Secretary, Department of Planning and Environment v Harris

Court of Criminal Appeal (NSW)|2024-05-27|Before: Adams J, Sweeney J, Hulme AJ, Pain J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant is conducting Class 5 proceedings in the Land and Environment Court against five personal and corporate defendants, alleging 16 offences of clearing native vegetation. In May 2021 the prosecutor filed a notice pursuant to s 247E of the Criminal Procedure Act 1986 (NSW) giving the defendants notice of its case and annexing witness affidavits, including two reports by expert witnesses. The charges are listed for hearing in three separate hearings, commencing on 29 July 2024. On 19 February 2024, five months before the first hearing was due to commence, the prosecutor advised the defendants' solicitor of its intention to seek the Court's leave to serve a further s 247E notice and updated reports from its two experts. The defendants resisted that course. In March 2024, four months before the first hearing was due to commence, at the request of the defendants and as directed by the Court, the prosecutor provided to the defendants' legal representatives the updated reports of the two experts, including "tracked change" versions to indicate what was new in the reports. One expert had divided his original report into three reports, one for each hearing to be held. Both experts had elaborated on their reasoning to support their conclusions, to meet the requirements of admissibility of expert reports. The primary judge in the Land and Environment Court refused the prosecutor leave to rely on the updated expert reports. The applicant sought leave to appeal on three grounds: 1. The primary judge erred in principle in refusing the prosecutor leave to serve an amended s 247E notice that includes supplementary expert evidence on the basis that the defendants would suffer "great potential for prejudice" if leave was granted. 2. The primary judge failed to take into account whether prejudice to the defendants was capable of being cured (in accordance with the principles in Sutherland Shire Council v Benedict Industries Limited [2013] NSWLEC 121 at [27]-[28]). 3. The primary judge failed to take into account the prejudice to the prosecutor's case if the supplementary expert evidence was not able to be relied upon in support of the criminal charges. The Court (per Sweeney J, N Adams J and R A Hulme AJ agreeing) held, granting leave to appeal and allowing the appeal: The order of the primary judge was an interlocutory order, not a ruling on the admissibility of evidence. R v Steffan (1993) 30 NSWLR 633; Nicholson v R [2017] NSWCCA 38; Environment Protection Authority v Eastern Creek Operations Pty Ltd (2022) 108 NSWLR 198; [2022] NSWCCA 97; PJ v R [2023] NSWCCA 105 cited. The primary judge erred in the order made, by either mistaking the facts or taking into account irrelevant matters, and failing to take into account a material consideration. House v The King (1936) 55 CLR 499; Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121; Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97; Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78 cited. The order of the Land and Environment Court was quashed and the prosecutor granted leave to file and serve an amended s 247E notice with the updated expert reports.

JUDGMENT

N ADAMS J: I agree that all three grounds of appeal should be upheld and the appeal allowed for the reasons provided by Sweeney J.
SWEENEY J: The Secretary of the Department of Planning and Environment, the applicant, seeks leave to appeal, pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW), against a judgment of her Honour Pain J in the Land and Environment Court of New South Wales refusing the applicant leave to file and serve a further notice pursuant to s 247E of the Criminal Procedure Act 1986 (NSW) by which the applicant sought to serve expert reports. The applicant characterised the expert reports as "supplementary reports". The extent to which the reports are supplementary or contain new evidence is in dispute between the applicant and respondents.

