O’Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator

1. [1]

   PAYNE JA: On 12 February 2020 the Court heard an application under s 5F of the Criminal Appeal Act 1912 (NSW) seeking leave to appeal from an interlocutory judgment or order made in the Land and Environment Court. At the conclusion of the hearing on 12 February the Court made the following orders:

   1. (1)

      Leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) refused.

   2. (2)

      Reasons reserved.

2. [2]

   The following comprise my reasons for joining in those orders.

Brief Facts

1. [3]

   The applicant, Mr O’Haire, faces eight charges in the Land and Environment Court under s 60C(2) of the Water Management Act 2000 (NSW) which provides:

2. [4]

   The maximum penalty for an offence under s 60C(2) of the Water Management Act is a “Tier 2 penalty”. [1] For reasons which may be shortly explained, those charges have yet to be dealt with to finality.

3. [5]

   On 19 July 2019, the matter was set down for a sentencing hearing in the Land and Environment Court after the following exchange took place between Mr Van Aalst, counsel then appearing for Mr O’Haire, Ms Bonnor, counsel who appeared for the prosecutor, and the primary judge:

4. [6]

   Detailed orders were then made for a sentencing hearing in the Land and Environment Court which was fixed for 19 November 2019.

5. [7]

   In the days immediately following 19 July 2019, there was publicity in the media about the fact that Mr O’Haire had pleaded guilty to offences said to involve the “stealing” of water. Mr O’Haire complained to the prosecuting authority soon thereafter that:

   1. (1)

      he did not by his counsel plead guilty on 19 July 2019 but, rather, had intended that his counsel indicate to the Court that he would plead guilty when the matter came on for sentence; and

   2. (2)

      he had been defamed by the description “stealing” being applied to a contravention of s 60C(2) of the Water Management Act.

6. [8]

   On 9 September 2019, Mr O’Haire filed a notice of motion seeking the following orders:

7. [9]

   It was common ground that this permanent stay motion had not yet been determined by the Land and Environment Court. As the issue was initially raised by senior counsel for the applicant for leave as bearing upon the utility of granting leave on the present s 5F application I observe:

   1. (1)

      if it were necessary to make a finding about the applicant’s prospects of success on the motion I would not regard those prospects as sufficiently bright to warrant a grant of leave under s 5F of the Criminal Appeal Act 1912 (NSW). To the contrary, on the limited material before this Court, there is little or no evidential support for the grant of the extraordinary remedy of a permanent stay; and

   2. (2)

      on the hypothesis leave were refused on the present application, and without descending into the merits of the application for a permanent stay, neither party raised any suggestion that the motion seeking a permanent stay could not proceed.

8. [10]

   On 16 October 2019, Mr O’Haire filed a further notice of motion in the Land and Environment Court seeking the following orders:

9. [11]

   Mr O’Haire swore an affidavit dated 16 October 2019 which was before the primary judge on the notice of motion in which he stated that he still intended to plead guilty to each of the offences:

10. [12]

    Her Honour heard the application on 24 October 2019 and handed down written reasons on 29 October 2019. Her Honour refused an application that she recuse herself for bias, whether actual or apprehended. The primary judge dismissed the notice of motion.

11. [13]

    On 13 November 2019, Mr O’Haire filed an application for leave to appeal in this Court in the following terms:

12. [14]

    The two points raised by this urgent interlocutory application for leave to appeal were whether the primary judge was correct to reject the submission that she was biased and, regardless of the answer to that question, whether her Honour was correct to dismiss the applicant’s notice of motion.

13. [15]

    Two affidavits were read on the application for leave to appeal:

    1. (1)

       affidavit of Julian van Aalst affirmed 17 December 2019;

    2. (2)

       affidavit of John Richard Hertz sworn 19 November 2019.

14. [16]

    Although provisionally admitted under s 57 of the Evidence Act 1995 (NSW), neither affidavit was referred to in the course of argument in any detail. Having considered the issues raised on this application, I would reject both affidavits as irrelevant to the question of whether to grant leave to appeal.

