Director General Land and Water Conservation v Greentree

[2004] NSWLEC 466

Reported Decision: 135LGERA 277

Land and Environment Court

of New South Wales

CITATION:	Director General Land And Water Conservation v Greentree [2004] NSWLEC 466
PARTIES:	PROSECUTOR: Director General Land And Water Conservation DEFENDANT: Greentree
FILE NUMBER(S):	50039-42; 50053-54 of 2001
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- pre-trial direction that in pending criminal proceedings expert evidence in chief be given by affidavit rather than by oral testimony at the trial.
LEGISLATION CITED:	Land and Environment Court Act, ss 23, 41 Land and Environment Court Rules Pt 1 r 5B; Pt 6 r 2 Supreme Court Rules Pt 75 r 11 Criminal Procedure Act 1986, s 38
CASES CITED:	Butera v Director of Public Prosecutions for Victoria (1987) 164 CLR 180 AT 189; DJL v The Central Authority (2000) 201 CLR 226 at 240/241; Lane v Jurd (No 2) (1995) 40 NSWLR 708; Lindsay Owen v Lake [2000] NSWSC 1046; LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31; State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1993) 29 NSWLR 487
DATES OF HEARING:	19/08/2004
DATE OF JUDGMENT:	08/20/2004
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr R Cogswell SC, NSW Crown Advocate SOLICITORS State Crown Solicitor DEFENDANT: Mr S Littlemore QC with Ms Lane, Barrister SOLICITORS Pricewaterhouse Coopers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

20 August 2004

50039-42 of 2001 and Nos. 50053-54 of 2001 DIRECTOR GENERAL DEPARTMENT LAND AND WATER CONSERVATION v GREENTREE

JUDGMENT

HIS HONOUR

A. INTRODUCTION

1 By its Notice of Motion filed 11 August 2004, the Prosecutor sought certain interlocutory orders in these pending class 5 proceedings involving a number of prosecutions charging the Defendants with offences against the Native Vegetation Conservation Act 1997. The trial in respect of all of the charges, which are to be defended, is listed for five weeks commencing on 13 September 2004.

2 The only order ultimately claimed by the Prosecutor is that the evidence in chief of 13 nominated persons who are said to be expert witnesses, be given by affidavit.

3 In the case of each witness, the Notice of Motion particularises the evidence by reference to the sworn date of each affidavit. In some cases, it is the whole of the particularised affidavit and in other cases it is specified paragraphs of the particularised affidavit.

4 The order is opposed by the Defendants on a number of grounds, but principally upon the ground that the Court lacks the power to make the order claimed in the Prosecutor’s Notice of Motion.

5 With the concurrence of the parties, the argument on the opposed Motion has been confined to the sole question whether the Court has, or has not, the power to make the order. In adjudicating upon the competing arguments, I have proceeded upon the assumption that each of the 13 nominated witnesses is relevantly an expert witness and that the nominated affidavits express expert opinion evidence. (In this respect, I should note that the Defendants are likely to challenge the correctness of these underlying assumptions in the event of the Court holding that it is vested with the requisite power to make the order claimed by the Prosecutor.)

6 The Prosecutor identified the following three sources of power—both statutory and implied—which it claimed would authorise the making of the order sought—

(i) the Land and Environment Court Act 1979 , s 23 (the LEC Act) which provides as follows:
Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.


