Secretary, Department of Planning, Industry and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning, Industry and Environment v Woolondoon Pty Ltd (No 2)

Case •

[2025] NSWLEC 49

•

20 May 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

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 (No 2) [2025] NSWLEC 49
Hearing dates: 12-15 May 2025, written submissions filed 16 and 19 May 2025
Date of orders: 20 May 2025
Decision date: 20 May 2025
Jurisdiction:Class 5
Before: Pritchard J
Decision:

The defendants’ application to read the affidavit of Dr David Robertson dated 13 May 2025 and tender Exhibit DR-1 thereto, being Dr Robertson’s expert report dated 13 May 2025, on the voir dire is refused.

Catchwords:

PROCEDURAL RULINGS – environment and planning – offences – objection to admissibility of certificate under s 60F(5) of the Local Land Services Act 2013 (NSW) – application for voir dire – admissibility of defendant’s expert evidence served during trial – application dismissed

Legislation Cited:

Criminal Procedure Act 1986 (NSW) ss 247E, 247F, 247K, 247L, 247N

Evidence Act 1995 (NSW) s 189

Local Land Services Act 2013 (NSW) ss 60D, 60F, 60G(4), 60I, 60N

Native Vegetation Act 2003 (NSW) s 12

Cases Cited:

Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48

Bin Sulaeman v R [2013] NSWCCA 283

Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 All ER 203; [1998] 2 WLR 639

Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46

Lars et al (1994) 73 A Crim R 91

Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49

R v Haines [2018] NSWCCA 269

Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88

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, Department of Planning, Industry and Environment v Balmoral Farms Pty Limited [2025] NSWLEC 40

Selby v Pennings (1998) 102 LGERA 253

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

Sutherland Shire Council v Benedict Industries Pty Limited (No 4) [2015] NSWLEC 101

Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 39

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 (Defendants)

Solicitors:
Litigation and Investigations, Department of Climate Change, Energy, the Environment and Water (Prosecutor)
McGirr Lawyers (Defendants)
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 a 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 a 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 of three other defendants, Balmoral Farms Pty Ltd, Phillip John Harris and Sue Ellen Harris, for fourteen other alleged offences of clearing native vegetation in breach of s 12 of the Native Vegetation Act 2003 (NSW) and s 60N of the Local Land Services Act. I have been allocated the sixteen proceedings for hearing over three consecutive trials. The first six of the proceedings 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 two of the proceedings which commenced on Monday, 12 May 2025 (the second trial). The third trial in relation to the final eight of the proceedings is currently set down for hearing between Wednesday, 21 May 2025 and Tuesday, 27 May 2025 (the third trial).

  3. On day three of the hearing in this second trial, Wednesday, 14 May 2025 toward the close of the prosecution case, the prosecutor sought to establish the status of the land comprising parts of each of the properties Curly Whirl and Woolondoon which it alleges were cleared in the respective charge periods as category 2-regulated for the purposes of the Local Land Services Act by tendering the certificate dated 12 October 2020, issued under s 60F(5) of the Local Land Services Act, of Jeremy Black, Director, Remote Sensing and Landscape Science, as delegate of the Environment Agency Head (the s 60F certificate).

  4. In the prosecutor’s outline of opening submissions, it identified as the third element of each charge under s 60N of the Local Land Services Act it must prove beyond reasonable doubt that the clearing was in a regulated rural area.

  5. Mr Ireland KC for the defendants objected to the tender. Mr Ireland informed that Court that the defendants seek a voir dire at which they propose to rely on the affidavit of Dr David Robertson, ecologist and aerial image surveyor, dated 13 May 2025 and Exhibit DR-1 thereto, being Dr Robertson’s expert report dated 13 May 2025 on the voir dire.

  6. I raised with Mr Ireland that an objection to the s 60F certificate was the subject of consideration in the first trial as on day two of that first trial, 29 April 2025, Mr Ireland had objected to the tender of the s 60F certificate in relation to the defendant, Balmoral Farms Pty Ltd. The objection was the subject of my decision on 2 May 2025 in Secretary, Department of Planning, Industry and Environment v Balmoral Farms Pty Ltd (the Balmoral Farms certificate decision). [1] I there determined that although it was available to the defendants to bring a collateral challenge to the validity of a s 60F certificate in Class 5 proceedings, the defendants had failed to establish that the certificate was not validly issued.

    1. [2025] NSWLEC 40.

  7. Mr Ireland replied that:

…the ground has shifted since then…there is evidence now in this [second] trial from both Mr Watts and Mr Murphy about preparation of that certificate. There is also evidence from Ms Rae, which is now tendered in this trial, about Mr Black’s participation and the processes of the department in which she was an officer…in the way the certificates were brought about, and more importantly, from our perspective, responsively to what Mr Watts said earlier this week, we served an affidavit of David Robertson [expert ecologist], affirmed 13 May 2025.

  1. Mr Ireland submitted that the certificate should not be accepted “on its face”, and that the defendants would make an application for a voir dire to determine its admissibility.

  2. Ms Wright SC, counsel for the prosecutor, said that the prosecutor opposed that course “in the strongest terms”. Ms Wright said that the affidavit of Dr Robertson and his expert report had been emailed to the prosecutor’s solicitors after hours on Tuesday, 13 May 2025, with the expert having been instructed on 12 May 2025 and the report also signed on 13 May 2025. No notice had been given in accordance with s 247K of the Criminal Procedure Act 1986 (NSW), nor had notice been given that the certificate was objected to. Ms Wright referred to s 247N of the Criminal Procedure Act, and submitted that “late-served” expert evidence can be excluded as not in compliance with the preliminary disclosure requirements of Division 2A. Ms Wright referred to comments made by Mr Ireland at the pre-trial mention on 13 March 2025, set out at [12] below, and submitted that to allow the evidence of Dr Robertson at this stage of the trial would “potentially [do] a significant injustice to the prosecutor” in circumstances where the prosecutor’s expert evidence had been led and cross-examined upon, and the witness excused. Ms Wright said that normally, if served with an expert report with a s 247K notice, the prosecutor would have time prior to the hearing to provide the report to its own expert, or engage another expert and have them provide an opinion. Ms Wright said that that is the purpose of the preliminary disclosure regime in the Criminal Procedure Act, and that:

It’s simply not open in my submission now for the defendant to assert that it is allowed to serve an expert report on the very eve of the close of the prosecution case and seek to rely upon it. We may need to submit the report to Mr Watts. We may need to seek an opportunity to put on a reply and to call that evidence.

  1. I directed the parties to file submissions in relation to the question of whether there should be a voir dire on the admissibility of the s 60F certificate and adjourned the proceedings until the delivery of my decision. The defendants were to file submissions by close of business on Thursday, 15 May 2025.

