Local Court of New South Wales CITATION: Department of Environment and Climate Change V De Jenner Holmes [2009] NSWLC 32 JURISDICTION: Criminal PARTIES: Department of Environment and Climate Change Hugh De Jenner Holmes FILE NUMBER: PLACE OF HEARING: Moree Local Court DATE OF DECISION: 02/24/2009 MAGISTRATE: Magistrate Richardson CATCHWORDS: CRIMINAL LAW – practice and procedure – application to withdraw plea of guilty – absence of genuine consciousness of guilt – absence of clear understanding of implications of entering plea of guilty LEGISLATION CITED: Criminal Procedure Act 1986, s 207Local Court Act 2007, s 40Native Vegetation Act 2003, ss 12, 38, 39 Charlesworth v R [2009] NSWCCA 27 Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 DPP v Arab [2009] NSWCA 75 DPP v Yeo [2008] NSWSC 953 Frodsham v O'Gorman [1979] 1 NSWLR 683 Griffiths v The Queen (1977) 137 CLR 293 Liberti v R (1991) 55 A Crim R 120 Loury v R [2010] NSWCCA 158 Maxwell v The Queen (1996) 184 CLR 501 Meissner v The Queen (1995) 184 CLR 132 Norvenska v DPP [2007] NSWCCA 158 CASES CITED: Piras v R [2006] NSWCCA 396 R v Becheru [2001] NSWCCA 102 R v Cinotta (unrep, NSWCCA, 1 November 1995) R v Hura (2001) 121 A Crim R 472 R v Iral [1999] NSWCCA 368 R v KCH (2001) 124 A Crim R 233 R v Lars (1994) 73 A Crim R 91 R v McLean (2001) 121 A Crim R 484 R v Rae (No 2) (2005) 137 A Crim R 182 R v Toro-Martinez (2000) 114 A Crim R 533; [2005] NSWSC 129R v Van [2002] NSWCCA 148R v Wilkes [2001] NSWCCA 97 R v Wilkinson (No 4) [2009] MSWSC 323 Wong v DPP [2005] NSWSC 129 TEXTS CITED: REPRESENTATION: ORDERS: - 11 - JUDGMENT 1 Mr Hugh De Jenner Holmes, hereafter referred to as Holmes, has been charged by the Department of Environment and Climate Change, hereafter referred to as DECC, with an offence against section 12 of the Native Vegetation Act 2003. He entered a plea of guilty to that offence on 28 August 2008. As arranged by this Court a view took place of the property where the alleged offence occurred in the company of officers of the DECC, the defendant and the defendant's legal representatives on 1 October 2008 in anticipation of sentence. 2 On 28 October 2008 Holmes advised the Court that he wished to apply for leave to withdraw his plea of guilty and enter a plea of not guilty. An application was lodged with this Court to change the plea on 18 November 2008. The application was accompanied by affidavit material from Holmes. The DECC responded with an affidavit of Stephen James Beaman, hereafter referred to as Beaman, who is a compliance officer with the DECC from Tamworth. Attached to his affidavit was a transcript of an interview which occurred on the property which is known as Koramba Cotton on 16 January 2008. At hearing, evidence was given by Holmes, by Beaman and both parties were invited to make submissions. Submissions were received from the solicitor for Holmes and the solicitor for DECC on 16 December 2008. 3 Holmes argued that the application should be granted for a number of reasons. There are eight set out in the application. The submissions furnished on behalf of Holmes amplify the case for the application to succeed having regard to the evidence that was given before the Court by Holmes and by Beaman. 4 The DECC opposes the application. It makes reference to the evidence given in the proceedings and the relevant case law. The DECC's contention is that the grounds for allowing the application have not been made out. 5 The application is made under section 40 of the Local Court Act 2007 pursuant to section 207(1) of the Criminal Procedure Act 1986. The relevant section provides that an accused person may at any time after conviction or an order has been made against the accused and before the summary proceedings are finally disposed of, apply to the Court to change the accused's plea from guilty to not guilty and have the conviction or order set aside (DPP v Arab [2009] NSWCA 75) which was decided after this decision. 6 Holmes entered a plea of guilty. The case has not proceeded to conviction. There is authority for the proposition that the provisions apply even though a conviction has not been entered (Frodsham v O'Gorman, [1979] 1 NSWLR 683). The prospects for the application are enhanced because the Court has not proceeded to convict and sentence the applicant. 7 Where an application is made for leave to withdraw a plea of guilty, evidence should be adduced from the accused as to the circumstances in which the plea was entered (Wong v DPP [2005] NSWSC 129). In addition to affidavits being filed by Holmes and the DECC, this application went to a hearing at Moree Local Court. 