Sutherland Shire Council v Benedict Industries Pty Ltd

Land and Environment Court (NSW)|2014-03-20|Before: Craig J

Solicitors: Pikes & Verekers Lawyers (Prosecutor) Minter Ellison (Defendant) File Number(s): 50921 of 2012, 50923 of 2012, 50100 of 2013

Judgment

The prosecution charges that the defendant has committed five offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (The EPA Act). Two such charges allege that the defendant "injured bushland vegetation" without prior written consent, contrary to the provisions of Sutherland Shire Tree and Bushland Vegetation Preservation Order (TBPO), made under the provisions of Sutherland Shire Local Environmental Plan 2000.
Two further charges allege that the defendant "injured trees" without consent, contrary to the provisions of the same TPBO. The fifth charge alleges that the defendant constructed an earthen bund which constituted prohibited development, with the result that it contravened s 76B of the EPA Act.

The operation of Division 2A

An analysis of the manner in which the provisions of Div 2A operate is helpfully found in the judgment of Biscoe J in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 (Benedict [No 1]). Division 2A applies to proceedings before the Supreme Court and before this Court in its summary criminal jurisdiction: s 247A.
Important to notice at the outset is the purpose of Div 2A, as expressed in s 247B. That section provides: "247B Purpose (1) The purpose of this Division is to reduce delays in proceedings before the court in its summary jurisdiction by: (a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and (b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings. (2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned."
Relevant to the competing submissions in the present case is the reference in both subsections (1) and (2) of s 247B to the capacity of the Court to require or order "preliminary disclosure". The capacity of the Court to require such disclosure is clearly intended to identify the real issues to be agitated in the course of the trial and to ensure that all evidence intended to be relied upon by the prosecutor is provided to the defendant in advance of the hearing. As the provisions of the Division make clear, a further purpose arising from the capacity of the Court to require or order preliminary disclosure is to ensure, where appropriate, that where expert evidence is to be relied upon at trial by either the prosecutor or the defendant, both the fact that such evidence is to be relied upon and the content of that evidence is to be disclosed to the other party.
As Biscoe J observed in Benedict [No 1] (at [7]), Div 2A provides a "prescriptive disclosure regime", contemplating two rounds of discretionary disclosure orders. The first round, for which provision is made in s 247D, is for "directions with respect to the future conduct of the proceedings" which includes the time for service of a prosecution notice under s 247E and a defence response to that notice under s 247F. Directions for the service of such notices have long since been made in the present case.
The second round of disclosure orders are those provided for in s 247I. Such orders are to be made "only if the court is of the opinion that it would be in the interests of justice to do so": s 247I(1). Orders under that section have also been made in the present case.
In addressing the first round obligation, the provisions of s 247E are important to be noticed. That section relevantly provides: "247E Notice of prosecution case to be given to defendant (1) The prosecutor is to give to the defendant notice of the prosecution case that includes the following: … (c) a copy of the affidavit or statement (whichever is applicable) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings, … (h) if any expert witness is proposed to be called at the hearing by the prosecutor, a copy of each report by the witness that is relevant to the case … ".
The further evidence that the prosecutor seeks leave to file and serve are affidavits prepared by experts whose qualifications as such are not challenged for the purpose of the present application.
The second round orders made in these proceedings under s 247I were made by consent. Those orders required that the prosecutor file a notice under s 247J; that the defendant provide its response by notice under s 247K and that the prosecutor provide a response to that notice under s 247L. The provisions of each of the three sections that I have identified are relevant to a determination of the present application. Section 247J relevantly requires that the prosecution's notice under the section is to contain: "(a) the matters required to be included in the notice of the prosecution case under section 247E, … (c) a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the Prosecutor."
The need for the prosecutor to amend its previous notice under s 247E and the leave now sought so to do arises from those provisions of s 247J, assuming leave is given to file and serve the supplementary evidence that the prosecutor identifies. In this context, I respectfully agree with the observations of Biscoe J in Benedict [No 1] where his Honour said (at [13]): "Those s 247J requirements are, in my view, not merely confirmatory of matters included in the s 247E notice, but require updating of those matters, including updating of evidence. This is, I think, clear enough, but, if it is not, then it is permissible to refer to the Agreement in Principle speech of the Attorney General when introducing the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 which incorporated Division 2A, on 24 November 2011, which confirms that that is so (emphasis added): "Under clause 247J, the preliminary disclosure requirements for the prosecutor include the matters they were required to disclose at the initial exchange of notices, which may need to be updated, any material they have that is adverse to the defendant's credibility, and a list identifying the evidence of the prosecution witnesses.""
Section 247K identifies the matters that are to be contained in the notice served by the defendant under that section. Among the matters and material so identified is that described in paragraph (f) in the following terms: "(f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings, …". The defendant disclosed and provided to the prosecutor a statement of evidence of Gregory Elks, an ecological consultant.
I have earlier recorded that an order was made by the Court requiring that the prosecutor provide a response to the defendant's s 247K disclosure. Paragraph (a) of s 247L, being the section pursuant to which the prosecutor's response was required, provides: "(a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect, …".
Before turning to address the circumstances that give rise to the present application, it is important to notice the provisions of ss 247N and 247O. Section 247N addresses what the heading to the section describes as being sanctions for non-compliance with the preliminary disclosure requirements of the Division. By subsection (1) the Court is given a discretion to refuse to admit evidence that is sought to be adduced by a party who has failed to comply with the requirements for preliminary disclosure. Relevantly, s 247N(2) provides: "(2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence of an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with the requirements for preliminary disclosure imposed by or under this Division."
Section 247O requires, in terms, that the obligation to comply with the requirements for preliminary disclosure is ongoing. The section provides: "247O Disclosure requirements are ongoing (1) The obligation to comply with the requirements for preliminary disclosure imposed by or under this Division continues until any of the following happens: (a) the defendant is acquitted of the charges to which the proceedings relate, (b) the prosecution is terminated, (c) the defendant is sentenced for the offence to which the proceedings relate. (2) Accordingly, if any information, document or other thing is obtained or anything else occurs after preliminary disclosure is made by a party to the proceedings that would have affected that preliminary disclosure had the information, document or thing been obtained or the thing occurred before preliminary disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable."

