Hornsby Shire Council v Henlong Property Group Pty Ltd

[2019] NSWLEC 16

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hornsby Shire Council v Henlong Property Group Pty Ltd [2019] NSWLEC 16
Hearing dates:	19 February 2019
Date of orders:	19 February 2019
Decision date:	19 February 2019
Jurisdiction:	Class 5
Before:	Robson J
Decision:	Prosecutor’s application to rely upon further expert evidence allowed
Catchwords:	PRACTICE AND PROCEDURE – criminal law – application by prosecutor to tender short reply to expert report   EVIDENCE – criminal law – prosecutor sought to tender comments on expert report – whether relevant – whether defendant unfairly prejudiced by tendering comments – tender allowed
Legislation Cited:	Evidence Act 1995 (NSW) ss 4, 135, 137
Category:	Procedural and other rulings
Parties:	Hornsby Shire Council (Prosecutor) Henlong Property Group Pty Ltd (Defendant)
Representation:	Counsel: D Jordan SC with G Lewer (Prosecutor) C R Ireland (Defendant)   Solicitors: Pikes & Verekers (Prosecutor) McKees Legal Solutions (Defendant)
File Number(s):	2017/00385910
Publication restriction:	No

Judgment

1. The defendant has pleaded guilty to an environmental offence against s 125(1) (as it was at the material time) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). On the first day of this Class 5 sentence hearing, Mr Jordan, senior counsel for the prosecutor, sought to rely upon a two-page document prepared by Dr Smith styled “Comments on David Robertson’s Statement of Evidence” (‘Dr Smith’s note’). Mr Ireland, counsel for the defendant, objected to the tender. Having considered the material, including the expert evidence that had been filed and served, and submissions made, I allowed the tender of Dr Smith’s note (which became Exhibit B) and deferred the giving of reasons. My reasons follow.

2. In accordance with earlier directions, both the prosecutor and the defendant had filed expert ecological reports (of Dr Peter Smith and Dr David Robertson respectively). Dr Smith’s primary report, attached to his affidavit sworn 23 March 2018, was provided to the defendant and in response the defendant filed Dr Robertson’s Statement of Evidence on 19 December 2018.

3. Mr Ireland’s submissions opposing the receipt of Dr Smith’s note may be shortly stated. First, given the directions made for the conduct of the proceedings including the filing of evidence (by Molesworth AJ in November 2018), the defendant was content, having provided the Statement of Evidence of Dr Robertson, for the sentence hearing to proceed without cross-examination of Dr Smith. Second, Dr Smith’s note (in its final form) was only provided a short time ago. Third, Dr Smith’s note does not comply with the expert witness code of conduct. Fourth, the Court’s receipt into evidence of Dr Smith’s note may affect the high level of utilitarian discount that the defendant applies for consequent upon the early plea of guilty. Fifth, there are differences in the material now sought to be relied upon by Dr Smith and his earlier material, in that he now raises matters regarding what may have happened if the clearing of the land had in fact complied with the deferred commencement condition. In these circumstances, Mr Ireland submits that (subject to a ruling being made pursuant to s 4 of the Evidence Act 1995 (NSW) (‘Evidence Act’)) Dr Smith’s note should be rejected having regard to ss 135 and 137 of the Evidence Act. Mr Ireland reiterates that there is no express subscription to the expert code of conduct although he acknowledges that Dr Smith subscribed to the code in his earlier affidavit.

4. Mr Jordan made short submissions. First, the issue of risk (which is further addressed by Dr Smith) is relevant in this sentencing matter because it addresses the risk of damage to ecologically-sensitive areas on the subject land. Second, there was no direction in relation to service of “reply” evidence by the prosecutor. Third, the prosecutor should be entitled to provide a response to the detailed material provided by Dr Robertson. Fourth, there is no material prejudice to the defendant because it has already obtained a response to Dr Smith’s note from Dr Robertson and, should Dr Smith’s note be admitted, the prosecutor raises no objection to the defendant relying upon this additional memorandum of Dr Robertson. Fifth, in summary, any additional material in Dr Smith’s note goes to matters of clear relevance, is confined in ambit, and is a response to Dr Robertson’s primary report.

5. Having considered the expert material of both Dr Smith and Dr Robertson, the detailed Statement of Agreed Facts, and having heard submissions, my reasons for admitting the evidence can be briefly stated:

1. The material in Dr Smith’s note is responsive to Dr Robertson’s detailed Statement of Evidence and goes to matters which are relevant;

2. Dr Robertson has already prepared a detailed response to Dr Smith’s note which has been provided to the prosecutor;

3. Although there was no direction for a response from Dr Smith to Dr Robertson’s primary report, in the circumstances, there is no material prejudice primarily because Dr Robertson has considered and replied to Dr Smith’s note; and

4. In the circumstances, having regard to ss 135 and 137 of the Evidence Act (noting that the application of these sections depends upon the Court giving a direction pursuant to s 4(2) of the Evidence Act), I am comfortable that the material in Dr Smith’s note is not unfairly prejudicial, misleading or confusing. Its receipt into evidence would not result in an undue waste of time. In relation to s 137 of the Evidence Act, and generally, it follows that I do not consider that there is any unfair prejudice to the defendant.

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Decision last updated: 08 March 2019