(ii) The Rules of Court Pt 1 r 5B and Pt 6 r 2 which respectively provide:
Part 1 r 5B
(1) The Court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appears convenient (whether or not inconsistent with the rules) for the just, quick and cheap disposal of the proceedings.
(2) Without limiting the generality of subrule (1) orders and directions may relate to:
(a) the filing of pleadings,
(b) the defining of issues, including requiring counsel or the parties to exchange memoranda in order to clarify issues,
(c) the provision of any essential particulars,
(d) the making of admissions,
(e) the filing of lists of documents, either generally or with respect to specific matters,
(f) the delivery or exchange of experts’ reports and the holding of conferences of experts,
(g) the provision of copies of documents, including the provision in electronic form,
(h) the administration and answering of interrogatories, either generally or with respect to specific matters,
(i) the service and filing of affidavits or statements of evidence or documents to be relied on by a specified date or dates,
(j) the giving of evidence at the hearing, including whether evidence of witnesses in chief shall be given orally, or by affidavit or statement, or both,
(k) the use of telephone or video conference facilities, video tapes, film projection, computer and other equipment and technology,
(l) the provision of affidavit evidence by specified persons in support of an application for an adjournment,
(m) a timetable with respect to any matters to be dealt with.
Pt 6 r 2
Proceedings in Class 5
(1) Division 2 of Part 75 of the Supreme Court Rules 1970 is taken to form part of these rules and to apply to proceedings in Class 5 of the Court’s jurisdiction with such adaptations as may be necessary including the following:
(a) a reference to the Supreme Court is taken to be a reference to the Court,
(b) a reference to a Judge of the Supreme Court is taken to be a reference to a Judge of the Court,
(c) a reference to an officer of the Supreme Court is taken to be a reference to the officer of the Court whose functions most nearly approximate those of the officer of the Supreme Court,
(d) a reference to a provision of the Supreme Court (Summary Jurisdiction) Act 1967 is taken to be a reference to the corresponding provision, if there is a corresponding provision, of Division 5 of Part 4 of the Act,
(e) a reference to a plaintiff is taken to be a reference to a prosecutor,
(f) a reference to a defendant is taken to be a reference to a person alleged in an application to have committed an offence punishable in the Court in its summary jurisdiction.
(2) Despite subrule (1) a summons seeking an order pursuant to section 41 of the Act is to be accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offence charged.

The adopted provisions of the Supreme Court Rules Pt 75 include Rule 11 which provides as follows:
Pre-trial procedures
(1) The procedures prescribed by this rule shall be complete before the trial of a case commences.
(2) This rule does not apply where the person charged with an offence pleads guilty to the offence or where the Judge dismisses the charge under section 249 (1) or 251 of the subject Act.
(3) In this rule, "trial" includes the hearing and determination of the case and the adjudication on the case under section 250 (a) of the subject Act.
(4) The Judge may, of his own motion or on the application of a party:
(a) make orders and give directions for the just and efficient disposal of the proceedings,
(b) without limiting the generality of paragraph (a), make such orders and give such directions as may be appropriate relating to:
(i) the giving by the plaintiff to the defendant of particulars or further and better particulars,
(ii) the giving by the plaintiff to the defendant of a list of persons who it is expected will be called to give evidence at the trial or, if the Judge thinks fit, who have made statements in writing but who it is expected will not be so called,
(iii) the giving by the plaintiff to the defendant of a copy of any statement made in writing by any person whose evidence it is expected will be given at the trial or, if that person has not made a statement in writing or if the Judge thinks fit, of a summary of the evidence which it is expected he will give at the trial,
(iv) the giving by the plaintiff to the defendant of a list of documents or things which it is expected will be tendered in evidence at the trial,
(v) the giving by the plaintiff to the defendant of copies of documents,
(vi) inspection by the defendant of documents or of property,
(vii) evidence, including evidence under section 69 of the Evidence Act,
(viii) any admission or consent of the defendant under section 184 of the Evidence Act 1995 , and
(ix) any alibi.
(5) The procedures prescribed by this rule are completed when the Judge certifies that in his opinion the pre-trial procedures prescribed by this rule have been completed.

(iii) the implied and incidental powers vested in the Court exercising the jurisdiction conferred upon by the LEC Act: cf the following passage from the joint judgment of the High Court of Australia in DJL v The Central Authority (2000) 201 CLR 226 at 240/241:

The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is unable to draw upon the well of undefined powers which were available to those courts as part of their inherent jurisdiction [74] . The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute has powers expressly or by implication conferred by the legislation which governs it and [t]his is a matter of statutory construction ; it also has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred [75] . It would be inaccurate to use the term inherent jurisdiction here [76] and the term should be avoided as an identification of the incidental and necessary power of a statutory court [77] .

