal law. Here there is an implied prohibition upon prosecution unless begun within six months.”

47. The decision in Cooling was followed by the Court of Appeal in Victoria in R v Tait [1995] VSC 154; (1996) 1 VR 662. The facts are not dissimilar from those considered in Cooling. In Tait the appellant was committed for trial on charges that included attempted rape and rape. He pleaded guilty to two counts of what amounted to attempted unlawful carnal knowledge and unlawful carnal knowledge. Following his plea, he was sentenced to imprisonment. Initially he appealed against sentence but subsequently was given leave to amend his grounds of appeal to include a ground against conviction. The latter ground of appeal was founded upon the provisions of s 48(6) of the Crimes Act 1958 (Victoria) which provided that no prosecution for an offence against the section committed with or upon a person of or above the age of 12 years “shall be commenced more than 12 months after its commission”. It was accepted that the victim of the crime was above the age of 12 years at the time of each offence to which the plea of guilty was entered. It was also accepted that in respect of each offence, the prosecution was commenced more than 12 months after its commission.

48. The Court upheld the appeal, quashing the convictions and directing the entry of a judgment and verdict of acquittal. The leading judgment was delivered by Callaway JA (Winneke P and Crockett AJA agreeing). Applying the decision in Cooling, his Honour said (at 665) that the section imposing the limitation period for the relevant prosecution “does not provide a defence at all but only a bar to prosecution”. His Honour continued:

“If the applicant could not lawfully be prosecuted, which Cooling’s case establishes, he could not lawfully be convicted. The convictions were, in the relevant sense, illegal.”

49. When addressing the consequence of a plea of guilty having been entered at trial, his Honour said (at 665):

“Counsel for the Crown submitted that there was no miscarriage of justice, because the applicant had been represented and had pleaded guilty in the context of a plea negotiation, having been committed for trial but not presented on charges of attempted rape and rape arising from the same acts. I do not think that that weighs against the illegal quality of the convictions or that it is a basis upon which to distinguish the facts from those in Cooling’s case, where, it will be recalled, the appellant was not only committed but indicted on charges of rape arising from the same acts and his pleas of guilty to unlawful carnal knowledge were accepted by the Crown. A statutory bar against prosecution of the kind in s 48(6) cannot be waived, or made the subject of negotiation, as if it were a private privilege.”

50. In Industrial Registrar v Matters [2007] NSWIRComm 250 a Full Bench of the Industrial Court of New South Wales was required to consider a motion for contempt of the Commission, such contempt being an offence imposed by s 180 of the Industrial Relations Act 1996 (NSW). By s 398 of that same Act, proceedings for an offence against the Act were required to be commenced “not later than 12 months after the offence was alleged to have been committed”. The motion for contempt was filed more than 12 months after the contempt relied upon by the Registrar. In that circumstance, the Court determined that the motion for contempt was required to be dismissed.

51. In reaching its decision, the Full Bench applied the decision in Cooling. Having cited passages from the judgment of Thomas J to which I have earlier referred, the Full Bench said at [48]:

“48   It follows that the present proceedings, commenced at her Honour’s direction are within the Industrial Court’s jurisdiction to consider, even if commenced outside the limitation period under s 398. However, they are proceedings to which the respondent has available a plea in bar or defence which the Court is obliged to give effect to once it comes to the Court’s attention.”

52. In the course of providing its reasons in Matters, the Court relied upon an analysis of the cases directed to the present point in WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd [2002] NSWIRComm 68. In the course of delivering their reasons in the latter case, the Full Bench applied the reasoning in both Cooling and Tait, as that reasoning was applied to a statutory time limitation for the commencement of proceedings to prosecute for an offence. By reference to those cases the Full Bench observed at [90]:

“90   There appears to be some difference of approach as to the accurate way to characterise limitation provisions in criminal proceedings. One view is that limitation provisions operate as a plea in bar to prosecution: see, for example Tait [citation omitted]; R v Cooling [citation omitted]. The other view is that a limitation provision operates as a defence: Pearce v BHP Steel (AWA) Pty Ltd [citation omitted] and Adams v Chas S Watson Pty Ltd [citation omitted].”

