Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293 Secretary, Department of Planning, Industry and Environment (Prosecutor) Merrywinebone Pty Ltd ACN 000 937 824 (Defendant)

In proceedings 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294 Secretary, Department of Planning, Industry and Environment (Prosecutor) Ronald Lewis Greentree (Defendant)

In proceedings 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Secretary, Department of Planning, Industry and Environment (Prosecutor) Kenneth Bruce Harris (Defendant) Representation: Counsel:

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd ACN 101 059 769 S Callan with C Hamilton-Jewell (Prosecutor) S Littlemore QC with P M Lane (Defendant)

Secretary, Department of Planning, Industry and Environment v Merrywinebone Pty Ltd ACN 000 937 824 S Callan with C Hamilton-Jewell (Prosecutor) T Hale SC with D W Robertson (Defendant)

Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree S Callan with C Hamilton-Jewell (Prosecutor) S Littlemore QC with P M Lane (Defendant)

Secretary, Department of Planning, Industry and Environment v Kenneth Bruce Harris S Callan with C Hamilton-Jewell (Prosecutor) T Hale SC with D W Robertson (Defendant)

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd ACN 101 059 769 Department of Planning, Industry and Environment (Prosecutor) Austin Giugni Martin Pty Ltd (Defendant)

Secretary, Department of Planning, Industry and Environment v Merrywinebone Pty Ltd ACN 000 937 824 Department of Planning, Industry and Environment (Prosecutor) Thomson Geer (Defendant)

Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree Department of Planning, Industry and Environment (Prosecutor) Austin Giugni Martin Pty Ltd (Defendant)

Secretary, Department of Planning, Industry and Environment v Kenneth Bruce Harris Department of Planning, Industry and Environment (Prosecutor) Thomson Geer (Defendant) File Number(s): 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294; 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Publication restriction: Nil

Judgment

1. Before the Court is a preliminary hearing conducted under s 247G of the Criminal Procedure Act 1986 (NSW) ('Criminal Procedure Act') challenging the admissibility of evidence proposed to be adduced in proceedings. The Secretary, Department of Planning, Industry and Environment ('prosecutor') has charged two individuals and two companies with eight offences each (32 charges in total) in relation to eight clearing events allegedly committed between December 2016 and January 2019 on a property known as "Boolcarrol" north-west of Narrabri in NSW. Due to the timing of the alleged clearing events, charges have been issued pursuant to the Native Vegetation Act 2003 (NSW) ('NV Act') and the Local Land Services Act 2013 (NSW) ('LLS Act').

Background

1. On 26 August 2019, the prosecutor commenced proceedings against Auen Grain Pty Ltd (ACN 000 937 824) ('Auen Grain'); Ronald Lewis Greentree ('Mr Greentree'); Merrywinebone Pty Ltd (ACN 101 059 769) ('Merrywinebone'); and Kenneth Bruce Harris ('Mr Harris') (collectively, 'the defendants') by way of 32 summonses, being: 1. In respect of Auen Grain, proceedings 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292 ('Auen Grain Proceedings'). 2. In respect of Mr Greentree, proceedings 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294 ('Greentree Proceedings'). 3. In respect of Merrywinebone, proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293 ('Merrywinebone Proceedings'). 4. In respect of Mr Harris, proceedings 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 ('Harris Proceedings').
2. On 3 December 2019, Pain J made orders pursuant to s 29(2) of the Criminal Procedure Act that the Auen Grain Proceedings, the Greentree Proceedings, the Merrywinebone Proceedings; and the Harris Proceedings be heard and determined together: Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris [2019] NSWLEC 187. On 20 December 2019, the proceedings were set down for hearing for 10 days commencing on 24 August 2020.
3. On 24 August 2020, prior to the commencement of trial, an application was made by Mr S Littlemore QC, who appears with Ms P Lane of counsel for Auen Grain and Mr Greentree ('Greentree Parties'), pursuant to s 247G(3)(e) of the Criminal Procedure Act, that the Court by way of a preliminary hearing give a ruling or make a finding under s 192A of the Evidence Act 1995 (NSW) ('Evidence Act') that the purported expert evidence of two witnesses proposed to be relied upon by the prosecutor be excluded on the grounds of inadmissibility and/or as warranting discretionary rejection. The application was supported by Mr T Hale SC, who appears with Mr D W Robertson of counsel, for Merrywinebone and Mr Harris ('Harris Parties'), and not opposed by the prosecutor, for whom Ms S Callan of counsel appears with Ms C Hamilton-Jewell also of counsel.