[74] Grassby v The Queen (1989) 168 CLR 1 at 16. See also Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at 451-452.
[75] Parsons v Martin (1984) 5 FCR 235 at 241. The judgment was that of Bowen CJ, Northrop and Toohey JJ.
[76] R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7.
[77] Parsons v Martin (1984) 5 FCR 235 at 241.

7 The Prosecutor referred to the following extended passage from the joint judgment of the High Court of Australia in Butera v Director of Public Prosecutions for Victoria (1987) 164 CLR 180 at 189 to 190—

The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence. And there are, of course, logistical and financial obstacles to the provision of general transcripts for each juror. If the general body of evidence is given orally, a written transcript of a part of the evidence available in the jury room tends to give an emphasis and perhaps an undue air of credibility to that part. In Driscoll v The Queen [33] this problem arose with respect to unsigned records of interview which, according to police evidence, an accused had adopted orally. Gibbs J, with the concurrence of Mason and Jacobs JJ, said [34] :
The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight. For these reasons, it would appear to me that in all cases in which an unsigned record of interview is tendered the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded .
The general rule that witnesses must give their evidence orally is not without exception. In Smith v The Queen [35] , a chart had been prepared by a witness to explain complicated business transactions. The chart was admitted in evidence, though what it showed could have been described -- albeit laboriously -- in oral evidence. This Court [36] agreed with the view expressed by the Court of Criminal Appeal (sub. nom. Reg. v Mitchell [37] ) that the chart was rightly admitted:
The chart was nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless after considerable time they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts.

The practice of requiring witnesses to give their evidence orally should not be waived lightly, especially if there be a risk that writing will give undue weight to that evidence to the disadvantage of an accused person. But the practice is not immutable. If a witness writes out a proof of his evidence and swears to its truth or if a written transcript of part of the witness' oral evidence is produced, and if the task of the jury can be facilitated by admitting the document in evidence, there is no absolute bar against doing so. For example, a written document may prove more convenient than oral evidence as a foundation for cross-examination upon its contents or it may be a valuable aide-memoire for the jury in a case where precise recollection of words is important. In every case, even when an accused consents to the admission of the document, the trial judge should bear in mind the overriding consideration of fairness to the accused and the risk involved in allowing the document to be taken into the jury room. A further relevant consideration is the risk that documentary evidence may impair public understanding of the proceedings.

[33] (1977) 137 CLR 517.
[34] (1977) 137 CLR, at p 542.
[35] (1970) 121 CLR 572.

8 Senior Counsel for the Defendants, in his competing argument submitted that the Prosecutor’s argument was fundamentally flawed because it totally ignored the relevance to the question under discussion of the operation and effect of the Evidence Act 1995.

9 In this respect, Senior Counsel for the Defence submitted that the underlying assumption of the provisions of the Evidence Act (and in particular Chapter 2 “Adducing Evidence”) was that evidence at a criminal trial would be given by oral testimony. This assumption, it was submitted, accorded with the long established practice of adducing oral evidence at criminal trials, expounded by the High Court in Butera.

10 Senior Counsel for the Defence drew attention to the Evidence Act, s 190 which empowers the Court with the consent of the parties, to dispense with the application of specified provisions of the Evidence Act, but noted that the Defendants did not so consent, so that there was no warrant for dispensing with the relevant provisions of the Evidence Act for the adducing of evidence at the trial.

11 So far as concerned the Prosecutor’s suggested sources of power vested in the Court, Senior Counsel for the Defendants submitted that nothing in or under the Rules of Court would oust the application of the Evidence Act and that since the provisions of that Act were enacted later than the LEC Act, s 23, the particular provisions of the Evidence Act should prevail over the general provisions of the earlier Act in the event of conflict between the two Acts.

