Sutherland Shire Council v Benedict Industries Pty Ltd

THE PROSECUTOR'S SUPPLEMENTARY EVIDENCE 18After the prosecutor served the first round s 247E notice of prosecution case, the defendant requested and received written confirmation from the prosecutor that the evidence served "is the only evidence which the prosecutor proposes to adduce at the hearing of the proceedings as to guilt". In relation to the affidavits served, this confirmed what is stated in s 247E(1)(c). This was the evidence that at that time the prosecutor proposed to adduce at the hearing. But having later received the defendant's second round s 247K notice of the defence response, the prosecutor now proposes to also adduce the supplementary evidence to meet matters in that response. 19On the occasion that the Court made the s 247I second round disclosure orders (8 March 2013), the defendant entered a plea of not guilty to each charge. 20In the defendant's subsequent second round s 247K notice of the defence response, the defendant objected to the admissibility of parts of the prosecution's affidavit evidence, and it also disputed facts in the prosecutor's statement of facts as to the authenticity of a council resolution and the accuracy of cadastral boundaries overlaid on aerial images. 21In order to meet the defendant's objections to admissibility and disputation of those facts, the prosecutor gave notice of its intention to relist the proceedings to seek directions for an amended timetable incorporating as an initial step the filing of supplementary evidence-in-chief by the prosecutor and an amendment to the s 247E notice of the prosecution case. That is the matter now before the Court. 22The supplementary evidence is substantial in volume and the defendant says that it has not yet had the opportunity to analyse it in detail. It comprises affidavits by the six persons listed below, of whom the first four have sworn earlier affidavits, while the last two are fresh witnesses. For present purposes, the parties consider it unnecessary for me to read it. The following summary suffices, based on the prosecutor's oral summary at the hearing (with which the defendant did not disagree) and the disclosure notices, correspondence and other documents in evidence: (a)Ian Drinnan, a botanist, in his earlier affidavit evidence gave only short evidence of his expertise and referred to an earlier report of his which was not prepared for the purpose of legal proceedings and was not transparent. The defendant objected to his expertise in the absence of a CV and to non-disclosure of details of his inspections and reasoning process. His supplementary evidence is aimed at meeting those objections. It includes a long form CV and a published article of his to meet the suggestion that he does not have relevant expertise, and includes more fulsome identification of the facts and reasoning upon which he based his opinion. In addition, the prosecutor says that it will also avoid unfairness to the defendant in that the defendant has given preliminary disclosure that it proposes to call Mr Greg Elks as an expert witness on botany and aerial imagery and the prosecutor says that Mr Elks should take into account Mr Drinnan's supplementary evidence. (b)Steven Heapy is the council's geographical information systems officer. His supplementary evidence is for the purpose of proving the disputed accuracy of overlays of cadastral boundaries on aerial images and proving those images. (c)Gerhard Walz is a surveyor whose original survey report was short and stated his calculations. The defendant objected to absence of a basis and explanation concerning his conclusion as to where the boundary of an old development consent was located. The prosecutor says the boundary corresponds with a particular lot on a deposited plan and proposes supplementary evidence from Mr Walz to meet the objection. (d)Vanessa Bailey is a council officer whose earlier affidavit evidence is largely concerned with matters of process. However, at one point she expresses an expert opinion without proving her expertise, to which the defendant objected on the ground of absence of evidence of her expertise. The prosecutor proposes to supplement her evidence by providing her CV. She is at present on maternity leave but the prosecutor expects to be able to do this by the end of the week. (e)Todd Hopwood is a council officer with responsibility for custody of its records. The defendant challenged the authenticity of a council resolution by which a tree preservation order was made. His evidence is aimed at meeting that challenge. (f)Lisa Hasham is a council officer and her proposed evidence is aimed at proving absence of council consent to the alleged unlawful development, which is a disputed fact. The prosecutor expects her evidence to be served this week. 23Thus, it appears, as the prosecutor submits, that this supplementary evidence seeks to put into admissible form that which had been previously notified by the prosecutor, as distinct from evidence of new events such as a fresh inspection.

