Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited
[2012] NSWLEC 22
•20 February 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited [2012] NSWLEC 22 Hearing dates: 16 - 17 February 2012 Decision date: 20 February 2012 Jurisdiction: Class 5 Before: Pain J Decision: The reports of Mr Tulau and Ms James the subject of the voir dire are admissible.
Catchwords: CRIMINAL - voir dire on admissibility of evidence - expert reports - application of Uniform Civil Procedure Rules 2005 Sch 7 "Expert witness code of conduct" - reports admissible Legislation Cited: Evidence Act 1995 s 56, s 79
Land and Environment Court Rules 2007 Pt 5 r 5.1, r 5.2
National Parks and Wildlife Act 1974 s 118A(2)
Supreme Court Rules 1970 Pt 75 r 3J
Threatened Species Conservation Act 1995 Sch 1 Pt 3
Uniform Civil Procedure Rules 2005 Pt 31 r 31.23, r 31.27, Sch 7Cases Cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 277 ALR 611
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
R v RTB [2002] NSWCCA 104
R v Skaf [2004] NSWCCA 74Texts Cited: B Craze et al, Soil testing procedures Department of Conservation and Land Management Category: Procedural and other rulings Parties: Chief Executive, Office of Environment and Heritage (Prosecutor)
Kyluk Pty Limited (Defendant)Representation: Mr J Glissan QC (Prosecutor)
Mr S Littlemore QC with Ms P Lane (Defendant)
Office of Environment and Heritage (Prosecutor)
McGirr James Hall (Defendant)
File Number(s): 50604 of 2011
Judgment
The Defendant is charged with committing an offence between about 11 June 2009 and 11 August 2009 pursuant to s 118A(2) of the National Parks and Wildlife Act 1974 in that it picked plants that were part of an endangered ecological community (the EEC), being "Shale/Sandstone Transition Forest in the Sydney Basin Region" as described in the Final Determination of the Scientific Committee (the Final Determination) to list the ecological community, which at the time of the offence was listed as an EEC in Sch 1 Pt 3 of the Threatened Species Conservation Act 1995. The Defendant has pleaded guilty to the charge.
The Final Determination contains a number of paragraphs (1 to 15). The focus of the parties' submission was paragraphs 1, 4, 9 and 10.
This is a judgment on a voir dire as to the admissibility of two experts' reports containing opinions of Mr Tulau, soil scientist, (exhibit A) and Ms James, botanist and ecologist, TAJ-5 (exhibit B) in the sentence hearing. Earlier reports prepared by Ms James which were served by the Prosecutor were not relied on being TAJ-2, TAJ-3, TAJ-4 and TAJ-6. Both experts were cross-examined about their respective reports.
Relevant rules of court
Part 5 of the Land and Environment Court Rules 2007 (Court Rules) applies to Class 5 proceedings: r 5.1. Rule 5.2 relevantly provides:
5.2 Application of other rules of court
(cf Supreme Court Rules, Part 75, rules 2, 3 and 6; Land and Environment Court Rules, Part 6, rule 2 (1))
(1) Parts 55 (Contempt) and 75 (Criminal proceedings) of the Supreme Court Rules 1970 apply, so far as applicable, to proceedings to which this Part applies.
(2) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings to which this Part applies:
...
(f) rules 31.3, 31.7, 31.11, 31.12, 31.21 and 31.22,
...
Supreme Court Rules Pt 75 r 3J relevantly provides:
3J Expert witnesses
(1) This rule and rule 3K apply to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act).
(2) For the purposes of this rule and rule 3K:
expert witness means an expert engaged for the purpose of:
(a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or
(b) giving opinion evidence in proceedings or proposed proceedings.
the code means the expert witness code of conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005 .
(3) Unless the Court otherwise orders:
(a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert must provide the expert with a copy of the code, and
(b) unless an expert witness's report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it:
(i) service of the report by the party who engaged the expert witness is not valid service for the purposes of the rules or of any order or practice note, and
(ii) the report is not to be admitted into evidence, and
(c) oral evidence is not to be received from an expert witness unless:
(i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and
(ii) a copy of the acknowledgment has been served on all parties affected by the evidence.
...
Uniform Civil Procedure Rules 2005 (the UCPR) Sch 7 "Expert witness code of conduct" (the Code) cl 5 states:
Schedule 7 Expert witness code of conduct
5 Experts' reports
(1) An expert's report must (in the body of the report or in an annexure to it) include the following:
(a) the expert's qualifications as an expert on the issue the subject of the report,
(b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),
(c) the expert's reasons for each opinion expressed,
(d) if applicable, that a particular issue falls outside the expert's field of expertise,
(e) any literature or other materials utilised in support of the opinions,
(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,
(g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).
