AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 5 June 2024

Secretary, Department of Planning and Environment v Harris

[2024] NSWCCA 88

Other

Citation: Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88
Court: Court of Criminal Appeal, New South Wales
Date: 5 June 2024
Judges: N Adams J, Sweeney J, R A Hulme AJ

Background

The prosecutor (the Secretary of the Department of Planning and Environment) commenced Class 5 proceedings in the Land and Environment Court in March 2021, alleging 16 offences of clearing native vegetation against five personal and corporate defendants. The prosecutor served its evidence, including expert reports from a land and aerial surveyor and a botanist and ecologist, in May 2021. Hearings were scheduled across three separate tranches beginning in July 2024.

In early 2024, newly briefed Senior Counsel identified that the two expert reports required clarification to address admissibility concerns. Those concerns arose partly from a 2022 Land and Environment Court judgment in separate proceedings, in which the surveyor's methodology had been found insufficient under the High Court's admissibility principles in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588. The prosecutor sought leave to file an amended notice under s 247E of the Criminal Procedure Act 1986 (NSW) to serve updated reports from both experts.

The primary judge, Pain J, refused that leave. The prosecutor then sought leave to appeal to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). The defendants resisted both the service of the updated reports and the appeal itself.

  • Whether the primary judge's refusal was an interlocutory order susceptible to appeal under s 5F of the Criminal Appeal Act 1912 (NSW), rather than an evidentiary ruling.
  • Whether the primary judge erred in principle by identifying "great potential for prejudice" to the defendants as the basis for refusal, without establishing that the prejudice was actual or incapable of being cured.
  • Whether the primary judge failed to take into account the prejudice to the prosecution if the updated reports were excluded and the original reports were later found inadmissible for insufficient reasoning.

Decision

The Court unanimously granted leave to appeal and allowed the appeal, with Sweeney J delivering the principal judgment and N Adams J and R A Hulme AJ agreeing.

On jurisdiction, the Court held that the primary judge's order was an interlocutory case management order, not a ruling on the admissibility of evidence. That characterisation made the order amenable to appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

On the merits, the Court applied the principles from House v The King (1936) 55 CLR 499, which require an appellate court to identify specific error before interfering with a discretionary decision. The Court found that Pain J had conflated anticipated prejudice with actual, demonstrated prejudice. Problems identified by her Honour had not yet arisen on the evidence before her, and potential difficulties, such as the defendants needing time to respond or obtaining their own expert, could have been addressed during the trial or by varying hearing dates.

The Court also found that Pain J had failed to take into account a material consideration that had been squarely raised: the prejudice to the prosecution if the updated reports were disallowed and the original reports were subsequently excluded at trial for failing to sufficiently expose the reasoning underlying the expert opinions. The Court noted that the expert evidence was described as important or essential to proving elements of the offences. Fairness required that the interests of both parties be weighed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The order made by Pain J on 24 April 2024 (refusing leave to rely on the updated expert reports) was quashed.
  • In substitution, the prosecutor was granted leave to file and serve on the defendants an amended notice under s 247E of the Criminal Procedure Act 1986 (NSW), including the three expert reports of Leo Watts and the further expert report of Dr Kate Hammill.

Key Takeaways

  • A primary judge's refusal to permit service of updated expert reports under s 247E of the Criminal Procedure Act 1986 (NSW) is an interlocutory case management order, not an evidentiary ruling, and is therefore susceptible to appeal under s 5F of the Criminal Appeal Act 1912 (NSW).
  • Anticipated or speculative prejudice to defendants does not satisfy the threshold for refusing a prosecutor leave to serve updated expert evidence. Prejudice must be actual and demonstrated on the evidence before the court.
  • Where potential prejudice to defendants could be addressed through other case management measures, such as vacating or varying hearing dates or allowing time for responsive evidence, those options must be considered before refusing leave entirely.
  • Failing to weigh the prosecution's interests constitutes a failure to take a material consideration into account, and may itself ground appellate intervention under House v The King principles.
  • The Court of Criminal Appeal confirmed the principles in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 as applicable to the exercise of discretion in this context, including the requirement to consider whether prejudice is capable of being cured.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 247A, 247E
- Evidence Act 1995 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121
- Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97
- Environment Protection Authority v Eastern Creek Operations Pty Ltd (2022) 108 NSWLR 198; [2022] NSWCCA 97
- Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78
- Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 6) [2022] NSWLEC 62
- R v Steffan (1993) 30 NSWLR 633
- Nicholson v R [2017] NSWCCA 38
- PJ v R [2023] NSWCCA 105
- Agius v R [2011] NSWCCA 119
- Hillsea v Joseph; McIvor v Joseph [2020] NSWCA 55
- PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
- R v Bozatsis and Spanakakis (1997) A Crim R 296