C. ADJUDICATION ON DISPUTED QUESTION

12 In adjudicating upon the competing submissions, it is right to commence consideration by recognising the long established practice for the adducing of oral evidence at a criminal trail, as expounded in Butera.

13 To similar effect is the following extract from par 17070 of Cross on Evidence: 6th Australian Edition:

The essential feature of the adversary or accusatorial system of justice is the questioning of witnesses by the parties or their representatives, summoned for the most part by them, and called mainly in the order of their choice before a judge acting as umpire rather than as inquisitor.

14 However, these time honoured past practices are not invariable or immutable and it is also apparent that there are modern trends which recognise the appropriateness of different means of adducing admissible evidence. For example, in relation to civil trials, see the judgment of Barret J in LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31 and in relation to criminal trials, see the important changes made to the Criminal Procedure Act 1986, by the series of cognate amending Acts enacted at the end of 2001 concerning case management of, and pre-trial disclosures in, criminal proceedings .

15 Moreover, as Hodgson JA when Chief Judge in Equity observed in Lindsay Owen v Lake [2000] NSWSC 1046, speaking of s 32 of the Evidence Act:

Section 32 appears to be directed to a situation where oral evidence is being given in court, and a witness is invited during that oral evidence to use a document to revive memory. It does not directly appear to relate to evidence given by affidavit. In fact, the Evidence Act as a whole does not in terms deal with giving evidence by affidavit or witness statement. In my opinion, the Evidence Act does not exclude evidence being given by affidavit or witness statement. This is a long-standing and indeed increasing practice of this Court, especially in the Equity Division. I think ss.9, 11 and 52 of the Evidence Act make it clear that the Evidence Act does not preclude the giving of evidence by affidavit or witness statement. However, I think the Evidence Act does apply to evidence given by affidavit or witness statement, so far as its terms are applicable to that kind of evidence. Certain provisions of the Act would not apply because they are apt only to evidence given orally in court, for example, s.37 relating to leading questions.

16 While McLelland Chief Judge in Equity in Lane v Jurd (No 2) (1995) 40 NSWLR 708 held that the Evidence Act provision concerning the non-admissibility of evidence prevailed over an inconsistent rule of the Supreme Court, the disputed question that I am adjudicating upon does not truly raise any question of conflict between a provision of the Evidence Act and a provision of the Rules of this Court concerning any question of the admissibility of evidence. Rather, like Barrett J in LMI Australasia, I would understand the relevant question not to involve the admissibility of evidence, but “the way in which evidence might most appropriately be tendered or adduced”.

17 Moreover, the undoubted powers vested in the Court to control the conduct of proceedings before it and to control its own procedures are expressly recognised by the Evidence Act, s 11 which provides as follows:

General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

18 In this respect, the following passages in the judgment of Gleeson CJ at 492/493 in giving the decision of the Court of Criminal Appeal in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1993) 29 NSWLR 487 demonstrate that failure to comply with pre-trial directions given by this Court may result in the exclusion at the trial of otherwise admissible evidence:

Failure to comply with directions of the kind with which we are concerned gives the trial juge 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: Hamilton v Oades (1989) 168 CLR 23 at 31: Kuruma v The Queen [1955] AC 197 at 204. 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.

19 Having established the proper relationship and interplay between the operation of the Evidence Act and the powers vested in this Court to control its own procedures (including pre-trial procedures) and the conduct of proceedings, it follows in my opinion that the sources of power identified by the Prosecutor are relevantly available to the Court and those powers are capable of sustaining the type of order as sought by the Prosecutor, if the Court were satisfied on the merits of the application (which have not yet been debated) that such an order is an appropriate pre-trial order to be made.

