Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd

Land and Environment Court (NSW)|2022-05-09|Before: Pain J

Solicitors: Department of Planning and Environment, Legal Branch (Prosecutor) McGirr Lawyers (Defendant) File Number(s): 2019/81751

Judgment

In Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 3) [2022] NSWLEC 54 (Namoi Valley No 3) I made a partial ruling about an order sought by the Prosecutor seeking the admissibility of representations in a notice issued by the Prosecutor under s 67(1) of the Evidence Act 1995 (NSW) (Evidence Act) inter alia. Further rulings in this voir dire on the admissibility of the representations in the notice are the subject of this judgment. I have not yet made final orders. At issue is the content of the Notice to the Defendant under s 67(1) of the Evidence Act (the s 67(1) notice) (Ex A on the voir dire). The notice relates to representations purportedly made by Mr Harris a witness who has died recently which the Prosecutor seeks to rely on as provided by s 67(1).
I found in Namoi Valley No 3 that the application of the Prosecutor to rely on a s 67(1) notice was not prevented from being made during the hearing in the circumstances of the recent death of Mr Harris. I also held that s 65(2)(a) applied to Mr Harris in that his responses arose from a duty to respond to a statutory notice to provide information and to a statutory notice to attend and answer questions at a recorded ROI with Mr Drady authorised officer. The order sought by the Prosecutor was ruled upon in part in that reference to representations arising from maps was not permitted, being parts of (a) and (d) of the order sought. I observed that the invoice in par (b) of the order could probably be admitted. I considered the notice under s 67(1) could potentially be admitted but also considered the Defendant should have further opportunity to respond, hence this further judgment.

Section 67(1) notice

The s 67(1) notice in pars 1-6 identifies purported representations arising from a statutory notice dated 22 July 2019 sent by the Prosecutor to Mr Harris' solicitors Stanton & Stanton and their response on his behalf dated 2 August 2019. The Prosecutor accepts that a correction is necessary in par 2, second sentence, with the deletion of Mr O'Brien replaced by Mr Harris.
Paragraphs 7-22 are purported representations based on a recorded interview on 6 August 2019 conducted by Mr Drady authorised officer pursuant to a statutory notice with Mr Harris. Mr Harris' solicitors were also present. Minor corrections to pars 14 and 20 were identified. The source of the representations is identified in footnotes referring to a question in the ROI.

Statutory notice dated 22 July 2019 pars 1-6

The references to the property in the statutory notice dated 22 July 2019 were confusing and the map attached was not marked annexure A despite the notice referring to it as such. The map is not marked up with areas of interest, and what was designated as cleared was barely legible. Further the intended meaning of properties is unclear.