SUBMISSIONS 24In summary, the defendant submits that: (a)The prosecution requires leave of the Court to file and rely on the supplementary evidence. (b)The Court has power to grant leave but leave should be refused because the supplementary evidence is unfair to and will prejudice the defendant. That is because the Court's discretion to make disclosure orders under s 247I may be exercised "only if the court is of the opinion that it would be in the interests of justice to do so". Had the prosecutor notified the defendant before the defendant consented to the second round disclosure orders under s 247I (on 8 March 2013) that the prosecutor reserved its right to utilise the defendant's disclosure under s 247K to adduce substantial further evidence to rectify deficiencies exposed by the defendant's disclosure, then the defendant in all likelihood would not have consented to the disclosure orders. Such notification would have been a material factor for the Court to have considered in determining what, if any, disclosure orders to make against the defendant under s 247I having regard to "the interests of justice". The defendant is therefore prejudiced. In addition, the supplementary evidence is unfair to the defendant because there is a large volume of it and the defendant has not yet had a chance to properly analyse it. (c)It is not the purpose of the making of disclosure orders against the defendant under s 247I to permit the defendant's disclosure to then be used by the prosecutor as a springboard to file additional evidence. Rather, their purpose is to ensure the just and efficient running of the trial on the basis of the prosecutor's body of evidence as notified under s 247E. (d)Because the prosecution did not identify the supplementary evidence in its s 247E notice and in its s 247J notice, the prosecutor has not complied with those provisions and under s 247N(1) the Court may refuse to admit it. (e)If supplementary evidence such as this can be filed and relied upon, defendants may become more guarded in their second round s 247K responses as to whether they agree or dispute facts, or take issue with matters or circumstances set out, in the prosecutor's statement of facts. 25In summary, the prosecutor submits that: (a)Leave of the Court is not required for the prosecutor to file and rely on the supplementary evidence. (b)Alternatively, if leave is required it should be granted. The supplementary evidence is not unfair to, nor will it prejudice, the defendant. The proceedings are at an early stage and no trial date has been fixed. The prosecutor offers to pay the defendant's costs thrown away. (c)Division 2A is to be construed in accordance with rules of natural justice, in particular the hearing rule which requires that a person affected by a decision be given an adequate opportunity to prepare and present their case and have their submissions heard. (d)The purpose of Division 2A is to reduce the delay and expense of litigation by ensuring that parties narrow the issues in dispute at an early stage. It is not a purpose of the Division to prevent a prosecutor adducing supplementary evidence such as this. (e)Division 2A contains continuing disclosure obligations and the prosecutor has not failed to comply with s 247E or s 247J by not identifying the supplementary evidence in its notice under those provisions.

CONSIDERATION 26In the present case the Court made the directions for notices expressly contemplated by Division 2A including for disclosure of the prosecution's evidence, but no direction has yet been made for the filing of the prosecution's supplementary evidence. 27In my opinion, leave of the Court is required to file the prosecutor's supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing: State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 (CCA) at 493B per Gleeson CJ (Sheller JA and Badgery-Parker J agreeing). In that case, which was decided before the introduction of statutory case management provisions in criminal proceedings, Gleeson CJ said at 492 - 493 (omitting citations): Failure to comply with directions of the kind with which we are concerned gives the trial judge a discretionary power to exclude the evidence in question. It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature. It was said in argument that prosecuting authorities have asserted in the Land and Environment Court a "right" to lead evidence notwithstanding a failure to comply with directions. Such an assertion, if it had been made, is baseless. The power to give directions necessarily carries with it a power to refuse to countenance non-compliance. A power to direct that certain steps be taken in relation to adducing evidence necessarily carries with it a power to refuse to permit a party to adduce evidence otherwise than in accordance with those steps. Furthermore, the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories and, in an appropriate case, extends to refusing to permit a prosecutor in criminal proceedings to lead evidence that is otherwise relevant and admissible. It is to be noted that Cripps J found, in the present case, that, if the evidence in question were permitted, the respondent would suffer prejudice which could only be cured by an adjournment; an adjournment his Honour was not willing to grant. 