Chief Executive of the Office of Environment and Heritage v Kurstjens [2015] NSWLEC 140

Chief Executive of the Office of Environment and Heritage v Kurstjens [2015] NSWLEC 140

The Defendants' application for a preliminary hearing was premature because disclosure procedures under Div 2A of the Criminal Procedure Act 1986 (NSW) had not yet been adopted or ordered, leaving insufficient clarity about the issues in dispute. On the disclosure issue, s 247K(d) plainly requires a defendant to disclose objections to the admissibility of all proposed evidence, including expert evidence, and the basis for those objections; s 247K(e) deals separately with disputes about expert evidence. This construction accords with the delay-reduction purpose of Div 2A and is supported by s 247M(2).

Jurisdiction
Australia
Judgment Date
01 September 2015
Procedural Posture
Class 5 Proceedings for Vegetation Clearing Offences / Procedural Ruling on the Defendants' Notice of Motion Seeking Leave for a Preliminary Hearing Concerning Admissibility of Evidence
Outcome
The Defendants' application for a preliminary hearing was treated as premature; the Court indicated that disclosure orders under ss 247J and 247K should be made and that the precise terms would be discussed before finalisation.
Legal Topics
['preliminary Disclosure' 'defence Response' 'admissibility of Expert Evidence' 'preliminary Hearing' 'vegetation Clearing Offences']
['criminal Procedure' 'evidence' 'environmental Law'] ['preliminary Disclosure' 'defence Response' 'admissibility of Expert Evidence' 'preliminary Hearing' 'vegetation Clearing Offences']

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Procedural Posture

Class 5 Proceedings for Vegetation Clearing Offences / Procedural Ruling on the Defendants' Notice of Motion Seeking Leave for a Preliminary Hearing Concerning Admissibility of Evidence

Legal Issues

  1. 1 ["Whether the Defendants' application for a preliminary hearing on admissibility was premature before disclosure procedures under Div 2A of the Criminal Procedure Act 1986 (NSW) had been adopted or ordered." 'Whether s 247K(d) of the Criminal Procedure Act 1986 (NSW) requires a defendant to disclose the basis for objections to the admissibility of expert evidence, notwithstanding s 247K(e).']

Ratio Decidendi

The Defendants' application for a preliminary hearing was premature because disclosure procedures under Div 2A of the Criminal Procedure Act 1986 (NSW) had not yet been adopted or ordered, leaving insufficient clarity about the issues in dispute. On the disclosure issue, s 247K(d) plainly requires a defendant to disclose objections to the admissibility of all proposed evidence, including expert evidence, and the basis for those objections; s 247K(e) deals separately with disputes about expert evidence. This construction accords with the delay-reduction purpose of Div 2A and is supported by s 247M(2).

Court Disposition

The Defendants' application for a preliminary hearing was treated as premature; the Court indicated that disclosure orders under ss 247J and 247K should be made and that the precise terms would be discussed before finalisation.

Orders

  • ["The Defendants' Notice of Motion seeking a preliminary hearing should be stood over until disclosure orders have been complied with." 'The precise terms of the orders regarding disclosure under ss 247J and 247K will be discussed with the parties before being finalised.']