Secretary, Department of Planning, Industry and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning, Industry and Environment v Woolondoon Pty Ltd

[2025] NSWLEC 47

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Secretary, Department of Planning, Industry and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning, Industry and Environment v Woolondoon Pty Ltd [2025] NSWLEC 47

Hearing dates:

12-13 May 2025

Date of orders:

14 May 2025

Decision date:

14 May 2025

Jurisdiction:

Class 5

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1) Pursuant to s 190 of the Evidence Act 1995 (NSW), I dispense with the application of the hearsay rule in s 59 of the Evidence Act in relation to the tender in this trial of the affidavits of Susan Rae dated 22 March 2024 and Sarah Carr dated 22 March 2024 read in the trial in proceedings 2021/69608, 2021/69609, 2021/69610, 2021/69611, 2021/69612 and 2021/69613 held between Monday, 28 April 2025 and Thursday, 8 May 2025 (excluding Wednesday, 7 May 2025) (the first trial), the exhibit to the affidavit of Sarah Carr, Exhibit SC-1, and the transcripts of the oral evidence of Susan Rae and Sarah Carr in the first trial.

(2) I admit the affidavits of Susan Rae dated 22 March 2024 and Sarah Carr dated 22 March 2024 read in the first trial, the exhibit to the affidavit of Sarah Carr, Exhibit SC-1, and the transcripts of the oral evidence of Susan Rae and Sarah Carr in the first trial.

(3) Pursuant to s 190 of the Evidence Act, I dispense with the application of the hearsay rule in s 59 of the Evidence Act in relation to the transcript of the oral evidence of Dennis Boschma in the first trial.

(4) In this trial, I make rulings in relation to objections to the evidence of Dennis Boschma in his affidavit dated 22 March 2024 and Exhibit DB-1 thereto in accordance with the document titled “Objections to the evidence of Dennis Boschma” dated 14 May 2025 at Annexure A hereto.

Catchwords:

PROCEDURAL RULINGS – evidence in one trial tendered in another trial – ss 59 and 190 of the Evidence Act – consent of defendants – dispensing with hearsay rule

Legislation Cited:

Evidence Act 1995 (NSW) ss 59, 190

Local Land Services Act 2013 (NSW) s 60N

Cases Cited:

Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89

R v Rao [1999] ACTSC 132

WC v R [2015] NSWCCA 52

Category:

Procedural rulings

Parties:

Secretary, Department of Planning, Industry and Environment (Prosecutor)
JP & LR Harris Pty Ltd (Defendant, 2021/69629)
Woolondoon Pty Ltd (Defendant, 2021/69633)

Representation:

Counsel:
G Wright SC and T Hammond (Prosecutor)
J Ireland KC, solicitor, and A Connolly (Defendant)

Solicitors:
Litigation and Investigations, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
McGirr Lawyers (Defendant)

File Number(s):

2021/69629 and 2021/69633

Publication restriction:

Nil

JUDGMENT

Introduction

1. On 11 March 2021, the Secretary, Department of Planning, Industry and Environment (the prosecutor) charged JP & LR Harris Pty Ltd and Woolondoon Pty Ltd (the defendants) each with an offence under s 60N of the Local Land Services Act 2013 (NSW) alleging clearing of native vegetation without approval in relation to two properties owned by the defendants in the Walgett Local Government Area. The offence alleged against JP & LR Harris Pty Ltd is in relation to property known as “Curly Whirl” at Lot 15 in Deposited Plan 753953 at 1 Merrywinebone, Rowena (Curly Whirl). The offence alleged against Woolondoon Pty Ltd relates to property known as “Woolondoon” at Lot 30 in Deposited Plan 753953 at 788 Rowena Road, Rowena (Woolondoon).

2. There are also two related hearings concerning the liability for sixteen offences of clearing native vegetation in breach of s 12 of the Native Vegetation Act 2003 and s 60N of the Local Land Services Act in relation to five defendants. I have been allocated the three separate matters for consecutive hearings. The first set of matters were tried before me between Monday, 28 April 2025 and Thursday, 8 May 2025 (excluding Wednesday, 7 May 2025) (the first trial). I am presently midway in the hearing of the second trial which commenced on Monday, 12 May 2025 (the second trial). The third trial is currently set down for hearing between Wednesday, 21 and Tuesday, 27 May 2025.

3. On 18 February 2025, by email to the parties, my chambers sought convenient dates to list all 16 matters for a pretrial mention and said that “her Honour would be assisted by the parties providing a tentative hearing schedule in all matters. This should include the order and timing of witnesses, and the extent, if any, there is opportunity for any of the hearings to be run concurrently.”

4. On 13 March 2025, at the pretrial mention, the question of whether there was opportunity for any of the trials to be run concurrently was again raised. The defendants’ counsel said that he did not have instructions to consent to such a course. On 20 March 2025, the prosecutor emailed to chambers proposed short minutes of order by consent for three separate hearings.

