Land and Environment Court of New South Wales CITATION : Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 APPELLANT Michael Hume Fletcher PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 60003 of 2010; 60004 of 2010 CORAM: Pepper J KEY ISSUES: APPEAL :- appeal against conviction and sentence in one matter and against sentence only in another - whether it was in the interests of justice to permit fresh evidence to be given in each appeal - whether there were substantial reasons why it was in the interests of justice that the applicant and other individuals give oral evidence in each appeal - applicant self-represented - fresh evidence allowed in part - applicant allowed to give oral evidence in appeal against sentence only LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 ss 37, 38 Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 CASES CITED: Fletcher v Byron Shire Council [2010] NSWLEC 185 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 Thomson v Hawkesbury City Council [2009] NSWLEC 151 DATES OF HEARING: 29 October 2010 EX TEMPORE JUDGMENT DATE : 29 October 2010 APPLICANT Mr M Fletcher (in person) SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Mr T March (solicitor) SOLICITORS HWL Ebsworth Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 29 October 2010 60003 of 2010 Michael Hume Fletcher v Byron Shire Council (No 2) 60004 of 2010 EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: This was an application filed on behalf of Byron Shire Council ("the council") to restrict, in advance of two appeals from the Local Court by Mr Michael Fletcher, the fresh evidence that Mr Fletcher is seeking to adduce at the hearing of the appeals. 2 In so doing, the council relied on an affidavit of Mr Trent March sworn 13 October 2010. Mr March is employed by the solicitors acting for the council. 3 While Mr Fletcher is unrepresented before this Court, he was represented in the court below. Brief Summary of the Appeals 4 In proceedings 60003 of 2010 Mr Fletcher appeals against the conviction and sentence imposed by Lismore Local Court for ("the waste offences"): (a) the unlawful transportation of waste to a place that cannot lawfully be used as a waste facility for that waste; (b) the use of land as a waste facility without lawful authority; (c) the failure to comply with a clean up notice; and (d) the failure to comply with a prevention notice. 5 The appeal in proceedings 60004 of 2010 is an appeal against the sentence only imposed in Lismore Local Court for an offence relating to the unlawful clearing of trees by Mr Fletcher ("the tree offence"). Mr Fletcher pleaded guilty to this offence in Lismore Local Court. 6 Mr Fletcher initially sought to appeal both the conviction and sentence in the tree offence, but was not granted leave by the Court to appeal against his conviction because it was held by the Court that it did not have the power to grant Mr Fletcher leave to appeal by reason of the time bars in the Crimes (Appeal and Review) Act 2001 ("the Act"). This was because the application for leave to appeal the conviction was outside the 28 day and three month time period prescribed by ss 32(4)(a)(i) and 33(2) of that Act (see Fletcher v Byron Shire Council [2010] NSWLEC 185 at [6]-[11] per Biscoe J). 7 Mr Fletcher told the Court that in respect of the tree offence the plea of guilty was entered in the Court below contrary to his instructions. Moreover, and again contrary to Mr Fletcher's instructions, his legal representative did not adduce evidence from several key witnesses and did not put documentation before the Court that may have assisted him. Mr Fletcher also stated that he was not afforded an opportunity to give evidence with respect to that offence. This submission was not challenged by the council. 8 This is to be contrasted with the unlawful waste offences in which Mr Fletcher pleaded not guilty and in which he testified. Mr Fletcher does, however, make a similar complaint about the inadequacy of his legal representation. 9 It is against this background that the current application is brought. Statutory Framework 10 Sections 37 and 38 of the Act relevantly state as follows: 37 Appeals to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. 38 Circumstances in which evidence to be given in person (1) The Land and Environment Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. Nature of an Appeal Against Conviction and the Severity of Sentence 11 In Cameron v Eurobodalla Shire Council [2006] NSWLEC 47 Preston J elaborated upon the nature of an appeal against sentence (at [10]-[12]). A similar exercise was undertaken by me in Thomson v Hawkesbury City Council [2009] NSWLEC 151 (at [43]-[44]). 12 These principles, although articulated in the context of an appeal against sentence only, apply equally to an appeal against both conviction and sentence. 13 To summarise, under s 37(2) of the Act, the Court has a discretion to admit fresh evidence on appeal if it is of the opinion that it is in the interests of justice that it be admitted (Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [34] and Kari & Ghossayn Pty Ltd v Sutherland Shire Council (2006) 150 LGERA 231 at [13]). 