  2. Early on Friday, 16 May 2025, Mr Ireland sent an email to chambers attaching submissions on behalf of the defendants. The defendants say that Dr Robertson’s evidence is proposed to be used to submit that that parts of Curly Whirl and Woolondoon that are described as category 2-regulated land in the s 60F certificate were subject to clearing prior to 1 January 1990, from which it follows that those parts of the properties ought to have been described in the certificate as category 1-exempt land.

Background

  1. On 28 May 2021, the prosecutor served its s 247E notice in all these proceedings which stated that the prosecutor relied on the s 60F certificate, and that it was “enclosed”. The certificate was an appendix to the report of Mr Leo Watts, surveyor specialising in the field of aerial surveying and aerial photography, dated 4 March 2021, that was served as part of the prosecution evidence. The certificate is reproduced below:

  1. After the protracted ventilation of a preliminary issue that was ultimately withdrawn by the defendants, on 7 July 2023, the Court set the matters down for hearing with a 10 day estimate to commence on 27 May 2024, and made orders for the preparation of the matters, including that the defendants file their s 247F responses by 4 August 2023. The s 247F responses were not filed in accordance with those orders.

  2. On 12 July 2023, the hearing dates were vacated, and re-listed for the period between 12 August 2024 and 23 August 2024.

  3. After directions hearings in March 2024, on 24 April 2024, Pain J gave a decision refusing the prosecutor leave to amend its s 247E notice and to rely on additional evidence from its expert Mr Leo Watts and an additional report from its expert consultant ecologist, Dr Kate Hammill. [2] The prosecutor appealed that decision to the Court of Criminal Appeal.

    2. 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.

  4. On 11 April 2024, in an affidavit for the hearing in the Court of Criminal Appeal, the defendants’ solicitor Daniel McGirr said:

58. If leave is granted to rely upon the new expert evidence then the defendants would likely need to engage their own experts.

59. This will likely include necessary field studies over expansive terrain identified above. I have contacted Dr David Robertson, an expert ecologist, to ascertain as to whether he would be able to become engaged in these proceedings. He instructed me to speak with he personal assistant, Ms Angela Mees. I have been advised by Ms Mees, as follows:

a. Given the scale of the properties, Dr Robertson would require 10 days of site visits;

b. The earliest available period for Dr Robertson to undertake inspections and consider proposed further evidence is 9 July 2024;

c. Dr Robertson will require some months from the end of that period for drafting his report.

  1. In Secretary, Department of Planning and Environment v Harris, [3] the Court of Criminal Appeal referred to comments of the lower court judge at [29] as follows (footnotes removed):

…Her Honour noted that:

"The defendants pleaded not guilty on the basis of the evidence relied on by the prosecutor in July 2023 and had not intended to rely on expert evidence. If admitted, the new expert evidence means that the defendants may have to consider briefing an expert. Inquiries have been made of one expert, Dr Robertson, who advises that in light of his other commitments and the 10 days of fieldwork needed, he would not be able to undertake inspections and consider the further proposed evidence before 9 July 2024, then requires some months from the end of that period for the drafting of his report".

3. [2024] NSWCCA 88 (Adams and Sweeney JJ and Hume AJ).

  1. The Court of Criminal Appeal (Sweeney J and Adams J and Hulme AJ agreeing) made orders quashing the order made by Pain J on 24 April 2024 in relation to the three reports of Leo Watts and the additional report of Dr Kate Hammill, and in lieu thereof ordered that the prosecutor was granted leave to file and serve an amended notice pursuant to s 247E of the Criminal Procedure Act, including three expert reports of Leo Watts and the further expert report of Dr Kate Hammill.

  2. On 13 June 2024, following the decision of the Court of Criminal Appeal, the prosecutor filed an amended s 247E notice which again attached a copy of the s 60F certificate.

  3. On 20 September 2024, the Court made orders for the filing of evidence, inter alia, that the defendants file and serve a notice in accordance with s 247K of the Criminal Procedure Act by 13 December 2024.

  4. On 28 January 2025, without having sought an extension of time, the defendants filed their s 247K notice. The s 247K notice did not notify any objection to the s 60F certificate proposed to be relied upon by the prosecutor, stating that “[n]o expert report relevant to the proceedings has been prepared by any person whom the Defendants intend to call as an expert witness at the hearings of the proceedings” (at [16]); and that “The Defendants do not propose to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the Prosecutor” (at [20]).

  5. After the proceedings had been fixed on 20 September 2024 by Duggan J for three separate hearings with the first to commence on 28 April 2025, at the pre-trial mention on 13 March 2025, Mr Ireland KC for the defendants said:

IRELAND: …At the moment I can confirm we have no expert report to serve and that’s the position--

HER HONOUR: Is that the final position or is that at the moment, Mr Ireland?

IRELAND: Your Honour, that’s the final position.

HER HONOUR: Thank you.

IRELAND: Which again, potentiates shortening the matter because we won’t have an expert case on our side.

  1. Between the pre-trial mention on 13 March 2025 and the commencement of the second trial on 12 May 2025, it was not communicated to the prosecutor that the defendants would rely on an expert report or that there was any objection to the s 60F certificate.

  2. The first trial commenced on 28 April 2025, and on 2 May 2025 I dismissed the objection to the s 60F certificate raised by the defendant, Balmoral Farms Pty Ltd. In that trial, the defendant’s grounds of objection were then:

  1. the absence of proof of the delegated authority of the certifier to issue the certificate; and

  2. that the certificate purportedly issued under s 60F of the Local Land Services Act was not validly issued in any event because although Mr Black, whose signature appears on the certificate, stated his reasons for concluding that the land in question is category 2-regulated land:

  1. the reasons at B.1. and B.2. were “formulaic and conclusory”;

  2. the timing and authorship of the review referred to in B.3., B.4. and B.5. was not disclosed in the certificate;

  3. the conclusion of the “review” stated in the certificate was that vegetation was likely present, rather than native vegetation;

  4. the name of the person who performed the “very detailed assessment” resulting in Maps A to D attached to the certificate was not identified, nor the date or methodology applied to produce the maps; and

  5. the certificate must be “explained”, including because it relates here to a criminal offence.

  1. Relevantly, I found at [53] of the Balmoral Farms certificate decision that:

None of the matters raised by the defendant concerning the reasons and conclusions of the certificate, the authorship and timing of the review referred to in the certificate, or the timing and authorship of the maps attached to the certificate establish a basis to impugn the validity of the certificate.

  1. And at [55(2)] and [55(4)] (emphasis added):

(2) Nor do I accept the defendant’s challenge to the timing and authorship of the review referred to in B.3., B.4. and B.5. of the certificate. It is clear that the review was carried out for the purpose of issuing the certificate, and I do not find that it was required to be separately dated. There is no reason to consider that the review was not performed by Mr Black or that Mr Black did not take the matters the subject of the review into account.

