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Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris - [2020] NSWLEC 126 - NSWLEC 2020 case summary — Zoe
Vaziri v R [2018] NSWCCA 174
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564
[2012] FCA 385
Chen v R (2018) 97 NSWLR 915
[2018] NSWCCA 106
Clark v Ryan (1960) 103 CLR 486
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Source
Original judgment source is linked above.
Catchwords
Magennis v RVaziri v R [2018] NSWCCA 174
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564[2012] FCA 385
Chen v R (2018) 97 NSWLR 915[2018] NSWCCA 106
Clark v Ryan (1960) 103 CLR 486
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588[2011] HCA 21
Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217[2006] NSWCCA 373
HG v The Queen (1999) 197 CLR 414[1999] HCA 2
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532[2001] NSWCA 305
Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65
R v Bruce Ivar DowdingR v Bruce Ivar DowdingR v Bruno Gordano GrolloMerrywinebone Pty LtdGreentreeHarris [2019] NSWLEC 187
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Taub v R (2017) 95 NSWLR 388[2017] NSWCCA 198
Wood v R (2012) 84 NSWLR 581[2012] NSWCCA 21
Category: Procedural and other rulings
Parties: In proceedings 2019/002652642019/00265268
2019/00265272
2019/00265276
2019/00265280
2019/00265284
2019/00265288
2019/00265292:
Secretary, Department of Planning, Industry and Environment (Prosecutor)
Auen Grain Pty Ltd ACN 101 059 769 (Defendant)
Judgment (25 paragraphs)
[1]
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)
[2]
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)
[3]
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:
[4]
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)
[5]
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)
[6]
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)
[7]
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)
[8]
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)
[9]
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)
[10]
Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree
Department of Planning, Industry and Environment (Prosecutor)
Austin Giugni Martin Pty Ltd (Defendant)
[11]
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
[12]
Judgment
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').
[13]
Background
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').
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.
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.
[14]
Proposed evidence
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.
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.
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.
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).
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.
[15]
Mr Spiers
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.
In preparing his reports entitled "aerial photograph interpretation of vegetation changes", Mr Spiers states that he undertook the following.
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.
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.
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."
[16]
Mr Mazzer
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.
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.
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.
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.
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."
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."
[17]
Defendants' position in relation to Mr Spiers' evidence
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.
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.
[18]
Defendants' position in relation to Mr Mazzer's evidence
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.
[19]
Prosecutor's position in relation to Mr Spiers' evidence
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.
[20]
Prosecutor's position in relation to Mr Mazzer's evidence
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.
[21]
Legal principles
The principles applicable to s 79 of the Evidence Act are well understood and not in dispute.
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.
…
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])."
[22]
Mr Spiers' evidence
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.
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.
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.
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.
[23]
Mr Mazzer's evidence
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.
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.
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].
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].
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.
[24]
Findings
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.
To the extent that discrete objection may be taken to other issues in the reports, I will consider any such objections individually.
[25]
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
Parties
Applicant/Plaintiff:
Secretary, Department of Planning, Industry and Environment
The preliminary hearing proceeded on 24, 25, 26 and 27 August 2020 by a procedure akin to a voir dire. The Court received detailed evidence and submissions.
Given the nature and content of the defendants' arguments, some consideration of and understanding of the evidence in the reports of Mr Spiers and Mr Mazzer sought to be relied upon is required to give context to, and understand, the defendants' concerns and submissions.
