WaterNSW v Harris (No 2)

[2019] NSWLEC 14

Land and Environment Court

New South Wales

Medium Neutral Citation:

WaterNSW v Harris (No 2) [2019] NSWLEC 14

Hearing dates:

11 February 2019

Date of orders:

11 February 2019

Decision date:

12 February 2019

Jurisdiction:

Class 5

Before:

Robson J

Decision:

Prosecutor’s application for leave to adduce oral evidence-in-chief granted

Catchwords:

EVIDENCE — Leave sought by prosecutor to adduce oral evidence-in-chief — Whether defendants prejudiced by the calling of oral expert evidence — Leave granted

Legislation Cited:

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

Land and Environment Court Rules 2007 (NSW) r 5.2

Uniform Civil Procedure Rules 2005 (NSW) Pt 31, r 31.21

Texts Cited:

Australian Standard 3778: Measurement of Water Flow in Open Channels

Land and Environment Court Practice Note – Class 5 Proceedings

Category:

Procedural and other rulings

Parties:

In proceedings 2018/00073936
WaterNSW (Prosecutor)
Peter Harris (Defendant)

In proceedings 2018/00073940
WaterNSW (Prosecutor)
Jane Harris (Defendant)

Representation:

Counsel:
S W Aspinall with M Maconachie (Prosecutor)
M R Elliott SC with C R Ireland (Defendants)

Solicitors:
Norton Rose Fulbright (Prosecutor)
Horton Rhodes Lawyers (Defendants)

File Number(s):

2018/00073936; 2018/00073940

Publication restriction:

No

Judgment

1. Prior to the luncheon adjournment on Monday 11 February 2019, the first day of these Class 5 proceedings, Mr S W Aspinall of counsel, who appeared with Mr M Maconachie of counsel for WaterNSW (‘prosecutor’), made an application for leave to adduce oral evidence-in-chief from Glenn McDermott, an expert called by the prosecutor in response to some specific matters raised in an expert report of Daniel Martens (‘Dr Martens’ report’) dated 8 February 2019. Dr Martens’ report was prepared for Peter and Jane Harris (collectively, the ‘defendants’) and was provided to the prosecutor on Friday 8 February 2019. For the purpose of the application, Dr Martens’ report was tendered without objection.

2. At the time of the application, Mr McDermott’s affidavit attaching his expert report (‘McDermott report’) had been read in the prosecutor’s case.

3. Having heard submissions and considered short evidence tendered in the application, I granted leave to the prosecutor to call further oral evidence from Mr McDermott and, apart from a short summary, deferred the giving of reasons. My reasons follow.

Background

4. Mr Aspinall indicated that if leave was granted, Mr McDermott’s further oral evidence could be given on that day and such evidence would only be in response to the affidavit and Dr Martens’ report.

5. In support of the application, the prosecutor made a number of submissions which may be summarised as follows:

1. The prosecutor had no notice of Dr Martens’ report until last Friday. Two notices had been filed by the defendants pursuant to s 247K of the Criminal Procedure Act 1986 (NSW) (‘Criminal Procedure Act’) on 2 November 2018 and 7 February 2019 respectively (‘s 247K notices’). Each provided as follows:

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,

Nothing enclosed; no such report exists.

2. Despite the s 247K notices, it was only on 8 February 2019 (the last business day before the commencement of the hearing) that the defendants provided the affidavit of Dr Martens to the prosecutor. Although the content of each of the s 247K notices was “technically” correct, that is, that “no such report exists”, it is clear from Dr Martens’ report that he had been retained by the defendants’ solicitors to prepare an expert report at least on or before 4 February 2019.

3. Dr Martens’ report “attacks some of the key conclusions in relation to the reliability of the gauge flow...” and puts the prosecutor on notice of potential defences which the defendants wish to raise. If those matters are not dealt with in the prosecutor’s case, then the rule against case splitting will apply and such evidence cannot be raised in reply.

4. The specifics of the complaints made by Dr Martens in his report were “quite different from a generalised objection on every point” as contained in the s 247K notices in circumstances where the “whole purpose” of s 247K of the Criminal Procedure Act is to eliminate delays. Whilst the prosecution does not desire an adjournment, fairness requires that the issues raised by Dr Martens’ report be responded to by Mr McDermott.

5. Accepting that there is some prejudice to both sides (noting that if the prosecutor had earlier notice, Mr McDermott would have been able to prepare a supplementary report as required by r 31.21 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’)), because Mr McDermott is able to give a short “verbal account” of his disagreement regarding a number of Dr Martens’ conclusions, the interests of justice favour allowing Mr McDermott to give the evidence.

6. Leave is only sought for Mr McDermott to consider and respond to discrete paragraphs in Dr Martens’ report.

6. Mr M R Elliott of senior counsel, who appeared with Mr C R Ireland of counsel for the defendants, opposed leave being granted and, in summary, submitted:

1. Earlier hearing dates (set down last year) were vacated to facilitate the prosecutor marshalling expert evidence.

2. Mr McDermott’s present evidence, properly understood, involves the performance of a “statistical exercise” for the purposes of testing whether the “rating curve” used by the prosecutor traverses what might be called an appropriate line through the underlying data points (in order to estimate the flow rates upon which the prosecutor relies). In his evidence, Mr McDermott “makes his own line through the same dot points”, which are themselves summaries of data provided to the prosecutor by inspectors who undertake “gaugings”. Dr Martens addresses something “quite different” in that he deals with the actual collection of the data in the first place and whether the dot points are a “relevant and useful reference point” for the purpose of plotting the “rating curve”.