Relevant procedural background

On 11 March 2021 the prosecutor commenced Class 5 proceedings in the Land and Environment Court against the five respondents, alleging 16 offences of clearing native vegetation.
On 28 May 2021 the prosecutor filed a notice pursuant to s 247E of the Criminal Procedure Act with witness affidavits and expert reports of Leo Watts, described as a "land and aerial surveyor", and Dr Kate Hammill, described as a "botanist and ecologist". Section 247E applies to proceedings in the Land and Environment Court's summary jurisdiction, as the subject prosecutions are, pursuant to s 247A of the Act. Section 247E requires a prosecutor to give a defendant notice of the prosecution case, which includes a report by any expert witness proposed to be called by the prosecutor: s 247E(1)(h).
Thereafter there were pre-trial processes. These included a motion filed by the defendants in November 2022 asserting that the prosecutions were commenced out of time. That application was listed for hearing in June 2023 but was withdrawn by the defendants three weeks before the hearing date.
On 7 July 2023 all defendants entered pleas of not guilty and the Court fixed hearing dates. They are 29 July 2024 for the charges against Balmoral Farms Pty Ltd, 12 August 2024 for the charges against JP and LR Harris Pty Ltd and Woolondoon Pty Ltd, and 2 September 2024 for the charges against Phillip Harris and Sue Harris.
In September 2023 the prosecutor briefed new Senior Counsel, their former Senior Counsel having accepted a judicial appointment. In December 2023 the newly briefed counsel withdrew due to unavailability. In the last week of January 2024 the prosecutor briefed new Senior Counsel.
In May 2022 Pain J delivered a judgment in Secretary, Department Of Planning and Environment v Namoi Valley Farms Pty Ltd (No 6) [2022] NSWLEC 62. In that judgment her Honour considered whether two expert reports of Leo Watts should be admitted as expert evidence. Her Honour held that parts of one of Mr Watts' reports should be excluded, because Mr Watts had failed to identify his methodology, such that he failed to demonstrate how his findings were based on his knowledge, skills and training, as required by Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. Mr Watts is an expert whose report had been served by the prosecutor in these proceedings in May 2021.
On 19 February 2024, a solicitor for the applicant wrote to the defendants' solicitor, advising that the prosecutor intended to serve additional evidence and to seek leave to file an amended s 247E notice "in the near future". The solicitor advised of the anticipated further evidence. This included: "Three expert reports by Leo Watts, one for each of the separate trials. The purpose of these reports is to clarify aspects of Mr Watts' primary expert report dated 4 March 2021 and to separate the subject matter according to its relevance to the respective trials." and "Supplementary expert report of Dr Kate Hammill-Stone. The purpose of this report is to clarify some matters raised in her primary expert report dated 3 March 2021".
The solicitor proposed listing the matter for directions on 1 or 8 March 2024.
On 28 February 2024 the solicitor for the applicant sent an email to the defendants' solicitor indicating they had not received a response to their letter of 19 February 2024, and attaching proposed short minutes of order, containing a proposed timetable for the prosecutor to file and serve an updated notice pursuant to s 247E and consequential orders. The solicitor indicated that the prosecutor would seek to have the matter listed on 8 March 2024.
On Monday 4 March, the solicitor for the prosecutor sent another email to the defendants' solicitor indicating they had not yet received a response to the letter dated 19 February 2024 or the email sent on 28 February 2024 and had tried to call that day to ascertain if the defendants consented to the proposed short minutes of order. The applicant's solicitor proposed writing to the Court to have the matter listed for mention on 8 March 2024.
Later on 4 March 2024 the defendant's solicitor replied to the prosecutor's solicitor in the following terms: "Your proposed orders are embarrassing to the extent that you are asking us to agree to orders based on evidence we have not seen. Keep the matter listed for 8 March and you can explain to the Court why you are seeking to rely upon further evidence."
On 8 March 2024 the matter came before Duggan J in the directions list. The defendants opposed the prosecutor being granted leave to file and serve further evidence. Senior Counsel for the applicant advised Duggan J that she had come into the matter in February, and it had been identified that there should be some clarification brought to the expert evidence, as well as a separation of the existing expert evidence for the three hearings. The defendant's solicitor told Duggan J that the prosecutor should file and serve the evidence upon him, so he could consider the evidence, rather than the prosecutor being granted leave to rely on further evidence. Duggan J directed the prosecutor to serve a draft updated s 247E notice and the supplementary evidence by 22 March.