ROI 6 August 2019 pars 7-22

The purported representations of Mr Harris in the s 67(1) notice are misinterpretations of his answers in the ROI. Many questions were asked by direct reference to maps marked MH-1 and MH-2 by Mr Drady shown to Mr Harris at the ROI, which he had not seen before. The representations are based on a false premise that Mr Harris answered all questions on the understanding that his answers were statements about work he did in the 'areas of interest' and in the charge period. Map MH-1 (SPOT 2012-2013) is unclear on its face, contains no title reference and includes land outside the identified lots and DP numbers but does not show the lot numbers. It has four areas A, B, C and D. Only area A is within the charge period. Further Mr Drady used inconsistent terminology when referring to particular areas on the maps shown to Mr Harris. Map MH-2 (Sentinel 8/5/2017) was similarly unclear and Mr Drady did not explain the key to either map.
There was an elision of the whole property and the 'areas of interest'. Mr Harris never represented that the work he carried out as described was undertaken between April 2013 and April 2014 or that the work he carried out and described was undertaken in areas marked A, B, C and D on the map shown to him by Mr Drady. He said he did not know the exact areas or dates on several occasions. Nor did he know where the precise boundaries of Namoi Valley Farms were located.
The maps cannot be adduced through the s 67(1) notice following Namoi Valley No 3. Many of the questions rely on the maps and the representations based on them are misleading. Further, the answers are meaningless.
Examples of imprecision or incomprehension by Mr Harris can be seen at questions 31, 35, 38, and 39 in the introductory remarks when the two maps were introduced. At no point did Mr Harris agree that he understood what was shown on the maps. At Q 125-131, when Mr Drady sought to ask questions based on one of the maps, Mr Harris could not identify what was being asked of him on the map or where he was located. The whole of the interview was conducted by reference to an unknown time and place.
There are particular issues with the following pars: 11, 12, 13, 14, 15, 16.
Concerning par 11, the representation as framed assumes that Mr Harris accepted that the work he was describing was 'the work he did subject of the 17.12.13 invoice' whereas the contract farm work described was work he had performed on and off for a number of years as at 6.8.2019.
Concerning par 12, the statements by Mr Harris about what he did are not made in relation to the areas of interest, as he never agreed that he could identify his location on the maps shown to him.
Concerning par 13, the representation that Mr Harris did not know what regrowth was is misleading. He admitted that he did not know "the technical terminology of regrowth" at Q104 but had his own ideas.
Concerning par 14, the representations are not specific as to area or time (and therefore the charge period).
Concerning par 15, the representations are not specific as to area or time (and therefore the charge period).
Concerning par 16, the statements were not made in relation to the areas of interest.
Mr Harris had no duty to answer questions that were uncertain in meaning. The material if admitted will impose unfair prejudice on the Defendant under s 137 of the Evidence Act.

Statutory notice dated 22 July 2019 pars 1-6

In relation to pars 1-6 of the s 67(1) notice, when read as a whole the notice and the solicitors' response is clear as to what was intended by the questions asked. Reference was made to the property by lot and DP number in the statutory notice.
There are previous representations concerning the invoice dated 17.12.13 identified in the s 67(1) notice arising from the Stanton & Stanton letter (par 6 of the s 67(1) notice) and the ROI on 6 August 2021, par 21 of the s 67(1) notice. The invoice from Mr Harris is made out to T.J O'Brien Investments an operational company relating to the subject property.

ROI 6 August 2022 pars 7-22

The Defendant complains about 6 paragraphs: 11, 12, 13, 14, 15, 16 in the s 67(1) notice.
Concerning par 11, the representations are implied arising from the statement Mr Harris made in the Stanton & Stanton letter referring to the issue of an invoice, the statutory notice referring to the property by lots and DP. The ROI concerned the same invoice.
Concerning par 12, these are representations, not statements, express or implied which were made. The work referred to by Mr Harris was plainly the work about which representation were made in the Stanton & Stanton letter in which he responded to a statutory notice which identified the lots and DP of the property. It is plain that while Mr Harris could not remember the details of the circumstances, Mr Harris did represent the way he came to do the work for Mr O'Brien.
Concerning par 13, the representations in the s 67(1) notice accurately reflect the questions and answers in relation to question and answer 107 in the ROI.
Concerning par 14, the representations were clearly concerned with the work Mr Harris described doing for Mr O'Brien in the Stanton & Stanton letter and the ROI. The representations must be read as a whole, with both the Stanton & Stanton letter and the interview. The Stanton & Stanton letter provided the invoice sent for the work done for Mr O'Brien for the period April to December 2013, the bulk of the offence period. The Prosecutor accepts that modification of the first sentence is needed.
Concerning pars 15 and 16, the same context as par 14 applies.
By way of general submission, the representations in the s 67(1) notice based on the corrected transcript of the ROI at pars 7-22 must be considered in light of the statutory notice sent to Mr Harris and his representations in par 1-6, and the statutory notice sent to Mr O'Brien director of the Defendant and his response. The statutory notice dated 22 July 2019 sent to Mr Harris identifies the subject property by Lot and DP numbers and these are particularised in the summons. The representations made by Mr Harris in his response were referable to the property. Mr Harris confirmed his answers were true and correct in his ROI. The identity of the property is also confirmed in Mr O'Brien's responses to the statutory notice he received. That is the location relied on for the purposes of the s 67(1) notice.