53. That difference of approach is reflected in the judgment in Matters at [48]. In neither case was it necessary for the court to determine which of the differences of approach was to be preferred.

54. The various decisions to which I have referred seem to me to give rise to the following (perhaps overlapping) principles:

1. where the commencement of the proceedings for the offence charged are the subject of a statutory limitation period, the prosecutor bears the onus of establishing that the proceedings have been commenced within the time limited by that provision;

2. once the court is made aware, by whatever means, that proceedings for an offence may have been commenced after a statutory limitation period had expired, and the facts establish that to be the case, it is not open to the Court to allow the prosecution to continue, even if the accused/defendant does not seek to invoke the statutory provision;

3. that is because the bar upon commencement of proceedings imposed by the statute cannot be waived and the court is bound to give effect to the statute;

4. the need for the court to give effect to a statutory bar applies even if a plea of guilty has been entered to the offence, the prosecution of which has been commenced after the limitation period has expired;

5. as the commencement of proceedings after expiration of the limitation period is proscribed, so also must the entry of a conviction in those proceedings be proscribed as the court lacks power to accept a plea of guilty in such circumstances; and

6. any conviction entered as a result of a plea taken in such circumstances would be “illegal”.

55. Application of those principles to my finding that the evidence does not establish the commencement of proceedings for the offences charged within the two year period limited by s 127(5) of the EPA Act, means that the plea of guilty entered by Mr Screnci cannot be accepted. Further, I favour the view expressed in both Cooling and Tait that s 127(5), once engaged by the facts, operates as a plea in bar rather than as a defence.

56. The latter conclusion is drawn from the observation in those cases, accepted as correct in Matters, that once the limitation provision is raised, the court is bound to give effect to it. That approach, which I accept as a matter of statutory construction, means that the Court lacks any discretion to maintain a guilty plea. On that reasoning, the statutory provision must logically give rise to a plea in bar rather than a defence.

57. Although not conclusively supporting that last proposition, it is nonetheless consistent with it that s 125(4) identifies, in terms, a “defence” to a prosecution for a particular breach of the EPA Act, namely failure to comply with an order given by the appropriate authority under Div 2A of Pt 6 of the EPA Act. By contrast, the language of “defence” is not used in respect of the time limitation imposed by s 127(5).

58. The consequence of this reasoning is that the summons commencing the prosecution for each offence with which Mr Screni was charged ought to be dismissed and a verdict of acquittal entered. This is so, notwithstanding the circumstance that Mr Screnci pleaded guilty to each offence. That plea is an admission of the essential elements of each offence. As the time limitation imposed by s 127(5) is not an essential element of each offence, to the extent relevant to the present motion, the plea does not constitute an admission that the proceedings were commenced within the time limited by the subsection. Upon that reasoning, I have formed the opinion that an order allowing the plea of guilty entered to each charge to be withdrawn is unnecessary.

55. Against the possibility that I am wrong in reaching the opinion last expressed, I will briefly state the reasons why I would grant leave for those pleas to be withdrawn. My reasons respond to Mr Screnci’s notice of motion seeking that leave.

Leave to withdraw the pleas of guilty

60. There are two possible approaches to the grant of leave that Mr Screnci seeks. The first is that directed to the circumstance in which a plea in bar is sought to be raised when a plea, earlier entered, is seen to be inconsistent with the proposed plea in bar. That circumstance was considered by the Court of Criminal Appeal in R v Stone [2005] NSWCCA 344; 64 NSWLR 413. There, the appellant had entered a plea of not guilty and then sought to raise a plea of autrefois convict. Hunt AJA (Hislop J agreeing) stated at [20] that the trial court would have been in error had it permitted the defendant to enter the plea in bar while a plea of not guilty remained on the record.

