Secretary Department of Planning, Industry and Environment v Edenmore Farms Pty Ltd; Keelendi Farms Pty Ltd; T J O’Brien Investments Pty Ltd; O’Brien (No 2)

[2022] NSWLEC 76

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary Department of Planning, Industry and Environment v Edenmore Farms Pty Ltd; Keelendi Farms Pty Ltd; T J O’Brien Investments Pty Ltd; O’Brien (No 2) [2022] NSWLEC 76

Hearing dates:

20 June 2022

Date of orders:

21 June 2022

Decision date:

21 June 2022

Jurisdiction:

Class 5

Before:

Pain J

Decision:

See [41]-[43]

Catchwords:

CRIMINAL PROCEDURE – application by prosecutor for leave to rely on additional expert evidence – hearing pending in three weeks

Legislation Cited:

Criminal Procedure Act 1986 (NSW), ss 247E, 247J

Evidence Act 1995 (NSW), s 79

Land and Environment CourtAct 1979 (NSW), s 68

Cases Cited:

Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 6) [2022] NSWLEC 62

Secretary, Department of Planning, Industry and Environment v Edenmore Farms Pty Ltd; Keelendi Farms Pty Ltd; T J O’Brien Investments Pty Ltd; O’Brien [2022] NSWLEC 63

Sutherland Shire Council vBenedict Industries [2013] NSWLEC 121

Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97

Category:

Procedural rulings

Parties:

Secretary, Department of Planning Industry and Environment (Prosecutor)
Edenmore Farms Pty Ltd (First Defendant)
Keelendi Farms Pty Ltd (Second Defendant)
T J O’Brien Investments Pty Ltd (Third Defendant)
Timothy Justin O’Brien (Fourth Defendant)

Representation:

Counsel:
H El-Hage (Prosecutor)
J Ireland QC with A Connolly (Defendant)

Solicitors:

Department of Planning Industry and Environment, Legal Branch (Prosecutor)
McGirr Lawyers (Defendant)

File Number(s):

2021/66001, 2021/66002, 2021/66003, 2021/66004, 2021/66005, 2021/66006, 2021/66007, 2021/66008, 2021/66149, 2021/66150, 2021/66151, 2021/66152

Judgment

1. This judgment concerns the Prosecutor’s Notice of Motion (NOM) dated 15 June 2022 which seeks to rely on additional evidence, inter alia. Twelve prosecutions are set down together for hearing commencing 11 July 2022 for 10 days. The offences concern allegations of unlawful clearing of native vegetation on a property near Pilliga NSW. Two of the Defendants are owners of the property in question, one Defendant operates the farm on that property and one Defendant is the director of all three corporate Defendants. The Prosecutor by NOM dated 15 June 2022 seeks leave under s 68(1) of the Land and Environment CourtAct 1979 (NSW) (LEC Act) to amend its NOM under s 247E of the Criminal Procedure Act 1986 (NSW) (CP Act) to adduce two additional affidavits of experts witnesses Mr Watts aerial surveyor and Dr Hammill Stone ecologist and consequently amend its 247J notice under the CP Act. The two additional affidavits with the supplementary reports attached were served on 8 June 2022 on the Defendants. The Defendants oppose the NOM. I am hearing the NOM as duty judge given its urgency.

Affidavit in support of Mr Adam Hutchings filed by Prosecutor

2. Mr Hutchings’ affidavit sworn 15 June 2022 identifies the affidavits served on the Defendants to date including of Mr Watts affirmed 3 March 2021 with a report of that date, Mr Watts affirmed 8 June 2022 with a report dated 5 June 2022, and of Dr Hammill Stone affirmed 3 March 2021 with a report of that date, and Dr Hammill Stone affirmed 8 June 2022 with a report of that date. The Defendants’ NOM to vacate the hearing dates was heard and dismissed by Robson J on 22 April 2022 in Secretary, Department of Planning, Industry and Environment v Edenmore Farms Pty Ltd; Keelendi Farms Pty Ltd; T J O’Brien Investments Pty Ltd; O’Brien [2022] NSWLEC 63 (Edenmore No 1). On 17 May 2022 Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 6) [2022] NSWLEC 62 (Namoi Valley No 6) was delivered by me. Certain paragraphs of Mr Watts’ first report in Namoi Valley No 6 were excluded because the report failed to identify his methodology or demonstrate how his report was based on his knowledge, skills and experience and therefore the report did not meet the requirements of s 79 of the Evidence Act 1995 (NSW). Out of an abundance of caution Mr Watts and Dr Hammill Stone were asked to prepare supplementary expert reports. These were served on the Defendants on 8 June 2022.

