Port Macquarie - Hastings Council v Lawlor Services Pty Limited, Port Macquarie - Hastings Council v Petro (No 1)

[2007] NSWLEC 323

Land and Environment Court

of New South Wales

CITATION:

Port Macquarie – Hastings Council v Lawlor Services Pty Limited, Port Macquarie – Hastings Council v Petro (No 1) [2007] NSWLEC 323

PARTIES:

PROSECUTOR
Port Macquarie – Hastings Council
FIRST DEFENDANT
Lawlor Services Pty Limited
SECOND DEFENDANT
Edmund Petro

FILE NUMBER(S):

50031 of 2006, 50006 of 2007

CORAM:

Pain J

KEY ISSUES:

Evidence :- Admissibility - opinion evidence - lay opinion - whether evidence able to be received under section 78 Evidence Act 1995 - whether council officer can give estimate of number of trees removed from land between two dates

LEGISLATION CITED:

Evidence Act 1995 s 76, s78, s135

CASES CITED:

Guide Dog Owners’ and Friends’ Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527 ;
R v Leung (1999) 47 NSWLR 405 ;
R v Panetta (NSWCCA, Hunt CJ, Hulme J and Graham AJ, 2 October 1997, unreported) ;
Smith v The Queen (2001) 206 CLR 650

DATES OF HEARING:

30 May 2007

EX TEMPORE JUDGMENT DATE:

30 May 2007

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr I Hemmings
SOLICITOR
Donovan Oates Hannaford

FIRST DEFENDANT
Mr T Hale SC
SOLICITOR
Falvey Associates
SECOND DEFENDANT
Mr J Maston
SOLICITOR
Falvey Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 May 2007

50031 of 2006, 50006 of 2007 Port Macquarie – Hastings Council v Lawlor Services Pty Limited, Port Macquarie – Hastings Council v Petro (No 1)

EX TEMPORE JUDGMENT

1 Her Honour: I heard argument this morning about objections raised by both Defendants in relation to evidence sought to be adduced from Ms Davine, the Prosecutor’s planning officer. The basis of the objection is s 76 of the Evidence Act 1995 which prohibits opinion evidence.

2 The issue is whether or not Ms Davine can give her estimate of the number of trees destroyed on land on which the offence is alleged to have occurred between particular dates. The particulars of the offence as itemised in the summons are that approximately 1000 trees have been removed between two dates. The evidence is that the area of land on which the offence is said to have taken place is 23 hectares.

3 In response the Prosecutor has relied on s 78 of the Evidence Act which provides:

The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

4 I was referred to a number of decisions where s 78 is considered. In Smith v The Queen (2001) 206 CLR 650 Kirby J states at [60]:

The Australian Law Reform Commission's report makes it clear that this provision of the Act was addressed, essentially, to the opinion of eye-witnesses. It exists to allow such witnesses to recount, as closely as possible, “their original perception [so as] to minimise inaccuracy and encourage honesty”. It is important to note that the requirements for the applicability of s 78 of the Act are cumulative (and). Neither the language of the Act governing the reception of lay opinion evidence, nor the purposes of those provisions as explained by the Commission, justifies treating the opinions expressed by the two police officers as falling within a permissible exception. [footnote omitted]

5 In R v Leung (1999) 47 NSWLR 405 Simpson J at [31] identified the questions raised for admissibility of an opinion under s 78 as follows:

…

(i) what is the ‘matter or event’ relevant to the proceeding?
(ii) has the witness seen, heard or otherwise perceived something about the ‘matter or event’?
(iii) has the witness formed an opinion based on what he/she saw, heard or otherwise perceived about the ‘matter or event’?
(iv) is evidence of that opinion necessary to obtain an adequate account or understanding of the witness’ perception of the ‘matter or event’?

6 Sackville J in Guide Dog Owners’ and Friends’ Association Inc v Guide Dog Association (NSW & ACT) (1998) 154 ALR 527 at 530 - 531

The following propositions appear to have been adopted in relation to s 78:

1. Section 78 is concerned only with the non-application of the opinion rule. If evidence cannot be characterised as opinion evidence, neither s 76 nor s 78 of the Act applies: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 32) (1996) 64 FCR 73 (FCA/Lindgren J), at 75; Hughes Aircraft Systems International v Air Services Australia (No 3) [1998] ATPR 41-612 (FCA/Finn J), at 40,712 - 40,713 (a case in which the exclusionary power in s 135 of the Act was exercised).

2. Section 78 substantially alters the common law, by permitting lay opinion to be given by a person whose opinion is based on what the person saw, heard or otherwise perceived about a matter or event. While lay opinion evidence was admissible in certain classes of cases under the common law (see Cross on Evidence (5th Aust ed 1996), par 29090), s 78 expands the scope for such evidence: R v Panetta , 2 October 1997, unreported (NSW CCA), at 4, per Hunt CJ at CL.