The Defendant relied on UCPR Pt 31 r 31.23(1) and (3) and r 31.27(1)(f) which state:
31.23 Code of conduct
(1) An expert witness must comply with the code of conduct set out in Schedule 7.
(3) Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.
31.27 Experts' reports
(1) An expert's report must (in the body of the report or in an annexure to it) include the following:
...
(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,
Rules 31.23 and 31.27 of the UCPR which concern the Code and the content of experts' reports do not apply in Class 5 proceedings. Rule 5.2(2)(f) of the Court Rules state that UCPR r 31.3, 31.7, 31.11, 31.12, 31.21 and 31.22 apply. The Supreme Court Rules Pt 75 r 3J provides that unless the court otherwise orders experts are bound to comply with the Code.
Defendant's submissions
Mr Tulau
Mr Tulau's report fails to comply with Sch 7 cl 31.27 (1)(f) which requires that it must identify any tests or investigations on which Mr Tulau relied. Firstly, this was not done for the coarse particle size analyses relied on. That test was done by the Yanco Natural Resources Laboratory of the Prosecutor. The processes for undertaking the tests, chain of possession and the process of actual testing are not disclosed. The test results are not included in the report. According to the oral evidence the results were sent as an email, not attached to a report. Further there is no identification of who did the test and their qualifications, a further breach of cl 31.27(1)(f).
There is no discretion to waive compliance under UCPR r 31.27. Experts' reports must comply with the Code. There is no provision for an otherwise order as provided for in r 31.23(3). (As already noted these rules do not apply in Class 5 proceedings).
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] requires that an expert must establish the facts on which opinion is based in order to identify a proper foundation for it. That finding was adopted by Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 277 ALR 611 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ concurring). If no evidence is admitted to establish the basis of an opinion it may be concluded that the opinion evidence does not make it possible to assess whether it is capable of affecting the probabilities of the existence of a fact in issue.
Secondly, Mr Tulau's discussion of results in par 7 of the report reveals that his diagrams (Fig 8 and 9) are dependent on the undisclosed and hearsay particle size analyses.
Thirdly, his evidence is not probative because it is not capable of proving beyond reasonable doubt the fact in issue that he identified soil types relevant to the definition in the Final Determination. The only relevant samples are at sites 4 and 8 as referred to in table 7. In his oral evidence in relation to site 4 he said that perhaps the soil was transitional, said "indicated" not "was", said "consistent with" not "was", and said "could be characterised" as transitional. That evidence is incapable of proving the fact in issue because too qualified and therefore in breach of s 56 of the Evidence Act 1995 which requires that evidence must be relevant. Only unqualified opinions can be relevant. Mr Tulau's opinions expressed in his report and even more so orally were so qualified as to be neutral and therefore not probative of any fact per R v RTB [2002] NSWCCA 104 and R v Skaf [2004] NSWCCA 74.
Where the criminal standard of proof applies, evidence including opinion evidence that is incapable of proving the relevant issue beyond reasonable doubt is not probative and therefore inadmissible as irrelevant per s 56(2) of the Evidence Act. See Dasreef at [90].
Ms James
Report TAJ-5 cannot stand given that it expressly states that it is cumulative and that earlier reports should also be read in conjunction with it. These earlier reports are no longer relied on by the Prosecutor. As it cannot be a stand alone report it cannot be relied upon as a matter of logic.
Paragraph 7.2 of the report states:
My opinion as to the extent of these communities that were cleared on the property in 2009 is shown in Figures 1 & 2 and comprise an area of approximately 16 ha including 12.54 ha of SSTF and 3.6 ha of CPW.
This opinion as to area cannot be that of Ms James as she is relying entirely on Ms Byrne's calculation as set out in annexure 6. This opinion is inadmissible given Evidence Act s 79(1) and in light of Dasreef at [30] - [43] and [137]. Further the process of reasoning of Ms Byrne is not disclosed which is a failure to comply with cl 5(1)(f) of the Code.
Other submissions were made about weight to be attributed to this report if admitted but I do not need to consider these at this stage.
Prosecutor's submissions
This voir dire is made in the context of a plea of guilty whereby all the essential facts have therefore been admitted. It is not open to the Defendant to challenge the existence of the EEC. It is the area of the EEC that is in issue.
UCPR r 31.23 and r 31.27 do not apply in summary criminal proceedings in this court contrary to Defendant's submissions. Supreme Court Rules Pt 75 r 3J adopts the Code in Sch 7. This does not exclude the making of an otherwise order in summary criminal proceedings.
