Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 2)

[2012] NSWLEC 24

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 2) [2012] NSWLEC 24
Hearing dates:	21 February 2012
Decision date:	21 February 2012
Jurisdiction:	Class 5
Before:	Pain J
Decision:	The Defendant's application for a stated case to the Court of Criminal Appeal is refused.
Catchwords:	CRIMINAL - whether the Court should state a case to the Court of Criminal Appeal during part heard sentence hearing on plea of guilty
Legislation Cited:	Criminal Appeal Act 1912 s 5AE, s 5A(1A) (repealed) Uniform Civil Procedure Rules 2005 Sch 7
Cases Cited:	Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited [2012] NSWLEC 22 Gosford City Council v Aliton Pty Ltd [2002] NSWLEC 138 Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2000] NSWLEC 32 State Pollution Control Commission v Brownlie [1990] NSWLEC 86
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

EX TEMPORE Judgment

1. Section 5AE of the Criminal Appeal Act 1912 provides that questions of law during summary proceedings before this Court may be taken to the Court of Criminal Appeal as a stated case. Kyluk Pty Limited, the Defendant, seeks to have a case stated to the Court of Criminal Appeal before the completion of this sentence hearing.

1. The decision whether to state a case rests in the Court's discretion given that the request is by the Defendant rather than the Crown (if the Crown, s 5AE says the Court must submit the stated case). There is no guidance provided in the section in relation to the exercise of that discretion.

1. The questions of law, if that is what they be, in the draft stated case concern whether various errors of law arise from my decision in Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited [2012] NSWLEC 22 on a voir dire allowing admission in the sentence hearing of two expert reports in light of the Expert Witness Code of Conduct (the Code) in Uniform Civil Procedure Rules 2005 (the UCPR) Sch 7.

1. The Defendant submits that this is a live issue that ought be determined before the Court imposes sentence as a stated case now would reduce possible delay and expense in the future. If there is an appeal in the future following sentence the Court of Criminal Appeal is likely to remit the matter for further sentence by this Court occasioning delay and expense.

1. The Chief Executive, Office of Environment and Heritage, the Prosecutor, submits that the Defendant must establish that it will be prejudiced if the stated case is not made. The balance of convenience and the proper disposal of the proceedings must be weighed up.

Consideration

1. This application is made in relation to an interlocutory judgment on a voir dire concerning the admissibility of evidence in a sentence hearing where the Defendant has pleaded guilty to a charge. The voir dire concerned the nature of the evidence able to be considered on sentence, and the issue is the area of endangered ecological community cleared. I am not aware of any other cases in this Court where a stated case has been sought at this stage of a sentence hearing.

1. The Prosecutor referred to three cases which considered whether to apply for a stated case at different points in summary criminal proceedings before this Court.

1. Factors in Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2000] NSWLEC 32 considered by the trial judge included the importance of the point of law sought to be raised and the dearth of appellate authority in relation to the matters raised. In that case the prosecutor, being the Crown, was seeking to have a case stated after findings on guilt were delivered before final orders were made. The Court had no discretion because it was the Crown's application.

1. In Gosford City Council v Aliton Pty Ltd [2002] NSWLEC 138 a no case to answer application was made out by the defendant. In determining whether to state a case on that decision, in the exercise of his discretion Lloyd J considered he should not as there was no matter of general public importance raised.

1. In State Pollution Control Commission v Brownlie [1990] NSWLEC 86 an earlier version of s 5AE of the Criminal Appeal Act (s 5A(1A)) applied. Cripps J refused the application as he considered that the application for a stated case in the course of a hearing was premature, the matter had been allocated a number of hearing days and that this Court was established as a superior court of record to hear and dispose of proceedings in a summary manner.

1. Whether to grant a stated case must depend on the particular circumstances. The draft stated case concerns the admissibility of evidence which can go solely to the question of the area of endangered ecological community cleared in relation to the plea of guilty. The same general issues sought to be raised in the draft stated case can be raised in any subsequent appeal taken by the Defendant in these proceedings once sentence has been delivered. The exercise of the Court's discretion in the application of the Code in admitting expert reports in a particular case is not a matter of general public importance justifying a stated case at this stage. There is no particular saving of expense and delay whether I state the case now or the Defendant elects to appeal the case following the delivery of final sentence on the assumption that the Court of Criminal Appeal may well remit the matter back to this Court in either case. The Court has allocated a number of days to the determination of this matter and the efficient dispatch of Court business suggests these days should be used. There is no identified prejudice to the Defendant if I do not issue the stated case. These factors suggest that I should exercise my discretion to refuse the application for a stated case at this part heard stage of the sentence proceedings.

Order

1. The Court makes the order that the Defendant's application for a stated case to the Court of Criminal Appeal is refused.

Decision last updated: 27 February 2012