He also states that he is able to observe the following characteristics through viewing the three-dimensional version of aerial photographs and digital stereoscopic images:
"a. trees and shrubs, appear upright, standing vertically above the ground surface;
b. low shrubs, even those less than one metre high, show some degree of height above the ground surface;
c. trees and shrubs have an almost complete canopy when viewed in aerial photographs. The canopy blocks the view to the ground surface. In addition, the canopy is grey to black in black-and-white aerial photographs or of varying coloured tones in colour aerial photographs, absorbing light and indicating the presence of green leaf material.
d. in some aerial photographs, the time of photography may be either earlier in the morning or later in the afternoon when the sun is not directly overhead. Shadows are cast by the taller vegetation. Canopies with live leaf material appear close to full, even for eucalypts. For vegetation without living canopies, the skeletal patterns of the bare branches can be identified.
e. in some circumstances, if the trees or tall shrubs are well separated on the edge of a cleared area, the features of the supporting stems can also be determined.
f. although the vertical appearances of tree and shrub vegetation are exaggerated in the three-dimensional view of the aerial photographs, the relative differences in heights can be determined. Terms such as upper-storey, mid-storey and lower-storey are used to separate the different layers of tall, medium and short vegetation."
He notes that he derived his reference information in respect to vegetation densities from a field handbook published by the CSIRO which he opines is commonly used.
Using the ArcGIS mapping program, Mr Spiers drew digital lines around areas forming 59 "polygons" which he opines contained areas where tree removal had occurred. He states that these polygons were "drawn to generally match the edges of the tree cover, but other factors were considered such as terrain, slope and the background image that the line was drawn over. In the case of a satellite image, which may have a large shadow effect caused by the time and date of acquisition, this can affect the accuracy of the linework produced."
Using the ArcGIS program, he then calculated the area which he opines had been cleared.
In interpreting each of the 30 images referred to above, Mr Spiers makes discrete observations in relation to each image which he describes in tables included within his reports. He notes generally that "in high resolution imagery… I could discern individual tree removal between successive imagery dates. In lower resolution imagery such as Sentinel, I determined that a change from a multi-coloured group of pixels to a uniform coloured group of pixels between successive images indicated removal of groups of trees to a uniform cleared ground surface." He also notes that he "can identify cultivation by viewing and mapping around multiple parallel lines on the surface of the land, often over large areas" and, further, that he "concentrated [his] observations to the immediate before and post event imagery, particularly referring to the prior high-definition imagery (ADS), and to the 989 imagery to determine if the clearing had been of regrowth or remnant vegetation."
In conclusion, Mr Spiers opines that trees had been removed or felled across a number of the polygons he had created. He identifies "5 separate events resulting in changes to the vegetation on the property" comprising a total area of 872 hectares, and opines that the trees, shrubs and groundcover which he identified as being removed by these events were present in the images taken in 1989.
Although he did not attend all parts of the areas of interest, Mr Mazzer opines that the number of species present on the property (and in the areas of interest) "would be much larger" than the 58 total (including 49 native) species he recorded and, further, that the "great majority of plant species within the areas of interest and on the property are native." He then opines that the vegetation identified was native as defined in the NV Act and LLS Act; that the polygons which had been affected by fire in early 2017 would have been covered predominantly with native vegetation that would have regrown if it had not been cultivated; that all tree or shrub cover was entirely or predominantly native; that all groundcover was more than 50% native except for one site, which nonetheless in his opinion still constituted native vegetation; and that, even where areas had been cleared of groundcover, what remained or had since germinated since the alleged clearing was predominantly native. He also opines that his inspection of aerial imagery, supported by his ground investigations, showed that native vegetation had been cleared across "virtually the entirety of Area of Interest B and Area of Interest C." He also notes that, across his two visits, he observed trees which had been felled and burned and that cultivation had since occurred and attached photos to his reports to that effect.
Mr Mazzer opines that the likely environmental harm caused by the alleged clearing was significant by reference to various conservation and clearing figures and thresholds contained in relevant government, scientific and regulatory documents. He also opines that Boolcarrol is likely to function as a wildlife corridor and the alleged clearing would thus make the movement of flora and fauna across the landscape more difficult; that the alleged clearing has created small fragments of native vegetation which is of decreased benefit to fauna species; and that the native vegetation allegedly cleared at Boolcarrol represents approximately 6.5% of the native vegetation within a 10km radius. He opines that the tree and shrub species which were present on the property were "generally mature and decades to centuries old" and that, based on his estimates, the number of hollow bearing trees lost "would have a significant detrimental influence on populations of hollow-dependent fauna resident on the property." Although no threatened species were observed during the two visits, he opines that, based upon known occurrences of various species in nearby areas and on Boolcarrol, he considered four threatened species were highly likely, six species were likely, and twelve species had possibly occurred in relevant areas prior to clearing.