Each of the experts' reports complies with cl 5 of the Code but for the possible criticism in cl 5(1)(f) that the third party was not identified and/or its qualifications are not identified. In relation to Mr Tulau the issue is the extent to which his opinion is dictated by the soil tests. The tests confirm the field observations undertaken by him in any event. The Final Determination in par 1 identifies that the EEC occurs in a transitional zone between clay and sandy soils. Paragraph 9 refers to where the EEC occurs generally. There is uncertainty in the definition and in the definition of soil location. The language reflects the need to identify a range, and consistency with that range. His evidence fully satisfies the requirements of proof as identified in Makita .
Mr Tulau was subject to cross-examination. His methodology includes analysing aerial photographs identifying sandstone outcrops as seen in plates 32 and 34 and in Fig 10. This is confirmed with land forms and physical observation of the site. The photograph shows the clearing of boundaries and conclusions that are consistent with the Final Determination. His opinion is based on his own expertise.
Ms James' report can stand on its own as it is self-contained when read as a whole. She refers to two site inspections she undertook. Her opinion as to area expressed in par 7.2 is not dishonest as can be seen from par 3.2, annexure 6 and her oral evidence. Figure 2 on p 9 relies for arithmetical calculations on GIS mapping. Ms James placed the lines on the map. She states who did the calculations. The areas are stated to be approximate which is necessary given the subjective elements in the Final Determination.
Consideration
As the Defendant's counsel stressed, these are criminal proceedings in which the Prosecutor must prove those matters on which it relies beyond reasonable doubt. That said, as the Prosecutor identifies, the Defendant has pleaded guilty and therefore must be taken to have admitted the essential elements of the offence, namely that the EEC as specified in the charge was cleared during the period of the charge. At issue in this sentence hearing is the area of the EEC cleared.
The Defendant relied on UCPR r 31.27 as imposing mandatory requirements about which the Court has no discretion to allow breaches of the rule's requirements. As identified above at par 8 and as submitted by the Prosecutor, that rule does not apply in these summary criminal proceedings. Supreme Court Rules Pt 75 r 3J requires compliance with the Code in Sch 7 of the UCPR. Clause 5 of the Code is in the same terms as r 31.27 including subclause (1)(f) which requires that an expert report include any examination, test or other investigations on which the expert has relied including details of the qualifications of the person who carried them out. The parties agree that I can exercise my discretion to make an otherwise order providing for the admission of the experts' reports if I find a breach of the Code established.
Dasreef (majority) at [32] states that evidence that is tendered must satisfy two criteria to be admissible under s 79(1) of the Evidence Act (providing for expert opinion evidence to be admitted). The witness must have specialised knowledge based on the person's training, study or experience, and the opinion expressed must be wholly or substantially based on that knowledge. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. Heydon JA (as he then was) in Makita at [85] was approved in Dasreef (majority) at [37]. Makita states at [85]:
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, 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. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 (at [41]), on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise".
Mr Tulau
The Defendant submits that as Mr Tulau failed to include the email of the test results of the soil particle size analyses from the Yanco Natural Resources Laboratory of the Prosecutor and failed to include the name and qualifications of the person undertaking the test, he did not comply with cl 5(1)(f) of the Code. I agree with the Prosecutor that his report otherwise complies with cl 5 of the Code to the extent other parts apply. As the Prosecutor submitted Mr Tulau's report is consistent with Makita at [85]. His qualifications and expertise are identified, there is no challenge to his expertise. The facts on which he relied are identified, with further expansion of these in cross-examination, reasons are given for his opinion in the conclusion, and relevant literature is identified. In relation to the Defendant's criticism, par 5.1 of the report identifies that field inspections were carried out and soil samples taken from six sites and basic field measurements were taken including texture and field pH taken according to soil layer. The soils were also sampled according to soil layer. Samples for laboratory analyses were submitted to the Department's Yanco Natural Resources Laboratory through a documented chain of custody. Section 5.2 refers to the type of soil testing requested for fourteen samples taken from six sites using the methodology of B Craze et al, Soil testing procedures , Department of Conservation and Land Management and identifying the international scale for size ranges. Gravels were retained and returned to Mr Tulau for examination and characterisation. Section 5.3 refers to aerial photograph interpretation.
In cross-examination Mr Tulau was asked to clarify his opinion of consistency of soil type for sites 4 and 8, stating for site 4 this was perhaps transitional and the same for site 8. He considered both sites met the relevant criteria. He referred to the importance of undertaking aerial photograph interpretation to derive a spatial extrapolation. This together with soil testing is the definitive methodology required to determine soil type. He agreed that particle size analyses was critical to his analysis, which he did not personally carry out. He agreed the document identifying the results from the laboratory was not in his report. The Yanco Laboratory is accredited nationally to undertake soil analyses. He considered it was sufficient under the Code to identify the accredited laboratory. In relation to the weight of soil samples referred to in table 7 he weighed them, estimated their size and counted the soil fragments. He considered it was practical to map soil on this occasion as there was a clear outcrop of Hawkesbury sandstone which is the boundary of where transitional soil would be. In re-examination he was asked how much analysis is done in the field and how much in the scientific laboratory. Mr Tulau stated that the scientific laboratory tests support work done in the field with certain field tests used to identify texture. This does not arrive at a numerical result but can assist in determining if soil is sandy or clay based. He explained that he received back coarse fragments from the laboratory for his analysis of soil weight which was recorded in table 7. This data can be compared with data from other soil types. His oral evidence was that his conclusions were also drawn from his own analysis of soil samples.
