> Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Waight [2003] NSWLEC 75 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Waight FILE NUMBER(S) : 50019 of 1999 and 50020 of 1999 CORAM: Pearlman J KEY ISSUES: Practice and Procedure :- stay of proceedings - contempt - failure to establish unfairness LEGISLATION CITED: Environmental Offences and Penalties Act 1989 CASES CITED: Comet Products UK Ltd v Hawkex Plastics Ltd (1971) 2 QB 67; Jago v District Court (NSW) (1989) 168 CLR 23 DATES OF HEARING: 24/03/2003 DATE OF JUDGMENT: 03/25/2003 PROSECUTOR Mr D Buchanan SC SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr J Laucis (Barrister) SOLICITORS N/A JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50019 of 1999 and 50020 of 1999 Pearlman J 25 March 2003 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v MICHAEL JEFFREY WAIGHT Defendant Judgment Introduction 1 The defendant, Mr Michael Waight, has made an application for the permanent stay of contempt proceedings brought against him by the prosecutor, the Environment Protection Authority. 2 On 22 June 2001, this Court found the defendant guilty of two offences under the Environmental Offences and Penalties Act 1989 ("the EOP Act"). He was fined, and was ordered to carry out remediation works pursuant to s 14 of the EOP Act. 3 The prosecutor now alleges that the defendant has failed to comply with the order to carry out remediation works, and it seeks a finding to that effect, and an order punishing the defendant. The competing cases 4 Mr Laucis, appearing for the defendant, put the case for a permanent stay as follows: 1. On 11 October 2002, Talbot J gave a direction to the defendant to file and serve the evidence upon which he wished to rely in his defence. (There is a question as to whether such a direction was actually given. For the purpose of setting out the defendant's case, I shall assume it was given, but I shall return later to consider what was actually said by his Honour on that occasion). 2. In an endeavour to meet that "direction", the defendant filed and served two affidavits. Both were in the process of being settled by Mr Laucis by means of telephone conversations with the defendant (who lives on the Central Coast), but before they were in proper form, the defendant filed and served them, anxious, so Mr Laucis said, to meet the deadline imposed by Talbot J. 3. As a consequence of the filing and serving of those two affidavits, the prosecution now knows the defendant's defence, and the material upon which the defendant intended to rely. 4. However, a party charged with contempt cannot be compelled to give evidence against his will so as to incriminate himself – Comet Products UK Ltd v Hawkex Plastics Ltd (1971) 2 QB 67. Accordingly, the "direction" was wrongly given. 5. At the time the "direction" was given, the prosecutor stood by and did not point out the defendant's right not to disclose his defence. 6. That stance of the prosecutor has to be considered in the light of a number of matters of error concerning the actual trial before Sheahan J. Those matters included, first, the fact that, although plea of guilty was entered, the trial went for 20 days and involved 47 affidavits, secondly, that the defendant remained on bail throughout the proceedings, thirdly, the doubtful circumstances in which the prosecutor had conducted a search of the defendant's property, fourthly, that the prosecutor attempted to rely on matters the subject of two further charges against the defendant which had been dropped. In Mr Laucis' submission, all these matters indicated that the prosecutor was determined to run a "showcase" trial, which amounted in effect to persecution of the defendant. 7. Having regard to the foregoing circumstances, the present contempt proceedings should be permanently stayed on two grounds. First, the prosecutor's awareness of the defendant's defence has placed the defendant in an unfair situation. Secondly, to a bystander, the Court will be seen to have become embroiled in what looks like persecution of the defendant, placing the Court in an invidious position. 5 The prosecutor opposes the grant of a permanent stay. Mr Buchanan SC, appearing for the prosecutor, put the following propositions. First, there was no "direction" given by Talbot J on 11 October 2001. Secondly, even if there had been a direction given, it would not breach the privilege against self-incrimination so as to justify a permanent stay of proceedings. Thirdly, the filing of the affidavits must be regarded as a waiver of the privilege, since their filing and service supports a finding of an intention to waive the privilege, an intention which was formed when legal advice was available to the defendant, supporting an inference that the intention was legally informed. Fourthly, the matters raised by the defendant about the conduct of the trial were not linked explicitly to any prejudice suffered by the defendant, and they should be given no weight. 