Relevant procedural background

There can be no doubt that the defendant is correct in stating that the pre-trial process in these proceedings has been protracted. Part of that procedural history is recorded in Benedict [No 1] at [18].
In its initial notice under s 247E, the prosecutor identified the evidence upon which it intended to rely. That notice was confined to proceedings 12/50921 and 12/50923. Subsequently, the prosecutor sought leave to amend the summons in each matter and also to file a new summons bringing a fresh charge. A further s 247E notice was filed and in accordance with the leave then granted, the prosecutor not only amended the summons in each proceedings that it had commenced, but also commenced proceedings 13/50100. Thereafter, all three proceedings have travelled together.
Following receipt of the prosecutor's further s 247E notice, the defendant sought from the prosecutor and was given confirmation that the evidence identified in that notice was "the only evidence which the prosecutor proposes to adduce at the hearing of the proceedings as to guilt". That confirmation was given prior to the defendant consenting to orders under s 247I requiring the giving of notices under ss 247J, 247K and 247L respectively. The prosecutor's notice under s 247J was served in accordance with the direction given by the Court.
About three months after the direction was given requiring that the defendant file its s 247K notice, that notice was served upon the prosecutor. Relevant to the present controversy, the defendant's notice did two things. First, it identified objections to the admissibility of parts of the prosecutor's affidavit evidence and disputed identified facts in the prosecutor's statement of facts. Second, the defendant indicated that more time was required to comply with s 247K(f), namely to provide the expert report upon which the defendant intended to rely at the trial.
When all three proceedings were next before the Court for directions, time was extended for the defendant to comply with s 247K(f) and for the prosecutor to provide its response under s 247L.
Having received the s 247K notice objecting to and contesting some of the prosecution evidence, the prosecutor gave notice that it would have the matter relisted before the Court, seeking an amended timetable that included the filing of further evidence by it, intended to address the admissibility of evidence and the dispute of fact raised by the defendant in its notice.
The defendant contested the entitlement of the prosecutor to take that course. That contest was the subject of the Judgment of Biscoe J in Benedict [No 1]. His Honour determined that while leave was required to file the prosecutor's supplementary evidence, in the exercise of the discretion available to the Court, that leave should be granted.
Thereafter the prosecutor's further evidence was filed, as was a further s 247E notice. The latter notice was filed in accordance with directions given by Biscoe J. Those directions also required the defendant to give notice under s 247K and the prosecutor to give notice by way of response under s 247L.
Some two months after his Honour's directions were given, the defendant filed a motion seeking preliminary determination of a contention that in proceedings 12/50921 "the trial should not proceed as the evidence did not establish that the charge was not statute barred" (sic). Having been served with that notice of motion, the response of the prosecutor was to serve two further affidavits, intended to meet the absence of evidence upon which the defendant founded its motion. After receiving and considering that further evidence, the defendant advised the prosecutor that it would no longer pursue its motion but indicated that the further evidence which had been served should have been the subject of the prosecutor's s 247E notice and given to the defendant along with that notice.
When the matter was next before the Court a number of orders and directions were made by consent. Leave was granted to the prosecutor to rely upon the additional affidavits that had by then been served. Directions were also made for the prosecutor to file a supplementary notice under s 247E, to be followed by the defendant's s 247K notice, confined to compliance with paragraph (f), namely the provision of the expert report upon which it relied. The prosecutor was also directed to respond in accordance with a notice under s 247L.
It is the course taken by the parties following those directions that gives rise to the controversy sought to be resolved by the prosecutor's present notice of motion. That course will next be addressed. However, I have set out the procedural history of the matter in some detail as the defendant seeks to emphasise that history in opposing the notice of motion. I will return to the defendant's submissions directed to that history in due course.