He concludes by stating that the available evidence indicates that the native vegetation he identified to be on Boolcarrol prior to the alleged clearing was in good condition and that the trees that were present were too large and mature to have been regrowth from after 1990.
In the above circumstances, the defendants rely specifically upon s 137 of the Evidence Act in that the Court would refuse to admit the evidence of both Mr Spiers and Mr Mazzer on the basis that its probative value is substantially outweighed by the danger of unfair prejudice to the defendants.
In addition to the two requirements espoused by Dasreef, Schmidt J in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114 ('Kyluk') noted the following (at [176]):
"The evidence must also be presented in a form which reveals the facts and reasoning on which the opinion rests."
Her Honour continued at [177]:
"An expert opinion which meets those requirements need not be excluded if all of the factual bases upon which the opinion is proffered are not established by the expert's own evidence. Even if facts which the expert "assumes" or "accepts" in reaching the opinion expressed are not proved in some other way, then the opinion may still be admissible. That will depend on the nature of those facts and what bearing they have on the opinion. If they provide but a small part of the basis upon which the opinion rests, then the failure to prove those facts may have but little impact, and not render the opinion inadmissible. The failure to prove facts which provide a significant basis for the opinion might, by way of contrast, be such as to render the opinion no longer relevant to a fact in issue, no foundation for the opinion having been established. Such an opinion, even if it were admitted, would be of no value. Where an opinion is admitted, the failure to establish a fact which is not of such significance, may nevertheless have an impact on the weight given to the opinion."
This requirement to reveal the facts assumed or observed upon which the opinion is based was considered by Simpson JA (with whom Walton and Button JJ agreed) as being a third criterion of admissibility in Taub v R (2017) 95 NSWLR 388; [2017] NSWCCA 198 at [27]-[29].
The Court of Appeal has more recently reiterated that an expert's reasoning process ought to be exposed such that the opinion expressed can be shown to be based on particular specialised knowledge: Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 ('Menz') at [108] (citing Rolleston v Insurance Australia Ltd [2017] NSWCA 168 at [6], [32]). The Court thereafter noted that this requirement is normally satisfied by the person expressing the opinion demonstrating the reasoning process in reaching that opinion: Menz at [108] (citing Roads and Maritime Services v Grant [2015] NSWCA 138 at [131]).
The above principles are in conformity with the obligation of expert witnesses to comply with the Expert Witness Code of Conduct ('Code') contained in Sch 7 to the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') (see r 3J in Pt 75 of the Supreme Court Rules 1970 (NSW), as r 5.2(1) of the Land and Environment Court Rules 2007 (NSW) applies Pt 75 of the Supreme Court Rules 1970 (NSW) to criminal proceedings in this Court). Clauses 2 and 3 of Sch 7 to the UCPR relevantly provide:
2 General duties to the Court
An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.
3 Content of report
Every report prepared by an expert witness for use in court must clearly state the opinion or opinions of the expert and must state, specify or provide -
(a) the name and address of the expert, and
(b) an acknowledgement that the expert has read this code and agrees to be bound by it, and
(c) the qualifications of the expert to prepare the report, and
(d) the assumptions and material facts on which each opinion expressed in the report is based (a letter of instructions may be annexed), and
(e) the reasons for and any literature or other materials utilised in support of each such opinion, and
…
(g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications, and
(h) the extent to which any opinion which the expert has expressed involves the acceptance of another person's opinion, the identification of that other person and the opinion expressed by that other person, and
…
(j) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate, and
(k) whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason, and
(l) where the report is lengthy or complex, a brief summary of the report at the beginning of the report.