Affidavit sworn 18 June 2022 and oral evidence of Mr McGirr

3. Mr McGirr attested to engaging Dr Robertson in December 2021. Mr McGirr deposed to Dr Robertson’s advice of what work was needed including an on-site assessment in 2022. Flood conditions and other work commitments prevented this occurring and Dr Robertson had not been able to visit the properties by mid-March 2022. He advised Mr McGirr that he required until August 2022 to complete any work. The Defendants’ NOM dated 25 March 2022 seeking vacation of the hearing dates was dismissed by Robson J in Edenmore No 1. An application to appeal that decision was made to the Court of Criminal Appeal. Judgment was delivered in Namoi Valley No 6 on 17 May 2022 and the supplementary reports were served on 8 June 2022. These cause prejudice to the Defendants as the property is large, covering over 3000 hectares and the existing detailed expert reports did not allow sufficient time for Dr Robertson, the retained expert, to provide a substantive report and that continues to be the case. Each of Mr Watts and Dr Hammill Stone took 12 months to prepare their 2021 reports. The Defendants have made clear to the Prosecutor that they will submit to the Court that the reports are wholly inadmissible. The Defendants abandoned their application to the Court of Criminal Appeal in this matter.

4. If the supplementary reports are relied on the Defendants will be seriously disadvantaged in defending the charges as the reports are late and contain substantial additional and new material. The affidavit annexes an extract of the transcript of the hearing before Robson J.

5. In cross-examination Mr McGirr stated that he had not rang any other expert witness apart from Dr Robertson, because finding an expert able to attend the large property many hours’ drive away and get across the work required was difficult. He spoke to Dr Robertson last Friday to ask if he can consider the supplementary reports and he is not able to before the hearing date in July 2022. He agreed that his affidavit was the first time that he had told the Prosecutor that the Defendants would be objecting to the 2021 reports of Mr Watts and Dr Hammill Stone in their entirety.

Edenmore No 1

6. At issue in Edenmore No 1 was the Defendants’ application for a stay of the hearing dates in these twelve matters on the basis that they had not been able to obtain expert evidence from Dr Robertson ecologist. The Defendants’ application was refused and the hearing dates maintained with consideration of the relevant principles at [23]-[31], namely: the onus rests on the party seeking to vacate a hearing to demonstrate the necessity to do so; a Defendant must have a reasonable opportunity to present their case; there is a strong public interest for a date fixed for hearing that a criminal trial should ordinarily proceed; case management principles in the CP Act and the LEC Act; good reason is needed for delaying the hearing in a criminal matter; the allocation of scarce court resources results in justice delayed when a trial is vacated; delay in making an application is a factor; the right to a fair trial is an overriding consideration.

7. I refer to the reasoning in Edenmore No 1 because a consequence of my allowing the additional evidence now sought to be adduced by the Prosecutor if I do so, is that there is likely to be an application to vacate the hearing dates confirmed by Robson J on 22 April 2022. The Prosecutor did not make any such application and nor did the Defendants in a formal sense so that such an application is not strictly before me but the recognition of the need to do so is reflected in the Prosecutor’s submission that it would not oppose the vacation of hearing dates if its NOM is granted, were the Court to take the view that was warranted. The Defendants asserted that vacation must be inevitable if orders sought by the Prosecutor are made. Placing the onus on the Court to vacate is unsatisfactory.

