Environment Protection Authority v Bartter Enterprises Pty Ltd (No 2) [2020] NSWLEC 79

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Bartter Enterprises Pty Ltd (No 2) [2020] NSWLEC 79 Hearing dates: 17 June 2020 Date of orders: 17 June 2020 Decision date: 17 June 2020 Jurisdiction: Class 5 Before: Duggan J Decision: See paragraph 10 Catchwords: EVIDENCE – discretion to adduce further evidence served late – lack of accurate recollection – evidence goes to fact not in issue – leave not granted Legislation Cited: Criminal Procedure Act 1986 Cases Cited: Sutherland Shire Council v Benedict Industries Limited [2013] NSWLEC 121 Category: Procedural and other rulings Parties: Environment Protection Authority (Prosecutor) Bartter Enterprises Pty Ltd (Defendant) Representation: Counsel: Mr Buchanan SC and Ms G Lewer (Prosecutor) Mr T Howard SC and Mr J Smith (Defendant)

Solicitors: Environment Protection Authority (Prosecutor) Hones Lawyers (Defendant) File Number(s): 2019/201063 Publication restriction: No

EX TEmpore Judgment 1. HER HONOUR: An application was made this morning in which I delivered a judgment in relation to the statement of Mr Mitchell: Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78. The Prosecutor now seeks to adduce further evidence in similar circumstances to that with which I dealt with this morning. The background facts and the principles to be applied apply equally to this application as they did to the application that was made this morning, and I embrace those principles and do not repeat them for the purposes of this ruling. 2. In relation to the current evidence, the Prosecutor seeks to adduce evidence to deal with issues contained within a note of a conference with Mr Kieron Hayes of 3 June 2020 which was served upon the Defendant shortly thereafter. 3. The statement of Mr Hayes contains within it a large number of qualifying statements in relation to his lack of recollection or in relation to the extent to which he has attempted to recreate a recollection from information now available to him that was not available at the time of the incident. The Prosecutor, accepting the observations I made in that regard, has now sought to excise from that statement those qualified statements and only tender that part of the statement, or seek to adduce evidence of that part of the statement, which does not contain those qualifications. It is submitted to me by the Prosecutor that the evidence is necessary for the purposes of identifying the res gestae of the incident insofar as Mr Hayes can provide a sequence of who and where things were on the date and the day in which it occurred. 4. Mr Hayes has also provided evidence in this matter by way of a record of interview which has been tendered in the proceedings. The Defendant opposes leave being granted on the basis that the evidence of Mr Hayes is of little or no assistance to the Court because of his lack of recollection of the events of the day. In fact, as part of the conferencing process with the Prosecutor, when he was invited to consider the terms of the note, Mr Hayes wrote back in the following terms: "Tanya, I have gone over my statements/questions and have changed a few things on both. If you or David could take a look. My only concern is most of the day is quite a blur. Seems to be a lot of "I think" quotes in my statement. Is this a concern? Thank you. Regards, Kieron Hayes." 1. Both the Prosecutor and the Defendant agree that the day to which Mr Hayes is referring in that email is the day of the incident and not the day of the conference. 2. The Defendant submits to me that his inherent lack of recollection is sufficient to reject this evidence as being of little utility in the determination of the questions in issue in this matter and when weighed against the prejudice to the Defendant of having to deal with a late-served notice with all of its qualifications, and the fact that the statement raises what it refers to as opinion evidence, particularly in respect to [17] of that statement, it asks that I reject the statement even in the post-surgical excision form. 3. The discretion I am exercising in relation to this application, again, is the discretion under s 247V of the Criminal Procedure Act 1986. I must weigh up, in considering this application for leave, both the prejudice to the parties and also the capacity for the Court to manage efficiently and appropriately, in the context of the justice to the parties, the evidence to be adduced. 4. Mr Hayes' statement is so replete with qualifications that I could not be satisfied, absent questioning of him, that what remains is, in fact, an accurate recollection of the events of the day. In effect, the qualification both in his email and in the statement itself would require the Defendant to effectively cross-examine blind from this witness some meaning to the statement. 5. That prejudice is, of itself, overwhelming to the Defendant and is also a course of action that would require the proceedings to be unreasonably extended to allow the Prosecutor to adduce what appears to be, even if accepted as credible, factors which do not go to the determination of facts in issue in this case. As Mr Buchanan SC has rightly pointed out, the Defendant does not dispute what the Gordon Brothers contractors did on the day and what they failed to do. This evidence goes to that fact, which is not in issue. 6. For those reasons, I decline to grant the leave in the exercise of my discretion and I reject the Prosecutor's application to adduce evidence from Mr Kieron Hayes in accordance with the conference notes of Kieron Hayes dated 3 June 2020.