The requirement to comply with the Code and with Div 2 of Pt 31 of the UCPR is also stipulated in r 31.23 of the UCPR and in the Court's Practice Note - Class 5 Proceedings (at [36]).
While a failure of an expert to comply with the Code does not render an expert's evidence inadmissible: (Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [208] ('Stamoulis')), in Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 ('Wood') at [729] (considered in Chen v R (2018) 97 NSWLR 915; [2018] NSWCCA 106 at [19], it was noted:
"This is not to say that the Expert Witness Code of Conduct is merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under s 135 or s 137 of the Evidence Act. Campbell J adverted to this possibility in Lopmand when his Honour stated at [15]: "The policy which underlies the existence of Part 36 rule 13C is one which I should take into account in deciding whether [the expert evidence] should be rejected under section 135." I respectfully agree with that approach. While there is no rule that precludes the admissibility of expert evidence that fails to comply with the Code, the Code is relevant when considering the exclusionary rules in ss 135-137 of the Evidence Act . The expert's "failure to understand his [or her] responsibilities as an expert" (Lopmand at [19]) may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party."
The duties of witnesses bound by the Code were further considered in Wood at [725]:
"The Code of Conduct is found in Schedule 7 to the Uniform Civil Procedure Rules 2005. It applies to expert evidence in criminal proceedings by virtue of Part 75 Rule 3(j) of the Supreme Court Rules 1970 and applies to A/Prof Cross' reports and oral evidence. Clause 2 of the Code imposes on an expert witness "an overriding duty to assist the court impartially on matters relevant to the witness's area of expertise." Furthermore, there is a duty on the expert to state, "if applicable, that a particular issue falls outside the expert's field of expertise" and "If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report." There is also an obligation to disclose whether an opinion is "not a concluded opinion because of insufficient data or research or for any other reason." An expert report is not to be admitted into evidence unless an expert has agreed to be bound by the Code (unless the Court otherwise orders) nor is oral evidence to be received from that witness: r 75.3J (3)(ii), (c)(i)."
In addition to the aforementioned principles concerning s 79 of the Evidence Act, the Court also has a general discretion pursuant to s 135 to exclude evidence where it may be prejudicial, misleading or confusing. Further, it must refuse to admit evidence adduced by a prosecutor in accordance with s 137 if the probative value of the evidence is outweighed by the danger of unfair prejudice to a defendant.
I have taken into account and accept that the procedures Mr Spiers has undertaken are also responsive to training courses he has attended regarding ArcGIS which as noted earlier, is a computer system designed to capture, store, manipulate, analyse, manage and present geographical data, and this itself was a component of certain further studies he undertook in relation to a post-graduate diploma. Further, apart from undertaking "several training courses in ArcGIS", he has had 20 years of practical experience using ArcGIS and has used GIS software to identify areas of change in woody vegetation cover across NSW over the past 15 years. He gave oral evidence that ArcGIS is the digital equipment and platform that he used in looking at and interpreting images and that this is a modern digital equivalent of a stereoscope (Tcpt, 24 August 2020, p 51(37-39)).
Even accepting that there was no formal course of study in this field and that it may not be a "science" as suggested by the defendants, I am satisfied that he has specialised knowledge concerning the interpretation of aerial photographs and satellite images in relation to vegetation cover and that this specialised knowledge involves the use of techniques, such as those available through ArcGIS to outline areas of observed clearing, such as he did when he created the polygons and used ArcGIS to measure the allegedly cleared areas.
The second aspect of Dasreef that requires consideration is whether the opinions he has expressed are "wholly or substantially based upon that knowledge". I will separately deal with the application of the Code later in these reasons.