8 The starting point in the inquiry is to acknowledge the circumspection or restraint with which an appellate court is required to approach an appeal grounded on the proposition that a plea of guilty which led to conviction should be withdrawn. As Kirby P observed in Liberti v R (1991) 55 A Crim R 120 at 122: "This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence; see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81. An appellant will nevertheless be permitted to withdraw a plea of guilty where a miscarriage of justice would otherwise result. There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own circumstances. A valid plea of guilty is one that is entered in the exercise of a free choice: Meissner v The Queen (1995) 184 CLR 132 at 141 per Brennan, Toohey and McHugh JJ. The plea must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501 at 511. There have been several expressions of the requirements which have to be met before a court will allow a guilty plea brought about by imprudent and inappropriate advice given by the convicted person's legal representatives to be withdrawn. In R v Wilkes Wood CJ at CL with whom Giles JA and Simpson J agreed said that an argument of this kind would hinge upon three considerations: (a) whether the advice given to the appellant was or was not imprudent and inappropriate; (b) whether his plea was or was not attributable to a consciousness of guilt; and (c) whether the material before this Court shows that there is or is not a real question about his guilt.' See also Kouroumalos [2002] NSWCCA 453; Whitehead [2000] NSWCCA 400; Favero [1999] NSWCCA 320; Ganderton (unreported, NSWCCA, 17 September 1998)." 9 The law on changing a plea was encapsulated in Wong v DPP [2005] NSWSC 129 at [15]. Howie J sets out a series of propositions which were derived of a case of R v Van [2002] NSWCCA 148. He lists criteria to take into consideration in the exercise by the Court of its discretion under section 207(1) of the Criminal Procedure Act 1986. 10 He cited the various circumstances identified by Spigelman CJ in R v Hura (2001) 121 A Crim R 472 at 478 (par [32]) which provide assistance where application is made for leave to withdraw a plea of guilty. These are: (1) Where the Appellant "did not appreciate the nature of the charge to which the plea was entered" (R v Ferrer-Esis (1991) 55 A Crim R 231 at 233). (2) Where the plea was not "a free and voluntary confession" (R v Chiron (1980) 1 NSWLR 218 at 220 D-E). (3) The "plea was not really attributable to a genuine consciousness of guilt" (R v Murphy [1965] VR 187 at 191). (4) Where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt" (R v Sagiv (1986) 22 A Crim R 73 at 80). (5) Where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt" (R v Cincotta NSWCCA 1 November 1995 (unreported)). (6) The "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt" (Maxwell v The Queen (supra) at 511). (7) If "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt" (R v Davies (1993) 19 MVR 481. See also R v Ganderton NSWCCA 17 September 1998 (unreported) and R v Favero [1999] NSWCCA 320). 11 To the cases cited by the Chief Justice, Justice Howie in Wong v DPP states that reference should be made to R v Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; R v Wilkes (2001) 122 A Crim R 310 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; R v McLean (2001) 121 A Crim R 484 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of justice; R v KCH (2001) 124 A Crim R 233 involving improper pressure by counsel and R v Becheru [2001] NSWCCA 102 and R v Toro-Martinez (2000) 114 A Crim R 533; [2005] NSWSC 129. 12 There are numerous authorities that relate to situations where a defendant enters a plea of guilty on receipt of legal advice that was not sound at the time it was given. There are authorities such as the decision of Maxwell v The Queen (1996) 184 CLR 501) where the Court decided that a plea bargain between the prosecution and the defendant in relation to manslaughter was unsound and decided to not accept the plea. The High Court of Australia found this a valid exercise of discretion. See also Norvenska v DPP [2007] NSWCCA 158, Wong v DPP [2005] NSWSC 129, Piras v R [2006] NSWCCA 396. 13 Further considerations mentioned in DPP (NSW) v Yeo [2008] NSWSC 953 were: (1) A person charged with an offence is at liberty to plead guilty or not guilty to the charge; whether or not that person is in truth guilty or not guilty, and a Court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the pea is entered in exercise of a free choice in the interest of the person entering the plea: Meissner v The Queen [1994-1995] 184 CLR 132 at 141. (2) A person may plead guilty upon grounds which extend beyond that person's believe in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen at 157; Wong v Director of Public Prosecutions at 45-46. 