…

(4) Nor is it material that there was no statement as to the authorship and date of Maps A to D attached to the certificate. The maps are on their face departmental documents, and it was sufficient that Mr Black as Director, Remote Sensing and Landscape Science, certified the certificate to which they were attached.

  1. The first trial continued, and on Thursday, 8 May 2025, it was adjourned to a date to be fixed for closing submissions after the completion of the evidence in all three trials. The second trial commenced on Monday, 12 May 2025.

Evidence in relation to the application for a voir dire to determine the admissibility of the s 60F certificate

Defendants’ evidence

  1. The defendants relied on attachments to Mr Ireland’s email of 16 May 2025, being a copy of the affidavit of Dr Robertson and copies of extracts of the transcripts of evidence of:

  1. Ms Susan Rae dated 2 May 2025 (recorded in the first trial and received as evidence in the second trial on 14 May 2025);

  2. Mr Rowan Murphy dated 12 May 2025; and

  3. Mr Leo Watts dated 12 May 2025 and 13 May 2025.

Extract from the transcript of Susan Rae

  1. Ms Rae, team leader, special imagery services with the now Department of Climate Change, Energy, Environment and Water, [4] gave oral evidence in the first trial on 2 May 2025 which was received as evidence in the second trial on 14 May 2025. Ms Rae gave evidence in relation to the circumstances of the preparation of the s 60F certificate. In cross-examination, she answered as follows:

    4. Prior to 31 December 2023, the Department of Planning and Environment.

Q. And I suppose it’s impossible to say, is it, from - and I know, the print’s very bad, I’ve been suffering from that problem, but - in terms of size. But is there anything that we can see in the legend or key to these maps which gives a hint as to who might have been involved, or not? Do you know? You see there is certain legend down the right hand side of that format?

A. Yeah. No, there’s no signature on who prepared them - who prepared the actual map. There would be a record in the - there’s a database that looks it for the section 60Fs.

Q. There’d be a record of that?

A. Yes.

Q. You wouldn’t expect that Mr Black would prepare those?

A. No. No.

Extract from the transcript of Rowan Murphy

  1. Mr Murphy, investigator and former environment officer with the then Department of Environment and Planning, gave oral evidence in the second trial on 12 May 2025 that one criterion for determining whether land is category 1-exempt land under the Local Land Services Act is whether it had been cleared of native vegetation as at 1 January 1990. Mr Murphy agreed when put to him that in assessing whether land had been cleared prior to 1990, one would try to find an image either at 1990 or close to it, the period from about “1985 to 1993, thereabouts…somewhere in that bracket”.

Extract from the transcript of Leo Watts

  1. Mr Watts, surveyor specialising in the field of aerial surveying and aerial photography, was cross-examined in the second trial on 12 May 2025. When asked whether when he calculated hectares of Curly Whirl and Woolondoon into areas of category 1-exempt land and category 2-regulated land, he knew what the categories meant, he responded that he did not know the “legal definitions”, but what was exempt could be cleared and what was regulated land had “some regulation over it". He said that his instructions were to determine whether or not the vegetation that he observed as cleared within any particular period “was hence present either before or after 1 January 1990, and whether it was potentially regrowth or not.”

  2. On 13 May 2025, in cross-examination, Mr Watts was taken to a copy of the s 60F certificate which had been attached to his letter of instruction dated 20 October 2020. He gave the following evidence:

  1. He did not prepare the map titled “Map B-AOI 2” at Appendix 5 to the certificate (Map B) which shows the Woolondoon and Curly Whirl properties.

  2. He agreed that he took Map B at “face value”, and did not do any checks himself “to verify whether the map was accurate by reference to the images [he] had”.

  3. He agreed that his calculations of the areas of category 1-exempt land and category 2-regulated land in relation to Curly Whirl and Woolondoon at [165] of his report “assume[d] the correct allocation by the department…between exempt land and regulated land”.

  4. His instruction had not been to determine what had been cleared in 1985:

my instruction was to determine whether the areas that I observed as cleared between 2012 and 2019 had been cleared between – as of 1985. So it wasn’t the whole – it wasn’t the whole property. It was only areas that I observed as being cleared…it was to determine whether the vegetation that I observed as being cleared was present at either 1985 or 1990.

  1. He agreed he “made no independent assessment…whether the images on the maps associated on the certificate…take account of the cleared areas on Curly Whirl as at 1985”.

  2. Looking at an A3 paper copy of the 1985 aerial image that was Appendix 12 to his report, he was unable to say whether or not certain areas of Curly Whirl and Woolondoon to which he was taken had been cleared prior to the date of that image.

  3. Looking at the A3 paper copy of the 1985 aerial image that was Appendix 12 to his report, he was able to see that some areas of Curly Whirl and Woolondoon had been cleared before 1985. In relation to areas on the 1985 aerial image that he said were “not actually part of this proceedings”, he accepted that straight lines in the vegetation were an “obvious indicator that some clearing has occurred”.

Dr Robertson’s affidavit, and Exhibit DR-1

  1. Dr Robertson’s affidavit of 13 May 2025 has not been read in this trial. The defendants submitted in relation to the affidavit (and Exhibit DR-1 thereto) that Dr Robertson examined two images contained at appendices 12 and 13 of Mr Watts’ report of 21 March 2024, being two images dated June 1985 and June 1992, and an image from 1957. Dr Robertson formed opinions to the following effect on the basis of his examination of those images:

  1. There are broad areas on Woolondoon and patches on Curly Whirl that were nearly treeless in 1957 and remain so to a large extent today, and were mapped as category 2-regulated land in the s 60F certificate.

  2. Of the polygons marked by Dr Robertson in his Figures 2 and 3, polygon 2 on Woolondoon and polygons 3 and 7 on Curly Whirl (which fall within areas marked as category 2-regulated land in the certificate) appear to have been cleared for cultivation, and appear to be connected to other areas of cultivation.

  3. A high proportion of the areas where tree cover was cleared on Woolondoon and Curly Whirl were cleared before 1990.

  4. The areas on Woolondoon and Curly Whirl (mapped as category 2-regulated land) where trees and shrubs were cleared resemble the areas mapped as category 1-exempt land on the same property.

Prosecutor’s evidence

  1. The prosecutor relied on the following material on the defendants’ application for a voir dire:

  1. s 247E notice dated 28 May 2011;

  2. amended s 247E notice dated 13 June 2024;

  3. s 247F notice dated 14 October 2024;

  4. s 247J notice dated 14 October 2024;

  5. s 247K notice dated 28 January 2025;

  6. s 247L notice dated 31 January 2025;

  7. short minutes of order dated 20 September 2024;

  8. affidavit of Daniel McGirr dated 11 April 2024; and

  9. transcript of pre-trial mention on 13 March 2025.