28In the same case, Gleeson CJ suggested that a prosecutor may be obliged to lead new evidence-in-chief in answer to a defendant's foreshadowed evidence because of the general obligation of the prosecution in criminal proceedings to present its case completely before the accused is called upon for his defence, and that this would not constitute a breach of a court direction that the prosecutor file and serve its evidence-in-chief at an earlier time: at 490C. By analogy, it may be said that, subject to the Court's control and supervision including so as to prevent unfairness, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to a defendant's objections to the admissibility of prosecution evidence, particularly under the Division 2A regime where such objections are made at an early stage of the proceedings. 29The prosecutor is not, in my view, in breach of ss 247E or 247J, such as to attract the sanctions in s 247N, by now seeking to file supplementary evidence-in-chief. This is because at the time it gave notice under those sections it identified the evidence it then proposed to adduce. It did not form an intention to adduce the supplementary evidence until later: after and in response to the defendant's objections to admissibility of evidence and dispute of facts. 30Nevertheless, the direction the prosecutor now seeks for filing of supplementary evidence-in-chief is to similar effect as a direction for an extension of time to file evidence-in-chief. Such a direction was made in the analogous pre-Division 2A case of Environment Protection Authority v Gilmour [2000] NSWLEC 144, (2000) 109 LGERA 228. There Bignold J considered that it was just and efficient to extend the time for filing of prosecution evidence after the time permitted by an earlier direction and after the defendant's plea of guilty. On the assumption that the only possible prejudice to the defendant lay in the potential that the additional affidavits may contain evidence vital to the prosecution case, his Honour held that justice did not require precluding admissible evidence provided that fair notice of it was given to the defendant: at [37]. The defendant seeks to distinguish this decision on the basis of its unfair prejudice submission referred to above at [24(b)]: essentially, that the prosecutor is taking advantage of the defendant's mandatory disclosure of objections to admissibility of evidence and disputation of facts to patch up its case without telling the defendant at the second round orders stage that it might do so. I do not think that is a sound point of distinction. The prosecutor's s 247E(1)(c) obligation was to provide copies of all affidavits or statements that, at the time of the s 247E notice, it proposed to adduce at the hearing. This goes to the prosecutor's state of mind at that time. There is no suggestion that when the second round disclosure orders were made on 8 March 2013 the prosecutor in fact proposed to adduce supplementary evidence but did not disclose that intention. The alleged unfair prejudice flows from the effect of the legislation, which, as analysed earlier, encroaches on the defendant's right to silence by requiring it to give notices as to various matters, including objections to the admissibility of the prosecution evidence and disputation of facts in the prosecutor's statement of facts. 31If this were a civil matter where the defendant's objections to the plaintiff's evidence were communicated at such an early stage of the proceedings and the plaintiff sought an extension of time to file supplementary evidence in chief to meet those objections, then it may be expected that generally the Court would grant such leave. In requiring notice of objections to admissibility of evidence and disputation of facts prior to the hearing, Division 2A equates criminal proceedings with the usual practice in civil proceedings. Indeed, it goes further in that it requires objections to be notified at an earlier point in time than is the usual practice in civil proceedings. In this respect, I think that the usual civil procedure practice can learn from this new statutory criminal procedure. That being the legislative scheme, I do not think that a defendant can generally complain of unfairness or prejudice if a prosecutor, who has acted in good faith, seeks to file supplementary evidence at a relatively early stage of the proceedings to meet the defendant's objections to the admissibility of parts of the prosecutor's evidence. In such a case, the defendant has received fair notice. This statutory scheme also operates to the benefit of a defendant. For example, if a prosecutor were to make timely objection to the admissibility of parts of a defendant's expert reports, which a defendant is obliged to serve under s 247K(f), the defendant would have the same opportunity to patch up that evidence by supplementary evidence. 