The question may be asked whether an ordinary person is able, or unable "to form a sound judgment without the assistance of [those] possessing special knowledge or experience … which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience" (per HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [58]). In the present circumstances, I consider the answer to be "no". Further, I note and accept the approach in Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 at [292] that "… admissibility of expert evidence is directly related to the doubtfulness of the claim to special knowledge."
While the expert in Clark v Ryan (1960) 103 CLR 486 ('Clark v Ryan') purported to give an opinion outside his qualifications, in the present case, for reasons given above, I consider that Mr Spiers' experience and qualifications gives him "more opportunity of judging than other people": Clark v Ryan at 491-2 (Dixon CJ citing Vaughan-Williams J in R v Silverlock (1894) 2 QB 766).
The defendants' submission that Mr Spiers' consideration and dealing with aerial photography and satellite images is essentially no different to that which could otherwise have been undertaken by one who was unqualified and untrained is therefore not persuasive.
Further, and although not raised by the prosecutor, I note that Mr Spiers' specialised knowledge in selecting appropriate aerial images; framing and scaling those images in a manner which facilitated comparison; and the drawing of digital outlines (i.e. polygons) around the specific areas in which he opines vegetation has been removed, are all steps required to be undertaken before one is able to engage in what Mr Spiers describes as "techniques of change analysis". Although I do not consider the final aspect of his process (which in simple terms involves comparing "before and after" aerial photographs) to be particularly complex, and noting my finding above that this discrete aspect of Mr Spiers' work does nonetheless import a requisite degree of specialised knowledge, I am cognisant of the fact that this final comparative aspect and his ultimate conclusions are dependent upon the preparatory work undertaken by Mr Spiers.
For the above reasons, I am comfortably satisfied that the exercise undertaken by Mr Spiers brings specialised knowledge to his consideration of what may be an otherwise unexceptional photographic image. I accept the submission of the prosecutor that it incorporates rigour, precision, and comprises specialised knowledge in accordance with s 79 of the Evidence Act.
The defendants made a sustained attack that Mr Spiers did not display appropriate independence and/or impartiality and that this, as a breach of the Code, would render his evidence inadmissible either on its own or pursuant to ss 135 and/or 137 of the Evidence Act. While there were some aspects of Mr Spiers' evidence (in particular, some of the wording in his curriculum vitae) that would be considered, at least, infelicitous, properly understood and reading his evidence as a whole including his oral evidence, his reports and the matters otherwise stated in his curriculum vitae, I am satisfied that his evidence does not lack objectivity nor do I consider that has he deviated from his obligation of independence. My reasons follow.
I consider that he has properly complied with the obligations and responsibilities placed upon him by the Code and that, again, despite skilful cross-examination, I consider the gist of his oral evidence was that he understood that it was his duty to assist the Court and that this duty overrode any matters that were required to be undertaken in the course of his employment.
To the extent that the defendants rely upon his oral evidence that he had an "interest" in the outcome, I consider that this word does not convey, or is intended to convey, the pejorative meaning attributed to it by the defendants and should instead be considered akin to "curiosity" as submitted by the prosecutor. I therefore do not accept the submission that the evidence shows Mr Spiers views his role as partial; that he had an "interest in the outcome"; or that, when expressing his opinion, he has "presumed guilt" simply because he makes "assessments of breaches of the Act". Although he gives evidence about his involvement with successful prosecutions, this is not triumphalism as submitted on behalf of the defendants. Moreover, the mere fact that he may accept a suggestion that he provided opinions that may assist his employer is, understood in context, in my view not indicative, and certainly not decisive of partisanship.
Further, I see nothing unusual in an expert such as Mr Spiers providing draft reports to solicitors as requested. It would simply be naive to suggest that this is not a common occurrence and is again not indicative of inappropriate conduct.
Even if I am wrong in my finding that Mr Spiers did not have a material interest in the proceedings, that in any event does not mean that a witness is unable to comply with their duties as set out in the Code. The duties in the Code are not rules of evidence such as to render inadmissible evidence of an expert who may have an interest in proceedings: Stamoulis at [210]-[212] (Ipp JA, with whom Beazley JA and Giles JA agreed).