14 The most recent NSW authority on point 6 is Loury v R [2010] NSWCCA 158 which post dated this decision. That case refers to a number of authorities in paragraphs 97-100 15 There are three issues to consider in this case. Firstly, whether Holmes was induced to enter a plea of guilty. Secondly, whether when he entered a plea of guilty he did so genuinely and conscientiously admitting his guilt and thirdly, did he understand the elements of the offence. The offence has been the subject of a recent decision of the Land and Environment Court of NSW (Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4, at [6]-[8]). The case relates to a property in the Gwydir area in northern NSW where wetlands were destroyed by Hudson. The decision was handed down after Holmes was charged but it binds this Court. 16 Whether Holmes is successful in the application to change his plea depends on the evidence. Holmes entered a plea of guilty having had the opportunity of conferring with his legal advisor and he does so for a number of reasons. The first reason given for entering a plea of guilty is that he wished to avoid the cost of defending the proceedings, which were estimated by his solicitor to be tens of thousands of dollars. He took the view that in the interests of commerciality and economy that he would be best placed to enter a plea of guilty avoiding delay and expense. Holmes was under the impression that a small fine would be imposed and that there would be no reparation order made in relation to the land which DECC says had been affected by his conduct. 17 The land cleared is in excess of 240 hectares. Trees cleared included native vegetation which DECC argue Holmes destroyed without securing the necessary approvals. Holmes has throughout the proceedings been concerned about a reparation order because, on his own evidence, such an order would preclude use of the land for a significant period of time. Holmes had a number of conversations with Beaman from DECC about the likely sentence and he asked to be kept up to date and informed of any changes in the DECC's approach. 18 Beaman and Holmes had a number of conversations. The affidavit of Beaman refers to conversations on 16 January 2008 at Karumba Cotton, which is near Boomi, on 2 April 2008 and on 30 April 2008. There was an inspection of the property on 5 June 2008 and on 16 September 2008. There was also a view of the property organised by the Court on 1 October 2008. 19 During those conversations the Court finds that the DECC did not advise Holmes that there would be no remediation order made. Remediation was referred to in the conversations but at no time was it suggested by Beaman there would be no such order. Beaman mentioned to Holmes that there had been a case under similar provisions on the North Coast which had been dealt with by the Local Court. It was similar to this case and the land owner had been fined. 20 Beaman did not deny making reference to the case. He did not remember precisely the words used. He was trying to convey to Holmes an understanding that DECC was fair and reasonable in its dealing with people charged with offences and that this matter was not being presented in the Land and Environment Court but in the Local Court which has a significantly reduced jurisdiction. The Court does not find that he made reference to the coastal case to give some hint to Holmes about the likely outcome but rather as an indication of the fair way in which the DECC conducts its business and prosecutions. These conversations influenced Holmes' approach. 21 Holmes told Beaman on more than one occasion that he wished to be kept appraised of all developments in relation to the prosecution of the case. This was not disputed by Beaman. What Holmes was seeking was information about the likely outcome of the case should he enter a plea of guilty. 22 The importance of the information imparted by the DECC about outcomes was that Holmes had a concern all along about a remediation order being made. Holmes probably thought that remediation orders could be made after conviction. After he entered the plea of guilty, he remained concerned about the DECC's attitude to a remediation order. 