Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Balmoral Farms Pty Ltd; Secretary, Department of Planning and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning and Environment v Woolondoon Pty Ltd
[2024] NSWLEC 43
Land and Environment Court (NSW)|2024-04-18|Before: Pain J
The application by the prosecutor in Benedict Industries No 1 to rely on additional evidence was made before a hearing date was set and during trial preparation albeit after the s 247E and s 247J notices under the CP Act. The application was granted. At [27] Biscoe J identified that issues to consider are (1) whether the evidence sought to be relied on is relevant and admissible, (2) is prejudice caused to a defendant which cannot be cured, and (3) what is fair and just as between the parties. Further 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.
Each case must be considered on its own circumstances. The wide variety of these can be seen, for example, in Sutherland Shire Council v Benedict Industries Pty Ltd (No 3)[2015] NSWLEC 97 (Benedict Industries No 3) whereby a notice of motion filed on the first day of a criminal trial listed for approximately four weeks, the prosecutor sought leave to file and rely upon 10 additional affidavits and to amend its Div 2A notices under s 247E and s 247J of the CP Act. Leave was granted on the basis that the hearing must be vacated and that costs thrown away by the defendant were to be paid by the prosecutor.
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. In relation to the extent of changes in expert evidence, while page length is a very rough measure of how expansive the new evidence is I was informed by the Prosecutor that Dr Hammil's 2021 report was 308 pages, the new report is 402 pages (an extra 96 pages).
Mr Watts' 2021 report was 198 pages including 69 pages of appendices. The new report for trial 1 (Balmoral Farms Pty Ltd) is 292 pages including 132 pages of appendices with 9 new aerial images, trial 2 (JP & JL Harris Pty Ltd, Woolondoon Pty Ltd) is 238 pages with 123 pages of appendices with 8 new aerial images, trial 3 (Mr Harris, Mrs Harris) is 227 pages including 118 pages of appendices with 4 new aerial images. I consider the extent of the new expert evidence is substantial in light of these numbers.
Turning to the nature of the evidence, the Prosecutor submitted the evidence was necessary to clarify matters. I observe that aerial imagery identification is a specialist expertise held by Mr Watts. A number of new aerial images have been included in the three new reports which are presumably the subject of consideration by Mr Watts. Whether these are intended to address the shortcomings identified in Namoi Vally No 6 I am unable to comment on but I do consider that this additional information is of a substantive nature and may well require the Defendants to reassess whether they should obtain expert evidence. To date they had made the decision not to. 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.
The nature of the clarification made by Dr Hammil in her new report is unknown. I have already identified above the length of the report has increased substantially by 96 pages. The Prosecutor could have done more than simply assert that the clarifications intended to be made would not cause undue prejudice to the Defendants. The Defendants also submitted that they would need to consider whether to call an expert in relation to this material.
Mr Murphy's affidavit was submitted by the Defendants to be inadequately described in Mr Williams' affidavit because it obscures the following:
[2]
(1) Mr Murphy's original affidavit affirmed on 5 March 2021 had 70 paragraphs over 10 pages and an exhibit RDM-1 which was 296 pages long. It did not contain any photographs taken by Mr Murphy.
(2) Mr Murphy's further affidavit affirmed on 22 March 2024 with 91 paragraphs over 13 pages was made without duplication of what was contained in his first affidavit (save for some description of the site inspection).
(3) Mr Murphy in his further affidavit has now produced for the first time and exhibited to that affidavit numerous photographs taken by him of his site visit which were not previously disclosed to the Defendants.
(4) Mr Murphy expands heavily in pars 19-70 of his second affidavit upon what he saw on his site inspection on 15-17 June 2020. This material, and the numerous photographs and GPS positions that he now produces are all new. He now asserts that he has 'verified' by site investigations changes in vegetation identified by him on the basis of aerial and satellite images. He offers now what he calls his own 'identification of patches of woody vegetation that have been removed'.
(5) This amounts to much more than 'clarification' of his earlier evidence. It is a new approach and interpretation throwing up many issues which the Defendants would need to explore by site visits and otherwise. Much time would be required on site. Mr Murphy's own evidence is that his 2020 site visit occupied three days.