Decision of the primary judge

1. [17]

   In accordance with authority, and in a manner which was not challenged in this Court, the primary judge addressed the claim of bias first and before any other issue. Her Honour recited the correct test and, after hearing argument, refused to disqualify herself from hearing the motion. The primary judge held that any reasonable reading of the 19 July 2019 transcript (set out at [5] above), demonstrated that Mr Van Aalst told the court not only that his client “would be entering a plea” in all eight matters, but that such pleas were in fact being entered. This was the only way to understand the passage where the Court stated “all right just bear with me one moment while I formally note that a plea of guilty is entered in all eight matters” and nothing was said by Mr Van Aalst in response. Her Honour was not persuaded that a fair minded observer, aware of the critical facts, might form the view that her Honour might not bring an impartial mind to bear on Mr O’Haire’s application.

2. [18]

   As to the substance of the application under Uniform Civil Procedure Rules 2005 (NSW), r 36.17, her Honour concluded that as there had been no finding of guilt by the Court, and therefore, no correlative judgment or order convicting Mr O’Haire of the offences as charged, the power contained in r 36.17 of the UCPR to correct an order or judgment was not available.

3. [19]

   Her Honour nevertheless addressed Mr O’Haire’s case on the contingent hypothesis that the power to correct a judgment or order under UCPR r 36.17 was available in this case.

4. [20]

   The primary judge cited relevant authority about the operation of the slip rule, and observed that Spigelman CJ in Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 cautioned that the precise terms of r 36.17 must be carefully construed and should not be conflated with the construction of other statutory rules containing a similar power, or with the case law about the inherent jurisdiction, which may be significantly broader (at [19]-[20], [24]-[26]).

5. [21]

   Her Honour concluded that if there was an error on the part of Mr Van Aalst as to whether or not Mr O’Haire intended to enter a plea on 19 July 2019, the evidence would need to demonstrate that such a mistake was not deliberate.

6. [22]

   Her Honour found that Mr O’Haire’s affidavit, at its highest, established that he believed that the guilty pleas were entered in error. As earlier noted, Mr O’Haire’s evidence on the motion was that he nevertheless intended to plead guilty. There was no evidence before the primary judge from Mr Van Aalst.

7. [23]

   Having regard to the conduct of Mr Van Aalst evidenced in the transcript and the equivocal nature of the evidence contained in Mr O’Haire’s affidavit, the primary judge was not sufficiently confident that the entry of guilty pleas on 19 July 2019 came about through an “error arising from an accidental slip or omission”.

8. [24]

   Importantly, her Honour concluded her judgment by recording that:

Consideration

1. [25]

   I think it unlikely that there was in this case a judgment or order of the Court upon the entry of a plea of guilty by counsel for Mr O’Haire capable of being corrected or amended by r 36.17 of the UCPR. This is because there was no conviction until there was a judgment of the Court. So much was established in Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 at 507 and 509. The authorities relied upon by the applicant about the meaning of a “conviction” in the context of the superseded Proceeds of Crime Act 1987 (Cth) do not assist in resolving this question. Given my conclusion at [39]-[40] below, which is predicated on a plea of guilty being capable of being corrected or amended by r 36.17 of the UCPR, it is unnecessary finally to determine this issue.

2. [26]

   It may also be that the dismissal of the notice of motion (and the related refusal of the application alleging bias) in this case was not an “interlocutory judgment or order given or made in the proceedings” within the meaning of s 5F of the Criminal Appeal Act. On the other hand, whether or not an order of the court is one falling within the description in s 5F is notoriously difficult. As R A Hulme J (Hoeben CJ at CL and Harrison J agreeing) said in AF v R [2015] NSWCCA 35 at [31]:

3. [27]

   The remarks of Leeming JA (McCallum and Bellew JJ agreeing) in Cabot (a pseudonym) v R [2018] NSWCCA 265 at [48]-[53] about a not unrelated question should also be borne in mind.

4. [28]

   I am prepared to assume that this was a case where there was an “interlocutory judgment or order given or made in the proceedings” within the meaning of s 5F of the Criminal Appeal Act. Leave to appeal should nevertheless be refused.

5. [29]

   At the outset Mr O’Donnell SC, who appeared for Mr O’Haire in this Court, abandoned reliance on any claim of actual bias. He was correct to do so. That claim was never arguable.