Proposed evidence

1. The evidence sought to be relied upon by the prosecutor to which objection is taken by the defendants essentially comprises two affidavits of Paul Spiers affirmed 20 and 23 August 2019 respectively and the exhibits thereto; and the affidavit of Terrence Michael Mazzer affirmed 21 August 2019 and the exhibits thereto. More particularly, the defendants object to the following reports exhibited to the affidavits: 1. The aerial photograph interpretation report of Mr Paul Spiers in respect of the "northern parts" of Boolcarrol; 2. The aerial photograph interpretation report of Mr Paul Spiers in respect of the "southern parts" of Boolcarrol; 3. The native vegetation assessment report dated 20 August 2019 of Mr Terrence Mazzer in respect of the "northern parts" of Boolcarrol; and 4. The native vegetation assessment report dated 20 August 2019 of Mr Terrence Mazzer in respect of the "southern parts" of Boolcarrol.
2. Mr Spiers' two reports, which, based upon his analysis of aerial photographs and satellite images, set out his opinion as to changes in vegetation on Boolcarrol property indicating clearing of vegetation. Mr Mazzer, an ecologist and zoologist, sets out his opinion as to the species of vegetation on the property and expresses an opinion that the vegetation cleared was native vegetation which was not regrowth.
3. Although each of the Greentree Parties and the Harris Parties separately cross-examined Mr Spiers and Mr Mazzer, and provided separate written and oral submissions, noting that Mr Hale specifically adopts (and expands upon) the submissions made by Mr Littlemore, I will consider the submissions in a combined manner unless specific attribution is required.
4. As noted above, the preliminary hearing which included detailed oral evidence proceeded over four days. The Court provisionally received the following evidence: 1. Folder of documents containing the affidavits of Paul Spiers with all annexures and exhibits including two primary reports (Ex VD-A); 2. Folder of documents containing the affidavit of Terrence Michael Mazzer with all annexures and exhibits including two primary reports (Ex VD-B); 3. Document styled "Report on alleged clearing" by Mr Mazzer dated 29 January 2018 (Ex VD-C); 4. Draft report of Mr Mazzer dated 22 May 2019 (Ex VD-D); and 5. Collection of two email chains (Exs VD-E, VD-F).
5. It is relevant to note that it is common ground that, first, although the defendants' submissions were directed primarily to the reports of Mr Spiers and Mr Mazzer which considered the "northern parts" of Boolcarrol (noted at and above), the same submissions are directed mutatis mutandis to the respective reports concerning the "southern parts"; second, the defendants have separately provided discrete objections to various parts of the reports which are not the subject of this preliminary hearing (where the defendants seek to exclude the whole of the reports) and the defendants may seek to separately argue their more granular objections at a later time.

Mr Spiers

1. Mr Spiers, who was employed as a "Remote Sensing Scientist" with the NSW Department of Planning, Industry and Environment, was requested to provide an expert opinion in relation to specific matters including, first, his ability to identify changes in vegetation on certain land; second, to identify the locations and dates of any changes; third, whether the vegetation identified was present before 1 January 1990; and further, to include in his reports a sequence of images (aerial or satellite) which showed any changes in vegetation over time.
2. In preparing his reports entitled "aerial photograph interpretation of vegetation changes", Mr Spiers states that he undertook the following.
3. Through importing geographic and cadastral information into a mapping program known as "ArcGIS", he began by drawing property boundaries and other relevant features over the relevant geographic area. Using this geographic information and from a perusal of what he refers to as ADS flight lines, he then identified 30 aerial photographs and satellite images taken over that geographic area which he then used for his analysis. He notes that a number of the aerial photographs taken from aircraft had previously been orthorectified (a process which involves correcting any skew or warp that may be present in images taken from a non-perpendicular viewpoint). Further processing had also been done to these images which enabled them to be viewed "as a three-dimensional stereoscopic image" using a stereoscopic monitor.
4. In viewing this imagery, he notes how digital resolution may affect the clarity of the imagery and that, in order to achieve an "optimum viewing scale", he would "zoom" the images such that each pixel contained within the image would correspond to one pixel of the display used to view the image. He then used a "swipe function" to compare these images - a process which he states involves the "swiping" of layers of images over each other.
5. In describing "techniques of change analysis", he explains that his use of the word "interpret" involves the observation of characteristics of ground surface cover in images. He states that he is able to identify features through combinations of the following characteristics: "a. Colour or tone. The reflection of light from the object(s) to be identified, in various shades of grey in the black and white photographs and images and different colours in the coloured photographs and images. b. Texture. This refers to grouped objects that are too small or too close together to create distinct patterns such as tree crowns in a forest canopy and individual plants in a field. c. Pattern and shape. This refers to the spatial arrangement of discrete objects and the distinctive pattern they form. The patterns can be natural showing irregular patterns such as drainage channels as appearing in natural systems or regular patterns associated with anthropomorphic intervention such as cultivation."