14 Similarly, but more onerously from the perspective of Mr Fletcher, the Court may direct a witness to give evidence in proceedings on an appeal against conviction if it is satisfied that there are "substantial reasons" why it is in the interests of justice that that witness attend to give evidence. The inclusion of the words "substantial reasons" in s 38(1) of the Act clearly impose a higher threshold that an applicant seeking to compel the attendance of a witness to give evidence must meet than that contained in s 37(2). Fresh Evidence in the Waste Offences 15 The fresh evidence that Mr Fletcher wished to adduce in the waste offences appeal was as follows: Evidence List 1: All material filed for notice of motion previously filed on 27 th July 2010. 2: Council letter and map dated 23 July 2010. 3: Affidavit from Nigel Fletcher dated on 6/10/10 4: Affidavit from Robert Fletcher dated on 6/10/10 5: Affidavid from Ron Barnes dated on 6/10/10 6: Letter from Bruce Hammond engineer dated 8/10/10. 7: Witnesses to give evidence: Bruce Hammond, Nigel Fletcher, Robert Fletcher, Ron Barnes, Andrew Hill, Michael Fletcher. 16 After further discussion, it was agreed by Mr Fletcher that in relation to the evidence described in paragraph 7, he required neither Mr Bruce Hammond nor Mr Robert Fletcher to be called to give further evidence. Mr Fletcher also agreed that in respect of paragraph 1, the reference to "27th" July 2010 was an error and that the correct reference should have been 7 July 2010. 17 Turning first to the so-called fresh evidence referred to in the "material filed for notice of motion previously filed on" 7 July 2010, an examination of this material revealed that none of it was evidence. Rather, the material consisted of extracts of legislation and cases, all of which, assuming its relevance, could be put before the Court by Mr Fletcher at the appeal. Accordingly, leave was refused on the basis that this material was not evidence. 18 Second, the council letter and map referred to in paragraph 2 of the evidence list was, Mr Fletcher submitted, necessary to be admitted because it assisted in proving that the waste giving rise to the offences, namely, the rubble on the road, ought not to have been the subject of prosecution (and thus conviction) because either the road was not owned by the council or, alternatively, the road was not in the council's care and control at the time. Mr Fletcher submits that inadequacies in his legal representation in the court below is the reason why this letter was not put before the learned magistrate. 19 While it is difficult to understand immediately how such an argument assists Mr Fletcher in respect of either the appeal against conviction or sentence, I am cognisant of the fact that Mr Fletcher, as a self-represented litigant, has not articulated the grounds of his appeal as crisply and pellucidly as the Court would expect from an appellant who was legally represented. 20 I am also cognisant of the fact that this application is interlocutory in nature only. I do not, unlike the judge hearing and determining the appeal, have the benefit of full argument on the grounds of appeal. While it is understandable that the council has sought to avoid an inefficient use of hearing time by bringing this application in advance of the hearing, in many respects it would have been more appropriate and ultimately, I suspect, more efficient, at least from the Court's perspective, for the application to adduce fresh evidence to have been heard by the judge determining the appeal. 21 Giving Mr Fletcher the benefit of the doubt, I find that it is in the interest of justice that the letter and map be admitted into evidence. 22 Third, the affidavits of Mr Nigel Fletcher, Mr Robert Fletcher and Mr Ron Barnes, all dated 6 October 2010, fall into a similar category. Mr Fletcher seeks to adduce this fresh evidence because these witnesses are able to elaborate upon why the 'waste' ought not properly be construed as such and to explain its presence on the property. In addition, Mr Nigel Fletcher is able to give evidence that some of the so-called waste the subject of the offences was in the process of being removed from the property when the council issued its stop work order. 23 Again Mr Fletcher points to inadequacies in his legal representation that caused his instructions not to be followed resulting in these witnesses, which may have assisted him, not being called to give evidence in the court below. 24 In the absence of any evidence refuting Mr Fletcher's claims as to the failure of his legal representative in the Local Court to carry out his instructions, and having regard to the relevance of the content of the evidence sought to be adduced, leave is granted to admit this fresh evidence on the basis that it is in the interests of justice to do so. 25 Fourth, in relation to the letter from Mr Bruce Hammond dated 8 October 2010, while Mr Hammond gave evidence before the learned magistrate to the effect that there was no pollution caused by the presence of the waste on the property, this evidence did not state that his inspection of the stockpiled material and the material used for the road maintenance revealed that there were no contaminants whatsoever contained in it. It is this material that Mr Fletcher now wishes to adduce. 26 Again, having regard to the fact that Mr Fletcher is presently self-represented and to the complaint he makes about the way in which the proceedings below were conducted on his behalf, I find that it is in the interests of justice that this fresh evidence be admitted. 27 Fifth, Mr Fletcher also sought leave to call the following witnesses to give evidence: (a) Mr Bruce Hammond; (b) Mr Nigel Fletcher; (c) Mr Robert Fletcher; (d) Mr Ron Barnes; (e) Mr Andrew Hill; and (f) himself. 