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 3)

Case •

[2025] NSWLEC 50

•

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 3) [2025] NSWLEC 50
Hearing dates: 20 May 2025 and submissions filed 19 and 20 May 2025
Date of orders: 20 May 2025
Decision date: 20 May 2025
Jurisdiction:Class 5
Before: Pritchard J
Decision:

The defendants’ application pursuant to s 247P of the Criminal Procedure Act for an order waiving requirements of Division 2A of the Criminal Procedure Act concerning preliminary disclosure and case management measures in relation to the affidavit of Dr David Robertson dated 13 May 2025 and Exhibit DR-1 thereto is refused.

Catchwords:

PROCEDURAL RULINGS – environment and planning – offences – prosecution objection to defendants’ tender of expert report during trial

Legislation Cited:

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

Cases Cited:

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

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

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

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

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

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

  1. In a judgment delivered this morning, I refused 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: 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) [1] (the voir dire judgment). In this judgment, I adopt the definitions and legislative provisions set out in the voir dire judgment.

    1. [2025] NSWLEC 49.

  2. The defendants now seek leave pursuant to s 247P of the Criminal Procedure Act 1986 (NSW) to read Dr Robertson’s affidavit and tender the expert report exhibited to his affidavit as evidence in their case. Following the tender by the prosecutor of the s 60F certificate this morning, the prosecution is ready to close its case. However, it was agreed between the prosecutor and the defendants on this the last day of the hearing in trial 2, that the question of leave to the defendants to rely on Dr Robertson’s material ought be decided before the prosecution closes its case.

  3. In this judgment, I consider the question of leave, that being a separate and anterior question to that of admissibility (the prosecutor having foreshadowed numerous objections to Dr Robertson’s report) which I do not need to presently consider.

  4. I have today read the affidavit of David Robertson dated 13 May 2025 and Exhibit DR-1 thereto, being a report prepared by Dr Robertson dated 13 May 2025, and taken them into consideration in this decision on whether to grant leave to the defendants to read the affidavit and tender the report of Dr Robertson. Neither the affidavit nor the report provides any explanation as to why it was not until 12 May 2025 that Dr Robertson was supplied by the defendants’ solicitor Mr McGirr with documents from a report prepared by the prosecutor’s expert Mr Watts:

  • Appendix 5 being the s 60F certificate dated 12 October 2020;

  • Appendix 12 being an aerial photograph dated 8 and 20 June 1985; and

  • Appendix 13 being an aerial photograph dated 12 June 1992.

  1. Nor does the affidavit or the report provide any explanation as to why it was not until 12 May 2025 that Dr Robertson was asked by the defendants’ solicitor to provide his expert opinion on “the areas marked in yellow on the Section 60F Certificate (relating to the properties Woolondoon and Curly Whirl) as to whether any parts of those areas had been cleared of vegetation prior to 1 January 1990, and if so, the reasons for your opinion”. The defendants have been in possession of that material since at least 28 May 2021 when the prosecutor served its s 247E notice to which the s 60F certificate was an appendix.

  2. The prosecutor submitted that the Court ought determine the question of leave immediately, and indicated that it relies on the written submissions it filed and served on the defendants’ application for the voir dire. Mr Ireland, for the defendants, sought an adjournment in order to put a written outline to the Court on the question of leave. Although this course was opposed by the prosecutor, I acceded to the request of Mr Ireland and directed that the defendants file any written submissions on the question of leave by 1pm, and adjourned the hearing until 2pm. The prosecutor reserved its position in relation to further submissions depending upon the matters raised in Mr Ireland’s written outline.

  3. In their written outline, the defendants submitted that in light of the evidence of Dr Robertson proposed for the purposes of the present leave application, the Court ought take into account the following matters:

  1. Instructions to Dr Robertson were “provoked” by the evidence of Ms Rae first given on 2 May 2025 in the first trial and the evidence of Mr Murphy and Mr Watts given on 12 May 2025 in the second trial. It would be appreciated that the Court's decision on the tender of the s 60F certificate at the first trial preceded any of this evidence which “explains the importance of the evidence of Ms Rae and Mr Watts in particular when it did emerge later.”

  2. There is no basis for a conclusion that anything was held back, either for tactical or any other reasons, until the circumstances of preparation of the maps annexed to the s 60F certificate emerged.