Mr Mazzer

1. Mr Mazzer, an ecologist and zoologist who is employed by the NSW Department of Planning, Industry and Environment as a Senior Project Officer (Threatened Species) in the Biodiversity and Conservation Branch, was requested to provide his expert opinion to address, first, species and communities of vegetation in "areas of interest" and whether any of the species are native vegetation within the meaning of the NV Act and the LLS Act.
2. In preparing his "expert report concerning alleged clearing of native vegetation", Mr Mazzer attended and inspected Boolcarrol on 6, 7 and 8 September 2017 and 8, 9 and 10 April 2019.
3. Mr Mazzer states that, on this first attendance, he collected data at four 20 x 20 metre quadrats, six 50 metre transects, and took notes at nine selected sites. On his second visit, he records that he conducted six 20 x 20 metre quadrats, took notes at two more selected sites, and revisited eleven of the sites he attended on his previous visit.
4. Attached to his reports was a map indicating the relative locations at which he collected this data. He notes that some of these sites, although not within the "areas of interest" he identified from information provided to him by Mr Spiers, were nonetheless nearby and used by him as "surrogates" for the vegetation that may have been previously present in those areas of interest. He also opines that the boundaries of Mr Spiers' polygons accorded with his ground inspections. For clarity, I note that polygons are drawn around the suspected cleared areas by Mr Spiers, whereas quadrats are small squares/rectangles used by Mr Mazzer to survey the vegetation in a particular area.
5. Across the areas he inspected, he identified 58 species of vegetation of which 49 were native species. He opines that, although six of these native species were identified away from the areas of interest, those native species were "likely to have been present in the areas of interest, based on their preferred soil type and landscape position."
6. Mr Mazzer thereafter identifies the main categories of vegetation present on Boolcarrol (as well as for each discrete polygon) through inspecting regional vegetation mapping, aerial imagery and from his field observations. He also compares this vegetation with the "published descriptions of NSW Plan Community Types" ('PCTs') to determine the PCTs which were closest in description to that which he observed was on the property based upon the vegetation types and their characteristic species. He further opines that regional-scale vegetation mapping, which he acknowledges "cannot be expected to be accurate due to its broad-scale nature", "broadly accords with my ground-based observations."

Defendants' position in relation to Mr Spiers' evidence

1. As noted above, each of the Greentree Parties and the Harris Parties separately provided detailed submissions and conducted extensive cross-examination of Mr Spiers and Mr Mazzer.
2. The defendants' submissions, which raised concerns regarding Mr Spiers' lack of impartiality, lack of expertise, failure to disclose material relied upon, and an absence of methodology and reasoning, may be summarised as follows: 1. Mr Spiers' evidence does not establish that he has specialised knowledge that allows him to "interpret" photographs with any scientific knowledge or skill that is not possessed by a non-expert. As such, the first principle of Dasreef (in relation to specialised knowledge) has not been satisfied. Further, the opinions expressed are not "wholly or substantially based upon that knowledge"; and, in addition, the evidence does not comply with the requirements of the Code as to both form and content. 2. The material contained in the reports does not establish Mr Spiers' "interpretation" of images of trees and other vegetation or marks of cultivation was based upon training, study or experience. 3. Mr Spiers' evidence does not conform to basic scientific standards - there is no margin of error; no detailed explanation of methodology; no citation of scientific literature to support his approach; and no consideration of alternatives. As such, because he does not meet, at the very least, the second of the two criteria identified in Dasreef, this must result in the rejection of his reports pursuant to s 79 of the Evidence Act because they are not "presented in a form which reveals the facts and reasoning on which the opinion rests". 4. Although Mr Spiers claimed that he was a "scientist", he does not conduct himself as such - he does not have discrete training or study in the area of his claimed expertise; he has no professional memberships; he was not bound by any ethical code; and he has undertaken no research in the field and has not produced any publications of his own. He was simply looking at photographs (sometimes using a device) but using his eyes in a manner available to any sighted person. 5. Accepting that remote sensing may be a "type" of science, there is nothing in Mr Spiers evidence that establishes it as such. 6. Therefore, his expressions of opinion are "unsubstantiated opinion" and are not, and cannot be seen to be, the result of the application of specialised knowledge. 7. Mr Spiers has done no more than establish that he looks at images and recognises what they depict and as such, his material is no more than ipsi dixit. Mr Littlemore, in particular, points to oral evidence given by Mr Spiers to support this submission. 8. Relying upon his evidence given in cross-examination, Mr Spiers mistook his duty to act impartially because he understood his duty was to assist his employer to obtain convictions and he promotes his successes in that undertaking. This is a matter not simply of bias but a misconception of his duty such that he cannot be considered an expert at all because he is partisan in circumstances where he should have no interest in the outcome of the matters. Examples are given that he had "an interest in the outcome"; that he "had a primary duty to his employment"; that he "presumed guilt in expressing his opinion"; and from his material, he "engages in triumphalism" such that he does not understand or adhere to what is his overriding duty to the Court. 9. Examination of an earlier draft report and his final reports indicates Mr Spiers chose to answer questions that he was not asked and, more particularly, he did not identify material or facts upon which his conclusions were based or expose his reasoning. 10. What Mr Spiers undertakes is to look at images and "interpret" that which he sees and conclude that undetailed, out of focus blocks of colour are "individual trees and shrubs", "uncleared grass cover" and "cultivation". In circumstances where his eyesight is no different to that of other people, the Court would not accept that the "interpretation" he undertakes is a "skill that's been developed over the years of my employment" as stated by Mr Spiers in evidence. 11. Mr Spiers' credibility suffered in cross-examination because, first, he made unexplained references to Stephen Naven of the NSW Environment Protection Authority ('EPA'), a person involved in the investigation whose name appeared on aerial imagery provided to Mr Spiers; and second, he displayed an uncooperative demeanour which would not have inspired the Court with confidence in him as an expert. For example, he could not recall making enquiries of the EPA about imagery; he was unaware about any dealings with EPA officers in relation to the matters; and he could not explain the changes in various later reports including the change of Mr Naven's name to his in a report later prepared by Mr Mazzer.