[3]
As already observed the Prosecutor did not refer to the new evidence apart from general descriptions in its solicitors' affidavits including Mr Murphy's further affidavit. It is difficult to weigh up the extent to which Mr Murphy's further affidavit does set out matters otherwise dealt with in Mr Smith's affidavit already served on the Defendants which the Prosecutor no longer wishes to rely on. The Prosecutor's submission is not necessarily inconsistent with the Defendants' submissions set out in the previous paragraph. In the absence of more detail from the Prosecutor I accept the Defendants' submission that the further affidavit is substantive and introduces new material including photographs not seen previously by them in relation to Mr Murphy. However to the extent that these reflect what was otherwise contained in Mr Smith's affidavit this can be relied on by the Prosecutor as I do not consider that is ultimately new material which causes irremediable prejudice to the Defendants. The precise terms of the affidavit which can be relied on will have to be the subject of further discussion between the parties possibly before the Court if the affidavit content cannot be resolved.
The Prosecutor has an ongoing duty of disclosure as emphasised by Benedict Industries (No 1) at [17] extracted above in [27] and submits that it is seeking to comply with that duty. As identified in [27] the Court has discretion whether to reject or admit evidence if there has been a failure to disclose it to the other party.
There has been significant delay in making the 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. Reference was also made in submissions based on the affidavit evidence of both Mr Flaherty and Mr McGirr as to the timing of the Prosecutor's reservation of the ability to adduce additional evidence. Regardless of whether such a reservation was made at or after trial dates were set, that reservation does not alter the need for a prosecutor to act in a timely manner if that is what it seeks to do.
Mr Flaherty's affidavit identifies that senior counsel separately briefed in the second half of 2023 after the hearing dates were set down became unavailable and with the appointment of Ms Wright SC on 16 January 2024 the view was formed that additional evidence ought be adduced. Notice of this intention was provided to the Defendants by letter dated 19 February 2024. 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. 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. I make these observations as I do not consider that the new evidence has been disclosed 'as soon as practicable' as required by s 247O of the CP Act.
Further, debate over whether the new evidence can be relied on has occurred in the list throughout the first half of April. Given the time taken to resolve whether the evidence can be relied on, as distinct from ruling on its admissibility which the Prosecutor sought to emphasise was a separate matter, if the evidence in its entirety is allowed to be relied on by the Prosecutor the question of admissibility immediately arises requiring that matter to be dealt with promptly. This places an immediate burden on the Defendants close to the trial dates fixed to commence from 29 July 2024. Depending on the outcome the trial dates may be in jeopardy.
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 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.
Unlike in Benedict Industries No 1 in which the new evidence allowed to be adduced necessitated the vacation of hearing dates, the Defendants wish to maintain the hearing dates fixed to commence from 29 July 2024 given the lengthy history of the proceedings commenced on 11 March 2021, their entry of not guilty pleas on the basis of the evidence relied on by the Prosecutor in July 2023 and accepting for present purposes the subjective evidence in Mr McGirr's affidavit concerning the individual Defendants' personal circumstances. That the length of time the proceedings have been on foot resulted from several months taken up by the Defendants' notice of motion alleging contravention of the statutory limitation period which was not ultimately pressed and various other procedural steps reflects a complex history in the matter to date.
The option of ordering the Defendants' costs thrown away as provided by s 68 of the Land and Environment Court Act 1979 (NSW) is not an adequate response to the likelihood of prejudice to the Defendants in the current circumstances in my view.
Weighing up all these matters, I consider that the additional expert evidence of the three reports of Mr Watts and the additional report of Dr Hammil cannot be relied on in light of the great potential for prejudice to the Defendants if these are relied on. As to Mr Murphy's further affidavit, as identified above in [36] to the extent that affidavit repeats what is in Mr Smith's earlier affidavit that can be relied on. Without having the affidavit before me I am unable to better identify what is permissible. A timetable for the parties to consider that affidavit is needed and this will be discussed with the parties.
The Prosecutor will need to amend the revised s 247E notice in accordance with the findings in this judgment, in particular pars 24, 25, 36 and 44.
Leave is required by the Prosecutor to file an amended s 247E notice and rely on additional affidavits, and the Prosecutor bears the onus of establishing a basis for leave being granted. The Prosecutor's application is strongly opposed by the Defendants on grounds that it is unreasonable that so much new evidence relatively close to the hearing dates is being sought to be relied on. The revised reports of Dr Hammil and Mr Watts number some 1200 pages. The Defendants are potentially substantially prejudiced and may need to vacate the hearing dates if the new expert reports are able to be relied on.