5. On Tuesday, 13 May 2025, being day two of the second trial, the prosecutor raised whether parts of the evidence given in the first trial, including the evidence in chief of the prosecutor’s expert witness Dr Hammill, can stand as evidence in the second trial. Ms Wright SC, senior counsel for the prosecutor, said that the defendants’ representative had

“requested that for the remaining witnesses whose affidavits will be read, who are not required for cross examination, that they would wish for their oral evidence in the first trial to become evidence in this trial. In other words, we hand up a transcript of that evidence.”

6. Ms Wright referred to s 29(2) of the Criminal Procedure Act (NSW), and s 23 of the Land and Environment Court Act (NSW) and requested the Court make an order, if an order were necessary, that evidence that was heard in the first trial becomes evidence in this trial. Ms Wright acknowledged that she was not aware of any case in which such an order had been made retrospectively.

7. The first trial, Secretary, Department of Planning and Environment v Balmoral Farms Pty Ltd, commenced on Monday, 28 April 2025 and adjourned part-heard on Thursday, 8 May 2025, with a date to be fixed for closing submissions after the completion of all three trials. The first trial concerned the properties known as Balmoral and Corombie.

8. The present second trial, Secretary, Department of Planning and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning and Environment v Woolondoon Pty Ltd, commenced on Monday, 12 May 2025 for five days. This second trial concerns the properties known as Woolondoon and Curly Whirl. The charge period in relation to Woolondoon is between 1 December 2018 and 16 January 2019 and in relation to Curly Whirl is between 1 December 2017 and 31 July 2018.

9. The third trial, Secretary, Department of Planning and Environment v Phillip John Harris; Secretary, Department of Planning and Environment v Sue Ellen Harris, is set to commence on Wednesday, 21 May 2025 for five days (the third hearing). The third trial will concern the properties known as North Marlow, Waverley South, Wondahree and Glenidyle.

10. On Tuesday, 13 May 2025, I directed that the parties provide submissions in relation to the power of the Court to retrospectively make an order that evidence in the first trial become evidence in the second trial.

The evidence sought to be admitted in this second trial

11. At 7:33am on Wednesday, 14 May 2025, the prosecutor provided to chambers by email “written submissions on behalf of the prosecutor to admission of earlier evidence of witnesses”. Those submissions identified the following affidavits which the prosecutor intended to read, and who have not been notified as required for cross-examination by the defendants in the first or second trials:

1. Dennis Boschma dated 22 March 2024 and Exhibit DB-1;

2. Sarah Carr dated 22 March 2024 and Exhibit SC-1;

3. Susan Rae dated 22 March 2024 and annexures thereto;

4. Julie Power dated 16 April 2025; and

5. Michael Flynn dated 5 May 2021.

12. Michael Flynn and Julie Power have not been required for cross-examination by the defendants in the second trial and they did not give oral evidence in the first trial.

13. Each of the affidavits of Mr Boschma, Ms Carr and Ms Rae and were read at the first trial. The affidavit of Ms Carr was admitted without objection in the first trial.

14. In the first trial, there were some limitations on the admission of the affidavit of Mr Boschma. The prosecutor proposed to adopt the approach taken in the first trial, namely, to read the affidavit of Mr Boschma so far as it concerns the properties known as Curly Whirl and Woolondoon and the charge periods for the offences being tried in this second trial.

Relevant legislative provisions

15. In Part 3.2 of the Evidence Act 1995 (NSW), s 59 relevantly provides:

59 The hearsay rule—exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note—

Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359.

…

16. Section 190 of the Evidence Act provides:

190 Waiver of rules of evidence

(1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of—

(a) Division 3, 4 or 5 of Part 2.1, or

(b) Part 2.2 or 2.3, or

(c) Parts 3.2–3.8,

in relation to particular evidence or generally.

(2) In a criminal proceeding, a defendant’s consent is not effective for the purposes of subsection (1) unless—

(a) the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel, or

(b) the court is satisfied that the defendant understands the consequences of giving the consent.

…

Prosecutor’s submissions in relation to the admissibility of transcripts

17. In its written submissions, the prosecutor says that on Thursday, 8 May 2025 the defendants conveyed to the prosecutor that it would be content for the evidence and the oral evidence (if any) recorded in the transcript of the first trial be received as evidence in the second trial for following witnesses: Susan Rea, Sarah Carr, Dennis Boschma, Michael Flynn and Julie Anne Power, without them having to attend. The defendant indicated that this would be on the basis that their evidence was subject to the same rulings on objections made in the first trial.

