Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 2) [2014] NSWLEC 78 Hearing dates: 12 June 2014 Decision date: 12 June 2014 Jurisdiction: Class 5 Before: Craig J Decision: 1. Notice of motion dated 11 June 2014 is dismissed. 2. Trial dates confirmed 16 - 19 June 2014. Catchwords: PRACTICE AND PROCEDURE - motion seeking vacation of trial dates - trial dates vacated on prior occasion - self-represented defendant - ample opportunity already afforded to obtain representation - interests of justice - motion dismissed Legislation Cited: Criminal Procedure Act 1986 (NSW) Protection of the Environment Operations Act 1997 (NSW) Cases Cited: Environment Protection Authority v Sydney Drum Machinery Pty Ltd [2014] NSWLEC 10 Category: Procedural and other rulings Parties: 50007-50009 of 2013 Environment Protection Authority (Prosecutor) Sydney Drum Machinery Pty Ltd (Defendant) 50010-50012 of 2013 Environment Protection Authority (Prosecutor) Imad Osman-Kerim (Defendant) Representation: J Giles (Prosecutor) Self represented (Defendant) Legal Department, Environment Protection Authority (Prosecutor) Self represented (Defendant) File Number(s): 50007 - 50012 of 2013 EX TEMPORE Judgment 1Sydney Drum Machinery Pty Ltd is charged with a number of offences involving breaches of the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act). Mr Osman-Kerim, a director and shareholder of the company is also charged with offences against the POEO Act. 2These proceedings were commenced in January 2013. At various times the matters have been listed before the Court in accordance with its usual practice in an endeavour to have the matter properly prepared for hearing. That preparation involved directions for the service of notices under Div 2A of Pt 5 of the Criminal Procedure Act 1986 (NSW). Ultimately, on the seventh mention of the matter in October 2013, a trial date was fixed. That trial was fixed for a four day hearing commencing on 17 February 2014. 3Approximately 10 days prior to the date fixed for hearing, Mr Osman-Kerim moved the Court to vacate the trial dates. At that time he provided evidence to Biscoe J indicating why it was that the hearing should be vacated. In short, the reasons that were then given and accepted by his Honour were that Mr Osman-Kerim and his Company had recently lost the benefit of legal representation due to his and the Company's impecuniosity. 4As recorded in his Honour's judgment (Environment Protection Authority v Sydney Drum Machinery Pty Ltd [2014] NSWLEC 10) the evidence given for the position in which Mr Osman-Kerim found himself was that his Company's factory had burnt down causing the closure of the business conducted on those premises. Mr Osman-Kerim indicated to his Honour that there were people who owed him money and were expected to honour their debts. His expectation was that he would be in funds from debtors within two months. He stated that he wished to maintain his defence of the proceedings, that is to say, to maintain his plea of not guilty, and would benefit by having legal representation to argue his defence. 5His Honour accepted those matters as being a basis upon which the trial dates should then be vacated. However, he acknowledged the concern expressed by the Prosecutor and also indicated the concern of the Court as to the long history of the proceedings and said at [4] of the judgment: "Given the relatively long history of the proceedings, any further delay in bringing the finality would be (to say the least), unfortunate. However, on this occasion, on balance, I consider that the considerations to which I have referred should incline the Court to vacate the trial dates and fix new trial dates in two months' time." 6As it happened, the expectation then held by his Honour as to the time by which the new trial would take place did not occur. The trial is presently fixed to commence next Monday, 16 June 2014. By Notice of Motion filed yesterday, Mr Osman-Kerim seeks to vacate the trial dates. He remains self-represented and relies in support of his application upon what are essentially the same facts as those that founded his application to Biscoe J in February last. He adds, albeit not as an event occurring since the matter was considered by the Court in February, that he sold his house and did so in order to fund approximately $260,000 for legal professionals to assist him in another case. He also states that he has land overseas that he wishes to sell or has contemplated selling and which would realise funds enabling him to fund legal representation. 7Further, he now says that while he is still owed money by debtors, he has an expectation that those moneys will be received by 15 August 2014. When questioned as to the significance of that date in the context of moneys said to be owed to him, unfortunately Mr Osman-Kerim was not able to be specific as to the expectation of payment to him by that date. While he expressed confidence that funds would be available, no foundation for what was, in reality, a hope, was identified. 8The application to vacate the dates was opposed by the EPA. Mr Giles, who appeared for the Prosecutor, relied upon the long history of these proceedings in which ample opportunity had been afforded to Mr Osman-Kerim to have the matter prepared for hearing. He also submitted that there is no basis upon which the Court can be satisfied that funds that Mr Osman-Kerim hopes to be available to him will in fact be available, even if the matter is adjourned from next week to a date in July or August next, as Mr Osman-Kerim stated would be the case. Mr Giles also refers to the fact that the sum of $260,000 which, on the evidence before me today, is the sum yielded from the sale of Mr Osman-Kerim's home was paid to fund other legal proceedings. Obviously that was a choice that Mr Osman-Kerim made but why that choice was made is not explained. Mr Osman-Kerim has been facing the present proceedings for almost 18 months. Those circumstances cannot be ignored in considering the weight of his application. He has at all times expressed the desire to be legally represented in the proceedings yet has not chosen to preserve funds for that purpose. 9As was also observed by Mr Giles, given the history of these proceedings, there is a public interest in ensuring the due dispatch of trials. There is a public interest in ensuring that matters which involve allegations of breach of the law attracting penalties are brought to finality. While the Court would certainly be assisted if legal representation was available, the fact that Mr Osman-Kerim is unable to afford legal representation at the present time cannot (given the past history of the matter) be used as a basis upon which to further delay the trial. 10The trial dates for next week were fixed some months ago. Indeed, in preparation for the hearing there was a pre-trial mention listed for last Friday, 6 June 2014, to enable the Court to ensure that the matter was ready for hearing. When the matter was called last Friday there was no appearance by Mr Osman-Kerim. He explains that he did come to the Court building at some time before the Court was due to sit and then, because of personal indisposition, went to a coffee shop from which he returned some 2 hours later, only to find that the hearing of matters in the List in which his matters were included had been completed. His presence at Court that day was not made known either to any representative of the Prosecutor nor any Court official. That is unfortunate but what his application or position would then have been is not stated. All that can be observed is that the notice of motion to vacate the trial dates was filed, as I have said, only yesterday. 11While the interests of justice might appear to be served by granting a further adjournment, equally the interests of justice are served by ensuring that the trial proceeds after the very lengthy delay to which I have referred. There has been ample opportunity already afforded to Mr Osman-Kerim to either obtain legal representation or make other arrangements to ensure that he was appropriately prepared for trial. That has not come to pass through any fault of the Prosecutor, nor of the Court. 12For the reasons that I have indicated the application to vacate the trial dates is refused. The hearing of the trial will commence as appointed on Monday 16 June 2014. 13The formal orders I make are: (1)Notice of motion dated 11 June 2014 is dismissed. (2)Trial dates confirmed 16 - 19 June 2014. ********** Amendments 13 July 2015 - Amendment to Cover Sheet, Parties: matter numbers changed to read "50007-50009" of 2013 (previously "5007-5009") 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. Decision last updated: 13 July 2015