Thaler v Cooma Monaro Shire Council [2013] NSWLEC 126

Land and Environment Court New South Wales

Medium Neutral Citation: Thaler v Cooma Monaro Shire Council [2013] NSWLEC 126 Hearing dates: 2 August 2013 Decision date: 02 August 2013 Jurisdiction: Class 6 Before: Biscoe J Decision: Defendant was not convicted in his absence and therefore does not require leave to appeal Catchwords: APPEAL - against conviction in Local Court - whether defendant was convicted in his "absence" - if so leave to appeal required and the time for applying for leave had expired - defendant present throughout hearing in the Local Court but, having unsuccessfully applied to have the Magistrate recuse himself, told Magistrate he would not participate because he would not have the Magistrate hear it. Legislation Cited: Crimes (Appeal and Review) Act 2001 ss 4, 31, 32 Cases Cited: Director of Public Prosecutions v Arab [2009] NSWCA 75 Krakouer v The Queen [1998] HCA 43, (1998) 194 CLR 202 Texts Cited: Macquarie Dictionary (4th ed) Oxford English Dictionary (2nd ed) Category: Procedural and other rulings Parties: Andrew Thaler (Applicant) Cooma Monaro Shire Council (Respondent) Representation: COUNSEL: R O'Gorman-Hughes (Defendant) A Thaler, in person SOLICITORS: Bradley Allen Love (Applicant) N/A (Respondent) File Number(s): 60566/13

EX TEMPORE JUDGMENT 1This is an appeal by Mr Andrew Thaler against this conviction by the Local Court at Cooma on 27 November 2012 for failing to comply with conditions of a development consent. On the same day the appellant lodged a notice of appeal against conviction to this Court. The matter is now before the Court for directions. The appellant appears in person, as he did in the Local Court. 2The respondent prosecutor has raised a threshold issue as to whether the appeal is incompetent. The prosecutor contends that the appeal is incompetent because the appellant was convicted in his absence and therefore under the Crimes (Appeal and Review) Act 2001 requires leave to appeal (ss 31(1A), 32(1)) but is out of time for applying for leave to appeal (s 32(4)): 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence. (1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty. (2) An appeal must be made: (a) within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against conviction) may not be made before sentence is imposed.