Prosecutor’s submissions

8. The Prosecutor identified the new material in the supplementary reports of Mr Watts and Dr Hammill Stone.

9. The additional supplementary report of Mr Watts is to address Namoi Valley No 6, where evidence of the same witness was rejected in large part on the basis that he failed to provide adequate explanation for various aspects of his findings and conclusions concerning changes in vegetation over time. Solely to address an issue in that case additional expert reports of Mr Watts and Dr Hammill Stone have been prepared, as can be seen in the letters of instruction. Mr Watts’ supplementary report includes additional information about his expertise and experience; information about the operation of Global Mapper, a GIS system he used in preparing his evidence; further information about images relied on in his primary report; details assumptions he made; and details the methodology and processes adopted in his primary reports when analysing spatial imagery. Three additional images are also provided to assist in his explanation. Mr Watts elaborates on his conclusions in his first report.

10. In relation to Dr Hammill Stone’s supplementary report, Dr Hamill Stone provides:

1. Further details of the ecological and spatial datasets relied on in her primary report;

2. Confirms that Mr Watts’ primary report does not affect her findings and conclusions (in circumstances where prior to her primary report she had reviewed a draft of Mr Watts’ primary report);

3. Elaborates on the methodologies utilised to make her findings and conclusions in her primary report;

4. Provides further explanation of Appendix B to her primary report dealing with clearing of vegetation; and

5. Provides further clarification of observations made during the site visits.

11. Dr Robertson has been briefed by the Defendants and has these reports. Mr McGirr’s oral evidence is that he has not contacted any other expert witnesses despite knowing Dr Robertson is unavailable.

12. Weighing up the interests of justice, prejudice to the Defendants if any does not justify dismissal of the NOM. If the NOM is allowed the Prosecutor would not oppose an order vacating the hearing dates.

Defendants’ submissions

13. These additional reports are very late being served some 15 months after the first reports of Mr Watts and Dr Hamill Stone and 7 months after 5 November 2021 when the matters were set down for hearing. The matter is set down for hearing on 11 July 2022. The only explanation for the attempt to adduce the reports is to avoid the possible exclusion of key evidence given in Namoi Valley No 6 if the trial judge takes a similar view. There was nothing novel about the grounds for exclusion in that case. No deficiencies in the earlier reports are identified to justify this application.

14. There is a lot of new material in Mr Watts’ supplementary report in which he deploys technical vocabulary that is wholly absent from his previous report and largely replaces his earlier report, particularly pars 1-57 of this previous report. New images also appear. These are detailed in Annexure A to the Defendants’ submissions. The text in his first report where he stated that what he did was a simple process of comparison of aerial imagery is not in his supplementary report. A far more detailed account of his methodology is now attempted to be provided without adequate justification, placing a substantial burden on the Defendants only three weeks from the hearing. Mr Watts is seeking to retrofit his description in the supplementary report with what should have been done before in his first report. He is asserting that this is what he did in the first place as an attempt to prop up his methodology which was found wanting in Namoi Valley No 6.

15. Dr Hammill Stone seeks to confirm Mr Watts’ evidence by confirming his observations and aerial imagery, yet she is an ecologist not an aerial imagery interpretation specialist. Dr Hammill Stone seeks to provide further explanations of her method to assert conclusions. Her second report largely repeats her first report. To the extent there is new material it is chiefly aimed at bolstering the conclusions found in Mr Watts’ 2021 report by means of unjustified incorporation of material from that report or by inadmissible assertions by Dr Hammill Stone about what Mr Watts said earlier. It is not obvious why Dr Hammill Stone needs to summarise Mr Watts’ draft and first report or to extract a table from Mr Watts’ 2021 report in attachment B, in par 10. Under clarification of methodology in par 13 and beyond her statements are a platform to endorse Mr Watts’ findings, all of which is new.