61. In a separate judgment, Smart AJ, while not finally determining the issue, expressed support for the approach that “technically” a plea in bar could not be entertained while a plea of guilty remained on the record. However, at [85]-[95] his Honour suggested that the manner in which that circumstance might be addressed was to give leave to the appellant to withdraw the original plea and enter the plea in bar provided the latter plea “was a good one”; was not highly technical and was not devoid of merit.

62. If the observations of Smart AJ reflect the appropriate approach to be taken when two apparently inconsistent pleas are raised, as I respectfully consider they do having regard to the authorities cited by his Honour, such approach would support the grant of leave to Mr Screnci to withdraw his pleas of guilty. His plea is not technical and for reasons earlier explained, it is both “a good plea” in that it clearly has merit.

63. The second basis upon which to consider granting leave to withdraw the guilty pleas are the general principles applicable to an application for leave of that kind. Those principles were, earlier this year, stated by the Court of Criminal Appeal in Kim v R [2015] NSWCCA 115 and repeated even more recently by the Court of Appeal in Brown Brothers v Pittwater Council [2015] NSWCA 215; 209 LGERA 53. Fundamentally, it is necessary for an applicant seeking leave to withdraw a guilty plea to establish that a miscarriage of justice had or would occur if that plea is allowed to stand. As stated in Kim at [55] and repeated in Brown Brothers at [157], without being exhaustive, a miscarriage of justice may be shown in circumstances where:

“●   the applicant did not appreciate the nature of the charge to which the plea was entered: [citation of authority omitted];

●   the applicant was not in possession of all the facts and the plea was not attributable to a genuine consciousness or recognition of guilt: [citation of authority omitted];

●   there was a mistake or other circumstance affecting the integrity of the plea as an admission of guilt; [citation of authority omitted]; or where

●   the advice of the applicant’s lawyer(s) was imprudent, inappropriate or incorrect: [citation of authority omitted]”.

64. It seems to me that at least two of the bases upon which a miscarriage of justice or potential miscarriage of justice may be demonstrated for the purpose of supporting an application for leave to withdraw a guilty plea are present in the proceedings before me. The integrity of the plea entered by Mr Screnci is clearly undermined by the operation of s 127(5). Secondly, the advice received from his legal team prior to entering a plea of guilty was, by later established facts, shown to be incorrect.

65. As the Court of Appeal observed in Brown Brothers at [158], there is no presumption one way or another favouring or weighing against an applicant for leave to have an earlier plea of guilty changed to one of not guilty. Whether such an application should be granted depends entirely on “whether a miscarriage of justice, in the view of the judge, would occur if the leave sought were denied the applicant”.

66. In one sense, these principles may not seem directly applicable to the circumstances here present. Admitting, by plea, the elements of an offence charged is not inconsistent with raising a plea in bar, the effect of which is to contend that the law does not permit the institution of proceedings prosecuting that offence because of the passage of time since the offence is alleged to have been committed. The miscarriage of justice occurs in the present case if, contrary to the holding of the courts in Cooling, Tait and Manners, a plea is allowed to remain and a conviction entered.

67. As those cases hold, once it is established that proceedings were commenced after the limitation period had expired, as I have held to be so in the present proceedings, any conviction and consequent penalty imposed is an exercise that is beyond the power of the court to have imposed. Therein also lies the miscarriage of justice if it is thought that Mr Screnci’s guilty pleas deny him the right to rely upon s 127(5) as a plea in bar.

68. As a result, to the extent necessary, I would uphold Mr Screnci’s motion to set aside the plea of guilty entered in each proceeding on 27 March 2015.

Orders

69. For the reasons I have stated, the orders I make are as follows:

70. Proceedings 50765 of 2014

1. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

2. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

3. The exhibits other than Exhibit A may be returned.

Proceedings 50766 of 2014

4. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

5. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

6. The exhibits other than Exhibit B may be returned.

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Decision last updated: 10 December 2015