3. Understood as such, the prosecutor has been on notice of this concern for “months” and it is not a new issue only exposed through Dr Martens’ report. In any event, the prosecutor’s witness who has dealt with this material is Andrew Thomas Cutler, Hydrometric Coordinator (and not Mr McDermott).

4. The adjournment (in November last year) was after the defendants had objected to a number of aspects of the affidavits served by the prosecutor and it was the prosecutor’s then desire to adduce expert evidence after the defendants had notified them of their objections.

5. Perusal of the s 247K notice of 2 November 2018 providing the objections, particularly to Mr Cutler’s affidavit, indicates that the objections related to “flow issues” and an objection to the accuracy and reliability thereof. Dr Martens seeks to address this very point. In the circumstances, the prosecutor has been on notice of this and it is not a new issue as submitted by the prosecutor.

6. The application to allow Mr McDermott to give further evidence is an attempt to adduce evidence in reply to Dr Martens’ report when, in fact, it was an issue that was raised by the defendants in November.

7. The notification of Dr Martens’ report was in accordance with the requirements of s 247K of the Criminal Procedure Act because it was provided once it was “in existence”.

8. The defendants are entitled to the right of silence and the provision of the Dr Martens’ report (pursuant to s 247K) is not an opportunity to give the prosecutor a “second chance at putting its evidence together”.

9. To the extent that the prosecutor seeks to have Mr McDermott address the matters where Dr Martens discretely “responds to the evidence of Mr McDermott”, the defendants will not rely upon that part of Dr Martens’ report (if the report is to be relied upon at all).

7. In reply, Mr Aspinall referred to r 5.2 of the Land and Environment Court Rules 2007 (NSW) (‘LEC Rules’) which, pursuant to r 5.2(2)(f), makes Pt 31, r 31.21 of the UCPR applicable. He submitted that expert evidence is in a different category to lay evidence in that expert evidence-in-chief could not be given otherwise than by a written expert report unless the Court orders; and the objections to the lay evidence communicated in the s 247K notices are “quite different” to that which Dr Martens has sought to express in relation to the reliability of the gaugings and the like. Mr Aspinall submitted that Mr McDermott’s evidence would be “15 – 20 minutes” and, in all the circumstances, the interests of justice would be balanced by allowing the defendants some time to take instructions prior to any cross-examination of Mr McDermott.

Consideration

8. I have considered Dr Martens’ report; the transcript of the application to vacate the earlier hearing dates (which I heard at the request of the prosecutor last November); and the McDermott report (Exhibit C in the proceedings). I have also considered ss 247J and 247K of the Criminal Procedure Act; Pt 31, r 31.21 of the UCPR; r 5.2 of the LEC Rules; the Court’s Practice Note – Class 5 Proceedings; and case management matters. Whilst I consider that there is some prejudice to both parties, the interests of justice are appropriately balanced by granting leave to allow Mr McDermott to address the matters raised by Dr Martens. My reasons may be briefly stated.

9. First, the provision of an expert report (albeit in compliance with s 247K of the Criminal Procedure Act) on the last business day before the hearing commenced, which raises a number of the primary aspects of the defendants’ case and responds specifically to the evidence of a number of the prosecutor’s witnesses, does put the prosecutor on notice of matters which have not been necessarily brought to the prosecutor’s attention simply by objections earlier communicated in the s 247K notices.

10. Second, Dr Martens’ report (even in circumstances where it may not be relied upon) has raised concerns in relation to river flow measurements, rating curves and rating tables. Dr Martens’ report has made comments on and observations in relation to the McDermott report, specifically regarding the manner in which the Bourke Gauge Rating Curve and the Bourke Gauge Rating Table (about which there is significant evidence) are prepared in accordance with the recommended practice in Australian Standard 3778: Measurement of Water Flow in Open Channels. Dr Martens’ “observations” (at p 17 and following) in relation to the McDermott report are quite different to the “generalised objection on every point” which the prosecutor says is provided in the s 247K notices.

11. Third, to the extent that the defendants say that Dr Martens’ report deals with “something quite different to Mr McDermott”, Mr McDermott’s response will be limited to those discrete issues.

12. Fourth, although the defendants submit that the vacation of the earlier hearing dates granted last November was to the defendants’ “ultimate prejudice”, I do not consider this to be relevant. The transcript of the proceedings then before me on 15 November 2018 reveals that the prosecutor’s expert report (which had only recently been prepared and not finalised) was said, by counsel then appearing for the prosecutor, to relate to the “flow of the relevant gauge at the relevant time” which was a “critical element of the offence and [is] being prepared in response to a specific objection raised in the initial and lay evidence as to the accuracy or otherwise of the data contained in that evidence.” Further, it was suggested (by then counsel for the prosecutor) that there was a chance that the “anticipated report of the expert – Mr McDermott”, “...may be favourable to the defendants in circumstances where it may shorten the charge period given the potential uncertainty as to the flow rate.” I do not consider these matters to be relevant to the present application.

13. Fifth, taking into account the serious nature of these proceedings, an adjournment would be unfortunate particularly given the history of the matter and in circumstances where I am informed that Mr McDermott’s oral evidence in response to Dr Martens’ report will be quite short and in the order of 15 to 20 minutes. As Mr McDermott is the first witness who is anticipated to give evidence on the first day of the hearing, I consider that the interests of justice and the appropriate balancing of prejudice caused to both parties can be met by granting the prosecutor leave to have Mr McDermott deal briefly in oral evidence with the matters referred to above. I will then allow reasonable time for the defendants to obtain appropriate instructions before any cross-examination of Mr McDermott. While I accept, as submitted by both counsel, that this approach is not “ideal”, I consider it to be fair to both parties. Thus, it is in the interests of justice to allow Mr McDermott to give short further evidence.

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Decision last updated: 08 September 2020