The defendant's expert report and the prosecutor's response

Ultimately, the defendant served the expert report of Gregory Elks to which I have earlier referred. That report was served to comply with the defendant's obligation under s 247K(f).
Following receipt of Mr Elks' report, the prosecutor sought and obtained, by consent, an extension of time in which to file and serve its response pursuant to s 247L. That response included the service of a further affidavit of Ian Drinnan, the prosecutor's employed principal environmental scientist. Mr Drinnan had sworn a number of affidavits already served in the proceedings. Shortly thereafter an affidavit sworn by Dr Pamela Hazelton, a soil scientist, was served on behalf of the prosecutor, to which was annexed a detailed report. A further brief affidavit by Dr Hazelton was served a short time later, providing additional detail on one matter that was the subject of her earlier report.
The response of the defendant to the service of these three affidavits on behalf of the prosecutor was twofold. First, the defendant contended, consistent with the decision in Benedict [No 1], that the additional evidence could not be relied upon unless leave was first given by the Court to do so. Second, the defendant indicated that it would oppose leave being granted to rely upon those affidavits. It was that response that led to the prosecutor filing and serving the present notice of motion.

A response by the prosecutor to the defendant's expert evidence?

For the purpose of determining the issue between the parties, the statement of evidence or report of Mr Elks (Exhibit A) was tendered before me, as were the affidavits of Mr Drinnan (Exhibit B) and Dr Hazelton (Exhibits C and D). Both parties accepted that the documents should not be examined by me in any detail for the purpose of determining their ultimate admissibility at trial. The purpose of the tender was to consider them, in broad detail, so as to address an issue between the parties as to whether the prosecution's three affidavits were, as the prosecutor contended, responsive to the report by Mr Elks. The defendant contended that the affidavits were not responsive.
It was further contended by the defendant that the discipline of soil science had not previously been addressed in the evidence of the prosecutor with the consequence that it should not now be permitted to do so. Moreover, even if, contrary to its contention, the reports were responsive to the evidence of Mr Elks, the defendant still maintained that the prosecutor was not entitled, or ought not be given leave to rely upon this new evidence at trial, assuming it was otherwise admissible.
The broad scope of Mr Elks' report is identified in its introduction. The "first part" of the report is said to be directed to determining the likely number of trees, within the land footprint that he nominates, prior to 1 August 2010 and after 23 October 2011, "that were subject to the Tree Preservation Order" and thereafter examining whether "any of the bushland vegetation" fell within the terms of that Order. The "second part" of the report is identified as being a review of Mr Drinnan's affidavits followed by an examination of "the application of survey, classification and mapping of the vegetation, as undertaken by Mr Drinnan and others, so as to describe the nature of the vegetation in context of the site, surrounds and region".
In preparing his report in those parts, Mr Elks identified his instruction from the defendant's solicitors for preparation of the report. That instruction sought Mr Elks' expert opinions in the following terms: "(a) review the various aerial photographs provided in this brief and estimated number of trees which were: i. on Lot 2 prior to 1 August 2010; and ii. on Lot 2 after 23 October 2011. (b) provide expert comments, if possible, on the nature of the vegetation in context of the overall site and the surrounding land and whether any of the trees and/or bushland vegetation fall within the Council's Tree Preservation Order; (c) any other matters contained in the affidavit evidence or materials with which I have been briefed to which I would like to respond."
Mr Elks states that he examined aerial photographs on the prosecutor's website together with data provided by Mr Drinnan. He states at [13] that the vegetation community on the site had been "structurally grossly altered since 1930" by site disturbance associated with clearing and gravel extraction before 1970 and secondly by ongoing fragmentation associated with the formation of tracks and clearing evident in aerial photographs that he identified as having been taken between 1984 and 2010.
His consideration of the extent of disturbance was relevant to the definition of "bushland vegetation", as reflected in cl 4 of the prosecutor's TBPO. As quoted from Mr Elks' report, bushland vegetation for the purpose of the Order (cl 4) was said to mean: "… vegetation which is either a remnant of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation. For the purposes of this sub-clause, bushland vegetation includes trees of any size, shrubs and/or herbaceous species …".
Having identified the relevant definition, the observations made from aerial photographs and the other data identified, demonstrating the extent of site alteration, including the removal of ironstone gravel from the soil profile, Mr Elks opined at [16]: "[that site alteration was] likely to result in significant changes to the soil structure, drainage and chemistry and favour a different type of vegetation, as noted by Mr Drinnan page 16 of his environmental assessment … ".
That opinion is repeated at [17] where Mr Elks writes: "It is my opinion the vegetation of the site and surrounds has been 'altered' and is no longer 'a remnant of the natural vegetation of the land' because of the major disturbances to the vegetation and soils and the likely changes to soil structure, drainage and chemistry and subsequent development of a different type of vegetation after mining." Reference is then made to a number of studies that are said to have addressed altered vegetation that occurs on sites following disturbance by "mining".
In her principal report, Dr Hazelton identifies its purpose as being to determine whether soils disturbed in the vicinity of the defendant's quarry (Site 1) "have similar texture, structure and chemical characteristics to the disturbed and undisturbed soils" (Site 2). Dr Hazelton identifies her familiarity with soils within the area, as well as visits to and investigations carried out at Sites 1 and 2. In her conclusion she opines "that the soil which has been disturbed because of gravel extraction at Benedict Quarry (Site 1), has similar textural, structural and chemical characteristics as the soils investigated in the Site 2 disturbed revegetated and undisturbed areas." That expression of opinion is clearly intended to be responsive to the opinion expressed in [16] and [17] of the report of Mr Elks. Indeed, in the paragraph of her report, immediately preceding her conclusion, she makes reference to a number of paragraphs of Mr Elks' report, including those to which I have referred.
It is unnecessary to recite in any detail the matters to which Mr Drinnan deposes in his affidavit and to which objection is taken. In what would appear to be a detailed way, Mr Drinnan seeks, in terms, to respond to those parts of the report of Mr Elks in which the latter is critical of or takes issue with opinions expressed by Mr Drinnan in his earlier affidavits. Mr Drinnan attempts to explain the bases on which his response is founded.
My consideration of the content of all four documents satisfies me, for the purpose of determining the prosecutor's motion, that the affidavit of Mr Drinnan and the two affidavits of Dr Hazelton upon which the prosecutor seeks to rely are, in substance, by way of response to the expert report of Mr Elks. In so concluding, I have read each of the four documents in question in a way sufficient to understand their general tenor, as the parties invited me to do. I have not undertaken a meticulous examination of each paragraph with a view to cross checking that paragraph with the content of the other three documents.
However, the conclusion that the affidavits for which the prosecutor seeks leave are responsive to the evidence of Mr Elks does not, of itself, resolve the issues between the parties. The defendant submits that even if the prosecutor's further evidence is seen to be responsive to the report of Mr Elks, the leave sought cannot, or at least should not, be given.