Relevant legislation

  1. Section 189 of the Evidence Act 1995 (NSW) relevantly provides in relation to the voir dire:

189 The voir dire

(1) If the determination of a question whether—

(a) evidence should be admitted (whether in the exercise of a discretion or not), or

(b) evidence can be used against a person, or

(c) a witness is competent or compellable,

depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

(2) If there is a jury, a preliminary question whether—

(a) particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies, or

(b) evidence of an admission, or evidence to which section 138 applies, should be admitted,

is to be heard and determined in the jury’s absence.

(3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant.

…

(5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account—

(a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant, and

(b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question, and

(c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing).

(6) Section 128 (10) does not apply to a hearing to decide a preliminary question.

(7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates.

…

  1. In Division 2A of Part 5 of Chapter 4 of the Criminal Procedure Act, titled “Case management provisions and other provisions to reduce delays in proceeding”, s 247B provides in relation to the purpose of the division:

247B Purpose

(1) The purpose of this Division is to reduce delays in proceedings by—

(a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and

(b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.

(2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.

  1. Section 247I provides that the court may order preliminary disclosure in a particular case:

247I Court may order preliminary disclosure in particular case

(1) After proceedings have been commenced, the court may make any or all of the following orders, but only if the court is of the opinion that it would be in the interests of justice to do so—

…

(b) order that the defendant is to give to the prosecutor notice of the defence response to the prosecution’s notice in accordance with section 247K,

(c) order that the prosecution is to give to the defendant notice of the prosecution response to the defence response in accordance with section 247L.

…

  1. Section 247K provides in relation to notice of the defence response to court-ordered preliminary disclosure pursuant to s 247I(1)(b) (emphasis added):

247K Defence response—court-ordered preliminary disclosure

For the purposes of section 247I (1) (b), the notice of the defence response is to contain the following—

(a) the matters required to be included in a notice under section 247F,

(b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of section 191 of the Evidence Act 1995) or the defendant disputes the fact,

(c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out,

(d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection,

(e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed,

(f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings,

(g) if the prosecutor disclosed an intention to adduce evidence at the hearing of the proceedings that has been obtained by means of surveillance, notice as to whether the defendant proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,

(h) notice as to whether the defendant proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,

(i) if the prosecutor disclosed an intention to tender at the hearing of the proceedings any transcript, notice as to whether the defendant accepts the transcript as accurate and, if not, in what respect the transcript is disputed,

(j) notice as to whether the defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,

(k) notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges,

(l) notice of any consent the defendant proposes to give under section 184 of the Evidence Act 1995.

Note.

The defendant is not required to include in a notice anything that has already been provided or disclosed to the prosecutor (see section 247U (2)).

  1. Section 247L relevantly provides in relation to the prosecution response to the defence response to court-ordered preliminary disclosure:

247L Prosecution response to defence response—court-ordered preliminary disclosure

For the purposes of section 247I (1) (c), the notice of the prosecution response to the defence response is to contain the following—

(a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect,…

  1. Section 247N provides in relation to sanctions for non-compliance with preliminary disclosure requirements:

247N Sanctions for non-compliance with preliminary disclosure requirements

(1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for preliminary disclosure imposed by or under this Division.

Note.

The only evidence required from a defendant in the context of a preliminary disclosure is expert evidence (see section 247K (f)). Accordingly, such evidence may also be dealt with by the court under subsection (2).

(2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for preliminary disclosure imposed by or under this Division.

(3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for preliminary disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment.

(4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent a defendant adducing evidence unless the prosecutor has complied with the requirements for preliminary disclosure imposed on the prosecution by or under this Division.

(5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised).

  1. Section 247P provides in relation to the waiver of the requirements that apply under Division 2A:

247P   Court may waive requirements

(1)  A court may, by order, waive any of the requirements that apply under this Division.

(2)  The court may make such an order on its own initiative or on the application of the prosecutor or the defendant.

(3)  An order may be made subject to such conditions (if any) as the court thinks fit.

  1. Section 60F of the Local Land Services Act relevantly provides in relation to transitional arrangements until the preparation of native vegetation regulatory maps as follows:

60F Transitional arrangement until preparation of maps

(1) This section applies to an area of the State to which this Part applies during the period from the commencement of this Part until the area has been designated on a native vegetation regulatory map (the transitional period).

(2) For the purposes of this Part, the area is taken, during the transitional period, to be—

…

(b) category 2-regulated land, if this Part requires the land to be designated as category 2-regulated land on the native vegetation regulatory map (except as provided by paragraph (c)), or

…

…

(4) A provision of this Part that determines the relevant categorisation of land by reference to a reasonable belief of the Environment Agency Head about a particular matter is to be construed, for the purposes of this section, as a reference to what a reasonable person would believe about the matter.

(5) The Environment Agency Head may, in connection with any legal proceedings against a landholder, issue a certificate that the land described in the certificate is (for the reasons set out in the certificate) category 1-exempt land or category 2-regulated land (including category 2-vulnerable regulated land). The certificate is, in those legal proceedings, prima facie evidence of the category of the land during the transitional period.

  1. Section 60G(4) requires the Environment Agency Head to publish information about the scientific method used to prepare the native vegetation regulatory map.

  2. Section 60I contains requirements in relation to the designation of land as category 2-regulated land. Section 60I(1) relevantly provides:

60I Category 2-regulated land mapping

(1) Land is to be designated as category 2-regulated land if the Environment Agency Head reasonably believes that—

(a) the land was not cleared of native vegetation as at 1 January 1990, or

(b) the land was unlawfully cleared of native vegetation after 1 January 1990.

…

(3) However, land described in subsection (1) is not to be designated as category 2-regulated land if section 60H (2) or (3) requires the land to be designated as category 1-exempt land.

  1. In Part 5A of the Local Land Services Act titled “Land management (native vegetation)” s 60N provides an offence in relation to unauthorised clearing of native vegetation in regulated rural areas as follows:

60N Unauthorised clearing of native vegetation in regulated rural areas—offence

(1) A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences—

(a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A,

(b) that the clearing is authorised by a land management (native vegetation) code under Division 5,

(c) that the clearing is authorised by an approval of the Panel under Division 6,

(d) that the clearing is authorised under section 60O (Clearing authorised under other legislation etc),

(e) that the clearing is the carrying out of a forestry operation authorised under Part 5B (Private native forestry).

Maximum penalty—

(a) for an offence that was committed intentionally and that caused or was likely to cause significant harm to the environment—

(i) in the case of a corporation—$5 million, or

…

(b) for any other offence—

(i) in the case of a corporation—$2 million, or

…

(1A) The defences under subsection (1) (a)–(c) do not apply if the clearing was the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies.

(2) The higher maximum penalty under this section does not apply unless—

(a) the prosecution establishes (to the criminal standard of proof) that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, and

(b) the court attendance notice or application commencing the proceedings alleged that those factors applied to the commission of the offence.