3. As foreshadowed by the Law Reform Commission, s 78 should be construed as requiring a rational basis for the opinion before it becomes admissible: R v Panetta , at 5. Such a requirement is imposed through ss 55 and 56 of the Evidence Act.

4. Section 78 permits the opinion to be admitted without there being evidence of the primary facts upon which the opinion is based, although the absence of such evidence may affect the weight to be given to the opinion: R v Harvey , 11 December 1996, unreported (NSW CCA), at 5, per Beazley J (another case in which the evidence was excluded on the ground that its probative value was outweighed by its prejudicial effect).

7 Smith v The Queen and Guide Dogs refer to the Australian Law Reform Commission, Evidence (Interim) Report No 26 (1985), which is also referred to in Stephen Odgers, Uniform Evidence Law (7th Edition 2006) at p 281, particularly [739] – [740] of the Report which states:

At present lay opinion evidence is conventionally said to be inadmissible unless it fits within an apparently anomalous miscellany of “exceptions”. The main factors that these share are that they can be said to be shorthand expressions of fact based on the witness’s perceptions and that it has been seen by the courts as convenient to allow the expression of opinion in their case rather than to insist upon a lengthy, and possibly not particularly helpful, recitation of facts. The ultimate criterion for admission of opinion evidence should be whether it will assist the trier of fact in understanding the testimony, or determining a fact in issue. To be of the requisite assistance, the lay opinion evidence must be based on the witness’s personal perception of a matter or event. Against the admission of such evidence must be balanced time and cost factors, the danger of the evidence misleading or confusing the tribunal of fact and the possibility of it being more prejudicial than probative. Thus, it is proposed to admit lay opinion testimony where it is based upon the personal perception of the witness and it is necessary to obtain an adequate account of his perceptions. The proposal, therefore, revives the original rationale based on the distinction between opinion based on the witness’s perception and mere uninformed speculation. Consideration was given to including the express requirement that the opinion be rationally based. Arguably, however, this is the way the clause would be interpreted. If it is not, the second requirement – that it be necessary to obtain an adequate account of the witness’s perception of the relevant event – should provide sufficient protection.

8 To the extent there may be perceived to be a difference between the obiter remarks of Kirby J who alone in the decision in Smith v The Queen considers s 78, and Sackville J in Guide Dogs, I consider Sackville J should be followed in relation to his consideration of s 78, as he outlines at 530 - 531 his judgment.

9 I consider the requirements of s 78 are potentially met. I say “potentially” because given the stage at which the objection was raised by the Defendants the nature of the opinion to be expressed is yet to be specifically adduced. Nor has the basis for the opinion been adduced so that I cannot at this stage conclude whether the opinion has a rational basis which would also be an essential element ultimately as to how probative its value is. I anticipate these are matters which we will come to in the course of the hearing.

10 In addition to the findings of Sackville J in Guide Dogs I consider the steps identified by Simpson J in Leung at [31] are met in this case so that:

(i) the matter or event is the result of clearing of trees between two specified dates;

(ii) the witness has formed an opinion based on what she saw and perceived about that matter;

(iii) that opinion is necessary to obtain an adequate account or understanding of the witness’ perception of the matter or event.

11 That opinion facilitates the understanding of the evidence otherwise relevant or admissible in these proceedings as noted and applied by Simpson J. The matter or event as perceived by the witness is clearly relevant to these proceedings and satisfies s 55 of the Evidence Act.

12 It has to be demonstrated the opinion has a rational basis and at this stage I cannot determine that issue, and I note that if my decision is to allow this evidence the Defendants have argued that a voir dire should be held as identified in R v Panetta (NSWCCA, Hunt CJ, Hulme J and Graham AJ, 2 October 1997, unreported) per Hunt CJ. I agree.

13 The last matter I should consider is whether I should apply s 135 of the Evidence Act which provides:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.

14 The Defendants in relying on s 135 place particular reliance on the decision of Sackville J in Guide Dogs where his Honour held that the opinion was admissible under s 78 but did not allow the evidence under s 135 because he considered it was unfairly prejudicial. The balancing exercise required by the application of s 135 must be exercised in the context of each particular case. There are important differences between this matter and the proceedings before Sackville J, indeed they are entirely different types of matters, and I therefore find it of little assistance as to the application of s 135 in the matter before me.

15 I do not consider the opinion evidence is unfairly prejudicial in the circumstances of this case which I have referred to at par 2 above. It potentially has some probative value and is not misleading or confusing, and I therefore consider that it should be allowed in under s 78, subject to the final determination which I cannot yet undertake about whether it has a rational basis.