Although detailed submissions were made in relation to the Code including the suggestion that there had been non-compliance by Mr Spiers in relation to various aspects, in simple terms, even if Mr Spiers had a material interest, which I do not consider that he has, it does not mean that he could not comply with the duties of the Code. Nonetheless, the Code and non-compliance therewith remains relevant in the consideration and application of the exclusionary rules pursuant to ss 135 and 137 of the Evidence Act, as noted by Price J in Kyluk at [61]:
"Although there is no rule that precludes the admissibility of expert evidence that fails to comply with the Expert Witness Code, the Code remains relevant when considering the exclusionary rules under ss 135-137 Evidence Act: Wood v R [2012] NSWCCA 21 at [729]. Furthermore, even if an opinion based on assumed but unproven facts is admissible, the opinion may be given little or no weight if the assumption is not made good by the evidence: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642."
I accept and adopt the view of Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92 ('Australian Native Landscapes') at [15] that, first, evidence of a partial expert is relevant and therefore admissible under s 56 of the Evidence Act; second, partiality of an expert goes only to weight of the expert's evidence; and, third, evidence of a partial expert combined with other circumstances may in some exceptional circumstances justify exclusion of the experts evidence in the Court's discretion under s 135 of the Evidence Act if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the parties. In these circumstances, and as I do not consider that Mr Spiers' evidence is partial, even if that criticism could be justified then it would be a matter that goes to the weight of the evidence. It is clear, apart from dealing with discrete submissions, that the Court is presently considering admissibility and not weight.
To the extent that the defendants criticised Mr Spiers' methodology and his disclosure of assumptions and material relied upon, I accept the prosecutor's position that, to an appropriate extent, Mr Spiers did identify the assumptions and limitations of his work. In particular, I take into account his evidence regarding the methodology, albeit termed "Techniques of Change Analysis" and "Interpretation of Imagery" including the use of the "swipe function", which I have summarised above. I consider that he describes in sufficient detail the assumptions and notations to his work and, for example, in his description of vegetation density he refers to the guidelines in the Australian Soil and Land Survey Field Handbook. Even if some of the assumptions could have been described more fulsomely, the opinions he ultimately expresses are based upon his interpretation of material he has identified and I accept the submission of the prosecutor that, in some circumstances where he is unable to express an opinion, he states this fact.
More relevantly, the defendants maintain that Mr Spiers does not disclose adequately or at all his reasons or reasonings. It is a trite requirement that the reasoning process that leads to the formation of opinion must be made transparent so as to demonstrate that the opinions expressed are wholly or substantially based on that knowledge. In particular, it must explain how the field of specialised knowledge, which I have found to exist, applies to the facts assumed or observed so as to adduce the final opinion. Of course, although the failure to prove the facts which provide a significant base for an opinion may not present a foundation for the opinion being inadmissible, the failure to establish a fact may nevertheless have an impact on the weight to be given to the opinion.
Adopting and applying the principles set out above, and in particular, considering the obligation to comply with the Code, I find there is sufficient exposure of the reasoning process to demonstrate that Mr Spiers' opinions are based upon specialised knowledge. Although this aspect is not without some concern and accepting that certain matters may have been more fully explained, I consider that Mr Spiers does sufficiently set out his methodology. More particularly, I consider that his explanations contained in the tables containing his "imagery observations" which include an explanation in relation to each particular image and which reflects what he observes particularly in relation to the "patterns" consistent with such matters as cultivation and the like, combined with his explanation of the processes which he undertook (summarised above), as well as the drawing of the polygons to outline discrete areas of vegetation changes overlaid on each of the images, provide a sufficient exposure of his reasoning process.