If any such allegation in the notice or application is not established by the prosecution, the lower maximum penalty under this section applies (whether or not the notice or application is amended).

(3) For the purposes of this section, clearing of native vegetation is not authorised as referred to in subsection (1) unless the conditions to which the authorisation is subject (including any conditions of a land management (native vegetation) code relating to the clearing or any certificate or approval issued or granted for the clearing) are complied with. This subsection extends to conditions that impose obligations on the person who clears the native vegetation that are required to be complied with before or after the clearing is carried out.

(4) This section does not operate to preclude the commission of an offence under the Environmental Planning and Assessment Act 1979 or the Biodiversity Conservation Act 2016 in relation to the clearing of native vegetation.

Submissions in relation to the application for a voir dire to determine the admissibility of the s 60F certificate

Defendants’ submissions

  1. The defendants submitted that there is a preliminary question for the purpose of s 189 of the Evidence Act as to whether the s 60F certificate is reliable having regard to the evidence which is now before the Court in the prosecution case. They submitted that the certificate contains errors and is unreliable and that it cannot be accepted as prima facie evidence of the categories of the land on the two properties for the purposes of the Local Land Services Act.

  1. The defendants submitted that it is open to the defendants to challenge the validity of the certificate, citing Sutherland Shire Council v Benedict Industries Pty Limited (No 4) [5] and Secretary, Department of Planning Industry and Environment v Balmoral Farms Pty Limited, [6] and the validity of the certificate having been challenged, the prosecutor bears the burden of proof: Selby v Pennings; [7] Sutherland Shire Council v Benedict Industries Pty Limited (No 4). [8]

    5. [2015] NSWLEC 101.

    6. [2025] NSWLEC 40 at [18].

    7. (1998) 102 LGERA 253 at 265 (Ipp J), and at 283 (Owen J).

    8. [2015] NSWLEC 101 at [10] (Pepper J).

  2. The s 60F certificate sought to be tendered by the prosecutor states that a review was conducted as a result of which Mr Jeremy Black (for the purposes of s 60F of the Local Land Services Act, the delegate of the Environmental Agency Head) had “formed the belief that the land had not been cleared of native vegetation as at 1 January 1990.” The reference in that statement to “the land” should be read in the present context as the land shown as marked in yellow on the maps attached to the certificate as category 2-regulated land.

  3. Parts of the “very same certificate” were the subject of the Balmoral Farms certificate decision. The Court concluded in that case (at [55]) that on the face of the certificate “[t]here is no reason to consider that the review was not performed by Mr Black or that Mr Black did not take the matters the subject of the review into account”.

  4. In light of the oral evidence of Ms Rae on 2 May 2025, that position was not maintainable. Mr Black did not perform the review which led to the categorisation of the yellow-coloured areas of Woolondoon and Curly Whirl. The person or persons who performed the “review” alluded to in the certificate had not been identified or called to give evidence. The technique adopted by that person or those persons to eliminate as exempt land for the purposes of the Local Land Services Act those parts of the two properties was unknown. What is now known now in light of the evidence of Dr Robertson is that “very large areas of the two properties were cleared prior to 1990, and have not been eliminated as category 1-exempt land”. The maps attached to the certificate are “inaccurate and hence unreliable in depicting what is exempt land and what is not exempt land” for the purposes of the Local Land Services Act, and the tender of the certificate should be rejected.

  5. The defendants submitted that the evidence of Dr Robertson establishes that there are large areas on Woolondoon and Curly Whirl that have been mapped as category 2-regulated land in the s 60F certificate, but ought to have been mapped as category 1-exempt land. Mr Watts was taken to some of these areas in cross-examination on 12 and 13 May 2025, and could not say whether those areas had been cleared at the date of the 1985 image.

Prosecutor’s submissions

Submissions in relation to the basis for holding a voir dire

  1. The prosecutor submitted that the defendants’ reliance on s 189 of the Evidence Act was misconceived. The application of s 189 turns on whether “the determination of a question whether evidence should be admitted…depends on the court finding that a particular fact exists". The admission of the s 60F certificate does not turn on the Court finding that a particular fact exists. Section 60F(5) is to the opposite effect as it deems the certificate to be "prima facie evidence of the category of the land during the transitional period". Accordingly, s 60F(5) obviates the need to prove the underlying facts that make land category 2-regulated land during the transitional period because the certificate is prima facie evidence of that fact. There is no requirement for the Court to make a finding that a "particular fact exists" before admitting the certificate into evidence. Section 60F(5) makes the certificate admissible.

  2. The prosecutor referred to the Court of Criminal Appeal’s decision in Haines v R [9] in relation to s 189 of the Evidence Act, particularly its finding in that case that there was no fact required to be decided and accordingly the applicant’s reference to s 189(1) was in error. The prosecutor submitted that similarly here, the defendants’ submission that the Court should compel a voir dire should be rejected. No preliminary fact is required to be decided as part of the decision as to the admissibility of the s 60F certificate.

    9. [2018] NSWCCA 269.

  3. Further, the prosecutor submitted, it is unclear what the purpose of a voir dire would be, and there was no compelling basis for one to be held. That was not to say that a defendant cannot adduce evidence in its own case that land should be categorised differently from how it is categorised in a certificate according to the statutory criteria under Part 5A of the Local Land Services Act, but that is not done on a voir dire. The “proper” way to do this is to serve expert evidence prior to the trial in accordance with the case management provisions in the Criminal Procedure Act, and to notify an objection to the certificate under s 247K. Mr Ireland had been “careful” to say that the expert report is relevant to a voir dire to determine the admissibility of the certificate, and not to the defence case.

  4. The prosecutor submitted that the defendants’ application was “in truth” a “belated and misconceived attempt to challenge the ‘validity’ of the certificate… though not argued on any discernible administrative law ground”. The gravamen of the complaint is that the s 60F certificate is “unreliable”, a matter not relevant to the tender of the certificate. The prosecutor referred to the decision of the High Court in IMM v The Queen [10] where it was held at [44], [49]-[54], [36], [38] (French CJ, Kiefel, Bell and Keane JJ) that questions of reliability and/or credibility are not relevant at the point of tender of a piece of evidence. In any case, the prosecutor submitted, questions of reliability do not arise as the s 60F certificate is deemed to be “prima facie evidence” pursuant to s 60F of the Local Land Services Act.

    10. (2016) 257 CLR 300; [2016] HCA 14.

  5. Accordingly, there is no basis for a voir dire on the tender of the s 160F certificate, and s 189 does not assist. The defendants have not demonstrated a “significant issue to be tried”; in particular, (1) if the objection is made on admissibility grounds, engaging the rules of evidence, the objection is misconceived as “unreliability” is not a basis for objection to be taken; (2) if the objection is based on “validity”, no argument has been articulated identifying the basis on which the s 60F certificate could be said to be invalid on administrative law grounds; and (3) in the alternative, the prosecutor has a right to lead its own evidence in reply, as a matter of procedural fairness, and it would seek an adjournment of the hearing to allow this to occur.