Consideration

At issue is whether admission of the s 67(1) notice in whole or part will give rise to unfair prejudice to the Defendant which outweighs its probative value as stated in s 137 of the Evidence Act. That section states that a judge must not admit evidence if the danger of unfair prejudice outweighs its probative value. That evidence is probative and more likely to lead to conviction is not unfairly prejudicial. According to Stephen Odgers, Uniform Evidence Law (16th ed, 2021, Thomson Reuters) at [EA.135.150] and [EA.136.300], where a judge alone trial is held admission of evidence may be considered less likely to be prejudicial than if a jury trial is being held. That cross-examination is not available alone does not render the evidence unfairly prejudicial, given the exceptions to the hearsay rule under the Evidence Act. Factors to consider include the nature and importance of the evidence and the issue it relates to, and the probative value of the evidence upon which there cannot be cross-examination, in light of the ability of the judge to take into account the absence of cross-examination.
The representations sought to be relied on are by Mr Harris who the Prosecutor alleges undertook the unlawful clearing the subject of the charge on behalf of the Defendant at the request of its director Mr O'Brien on the Defendant's property. The representations are likely to have some probative value for the Prosecutor if admitted. Additional evidence relevant to these issues that will be called by the Prosecutor includes that of Mr Drady the authorised officer who conducted the ROI the subject of part of the s 67(1) notice par 7-22.

Statutory notice dated 22 July 2019 pars 1-6

Paragraphs 1-6 of the s 67(1) notice concern the statutory notice to provide information dated 22 July 2019 sent by Mr Drady to Mr Harris and the response by Stanton & Stanton solicitors on behalf of Mr Harris. The representations fairly reflect what the two documents contain in my view. The Defendant's criticisms based on the map attached to the s67(1) notice do not undermine the representations made. No unfair prejudice arises for the Defendant in relation to paragraphs 1-6 of the s 67(1) notice. The invoice dated 17.12.13 referred to in par 6 of the s 67(1) notice can also be relied on for the reasons given by the Prosecutor and is the subject of (b) in the orders sought. I note that the second sentence of par 2 should refer to Mr Harris not Mr O'Brien.
The second sentence of the s 67(1) notice in par 3 states that Mr Harris could not recall specifically where on the property he did his work. I note that this is the only reference to location made expressly in the s 67(1) notice.