On 5 April 2024 the matter came before Pritchard J. Senior Counsel for the prosecutor advised her Honour that the draft notice and evidence had been served on 22 March, as Duggan J had ordered, with one expert report served on 25 March due to technological difficulties. Senior Counsel for the prosecutor advised the judge: "I was briefed at the beginning of term and it was identified that supplementary evidence was needed, but they're not new witnesses in terms of the expert evidence. The two experts relied upon in the proceedings were already the subject of evidence which was served in 2021."
Senior Counsel advised that because the 16 matters had been listed for three hearings, it was thought conducive to "the efficient management of the proceedings" for the reports to be separated into three separate reports "corresponding to the subject matter of the three separate hearings". The defendants' solicitor opposed the prosecutor being granted leave to file an amended s 247E notice. Pritchard J stood the matter over until Friday 12 April to give the defendants an additional week to review the material and identify any prejudice to the defendants in the material served.
On Friday 12 April 2024 the matter came before Pain J. Senior Counsel for the prosecutor advised her Honour that the prosecutor had served a replacement report of Dr Hammill, which: "… deals with the same subject matter that she dealt with in her 2021 report, but it supplements and clarifies her opinion on various things. Her conclusions are the same."
Counsel explained that Mr Watts had divided his opinion into three separate reports relating to each of the hearings and: "…in the process of doing that it was identified that he could clarify certain matters, and he has done that. His conclusions are the same… This is not a new expert. The subject matter is the same, his conclusions are the same, but the defendants are now dealing with a report that pertains to each hearing."
Counsel for the defendants told her Honour that the material served was not supplementary, but was voluminous, about 2000 pages, was technical and scientific. Counsel for the defendants indicated there was no indication from the prosecutor about what in their reports was new, the reports being longer than the previously served reports. Counsel for the defendants required that the prosecutor be directed to inform the defendants about what was new in Dr Hammill's and Mr Watts' reports.
During the course of that hearing an affidavit by the defendants' solicitor was read. During the hearing her Honour realised that there was an exhibit to that affidavit, which was 2000 pages long. Her Honour said "I don't want all that… if I realised that, I wouldn't have allowed this to be read. I'm not going to try go through 2000 pages." Counsel for the defendants advised that the 2000 pages was the proposed new evidence, and submitted that if her Honour was to properly deal with the matter then the evidence formed part of the considerations. Her Honour said "Why? I'm not going to form a view about whether it's prejudicial to you. You're going to tell me if it's prejudicial but I'm not going to trawl through it. I don't need to look at it."
Her Honour ordered the prosecutor to provide the defendants with a "marked up version" of the Hammill and Watts reports to indicate the new content in the reports, and stood the matter over to 18 April 2024.
During the hearing on 18 April, Senior Counsel for the prosecutor advised Pain J that the purpose of the proposed new reports from Mr Watts and Dr Hammill were proof of the elements of the offences charged that native vegetation had been cleared. She said: "It is to expand on and further explain the opinions that they expressed in their reports of 2021 that these additional reports have now been served, but their conclusions are not different. Their conclusions remain as stated and I accept that they're clarifications. The additions are substantial, they are matters of substance, but they are not an attempt to fill critical holes in the prosecution case."
Mr Ireland KC for the defendants before Pain J described "The true character of the differences in this report, as we have characterised it, is that it is a fresh go at an expert's report to make it admissible", to overcome the deficiencies identified by her Honour in the Namoi decision referred to above at [8].
Senior Counsel for the defendants was critical of the prosecutor not having put the new reports before her Honour, but her Honour rejected the need for that during the hearing. Senior Counsel for the defendants advised her Honour that they had approached an expert, who was not available.
Her Honour's judgment the subject of this application was delivered on 24 April 2024.