Submissions in relation to collateral challenge and timing of the challenge

  1. Against the procedural background as set out at [12]-[27] above, the prosecutor presented its case in the second trial on the basis that the s 60F certificate is uncontradicted. None of the evidence led in the prosecution case, including on cross-examination of the prosecutor’s witnesses, raised an issue as to the accuracy of the s 60F certificate (and the categorisation of land therein) so as to “justify” the late service of an expert report by the defendants.

  2. The prosecutor referred to the Balmoral Farms certificate decision where the Court at [23] noted that “it is unusual for a defendant to challenge, in Class 5 proceedings, the validity of a statutory certificate in circumstances where the challenge has not been previously foreshadowed, nor drawn in conventional judicial review grounds.” The prosecutor also referred to the comments of McHugh J in Ousley v The Queen [11] (at 104-105) that collateral challenges may substantially hamper the orderly administration of the criminal justice system and this problem “can be overcome by having collateral challenges [in that case to the validity of warrants] determined in pre-trial hearings”.

    11. (1997) 192 CLR 69; [1997] HCA 49.

  3. The prosecutor submitted that the present collateral attack on the certificate was not foreshadowed and, in circumstances where a challenge on different grounds was made in related proceedings, the course taken by the defendants in now seeking to go behind the Court’s judgment and mount a second collateral challenge is most irregular. There is substantial appellate authority about the undesirability of fragmenting and delaying the resolution of criminal proceedings (albeit this is not a jury trial). [12]

    12. For example Zhang v R [2023] NSWCCA 98, Ierace J (Davies and R A Hulme JJ agreeing) at [60]; Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120 at [23] (“[t]he fragmentation of the criminal process is to be actively discouraged”); Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36 at [32].

  4. The Court should also take into account, the prosecutor submitted, that the defence expert Dr Robertson was instructed on 12 May 2025, and authored or signed his report on 13 May 2015. On 14 May 2025, Mr Ireland for the defendants informed the Court that he had questioned three prosecution witnesses about this point. These witnesses gave evidence on 2, 3, 12 and 13 May 2025. It was apparent, therefore, that the defendants waited until the prosecution witnesses who gave evidence touching on this issue had attended Court to give evidence, had been cross-examined and then excused, before disclosing the intention to rely on expert evidence. One of the prosecution’s expert witnesses, Mr Watts, was asked questions about the “very issue” the subject of Dr Robertson’s report, yet was not apprised of the report and therefore not given an opportunity to answer it. This was submitted to be fundamentally unfair to the prosecutor, and a breach of the principle in Browne v Dunn (1893) 6 R 67.

  5. The defendants took “a calculated risk” in waiting until “the last minute” before serving the report of an expert who was contacted by them at least at some time in 2024. It would not be unfair to refuse the voir dire seeking to raise a second collateral challenge to the s 60F certificate and to exclude the evidence sought to be adduced under s 247N(2) of the Criminal Procedure Act (concerning the exclusion of expert evidence sought to be adduced where the report was not provided to the other party in accordance with the requirements for preliminary disclosure imposed by or under Division 2A of Part 5 of Chapter 4).

Submissions in relation to breach of case management provisions and prejudice

  1. On 13 May 2025, after business hours, after all prosecution witnesses had been called, cross-examined and excused, the defendants served Dr Robertson’s affidavit. That forensic choice, submitted to have been “made knowingly in contravention of the case management provisions governing the conduct of Class 5 proceedings”, was said to be “a weighty factor” permitting the Court to exclude the evidence under s 247N.

  2. The prosecutor referred to the Explanatory Memorandum in relation to the introduction of Division 2A of Part 5 of Chapter 4 of the Criminal Procedure Act by the CriminalProcedure Amendment (Summary Proceedings Case Management) Act 2012 (NSW) (the Amending Act) which identified the object of the amendment as being to make provision “for case management procedures to reduce delays in trial and sentencing proceedings” (emphasis added). The prosecutor submitted that the case management provisions in Division 2A are designed to reduce delays, save court time and prevent unnecessary cost of protracted proceedings. The provisions dealing with expert evidence in s 247K abrogate the defendant's right to silence to a substantial degree. This was submitted to be mirrored in the case management provisions in relation to trials on indictment under which an accused person is required to disclose expert evidence prior to trial: s 143(1)(h) in Division 3 of Part 3 of the Criminal Procedure Act. Failure to do so can lead to the adjournment and vacation of trials. [13]

    13. For example, R v Jenkins [2016] NSWSC 414 at [21], [24]; Kayirici v R [2021] NSWCCA 127 at [125].

  3. Here, the 60F certificate was known to the defendants since 2021. They were served with the 60F certificate on 28 May 2021 as part of the s 247E disclosure, and the certificate was re-served on subsequent occasions. The defendants had ample opportunity to notify a challenge to its admissibility, and chose not to do so until “the very cusp” of the closure of the prosecution case. They had provided no valid reason for not obtaining or serving a report from Dr Robertson prior to the trial. Dr Robertson was referred to as a possible expert by the defendants’ solicitor Mr McGirr in 2024. The defendants breached previous orders in relation to the filing of s 247F and s 247K notices, such conduct, in the prosecutor’s submission, being a consideration when exercising the discretion whether to refuse to admit the report (in a voir dire or the trial proper) under s 247N. If the report of Dr Robertson were to be admitted, the prosecutor would need to take steps to respond to that evidence. Whilst those steps had been commenced as an exercise of caution, this could not be completed in two days and would cause an adjournment of the second trial.

  4. Section 247L(a) anticipates that the prosecutor has sufficient opportunity to answer any disclosed intention to adduce expert evidence at the hearing. The bypassing of s 247K by the defendants in circumstances where Dr Robertson’s report was served after business hours on the penultimate day of the prosecution case would mean that if the evidence were allowed to be relied upon without an adjournment, the prosecutor would have been denied the opportunity to respond to it. Fairness and justice dictate that the application by the defendants to admit this evidence on the voir dire (or otherwise) ought be refused under s 247N(1), there being no disentitling conduct on the part of the prosecutor, it having complied with the requirements for preliminary disclosure imposed on it under Division 2A (s 247N(4)).

  5. The prosecutor submitted that if necessary, it seeks to be heard on the separate issues which would arise if following the close of the prosecution case, the defendants notify an intention to rely on Dr Robertson’s report in their defence cases. Whilst Mr Ireland has said that this is not the intention, if that were to change, the prosecutor seek to be heard on the issues which arise, including as to the relevance and admissibility of the report, and the possible need to seek leave to reopen the prosecution case or lead a case in reply. It was presently understood that it would take the prosecution one week to obtain the necessary evidence responsive to the accuracy of the categorisation in the s 60F certificate of the properties as category 2-regulated land in the 60F certificate.