6. [30]

   In relation to the application of the test for apprehended bias described in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, no reason was shown to doubt the conclusion of the primary judge that the “double might” test was not satisfied here.

7. [31]

   Apprehended bias is not demonstrated by a judge having read the relevant papers before coming on to the bench. Nor is apprehended bias demonstrated by a judge making clear to counsel that a proposition being advanced in those written submissions is untenable. The construction of the transcript being advanced by Mr Van Aalst was untenable.

8. [32]

   After the critical discussion about which Mr O’Haire complains, the parties proceeded to discuss timetabling orders for the matter to proceed to a sentencing hearing. That discussion, and the setting aside of valuable court time for sentence proceedings by the primary judge, is only explicable on the basis that her Honour had been asked formally to note that a plea of guilty had been entered in all eight matters.

9. [33]

   A fair minded observer would not conclude that her Honour might not bring an unbiased mind to the question before her. The primary judge was plainly correct to refuse the application that she disqualify herself for apprehended bias.

10. [34]

    Rule 36.17 UCPR provides:

11. [35]

    The slip rule applies to proceedings commenced in Class 5 of the Land and Environment Court’s jurisdiction by reason of r 5.2(2)(h) of the Land and Environment Court Rules 2007 (NSW) which picks up and applies Pt 36 of the UCPR.

12. [36]

    In Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2, Gleeson JA (with whom Ward JA and I agreed) at [35] said:

13. [37]

    The power conferred by r 36.17 must be interpreted on the basis of the words used and the context in which they appear: Newmont Yandal at [24]. In particular, the power must be construed having regard to the overriding purpose provided for in s 56 of the Civil Procedure Act 2005 (NSW): Newmont Yandal at [26].

14. [38]

    If the guilty plea had not been entered, the matter would have been adjourned for a brief mention or set down for a contested hearing on liability. Neither course occurred. Instead, the matter was fixed for a sentencing hearing. Her Honour would not have made orders directing evidence and submissions on sentence or set aside valuable court time for a sentence hearing unless a plea of guilty had been entered.

15. [39]

    The primary judge was correct to conclude that no slip or error was made by the Court. Her Honour was also correct to conclude, on the basis of the evidence before her, that the entry of the pleas of guilty on behalf of Mr O’Haire was deliberate. There was no evidence of any accidental slip or omission.

16. [40]

    Established principles apply to the withdrawal of a plea of guilty entered by mistake. The grant of leave to withdraw a plea of guilty in a criminal case involves much more than a simple alteration of the record: Maxwell at 531 per Gaudron and Gummow JJ. There was no arguable error in the exercise of discretion by the primary judge in refusing to apply the slip rule and make the orders sought in the notice of motion.

17. [41]

    Finally, on the question of leave to appeal, it bears emphasising that there is no injustice to Mr O’Haire in refusing leave to appeal. Mr O’Haire is as free now as he was at the conclusion of the hearing of the slip rule application before the primary judge to seek to withdraw his guilty pleas. Her Honour recorded that the prosecutor “would not stand in the way of that application” and “it is likely to enjoy success”.

18. [42]

    Any collateral benefit sought by Mr O’Haire, whether in threatened defamation proceedings (see [7] above), or in the permanent stay application (see [8] above), provides no reason to grant leave to appeal.

Order

1. [43]

   It was for these reasons that on 12 February 2020 I joined in the order of the Court refusing leave to appeal under s 5F of the Criminal Appeal Act.

2. [44]

   BEECH-JONES J: The background to this matter is set out in the judgment of Payne JA. On 12 February 2020 I joined in the orders made by the Court as I was not convinced that the application for leave to appeal had any utility. Before the primary judge the applicant swore an affidavit stating that if the entry of his plea was corrected under the “slip rule” he would nevertheless enter a plea of guilty. Why would this Court embark on the hearing of an appeal just to allow the applicant to enter the same plea that was being “corrected” with the result that he would then lose the benefit of an early plea? The only matter pointed to was the possibility that he might then pursue his application for a stay which appears to be based on the statements made by the prosecutor to the press noted by Payne JA in [7]. As his Honour points out the application for a stay can still be pursued regardless of whether or not a plea of guilty is recorded. Otherwise I agree with Payne JA in relation to the allegation of apprehended bias on the part of the primary judge. I express no view on whether the recording of the entry of a plea of guilty was an order that was amenable to correction under Uniform Civil Procedure Rule 36.17.