The judgment of Pain J

In her judgment her Honour noted that the hearings were set down from 29 July 2024 to 13 September 2024 and that the prosecutor sought leave to amend its s 247E notice and rely on additional evidence (as relevant to this application) from Leo Watts and Dr Hammill. The proposed evidence of Mr Watts was described as: "Expert aerial surveying report served in 2021 dealing with all 16 matters globally. Three separate reports served to address the subject matter relevant to each hearing separately, and clarifying aspects of opinion".
The proposed evidence of Dr Hammill was described as: "Expert ecologist report served in 2021. This supplementary report clarifies matters pertaining to opinion on the nature of the vegetation alleged to have been cleared".
Those descriptions were taken from an affidavit of a solicitor for the prosecutor.
Her Honour noted the procedural history. Her Honour noted that: "The defendants pleaded not guilty on the basis of the evidence relied on by the prosecutor in July 2023 and had not intended to rely on expert evidence. If admitted, the new expert evidence means that the defendants may have to consider briefing an expert. Inquiries have been made of one expert, Dr Robertson, who advises that in light of his other commitments and the 10 days of fieldwork needed, he would not be able to undertake inspections and consider the further proposed evidence before 9 July 2024, then requires some months from the end of that period for the drafting of his report": [8].
Her Honour noted that in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121, Biscoe J, in considering an application by a prosecutor to rely on additional evidence, "identified that issues to consider are whether the evidence sought to be relied on is relevant and admissible, is prejudice caused to a defendant which cannot be cured, and what is fair and just as between the parties." A further factor was does the evidence cause prejudice to a defendant which is irremediable without making an order which the court does not wish to make, for example an adjournment. Her Honour noted that "each case must be considered on its own circumstances".
Her Honour stated that: "Given the current stage of the proceedings, with the first trial date fixed to commence in approximately three months time on 29 July 2024, the complex and technical nature of the expert evidence and the parties' respective arguments, the matter is finely balanced": [27].
Her Honour stated: "The parties have made conflicting submissions on the extent and nature of the new evidence, the prosecutor downplaying its extent and nature, the defendants emphasising its considerable extent and complex nature. The prosecutor did not provide the new expert reports to the Court so that the nature of the evidence is not known directly": [31].
Whilst acknowledging that page length was a "very rough measure of how expansive the new evidence is", her Honour referred to the page numbers in the proposed reports and said "I consider the extent of the new expert evidence is substantial in light of these numbers."
Her Honour considered that the new aerial images in Mr Watts' three new reports were "of a substantive nature and may well require the defendants to reassess whether they should obtain expert evidence", which "to date they had made the decision not to". Her Honour said "That the reports confirm the previous conclusions of Mr Watts does not alleviate the burden now imposed on the defendants for the first time to deal with new substantive evidence of Mr Watts if admitted": [33].
Her Honour stated that "The nature of the clarification made by Dr Hammill in her new report is unknown" and referred again to the increased length of the report.
Her Honour noted that "The prosecutor has an ongoing duty of disclosure" and "the Court has discretion whether to reject or admit evidence if there has been a failure to disclose it to the other party": [37].
Her Honour said: "There has been significant delay in making application by the prosecutor for which little explanation is provided. The prosecutor appeared to accept during the hearing that ideally the application should have been made earlier, as indeed is the case": [35].
Her Honour noted that Senior Counsel briefed had become unavailable, but: "There is no suggestion that the expert witnesses were not otherwise available to prepare new evidence at an earlier time such as shortly after the matters were set down for hearing if the prosecutor considered it necessary to, for example, have three separate reports from Mr Watts rather than rely on his 4 March 2021 report": [39].
Her Honour noted that the "entirety of the new evidence was not provided to the defendants until 25 March 2024 following a Court order by the list judge on 8 March 2024". Her Honour considered that the new evidence had not been disclosed "as soon as practicable" as required by s 247O of the Criminal Procedure Act.
Her Honour stated that if the "evidence in its entirety [was] allowed to be relied on by the prosecutor the question of admissibility immediately arises requiring that matter to be dealt with promptly. That places an immediate burden on the defendants close to the trial dates… Depending on the outcome the trial dates may be in jeopardy": [40].
Her Honour said: "I also accept that there is substantial prejudice caused to the defendants in having to meet the new evidence including potentially adducing their own expert evidence for the first time so close to the trial dates. The availability of aerial image assessment experts is limited in my understanding. One such expert known to the Court, Dr Robertson, has been contacted by Mr McGirr [the defendants' solicitor] and his availability and the scope of work required means that he cannot prepare a report in time for the trials fixed for hearing. The availability of the limited number of appropriate experts other than Dr Robertson potentially places the trial dates in jeopardy."
Her Honour noted that the proceedings commenced on 11 March 2021, the defendants entered not guilty pleas on the basis of the evidence relied on by the prosecutor in July 2023, and the defendants wished to maintain the hearing dates fixed to commence on 29 July 2024. Her Honour stated that the option of ordering the defendants' costs thrown away was "not an adequate response to the likelihood of prejudice to the defendants in the current circumstances": [43].
Her Honour stated: "Weighing up all these matters, I consider that the additional expert evidence of the three reports of Mr Watts and additional report of Dr Hammill cannot be relied on in light of the great potential for prejudice to the defendants if these are relied on.": [44].

Was Pain J's judgment an interlocutory judgment or order?

