Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Balmoral Farms Pty Ltd

[2024] NSWLEC 48

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Balmoral Farms Pty Ltd; Secretary, Department of Planning and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning and Environment v Woolondoon Pty Ltd (No 2) [2024] NSWLEC 48

Hearing dates:

10 May 2024

Date of orders:

13 May 2024

Decision date:

13 May 2024

Jurisdiction:

Class 5

Before:

Pain J

Decision:

The Court orders:

(1) Costs reserved.

(2) Pre-trial mention listed on 18 July 2024 (time to be confirmed).

Catchwords:

CRIMINAL PROCEDURE — leave to prosecutor to amend s 247E notice and rely on additional evidence

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 247E

Evidence Act 1995 (NSW), s 78

Local Land Services Act 2013 (NSW), s 60N

Native Vegetation Act 2003 (NSW), s 12

Cases Cited:

Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Balmoral Farms Pty Ltd; Secretary, Department of Planning and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning and Environment v Woolondoon Pty Ltd [2024] NSWLEC 43

Category:

Procedural rulings

Parties:

Secretary, Department of Planning and Environment (Prosecutor)
Phillip John Harris (Defendant, 2021/69585-88)
Sue Ellen Harris (Defendant, 2021/69598-601)
Balmoral Farms Pty Ltd (Defendant, 2021/69608-13)
JP & LR Harris Pty Ltd (Defendant, 2021/69629)
Woolondoon Pty Ltd (Defendant, 2021/69633)

Representation:

Counsel:
G Wright SC (Prosecutor)
J M Ireland KC with A Connolly (Defendant)

Solicitors:
Department of Climate Change, Energy, the Environment and Water (Prosecutor)
McGirr Lawyers Pty Ltd (Defendants)

File Number(s):

2021/69585
2021/69586
2021/69587
2021/69588
2021/69598
2021/69599
2021/69600
2021/69601
2021/69608
2021/69609
2021/69610
2021/69611
2021/69612
2021/69613
2021/69629
2021/69633

JUDGMENT

1. In Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Harris; Secretary, Department of Planning and Environment v Balmoral Farms Pty Ltd; Secretary, Department of Planning and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning and Environment v Woolondoon Pty Ltd [2024] NSWLEC 43 (Secretary No 1) I considered the Prosecutor’s application to amend its s 247E notice under the Criminal Procedure Act 1986 (NSW) and made certain findings that it could be amended to include some additional evidence. I did not permit other expert evidence to be included. One affidavit of Mr Murphy investigating officer was to be the subject of further discussion between the parties as to what could be included based on my understanding of what the Prosecutor said the affidavit was directed to, namely the necessity to provide evidence which was to have been provided by Mr Smith who can no longer appear, at [36]. The parties have been unable to agree and I am further considering whether Mr Murphy’s second affidavit sworn 22 March 2024 can be relied on. Unlike in the hearing giving rise to Secretary No 1 I have before me the first affidavit of Mr Murphy sworn 5 March 2021 already filed in the proceedings and the second affidavit sworn 22 March 2024 the subject of this application.

2. As identified in Secretary No 1, the Defendants have pleaded not guilty to charges of land clearing under s 12 of the Native Vegetation Act 2003 (NSW) and s 60N of the Local Land Services Act 2013 (NSW) and three trials have been set down commencing 29 July 2024 continuing back to back until 13 September 2024.

3. Following Secretary No 1 the Defendant advised that it did not object to paragraphs 1, 2 and 78-91 and specified pages in the exhibit to Mr Murphy’s second affidavit, being those paragraphs which referred to matters previously referred to in Mr Smith’s affidavit. Mr Murphy’s second affidavit is 91 paragraphs, with a substantial exhibit which includes numerous photographs not included in evidence before.

Two issues arise

4. Firstly should the Prosecutor be allowed to make a further application to rely on the entirety Mr Murphy’s second affidavit given that was a matter already canvassed in my first judgment?

5. The Prosecutor referred to oral submissions made to the Court on 18 April 2024 which identified that the purpose of Mr Murphy’s affidavit went beyond providing what Mr Smith had otherwise provided in his evidence. Paragraph 36 of Secretary No 1 provides a basis for further considering Mr Murphy’s affidavit. The Prosecutor was not given opportunity to respond to the Defendant’s submissions filed on 22 April 2024 and it is in the interests of justice that this application be considered.

6. The Defendants submitted that the Prosecutor chose to make its application without presenting the evidence to the Court and should not be permitted to reargue the application already determined in relation to Mr Murphy, and the Prosecutor could have sought to address the written submissions of 22 April 2024 but did not. A very good reason is needed for this application to be allowed and none is provided by the Prosecutor.

7. On balance I consider the Prosecutor should have the opportunity to make a further submission that Mr Murphy’s affidavit be relied on as it is in the interests of justice that this be done. I did not have the benefit of written submissions from the Prosecutor and Secretary No 1 was based on my understanding of the oral submissions of the Prosecutor which I understood focussed on Mr Murphy’s second affidavit being needed to replace that of Mr Smith. The Prosecutor’s oral submissions did briefly identify that additional new material was also contained in Mr Murphy’s affidavit. Given the nature of that evidence which I refer to below it should be able to be the subject of this application by the Prosecutor.

8. Secondly, should the Prosecutor be able to rely on Mr Murphy’s second affidavit as a whole?

9. I considered relevant principles in relation to the Prosecutor’s application to amend the s 247E notice in Secretary No 1 at [28]-[30] which includes consideration of the Prosecutor’s duty of disclosure and whether allowing amendment of a s 247E notice to add additional evidence to be relied on will give rise to irredeemable prejudice to the Defendants and what is fair and just as between the parties inter alia.

10. Mr Murphy’s second affidavit expands reasonably substantially on the first affidavit, and purports to refer to matters in relation to which Mr Murphy has expertise as an investigation officer. Mr Murphy undertook desktop analysis using various software packages and expands on his use of QGIS in particular, a program which he referred to in his first affidavit. The new evidence provided relates to site visits he undertook on 15, 16, 17 June 2020 in the presence of some of the individual Defendants and an ecologist employed by them. He attaches a number of photographs taken on these visits not provided before. He makes observations about vegetation he sees. He uses the word ‘verified’ to describe some of his findings. He identifies that he provided certain images to Mr Watts the aerial image analyst to be called by the Prosecutor.

11. While the Defendants object because the affidavit is essentially expert evidence in their view, is very late in being produced by the Prosecutor, and will require substantial time on their part to respond to, the nature of the evidence is that it is supplementary to Mr Murphy’s first affidavit albeit new material, does not obviously give rise to matters of expert opinion and comes within the remit of Mr Murphy’s role as an investigating officer whose opinion can potentially be provided under s 78 of the Evidence Act 1995 (NSW), and reflects routine investigation matters in my view. Some of the Defendants were present for the site visits on their land the subject of Mr Murphy’s evidence and must be familiar with the landscape the subject of the photographs. The Defendants will be able to test Mr Murphy’s evidence. I do not consider that irredeemable prejudice to the Defendants will be caused if this affidavit is relied on by the Prosecutor.

12. The Prosecutor’s s 247E notice can be amended to include Mr Murphy’s second affidavit dated 22 March 2024.

Orders

13. The Court orders:

1. Costs reserved.

2. Pre-trial mention listed on 18 July 2024 (time to be confirmed).

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Decision last updated: 15 May 2024