28 With respect to Mr Nigel Fletcher and Mr Ron Barnes, Mr Fletcher stated that these individuals were needed to give oral evidence of conversations that had taken place between themselves and various council officers. Mr Fletcher, however, was unable to give further details of the content of these conversations. 29 Given that leave had already been granted to admit fresh evidence in the form of affidavits from these individuals, and in light of the absence of particulars as to what this additional oral evidence would entail, I declined to grant leave on the basis that substantial reasons were not given by Mr Fletcher warranting the attendance of these individuals at the appeal. 30 However, the Court indicated to Mr Fletcher that he was not precluded from serving drafts of any further affidavits that he wished to obtain from these individuals and from renewing an application for leave before the appeal judge in respect of this additional fresh evidence. 31 In respect of Mr Andrew Hill, a council officer, Mr Fletcher indicated that he had sought his attendance only as a matter of fairness to the council. The council, however, indicated that it did not require Mr Hill to be present as a witness. On this basis, the Court refused leave. 32 Mr Fletcher's application with respect to himself was based on three "substantial reasons": (a) first, the failure of his legal representative to adduce evidence below of conversations between council officers and Mr Nigel Fletcher; (b) second, the failure of his legal representative to adduce evidence below as to why the 'waste' material was present on his property; and (c) third, a desire to give general evidence as to the activities being carried out on the property in order to explain why the so-called waste material was present on it. 33 However, an examination of the transcript revealed that these matters were extensively canvassed in the court below. In particular, Mr Fletcher was given ample opportunity to explain why the various articles of waste were present on the property and what purpose each served. On this basis the Court declined to grant Mr Fletcher leave to testify at the appeal. 34 Mr Fletcher asked for further time in which to examine the transcript. This was declined, but again it was noted that there was no impediment to Mr Fletcher making a further application to permit himself to testify before the appeal judge. Fresh Evidence in the Tree Offence 35 In relation to the tree offence, the fresh evidence that Mr Fletcher sought to rely upon in that appeal was as follows: 1: Zoning plan 1A rural 2: Faxed letter Greg Murrell dated 1/1/2007, statutory Declaration Greg Murrell dated 12/2/2006 3: Letter from Dean Benson dated 5/2/2010, copy of photo of reliant trees. 4: Letter from Ron Barnes dated 4/2/10, Affidavit Ron Barnes 6/10/10 5: Affidavit from Chris Lonergan dated 6/10/10. 6: Affidavit from Nigel Fletcher dated 6/10/10. 7: Affidavit from Robert Fletcher dated 6/10/10. 8: Various uses of product from Melaleuca Quinquenervia (tea tree), marked pages 1 to 13. 9: Extract from record of interview with council on 25/1/06 pages 25 to 30 and page 35. 10: Witnesses to give evidence: Ron Barnes, Nigel Fletcher, Robert Fletcher, Michael Fletcher, Andrew Hill. 36 Mr Fletcher submitted generally that leave ought to be granted to adduce the fresh evidence in respect to the tree offence because he had removed the trees lawfully. Such evidence, however, cannot be relevant to an appeal against sentence only, other than in respect of revealing the offender's state of mind at the time of the commission of the offence. 37 Principally, the bases of Mr Fletcher's appeal in the tree offence was that, first, the vegetation cleared by him were tea trees that had been planted and removed for commercial purposes. And second, that the land had been previously cleared by antecedent owners of the land, a fact that the council was aware of. 38 The council accepted as an agreed fact for this appeal that at the time of the removal of the tea trees, Mr Fletcher's state of mind was that the trees had been grown and removed pursuant to a specific commercial purpose. The council went on to clarify this concession by saying that it did not accept that the removal of the trees the subject of the offence had been cleared pursuant to an actual commercial enterprise, but rather that Mr Fletcher had at all times believed the tea trees were a commercial crop planted for agricultural use. 39 Turning to the fresh evidence Mr Fletcher sought to adduce in the tree offence appeal, first, in relation to the zoning plan, the Court granted leave to adduce this fresh evidence on the basis that it may have some bearing on whether or not the council had permitted this land to be cleared in the past and because of Mr Fletcher's claim that he had been inadequately represented below. Further, it was somewhat ambiguous, having regard to the judgment of the court below, whether or not the zoning of the cleared land had been in evidence before the learned magistrate. The Court held that in all the circumstances it was in the interests of justice to admit this material. 