Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 3) [2014] NSWLEC 79 Hearing dates: 16 - 18 June 2014 Decision date: 18 June 2014 Jurisdiction: Class 5 Before: Craig J Decision: 1. Stand over the trial part-heard to Thursday 3 July 2014 at 9.15am for directions and to fix a date for hearing. 2. I note the offer of the Prosecutor to approach the Law Society of New South Wales to indicate the desirability of providing assistance to the Defendants in the further conduct of this trial. Catchwords: PRACTICE AND PROCEDURE - application by prosecutor for adjournment of trial - trial already commenced -self-represented defendant - evidence appeared not to have been read or understood by defendant - limited capacity to read English - potential for trial to miscarry - not a fair trial - adjournment granted 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 Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 2) [2014] NSWLEC 78 Category: Procedural and other rulings Parties: 5007-5009 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 with S Lees (Prosecutor) Self represented (Defendant) Legal Department, Environment Protection Authority (Prosecutor) Self represented (Defendant) File Number(s): 50007 - 50012 of 2013 EX TEMPORE Judgment 1The trial of these matters commenced on Monday last, it now being the afternoon of the third day of that trial. Regrettably, it has become necessary to adjourn the trial, part heard, in the circumstances shortly to be related. 2Prior to the commencement of the trial, Mr Osman-Kerim, who is self-represented, had applied to vacate the trial dates. He is not only one of the Defendants, but was the sole director of the defendant company at the time of the offences alleged against both of them. Mr Osman-Kerim's application to vacate the trial dates was determined by me on Thursday 12 June 2014 when I dismissed his application. The reasons for so-doing are the subject of a separate judgment (Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 2) [2014] NSWLEC 78. 3When the trial commenced on Monday last, Mr Osman-Kerim was represented by Mr Segal of counsel who indicated that his instructions were received only that morning and that those instructions were limited to making a further application to vacate the trial dates. For reasons then articulated, I refused that application. 4After the trial was opened on behalf of the Prosecutor, it became apparent on Monday afternoon that the large number of documents that had been prepared and served some time ago on behalf of the Prosecutor were not in Mr Osman-Kerim's possession. When refusing Mr Osman-Kerim's motion to vacate the trial dates on Thursday last, I had gained the clear impression from him that the documents were in his possession. However, he informed me on Monday afternoon that the documents remained with his former solicitors but that he did not anticipate any difficulty in obtaining them. 5Evidence that did not appear to be controversial was received in the course of Monday afternoon. However, at the conclusion of the hearing on Monday I asked Mr Osman-Kerim to attend the office of his former solicitors for the purpose of collecting all remaining documents that had been served by the Prosecutor. He acknowledged that he would do that. 6When the trial resumed on Tuesday, the limited number of documents that Mr Osman-Kerim placed on the Bar table indicated to me either that he had all the documents served by the Prosecutor elsewhere in Court or that he had not obtained them as he had promised to do. When I enquired as to whether the documents had been collected from his former solicitor as I had requested, he stated words to the effect that he had been given some documents that morning by his former solicitor, with the invitation to return "when he had finished for the day" to collect the remainder of those documents. That was clearly unsatisfactory. 7As a consequence, after reading further affidavits that did not appear to be directed to matters that were likely to be controversial and having heard the deponents of two of those affidavits whose evidence was not challenged by Mr Osman-Kerim, I adjourned the trial at about 12.30pm. Again, I requested that Mr Osman-Kerim attend the offices of his former solicitors for the purpose of collecting all of the documents that had been served by the Prosecutor. I also urged him to read the affidavits and the documents exhibited to those affidavits with a view to resuming the hearing today. 8Before adjourning yesterday I had requested the Prosecutor to identify witnesses intended to be called today. I indicated to Mr Osman-Kerim the likely order of those witnesses and therefore the order in which the affidavits that he was to collect should be read for the purpose of proceeding with the evidence today. I explained that he would have the opportunity to cross-examine those witnesses and should therefore consider the questions that he would wish to ask. He indicated that he would do as I had requested. 9At the commencement of today's hearing the Prosecutor formally read five affidavits prepared by Mr Alex Bourne, one of the principal witnesses for the Prosecution. Mr Bourne was the investigating officer for the Prosecutor who was responsible for many visits to premises of the defendant company and whose evidence covers not only observations made at the time of his various visits but also conversations had with Mr Osman-Kerim and his staff concerning activities within those premises which were critical to the commission of the offences that are charged. 