Chokr v Liverpool City Council [2008] NSWLEC 58

Land and Environment Court of New South Wales

CITATION : Chokr v Liverpool City Council [2008] NSWLEC 58

APPELLANT PARTIES : Ali Hassan Chokr RESPONDENT Liverpool City Council

FILE NUMBER(S) : 60011 of 2007

CORAM: Pain J

KEY ISSUES: Appeal :- appeals against conviction in Local Court - environmental offences - illegal transport of waste to public park - circumstantial evidence - whether necessary to prove every intermediate fact beyond reasonable doubt in order to find guilt - appeals upheld

LEGISLATION CITED: Crimes (Appeal and Review) Act 2000 s 31, s 33, s 37, s 38, s 64 Protection of the Environment Operations Act 1997 s 143

Browne v Dunn (1893) 6 R 67 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 CASES CITED: Denning v Department of Environment and Conservation (2007) 153 LGERA 200 R v Birks (1990) 19 NSWLR 677 R v Byczko (No 2) (1977) 17 SASR 460 R v Shepherd (1990) 170 CLR 573

DATES OF HEARING: 26 November 2007

DATE OF JUDGMENT: 18 February 2008

APPELLANT Mr T Howard

LEGAL REPRESENTATIVES: RESPONDENT Mr M Wright SOLICITOR Marsdens

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pain J

18 February 2008

60011 of 2007 Chokr v Liverpool City Council

JUDGMENT 1 Her Honour: In these Class 6 proceedings the Appellant is appealing against his conviction in the Local Court on 13 March 2007 for twelve offences of illegally dumping waste in Craik Park, Austral, between 5 and 16 June 2006 in breach of s 143 of the Protection of the Environment Operations Act 1997 (the POEO Act). Each offence related to one pile of waste of approximately 10m3 found by the Prosecutor's officers in Craik Park. The waste was described variously as bricks, soil, concrete and timber together with, in every pile, mixed building waste. The charges were that on twelve occasions he was "a person who transports waste to a place that cannot lawfully be used as a waste facility for that waste". Time for appeal 2 Under s 31 of the Crimes (Appeal and Review) Act 2001 (the Appeal Act) there is an absolute right to appeal within 28 days and, under s 33, a right to appeal thereafter up to three months from the decision of the magistrate. The Notice of Appeal was lodged within the three month limit and forwarded incorrectly to the District Court registry. In Denning v Department of Environment and Conservation (2007) 153 LGERA 200 Preston J at [44] – [45] held that filing in the District Court was sufficient to meet the three month time limit for the lodging of an appeal in the Land and Environment Court of New South Wales and I adopt that finding in this matter. Leave to appeal was not opposed by the Council. I granted leave to appeal in the circumstances that the Appellant is not a native English speaker, requiring an interpreter during the hearing, he is of limited means, there was no substantial delay in lodging the appeal and the appeal lodged is against his conviction on the basis that he considers he is not guilty. Appeal on sentence not available 3 The Appellant's counsel also submitted that this appeal was against the severity of the sentence imposed in the event the appeal against conviction was not upheld. The Notice of Appeal refers only to an appeal against conviction because only B "I am appealing the above conviction/order BECAUSE I AM NOT GUILTY" is identified as the ground of appeal. The Notice of Appeal is unambiguous and cannot be now amended to include an appeal against severity as the three month absolute time limit in s 33 of the Appeal Act for such an appeal has expired; see Denning also at [48] – [53]. In light of these circumstances the only basis advanced was that s 64 of the Appeal Act could apply to enable an appeal against severity in the absence of reliance on the Notice of Appeal. That section states: If an appeal or application for leave to appeal has been duly made in respect of one conviction or sentence (the "primary conviction or sentence"), an appeal court may hear and determine an appeal or application for leave to appeal in respect of any other conviction or sentence made or imposed on the same day, and in respect of the same person, as the primary conviction or sentence, and may do so even though an appeal or application for leave to appeal has not been duly made in respect of the other conviction or sentence.