The Court's jurisdiction to determine the applicant's application for leave to appeal, pursuant to s 5F(3)(a) of the Criminal Appeal Act, depends on whether Pain J's judgment was an "interlocutory judgment or order".
The respondents contended that Pain J's judgment was a preliminary ruling on evidence and therefore not an interlocutory judgment or order. A ruling on the admissibility of evidence is not regarded as constituting an interlocutory judgement or order: R v Steffan (1993) 30 NSWLR. The respondents contended that the decision of R v Bozatsis and Spanakakis (1997) A Crim R 296 was not relevant to the present application, because it concerned a decision by a trial judge to exclude all the evidence which the Crown sought to rely on in proof of charges.
The applicant submitted that Pain J's decision was an interlocutory judgment, that it was not a ruling about the admissibility of evidence, but about the case the prosecutor is entitled to bring. The applicant submitted that by refusing the prosecutor leave to serve the additional expert reports of Mr Watts and Dr Hammill, her Honour precluded the prosecutor from relying on the updated/supplementary expert reports of Mr Watts and Dr Hammill. The applicant submitted that the effect of her Honour's decision is that the prosecutor is being prevented from bringing the case it seeks to bring against the respondents.
In Nicholson v R [2017] NSWCCA 38, Beech-Jones J (as his Honour then was) said: "Whether a decision or determination by a trial judge amounts to an interlocutory 'order' capable of grounding an appeal under s 5F(2) or (3) requires a consideration of the 'character and [legal] effect of the decision' rather than the precise words used by the judicial officer (R v Bozatsis and Spanakakis per Gleeson J). Thus, a ruling on evidence made during the course of the trial is not considered to be an order or judgment of the court (R v Steffan). Such a ruling lacks any finality (Bozatsis at 303.7) in the sense that it neither determines some part of the proceedings nor amounts to a 'command that something be done or not be done' (R v F [2002] NSWCCA 125 at [11] per Wood CJ at CL)": at [49].
In Environment Protection Authority v Eastern Creek Operations Pty Ltd (2022) 108 NSWLR 198; [2022] NSWCCA 97 Fullerton J, with whom Lonergan J agreed, said: "That imperative that this court should have regard to the substance and not the form of the ruling or decision under consideration in determining whether it is amenable to an application for leave to appeal under s 5F(3) does not, however, derogate from the need to also critically examine the effect of the decision under consideration and to determine, referable to that factor, whether it is interlocutory": [131].
In PJ v R [2023] NSWCCA 105 Basten AJA said: "One procedural change which succeeded the introduction of s 5F and has been expanded since the earlier rules considered in Steffan, is the power and procedures by which criminal courts address matters before the commencement of the trial… The fragmentation of the trial procedure in circumstances, which is avoided when matters are dealt with in advance of the trial, is a significant consideration in addressing the scope of section 5F." :[23].
Her Honour's decision was not a ruling on the admissibility of evidence. It concerned an anterior step in the proceedings. What the prosecutor sought was leave and a timetable to file and serve an updated notice of the prosecution case, pursuant to s 247E of the Criminal Procedure Act, with a copy of updated reports by Mr Watts and Dr Hammill. Her Honour's decision that the additional expert reports of Mr Watts and Dr Hammill could not be relied upon was an order that the prosecutor revise its updated s 247E notice to not include those reports and to not serve those reports. It was an order of the Court that the prosecutor do something and not do something. It was an interlocutory order in the proceedings.
The prosecutor having apprehended that in the expert reports as originally served, the experts may not have sufficiently explained how they applied their expertise to reach their conclusions, to meet the requirements of admissibility of expert reports, had sought to have those experts elaborate on those matters. By ordering the prosecutor to not serve those updated reports, her Honour's decision precludes the prosecutor from giving notice of the prosecution case to the defendants, as required by s 247E, and effectively precludes the prosecutor from relying on that evidence in its cases against the defendants.

Whether leave to appeal should be granted

Both parties reminded the Court of the need to exercise restraint. Senior Counsel for the respondents relied on the statement by the Court of Appeal in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], that: "Discretionary decisions, whether in the context of substantive or procedural relief, also engage the strictures against over-ready appellate interference and the correlative need for 'added restraint' associated with House v R (1936) 55 CLR 499, with the consequence that a 'heavy burden lies an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure…" as cited by Bell P (as His Honour then was) in Hillsea v Joseph; McIvor v Joseph [2020] NSWCA 55 at [33].
The applicant referred to the statement of Johnson J in Agius v R [2011] NSWCCA 119 at [10]: "This Court has said that leave will only be granted where the decision which is the subject of the s 5F application is attended with sufficient doubt so as to warrant the matter being argued on appeal… or where the interests of justice otherwise require the intervention of the Court at this stage of the proceedings (R v Matovski (1989) 15 NSWLR 720 at 723; R v Dinh [2000] NSWCCA 536)".
The parties agreed that the applicant must establish that Pain J made an error of law in the way her Honour exercised her discretion, in accordance with House v The King (1936) 55 CLR 499.
The applicant submitted that the application being heard before the trial avoids disruption of the proceedings, it should be not concluded that an inevitable consequence of a successful appeal would be an application by the respondents to vacate one or more of the trial dates, and it is in the interests of justice that the offences charged be determined on the basis of admissible expert evidence.
The applicant submitted that the proposed expert evidence is critical to the prosecution case, to permit the experts to disclose and elucidate their reasoning leading to their unchanged conclusions from their 2021 reports and comply with their obligations as experts. The applicant submitted that there is a strong risk that the experts' 2021 reports will be held to be inadmissible if their updated reports are not permitted to be relied on.
The respondents submitted that before Pain J the prosecutor had described the new expert reports as "clarifying matters relating to their opinions" and submitted they were not attempting to fill "critical holes in the prosecution case", whereas the applicant now contends there would be a risk of the experts' earlier reports being held to be inadmissible. The respondents disputed that the application being heard before the commencement of the trial does not delay the trials, submitting that the respondents are already prejudiced by the lack of time between service of the new reports and the commencement of the trials, as well as the hardship caused to the respondents by delay in the proceedings, being delay caused by the prosecutor in obtaining the further proposed evidence.