The defendant's submissions

The defendant submits that the Court cannot grant the leave that is sought by the prosecutor because to do so would constitute an abuse of process and would also involve the prosecutor splitting its case. Further, the defendant contends that "basic discretionary considerations warrant the refusal of leave". It is appropriate to record in more detail the matters advanced by the defendant in support of each of its three contentions.

Abuse of process

The defendant submits that to allow the prosecutor to rely upon the additional affidavits that it has served would be contrary to the purpose of Div 2A. Reliance is placed upon what is said to be the scheme of sequential disclosure made manifest by the provisions of that Division.
The procedure for the provision of evidence and disclosure are identified by the defendant as involving the following steps (Submissions at [54]): "(a) Step 1 involves the prosecutor providing all of its affidavits and expert reports as part of the notice of prosecution case under s247E. (b) Step 2 (essentially immaterial) is the provision of the s247F response by the defendant. (c) Step 3 (discretionary) is the provision of the s247J notice by the prosecutor. (d) Step 4 (also discretionary) is the provision of the s247K disclosure by the defendant. (e) Step 5 (also discretionary) is the provision of the prosecutor's response under s247L."
The defendant correctly submits that it is only after the prosecutor has made disclosure under s 247J that the defendant may then be required, as it was in the present case, to make the disclosure identified in s 247K. Although acknowledging the obligation for continuing disclosure imposed by ss 247L and 247O, following disclosure required under s 247K, the defendant submits that there is no provision expressly requiring or permitting the prosecutor to serve additional evidence, including that from experts, in order to address matters disclosed by the s 247K notice. While the obligation of continuing disclosure rests upon the prosecutor, that obligation does not extend to one "transformed into a right to adduce further evidence" (Submissions at [51]). Had the legislature intended that further expert evidence could be adduced by a prosecutor as a consequence of an expert report served by a defendant complying with a notice under s 247K(f), it would have been a simple matter for it to have done so. The fact that it has not so provided is said to support the defendant's submission.
The defendant further submits that once the five steps earlier identified, or at least those that have been the subject of direction by the Court, have been taken in the sequence identified, the proceedings should go to hearing without contemplating a return to Step 1 after Step 4 has been taken.
The abuse of process is said to arise by allowing the prosecutor "to take unfair advantage" of the defendant's disclosure in accordance with s 247K(f) (Submissions at [58]). The obligation on the part of the defendant to make a disclosure in accordance with that section involves an abrogation of the right to silence that, under the common law, the defendant would otherwise enjoy. It is submitted that the provisions of Div 2A should not be construed in a manner that interferes with that right of the defendant unless the provisions of the Division clearly and unmistakably manifest such an intention in unambiguous language (Coco v R [1994] HCA 15; 179 CLR 427 at 436-437). Consistent with that principle, the provisions of Div 2A should not be construed so as to permit that "unfair advantage" to the prosecutor by reason of the defendant's obligation to disclose, in advance of the trial, the expert evidence intended to be called at trial.

Permitting the defendant to split its case

The defendant submits that in seeking leave to rely upon the further affidavit of Mr Drinnan and the affidavits of Dr Hazelton, the prosecutor is impermissibly splitting its case (The Queen v Chin [1985] HCA 35; 157 CLR 671 per Gibbs CJ and Wilson J at 676; per Dawson J at 684). Where a defendant has provided an expert report pursuant to s 247K(f), expert evidence in reply cannot properly be sought unless exceptional circumstances of the kind identified in Chin are present.
The defendant contends that circumstances of that kind are constituted by a matter being raised in the defence case that could not reasonably have been anticipated by the prosecutor and which "reasonably would not have been expected to have been evidence forming part of the prosecution case." The exceptional circumstances identified in Chin, so it is submitted, are not here present because the evidence of Mr Elks raises no unexpected defence. His evidence, so it is submitted, goes to the elements of the offence. His report encompasses "an area of evidence" that the prosecutor would or ought reasonably to have anticipated and addressed in its evidence before the defendant was required to serve the Elks report.