10Once the evidence in chief of Mr Bourne had concluded, Mr Osman-Kerim was invited to commence his cross-examination. Although the purpose of cross-examination was explained to Mr Osman-Kerim and the nature of the matters that might be the subject of questions by him identified, it immediately became apparent that he was unable to proceed. This was for two reasons. First, it appeared that while he may have looked at the affidavits sworn by Mr Bourne, the evidence contained within them had not been understood and, importantly, he acknowledged that he had not even commenced to look at the documents that were exhibited to Mr Bourne's various affidavits. Those exhibited documents ran into several hundred pages. 11Although Mr Osman-Kerim presented as being fluent in the English language, it was apparent that English was not his first language. The country of his birth was Iraq. Importantly, although he had stated in response to a question from me on Thursday last that he could read documents, today he has stated that his capacity to read English is limited - a capacity he described as being "only 20%". 12That circumstance, coupled with the volume of material that he had only yesterday collected from his former solicitors, caused me to question whether the trial should proceed on the basis that evidence provided by affidavit and not given orally be accepted as the evidence in chief of the Prosecution's witnesses. Given the limitations under which Mr Osman-Kerim was conducting the defence, there appeared to be potential for the trial to miscarry, in the sense that it may be said that it was not a fair trial. 13That state of affairs was also apparent to Mr J Giles, who appeared for the Prosecutor. As these events unfolded, Mr Giles requested a short adjournment to enable him to consider the position that the Prosecutor should take. When the matter resumed at 2.00pm, he articulated a concern that in leaving affidavits to be read by the Court, the process may not involve a fair trial because of the inability of Mr Osman-Kerim to read the large number of documents that the Prosecutor had served upon the Defendants. He stated that he also had understood from the question posed by me to Mr Osman-Kerim on Thursday last that the latter not only had the Prosecutor's documents but that he was able to read them. However, observing Mr Osman-Kerim's manner in Court and the statements made today as to his limited capacity to read documents, founded his application for an adjournment. 14The application made by Mr Giles was that the trial be adjourned for two weeks to enable consideration to be given to the manner in which the trial should proceed and as to whether the tender of the evidence received thus far should be revisited and re-tendered in a different way. The adjournment sought (that I consider appropriate in the circumstances) will enable two matters to be addressed. 15First, it will provide an opportunity for Mr Osman-Kerim, either on his own account or with such assistance as he may seek, to read the documents that the Prosecutor has served. The adjournment will also allow consideration to be given and submissions made as to whether the evidence in chief of the Prosecution's witnesses should be given orally rather than by the Court being invited to read their respective affidavits. The determination of that question will turn upon matters that may come to light within the next two weeks. 16In the course of the application to vacate the trial dates on Monday last, I was told that the prospect of funds being available to Mr Osman-Kerim enabling him to obtain legal representation was far more realistic than had been stated in evidence before me last Thursday. If, by reason of those funds being made available, legal representation is able to be obtained before the matter comes before me in two weeks, both Mr Osman-Kerim and the Court will benefit. Important for present purposes, that representation, if obtained, will assist in the determination as to the manner in which the trial should proceed. 17Further, given the uncertainty that private legal representation will be available to Mr Osman-Kerim, the Prosecutor has agreed to refer the proceedings to the Law Society of New South Wales so that consideration can be given by the Society to the provision of legal representation for Mr Osman-Kerim under its pro bono assistance scheme. If assistance on that basis is offered, it will be for Mr Osman-Kerim to pursue that offer and to liaise with whichever solicitor might be nominated to represent him. 18It is in these circumstances that it has become necessary to adjourn the trial. I propose to stand the matter over for a period of two weeks so that both the position of Mr Osman-Kerim and the Prosecutor's position can be considered in order to determine the most efficient way of conducting this trial. I intend that the matter then be listed before me for directions and to fix appropriate dates for the resumption of the trial. 19The orders that I make therefore are as follows: (1)Stand over the trial part-heard to Thursday 3 July 2014 at 9.15am for directions and to fix a date for hearing. (2)I note the offer of the Prosecutor to approach the Law Society of New South Wales to indicate the desirability of providing assistance to the Defendants in the further conduct of this trial. ********** 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: 23 June 2014