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 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

The Prosecutor had not disclosed the new expert evidence as soon as practicable, gave little explanation for the delay, and did not provide the new expert reports to the Court. Given the proximity of the first trial date, the substantial and technical nature of the new expert material, the Defendants' prior decisions based on the evidence served in 2021 and July 2023, and the real possibility that the Defendants would need expert evidence that could not be obtained in time without jeopardising the fixed trials, the prejudice to the Defendants outweighed the Prosecutor's interest in relying on the new reports. The new reports of Mr Watts and Dr Hammil therefore could not be relied upon....

Jurisdiction
Australia
Judgment Date
24 April 2024
Procedural Posture
Class 5 Criminal Proceedings for Offences of Clearing Native Vegetation / Procedural Ruling on the Prosecutor's Informal Application for Leave to Amend Its S 247 E Notice and Rely on Additional Affidavit and Expert Evidence Before Contested Liability Hearings
Outcome
Leave to rely on the uncontested affidavits and evidentiary certificates was allowed; leave to rely on the new expert reports of Mr Watts and Dr Hammil was refused; reliance on Mr Murphy's further affidavit was limited to material repeating what was in Mr Smith's earlier affidavit; the Prosecutor was required to...
Legal Topics
['case Management of Prosecution Evidence' 'preliminary Disclosure' 'amendment of S 247 E Notice' 'leave to Rely on Additional Evidence' 'expert Evidence' 'prejudice to Defendants' 'contested Criminal Trials']
['criminal Procedure' 'environmental Law' 'native Vegetation Clearing'] ['case Management of Prosecution Evidence' 'preliminary Disclosure' 'amendment of S 247 E Notice' 'leave to Rely on Additional Evidence' 'expert Evidence' 'prejudice to Defendants' 'contested Criminal Trials']

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Procedural Posture

Class 5 Criminal Proceedings for Offences of Clearing Native Vegetation / Procedural Ruling on the Prosecutor's Informal Application for Leave to Amend Its S 247 E Notice and Rely on Additional Affidavit and Expert Evidence Before Contested Liability Hearings

Legal Issues

  1. 1 ['Whether the Prosecutor should be given leave to amend its s 247E notice and rely on additional affidavit evidence and evidentiary certificates served in March 2024.' 'Whether the Prosecutor should be permitted to rely on three new reports of Mr Watts and a supplementary report of Dr Hammil served about three months before the first fixed trial date.' 'Whether the Prosecutor should be permitted to rely on a further affidavit of Mr Murphy and, if so, to what extent.' 'Whether the delay in serving the additional evidence and the potential prejudice to the Defendants justified refusing leave to rely on the new expert reports.']

Ratio Decidendi

The Prosecutor had not disclosed the new expert evidence as soon as practicable, gave little explanation for the delay, and did not provide the new expert reports to the Court. Given the proximity of the first trial date, the substantial and technical nature of the new expert material, the Defendants' prior decisions based on the evidence served in 2021 and July 2023, and the real possibility that the Defendants would need expert evidence that could not be obtained in time without jeopardising the fixed trials, the prejudice to the Defendants outweighed the Prosecutor's interest in relying on the new reports. The new reports of Mr Watts and Dr Hammil therefore could not be relied upon....

Court Disposition

Leave to rely on the uncontested affidavits and evidentiary certificates was allowed; leave to rely on the new expert reports of Mr Watts and Dr Hammil was refused; reliance on Mr Murphy's further affidavit was limited to material repeating what was in Mr Smith's earlier affidavit; the Prosecutor was required to...

Orders

  • ['The Prosecutor may rely on the affidavit of Susan Patricia Rae dated 22 March 2024.' 'The Prosecutor may rely on the affidavit of Peter Jobson dated 20 March 2024.' 'The Prosecutor may rely on the affidavit of Sarah Carr dated 22 March 2024.' 'The Prosecutor may rely on the affidavit of Dennis Boschma dated 24...