16. The attempt to adduce the reports is an ambush of the Defendants. The NOM should be dismissed.

Consideration

17. The Court has power under s 68(1) of the LEC Act to allow the prosecutor to amend the ss 247E and 247J notices and to rely on additional evidence. Relevant principles the Court is required to consider were identified in Sutherland Shire Council vBenedict Industries [2013] NSWLEC 121 (Benedict Industries No 1) at [27]-[28] namely:

1. whether evidence is relevant and admissible;

2. whether evidence would cause prejudice to the defendant that is unable to be satisfactorily cured; and

3. considerations generally relating to fairness and justice between the parties.

18. Various factors in Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 (Benedict Industries No 3) at [68] (as referred to by the Prosecutor in par 13 of its submissions) may be relevant in exercising the discretion.

19. Case management principles in criminal proceedings in light of Edenmore No 1 will also be further considered below.

20. In the limited time available for argument and to prepare this judgment it is not possible to summarise all aspects of the supplementary reports referred to.

Mr Watts

21. Due to Namoi Valley Farms No 6 I have some familiarity with the nature of the evidence of Mr Watts as the broad scope of his evidence in that matter is similar to these proceedings, involving interpretation of a number of aerial images to support an opinion that clearing of vegetation had occurred over time on a particular property.

22. The Prosecutor sought to minimise the significance and scope of Mr Watts’ supplementary report, presumably to seek to reduce any prejudice to the Defendants, emphasising that the report provides clarification of existing evidence to a large extent and confirmed what had already been found in Mr Watts’ primary report. No new areas of vegetation clearance are identified.

23. The supplementary report of Mr Watts is 66 pages long with appendices of several pages which include three additional colour images, Appendix 6 elements of aerial imagery interpretation, and new images in Appendix 7 and 8. Appendix 6 is 11 pages and is a compendium prepared by Mr Watts of elements considered in aerial imagery interpretation such as scale or image resolution, shape, size, pattern, tone or colour, texture, shadow, site, association, and comparison of images.

24. In relation to further demonstration of Mr Watts’ expertise, as found at pars 8-16 and his updated CV in par 20, the Defendants cannot be prejudiced by more information about the expertise of Mr Watts apart from having less opportunity to object to Mr Watts’ report on the basis of no demonstrated expertise, as was done in Namoi Valley No 6, and those paragraphs of the supplementary report are able to be read.

25. The Defendants’ substantive objections otherwise concern the balance of the supplementary report. Subsequent sections commence from Vegetation Mapping and Analysis at pars 17-20 in which par 17 refers to the document ‘Elements of Aerial Imagery Interpretation’, Appendix 6, and pars 18 and 19 which are additional. A GIS section at pars 21-22 has been added. Three additional images are referred to in par 23(f) and the table referred to therein. The three new images referred to are not within the charge period.

26. The methodology section pars 40-48 concerning preparation of datasets is new as is the heading spatial accuracy of datasets and the following pars 49-51. The confirmation of area calculation tools section, pars 52-53 are new. Analysis of aerial imagery for changes in vegetation, pars 54-65 are new, including reference to the elements of aerial imagery interpretation within Appendix 6. Findings commence from par 66. Identification of land cover types at pars 69-73 are new. Image comparison at various dates is then undertaken, with pars 75-80 intended to replace pars 52-57 of Mr Watts’ first report with additional information to be added to the paragraphs incorporated from the first report. Paragraph 22 refers to Appendix 7 and 8 which are new. There is clearly a large amount of new material introduced in order to clarify the evidence in Mr Watts’ first report.

27. The Defendants not surprisingly submit that they are prejudiced by this additional material given that they do not have an expert briefed for the forthcoming hearing and it is a very late application. While criticism was made that Mr McGirr had not attempted to brief another ecologist I accept his explanation that the very limited timeframe now available in which to do so, the large size and distant location of the property and the volume of work required makes that difficult.

Dr Hamill Stone

28. Dr Hammill Stone’s supplementary report is shorter in length and addresses different matters, as identified by the Prosecutor’s submissions set out above. The necessity for all aspects of this report is not immediately apparent in that it seems to largely confirm conclusions in her first report, one basis for the Defendants saying it is unnecessary. As the Defendants identify, Dr Hammill Stone refers to parts of Mr Watts’ 2021 report to confirm her own findings and also separately offers support for his conclusions.