40 Second, the Court declined leave to admit the evidence of Mr Greg Murrell. This is because of the council's concession that Mr Fletcher's state of mind at the time of clearing was that the tea trees had been grown pursuant to a commercial enterprise. Mr Murrell's evidence did no more than confirm this accepted fact. It was therefore not in the interests of justice to permit this evidence to be adduced because it was not required. 41 Third, a letter from Mr Dean Benson together with photographs of tea trees were the subject of a grant of leave to adduce fresh evidence by the Court. Mr Benson is a qualified horticulturist. His evidence is to the effect that, first, many of the tree trunks removed ought to have been classified as one tree, second, a majority of the removed trees were wood chipped and used to replenish soil nutrients in vegetation areas, third, the area fenced for regeneration was appropriate for the regrowth of the tea tree species removed, and fourth, that contrary to the evidence of Mr Andrew Hill from the council, the tea tree species removed by Mr Fletcher were a species used in the tea tree oil industry. While Mr Fletcher could not satisfactorily explain why this evidence was not put before the court below, I nevertheless concluded, given his unrepresented status and the relevance of this material, that it was in the interests of justice that it be adduced at the appeal. 42 Fourth, the Court granted leave to adduce the fresh evidence of Mr Ron Barnes contained in a letter to the court below and a more recently sworn affidavit. It was held to be in the interests of justice to permit this evidence to be adduced on the basis of Mr Fletcher's self-represented status, his complaint about the conduct of the proceedings below by his legal representative and because the evidence purportedly demonstrated that the land where the trees were removed had previously been cleared and was the subject of earlier disturbance. 43 Fifth, Mr Fletcher sought to adduce affidavit material from Mr Chris Lonergan, Mr Nigel Fletcher and Mr Robert Fletcher. Leave was not granted to adduce the affidavit of Mr Chris Lonergan because its contents related solely to the issue of conviction and not to sentence. 44 In relation to the affidavits of Mr Nigel Fletcher and Mr Robert Fletcher, both of these affidavits did no more than state that Mr Fletcher was growing tea trees for a commercial purpose. Given the concession made by the council and given that the best evidence of Mr Fletcher's intention in relation to the growing of the tea trees will come from Mr Fletcher, leave was not given to adduce this further evidence as it was not in the interests of justice to do so. 45 Sixth, Mr Fletcher sought leave to adduce various internet printouts of the uses of tea trees. Again, Mr Fletcher submitted that this evidence was necessary to demonstrate the commercial use to which the tea trees were put. Again, in light of the concession made by the council it was not necessary for this evidence to be adduced. Moreover, the precise provenance of this material was not readily apparent. Leave was therefore declined on the basis that it was not in the interests of justice to grant it. 46 Seventh, it was agreed by the parties that the record of interview between Mr Fletcher and the council ought to be before the appeal judge as it formed part of the evidence in the proceedings below. Accordingly, it was not necessary for Mr Fletcher to press that this material be admitted as fresh evidence because it was not 'fresh'. 47 Finally, Mr Fletcher sought leave to compel the attendance of Mr Ron Barnes, Mr Nigel Fletcher, Mr Robert Fletcher, Mr Andrew Hill and, again, himself, as witnesses. 48 In light of the written material in respect of which leave had already been granted in relation to Mr Ron Barnes, Mr Fletcher was not able to demonstrate substantial reasons as to why oral evidence from him ought to be permitted at the appeal. Accordingly, leave was denied in respect of Mr Barnes. 49 Leave was also denied in respect of Mr Nigel Fletcher, Mr Robert Fletcher and Mr Andrew Hill. The oral evidence of Mr Nigel Fletcher and Mr Robert Fletcher was, according to Mr Fletcher, substantially the same as the written material in respect of which leave had previously been refused. Substantial reasons were not demonstrated by Mr Fletcher as to why these two witnesses ought to attend to give oral evidence. 50 Leave was not permitted to call Mr Andrew Hill as a witness for reasons identical to those given in relation to the waste offences appeal. 51 However, as Mr Fletcher did not give evidence in the court below because, he submitted, contrary to his instructions a plea of guilty was entered on his behalf and because he was not afforded the opportunity of doing so by his legal representative, it was found to be in the interests of justice that Mr Fletcher be permitted to give oral evidence in relation to the appeal against sentence only. Costs 52 Because neither Mr Fletcher nor the council were wholly successful, it was appropriate that each party bear their own costs of the application brought by the council. Neither Mr Fletcher nor the council cavilled with this order. Orders 53 The council had helpfully prepared short minutes of order which, subject to amendment by me in conformity with the reasons expressed above, were appropriate to be made. 54 The orders of the Court are therefore as follows: (1) the Court makes orders in accordance with the amended short minutes of order; and (2) each party is to bear their own costs of the application. ********** 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.