18. The prosecutor submitted that if a hearsay objection were taken to the transcripts of the witnesses’ evidence, the hearsay rule in s 59 of the Evidence Act would apply to prevent their admission, as the transcripts are (and contain) previous representations made by those persons out of court. ^[1] If objection were taken, the exceptions to the hearsay rule applicable to criminal proceedings found in ss 65 and 66 of the Evidence Act would not apply to exclude the hearsay rule (because the witnesses are not unavailable and would not be called in the trial).

    1. WC v R [2015] NSWCCA 52 (WC v R) at [20]-[22] (Meagher JA, Simpson and Wilson JJ agreeing).

19. The prosecutor submitted that as in Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R,^[2] the words “is not admissible” in s 59 of the Evidence Act (as distinct from “is not to be adduced” as found in other provisions of the Evidence Act) should be construed as meaning “is not admissible over objection”. If no objection is taken, hearsay evidence can be adduced and acted upon by the trier of fact.

    2. [2016] NSWCCA 89 at [262] (Bathurst CJ, Hoeben CJ at CL and Bellew J).

20. The prosecutor referred to the case of WC v R, and submitted that the Court there took a similar approach to that proposed in the present hearing. In that case, a DVD of a witness’s evidence at an earlier trial was admitted in a subsequent trial without objection. ^[3] That evidence included evidence in chief, cross-examination and re-examination. The accused person later appealed from a conviction on grounds that included that the trial judge erred in admitting the DVD evidence and that the admission into evidence of the DVD evidence resulted in a substantial miscarriage of justice. Both grounds were dismissed. Meagher JA (with whom Simpson J, as her Honour then was, and Wilson J agreed) accepted that the witness’s evidence was hearsay, but said that the hearsay rule in s 59, in providing that such evidence “is not admissible”, means “not admissible over objection”. His Honour said at [22] that there was no error in admitting the record of the witness’s evidence at the second trial in circumstances where there had been no objection to it. The Court also rejected an argument that the trial judge did not comply with s 190 of the Evidence Act on the basis that neither condition in subss 190(2)(a) and (b) was satisfied. Meagher JA said at [25] that it was not necessary for the trial judge to make an order waiving the hearsay rule under s 190(1) as no objection had been taken to the evidence, meaning that the hearsay rule did not prevent the admission of the evidence.

    3. [2015] NSWCCA 52 at [3] ] (Meagher JA, Simpson and Wilson JJ agreeing).

21. Pursuant to s 190(2) of the Evidence Act, the power to dispense with the rules of evidence in a criminal trial, including the hearsay rule, is dependant on the consent of the defendant on advice from its Australian legal practitioner or counsel. That consent is present in the present hearing. The prosecutor submitted that the Court of Criminal Appeal’s decision in WC v R indicates that there is no necessity for the Court to make an order under s 190 where no objection is taken to the admission of the hearsay evidence (including, relevantly, where the evidence is in the form of testimony given by the witness in a prior trial).

22. However, the prosecutor noted that s 190 was also applied in R v Rao,^[4] a murder trial in which the parties agreed to the tendering of transcript of witnesses from a previous trial against the accused in which she had been jointly tried (with a co-accused) on the same charges. The joint trial had aborted after proceeding for a number of weeks. Separate trials were then ordered. The prosecutor acknowledged that the only distinguishing point from the present trial is that the defendants are different in the two trials presently concerned, albeit represented by the same counsel and solicitors. In a judgment in relation to the separate trial against the accused Rao, Crispin J said at [12]:

“It was agreed between counsel that significant time and expense might be saved if a substantial portion of the evidence which had been adduced at the earlier joint trial were to be admitted in the present trial without recalling the relevant witnesses. For that purpose, the accused, upon the advice of her counsel, consented under s 190 of the Evidence Act 1995 (Cth) to dispense with the requirement in subs 65(1) of that Act which limits the application of the section to circumstances where those who have made previous representations are not available to give evidence about the facts. The bulk of the transcript was then tendered by consent and marked as an exhibit. Since I had been the presiding judge at the earlier trial and had had the opportunity of observing each of the witnesses give evidence it was agreed that the demeanour of the relevant witnesses should also be treated as evidence in the present trial. Further witnesses were then called and other documentary evidence was adduced.”

4. [1999] ACTSC 132 (Crispin J).

23. His Honour Crispin J made no reference to the fact that an order under s 190 was not strictly required in light of the parties’ apparent agreement to the course taken.

24. The prosecutor submitted that in circumstances where there is no objection to the transcripts of the evidence of Ms Carr, Ms Rae and Mr Boschma from the first trial being admitted into evidence in the second trial (being a course requested by the defendant), no issue arises in relation to their admission. The evidence is clear on the record, and the same judicial officer heard the evidence in the first trial and was able to assess the witnesses. The subject matter of the evidence is the same (except that the properties of relevance to Mr Boschma’s affidavit, which is to be read, are different). There is no prejudice to either party in proceeding in the manner suggested by the defendant.