Exercise of discretion warrants refusal of the prosecutor's application

On the issue of discretion, the defendant read the affidavit of Ernest Dupere, a director of the defendant. In essence, Mr Dupere's evidence is directed to the impact that the present prosecution is having upon the defendant, particularly its endeavours to have considered by the Department of Planning, an application for state significant development pertaining to the site that is the subject of the present prosecution. The prosecution is also said to be impacting upon an application made by the defendant to the Federal Court under s 24FA of the Native Title Act 1993 (Cth) and the consequent ability of the defendant to enter into a lease of the subject land with the Minister for Lands for the further conduct of its business. All of those processes were commenced some time before the present prosecutions were instituted.
In support of its submissions directed to the exercise of the Court's discretion, reference is made to the number of interlocutory steps that have been undertaken over a considerable period of time, including the fact that the prosecutor has served a number of notices under s 247E and found it necessary to supplement the evidence first filed when proceedings for each prosecution were commenced. That process, so it is submitted, is oppressive, causing prejudice to the defendant that is not remedied by the prosecutor's offer to pay the defendant's costs thrown away as a consequence of the making of the orders sought. Reference is made to the evidence of Mr Dupere in support of that submission.
If the leave sought by the prosecutor was to be granted, the defendant identifies as a consequence that it will have to consider further interlocutory steps including whether to engage a soil scientist; whether to require Mr Elks to address the additional affidavits of Mr Drinnan and whether further directions should be sought in relation to a further s 247E notice on the part of the prosecutor. All will involve delay and additional costs which are unfair, particularly in the circumstance that the discipline of soil science had never been raised by the prosecutor before the service of Dr Hazelton's report.
Further, the defendant submits that it is no "proper or adequate answer" to its contentions, opposing the grant of leave, for the prosecutor to contend, as it does, that it provided all of the affidavits and expert reports upon which it had in mind to rely and that it should not be called to account for not having provided the additional evidence because it had not contemplated evidence directed to matters that Mr Elks raises in his expert report. To the extent that such an approach may be seen as being sanctioned by the decision of Biscoe J in Benedict [No 1] at [29] and [30], the defendant submits that his Honour was wrong in that his observations were contrary to the principles enunciated in cases such as Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 per French CJ at [5]. The defendant contends that principles of that kind are embodied in the provisions of Div 2A.

The prosecutor's submissions

The prosecutor submits that the starting point for consideration of its application for leave is the fact that the evidence upon which it seeks to rely is in reply to the expert report of Mr Elks. For the reasons and upon the basis earlier stated, I accept this to be the case.
The prosecutor accepts that neither s 247L, requiring its response to the defendant's s 247K notice, nor any other provision of Div 2A expressly provides for the service of expert evidence in response to that which is the subject of the defendant's notice. However, it points to the provisions of Div 2A as serving the function of providing for preliminary disclosure and empowering the Court to case manage proceedings in Class 5 of its jurisdiction. So much is apparent from the provisions of s 247B. The provisions of the Division neither override the basic obligations of the prosecutor in the presentation of its case, nor do they affect a prosecutor's right to present a case in reply.
Understandably, the prosecutor accepts that it is obliged to present all its evidence before the defendant is called upon to make its defence and cannot split its case (Chin). However, whether the service by the prosecution of evidence in reply before trial and in accordance with directions given by the Court for the provision of evidence should be seen as involving a splitting of the prosecutor's case is not clear. Reference is made to the decision of the Court of Criminal Appeal in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487. Although not germaine to the decision ultimately made in that case, Gleeson CJ (Sheller JA and Badgery-Parker J agreeing) observed at 490 that the statement of a witness that was said to be responsive to evidence foreshadowed by a defendant and which the prosecutor proposed to lead in chief may have been complying with a general direction for the prosecutor's evidence to be served in advance of the trial. In support of that observation by the Chief Justice, the decision in Chin was cited.
In identifying the principle that the prosecution must not split its case, the prosecutor addresses the circumstance in which a case in reply may be granted and, conversely, its obligation to call, in chief, evidence addressing matters that it reasonably anticipates will address the case that the defendant seeks to make. Reliance is placed in that regard upon the judgments of the High Court in Chin.
In the joint judgment of Gibbs CJ and Wilson J, their Honours said (at 676): "Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case … and the need to give it could have been foreseen it will, generally speaking, be rejected."
Observations to the same effect were made in Chin by Dawson J (at 684-685). At 685 his Honour said: "The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proofs as, for example, where the defence of insanity is raised or evidence of good character is called by the accused. Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence."
The articulation of the principle in Chin, so the prosecutor submits, entitles, if not obliges, it to call the evidence which it seeks leave to serve. Having been made aware of the manner in which the defendant, through Mr Elks, will seek to deny the claimed injury to trees and bushland vegetation, as defined in the prosecutor's TBPO, it ought properly address evidence directed to the Elks report in the prosecution case.
The judgments in Chin also make clear that there is no bright line test to determine where the obligation to adduce evidence in the prosecution case ends and the entitlement of a prosecutor to call evidence in reply is enlivened. As Dawson J stated at 685, the High Court has declined to lay down any rigid formula "having regard to the multifarious directions which a criminal trial may take". The lack of any bright line distinction renders it fair, in the interests of justice, that the prosecutor have leave to serve the evidence upon which it seeks to rely so as to be in a position to call it as part of the prosecution case in chief, subject to proper objection to the evidence on any other basis.
Reference is made by the prosecutor to the continuing obligation for preliminary disclosure imposed by ss 247O and 247V. As has already been seen, s 247O imposes that obligation in terms. Section 247V is directed to case management once a trial has commenced. While subsection (1) enables the Court to make orders "as it thinks appropriate for the efficient management and conduct of the trial", subsection (2) enables the Court to order a party to disclose any matter "that was, or could have been, required to be disclosed" under Div 2A before the trial commenced.
Section 247N identifies the sanctions that may be imposed by a party who fails to disclose evidence to the other party in accordance with the requirements for preliminary disclosure imposed by or under Div 2A. The obligation of disclosure coupled with the sanctions for failure to comply with that obligation support, so the prosecutor submits, its application for leave to adduce the evidence that it identifies.
The judgment of Biscoe J in Benedict [No 1] is relied upon by the prosecutor to support its contentions. At [17] his Honour observed that no provision in Div 2A proscribed the service of supplementary evidence in the prosecution case following service of a s 247J notice. At [28] his Honour referred to the judgment of Gleeson CJ in State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487, where the Chief Justice made observations (at 492-493) as to the power being exercised by the trial judge in refusing to permit a prosecutor in a criminal prosecution to lead evidence in breach of a direction for the prior service of that evidence upon the defendant. At [28] Biscoe J said: "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."
By analogy, the prosecutor submits that it ought properly be permitted at this stage of proceedings, when no trial date has yet been fixed, to serve and rely upon evidence proposed to be called in chief, anticipating the expert evidence that the defendant may seek to lead.
Finally, recognising that in seeking to lead the further evidence, the exercise of discretion was required on the part of the Court, the prosecutor submitted that the evidence of Mr Dupere should not weigh against the making of the order sought by the prosecutor. That evidence was directed to the commercial interests of the defendant and, so it was submitted, such interests ought not prevail over the due administration of justice, having regard to the breaches of the law for which the defendant was being prosecuted.