29. Paragraph 3 identifies a range of ecological and spatial datasets she relied on in preparing her first report.

30. Mr Watts’ first report dated 3 March 2021 is considered at pars 4-5, 9-10 and 18 because Dr Hammill Stone’s first report was based on a draft report of Mr Watts’ dated 3 March 2020 which was not relied on by the Prosecutor. Dr Hammill Stone confirms that her opinions based on the draft report are the same having reviewed Mr Watts’ report of March 2021.

31. Under a section headed ‘Clarification of methods’ in pars 11-13 Dr Hammill Stone identifies that she has been asked to clarify the methodology used to reach the conclusions in her first report concerning ‘clearing’ of native vegetation within the area of interest. She attests to accessing images listed in her first report at pars 25-26 and how she used these to see changes in vegetation cover in a general sense. She states that she is confident that Mr Watts’ findings are realistic in relation to changes representing clearing (par 13 first bullet point). She observed clearing evidence during site inspections, as documented in her first report.

32. Paragraph 15 provides an explanation for what was presented in Appendix B of the first report, which states that she relies on her experience as set out in the first report, and in part provides further clarification of what she did. This seems to add little to her first report.

33. Paragraphs 19-20 confirm her conclusions as stated in various sections of her first report.

Application of principles

34. In terms of relevant principles in Benedict Industries No 1 and 3 the supplementary reports are clearly relevant and generally admissible.

35. The prejudice to the Defendants who are presently facing trial in about 3 weeks without an expert retained if the whole of the supplementary reports are allowed to be adduced is accepted.

36. The timing of Namoi Valley No 6 is not a matter that the Prosecutor had any control over, it being handed down on 17 May 2022, nor for that matter did the Defendants. Having lost the argument before Robson J on 22 April 2022 it does not seem appropriate to take into account the absence of attempts to find another expert when the Defendants could have no notice that additional expert reports would be sought to be relied on by the Prosecutor.

34. One of the reasons for Robson J’s decision in Edenmore No 1 not to vacate the hearing dates on the Defendants’ application was the late engagement of Dr Robertson, cognisant that his unavailability also arose because he had other professional commitments. That adverse weather conditions had prevented work to be done by Dr Robertson and his team when scheduled was also considered. An additional consideration was that the hearing if vacated would not be until 2023, some twelve months away, a similar situation to that which pertains today. That no other evidence was provided of whether other experts had been sought was also considered. Justice Robson also referred to the possibility that forensic decisions had been made by the Defendants which may have caused a delay in getting expert advice.

35. Events have now moved on so to speak. That both parties accept that allowing the Prosecutor to rely on all of the supplementary reports will result in a need for the vacation of hearing dates weighs heavily in my consideration, in light of Edenmore No 1.

36. Considerations of fairness and justice informed by the history of the matter to date lead me to conclude that the balance of Mr Watts’ supplementary report after par 16 apart from par 20 cannot be relied upon by the Prosecutor, as it contains a lot of new material.

37. In relation to Dr Hammill Stone, the reason why she refers in pars 4-5, 9-10 and 18 to Mr Watts’ 2021 report is to confirm her earlier opinions in her first report. I do not consider admission of that material will prejudice the Defendants to any great degree and that can be relied on as I do not consider it is really new material. Paragraphs 1-3 can also be adduced as they provide relevant context. The balance of the supplementary report is problematic in that it appears to seek to confirm Mr Watts’ opinions and is essentially new material or the necessity for it is not demonstrated to the extent it largely repeats what is in her first report and may not be adduced.

38. In summary, pars 1-16 and 20 of Mr Watts’ supplementary report dated 8 June 2022 may be adduced by the Prosecutor.

39. Paragraphs 1-5, 9-10 and 18 of Dr Hammill Stone’s supplementary report dated 8 June 2022 may be adduced by the Prosecutor.

40. It is not necessary to vacate the hearing dates in July 2022.

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Decision last updated: 06 July 2022