Defendants' position in relation to Mr Mazzer's evidence

1. The defendants' submissions in relation to Mr Mazzer's evidence raised Mr Mazzer's lack of independence and specialised knowledge, his failure to disclose material relied upon, and lack of reasoning and methodology. They may be summarised as follows: 1. Mr Mazzer is not an expert and his reports are not the product of an expert witness. While not critical of Mr Mazzer as an ecologist and zoologist, in relation to evidence he seeks to give in these proceedings, he is not a member of any professional body; he has not undertaken study or training to obtain qualifications since 1987; he is not bound by any code of ethics in the discharge of his employment duties; and he is not involved in any academic research in the field of land clearing or remote sensing. He admits that he is inexperienced in writing expert reports and they are "cut and pasted" and presented in a formulaic manner. 2. Even if the Court accepted that there is a field of expertise described as "image analysis", or "remote sensing", Mr Mazzer has no qualifications in that area. He simply states he "received images in a digital format" and that the photographs were "digitally rectified" (by persons unknown) and that his opinion was sought in relation to botany - whether vegetation had been cleared and whether vegetation was "native" or "regrowth" within the meaning of two statues being the NV Act and the LLS Act. His reports do not indicate that he has any specialised knowledge of establishing the "extent of land clearing". 3. His reports indicate that - he was given material prepared by "others"; he did not undertake any orthorectification or other processing of the imagery; and he simply assumed the truthfulness and accuracy of the material in circumstances where there is no basis upon which the Court could be satisfied that Mr Mazzer has any specialised knowledge in "interpretation" or "analysis". He does not assert any necessary expertise to interpret processed images to identify changes over time; to determine whether images were correctly processed; to use a methodology which demonstrates proper rigour in conformity with accepted standards; and to correctly produce images which demonstrate his analysis. 4. Mr Mazzer has not complied with the Evidence Act to provide his reasons so that the Court can determine that his evidence is truly the result of application of specialised knowledge. 5. Mr Mazzer has not complied with the requirements of the Code in relation to avoidance of advocacy and impartiality. The comparison between his draft reports and his final reports indicate that he added the words "in my opinion, based upon my review of aerial imagery, and my field inspections" and in cross-examination he could not point to any part of his reports where that opinion is supported by fact. 6. In cross-examination, Mr Mazzer accepted that he relied upon certain "observations" which are not set out in the reports. Further, he refers to various vegetation species "likely to be present" in circumstances where the classification of those species depends upon soil type and landscape position, neither of which are detailed in his reports. He also acknowledged that he "could have put more detail in the report" and that his reliance upon his "experience" in a number of circumstances does not provide reasoning for his opinions. 7. Further, although he states that some of his opinions were "based upon my inspection of the aerial imagery and backed up by my ground-based investigation, I am of the opinion that native vegetation is being removed", he did not explain precisely what his inspection of aerial imagery actually revealed. 8. Mr Mazzer would not be regarded as a frank witness and the Court would find that there were numerous aspects of his opinion in relation to such matters as "vegetation fragments being too small to support certain former species"; the maturity of trees; his reliance upon "previous experience of vegetation assessments in the region"; and his references to "observations during site visits", which are not backed up with detailed analysis or reasoning to substantiate those opinions. 9. Although malice is not alleged on the part of Mr Mazzer, the conclusion is inevitable that he identified himself as part of the prosecution effort and has engaged in improper advocacy, particularly in relation to matters where - he advocates that the existing conservation policy is "inadequate"; that he speaks of "community concern"; and expresses opinions adverse to the defendants in relation to his opinion on matters which were not sought. Further, he sought to opine in relation to questions of law relating to definitions of "native vegetation" and "regrowth" and his evidence in this regard is not addressing a question of fact in any event but a question of law. 10. In relation to the Code, contrary to the requirements of the Code, Mr Mazzer's reports do not state the factual basis for conclusions in many paragraphs and he has not appropriately set out the assumptions of fact on which his opinion is based and that, contrary to the requirements in R v Bruce Ivar Dowding; R v Bruce Ivar Dowding; R v Bruno Gordano Grollo; R v Rino John Grollo [2000] VSC 222, to the extent that he has not examined alternative inferences or provided ultimate conclusions based on facts he has adopted; and he has not stated why he preferred his own conclusions to alternatives that may be offered. Examples include - that the presence of the type of soil favoured by certain species presence was simply accepted; that certain maps he was given, for example the OEH Regional Vegetation Map 2015, were accurate; that the OEH Wildlife Atlas was accurate; and he has assumed environmental harm such as loss of wildlife and habitat with no basis. 11. Mr Mazzer failed to identify literature and other material to support his opinion and failed to identify and state qualifications of other experts upon whose material he relied. 12. Mr Mazzer failed to state reasons and expose his reasoning for each opinion contrary to the Code, specifically in relation to his failure to disclose his field notes to which he refers and/or the precise imagery he relied upon and the maps which he took into account. Further, he does not name the plants, woody debris, or groundcover germinantes to which he refers in his reports. Finally, there are numerous paragraphs in his report (northern parts) where he fails to articulate his reasons or conclusions drawn in particular, pars (32), (34), (37), (38), (48), (59), (64) and (78) contain opinions without reasons. 13. Similar to the criticism made of Mr Spiers, the defendants also levelled criticism at Mr Mazzer's reliance on work undertaken and/or information provided by Mr Naven in forming his opinion. 14. In addition, Mr Mazzer failed to identify the parts of the "PCT regional maps" upon which he relied; he failed to conduct sufficient "ground truthing" on the property; and he did not follow a "standardised investigative method" such as that suggested in the Biodiversity Assessment Order 2017 in conducting his inspections of Boolcarrol and, similarly, did not apply an appropriate scientific method when calculating the number of hollow bearing trees per hectare. 15. Further, as he acknowledged that he did not visit polygons 28, 29, 30, 31, 38, 39 or 47 and instead relied upon a regional vegetation map, he therefore did not apply any expertise in forming his opinion as to these polygons. He also did not conduct any soil testing which he acknowledged was required to be determined in deducing the presence of a particular PCT. 16. Mr Mazzer also did not provide any detail (location, species, characteristics etc) in relation to the vegetation which he observed as "knocked over", he did not identify in which polygons (and the precise location within those polygons) each discrete species was observed, and he did not indicate the number of those species he observed in those areas.

