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Queen V William Robert Thompson Morrow

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Queen V William Robert Thompson Morrow Neutral Citation No: [2019] NICA 71 Ref: McA11132 Judgment: approved by the Court for handing down Delivered: 11/12/2019 (subject to editorial corrections)* IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND _______ THE QUEEN -v- WILLIAM ROBERT THOMPSON MORROW Defendant/Appellant. ________ Before: Morgan LCJ, McCloskey LJ and McAlinden J _______ McALINDEN J (delivering the judgment of the court) [1] This is an appeal against the making of a confiscation order in the sum of £325,609.20 by HHJ Grant on 21 March 2019 at Downpatrick Crown Court. Leave to appeal was granted by the single Judge on 3 September 2019. On the morning of trial at Downpatrick Crown Court on 17 April 2018, the appellant pleaded guilty to offences of depositing and treating controlled waste between 24 May 2013 and 19 November 2015 contrary to Article 4(1)(a) and Article 4(6) of the Waste and Contaminated Land (Northern Ireland) Order 1997 (the “1997 Order”) and an offence of keeping controlled waste between 18 November 2015 and 6 April 2016 contrary to Article 4(1)(a) and Article 4(6) of the 1997 Order. Following the making of the confiscation order on 21 March 2019, the appellant was sentenced to 180 hours of community service in respect of each of the three charges of depositing, treating and keeping controlled waste on 10 April 2019 by HHJ Grant at Downpatrick Crown Court, each sentence to run concurrently. The appellant has not sought leave to appeal the community service sentences imposed on 10 April 2019. [2] The charges relate to the deposition, treatment and keeping of controlled waste on lands owned by the appellant at 102 Ballydrain Road, Comber. These lands are located near Castle Espie and are adjacent to the Strangford Lough Area of Special Scientific Interest. On 19 November 2015, officers from the Northern Ireland Environment Agency (“NIEA”) carried out an inspection of premises adjoining the appellant’s land. It was noted that a shed was being built on the appellant’s property on top of an area of infill. The owner of the 1 neighbouring property informed the NIEA that he had seen lorries depositing materials on the appellant’s site several times a day during the summer of 2015. Prior to this, in or around 2014, a house and some outbuildings had been demolished on this site. [3] The NIEA conducted an inspection of the appellant’s property on 15 December 2015. The Agency’s officers observed a large area of waste infill, consisting of clay, building rubble, wood, glass, tarmac and plastic piping. Other items among the infill included golf trolleys, a child’s bicycle, a water tank, radiators, metal girders, concrete slabs, electrical wiring, toilet seats, textiles, linoleum, for sale signs, paint tins, hard plastic, wrapping material, shoes, plumbing parts and window frames. The infill material had been flattened and covered with a layer of gravel to a depth of 0.2 to 0.5 metres. On 5 April 2016, an intrusive survey was conducted by the NIEA. It was estimated that the infilled area was 1,223 cubic metres in volume and the overall amount of material was estimated to weigh approximately 3,942 tonnes. [4] The appellant was interviewed by the NIEA on 25 May 2016. He initially stated that the materials contained in the infilled area had been taken from buildings onsite as well as from his other properties at 40 Ballydrain Road, Comber and 6 Tullynakill Road, Comber. He said that he had demolished buildings on his three properties for the purpose of constructing the platform which was then in situ at the subject property. The appellant later accepted that the majority of the materials present in the platform were brought onto the subject site from sites other than those owned by him. The appellant contended, however, that the materials emanating from the three sites owned by him were always intended for the purposes of building a construction platform on the subject site and, accordingly, should not be classified as waste. [5] As part of his preparations for the trial of this matter, the appellant retained the services of Dr Craig Fannin of TerraConsult Limited who carried out test excavations on site and provided expert reports which were placed before the court. In pleading guilty to the three counts referred to above, the appellant put forward a basis of plea to the effect that although the majority of the material in the platform was brought from sites other than those owned by the appellant and was, therefore, rightly classified as waste, a significant amount of the material present in the platform (49%) was building rubble and similar material originating from the demolition of buildings on the appellant’s properties that had been demolished to provide such material and as such this material was not waste. [6] The prosecution did not accept the appellant’s assertion that the material in the platform on the subject site which originated from the appellant’s properties was not waste. Consideration was given as to whether this disputed issue should be resolved by way of a Newton hearing or as part of the confiscation order process. It was accepted by the Crown and the defence that 2 the nature of the sentence which would ultimately be imposed in this case was not dependent upon the resolution of this issue but that resolution of this issue would have a direct bearing on the amount of any confiscation order made in this case. In addition to being asked to consider whether a Newton hearing was the appropriate way to advance this matter, the court was also invited to consider the appropriate approach to adopt in the conduct of any such Newton hearing. At a hearing on 3 May 2018, the Crown invited the court to consider whether a Newton hearing was necessary. The Judge was referred to the case of R v Cairns [2013] EWCA Crim 467 which makes it clear that the decision as to whether a Newton hearing is required is one for the court. At paragraph [6] of R v Cairns, Leveson LJ stated: “Without seeking to be exhaustive of the issues that might arise (or citing all the relevant authorities), there is no obligation to hold a Newton hearing (a) if the difference between the two versions of fact is immaterial to sentence (in which event the defendant's version must be adopted: R v Hall (1984) 6 Cr App R (S) 321; (b) where the defence version can be described as 'manifestly false' or 'wholly implausible': R v Hawkins (1985) Cr App R (S) 351; or (c) where the matters put forward by the defendant do not contradict the prosecution case but constitute extraneous mitigation where the court is not bound to accept the truth of the matters put forward whether or not they are challenged by the prosecution: R v Broderick (1994) 15 Cr App R (S) 476.” [7] If the court determines that the matter should be resolved by way of a Newton hearing, then the case of R v Newton (1982) Cr App R 13 itself gives clear guidance as to how such a hearing should proceed. Lord Lane at page 15 stated as follows: “It is in certain circumstances possible to obtain the answer from the jury. For example, when it is a question whether the conviction should be under section 18 or section 20 of the Offences against the Person Act 1861, the jury can determine the issue on a trial under section 18 by deciding whether or not the necessary intent has been proved by the prosecution…The second method which could be adopted by the Judge in these circumstances is himself to hear the evidence on one side and another, and come to his own conclusion, acting so to speak as his own jury on the issue which is the root of the problem. 3 The third possibility in these circumstances is for him to hear no evidence but to listen to the submissions of counsel and then come to a conclusion. But if he does that, … where there is a substantial conflict between the two sides, he must come down on the side of the defendant. In other words, where there has been a substantial conflict, the version of the defendant must so far as possible be accepted.” [8] At the hearing on 3 May 2018, Mr McClean, of counsel, on behalf of the Crown argued that there was no requirement for a Newton hearing – “… because the surrounding facts that are accepted by all parties are such that regardless of what account Mr Morrow gives… (his case) …will manifestly fail.” On this basis, the court was invited to – “… hear arguments on that issue and then to rule on that specific issue as to whether or not a Newton hearing just isn’t required, because even on the defendant’s account, it is bound to fail.” It was further submitted by Mr McClean that following the court’s ruling on the discrete issue of whether a Newton hearing was required- “…then we can consider how we proceed thereafter….and how the matter is to be dealt with thereafter.” (The quotations are taken from the official transcript). [9] Mr McClean, Counsel for the Crown, then outlined the facts of the case to the court, made submissions on the law, specifically on the definition of “waste”, and concluded his submissions in the following manner: “It is my submission that taking all these matters into consideration the court has to carry out an exercise of looking at whether a Newton hearing is required.
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