In these circumstances, I do not accept that "critical parts" of his process are absent. The mere fact that the method Mr Spiers has undertaken may not be well-known is not, on its own or combined with the other matters raised by the defendants, sufficient to determine that his description and application of his methodology is such as to render his opinions inadmissible.
To the extent that there may remain discrete objections to certain paragraphs to be considered separately apart from this preliminary hearing, I find that the primary (that is, the overarching) criticisms made by the defendants in this preliminary hearing are insufficient on their own to determine that it is inappropriate to admit the evidence.
Finally, to the extent that there was a separate attack upon the credibility of Mr Spiers, based upon his reliance, directly or indirectly, upon material that may have been earlier prepared by Mr Naven, this criticism is not in any way persuasive or determinative in considering the admissibility of his reports. Even accepting that Mr Naven was part of the investigation, which may at some later stage have some relevance in these proceedings, on the matters presently before the Court and given the explanation proffered by Mr Spiers and, as noted above, the evidence of Mr Mazzer, I do not consider that the role of the "Naven maps" (or Mr Naven) would directly or indirectly render the reports of Mr Spiers or Mr Mazzer and the opinions therein inadmissible. I repeat that any lack of credibility and reliability may be ultimately relevant to the weight, if any, to be later given to the evidence: (see Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564; [2012] FCA 385 ('Ananda Marga') at [52]).
In summary, I consider that the requirements of the Code, which I have summarised above, have been sufficiently complied with; that the witness has not shown any lack of independence or impartiality; that he has sufficient expertise based upon training, experience, and/or to a lesser extent, study; that he has exposed appropriately the assumptions and the material upon which he has relied upon; and the methodology which he has adopted in forming his opinions appropriately discloses his reasoning process.
I also do not accept the defendants' submission that Mr Mazzer was "advocating" in relation to certain matters (particularly in relation to environmental harm - noting that these matters are not presently relied upon). Mr Mazzer was doing no more in his reports than attempting to address the questions which he was asked. Further, I consider his references to existing conservation policy as being "inadequate", and references to "community concern", properly considered in context, are a response to a discrete question he was asked regarding environmental harm.
Mr Mazzer's curriculum vitae details his qualifications. He has degrees in natural resources and has been employed as an ecologist since 1994 and, relevantly to his evidence in these proceedings, has had extensive experience in flora and fauna surveys and vegetation assessments and monitoring. He is a member of the Zoological Society of NSW and he explained his studies and experiences in botany and ecology in some detail in his oral evidence. I do not accept the defendants' submission that Mr Mazzer does not have specialised knowledge to express views in relation to species of vegetation located on the property. Leaving to one side other unrelated criticisms of his conduct to which I will come, I accept that he has specialist zoological, botanical and ecological qualifications and that a number of his opinions, subject to below, are wholly and substantially based upon his specialised knowledge.
Criticism was made of Mr Mazzer's methodology. Suffice it to say, he obtained information during his field inspections including the taking of photographs, recording GPS waypoints, collecting data at quadrats and transects, and took notes at selected sites. Adopting the summary described above, I consider he has appropriately described his methodology.
There is criticism that he did not use the BAM survey methodology. I accept the submission of the prosecutor that, properly understood, the methodology contained in the Biodiversity Assessment Method Order 2017 ('BAM') (which is an order made under the Biodiversity Conservation Act 2016 (NSW) ('BC Act') on 24 August 2017) has been established for the purpose of assessing impacts on threatened species and threatened ecological communities and their habitats as well as the impact of biodiversity values when required to be assessed under the BC Act, LLS Act and/or the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. In considering the submissions, at the request of the parties, I have perused the BAM and considered the methodology for "Vegetation integrity assessment" in cl 5.3 of the BAM and, in particular, cl 5.3.4 (Vegetation integrity survey plots). While it is clear that the BAM contains a survey method (cl 5.3.4.5) which is different, and on one view more rigorous, than that which was undertaken by Mr Mazzer, I consider that it is relevant that the BAM was established for a different purpose and I accept the submission of the prosecutor that simply by virtue of the fact that it provides a more rigorous assessment criteria than that which was adopted by Mr Mazzer, does not on its own or combined with the other matters, dictate that the method undertaken by Mr Mazzer was inappropriate or otherwise without foundation such that it would affect the inadmissibility of his reports.