A very large amount of evidence served some 8 to 9 months after all matters were set down for hearing is unreasonable and will cause unfair prejudice to the Defendants if allowed to be relied on. The new evidence is technical and complex as well as voluminous.
Only two of the affidavits previously filed by the Prosecutor in 2021 continue to be relied on (Mr Murphy, Mr Flynn) and Mr Murphy's affidavit has been greatly expanded and contains new material, including numerous photographs not previously provided. The Defendants pleaded not guilty in July 2023 on the basis of what evidence the Prosecutor then relied on. The Defendants had determined not to call expert evidence on the basis of the evidence which existed at the time they pleaded guilty. The latest lengthy expert evidence of Dr Hammil and Mr Watts means that this decision may have to be revisited. As attested to by Mr McGirr one expert witness has been approached and based on the work required may not be able to provide a report in time for the first hearing commencing on 29 July 2024.
The Prosecutor mischaracterises the extent of changes in the experts' reports and seeks to minimise what are substantial changes. The Prosecutor has not placed the new evidence before the Court and should have done so to establish its claims. Essentially these are new reports which appear intended to cure some of the deficiencies identified in Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 6) [2022] NSWLEC 62 (Namoi Valley No 6) at [45] in which the evidence of Mr Watts was found wanting. In light of the nature and volume of the new expert evidence and the prejudice caused to the Defendants if this is relied on, this should not be allowed.
The Prosecutor has substantially delayed in making this application. The Prosecutor has not provided any explanation for why the application for leave has been made so late. No explanation is provided for why the Prosecutor could not have prepared and served the further evidence earlier.
The Court should not allow the additional evidence given the prejudice to the Defendants including that the Defendants may have to make an application to vacate the pending hearing dates. The Prosecutor by seeking to limit the nature of its application by stating that no admissibility issues yet arise and that an application for vacation can be made shifts the burden to the Defendants when the Prosecutor bears the onus of establishing why this new evidence should be allowed in these circumstances.
Consideration
The Court has discretion under the Criminal Procedure Act 1986 (NSW) (CP Act) Ch 4 Pt 5 Div 2A Case management provisions and inherent power to manage matters before it to make the orders sought by the Prosecutor. The purpose of Division 2A is identified in s 247B. Section 247E requires notice of the prosecution case to be provided in various aspects. Section 247O provides that disclosure requirements are ongoing until a defendant is acquitted, a prosecution is terminated or a defendant is sentenced. Under subs (2) additional information must be disclosed 'as soon as practicable'. Section 247N provides for sanctions for non-compliance with preliminary disclosure requirements.
Ten affidavits and two Evidentiary Certificates are identified as the additional evidence the Prosecutor wishes to rely on. The Defendants confirmed on 22 April 2024 that they do not object to the following:
1. Affidavit of Susan Patricia Rae 22 March 2024;
2. Affidavit of Peter Jobson 20 March 2024;
3. Affidavit of Sarah Carr 22 March 2024;
4. Affidavit of Dennis Boschma 24 March 2024;
5. Affidavit of Kimley Talbert 25 March 2024; and
6. Evidentiary Certificates pursuant to ss 13.31 and 13.32 of the BC Act.
These affidavits can be relied on by the Prosecutor.
At issue are the expert report of Dr Hammil, three reports of Mr Watts and the further affidavit of Mr Murphy.
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.
In Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 (Benedict Industries No 1) Biscoe J provided a useful description of Division 2A and its operation at [17] which I extract and adopt as follows:
[17] There is nothing in Division 2A which mandates that the evidence in the prosecution case cannot be supplemented after the second round s 247J prosecution's notice is served. Sections 247J, 247O, 247V and 247N suggest that it can, for they contemplate continuing disclosure including, I think, any further evidence that the prosecutor proposes to adduce. Under s 247O there is a continuing obligation on the parties to comply with the requirements for "preliminary disclosure" imposed by Division 2A until the defendant is acquitted or sentenced or the prosecution terminated. Accordingly, if anything occurs after preliminary disclosure that would have affected that preliminary disclosure if it had occurred before preliminary disclosure was made, it must be disclosed to the other party "as soon as practicable". Section 247O includes, in my view, an obligation to disclose any affidavits of witnesses whose evidence the prosecutor proposes to adduce at the hearing which are additional to those identified in the s 247J notice. Secondly, disclosure may occur even at the trial or sentencing hearing despite the fact that it should have occurred earlier, for s 247V empowers the court on or after commencement of the trial or sentencing hearing to make orders for its efficient management and conduct, including ordering disclosure of any matter that was, or could have been, required to be earlier disclosed under Division 2A. Thirdly, evidence may be admitted even if there has been failure to comply with preliminary disclosure requirements, for s 247N contains sanctions for non-compliance with preliminary disclosure requirements and gives the court a discretion whether to reject or admit evidence sought to be adduced by a party who failed to disclose it to the other party in accordance with requirements for preliminary disclosure under Division 2A:
…
The application by the prosecutor in Benedict Industries No 1 to rely on additional evidence was made before a hearing date was set and during trial preparation albeit after the s 247E and s 247J notices under the CP Act. The application was granted. At [27] Biscoe J identified that issues to consider are (1) whether the evidence sought to be relied on is relevant and admissible, (2) is prejudice caused to a defendant which cannot be cured, and (3) what is fair and just as between the parties. Further 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.
Each case must be considered on its own circumstances. The wide variety of these can be seen, for example, in Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 (Benedict Industries No 3) whereby a notice of motion filed on the first day of a criminal trial listed for approximately four weeks, the prosecutor sought leave to file and rely upon 10 additional affidavits and to amend its Div 2A notices under s 247E and s 247J of the CP Act. Leave was granted on the basis that the hearing must be vacated and that costs thrown away by the defendant were to be paid by the prosecutor.
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. In relation to the extent of changes in expert evidence, while page length is a very rough measure of how expansive the new evidence is I was informed by the Prosecutor that Dr Hammil's 2021 report was 308 pages, the new report is 402 pages (an extra 96 pages).
Mr Watts' 2021 report was 198 pages including 69 pages of appendices. The new report for trial 1 (Balmoral Farms Pty Ltd) is 292 pages including 132 pages of appendices with 9 new aerial images, trial 2 (JP & JL Harris Pty Ltd, Woolondoon Pty Ltd) is 238 pages with 123 pages of appendices with 8 new aerial images, trial 3 (Mr Harris, Mrs Harris) is 227 pages including 118 pages of appendices with 4 new aerial images. I consider the extent of the new expert evidence is substantial in light of these numbers.
Turning to the nature of the evidence, the Prosecutor submitted the evidence was necessary to clarify matters. I observe that aerial imagery identification is a specialist expertise held by Mr Watts. A number of new aerial images have been included in the three new reports which are presumably the subject of consideration by Mr Watts. Whether these are intended to address the shortcomings identified in Namoi Vally No 6 I am unable to comment on but I do consider that this additional information is of a substantive nature and may well require the Defendants to reassess whether they should obtain expert evidence. To date they had made the decision not to. 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.
The nature of the clarification made by Dr Hammil in her new report is unknown. I have already identified above the length of the report has increased substantially by 96 pages. The Prosecutor could have done more than simply assert that the clarifications intended to be made would not cause undue prejudice to the Defendants. The Defendants also submitted that they would need to consider whether to call an expert in relation to this material.
Mr Murphy's affidavit was submitted by the Defendants to be inadequately described in Mr Williams' affidavit because it obscures the following:
1. Mr Murphy's original affidavit affirmed on 5 March 2021 had 70 paragraphs over 10 pages and an exhibit RDM-1 which was 296 pages long. It did not contain any photographs taken by Mr Murphy.
2. Mr Murphy's further affidavit affirmed on 22 March 2024 with 91 paragraphs over 13 pages was made without duplication of what was contained in his first affidavit (save for some description of the site inspection).
3. Mr Murphy in his further affidavit has now produced for the first time and exhibited to that affidavit numerous photographs taken by him of his site visit which were not previously disclosed to the Defendants.
4. Mr Murphy expands heavily in pars 19-70 of his second affidavit upon what he saw on his site inspection on 15-17 June 2020. This material, and the numerous photographs and GPS positions that he now produces are all new. He now asserts that he has 'verified' by site investigations changes in vegetation identified by him on the basis of aerial and satellite images. He offers now what he calls his own 'identification of patches of woody vegetation that have been removed'.
