Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Truegain Pty Ltd [2014] NSWLEC 98 Decision date: 16 July 2014 Jurisdiction: Class 5 Before: Biscoe J Decision: 1. The Court notes the plea of guilty. 2. The trial dates, 21 July to 1 August 2014, are vacated. 3. The matter is fixed for a sentencing hearing on 28 July 2014. 4. The matter is listed for callover on 25 July 2014 to allow for the vacation of the 28 July 2014 date in the event that there remain any facts in dispute. 5. The parties have liberty to restore the matter on 24 hours written notice. Catchwords: PRACTICE AND PROCEDURE - defendant in criminal proceedings changes plea of not guilty to plea of guilty - vacation of two weeks trial dates and fixing of a sentencing hearing - timing of sentencing hearing. Category: Procedural and other rulings Parties: Environment Protection Authority (Prosecutor) Truegain Pty Ltd (Defendant) Representation: COUNSEL: T Howard SC and C Novak (Prosecutor) J Horowitz (Defendant) SOLICITORS: Office of Environment & Heritage (Prosecutor) Horowitz & Bilinsky Solicitors (Defendant) File Number(s): 50471/11 EX TEMPORE Judgment 1This is a joint application by the prosecutor and the defendant in criminal proceedings for vacation of the trial dates fixed for two weeks commencing next Monday. The application is made because the defendant has this morning changed its plea of not guilty to a plea of guilty; the parties need time to finalise the good progress they have made in agreeing on a statement of facts which would avoid any factual contest at the sentencing hearing; and, if they succeed in that endeavour, then they anticipate that the sentencing hearing will take less than a day. There is a question as to the timing of the sentencing hearing. 2The procedural history of this matter is lengthy, having travelled to the Court of Criminal Appeal and back on an interlocutory issue as to whether the charge as originally framed was bad for duplicity, which it was. The upshot is that the prosecutor provided the defendant with a refined draft of its proposed agreed statement of facts for trial just over two weeks ago, and this and discussions between the parties have led to the position where the defendant today has changed its plea to guilty. There are good prospects that the parties will reach complete agreement as to the facts if given more time, in which case the sentencing hearing should take less than a day. If they are unable to reach complete agreement then there will likely be a limited contest as to residual disagreed matters, which may well extend the sentencing hearing time to more than a day, and the defendant will need an opportunity to put on evidence as to such facts. 3There remains an opportunity for the sentencing hearing to occur on Monday 28 July 2014, which is the first day of the second week of the period that had previously been fixed for the trial. It is dependent upon the parties being able to finalise an agreed statement of facts which will leave nothing significant in issue between them, for otherwise the defendant will need more time to adduce evidence as to those facts. 4Therefore, the way forward, upon which the parties are agreed and with which I concur, is to list the matter for a sentencing hearing on Monday, 28 July 2014 but also to list it for callover on the preceding Friday, 25 July 2014 to allow for the possibility of vacation of that sentencing hearing date in the event that there remain significant facts in dispute in respect of which the defendant needs more time to adduce evidence. If it eventuates that there do remain facts in dispute such that the sentencing hearing on 28 July 2014 should be vacated, I am told that there may be an issue as to whether the Court has power to direct a defendant in criminal proceedings to serve its evidence for a sentencing hearing before the prosecutor closes its case at the sentencing hearing. However, the issue may evaporate if the defendant decides to accept such a direction or if the prosecutor decides not to contend for such a direction. The issue can be left for future consideration, if it arises at all. 5I am satisfied that in the circumstances the trial dates should be vacated on the basis that I have indicated. By consent, the orders of the Court are as follows: 1. The Court notes the plea of guilty. 2. The trial dates, 21 July 2014 to 1 August 2014, are vacated. 3. The matter is fixed for a sentencing hearing on 28 July 2014. 4. The matter is listed for callover on 25 July 2014 to allow for the vacation of the 28 July 2014 date in the event that there remain any facts in dispute. 5. The parties have liberty to restore the matter on 24 hours written notice. 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: 16 July 2014