Consideration

Substantially for the reasons advanced by the prosecutor, I consider that the prosecution should be given leave to file and serve the affidavits of Mr Drinnan and Dr Hazelton in anticipation that it will seek to lead that evidence-in-chief. My conclusion requires further elaboration.
The circumstance that the evidence for which leave is sought is responsive to the report of Mr Elks is significant. Contrary to the submission of the defendant, I do not regard the application to serve this evidence as an abuse of process by affording the prosecution an opportunity to adduce evidence that it ought to have served before the defendant was required to file its expert report conformably with its notice under s 247K(f). The defendant did not suggest that the earlier evidence served by the prosecution, if accepted on its face, did not disclose evidence of the elements of the offences with which the defendant was charged. Rather, Mr Elks has challenged the conclusions drawn from the ecological evidence served by the prosecution and based, as I understand it, upon the evidence of Mr Drinnan. In so doing, Mr Elks has not only identified changed soil characteristics from past activities on the subject site to support his conclusion, he has taken issue with a number of intermediate conclusions drawn by Mr Drinnan so as to undermine the ultimate conclusion of the latter. Whether Mr Elks is correct in so doing is for determination at trial.
However, it would be extraordinary if, as a matter of fairness, even in the context of a criminal trial, an expert called in the prosecution case could not respond, in the course of evidence, to challenges made by the defence to the analysis of fact and process of reasoning adopted by that expert. Indeed, the defendant's representative at trial would be expected to put in cross-examination of the prosecutor's expert witness, those matters that were claimed to undermine that expert's opinion. If the challenge so put was not accepted by the expert, he or she would have the opportunity, in the course of giving evidence, to explain why that challenge to the evidence was not accepted.
Significantly, the affidavit evidence for which leave is sought by the prosecutor signals to the defendant the manner in which the prosecution's experts would respond to elements of their evidence expected to be raised in the cross-examination of them. Certainly, that is the case in respect of Mr Drinnan. So regarded, the affidavits provide the defence with an advantage - one that may be seen to have been extended by s 247L. The position of Dr Hazelton will be addressed shortly. Obviously, that evidence also alerts the defence to the contest with its expert evidence, should it choose to lead that evidence.
It seems to me that the provisions of Div 2A, properly construed, are intended to address the situation described in the preceding paragraphs by ensuring that both prosecution and defence know the expert evidence that is likely to be led in each of their respective cases. Relevantly, the requirement that the defence disclose, in advance of trial, the report of an expert intended to be called, is the only evidence of any kind that the defendant can be required to disclose by way of preliminary disclosure (see "Note" to s 247N(1)). The manner in which expert evidence is to be addressed procedurally under Div 2A may therefore be seen to fall into a special or distinct category. It is reasonable to infer that the requirement for disclosure of such evidence by both sides was seen by the legislature as having the potential to reduce the time of trial, thereby fulfilling the purpose expressed in s 247B.
The provisions of s 247L support not only the particular or special emphasis given to expert evidence in Div 2A but also provides support for the contention that expert evidence by way of reply may properly be served as part of the prosecutor's obligation for preliminary disclosure. Although the provisions of 247L have earlier been quoted, the relevant provisions bear repeating: "247L Prosecution response to defence response - court-ordered preliminary disclosure For the purposes of section 247I(1)(c), the notice of the prosecution response to the defence response is to contain the following: (a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect, …".
Both the text and context of paragraph (a) of s 247L would require that something more than a broadly based statement that the expert report served by a defendant pursuant to 247K(f) is disputed. While the basis for disputing the expert report may, in a given case, be shortly stated, for example, that the author of the report lacks the expertise to express the opinions stated in the report, that will not always be the case. The requirement to state "in what respect" a report is disputed, may well require a detailed recitation of a number of respects in which the evidence is disputed by reference to the expert's analysis of evidence or process of reasoning which challenge the conclusion or opinion ultimately expressed by that expert. If the respect or respects in which the report is disputed are required to be stated, I cannot attribute to the legislature an intention that the prosecution should be denied the opportunity to adduce evidence or at least to serve evidence identifying those respects in which the expert evidence is disputed, assuming evidence of that kind would be necessary to make good the basis for dispute.
If that were not so, there would be cases, perhaps many, in which the notice given by the prosecutor under s 247L(a) would serve little purpose because evidence supporting the basis for dispute could not be led by the prosecutor. Unless the defendant concedes the validity of the respect in which the report is disputed or the author of the expert report concedes as much in cross-examination (assuming the defendant otherwise seeks to rely upon the evidence of that expert), the notice under s 247L(a) would have only limited utility. Given the purpose to be served by Div 2A, coupled with the specific requirements of s 247K(f) and 247L(a), I would not attribute to the legislature an intention that the latter section be given such limited utility.
The particular or special regime in Div 2A pertaining to expert reports is given further emphasis by s 247N(2). That subsection expressly empowers the court to refuse to admit expert evidence in proceedings if the party seeking to call the evidence fails to give the other party a copy of that expert's report in accordance with the requirements of preliminary disclosure. Read in context with s 247L(a), it seems to me that if it is necessary to make good by evidence the respects in which a defendant's expert report is disputed, the prosecution report supporting the basis of that dispute must be served upon the defendant.
Given the statutory scheme evident in Div 2A, the filing of further evidence responding to the defendant's expert evidence does not, as I have earlier said, constitute an abuse of process. This is not a case where the prosecution has been served with the defendant's expert evidence and either it has done nothing by way of response under 247L(a) or it has already filed evidence by way of response and, without more from the defence, now seeks to supplement that evidence. The application by the prosecutor for leave to serve the reply evidence does not engage any of the three categories of abuse of procedure identified by McHugh J in Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 286.