23 The DECC pointed out that Holmes' understanding of the effect of a plea on a remediation order was wrong. The legislation makes it very clear that a remediation order can be made by the DECC regardless of whether any finding is made against the land owner or a plea of guilty is entered. A remediation order has nothing to do with the criminal proceedings before this Court. The remediation order can be made by the DECC under s 38 of the Native Vegetation Act 2003. Where the order is made and the land owner has an objection to it, there is a process for review in the Land and Environment Court of the remediation order under s 39 of the Act. 24 The legislation is clear on remediation orders. There is no evidence that Holmes understood the difference between the criminal proceedings before the Court and the remediation process. Remediation orders have nothing to do with whether there is a conviction or a plea of guilty leading to the conviction of a land owner. They can be made discreetly and in circumstances where a land owner is not convicted of any offence. 25 Holmes mistakenly may have believed there was a link between the two and that is why he was concerned about the impact that these proceedings might have upon the owner of the property, an American company. Holmes is the manager of the property. He entered a plea of guilty because of matters not associated directly with his consciousness of guilt but rather because of his commercial attitude to the proceedings and to the risk of a remediation order being made if he did otherwise. So far as his consciousness of guilt is concerned, at the time he entered the plea, he was of the view that he was in fact not guilty of this offence. It is said by the DECC that in his record of interview Holmes makes certain admissions to Beaman about what was going on. In the DECC's view Holmes had a clear understanding of the elements of this offence and that his entering a plea of guilty subsequently was an acknowledgement that he was conscious that he was guilty of the offence as charged. 26 A close reading of the record of interview and the evidence that was given in Court leads to the view that Holmes did not have a clear understanding of the elements of this offence. When asked about the planning process, he was vague. He did not do any more than acknowledge that at an earlier time he had sighted certain provisions of the Native Vegetation legislation but he was not familiar with its provisions. He advised that he was not the person responsible for the destruction of the native trees on the property. Another employee of the company was responsible for that work. That person was identified. He had the role of stockman on the property and it was his responsibility in Holmes' view to organise the land clearance in accordance with the legislative requirements. 27 He assumed that the stockman had obtained the necessary authorities to clear the land. Holmes asked the Stockman to ensure that necessary approvals were obtained. Holmes never thought that he was the person directly responsible for any offences alleged by the DECC. He does not deny that the stockman was a direct report to him. He does not deny giving directions to the stockman to get on and do the job. But he does deny that he carried out the clearance and he assumed that the stockman had approval for the land clearance on Karumba Cotton. 28 At the time he entered the plea of guilty he did not hold a genuine consciousness of his guilt but rather he entered a plea because he wanted to expedite the proceedings, save money and, hopefully, avoid a remediation order. Holmes says that he was induced into entering a plea of guilty by Beaman on behalf of the DECC in an improper way. The evidence does not support this. Rather, it is the Court's view that Holmes interpreted what he was told or not told by Beaman in a certain way. He was comfortable about entering the plea of guilty because he thought that no remediation order would be made and it would result in a better commercial outcome for the owners of the property. In that regard he was wrong. He was wrong in his understanding. He had not sought or obtained legal advice about remediation orders. His solicitors did not give him advice about remediation orders. Their advice focussed on the issues of costs. 29 The authorities establish that where a plea of guilty has been entered and it has been entered by a person who does not have a good understanding of the elements of the offence or who did not possess a genuine consciousness of guilt, the Court can grant an application to change the plea of guilty because to do otherwise would be a miscarriage of justice. 30 The application is granted by the Court to enable Holmes to change his plea for two reasons. First, at the time he entered the plea he did not possess a genuine consciousness of his guilt. Secondly, while not induced by improper conduct by Beaman, he did not have a clear understanding as to the implications of entering a plea of guilty to this offence. To deny the application would amount to a miscarriage of justice. 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