Defendants’ submissions in reply

  1. In relation to the prosecutor’s submission that their reliance on s 189 of the Evidence Act is misconceived, the defendants submitted that this submission was itself based on a misconception. The fact in issue is whether the s 60F certificate is reliable. That issue has been raised by the defence and now has to be evaluated by the Court in light of the other evidence identified by the defendants which is presently before the Court in the prosecution case. The defendants submitted that the evidence of Ms Rae “makes it plain” that Mr Black “had no part in the process of evaluating anything” to decide what land within the two properties qualified as exempt land because it was cleared before 1 January 1990 and what land did not and qualified to be treated as category 2-regulated land.

  2. The defendants submitted that the provisions of s 60F of the Local Land Services Act impose a requirement that the Environment Agency Head (here, Mr Black as delegate) make an evaluation themself. The evidence was “incontestable” that Mr Black “did nothing himself about working out which land could permissibly be certified as regulated land and which could not”. What the delegate did in this case was to pass the function of evaluation down the line to “faceless individuals” whom Ms Rae referred to as “members of my team”. That was impermissible: delegatus non potest delegare.

  3. In relation to the timing of the defendants’ decision to put forward evidence from Dr Robertson, at the time of the pre-trial mention on 13 March 2025, it was the position that the defendants did not have an expert case to present. What emerged was the “surprising evidence on 12 May 2025 of Mr Watts” in relation to what he was told about the meaning of exempt and regulated, coupled with the evidence of Ms Rae to the effect that she would not have expected Mr Black himself to have prepared the maps and that there were “two ‘teams’” involved in the process. The defendants then engaged Dr Robertson and served his report on 13 May 2025.

Consideration

  1. As I concluded in the Balmoral Farms certificate decision, it is open to the defendants to bring a collateral challenge to the s 60F certificate in these Class 5 proceedings. [14]

    14. See Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 All ER 203; [1998] 2 WLR 639 at 664 (Lord Steyn); cited with approval in Selby v Pennings (1998) 102 LGERA 253 at 268 (Ipp J) and 283-284 (Owen J); Gray v Woollhara Municipal Council [2004] NSWSC 112 (Whealy J); Sutherland Shire Council v Benedict Industries Pty Limited (No 4) [2015] NSWLEC 101 at [10] (Pepper J).

Basis for holding a voir dire

  1. However, I am satisfied that the basis for holding a voir dire in relation to the admissibility of the evidence of Dr Robertson is misconceived, and that s 189 of the Evidence Act has no present application.

  2. In Haines v R [15] the Court of Criminal Appeal (Hoeben CJ at CL, Davies and Button JJ) held in relation to s 189 as follows:

    15. [2018] NSWCCA 269.

[277] Section 189 of the Evidence Act provides for a procedure where there is a voir dire and in particular, whether a jury should be present in court when the voir dire takes place. Section 189(1) of the Evidence Act merely provides that a particular issue is a “preliminary question”. It has no effect on whether a voir dire should be held.

[278]   Whether there should be a voir dire is determined by the issues at trial. No accused has an unqualified right to a voir dire: Lars et al (1994) 73 A Crim R 91. This Court said in Lars at 114:

119 Where it is sought to explore on the voir dire the admissibility of evidence, the accused must make application to the judge for such an examination, specify the issues to be explored, and show, to whatever extent the judge may reasonably require, that there is indeed a significant issue to be tried.

[279] Further in Bin Sulaeman v R [2013] NSWCCA 283 at [133] R A Hulme J (with whom Beazley P and Bellew J agreed) said:

133 There is a general requirement in an adversarial court or tribunal that counsel make clear the grounds on which they press an objection or seek some other procedural or discretionary ruling. It is not the role of the court or tribunal to answer questions beyond the scope of the dispute articulated. At least in criminal trials in NSW, the only limit to that rule is the requirement upon the trial judge to ensure for the accused a fair trial according to law.”

[280] The admissibility of paragraph 15 of [AB’s] statement was determined pursuant to s 189(2) of the Evidence Act. There was no fact required to be decided as part of the decision as to the admissibility of the alleged admission. Accordingly, the applicant’s reference to s 189(1) in her submission is in error. There was a voir dire, as provided for by s 189(2), and the submission that the trial judge should have compelled a voir dire should be rejected. On the facts of this case, there was no need for [AB] to be called and no error was displayed by counsel, or the trial judge, in [AB] not being examined on the voir dire. …

  1. In relation to the defendants’ application that there be a voir dire in relation to the admissibility of Dr Robertson’s evidence, I find as follows:

  1. As submitted by the prosecutor, the application of s 189 of the Evidence Act turns on whether the determination of a question as to whether evidence should be admitted “depends on the court finding that a particular fact exists". Here, the admission of the s 60F certificate does not turn on the Court finding that a particular fact exists. Section 60F(5) of the Local Land Services Act is, as the prosecutor submitted, to the opposite effect. It deems the certificate to be "prima facie evidence of the category of the land during the transitional period", hence removing the need to prove the underlying facts that make land category 2-regulated land during the transitional period. The certificate is prima facie evidence of that fact.

  2. Accordingly, there is no requirement for the Court to make a finding that a "particular fact exists" before admitting the certificate into evidence. There is no preliminary fact required to be decided as part of the decision as to the admissibility of the s 60F certificate. As submitted by the prosecutor, s 60F(5) of the Local Land Services Act makes the certificate admissible.

  3. As the Court of Criminal Appeal held in Haines v R [16] at [278], no accused has an unqualified right to a voir dire, referring to Lars et al at 114. [17] In Haines v R, the Court referred to Bin Sulaeman v R [18] where the Court of Criminal Appeal said at [133] that there is a general requirement in an adversarial court or tribunal that counsel make clear the grounds on which they press an objection or seek some other procedural or discretionary ruling, and that:

    16. [2018] NSWCCA 269.

    17. (1994) 73 A Crim R 91.

    18. [2013] NSWCCA 283.

It is not the role of the court or tribunal to answer questions beyond the scope of the dispute articulated. At least in criminal trials in NSW, the only limit to that rule is the requirement upon the trial judge to ensure for the accused a fair trial according to law.

  1. As in Haines v R, I am here satisfied that the Court is not required to determine on the voir dire that a particular fact exists.

  2. Nor do I consider that there would be any relevant unfairness to the accused in refusing its application to read the affidavit of Dr David Robertson dated 13 May 2025 and tender Exhibit DR-1 thereto, being Dr Robertson’s expert report dated 13 May 2025, on the voir dire. By refusing the application, the defendants are not prevented from seeking to adduce evidence in their own case to the effect that the two properties Curly Whirl and Woolondoon land should have been categorised differently from how they are categorised in the s 60F certificate. The certificate provides only prima facie evidence of the category of land during the transitional period: s 60F(5) of the Local Land Services Act. Such evidence is not adduced on the voir dire.