In response to the defendants' submission that, even accepting that there may be a field of expertise described as "image analysis" (or remote sensing), Mr Mazzer has not cited qualifications in the area, I consider that, properly understood, Mr Mazzer does not propound that he has expertise in aerial imagery. Although he professes "experience", it is clear that he relied upon and nominated certain digital aerial photography as a source of information he was provided. Further, he states clearly that he "… checked that Mr Spiers' interpretation of the aerial photographs and satellite images used in his assessment of the clearing is broadly consistent with my observations".
While there is some force in the defendants' submission that he has relied, to some extent, upon the aerial photography of Mr Spiers, I consider that, read reasonably, in particular the quotation above, he does properly refer to Mr Spiers' interpretation of the clearing as being "broadly consistent with my observations" (at par (21) of the "northern report").
I do not accept the defendants' criticism that Mr Mazzer did not have specialised knowledge in establishing "the extent" of land clearing and that his response to such criticism was to rely upon the opinion of another witness. Accepting that he does not have formal qualifications in the area of aerial imagery interpretation, he does indicate with some specificity that he did rely upon aerial images (which clearly had been created by others with the required training and experience) and in these circumstances, I do not consider that failure to attribute the authorship of the orthorectification or other processing in his reports to be determinative as to the reports' admissibility. It may, ultimately, be a fact in the weight to be attributed to his evidence.
Further, I consider that, to the extent that he may have assumed the accuracy of the aerial and satellite images and accepting that he may not have questioned that accuracy, this is also not determinative in the suggested inadmissibility of his reports.
Although it is further submitted that Mr Mazzer did not disclose adequately his reasons or reasoning, I find that in his reports as summarised above, Mr Mazzer sufficiently identifies the source of the information he relied upon; identifies the species located in each area of interest; explains the basis upon which he concludes that some 39 of those species are "native"; and further explains the basis upon which he expresses a view as to the communities of vegetation present in each polygon. In this way, I consider that Mr Mazzer appropriately explains the reasoning for his conclusion that the areas of vegetation cleared contained native vegetation and he explains the basis for his opinion that none of the cleared vegetation was regrowth.
Further, the photographs which Mr Mazzer has attached to his reports depicting the observations he made at the property are also sufficient in my view to disclose his reasons or reasoning. Given his experience in the conduct of such surveys (and the number and use and location of quadrats and transects), this, at most, must leave any legitimate criticism that may be directed to the limited utility of the method chosen to be one directed to weight and not admissibility.
To the extent that the defendants submit that Mr Mazzer has not complied with the Code (in particular in relation to advocacy, lack of impartiality and lack of reasoning), I do not consider that any of those matters are made out. In any event, as I have detailed in relation to Mr Spiers' evidence, each of those matters considered individually, or collectively, would not be sufficient to render the reports inadmissible.
While there is some weight in the defendants' submission that there is a dearth of reasoning to justify Mr Mazzer's conclusions, I find that in each of his reports, read as a whole, Mr Mazzer provided appropriate disclosure of his reasoning. Again, the adequacy of that disclosure is a matter that may ultimately be relevant to the weight of the opinion. Further, Mr Mazzer's frank acknowledgement in cross-examination that he could have put more detail in his reports, does not of its own render the reports inadmissible. I accept, after some consideration, that adequate reasoning has been exposed.
In relation to further specific criticism of the depth of analysis in the articulation of the discrete species found in various polygons (as to identification of species as well as number), it is not a matter, as the prosecutor submits, that is directed to whether vegetation was cleared and as such is not a ground for ruling Mr Mazzer's evidence inadmissible.