  3. Hence, the position is reached that, it now being established firmly that Mr Watts had no part in the preparation of the maps of the two farms or the identification of exempt and regulated land on them, an independent assessment of what parts of those farms had been cleared before 1 January 1990 was justified by the defence.

  1. In its written submissions filed yesterday, Monday, 19 May 2025 in relation to the defendants’ voir dire application, the prosecutor objected to the reading of Dr Robertson’s affidavit and the tender of his report on the grounds of breach of the disclosure requirements of the Criminal Procedure Act, procedural fairness and prejudice to the prosecutor. The prosecutor submitted that fairness and justice dictate that the application by the defendants to admit this evidence 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). The defendants’ 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. When Court resumed at 2pm today, I was further addressed by the defendants and the prosecutor in relation to the question of leave to rely upon the Dr Robertson material.

  3. The prosecutor submitted as follows in relation to the defendants’ submission that something arose in the course of the prosecutor’s case that put doubt in relation to the validity of the s 60F certificate that necessitated the expert evidence:

  1. It was not necessary for Mr Black to have produced the maps appended to the certificate. Nothing was said by Ms Rae or Mr Watts that casts down on the validity of the s 60F certificate. Mr Watts’ evidence was to the effect that he was provided the s 60F certificate and he was asked to identify whether vegetation changes he had identified were upon category 1-exempt land or category 2-regulated land. Mr Watts’ report outlines what he was asked to do. It makes clear that the certificate was an “assumption”. He was not involved in the preparation of it or the question of how the properties were to be categorised.

  2. There was no new information so as to make the material of Dr Robertson “necessary”.

  3. In relation to whether Mr Black himself had to prepare the maps appended to the s 60F certificate, all that was required was that the Environment Agency Heard held a “belief” as to the category of the land, not that he himself prepared the maps. Nothing unforeseen had arisen in the prosecution’s case.

  4. There would be no unfair prejudice to the defendants in circumstances where the evidence adduced at the trial does not provide any support for the notion that some new issue had arisen that justified the defendants seeking a late expert report.

  1. In relation to prejudice to the prosecutor, Ms Wright referred to additional costs and resources.

  2. In its oral submissions this afternoon, Mr Ireland for the defendants referred to their written outline filed shortly before 1pm today and submitted that there could be no suggestion that the Dr Robertson material was not deployed earlier for strategic reasons or that it was held back. The defendants had pointed to evidence that provoked the application, and “Dr Robertson was instructed the very same day”.

  3. I have accepted the prosecutor’s submissions in relation to the defendants’ breach of the statutory disclosure requirements and prejudice to the prosecutor. In the voir dire judgment, I set out the relevant procedural background at [12] to [27].

  4. I have determined to refuse the defendants’ application to read the affidavit of Dr Robertson and tender his expert report. In particular, I find that:

  1. It would not be in the interests of justice to grant leave to the defendants to rely on Dr Robertson’s expert report which was served on the prosecutor 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.

  2. No notice was given by the defendants in accordance with s 247K of the Criminal Procedure Act, which provides in relation to court-ordered preliminary disclosure by the defence that the notice of the defence response is to contain inter alia “(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”.

  3. Nor was notice given that the s 60F certificate was objected to. The sanctions in s 247N for non-compliance with preliminary disclosure requirements include in subsection (1) that 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 Division 2A. In particular, pursuant to subsection (2) 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 Division 2A.

  4. I accept the submission of the prosecutor 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. When served with an expert report the prosecutor would ordinarily have time prior to the hearing to provide the report to its own expert, or engage another expert and have them provide an opinion.

  5. 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. [2] Prejudice to the prosecutor is an important consideration given that the prosecution is taken on behalf of the community: Barton v The Queen; [3] Secretary, Department of Planning and Environment v Harris. [4]

    2. (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).

    3. (1980) 147 CLR 75 at 101; [1980] HCA 48 (Gibbs ACJ and Mason J).

    4. [2024] NSWCCA 88.

  6. As Justice Pepper said in Sutherland Shire Council v Benedict Industries (No 3) [5] at [68], 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.

    5. [2015] NSWLEC 97.