ROI 6 August 2022 pars 7-22

The parties' arguments on the part of the s67(1) notice dealing with the ROI at pars 7-22 do not really engage with each other. Paragraphs 7-22 of the s 67(1) notice set out representations (not statements) said to arise from the ROI and reference to the corrected transcript (Ex C) is made in footnotes to the s 67(1) notice as supporting these. The Prosecutor argues that the location by which all these references should be considered is on the Defendant's property, as identified by the lots identified by the statutory notice sent to Mr Harris and also Mr O'Brien's response on behalf of the Defendant. The s 67(1) notice in pars 7-22 does not deal expressly with location of the alleged clearing work. Paragraphs 7-22 do not refer to 'areas of interest' labelled A, B, C, D on the Defendant's property.
The Defendant submits that the two maps MH-1 and MH-2 presented by Mr Drady in the course of the ROI were unclear and Mr Harris did not accept the propositions put to him based on the maps. I generally agree with that submission save perhaps for questions 78, 79 and Mr Harris' responses to these (relevant to par 12).
In Namoi Valley No 3 I observed at [37] that I had reviewed the ROI transcript Ex C particularly pp 6, 7, 14, and 20-21 and agreed with the Defendant's submission that Mr Harris was not able to state that based on the map shown to him during the ROI (SPOT 2012-2013 here MH1) that he went to the areas of interest identified on that map. That was part of my reasoning for not permitting the maps to be included in the order sought by the Prosecutor.
The Defendant has referred to numerous additional questions in the ROI made in the context of the maps produced to Mr Harris labelled MH1 and MH2 to demonstrate that Mr Harris was not able to identify in any of his answers that he worked in the areas of interest to the Prosecutor, or in the charge period. I agree with the Defendant's submissions as set out above in [9]-[10], and [12], referring to introductory questions in the ROI and later to questions 125-131, that the questioning of Mr Harris was unclear as to what areas of interest were being referred to in the identified parts of the ROI. In these parts of the transcript Mr Harris could not confirm where Namoi Valley Farms was located on either map and could not confirm the location of the areas marked purple and by the letters A, B, C, D on the MH-1 map. Mr Harris was not aware of the property names where the purple areas were located. When asked how he became involved in doing some of the work in "this area", meaning the purple area, he said that Tim O'Brien asked him to do work. When asked later (Q125-131) Mr Harris was not able to say where he did work in the areas marked A B C and D or when.
The Prosecutor submitted that the ROI should be viewed in light of the statutory notice dated 22 July 2019 and the response by Mr Harris through his solicitors the subject of pars 1-6 of the s 67(1) notice as well as the Defendant's response through its solicitors (Ex F) to the statutory notice (Ex E). Doing so was said to confirm that the areas where work was done were clear in pars 7-22, namely on the lots which were identified as the Defendant's property in the statutory notices. No reliance was placed by the Prosecutor on the identification of 'areas of interest' and areas labelled A, B, C and D.
Not all of the representations contained in pars 7-22 rely on responses by Mr Harris concerning maps and each paragraph should be considered in turn. Paragraphs 7, 8, 9, and 10 may be admitted as these fairly reflect what the transcript referred to and do not concern any reference to maps.
Specific submissions have been made in relation to pars 11-16 and I will deal with each in turn.
Paragraph 11 does contain representations which reflect the footnotes identified as the source of these in the ROI, contrary to the Defendant's submissions and can be admitted. The same finding applies to par 13.
Paragraphs 12, 14, 15 and 16 are all criticised by the Defendant on a similar basis namely that the representations are not grounded in any agreement by Mr Harris of where he did work in relation to the areas of interest labelled A, B, C and D identified by Mr Drady. The representations do not make any reference to location, indeed as already noted the s 67(1) notice in pars 7-22 does not deal with location expressly. This criticism is accepted but that is not the case the Prosecutor seeks to make by the representations in the s 67(1) notice. The Prosecutor seeks to establish that Mr Harris did work on the Defendant's property generally as defined by numerous lots, not in relation to 'areas of interest'.
Concerning paragraph 12, the transcript references for par 12 otherwise support the representations made.
Similar observations can be made about pars 14-16, and pars 17-22 which were not the subject of express submissions.
A consideration in my ruling is whether the representations in the s 67(1) notice do fairly reflect what the Prosecutor has relied on in drafting pars 12, 14-22. I consider the representations do reflect the transcript the Prosecutor has relied on and can be admitted in light of their potential probative value. I do not consider the representations cause unfair prejudice to the Defendant if admitted within s 137 of the Evidence Act. If pars 7-22 of the s 67(1) notice are admitted the Defendant can certainly make submissions as to the weight that can be attributed to the representations mindful of the limitations identified in argument on this application. These concern the absence of identification of the location of work undertaken by Mr Harris on the Defendant's property, and in particular whether he did work in an 'area of interest' labelled A, B, C and D. Further the lack of precision in the evidence about when Mr Harris undertook work can be the subject of a submission as to the weight that can be attributed to these representations.
Referring again to s 137 I do not consider the admission of the s 67(1) notice gives rise to unfair prejudice to the Defendant.
I consider the representations in the s 67(1) notice can be admitted, together with the invoice dated 17.12.13. I will discuss the final order with the parties.

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: 20 May 2022

Evidence Act 1995(NSW)ss 65, 67, 137

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