5. This amounts to much more than 'clarification' of his earlier evidence. It is a new approach and interpretation throwing up many issues which the Defendants would need to explore by site visits and otherwise. Much time would be required on site. Mr Murphy's own evidence is that his 2020 site visit occupied three days.
As already observed the Prosecutor did not refer to the new evidence apart from general descriptions in its solicitors' affidavits including Mr Murphy's further affidavit. It is difficult to weigh up the extent to which Mr Murphy's further affidavit does set out matters otherwise dealt with in Mr Smith's affidavit already served on the Defendants which the Prosecutor no longer wishes to rely on. The Prosecutor's submission is not necessarily inconsistent with the Defendants' submissions set out in the previous paragraph. In the absence of more detail from the Prosecutor I accept the Defendants' submission that the further affidavit is substantive and introduces new material including photographs not seen previously by them in relation to Mr Murphy. However to the extent that these reflect what was otherwise contained in Mr Smith's affidavit this can be relied on by the Prosecutor as I do not consider that is ultimately new material which causes irremediable prejudice to the Defendants. The precise terms of the affidavit which can be relied on will have to be the subject of further discussion between the parties possibly before the Court if the affidavit content cannot be resolved.
The Prosecutor has an ongoing duty of disclosure as emphasised by Benedict Industries (No 1) at [17] extracted above in [27] and submits that it is seeking to comply with that duty. As identified in [27] the Court has discretion whether to reject or admit evidence if there has been a failure to disclose it to the other party.
There has been significant delay in making the 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. Reference was also made in submissions based on the affidavit evidence of both Mr Flaherty and Mr McGirr as to the timing of the Prosecutor's reservation of the ability to adduce additional evidence. Regardless of whether such a reservation was made at or after trial dates were set, that reservation does not alter the need for a prosecutor to act in a timely manner if that is what it seeks to do.
Mr Flaherty's affidavit identifies that senior counsel separately briefed in the second half of 2023 after the hearing dates were set down became unavailable and with the appointment of Ms Wright SC on 16 January 2024 the view was formed that additional evidence ought be adduced. Notice of this intention was provided to the Defendants by letter dated 19 February 2024. 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. 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. I make these observations as I do not consider that the new evidence has been disclosed 'as soon as practicable' as required by s 247O of the CP Act.
Further, debate over whether the new evidence can be relied on has occurred in the list throughout the first half of April. Given the time taken to resolve whether the evidence can be relied on, as distinct from ruling on its admissibility which the Prosecutor sought to emphasise was a separate matter, if the evidence in its entirety is allowed to be relied on by the Prosecutor the question of admissibility immediately arises requiring that matter to be dealt with promptly. This places an immediate burden on the Defendants close to the trial dates fixed to commence from 29 July 2024. Depending on the outcome the trial dates may be in jeopardy.
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 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.
Unlike in Benedict Industries No 1 in which the new evidence allowed to be adduced necessitated the vacation of hearing dates, the Defendants wish to maintain the hearing dates fixed to commence from 29 July 2024 given the lengthy history of the proceedings commenced on 11 March 2021, their entry of not guilty pleas on the basis of the evidence relied on by the Prosecutor in July 2023 and accepting for present purposes the subjective evidence in Mr McGirr's affidavit concerning the individual Defendants' personal circumstances. That the length of time the proceedings have been on foot resulted from several months taken up by the Defendants' notice of motion alleging contravention of the statutory limitation period which was not ultimately pressed and various other procedural steps reflects a complex history in the matter to date.
The option of ordering the Defendants' costs thrown away as provided by s 68 of the Land and Environment Court Act 1979 (NSW) is not an adequate response to the likelihood of prejudice to the Defendants in the current circumstances in my view.
Weighing up all these matters, I consider that the additional expert evidence of the three reports of Mr Watts and the additional report of Dr Hammil cannot be relied on in light of the great potential for prejudice to the Defendants if these are relied on. As to Mr Murphy's further affidavit, as identified above in [36] to the extent that affidavit repeats what is in Mr Smith's earlier affidavit that can be relied on. Without having the affidavit before me I am unable to better identify what is permissible. A timetable for the parties to consider that affidavit is needed and this will be discussed with the parties.
The Prosecutor will need to amend the revised s 247E notice in accordance with the findings in this judgment, in particular pars 24, 25, 36 and 44.