Citation: Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92
Court: Court of Criminal Appeal, NSW
Date: 11 May 2012
Judges: Bathurst CJ; Whealy JA; McClellan CJ at CL
Background
The appellant was a landowner charged with two offences under the Native Vegetation Act 2003: unlawfully authorising the clearing of native vegetation (including Coolibah, Belah and River Cooba trees) on his Moree Plains property without a development consent or property vegetation plan, and failing without reasonable excuse to comply with a statutory information notice. The charges were prosecuted in the Land and Environment Court.
The appellant was not represented by a qualified lawyer at trial. Instead, a Mr Walters, who was unqualified, appeared on his behalf. Lloyd J convicted the appellant of both offences following a hearing at which the prosecution's evidence went largely unchallenged. The appellant was fined $400,000 for the clearing offence and $8,000 for the information notice offence, and was ordered to pay the prosecutor's costs.
On appeal, the appellant raised multiple grounds, including that proceedings were a nullity because they contravened s 63 of the Land and Environment Court Act 1979, and that the unqualified representation caused a miscarriage of justice in both the conviction and sentencing phases.
Legal Issues
- Whether the proceedings were a nullity because s 63 of the Land and Environment Court Act 1979 prohibited representation by an unqualified person such as Mr Walters.
- Whether the conduct of the defence by an unqualified representative caused a miscarriage of justice at the conviction stage.
- Whether the sentencing judge's failure to inform the appellant of his right to place mitigating material before the court constituted a miscarriage of justice at the sentencing stage.
- What powers the Court of Criminal Appeal had to remedy any miscarriage, including whether it could remit the matter to the Land and Environment Court for resentencing.
Decision
Nullity argument rejected. The Court rejected the submission that the proceedings were a nullity. Section 63 of the Land and Environment Court Act was examined in its proper context, and the Court found it did not operate to invalidate proceedings where an unqualified person conducted the defence. The use of an unqualified representative did not render the entire prosecution a nullity.
No miscarriage of justice at the conviction stage. The Court found that, despite the deficiencies in representation, the conviction did not involve a miscarriage of justice. The primary judge had examined the relevant statutory defences carefully. The evidence against the appellant on the core elements of the clearing offence was overwhelming and went unchallenged, and the various defences raised (including routine agricultural management and noxious weed removal) were properly assessed and rejected on their merits.
Miscarriage of justice established at sentencing. However, the Court found a miscarriage of justice did occur during sentencing. The sentencing judge observed that nothing was known of the appellant's personal circumstances and that no information about his financial means had been placed before the court, as required by s 6(a) of the Fines Act 1996. The judge did not take steps to inform the appellant of his right to put mitigating material before the court, despite recognising that the representative was unqualified. Where a defendant is represented by someone plainly unqualified, a sentencing judge carries an obligation to ensure the defendant is aware of the right to raise matters of mitigation. That obligation was not met here.
Penalty quashed and matter remitted. Because the miscarriage was confined to sentencing, the conviction was upheld. The Court quashed the penalties and remitted the sentencing proceedings to the Land and Environment Court for redetermination. The Court also ruled on fresh evidence: some additional material (including an affidavit from the appellant and transcript evidence from a related committal hearing) was admitted for the purpose of establishing the miscarriage of justice at the sentencing stage, while the remainder was refused.
Orders Made
- Leave granted to tender specified additional evidence: the appellant's affidavit sworn 9 March 2010, and transcript evidence from the committal hearing by Elizabeth Savage, Daniel Keenan and George Boland.
- Tender of all other fresh or new evidence refused.
- Appeal against conviction dismissed.
- Penalties imposed by Lloyd J on 11 February 2009 quashed.
- Proceedings remitted to the Land and Environment Court to determine the appropriate penalty.
Key Takeaways
- Representation by an unqualified person does not automatically render Land and Environment Court criminal proceedings a nullity under s 63 of the Land and Environment Court Act 1979.
- Where a defendant is represented by a person who is plainly unqualified, a sentencing judge has an obligation to ensure the defendant is made aware of the right to place mitigating material before the court, including evidence of personal and financial circumstances.
- A failure by the sentencing judge to discharge that obligation, particularly where the judge expressly noted the absence of mitigating material, constitutes a miscarriage of justice sufficient to quash the penalty, even where the conviction itself is sound.
- In cases involving unrepresented or poorly represented defendants, the Court of Criminal Appeal will apply a more flexible approach to the admission of fresh or new evidence on appeal than would ordinarily apply.
- Under s 12(2) of the Criminal Appeal Act, the Court of Criminal Appeal has power to remit a sentence question to the court of first instance, even where that court is the Land and Environment Court.
Legislation and Cases Referenced
Legislation:
- Native Vegetation Act 2003 (NSW), ss 11, 12, 13, 19, 22, 27, 36, 48
- Land and Environment Court Act 1979 (NSW), ss 56, 63
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB, 6, 12
- Fines Act 1996 (NSW), s 6
- Noxious Weeds Act 1993 (NSW), s 35
- Mining Act 1992 (NSW)
Cases:
- Dietrich v The Queen (1992) 177 CLR 292
- MacPherson v R (1981) 147 CLR 512
- Ostrowski v Palmer (2004) 218 CLR 493
- R v Birks (1990) 19 NSWLR 677
- R v Birlut (1995) 39 NSWLR 1
- Frawley v R (1993) 69 A Crim R 208
- Gilmour v Environment Protection Authority (2002) 55 NSWLR 593
- Damjanovic v Maley (2002) 55 NSWLR 149
- Director General of the Department of Land and Water Conservation v Greentree [2003] NSWCCA 31
- Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 66 NSWLR 151
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
- He Kew Teh v R (1985) 157 CLR 523
- Clee v R [2009] NSWCCA 18