20 Moreover, on the stated assumption that all of the evidence embraced by the order sought is expert evidence, the Prosecutor’s case for the making of the order would appear to be strengthened since it is conventional for expert opinion evidence to be adduced in chief in the form of a written report by the expert: cf Chapter 20 of the Law of Expert Evidence (1999) by Freckelton and Selby.

21 This last-mentioned consideration promotes a question which was not explored during the argument. The question is whether it is necessary for the expert evidence proposed to be adduced at the trial to comply with the current requirements of this Court relating to evidence by expert witnesses.

22 The same question also is raised in relation to Rules 3J and 3K which were introduced into the Pt 75 of the Supreme Court Rules by Amendment No 363 published on 30 August 2002 and which provide as follows:

Rule 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 K.
(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.
(4) If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness:
(a) the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report, and
(b) the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with.
(5) This rule does not apply to an expert engaged before this rule commences.


Rule 3K Conference between experts
(1) The Court may do any or all of the following, with the consent of the parties:

(a) direct expert witnesses to confer (whether before or during a trial or other proceedings),
(b) specify the matters on which they are to confer,
(c) direct that they provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement,
(d) direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively,
(e) give any additional directions as may be considered necessary.
(2) An expert who is the subject of an order made under subrule (1) may apply to the Court for further directions.
(3) The content of the conference between the expert witnesses is not to be referred to at the hearing or trial unless the parties affected agree.
(4) The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court.
(5) Where, pursuant to this rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed.

23 It is to be noted that Rule 3J is expressed to “not apply to an expert engaged before this rule commences”: vide subrule (5). In this respect, it is also to be noted that many of the affidavits intended to be embraced by the order sought by the Prosecutor pre-date the commencement of Rule 3J.

24 My referring to Rule 3J of Part 75 is not to be taken as an incidental reference. Rather, it would appear to be a necessary reference in view of the provisions of the Criminal Procedure Act 1986, s 38 which provides as follows:

Hearing procedures to be as for Supreme Court
In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence.

25 The Criminal Procedure Act, s 38 (which applies to criminal proceedings and criminal courts generally: vide s 28) replaced (as from 7 July 2003) a counterpart provision originally contained in the LEC Act, s 46 (which section together with most of the other provisions of Div 5 of Pt 4 of the Act were repealed on 7 July 2003).

26 There are, however, some important textual differences between the original and the replacement statutory provisions. In particular, the direction contained in the Criminal Procedure Act, s 38 is not expressed to be “subject to the Land and Environment Court Act and the Rules” as was former LEC Act, s 46. Conversely, the direction now found in s 38 is that the procedure and practice of the Supreme Court for a trial on indictment, apply “as far as practicable”.

27 Importantly Rules 3J and 3K of Part 75 of the Supreme Court Rules apply to “all criminal proceedings” in the Supreme Court, including trials on indictment (see the Third Schedule to the Supreme Court Act 1970).

28 This suggests that the requirements of Rules 3J and 3K of Part 75 may apply to at least those parts of the overall expert testimony which the Prosecutor intends to adduce where the relevant expert was engaged after the date when Rules 3J and 3K were introduced into Part 75 of the Supreme Court Rules “unless the Court otherwise orders”: vide Rule 3J(3).

29 In the light of these particular provisions of the Supreme Court Rules Part 75 applying to trials on indictment which are made relevant by the statutory direction contained in the Criminal Procedure Act, s 38 as to procedure to be followed in this Court in criminal proceedings, it probably will not be appropriate to make, without some necessary modifications, the order sought by the Prosecutor that the identified expert evidence in chief be adduced by affidavit, even if on the hearing of the merits, the Court were to find in favour of the Prosecutor.

D. CONCLUSIONS

30 For all of the foregoing reasons, I would hold that the Court is vested with the requisite power to make a pre-trial order of the kind sought by the Prosecutor, subject to any modification to the order that may be necessary, in consequence of the application of Rules 3J and 3K of Pt 75 of the Supreme Court Rules.