Defendants’ submissions in relation to the admissibility of transcripts

25. At 9:21am on Wednesday, 14 May 2025, the defendant provided “submissions upon tender of evidence adduced in the first trial”. The defendants said that, in the second trial, they consent to the reading of certain affidavits upon the condition that the transcripts of the cross-examination in the first trial of the witnesses who made the nominated affidavits is also tendered. That would involve making an order dispensing with the operation of the hearsay rule in s 59 of the Evidence Act, which order would be open to the Court under s 190 of the Evidence Act.

26. The defendants submitted that the affidavits and the associated transcripts are hearsay, and s 59 of the Evidence Act makes them inadmissible to prove the assertions contained within them. However, s 190 of the Evidence Act provides power to the Court to dispense with the application of Part 3.2 in which s 59 is contained. In criminal proceedings, the power to dispense with the application of the hearsay rule must, pursuant to s 190(2)(a), only be exercised where the court is satisfied that the defendant has been advised to consent to the tender by their legal representative or counsel.

27. The defendants also referred to the decision of the Court of Criminal Appeal in R v WC and the cases there cited, and submitted that the prohibition “not admissible” in s 59 is to be read as “not admissible over objection”. The defendants also referred to the admissibility of evidence not objected to depending on the doctrine of waiver: see Ritz Hotel v Charles of the Ritz. ^[5] This principle is applicable to criminal proceedings subject to the conditions contained in s 190(2) of the Evidence Act.

    5. (1988) 15 NSWLR 158 at 170 (McLelland J).

28. The defendants submitted that Court can here be satisfied that they consent to the reading of the affidavits and the associated tender of the transcripts of their cross-examination in the first trial, before the same judge, after advice from their counsel. The course proposed accords with the efficiency of the conduct of the trial, and avoids the recall of a number of witnesses who have given evidence applicable to “comparable issues” arising in the second trial in relation to which they have already been relevantly cross-examined.

29. Accordingly, the defendants support the prosecution’s application to tender this material and invites the Court to make the necessary dispensing order under s 190 of the Evidence Act.

Conclusion in relation to the admissibility of transcripts

30. I am satisfied pursuant to s 190 of the Evidence Act, that it is open to the Court dispense with the hearsay rule in s 59 of the Evidence Act. I am satisfied, for the purposes of s 190(2) of the Evidence Act, that the defendants in the second trial consent to the affidavits of Susan Rae and Sarah Carr, Exhibit SC-1 and the transcripts of the evidence of Ms Rae and Ms Carr in the first trial, before the same judge, after advice from their counsel, being tendered in the second trial.

31. I am likewise satisfied, for the purposes of s 190(2) of the Evidence Act, that the defendants in the second trial consent to the transcript of the evidence of Dennis Boschma in the first trial, before the same judge, after advice from their counsel, being tendered in the second trial. In this trial, I make rulings in relation to objections to the evidence of Dennis Boschma in his affidavit dated 22 March 2024 and Exhibit DB-1 thereto in accordance with the document titled “Objections to the evidence of Dennis Boschma” dated 14 May 2025 at Annexure A to these reasons.

Orders

32. The Court makes the following orders:

1. Pursuant to s 190 of the Evidence Act 1995 (NSW), I dispense with the application of the hearsay rule in s 59 of the Evidence Act in relation to the tender in this trial of the affidavits of Susan Rae dated 22 March 2024 and Sarah Carr dated 22 March 2024 read in the trial in proceedings 2021/69608, 2021/69609, 2021/69610, 2021/69611, 2021/69612 and 2021/69613 held between Monday, 28 April 2025 and Thursday, 8 May 2025 (excluding Wednesday, 7 May 2025) (the first trial), the exhibit to the affidavit of Sarah Carr, Exhibit SC-1, and the transcripts of the oral evidence of Susan Rae and Sarah Carr in the first trial.

2. I admit the affidavits of Susan Rae dated 22 March 2024 and Sarah Carr dated 22 March 2024 read in the first trial, the exhibit to the affidavit of Sarah Carr, Exhibit SC-1, and the transcripts of the oral evidence of Susan Rae and Sarah Carr in the first trial.

3. Pursuant to s 190 of the Evidence Act, I dispense with the application of the hearsay rule in s 59 of the Evidence Act in relation to the transcript of the oral evidence of Dennis Boschma in the first trial.

4. In this trial, I make rulings in relation to objections to the evidence of Dennis Boschma in his affidavit dated 22 March 2024 and Exhibit DB-1 thereto in accordance with the document titled “Objections to the evidence of Dennis Boschma” dated 14 May 2025 at Annexure A hereto.

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ANNEXURE A (52.0 KB, pdf)

Endnotes

Amendments

14 May 2025 - Uploaded missing Annexure A.

Decision last updated: 14 May 2025