6 Finally, Mr Buchanan gave an undertaking to the Court not to use either of the defendant's affidavits in the case for the prosecution in these contempt proceedings. The "direction" 7 The Court's records disclose the following history of the contempt proceedings: 29 August 2002: Filing of notice of motion seeking that the defendant be adjudged guilty of contempt, returnable on 18 September 2002; 18 September 2002: Matter listed before Talbot J. Mr Buchanan appeared for the prosecutor, the defendant appeared in person. Stood over for mention before Talbot J on 9 October 2002; 9 October 2002: Matter listed before Talbot J. Mr Buchanan appeared for the prosecutor, Mr Laucis for the defendant. The defendant was given leave to file a notice of motion returnable on 11 October 2002, and the matter was stood over for the hearing of that notice of motion on that date; 11 October 2002: Matter listed before Talbot J. Mr Buchanan appeared for the prosecutor, Mr Laucis for the defendant. Leave was given to the defendant to file in Court a notice of motion seeking an extension of three months for compliance with the Court's orders. The Court's file contains the following notation: Expect D to f/s aff ev in reply 13-12-02. NB anticipation of difficulty SO further directions LJ 9:30 20-12-02 Set matter down H (5 days) Direct parties app Reg this am for H date in March 20 December 2002: Matter listed before Talbot J. Mr Buchanan appeared for the prosecutor, Mr Laucis for the defendant. The Court's record notes the filing of evidence, and the matter to proceed to trial. 8 I do not consider that a formal direction to the defendant to file and serve evidence in reply by 13 December 2002 was given by his Honour on that date. No transcript was produced. Mr Buchanan's recollection is that no direction was sought. The reference to "expect" and the note about "anticipation of difficulty" suggests that his Honour was not making a formal direction but expressing a hope or preference that the defendant would file and serve evidence by the nominated date. On the other hand, even the expression of a hope or preference could readily have been understood by the defendant to be a formal direction. Mr Laucis candidly admitted in the course of the hearing of this stay application that he believed a formal direction had been made, and that he fell into error at that stage in failing to understand that these were criminal proceedings in which the defendant was not required to give evidence that might incriminate himself. That understanding did not come to him until the preparation for this hearing. 9 I am prepared to proceed on the basis that, although no direction was made, the defendant and his counsel understood it to have been made, and the defendant hastened to comply even though the affidavits had not been settled. A permanent stay? 10 In Jago v District Court (NSW) (1989) 168 CLR 23, Mason J at p 34 said: To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J. 11 In the same case, at p 33, Mason J said: The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial … 12 It is difficult in this case to understand the extent to which the defendant might be denied fairness in the contempt proceedings. For the prosecutor to succeed in the charge against the defendant, it must prove that the remediation orders made by the Court under s 14 of the EOP Act have not been complied with. Those orders require work to be carried out. Either that work has been carried out, or, or it has not. It is for the prosecutor to prove that it has not. If it fails to do so, the defendant is not guilty. If it does so, the defendant is guilty, but may provide a "defence" which is really a plea in mitigation. And it is to be borne in mind that the prosecutor has undertaken to the Court not to rely on the defendant's affidavits to make out its case. In all these circumstances, it is difficult to see what particular unfairness arises from the disclosures the defendant could have made in his affidavits. Despite urging by the Court, Mr Laucis was not able to articulate the unfairness other than to say it arises from the fact that the prosecutor now knows the defendant's defence. 13 The second basis for a stay was said to be the appearance that the Court was somehow acting unfairly in assisting the prosecutor to "persecute" the defendant. That allegation seems to me to be completely without foundation. I say that for these reasons. First, the Court did not make a formal direction. Secondly, the Court could not and should not at this stage re-visit the initial trial in order to make some determination of unfairness at the time which would carry over into the present contempt proceedings so as to substantiate a finding of persecution of the defendant. Thirdly, the defendant has had legal representation at all material times in connection with these contempt proceedings. 14 The balancing act requires the Court to consider the community expectation. That expectation in this case, in my opinion, weighs heavily against a permanent stay of the proceedings. The defendant was convicted of two offences. The first was that without lawful authority he negligently disposed of waste in a manner that harmed the environment, in contravention of s 5(1) of the EOP Act. The second was that without lawful authority he negligently caused a substance to escape in a manner which harmed the environment in contravention of s 6(1) of the EOP Act. The commission of both offences, therefore, involved harm to the environment. The orders made by the Court under s 14 were directed to the remediation of that harm. The Court regards as serious an allegation of a breach of any of its orders. The community has a right to expect compliance with court orders, and a right to expect that those who are charged with contravening them be brought to trial, and if found guilty, punished for their contempt. Order 15 In accordance with the foregoing, I dismiss the defendant's application for a permanent stay of these proceedings. 16 I reserve the question of costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.