I have earlier acknowledged that the pre-trial procedures in the present case have been protracted. However, once having received the defendant's response under 247K(f) - a response that, at the request of the defendant, was delayed for some time - the prosecution acted promptly in serving the "reply" evidence and then, at the instance of the defendant, making the present application to serve and rely upon that evidence.
For reasons earlier summarised when addressing the prosecutor's submissions, I do not accept that the grant of leave to the prosecution to file the "reply evidence" allows the prosecution to split its case. This observation extends to the evidence of Dr Hazelton. As I have said, it was not contended by the defence that the earlier evidence served in the prosecution case did not address the elements of the offence.
In a sense, the evidence in the report of Mr Elks is by way of confession and avoidance. The historical loss of bushland vegetation that was on the site is accepted but, according to his evidence, that vegetation observed on the site during the charge period did not meet the definition of "remnant bushland vegetation" under the TBPO. One reason for so concluding, according to his evidence, is that past mining or extraction activity carried out on the land would have so altered the structure, drainage and chemistry of the soil that the vegetation on the land during the charge period could no longer be a remnant of the "natural vegetation" on that land.
It must be assumed, for present purposes, that the altered soil structure on the land and the consequence for "natural vegetation" growing in that soil prior to its alteration, occasioned by extraction of naturally occurring ironstone gravel, is a topic upon which Mr Elks had the necessary expertise to express an opinion. That opinion having been expressed in the defence report served pursuant to s 247K(f), it seems to me that the prosecution was entitled to reply by an appropriately qualified expert. On the face of her affidavit evidence, Dr Hazelton would appear to have that expertise.
The assumption that must necessarily be made that Mr Elks did have the necessary expertise to express the opinion that I have identified, undermines the submission made by the defendant that, if leave is given for the affidavit evidence of Dr Hazelton to be served, it will be necessary for the defence to consider engaging the services of a soil scientist. The expertise to address the material contained in the report annexed to Dr Hazelton's affidavit is available through Mr Elks.
In my opinion, the exercise of discretion favours the exercise of the leave that the prosecution seeks. That discretion arises because further evidence could not be filed as of right; it can only be filed as a consequence of leave being granted so to do (Benedict [No 1]). As Biscoe J said at [27]: "27 In 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: …".
The necessity for a party to seek and obtain leave in order to return to a step required to be taken along the path of preliminary disclosure under Div 2A is important. It gives effect to the case management role of the Court as expressed in s 247B(2). The control and management of case preparation through to and including the trial appropriately addresses the submission of the defendant that by allowing an identified step along the path to be retraced will necessarily result in that path taking a circular rather than the lineal route required by Div 2A. By appropriate case management, the Court can control deviation from and retracing of steps along the path but always with the ultimate destination in mind, namely the fair and efficient conduct of a summary trial.
As Biscoe J also determined in Benedict [No 1], the entitlement of a party to file further evidence after it has earlier purportedly complied with a notice for preliminary disclosure, is not foreclosed by the provisions of Div 2A. Although the defendant submitted that his Honour was wrong in so concluding, I respectfully concur in the conclusion reached and for the reasons stated by his Honour at [17].
Further, I do not accept the challenge made by the defendant to the observations of Biscoe J at [29] and [30] of Benedict [No 1] (Submissions at [43]). There, his Honour had indicated that the prosecutor, having been directed to file notices under ss 247E and 247J, including affidavits or statements to accompany those notices, will not be in breach of those sections by later seeking to file and serve additional affidavits or statements that it had not contemplated serving when the obligation so to do first arose. The defendant contends that his Honour's remarks in this regard are inconsistent with case management principles applying to both civil and criminal matters. Reference is made to the judgment of Gleeson CJ in State Pollution Control Commission v Australian Iron & Steel Pty Ltd and to the observations of French CJ in Aon Risk Services Australia Ltd v Australian National University.
I am unable to discern support for the defendant's contentions that his Honour was wrong and inconsistent with the dictum in those cases. In Australian Iron & Steel, the Chief Justice observed (at 492) that a failure by the prosecutor to comply with a direction for the filing of evidence afforded a discretion in the trial judge to exclude that evidence. The power to control and supervise proceedings was, according to the Chief Justice (at 493), to prevent unfairness leading to the prospect of refusing a prosecutor permission to lead evidence at trial "in an appropriate case".
While in Aon French CJ identified the principles and imperatives of modern case management, summarised at [5], his Honour acknowledged at [30] that the principles of case management "should not supplant the objective of doing justice between the parties according to law". To similar effect are the observations of the plurality who at [98] identified the paramount purpose of case management, as expressed in a provision similar to s 56 of the Civil Procedure Act 2005 (NSW), as being the "just resolution of [the] proceedings", a concept which includes "speed and efficiency". The plurality continued at [98] by acknowledging that "a proper opportunity" should be given to the parties "to plead their case, but [the rule] suggests that limits may be placed upon re-pleading, when delay and costs are taken into account."
Neither case referred to by the defendant supports the contention that the remarks of Biscoe J were "inconsistent with fundamental principles of case management". Both cases acknowledge the existence of a discretion, identifying factors relevant to its exercise. The present case, by analogy, engages the observation of the plurality in Aon that the prosecution should be afforded a reasonable opportunity to "plead" its case by responding to the expert evidence filed by the defence. It sought leave to do so at an early opportunity following service of the Elks report. There was no unreasonable delay on the part of the prosecution in so doing.