Grounds of appeal

The applicant sought to rely on three grounds of appeal: The primary judge erred in principle in refusing the prosecutor leave to serve an amended s 247E notice that includes supplementary expert evidence on the basis that the defendants would suffer "great potential for prejudice" if leave was granted. The primary judge failed to take into account whether prejudice to the defendants was capable of being cured (in accordance with the principles in Sutherland Shire Council v Benedict Industries Limited [2013] NSWLEC 121 at [27]-[28]). The primary judge failed to take into account the prejudice to the prosecutor's case if the supplementary expert evidence was not able to be relied upon in support of the criminal charges.

Grounds 1 and 2 - applicant's submissions

The applicant submitted that Pain J's conclusion that the defendants would suffer "great potential for prejudice" was an erroneous and unreasonable basis to refuse the applicant leave to rely on the supplementary expert reports, as a potential or risk of prejudice is not a sufficient basis to refuse a prosecutor leave to file an amended s 247E notice. The applicant relied on the statement of Biscoe J in Sutherland Shire Council v Benedict Industries Limited at [27]: "In my opinion, leave of the Court is required to file the prosecutor's supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit the prosecutor to lead evidence that is otherwise relevant and admissible, for example, if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing".
The applicant submitted that Pain J did not take into account whether there was irremediable prejudice or prejudice which could only be cured by an order that the Court was not willing to make. The applicant submitted that potential prejudice was not a sufficient or reasonable basis to refuse the prosecutor leave to rely on additional evidence which was important or essential to proof of elements of the offences charged.
The applicant submitted that in the circumstances of this case, Pain J's finding that the new evidence had not been disclosed as soon as practicable was erroneous.
The applicant submitted that her Honour assessed the extent of the proposed new evidence only by reference to the numbers of pages in each new report. The applicant submitted that her Honour was critical of the prosecutor not having put the new reports before the court, yet her Honour had declined to look at the proposed new evidence when it was attached to an affidavit by the defendants' solicitor.
The applicant referred to her Honour having relied on the potential prejudice to the defendants in their "potentially" having to adduce their own expert evidence, when the only evidence on that subject before her Honour was that the defendants' solicitor had enquired of one ecologist, who was not available. The applicant submitted that until further inquiries were made, irremediable prejudice to the defendants or prejudice which could only be cured by an order which the court was not willing to make was not established.
The applicant accepted there was delay in the prosecutor making the application, but submitted that the prosecutor gave notice of the proposed new evidence five months before the first trial date, and although the page numbers in the reports did increase and there were some additional aerial photographs from Mr Watts, the prosecutor was not seeking to change its case, but rather the experts were setting out in more detail the basis of their opinions.
The applicant submitted that her Honour erred in speculating that there would be prejudice to the defendants, rather than considering what the actual prejudice was, in speculating that the defendants would object to the contents of the proposed expert reports, in speculating that the defendants were going to rely on expert evidence and that there were limited available appropriate experts, in the absence of evidence of such, and speculating that the trial dates had to be vacated or were in jeopardy, particularly when the trial dates were so far away.
The applicant submitted that her Honour did not explain why an order for costs, at an appropriate stage of the proceedings, was not an adequate remedy for the "likelihood of prejudice to the defendants".
The applicant submitted that potential prejudice to the defendants was not sufficient to warrant the drastic measure of excluding supplementary evidence that was required to enable experts to fully and properly explain the basis of their opinions.

Grounds 1 and 2 - Respondents' submissions

The respondents submitted that Pain J did not err in finding great potential for prejudice to them if leave were granted to the prosecutor, because her Honour had evidence of prejudice in Mr McGirr's affidavit, of the inability to obtain an expert's response to the further evidence of Mr Watts and Dr Hammill in time for the trials, and the effects on the defendants of the prolonging of the proceedings if they had to seek to have the trial dates vacated. The respondents submitted they were not required to show they would suffer irremediable prejudice if the prosecutor were permitted to rely on the further reports of Mr Watts and Dr Hammill, that Biscoe J in Sutherland Shire Council v Benedict Industries did not only refer to irremediable prejudice, but to prejudice which could only be cured by an order that the court was not willing to make, as examples of bases on which a prosecutor may not be permitted to lead evidence, to prevent unfairness.
The respondents submitted her Honour's decision was not affected by error, but that the following findings her Honour made were open to her on the evidence:

The extent of the proposed further expert evidence was substantial, including new aerial images which might well require the respondents to reassess whether they should obtain expert evidence.
There had been significant delay by the prosecutor in making the application, for which little explanation was provided and the new evidence had not been disclosed as soon as possible.
The new evidence would place a burden on the respondents close to the trial dates to deal with the question of admissibility and the trial dates might be in jeopardy depending on the outcome of that process.
There was substantial prejudice to the respondents in having to meet the new evidence and the limited availability of appropriate experts placed the trial dates in jeopardy.
The respondents wished to maintain the trial dates.
An order for costs thrown away was not an adequate response to the likelihood of prejudice to the respondents in the circumstances.