Prosecutor's position in relation to Mr Spiers' evidence

1. The prosecutor's position may be summarised as follows: 1. In summary, Mr Spiers' evidence is based upon his expertise and experience; his assumptions of information relied upon are clearly identified; and he has provided reasons for his views and conclusions that are appropriately and sufficiently explained. 2. While Mr Spiers has been employed by the NSW Department of Planning, Industry and Environment since 2007, he recognised that his overriding duty was to the Court and rejected any suggestion that he did not conduct himself in accordance with the Code. 3. In relation to challenges to him in relation to impartiality, the duties and rules contained in the Code are not rules of evidence and do not render inadmissible the evidence of an expert who may have an interest in proceedings. Although the Code does remain relevant in considering the exclusionary rules under ss 135 and 137 of the Evidence Act, Mr Spiers disclosed his relationship with the party calling him and, irrespective of this, whether an expert has presented truthful and unbiased evidence is a matter to be tested in cross-examination. 4. The defendants' focus upon words in Mr Spiers' curriculum vitae in an attempt to indicate partisanship would not be accepted by the Court because a fair reading of his curriculum vitae does not indicate that Mr Spiers is not impartial. 5. The defendants' attempts to discredit Mr Spiers because he may have pride in his work does not demonstrate that he is partisan, and suggestions that he may have made changes in his reports at the request of the prosecutor's solicitors is not surprising in that legal representatives take steps to ensure an expert report complies with s 79 of the Evidence Act. 6. Mr Spiers' expert opinion as to changes in vegetation is squarely based upon his analysis of aerial photographs and satellite imagery and is therefore founded wholly or substantially on the specialised knowledge he has based upon his qualifications, experience and training as described in detail in his curriculum vitae. This includes 30 years of experience in aerial photography interpretation which is undertaken using specialised equipment. While there may not be a formal course of study in this field, Mr Spiers nonetheless - uses specialised equipment; has undertaken training courses in the use of that equipment; and has been using various computer software programs and the like to identify areas of change in woody vegetation for over 15 years. This would satisfy the Court that he has specialised knowledge in relation to the interpretation of aerial photographs and satellite imagery in relation to vegetation cover, as well as the use of techniques available in the ArcGIS program to outline areas of observed clearing - that is, creating polygons and measuring those areas. In these circumstances, the Court would accept that he has expertise. 7. The submissions of the defendants that there is "no science in seeing" again do not account for the specialised equipment utilised; the "techniques of change analysis" deployed; and the experience and skill that Mr Spiers brings to the task he has undertaken. The Court would be satisfied that the exercise undertaken by Mr Spiers is dependent upon skill and experience, incorporating rigour and precision, and comprises expertise in accordance with s 79 of the Evidence Act. 8. Although he was robustly cross-examined, perusal of the material and correspondence otherwise in evidence (in the preliminary hearing) would satisfy the Court that Mr Spiers did not seek to address questions which he recognised were outside his expertise. 9. As to the defendants' criticisms regarding the disclosure of assumptions and material relied upon by Mr Spiers, this may be found by reference to the assumptions contained in the letters of instructions as well as other documents provided to Mr Spiers which are before the Court, including various letters of instructions seeking opinions in relation to discrete areas and the provision of various photographs and imagery. Further, in each of his reports, Mr Spiers identifies the assumptions he makes including limitations in those instructions. In particular, he explains the process through which he identified relevant images of the subject area utilised in providing his opinion and provided details of each photograph and satellite image he used. 10. Although there was some suggestion that Mr Spiers did not acknowledge that some material he was provided may have been prepared by Mr Naven (who appears to have been involved in relation to the investigation that led to the prosecutions), Mr Naven's involvement provides no basis for the inadmissibility of Mr Spiers' (or Mr Mazzer's) reports. Mr Spiers gave oral evidence that he had no recollection of preliminary aerial photograph analysis undertaken by Mr Naven. 11. To the extent that there is criticism of Mr Spiers' articulation of his method of aerial photograph analysis, it is clear that Mr Spiers identifies the assumptions and limitations of his work and details, under the headings "Techniques of Change Analysis" and "Interpretation of Imagery", the process he used for viewing such imagery which included using the "swipe function" to compare images. 12. In relation to the defendants' strongest criticism of Mr Spiers' material - that he does not disclose his reasons or reasoning adequately or at all - the prosecutor submits that the reasoning process leading to the formation of his opinion is exposed in a manner as to demonstrate that his opinion is wholly or substantially based upon specialised knowledge. In particular, Mr Spiers has disclosed his reasons (in each of his reports) in that he, first, sets out his methodology in careful detail; second, he describes in the tables containing his "imagery observations" what he observes gives rise to his conclusions; third, he explains the process by which he created and drew polygons to outline discrete areas of vegetation changes he identified and how he calculated the area of those polygons; and fourth, he includes copies of the images he used with the polygons overlaid to expose his reasoning process.