Conclusion

At [33] of his judgment in Benedict [No 1] Biscoe J said: "[33] The 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."
Those observations may appropriately be applied in the present case. For the reasons earlier stated, the legislative scheme contemplates, indeed requires, that the prosecutor identify the respects in which it disputes an expert report filed pursuant to s 247K(f). By serving the evidence that the prosecutor now seeks leave to file, it has not only sought to do so in a timely way, but gives the defendant the opportunity of knowing, in advance of the trial, the foundation for the issue taken by the prosecutor with the defence expert evidence, should that evidence be called following the close of the prosecution case.
For all these reasons, the leave sought by the prosecutor should be granted. As the grant of that leave may have a consequence for the process of further preliminary disclosure under Div 2A, I propose to stand the matter over to Friday 27 March 2015 for further directions. At that time the parties should bring to the Court for consideration either agreed or competing short minutes of orders and directions that they would then seek. On that date it is proposed that a date for trial be fixed, subject to any submission to the contrary that either party may then wish to make.

Costs

The prosecutor has undertaken to pay the defendant's costs thrown away as a consequence of the leave that it seeks. I propose to note this undertaking in the orders formally disposing of the prosecutor's notice of motion. However, having regard to the decision of the Court of Criminal Appeal in Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; 85 NSWLR 125 at [98]-[99], I do not believe that I presently have the power formally to order the prosecutor to pay the defendant's costs thrown away as a consequence of the leave that I propose to grant.

Orders

For the reasons that I have stated, I make the following orders: 1. Grant leave to the prosecutor to file and serve upon the defendant the affidavit of Ian Nolan Drinnan sworn 4 February 2014 and the affidavits of Pamela Anne Hazelton sworn 11 February 2014 and 26 February 2014 respectively. 2. Grant leave to the prosecutor to file and serve a supplementary notice under ss 247E and 247J of the Criminal Procedure Act 1986 reflecting its proposed reliance upon the affidavits referred to in Order 1. 3. Stand over the proceedings to Friday 27 March 2015 for directions. 4. Note the undertaking by the prosecutor to pay the defendant's costs thrown away as a consequence of the leave granted in accordance with Order 1.

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: 19 March 2015

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