3. [45]

   N ADAMS J: I concurred in the making of the orders on 12 February 2020 because I was not satisfied that the applicant had identified any basis for a grant of leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). I did so for the reasons provided by Payne JA (save as for in one respect), and the additional reasons provided by Beech-Jones J. The only aspect of Payne JA’s decision I do not expressly adopt is that, in the context of this being a refusal to grant leave to bring an interlocutory appeal, I would prefer not to express any view on the question of whether Uniform Civil Procedure Rule 36.17 applies to “correcting” the entry of a plea of guilty. In addition to adopting their Honours’ reasons I wish to make some further observations regarding the relevant test to be considered when determining whether to grant leave to bring an interlocutory appeal to this Court.

4. [46]

   In opposing the grant of leave in this matter, the respondent relied upon the principles derived from R v Ho (NSWCCA, unreported, 18 July 1994). Before I turn to consider that decision it is pertinent to note that s 5F was only inserted into the Criminal Appeal Act in 1987 by Sch 1, s 2 of the Criminal Appeal (Amendment Act) 1987 (NSW), which commenced on 18 December 1987. That is, the provision was still relatively new at the time that R v Ho was decided. Prior to the enactment of s 5F, the Supreme Court Act 1970 (NSW) provided that interlocutory judgments or orders in District Court criminal proceedings could be appealed to the Court of Appeal. That provision was repealed at the same time that s 5F was enacted. As the second reading speech made clear, the background to this change was as follows:

5. [47]

   This Court (Gleeson CJ, with whom Lee CJ at CL and Grove J agreed) considered this new statutory provision in R v Matovski (1989) 15 NSWLR 720. That decision concerned applications for leave to appeal under s 5F(3) against a decision of the District Court refusing to stay the applicants’ prosecution on the basis of entrapment. The applicants sought to persuade the court to take a different view of the facts than that found by the trial judge. In refusing leave Gleeson CJ observed:

6. [48]

   In R v Ho, which was determined a few years later, Mahoney JA, with whom Gleeson CJ and Dunford J agreed, observed the following in relation to the requirement of leave under s 5F, albeit in the context of a trial rather than a plea:

7. [49]

   It was the italicised words in this passage that were advanced by the respondent as being the test for the grant of leave in the present application. These observations by Mahoney JA in Ho were quoted with approval by Ipp AJA in Regina v Chami; Regina v Sheikh [2002] NSWCCA 136 (Sully J and Bell J (as her Honour then was) agreeing as to the relevant principles but Bell J disagreeing as to the result) as follows:

8. [50]

   The decision in R v Ho does not appear to have been cited with approval since that time.

9. [51]

   For my part, I have some doubt as to whether the observations by Mahoney JA in R v Ho that an applicant for leave under s 5F(3) needs to establish an “error of principle apt to cause irregularity or injustice” reflects the current test to be applied. It is not ultimately necessary for me to make any finding in this regard as I was not satisfied that any basis for this court’s intervention was established in this matter.

10. [52]

    The transcript of the proceedings before Pepper J on 19 July 2019, extracted at [5] of the judgment of Payne JA, reflects that the applicant’s counsel informed her Honour that his client “would be entering a plea”, informed the Court that he accepted the “prosecutors’ statement of facts”, was present in court when her Honour asked the parties to “bear with” her whilst she “formally note[d] that a plea of guilty is entered on all eight matters”, and then participated in a discussion about the sentence hearing on 19 November 2019. Adding to this are the factors that: the applicant still intends to plead guilty (if his stay application is unsuccessful); the respondent would not oppose an application for him to reverse his plea in the Land and Environment Court; and, as senior counsel for the respondent indicated at the hearing of this application, the entries of the pleas of guilty are no procedural bar to the applicant pursuing his pending stay application. As Beech-Jones J posed in his reasons above: “[w]hy would this Court embark on the hearing of an appeal just to allow the Applicant to enter the same plea that was being ‘corrected’ with the result that he would then lose the benefit of an early plea?”