I consider the breach of cl 5(1)(f) of the Code while more than technical is relatively minor when considered in the overall context of the report and the oral evidence of Mr Tulau concerning his methodology. While it is necessary according to the rule to identify the individual undertaking a test at the accredited laboratory, that accreditation presumably requires appropriately qualified staff to be present and to follow established procedures for receipt and testing of soil samples. Mr Tulau specified in his report the soil analysis methodology he wanted done (Craze et al). That omission appears minor. Of possibly greater significance is the absence of documentation establishing the chain of custody of soil fragments sent to the laboratory. Mr Tulau's sworn evidence is that he collected the soil samples himself from the site. The actual results provided by the laboratory were not included in his report. It is Mr Tulau's sworn evidence that the results he received are included in his report however. The laboratory data was part of several matters considered by Mr Tulau including aerial photograph interpretation and his own weighing of soil fragments returned from the laboratory. Considering his evidence as a whole the breach of the Code is not sufficient to warrant exclusion of his whole report.
A further objection of the Defendant was that the opinion evidence of Mr Tulau was too qualified to be probative and was therefore irrelevant under s 56 of the Evidence Act. Mr Tulau's evidence is not neutral in the sense referred to in RTB and Skaf , cases relied on by Defendant addressing quite different opinion evidence (medical) in a different factual context. I do not consider Mr Tulau's evidence can be characterised as neutral. His expression of opinion must be considered in light of the Final Determination including par 9 and par 10. As identified by the Prosecutor the descriptions of the EEC are qualified by using words such as "generally" in par 9 and par 10, reflecting the imprecise boundaries of transitional soil zones where the EEC may be located inter alia. The Defendant's submission in reply that cl 9 was descriptive only and not part of the definition in the Final Determination, which was identified only in par 1, 4 and par 10, is too narrow a reading of the whole of the Final Determination. The locational characteristics identified in par 9 are relevant to the identification of the EEC according to the expert Mr Tulau. He addressed these general descriptors as part of the matters considered. In these circumstances it is difficult to see why Mr Tulau's qualified opinion is not admissible. It does address appropriately a fact in issue about which he has expertise to express an opinion.
The Defendant's objections to Mr Tulau's evidence are not sustained. His report is admissible in its entirety.
Ms James
I consider Ms James' report can be read as a stand alone report when viewed in its entirety. It identified the methodology applied by her, the site inspections undertaken and the references relied upon. It does not fail as a matter of logic. There is no challenge to Ms James' expertise.
The adoption of Ms Byrne's opinion as to the area of EEC cleared estimated as 12.54 ha in par 7.2 as Ms James' own was heavily criticised by the Defendant as being misleading. I considered the criticism of the report in this regard was adopting a fine-tooth comb approach to the report which is not justified simply because these are criminal proceedings. Ms James' approach is entirely understandable when other sections of the report are given a fair reading. These refer to Ms Byrne's annexure 6 where figures for the area cleared are shown and identify that Ms Byrne did the GIS calculation for those areas (par 3.2). When read in context it is clear that Ms James is adopting that figure as the approximate area. It is Ms James' lines on the aerial photograph of where clearing occurred which informs the mathematical calculation carried out by Ms Byrne using a GIS system. According to Ms James' oral evidence this method is more accurate than her method of using a ruler and topographical map to calculate the area cleared. There is no criticism of the identification of the lines on the Fig 1 and 2 prepared by Ms James. This criticism of the report is not sustained.
A further criticism arising from the use of Ms Byrne's calculations is that there are no workings or explanation as to how these were undertaken or her qualifications, a breach of cl 5(1)(f) of the Code. As already noted I have discretion whether to admit a report where there is a breach. I consider this breach is technical in nature and should not prevent the report being admitted as a whole. The calculations are using GIS points on the aerial photographs marked up by Ms James to calculate the area cleared mathematically. Such a calculation can be done, roughly no doubt, in Court if necessary using a ruler. The approach using the GIS system is more accurate according to Ms James' oral evidence. That evidence in her report should be admitted in these circumstances.
The reports of Mr Tulau and Ms James the subject of the voir dire are admissible.
Decision last updated: 23 February 2012
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