Prosecutor's position in relation to Mr Mazzer's evidence

1. As the prosecutor does not rely on evidence given by Mr Mazzer in relation to environmental harm at this stage of the proceedings (but reserves the right to rely upon that material if the defendants are convicted), in relation to the report regarding the "northern parts", the prosecutor does not read pars (7), (9), (53)-(64), (69), (71)-(76) (and I interpolate corresponding paragraphs in the report regarding the "southern parts"). The prosecutor's submissions may be summarised as follows: 1. Mr Mazzer's qualifications, experience and training are described in detail in his curriculum vitae which he expanded upon at length in oral evidence in relation to his further studies and experience in botany and ecology (Tcpt, 24 August 2020, p 63(1-13) and p 64(22)-65(17)). To the extent that the defendants submit that he was responding to questions of a legal nature (whether vegetation was "native" or "regrowth" within the meaning of the NV Act and the LLS Act), Mr Mazzer details the relevant definitions and his answers should be read as providing a response to those definitions and not attempting to answer or address legal issues. 2. While the defendants suggest that Mr Mazzer has not disclosed assumptions or material relied upon, this criticism is not made out and, further, is not a basis for excluding his expert evidence. To the extent that there was a further criticism that he had not included his field notes or relevant extracts of the OEH Regional Vegetation Map 2015, again this is not a basis for excluding his expert evidence because he clearly refers in his reports to the fact that he took notes during his site visits and he otherwise refers sufficiently to the sources of information he has relied upon. There is no obligation to include all such material in the reports. 3. In relation to the methodology he adopted, it is clear that Mr Mazzer relied upon material he obtained and observations he made during his two inspections of Boolcarrol. Further, he took photographs, recorded GPS waypoints, collected data at quadrats, and took notes at selected sites as well as in areas with vegetation to assist in his consideration. 4. The Court would not accept the defendants' criticism that he did not use an established methodology for conducting survey plots such as that provided for in Pt 5.3.4 of the Biodiversity Assessment Methodology Order 2017 ('BAM'). The method in the BAM is applicable to the NSW Biodiversity Offset Scheme and it had no particular application to the exercise being undertaken by Mr Mazzer as it has been developed for a different and very specific purpose. While it is a method of conducting survey plots, it is by no means mandatory. Further, the Court would accept Mr Mazzer's considerable experience in conducting such surveys and further, criticism of the limited utility of the method chosen by Mr Mazzer does not give rise to the suggestion that his evidence is inadmissible. 5. The Court would not accept the defendants' submission that Mr Mazzer's reasoning was not adequately disclosed in his reports in circumstances where he undertakes the following - identifies the source of information used in preparing his reports; identifies the species he located in each area; explains the basis upon which he concludes that 49 of those species are "native"; explains the basis upon which he expresses a view as to the community of vegetation present in each polygon; explains the reasoning for his conclusion that all areas of vegetation cleared contain native vegetation; explains the basis of his opinion that none of the cleared vegetation was regrowth; and attaches numerous photographs which depict observations he made at the property. 6. The allegation made by the defendants that Mr Mazzer changed his reports from earlier drafts is not a basis for suggesting his primary reports are inadmissible. Mr Mazzer acknowledged in cross-examination that he could have provided more detail in his reports, but this does not render his reports deficient in a sense of being inadmissible. More particularly, in relation to reasoning, the reports must be read as a whole and it is sufficient for Mr Mazzer to refer in generalised terms to his field inspections given that, in various places in his reports, he describes what was involved in his attendances and inspections. 7. In relation to the criticism that he does not indicate where a particular species is found within a particular polygon, this is not a basis to rule the reports inadmissible because the precise number of species located during field visits (and the precise location within the polygon where such species were found) was not material to Mr Mazzer's task. Moreover, in relation to criticism that he did not specifically identify species in certain polygons, this objection ignores the location of Mr Mazzer's quadrats, transects, and note-taking points. He records that, while he relied upon the OEH Regional Vegetation Map 2015 and accepted that it had certain limitations, he identified that the mapping broadly accorded with his ground-based observations. 