Chief Executive of the Office of Environment and Heritage v Kurstjens

Judgment

1. The Defendants are charged with vegetation clearing offences on three separate properties.
2. The Defendants ultimately seek a preliminary ruling as provided for under s 247G(3)(e) of the Criminal Procedure Act 1986 (NSW) which provides for the Court giving a ruling or making a finding under s 192A of the Evidence Act 1995 (NSW) as if the trial or sentencing hearing had commenced. The Defendants' Notice of Motion dated 13 July 2015 on which I am ruling seeks leave for such a preliminary hearing to occur in relation to the admissibility of the evidence of Mr John Palmer relied on by the Prosecutor as an expert in the multiple proceedings. A ruling on whether a record of interview exhibited to the affidavit of Mr Woods sworn 6 November 2012 is admissible against the Defendants would also be sought in any preliminary hearing if ordered to occur. The notice of motion was supported by the affidavit of Mr O'Brien solicitor dated 13 July 2015.
3. As indicated to the parties during the hearing, the Defendants' application is premature given that none of the procedures under Div 2A of the Criminal Procedure Act have been adopted by the parties to date or ordered by the Court. Consequently there is no clarity around the nature of the issues in dispute which can inform a decision by the Court of whether it is appropriate to have such a preliminary hearing. A plea of not guilty by all Defendants in all matters was entered at the hearing. As the Prosecutor submitted, orders regarding disclosure under s 247J and s 247K should be made. The discretionary power of the Court to make disclosure orders under s 247J and s 247K is contained in s 247I.
4. The Criminal Procedure Act relevantly provides: Division 2A Case management provisions and other provisions to reduce delays in proceedings 247B Purpose (1) The purpose of this Division is to reduce delays in proceedings before the court in its summary jurisdiction by: (a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and (b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings. (2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned. … 247I Court may order preliminary disclosure in particular case (1) After proceedings have been commenced, the court may make any or all of the following orders, but only if the court is of the opinion that it would be in the interests of justice to do so: (a) order that the prosecutor is to give to the defendant notice in accordance with section 247J, (b) order that the defendant is to give to the prosecutor notice of the defence response to the prosecution's notice in accordance with section 247K, (c) order that the prosecution is to give to the defendant notice of the prosecution response to the defence response in accordance with section 247L. (2) The court may order preliminary disclosure under this section on the application of any party or on the court's own initiative. … 247J Prosecution notice - court-ordered preliminary disclosure For the purposes of section 247I (1) (a), the prosecution's notice is to contain the following: (a) the matters required to be included in the notice of the prosecution case under section 247E, (b) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the defendant, (c) a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor. 247K Defence response - court-ordered preliminary disclosure For the purposes of section 247I (1) (b), the notice of the defence response is to contain the following: … (d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection, (e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed … 247M Dispensing with formal proof (1) If a fact, matter or circumstance was alleged in a notice required to be given to the defendant by the prosecutor in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute or require proof of the fact, matter or circumstance, the court may order that: (a) a document asserting the alleged fact, matter or circumstance may be admitted at the hearing of the proceedings as evidence of the fact, matter or circumstance, and (b) evidence may not, without the leave of the court, be adduced to contradict or qualify the alleged fact, matter or circumstance. (2) If evidence was disclosed by the prosecution to the defendant in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute the admissibility of the evidence and the basis for the objection, the court may, by order, dispense with the application of any one or more of the following provisions of the Evidence Act 1995 in relation to the adducing of the evidence at the hearing of the proceedings: (a) Division 3, 4 or 5 of Part 2.1, (b) Part 2.2 or 2.3, (c) Parts 3.2-3.8. …
5. The only issue which I need determine in light of the matters identified by the parties is the scope of the disclosure requirement placed on a defendant under s 247K(d) and possibly (e). Subsection (d) specifies that the notice of the defence response identify any dispute as to admissibility of any proposed evidence and the basis for the objection. Subsection (e) concerns expert evidence and requires a defendant to identify any dispute with such evidence in a notice of the defence response.
6. The Defendants argued that it was not required to advise the Prosecutor of any basis for challenging the admissibility of expert evidence as under subsection (e) of s 247K the only matters that need be identified concern disputes with its evidence not its admissibility. Subsection (d) deals with the admissibility of evidence and does not refer explicitly to expert evidence. Subsection (d) should not be "read up" as applying to expert evidence given the specific reference in (e), relying on statutory construction principles identified in Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 at [9] 651, Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473 at [35], [37]. In Taylor, the High Court stated at [37] (footnotes omitted): "Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot."
7. The Prosecutor submitted that subsection (d) of s 247K concerns admissibility of all evidence including expert whereas (e) addresses disputes in relation to expert evidence, a different matter to admissibility.
8. A plain reading of the words in these subsections suggests that the Prosecutor is correct. Such a reading is in accordance with the objectives of Div 2A s 247B set out above which identify the reduction of delay in summary proceedings including through the preliminary disclosure provisions as the purpose of the Division in subsection (1). Identifying the basis of objection to the admissibility of expert evidence assists in the achievement of that objective. As the Prosecutor submitted that approach is supported by s 247M(2) which specifies that a court need not apply specified parts of the Evidence Act to evidence where a defendant did not disclose objections to the admissibility of evidence earlier under s 247K.
9. While the Defendants argued against the application of a purposive approach on the basis this meant that subsection (d) was thereby impermissibly "read up" relying on Taylor as extracted above, the principles in Taylor were directed to a quite different statutory construction question of whether additional words should be read into a section of the Civil Liability Act 2002 (NSW) so to limit an award for compensation under the Compensation to Relatives Act 1897 (NSW). The High Court found that a purposive construction may allow reading of a provision as if it contains additional words, but the purposive construction adopted by the primary judge and the majority of the Court of Appeal in that case could not be reconciled with the language used by the legislature. The plain reading of the words in subsection (d) does not require any "reading up" to conclude that it means what it says and applies to objections to the admissibility of all evidence, which includes expert evidence.
10. The Defendants' recent pleas of not guilty to all of the offences does assist in clarifying the extent of orders for disclosure under ss 247J and 247K. The parties are to discuss the extent to which ss 247J and 247K orders can be limited to matters relevant to conviction only rather than matters relevant to sentencing in order to reduce the burden on the Defendants having to respond to all the Prosecutor's evidence. The Defendants' Notice of Motion seeking a preliminary hearing should be stood over until such disclosure orders have been complied with to determine if there is utility in that course being adopted, better informed about the nature of the issues as between the parties at that stage.
11. Accordingly, the precise terms of the orders regarding disclosure under ss 247J and 247K will be discussed with the parties before being finalised.