  7. Section 247L(a) anticipates that the prosecutor has sufficient opportunity to answer any disclosed intention to adduce expert evidence at the hearing. The defendants breached orders in relation to the filing of s 247F and s 247K notices. That is a weighty consideration in exercising the discretion whether to refuse to admit the report of Dr Robertson under s 247N. 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. Dr Robertson was referred to as a possible expert by the defendants' solicitor Mr McGirr in 2024. As Craig J said in Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) “the provisions of Div 2A, properly construed, are intended to…[ensure] that both prosecution and defence know the expert evidence that is likely to be led in each of their respective cases.” [6]

  8. As noted above at [5], neither the affidavit nor the report of Dr Robertson provides any explanation as to why it was not until 12 May 2025 that he was asked by the defendants’ solicitor to provide his expert opinion on “the areas marked in yellow on the Section 60F Certificate (relating to the properties Woolondoon and Curly Whirl) as to whether any parts of those areas had been cleared of vegetation prior to 1 January 1990, and if so, the reasons for your opinion”. The defendants have been in possession of that material since at least 28 May 2021 when the prosecutor served its s 247E notice to which the s 60F certificate was an appendix.

  9. Dr Robertson’s report contains no reference to any of the oral evidence given under cross-examination by the prosecutor’s witnesses, in particular Ms Rae and Mr Watts, referred to by the defendants in their submissions on the voir dire application in relation to the reliability of the s 60F certificate. [7] This sits uncomfortably with the defendants’ submission, recorded in the voir dire judgment at [69] in relation to the timing of the defendants’ decision to put forward evidence from Dr Roberston. Namely, the defendants’ submitted that at time of the pre-trial mention on 13 March 2025 the defendants did not have an expert case to present and what emerged was the “surprising evidence on 12 May 2025 of Mr Watts” coupled with Ms Rae’s evidence, which had been elicited in the first trial and the transcript of which was tendered in trial 2 on 12 May 2025. The maps appended to the s 60F certificate had been provided to the defendants by no later than 28 May 2021. And, if it be the subject of a finding to be made by the Court, as submitted by the defendants on this application for leave, “[i]t can be seen even at a cursory glance at the maps annexed to the S.60F Certificate that there are large areas of exempt land on both farms”.

  10. As to prejudice to the defendants, if the evidence is excluded, it is noteworthy that the defendants’ cross-examination of the prosecution's witnesses, in particular Ms Rae and Mr Watts, adduced concessions or admissions in relation to the unreliability of the s 60F certificate, and the areas of Woolondoon and Curly Whirl that were cleared prior to 1 January 1990, upon which the defendants will presumably rely in their closing submissions. As submitted by the defendants on this application for leave, these will be matters for the prosecutor in discharging its burden of proof.

  11. In deciding to refuse the defendants leave pursuant to s 247P of the Criminal Procedure Act to rely on the Dr Robertson material, I do not need to determine the prosecutor’s submission in relation to the “forensic choice”, said to have been “made knowingly in contravention of the case management provisions governing the conduct of Class 5 proceedings”. There is no evidence before me capable of supporting a finding that the Dr Robertson material was not deployed earlier for strategic reasons or that it was held back.

    6. [2015] NSWLEC 39 at [75].

    7. In its written submissions on the leave application, the defendants say at [6] that “it was not specifically stated by her Honour whether she had read the extracts of trial Transcript from Ms Rae, Mr Murphy or Mr Watts.” Her Honour was, of course, in court when that evidence was given, and the extracts are reproduced in the voir dire judgment.

  1. Pursuant to s 247N(2) of the Criminal Procedure Act, I refuse to admit the report of Dr Robertson in circumstances in which the defendants failed to give the prosecutor a copy of the report in accordance with requirements for preliminary disclosure imposed by or under Division 2A of the Criminal Procedure Act. That report, having been prepared by a person whom the defendants intend to call as an expert witness at the hearing of the proceedings was required to be disclosed pursuant to s 247K(f).

  2. The defendants’ application pursuant to s 247P of the Criminal Procedure Act for an order waiving requirements of Division 2A of the Criminal Procedure Act concerning preliminary disclosure and case management measures in relation to the affidavit of Dr David Robertson dated 13 May 2025 and Exhibit DR-1 thereto is refused.

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Endnotes

Decision last updated: 20 May 2025

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

1

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