8. The objection concerning Mr Mazzer expressing a view as to the alleged vegetation cleared (on the basis that this opinion is not based wholly or substantially on his specialised knowledge) would not be accepted by the Court because there is no challenge to his expertise in identifying species in existence on the property during his site visits. He did so based upon quadrats, transects and observations, and further identified species of trees which he observed had been recently cleared. 9. Further, in relation to the further specific criticism made by the Harris Parties that Mr Mazzer does not specifically identify the location or species of vegetation which he observed to have been knocked over, his photographs, including images of Coolabah and Poplar Box trees which were "still bearing leaves", provide a basis for his conclusion using his specialised knowledge that the species of vegetation were cleared. Further, his conclusion more generally that native vegetation was cleared was based upon inferences drawing upon his specialised knowledge, including his identification of species on Boolcarrol within and adjacent to the polygons and his observations of species of vegetation alleged to have been recently cleared. 10. In addition, Mr Mazzer states that his conclusion is supported by the aerial imagery - noting his limitations in this area in terms of expertise - and the OEH Regional Vegetation Map 2015, while again appropriately recognising the limitations of such mapping. In addition, his conclusions are based upon his examination of existing vegetation, including quadrat and transect data; his examination of woody debris in the area cleared; aerial/satellite imagery; and the OEH Regional Vegetation Map 2015. 11. Finally, in relation to his reliance upon aerial photographs, Mr Mazzer made appropriate concessions that he did not have expertise in remote sensing. While not considering himself an expert, he did indicate that he had "plenty of experience". As such, his reference to and reliance upon aerial photographs is not inadmissible and it is submitted that, properly understood, the aerial photographs are used to corroborate his field observations and he does not purport to interpret the aerial images.

Legal principles

1. The principles applicable to s 79 of the Evidence Act are well understood and not in dispute.
2. The opinion rule, namely that evidence of an opinion is not admissible to prove the existence of a fact about which the opinion was expressed, is contained in s 76(1) of the Evidence Act. Section 79 of the Evidence Act provides: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. …
3. The relevant principles derived from the oft-quoted cases of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 ('Makita') at [85], [87] and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 ('Dasreef') at [37], [41], [42] were recently conveniently summarised by Hoeben CJ at CL, Ward JA and Adams J in A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 at [709]-[712] (although overturned by the High Court, this reasoning was not interfered with): "[709] To fall within the exception under s 79(1) of the Evidence Act the evidence must satisfy two conditions: first, the witness must have specialised knowledge based on his or her training, study or experience (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32] (Dasreef); Honeysett at [23]); second, the opinion must be wholly or substantially based on that knowledge (Dasreef at [32]; Honeysett at [24]). [710] In Honeysett at [23] it was said that specialised knowledge is to be distinguished from matters of common knowledge; that the person's training, study or experience must result in the acquisition of knowledge; and that the concept of "knowledge" connotes more than "subjective belief or unsupported speculation" but that it "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds". [711] In Tuite v R (2015) 49 VR 196; [2015] VSCA 148 at [73] (to which his Honour referred at [32]) it was said that "[i]n assessing the admissibility of the evidence, the judge must, of necessity, ascertain and define with some precision the scope, and the limits, of the witness's specialised knowledge". [712] In Dasreef, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (quoting Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85]) said (at [37]) that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study, or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". Their Honours later observed that "[a] failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight" (at [42])."

