Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited

(b) that the prosecutor file any evidence in reply by 3 September 2010. 5 Walker made it clear that in all likelihood it would be relying on expert evidence on the issue of the appropriate sentence and that it did not object to the filing and serving of this evidence on the prosecution in advance of the hearing.

6 However, Walker resisted the making of an order for the joint conferencing of the expert witnesses and the provision to the Court of any joint experts' report. The defendant submitted that the Court had no power, absent its consent, to make such an order in light of Pt 75 of the Supreme Court Rules 1970, which apply to this Court.

7 The prosecutor submitted that the Court was so empowered and pressed the Court to make such an order. Statutory Framework 8 Section 41 of the Land and Environment Court Act 1979 ("the LEC Act") states that "Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in Class 5 of the Court's jurisdiction". The sentence hearing is a proceedings in Class 5 of the Court's jurisdiction. The Criminal Procedure Act is silent with respect to the pre-trial procedures concerning the use of expert evidence in a sentence hearing. 9 Section 257 of the Criminal Procedure Act provides: 257 Rules for summary criminal procedure (1) The Rule Committee may make rules for or with respect to the practice and procedure of a court in the exercise of summary jurisdiction under this Part.

(2) Without limiting the generality of subsection (1), the rules may make provision for or with respect to: (a) the service of orders under Division 2, (b) pre-trial procedures and related practices, (c) the attendance or apprehension of witnesses, (d) the examination of witnesses on oath, affirmation or declaration, (e) the production by witnesses of books, documents and writings, (f) the execution of warrants for the apprehension of any person, (g) any matter that by this Part is required to be prescribed by rules or that is necessary or convenient for the carrying out of or giving effect to the provisions of this Act relating to the summary jurisdiction of a court.

(3) Nothing in this section limits the rule-making powers conferred on the Supreme Court by the Supreme Court Act 1970 . 10 No rules have been made in respect of the production of joint experts' reports pursuant to s 257 of the Criminal Procedure Act.

11 The Land and Environment Court Rules 2007 ("the LEC Rules") state at r 5.1 that Pt 5 of the Rules applies to proceedings in Classes 5, 6 or 7 of the Court's jurisdiction. This includes r 5.2 of the LEC Rules. 12 Rule 5.2 relevantly provides as follows: 5.2 Application of other rules of court

(1) Parts 55 (Contempt) and 75 (Criminal proceedings) of the Supreme Court Rules 1970 apply, so far as applicable, to proceedings to which this Part applies.

(2) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings to which this Part applies: (a) Part 1 (Preliminary), other than rules 1.10, 1.10A and Division 4, (b) Part 2 (Case management generally), (c) Part 4 (Preparation and filing of documents), other than rules 4.2, 4.7A, 4.9 and 4.12, (d) rules 6.15 and 6.16, (e) Part 19 (Amendment), (f) rules 31.3, 31.7, 31.11, 31.12, 31.21 and 31.22, (g) rule 34.1, (h) Part 36 (Judgments and orders), other than rule 36.11.

13 Part 75 of the Supreme Court Rules accordingly applies to the Class 5 summary jurisdiction of the Court. So too, "so far as applicable", does Pt 2 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). 14 Part 75 of the Supreme Court Rules provides that, "subject to s 17 of the Supreme Court Act 1970 and except as provided in this Part", the Supreme Court Rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule to the Supreme Court Act. None are relevantly specified. 15 Pt 75 r 11 of the Supreme Court Rules deals with pre-trial procedures in criminal hearings. In respect of the directions that can be made before a criminal trial commences, r 75.11 does not deal with the use of expert evidence.

16 However, rr 3J and 3K of Pt 75 apply to all criminal proceedings in the Court. These rules specifically deal with the use of expert evidence.

17 Importantly, r 3K states as follows (emphasis added): 3K Conference between experts

(1) The Court may do any or all of the following, with the consent of the parties : (a) direct expert witnesses to confer (whether before or during a trial or other proceedings), (b) specify the matters on which they are to confer, (c) direct that they provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement, (d) direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively, (e) give any additional directions as may be considered necessary.

(2) An expert who is the subject of an order made under subrule (1) may apply to the Court for further directions.

(3) The content of the conference between the expert witnesses is not to be referred to at the hearing or trial unless the parties affected agree.

(4) The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court.

