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Court of Criminal Appeal 20 May 2013

Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage

[2013] NSWCCA 114

Also reported as (2013) 298 ALR 532
Other
CRIMINAL LAW ENVIRONMENTAL OFFENCES S 118A(2) EXPERT WITNESS CODE ADMISSIBILITY OF EXPERT REPORTS CHAIN OF POSSESSION

Citation: Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114
Court: Court of Criminal Appeal
Date: 20 May 2013
Judge(s): Price J, McCallum J, Schmidt J

Background

The appellant company was the registered proprietor of a rural property of approximately 40 hectares at Gilead on the Southern Tablelands of New South Wales. It pleaded guilty to picking plants forming part of the Shale/Sandstone Transition Forest (SSTF), an endangered ecological community listed under the Threatened Species Conservation Act 1995, contrary to s 118A(2) of the National Parks and Wildlife Act 1974 (the NPW Act).

The prosecution tendered expert reports from a botanist and a soil scientist to establish, among other things, the area of SSTF that had been cleared. The botanist estimated 12.54 hectares had been cleared; the soil scientist estimated approximately 5 hectares of the property was consistent with transitional soils described in the Scientific Committee's final determination. The trial judge in the Land and Environment Court admitted both reports and found 12.54 hectares had been cleared, characterising the offence as moderate to severe in objective seriousness.

The appellant appealed against the sentence on 13 grounds, broadly challenging the admissibility of the expert evidence, the proper construction of the Scientific Committee's final determination, and the approach to sentencing in Class 5 proceedings.

  • Whether the expert reports of the botanist and the soil scientist were admissible, having regard to the requirements for expert opinion evidence and the chain of possession of samples relied upon
  • Whether the soil scientist's report should have been excluded under s 135 or s 137 of the Evidence Act 1995 on the basis that its probative value was substantially outweighed by unfair prejudice
  • Whether the trial judge correctly construed the final determination of the Scientific Committee in identifying what constitutes SSTF
  • Whether the correct sentencing approach was applied to a Class 5 criminal matter in the Land and Environment Court, including the standard of proof and the assessment of objective seriousness
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal allowed the appeal and quashed the sentence and associated orders. Price J (with McCallum J and Schmidt J agreeing) held that the soil scientist's report ought not to have been admitted, or at minimum should have been excluded in the exercise of the court's discretion.

On admissibility, the soil scientist had relied upon soil particle size analysis conducted by an unidentified third party at an unidentified laboratory. The chain of custody of the soil samples was not disclosed and no one was called to give evidence about the analysis. Price J held that the probative value of the opinions rested on this untested factual foundation and was substantially outweighed by the danger of unfair prejudice to the appellant. The report should have been excluded under s 135 of the Evidence Act. McCallum J added that, in criminal proceedings, exclusion was also mandated by s 137. Schmidt J went further, concluding the report was inadmissible in the first instance because the unproved assumed facts provided a significant basis for the opinion, meaning it lacked sufficient foundation to be received at all.

The judges were not entirely in agreement on the precise mechanism of exclusion. Price J accepted the trial judge was entitled to find the report admissible but erred in not exercising the discretion to exclude it. Schmidt J concluded it was inadmissible outright. McCallum J agreed with the outcome but expressed some hesitation about definitively resolving the admissibility question given the trial judge's advantage in assessing the expert's evidence in cross-examination and re-examination. All three agreed, however, that the admission of the report resulted in appealable error.

Because the matter was remitted for resentencing, the Court did not need to finally resolve all remaining grounds of appeal, including the construction of the final determination and the sentencing approach issues, though the reasons address the applicable principles in some detail to guide the proceedings on remittal.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Orders made by Pain J on 20 March 2012 (including the penalty and all ancillary orders) quashed
  • Matter remitted to the Land and Environment Court to be dealt with in accordance with the Court of Criminal Appeal's reasons

Key Takeaways

  • An expert's opinion in criminal proceedings may be inadmissible, or subject to exclusion, where critical facts assumed by the expert as the basis for the opinion have not been proved and cannot be tested, particularly where the chain of custody of samples relied upon was not disclosed and no witness gave evidence about the underlying analysis.
  • Under s 137 of the Evidence Act 1995, in criminal proceedings the court must refuse to admit evidence whose probative value is outweighed by the danger of unfair prejudice to the defendant; McCallum J confirmed this provision applied independently and mandated exclusion of the soil scientist's report.
  • Schmidt J's analysis clarified that the admissibility of expert opinion evidence turns on the significance of any unproved assumed facts to the opinion: where those facts provide a minor part of the foundation, the opinion may still be admitted (with weight affected); where they provide a significant foundation, the opinion may be inadmissible for want of any established basis.
  • The Court of Criminal Appeal confirmed that the standard applied in criminal sentencing proceedings is proof beyond reasonable doubt, a point of ongoing relevance in Class 5 proceedings in the Land and Environment Court where the applicable standard had been in issue.
  • Remittal, rather than resentencing by the appellate court, was the appropriate remedy given the need for factual findings to be made afresh in light of the exclusion of the soil scientist's evidence.

Legislation and Cases Referenced

Legislation
- National Parks and Wildlife Act 1974 (NSW): ss 5, 118A(2), 194(1)(d), 197(2A), 200, 205(1)(a), 205(1)(d)
- Threatened Species Conservation Act 1995 (NSW): s 4, Sch 1 Pt 3, s 23
- Evidence Act 1995 (NSW): ss 76, 79, 135, 137
- Uniform Civil Procedure Rules 2005 (NSW): r 31.23, r 31.27, Sch 7

Cases
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
- HG v R [1999] HCA 2; (1999) 197 CLR 414
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
- R v Abadom [1983] 1 All ER 364
- Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; (2011) 80 NSWLR 43
- Camilleri's Stock Feeds P/L v EPA (1993) 32 NSWLR 683
- Vaw (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Beckwith v The Queen (1976) 135 CLR 569
- Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764
- Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 62 ALR 85
- Gilham v R [2012] NSWCCA 131