32The exercise of the Court's supervisory discretion to grant leave to file supplementary evidence has regard to the particular circumstances. It is a matter of fact and degree. If, for example, the only supplementary evidence that a prosecutor proposes to adduce is a curriculum vitae to prove the expertise of a proposed expert witness whose evidence the defendant has objected to because of lack of evidence of expertise, there should generally be no difficulty in exercising the discretion in favour of allowing such supplementary evidence to be filed. In oral argument in the present matter, the defendant accepted that example. On the other hand, for example, if a defendant did not receive fair notice of supplementary prosecution evidence such that it would be unfairly prejudiced in a way that was irremediable, or not remediable by an order that the Court would countenance (for example, adjournment of the hearing), then that might be a powerful factor influencing the Court not to allow the supplementary evidence to be filed. 33The legislative scheme by which each party gives early notice of objections to the admissibility of evidence, gives the other party the opportunity, by filing timely supplementary evidence-in-chief, to meet the objections (if it can), thereby avoiding disruption at, and possible adjournment of, the trial if such objections were not taken until the trial. The prosecution cannot impermissibly split its case by calling such evidence after the defence case: The Queen v Chin [1985] HCA 35, (1985) 157 CLR 671 at 684-685. 34On discretion, it is true that the prosecutor is taking advantage of the defendant's disclosure to, as the defendant puts it, "patch up" the prosecution case. But it is not doing so because its earlier evidence is grossly deficient nor has it acted in bad faith, and its ability to do so is the product of the statutory scheme. The proposed evidence is supplementary to that already filed. Although it is substantial and the defendant has not yet had the opportunity to analyse it in detail, the defendant can and should be protected in that regard by a timetable that gives it a fair opportunity to analyse it in detail. The defendant will incur additional costs, but the defendant can and should be protected by an order, which the prosecutor proposes, that protects it in respect of costs thrown away.

COSTS 35It is fair that the prosecutor, as it proposes, should pay the defendant's costs thrown away as a consequence of its proposed orders. They include an order for amendment to the notice of the prosecution case pursuant to s 247E. Where a prosecutor amends, the Court is empowered to award costs against the prosecutor under s 68 of the Land and Environment Court Act 1979: Environment Protection Authority v Truegain Pty Ltd (No 3) [2012] NSWLEC 78 at [18] - [22] per Lloyd AJ. In that case it was held that the s 68 power to award costs is independent of the very limited power under s 257C of the Criminal Procedure Act to award costs against the prosecutor at the end of the proceedings if the accused is discharged or the matter is dismissed or withdrawn, subject to the constraints in s 257D.

ORDERS 36For these reasons, I propose to make orders along the lines proposed by the prosecutor. I also propose to direct that the parties' counsel confer in order to consider whether the parties will agree to their experts conferring and producing a joint report and giving evidence concurrently. This is a routine and salutary process in civil matters in this Court. In criminal matters the Court does not have power to compel a defendant to engage in that process: Director General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 3) [2010] NSWLEC 135, (2010) 78 NSWLR 294 at [23] per Pepper J. However, I see no reason why the parties in a criminal matter cannot agree to that process. 37The orders of the Court are as follows: (1)The prosecutor is to file and serve any supplementary evidence and any amendment to the notice of the prosecution case in accordance with s 247E of the Criminal Procedure Act 1986 by 5 August 2013. (2)The defendant is to give the prosecutor notice in accordance with s 247K of the Criminal Procedure Act 1986 by 19 August 2013. (3)The prosecutor is to give the defendant notice of the prosecution response to the defence response in accordance with s 247L of the Criminal Procedure Act 1986 by 2 September 2013. (4)Proceedings listed for further directions on 6 September 2013. (5)The prosecutor is to pay the defendant's costs thrown away as a consequence of these orders, as agreed or as assessed, at the conclusion of the proceedings. (6)Counsel for the parties are confer before the next directions hearing as to whether the parties will agree to a consent order for their experts in a particular discipline conferring and producing a joint report and giving evidence concurrently at the trial.

Amendments 25 February 2015 - typographical errors par [3], cover: "Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013"; "Evidence Amendment (Evidence of Silence) Act 2013". 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: 25 February 2015