  3. The defendants could have, but have not, served expert evidence prior to the trial in accordance with the case management provisions in the Criminal Procedure Act, or notified an objection to the certificate under s 247K.

  4. There is some force to the prosecutor’s submission that the defendants’ application was “in truth” a “belated and misconceived attempt to challenge the ‘validity’ of the certificate…though not argued on any discernible administrative law ground”. The defendants have not articulated any conventional administrative law ground upon which the s 60F certificate might be said to be invalid. The gravamen of the defendants’ application is that the s 60F certificate is “unreliable”. I do not consider this to be a matter relevant to the tender of the certificate or to whether the Court should accede to an application for a voir dire.

  5. As French CJ, Kiefel, Bell and Keane JJ said in IMM v The Queen [19] , at a practical level, it could not be intended that a trial judge undertake an assessment of the actual probative value of the evidence at the point of admissibility:

As Simpson J pointed out in R v XY [20] , the evidence will usually be tendered before the full picture can be seen. A determination of the weight to be given to the evidence, such as by reference to its credibility or reliability, will depend not only on its place in the evidence as a whole, but on an assessment of witnesses after examination and cross-examination and after weighing the account of each witness against each other.

  1. Having concluded that there is no basis for holding the voir dire in relation to the admissibility of the evidence of Dr Robertson, and that s 189 of the Evidence Act has no present application, I do not decide the prosecutor’s submission, in the alternative, that if the Court acceded to the defendants’ application, the prosecutor would have a right to lead its own evidence in reply, as a matter of procedural fairness, and would seek an adjournment of the hearing to allow this to occur.

    19. (2016) 257 CLR 300; [2016] HCA 14 at [51] (French CJ, Kiefel, Bell and Keane JJ).

    20. [2013] NSWCCA 121; (2013) 84 NSWLR 363 at 400 [167], [170].

The collateral challenge and its timing

  1. There is some force to the defendants’ submissions at [57]-[61] above in relation to the timing of the collateral challenge to the validity of the s 60F certificate, in particular seeking to rely on the report of an expert who was contacted by them in 2024 in relation to the proceedings.

  2. However, having decided to refuse the application for the voir dire in relation to the admissibility of the evidence of Dr Robertson, and that s 189 of the Evidence Act has no present application, it does not arise presently to decide the prosecutor’s complaint in relation to the very recent service of Dr Robertson’s report.

Breach of case management conditions and prejudice

  1. Likewise, there is some force to the prosecutor’s submissions at [62]-[66] above in relation to the defendants’ breach of the case management provisions in the Criminal Procedure Act, and prejudice to it.

  2. Procedural fairness applies to both parties in criminal proceedings. The interests of justice require regard to the community’s right to expect that persons charged with a criminal offence are brought to trial: Jago v District Court of NSW. [21] Prejudice to the prosecutor is an important consideration given that the prosecution is taken on behalf of the community: Barton v The Queen. [22] As referred to in the Balmoral Farms certificate decision at [30], in Secretary, Department of Planning and Environment v Harris,[23] Sweeney J (with whom Adams J and Hulme AJ agreed), in deciding to grant leave to appeal against the decision to refuse leave to the prosecutor to tender supplementary evidence, said at [86] (emphasis added):

…Fairness and justice required that her Honour take into account the interest of both parties to the proceedings. The interests of justice require intervention by this Court.

21. (1989) 168 CLR 23 at 33; [1989] HCA 46 (Mason CJ); Barton v The Queen (1980) 147 CLR 75 at 102; [1980] HCA 48 (Gibbs ACJ and Mason J).

22. (1980) 147 CLR 75 at 101; [1980] HCA 48 (Gibbs ACJ and Mason J).

23. [2024] NSWCCA 88.

  1. In Sutherland Shire Council v Benedict Industries (No 3), [24] Pepper J said at [68] as follows in relation to the exercise of the Court's discretion to grant leave to rely on further evidence under the regime in Division 2A of Part 5 of Chapter 4 of the Criminal Procedure Act:

From the available case law, it would appear that the touchstone for the exercise of the Court's discretion to grant leave to rely on further evidence under the Division 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave…

24. [2015] NSWLEC 97.

  1. In Sutherland Shire Council v Benedict Industries Pty Ltd (No 2), Craig J observed as follows in relation to the case management regime as it pertains to expert evidence [25] :

    25. [2015] NSWLEC 39.

[75] It seems to me that the provisions of Div 2A, properly construed, are intended to address the situation described in the preceding paragraphs by ensuring that both prosecution and defence know the expert evidence that is likely to be led in each of their respective cases. Relevantly, the requirement that the defence disclose, in advance of trial, the report of an expert intended to be called, is the only evidence of any kind that the defendant can be required to disclose by way of preliminary disclosure (see “Note” to s 247N(1)). The manner in which expert evidence is to be addressed procedurally under Div 2A may therefore be seen to fall into a special or distinct category. It is reasonable to infer that the requirement for disclosure of such evidence by both sides was seen by the legislature as having the potential to reduce the time of trial, thereby fulfilling the purpose expressed in s 247B.

[76] The provisions of s 247L support not only the particular or special emphasis given to expert evidence in Div 2A but also provides support for the contention that expert evidence by way of reply may properly be served as part of the prosecutor’s obligation for preliminary disclosure. Although the provisions of 247L have earlier been quoted, the relevant provisions bear repeating:

“247L Prosecution response to defence response – court-ordered preliminary disclosure

For the purposes of section 247I(1)(c), the notice of the prosecution response to the defence response is to contain the following:

(a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect, …”.

…

[79] The particular or special regime in Div 2A pertaining to expert reports is given further emphasis by s 247N(2). That subsection expressly empowers the court to refuse to admit expert evidence in proceedings if the party seeking to call the evidence fails to give the other party a copy of that expert’s report in accordance with the requirements of preliminary disclosure. Read in context with s 247L(a), it seems to me that if it is necessary to make good by evidence the respects in which a defendant’s expert report is disputed, the prosecution report supporting the basis of that dispute must be served upon the defendant.

  1. However, having decided to refuse the application for the voir dire in relation to the admissibility of the evidence of Dr Robertson, and that s 189 of the Evidence Act has no present application, it does not arise presently to decide the prosecutor’s complaint in relation to the defendants’ breach of the case management provisions in the Criminal Procedure Act, and prejudice to it.

Orders

  1. The defendants’ application to read the affidavit of Dr David Robertson dated 13 May 2025 and tender Exhibit DR-1 thereto, being Dr Robertson’s expert report dated 13 May 2025, on the voir dire is refused.

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Endnotes

Decision last updated: 20 May 2025

Most Recent Citation
Cases Cited

26

Statutory Material Cited

4

Barton v the Queen [1980] HCA 48
Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2
Barton v the Queen [1980] HCA 48