The respondents submitted that her Honour properly took into account the extent and nature of the new evidence, so far as the evidence permitted, the time until the trial, and the practical consequences for the respondents if leave were granted to the prosecutor, and expressed herself carefully in terms of "potential prejudice".
The respondents submitted that the prosecutor did not put the new reports before her Honour or explain the delay in obtaining them.
The respondents submitted there was no House v The King error in Pain J's judgment and that nothing in her Honour's judgment indicated she misunderstood the facts.

Ground 3 - Applicant's submissions

The applicant submitted that the prosecutor was not seeking to rely on new reports by new experts or to change the nature of its case or the allegations against the defendants, but on replacement or supplementary reports which contained the same subject matter and expressed the same conclusions but provided more detail about the reasoning supporting the conclusions. Mr Watts' reports included some additional aerial imagery, which he used as part of his reasoning process.
The applicant submitted the supplementary evidence sought to expose the basis of the experts opinions, in part to address deficiencies identified by Pain J in a report by Mr Watts in Namoi Valley Farms Pty Ltd (No 6) and to meet the requirements of s 79 of the Evidence Act 1995 (NSW).
The applicant submitted her Honour considered there would be prejudice to the respondents but did not consider the prejudice to the prosecution if leave was not granted for it to rely on those reports. The applicant submitted that the importance of the evidence to the prosecution case was a factor which favoured the prosecutor being granted leave to rely on the replacement expert reports. The applicant referred to the public interest in those accused of criminal offences being brought to justice: Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 97 at [89].
The applicant submitted that Pain J failed to take into account the nature of the evidence sought to be relied on, being supplementary explanation of the expert opinions, and failed to take into account the prejudice to the prosecutor, which was raised with her Honour by Senior Counsel for the prosecutor, if it was prevented from properly disclosing and serving the full explanation of the expert opinions it sought to rely on.

Ground 3 - Respondents' submissions

The respondents submitted that the prosecutor did not put the new reports before Pain J, so her Honour took account of the nature of the evidence so far as it was disclosed to the Court. The respondents submitted that the applicant was now taking a different position than it took before Pain J, when it said the new reports involved clarification and were not filling any critical hole in the prosecution case, whereas now the prosecutor raises that the earlier served reports may be ruled inadmissible.
The respondents submitted that in saying the matter was "finely balanced", her Honour clearly took into account the effect of her decision on the prosecution. The respondent submitted that her Honour's judgment did not fail to take into account a relevant consideration.