Mr Spiers' evidence

1. Having considered the reports of Mr Spiers and his evidence in its totality, including his oral evidence given in cross-examination, for reasons that follow, I find that Mr Spiers has specialised knowledge and that his opinion which relates to changes in vegetation on Boolcarrol is based upon his analysis and interpretation of the aerial photographs and satellite images adopting the procedure summarised above which is specialised knowledge based upon his training, study and experience.
2. In determining that the opinions expressed are "wholly or substantially based on that knowledge", having carefully read his reports and the transcript of his lengthy cross-examination, I consider that the material, including his curriculum vitae, shows 30 years of experience in aerial photography interpretation. Although I accept that mere length of time on its own may not be persuasive, and certainly not determinative, I find that the manner in which he has undertaken his interpretation using specialised equipment and the training and experience he possesses is persuasive.
3. While in some cases the absence of a formal course of study in a particular field may be of significance, I accept that Mr Spiers' "skills" are based upon what he describes as "technical discipline", "field observations of patterns", and "techniques of change analysis" (a term which on its own is not of great assistance), and therefore I do not accept the defendants' contention that he is simply viewing aerial photographs in the usual sense. Rather, he selects, prepares and then views photographs and images in a manner which allows him to observe characteristics and features of the ground surface cover depicted therein.
4. As explained in his evidence, these various features are identified by combinations of colour, tone, texture, pattern and shape. The colour and tone, he opines, is the reflection of light from the objects to be identified in various shades of grey (in the black and white photographs and images) and different colours (in the coloured photographs and images). Texture refers to grouped objects that are too small or too close to create distinct patterns such as tree crowns in a forest canopy and individual plants in a field. Pattern and shape refer to the special arrangement of discrete objects and the distinctive pattern they form. He opines that patterns may be natural, showing irregular patterns such as drainage channels, or artificial patterns associated with anthropomorphic intervention such as cultivation. He further explains that his opinion involves further consideration of aerial photographs and digital stereoscopic items in three dimensions and from this he observes certain characteristics of tree and shrub vegetation and ground surface cover. He explains, first, in relation to trees and shrubs, how they may appear to be upright in that they stand vertically above the ground surface; second, in relation to low shrubs, that this form of vegetation shows some degree of height above the ground surface; and third, that trees and shrubs have an almost complete canopy when viewed in aerial photographs.

Mr Mazzer's evidence

1. As noted above, the defendants challenge the admissibility of Mr Mazzer's evidence generally on the basis of lack of independence and impartiality; lack of expertise; failure to disclose assumptions and materials relied upon; various concerns in relation to his methodology; failure to expose the reasoning adopted; and an inability to express an opinion that the vegetation cleared was native.
2. I do not accept that simply because Mr Mazzer is not a member of a professional body; that there has been some time since he undertook study or training; and that he may not be bound by a code of ethics in the discharge upon his employment duties, these matters are sufficient to suggest that he does not have expertise. The defendants do not criticise Mr Mazzer's expertise as a botanist or a zoologist and, noting that those parts of Mr Mazzer's reports in relation to harm to the environment (as noted above) are not relied upon by the prosecutor at this stage of the proceedings, the fact that Mr Mazzer is currently employed by the NSW Department of Planning, Industry and Environment and has been so since 1994, and the fact that this department brings these prosecutions is, in my opinion, nugatory.
3. Mr Mazzer indicated his appreciation of, and compliance with, the Code which included his overriding duty to assist the Court. A personal or business relationship, including that of a retainer as an employee of a department maintaining a prosecution, is insufficient of itself to lead to rejection of expert evidence. Although, in exceptional circumstances there may be additional factors which justify rejection on the ground of a lack of capacity to bring the requisite degree of impartiality or in the exercise of the Court's discretion, in the present circumstances the fact that Mr Mazzer is an employee of the department, even when combined with other factors, is insufficient to lead to the rejection of his evidence: Stamoulis at [210]-[212], Australian Native Landscapes at [9]-[10].
4. As I have noted above in my consideration of Mr Spiers' evidence, I consider that the authorities make plain that the lack of independence of an expert is more likely not to go to admissibility but is instead a matter of weight: Ananda Marga at [35].
5. I do not consider the defendants' submissions regarding the demeanour of Mr Mazzer in cross-examination to be either persuasive or determinative. I consider that his demeanour did not reveal any lack of candour and he was, in my view, properly attempting to answer questions. As with Mr Spiers, Mr Mazzer was tested through skilful cross-examination.

Findings

1. In dealing with the admissibility of the reports of Mr Spiers and Mr Mazzer in their entirety, I conclude, for the reasons above, that in principle the reports satisfy the requirements of s 79 of the Evidence Act and are admissible. As noted earlier, I do not consider that the evidence ought to be excluded pursuant to s 137.
2. To the extent that discrete objection may be taken to other issues in the reports, I will consider any such objections individually.

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: 29 September 2020