(5) Where, pursuant to this rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed. 18 In respect of the provisions of the UCPR which are picked up by r 5.2 of the LEC Rules it must be noted that: (a) r 31.24 of the UCPR dealing with joint conferencing between expert witnesses has not been picked up by the LEC Rules; whereas

(b) r 2.1 of the UCPR has. 19 This rule states (emphasis added): The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient ( whether or not inconsistent with these rules or any other rules of court ) for the just, quick and cheap disposal of the proceedings. Submissions of the Parties 20 Walker submitted that the Court could not, against its will, compel it to require any expert witness upon which the defendant relies to confer with the prosecutor's expert witness or to produce a joint report as a consequence of any joint conference. The prosecutor relied squarely on Pt 75 r 3K(1) in support of its submission. To hold otherwise, Walker asserted, would be to infringe its right to silence, a right that applied equally to any hearing on sentence. 21 The prosecutor, by contrast, contended that the Court had wide powers under r 2.1 of the UCPR (picked up by r 5.2 of the LEC Rules) that were not subservient to Pt 75 r 3K. Such a construction of the statutory framework as it applied to this Court was, the prosecutor submitted, consistent with the paramount duty of any expert witness to assist the Court (see Pt 75 r 3J which applies the expert witness code of conduct in Sch 7 of the UCPR) and promoted the efficient administration of Court business. 22 The prosecutor submitted that to require the experts to confer and produce a joint report, would not encroach upon the defendant's right to silence because, first, this was a hearing on sentence, the defendant's guilt having already been determined, and second, the defendant had, in any event, already consented to an order that it file and serve its expert evidence in advance of the hearing.

Consideration 23 There is no doubt that the Court does not have the power to compel an accused to engage in a joint experts' conference, or to produce a joint experts' report, in any hearing on criminal liability. To do so would impermissibly infringe the accused's right to silence (Petty v R (1991) 173 CLR 95 at 99, Azzopardi v R (2001) 205 CLR 50 at 74-75, Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (1996) 85 A Crim R 349 at 350 and see s 89 of the Evidence Act 1995).

24 There is also no doubt that significant efficiencies are gained (thereby resulting in costs savings) by both the Court and the parties when experts confer in order to narrow the real issues for determination in the proceedings and to produce a written report reflecting this process.

25 Thus, given the real efficiencies and costs savings achieved by the joint conferencing of expert witnesses, is there any latitude, in light of the application of r 2.1 of the UCPR to Class 5 matters, for a different approach to a sentencing hearing than that which would be verboten in a contested hearing determining criminal liability?

26 As Biscoe J noted in Morrison v Defence Maritime Services Pty Ltd [2007] NSWLEC 118 (at [26]), "the sentencing hearing is a real contest at which the onus of proof remains with the prosecution" (R v Olbrich (1999) 199 CLR 270 at 280 and Filipowski v Island Maritime Ltd (2006) 153 LGERA 1 at [32]). However, the extent to which "it can be said that the sentencing process is but the continuation of the trial process" remains unclear (R v Storey [1998] 1 VR 359 at 369, but cf Lawrence v R [1933] AC 699 at 708 and R v Gardiner [1982] 2 SCR 368 at 415, relied on by Kirby J in dissent in Olbrich at [52]). This is because, it has been said, there is no joinder of issues between the parties on sentence analogous to a joinder of issues on trial (Storey at 368, Olbrich at [25] and Weininger v The Queen (2003) 212 CLR 629 at [18]). This is reflected, in part, in the general exclusion of the rules of evidence in sentencing hearing (s 4(2) of the Evidence Act).

27 But the distinction, if any, between the trial process determining guilt and the sentencing process does not, in my opinion, empower the Court, notwithstanding the application of r 2.1 of the UCPR to Class 5 proceedings, to alter a defendant's right to silence by compelling the defendant's experts to confer with those of the prosecution. The reasons for this are as follows.

28 First, given that the prosecution continues to bear the evidential burden of establishing beyond reasonable doubt facts that are adverse to the interests of the defendant, injustice could readily result if the defendant's experts were forced to confer and jointly report with the prosecution's experts. It could cause, for example, the defendant to make admissions in advance of the prosecution case having closed and in circumstances where, due to a successful challenge to the admissibility of the expert's report or pursuant to effective cross examination, the prosecution's expert evidence is rejected in its entirety or, at the very least, given limited weight on critical issues in contest. 29 The fact that Walker has signalled an intention to rely on expert evidence and is content to serve it in advance of the hearing makes, in my view, little difference. Until the evidence is read, which Walker may elect not to do, it is not admitted and does not form part of the proceedings.