Consideration

In Sutherland Shire Council v Benedict Industries (No 1), Biscoe J said the following: "[27] In my opinion, leave of the Court is required to file the prosecutor's supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the court is not willing to make, such as for an adjournment of the hearing. … [30] Nevertheless, the direction the prosecutor now seeks for filing of supplementary evidence in chief is to similar effect as a direction for an extension of time to file evidence in chief. Such a direction was made in the analogous pre-Division 2A case of Environmental Protection Authority v Gilmour [2000] NSWLEC 144… There Bignold J considered that it was just and efficient to extend the time for filing of prosecution evidence after the time permitted by an earlier direction... On the assumption that the only possible prejudice to the defendant lay in the potential that the additional affidavits may contain evidence vital to the prosecution case, his Honour held that justice did not require precluding admissible evidence provided that fair notice of it was given to the defendant".
At [31] his Honour referred to the legislative provisions and said: "That being the legislative scheme, I do not think that a defendant can generally complain of unfairness or prejudice if a prosecutor, who has acted in good faith, seeks to file supplementary evidence at a relatively early stage of the proceedings to meet the defendant's objections to the admissibility of parts of the prosecutor's evidence. In such a case, the defendant has received fair notice. … "[32] The exercise of the Court's supervisory discretion to grant leave to file supplementary evidence has regard to the particular circumstances. It is a matter of fact and degree. If, for example, the only supplementary evidence that a prosecutor proposes to adduce is a curriculum vitae to prove the expertise of a proposed expert witness whose evidence the defendant has objected to because of lack of evidence of expertise, there should generally be no difficulty in exercising the discretion in favour of allowing such supplementary evidence to be filed… On the other hand, for example, if a defendant did not receive fair notice of supplementary prosecution evidence such that it would be unfairly prejudiced in a way that was irremediable, or not remediable by an order that the court would countenance (for example, adjournment of the hearing), then that might be a powerful factor influencing the court not to allow the supplementary evidence to be filed. … [34] On discretion, it is true that the prosecutor is taking advantage of the defendant's disclosure to, as the defendant puts it, "patch up" the prosecution case, but it is not doing so because its earlier evidence is grossly deficient nor has it acted in bad faith, and its ability to do so is the product of the statutory scheme. The proposed evidence is supplementary to that already filed. Although it is substantial and the defendant has not yet had the opportunity to analyse it in detail, the defendant can and should be protected in that regard by a timetable that gives it a fair opportunity to analyse it in detail."
In Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78, Duggan J said, after referring to the decision of Biscoe J in Sutherland Shire Council v Benedict Industries: "[7] … In the present case, what is required is a consideration of (1) Whether the evidence is relevant and admissible; (2) Whether the evidence would cause a prejudice to the defendant that is unable to be satisfactorily cured; and (3) Considerations generally relating to the fairness and justice between the parties. [8] Compliance with the disclosure requirements of the Criminal Procedure Act are important as they provide both notice to the defendant of the case it has to meet but it also significantly contributes to the efficient management of the public resource of court time. [9] The late service of evidence in breach of those requirements will always have a prejudicial effect on the defendant, as it makes decisions, deploys resources and manages the preparation of the case reliant upon the disclosure made to it. Service of material two days before the hearing will always produce some degree of prejudice. I accept that in this case, the late service has resulted in such inherent prejudice. … [15] The defendant was unable to identify any particular matter that produced a direct and identifiable prejudice beyond the inherent prejudice that I have already accepted. In the circumstances, the prejudice to the defendant, in the event that the evidence is allowed, is not irremediable and can be accommodated by allowing the defendant time, within the scope of the hearing already fixed, to take instructions, prepare and otherwise deal with this evidence. Further, the adducing of the evidence and these arrangements would not unduly compromise the efficient management and conduct of the hearing."
In Sutherland Shire Council v Benedict Industries (No 3) [2015] NSWLEC 97, Pepper J said at [68]: "From the available case law, it would appear that the touchstone for the exercise of the Court's discretion to grant leave to rely on further evidence under the Division 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave…".
In this case, the prosecutor notified the defendant's solicitor in February 2024, five months before the commencement date of the first trial, of its intention to serve three reports by Mr Watts, one for each separate trial, and to clarify aspects of his primary report previously served, and a supplementary report of Dr Hammill to clarify some matters in her previously served report. The material was served pursuant to orders of the Court in March 2024, four months before the first trial date, and was provided in "track change" format in order to permit the defendants and their legal representatives to understand the extent of the new material in the reports. It can be discerned that at least some of the content of the new reports was to expose the experts' reasoning underlying their expert opinions. Four months before the commencement of the first trial was a fair and sufficient time for the defendants to absorb and understand the new evidence.
It was not clear on the evidence before Pain J that a question of admissibility would be raised on behalf of the defendants in respect of the new reports or, if it was, why that had to be dealt with immediately or before the trial, rather than by the trial judge during the trial. If the defendants sought to obtain an expert report and if none was available (rather than one was unavailable) then they could seek to have the trial dates vacated or varied. They could possibly use part of the several weeks allocated for the three trials. It is not clear that none of the time allocated could have been used.
In her consideration of the prejudice to the defendants from the proposed service of the new expert reports, her Honour anticipated problems which may arise, but on the evidence before her had not at that time arisen. Her Honour conflated prejudice which may arise for the defendants with actual prejudice demonstrated. In that regard her Honour either mistook the facts or took into account irrelevant matters, being matters which were not established on the evidence before her.
Her Honour failed to take into account the prejudice to the prosecution if the prosecutor was not permitted to rely on the new reports and the earlier served expert reports were excluded for insufficient exposition of the reasoning process supporting the opinions. It was clear that her Honour was told that the expert opinions were important or essential to prove elements of the offences charged. In that regard her Honour failed to take into account a material consideration, which had been raised with her. Fairness and justice required that her Honour take into account the interests of both parties to the proceedings. The interests of justice require intervention by this Court.

Orders

Therefore, I would make the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the order made by Pain J on 24 April 2024 in relation to the three reports of Leo Watts and the additional report of Dr Kate Hammill and in lieu thereof, order that the prosecutor is granted leave to file and serve on the defendants an amended notice pursuant to s 247E of the Criminal Procedure Act 1986 (NSW), which includes copies of the three expert reports of Leo Watts and the further expert report of Dr Kate Hammill.
R A HULME AJ: I agree with Sweeney J.

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: 05 June 2024

(2022) 108 NSWLR 198

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (20)

Cited By (1)