30 Second, an examination of Pt 75 reveals that it is the clear intention of the legislature that Pt 75 r 3K exclusively dictate the circumstances in which a court is permitted to make an order of the type presently sought by the prosecutor, namely, only with the consent of the parties. 31 Rule 3J clearly states that it, together with r 3K, applies to "all criminal proceedings in the Court". There is no warrant for reading the term "all criminal proceedings" as excluding sentencing hearings. Comfort may be drawn in this regard when recourse is had to the Third Schedule to the Supreme Court Act referred to in r 3J (which applies to r 3K). It effectively states that rr 3J and 3K apply additionally to "proceedings in the Court for the prosecution of offenders on indictment", which are defined to include "any information presented or filed as provided by law for the prosecution of offenders" and "the sentencing or otherwise dealing with persons convicted" (emphasis added).

32 Third, to the extent that r 5.2 of the LEC Rules has omitted any reference to r 31.24 of the UCPR dealing with the joint conferencing of experts but has specifically included a reference to Pt 75, this strongly suggests that the preferable and proper construction of r 5.2 is that r 2.1 of the UCPR gives way to the proscription contained in r 3K of Pt 75 of the Supreme Court Rules.

33 This construction is consistent with two cannons of statutory interpretation, namely: (a) that where there is a conflict between a general provision such as r 2.1 of the UCPR and a specific provision such as Pt 75 r 3K (both of which have been picked up by r 5.2 of the LEC Rules), the specific provision prevails ( Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47 at 50 and WorkCover Authority (NSW), (General Manager) v Law Society (NSW) (2006) 65 NSWLR 502 at [179]); and

(b) that fundamental common law rights are presumed not to be altered or abolished other than by clear statutory language ( Potter v Minahan (1908) 7 CLR 277 at 304 and Coco v R (1994) 179 CLR 427 at 437). While caution must be applied to this presumption which is now regarded as "weak" nevertheless ( Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [28]-[30] and [36] per McHugh J as quoted in Harrison v Melhem (2008) 72 NSWLR 380 at [5]-[6] per Spigelman CJ), "the principle still operates with force with respect to legislation which abrogates fundamental rights, immunities and freedoms" ( Harrison at [7] and NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252 at [42]-[43]). A defendant's right to silence is such a fundamental right. In the present case, if the legislature had intended that this right be curtailed in the manner contended for by the prosecutor, then it would not have relied upon the general words contained in r 2.1 of the UCPR incorporated into the Class 5 jurisdiction of the Court by r 5.2 of the LEC Rules. Rather, it would have provided an unequivocal statement to this effect. It has not done so. 34 Accordingly, I must decline the prosecutor's request to make the order it seeks, there being no other basis upon which it was argued that the order could be made.

35 Having said this, it is my view that there is an argument for change to the LEC Rules to provide for the more efficient disposal of sentencing proceedings by empowering the Court to make the very kind of order that I am precluded from making. 36 For the purposes of the present case, I see no reason why the public interest in the efficient use of court resources ought not be as much a relevant consideration to the Court's exercise of its power to case manage a Class 5 sentence hearing than in the case management of any other classes of its jurisdiction (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, albeit dealing with civil case management considerations). I accept, however, that for the reasons discussed above this is a matter for Parliament.

37 While refusing to make an order absent Walker's consent that its experts jointly confer and produce a report with the prosecutor's experts, it is, however, appropriate that I make the order proffered by Walker that if it does consent, Walker will notify the prosecutor by 6 September 2010, with joint conferencing of the experts to occur no later than 13 September 2010 and a joint report to be prepared by no later than 15 September 2010. Such a truncated timetable is necessary given that the sentence proceedings have been set down for hearing on 21-22 September 2010.

38 The formal orders of the Court are therefore: (1) if the defendant consents to a joint conference between, and the production of a joint report by, its experts and those of the prosecution, the defendant is to notify the prosecutor of this by no later than 5 pm 6 September 2010;

(2) such joint conference is to take place by no later than 13 September 2010;

(3) any joint report produced as a consequence of the joint conference referred to above is to be filed and served by no later than 4 pm on 15 September 2010;

(4) the prosecutor is to file and serve its written submissions on sentence by 12 pm on 17 September 2010;

(5) the defendant is to file and serve its written submissions on sentence by no later than 10 am on 20 September 2010; and

(6) the costs of the directions hearing on 23 July 2010 are reserved.

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