Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Bartter Enterprises Pty Ltd [2020] NSWLEC 78 Hearing dates: 16 June 2020 Date of orders: 17 June 2020 Decision date: 17 June 2020 Jurisdiction: Class 5 Before: Duggan J Decision: See paragraph 16 Catchwords: EVIDENCE – discretion to adduce further evidence served late – prejudice not irredeemable – efficient management and conduct of hearing not compromised – leave 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: The Prosecutor in these proceedings seeks leave to adduce further evidence from a witness, Mr Mitchell, in these proceedings. Mr Mitchell has provided an affidavit in these proceedings which, in effect, adopts his record of interview with the Prosecutor. 2. The evidence sought to be adduced is not in an affidavit or any other document formally adopted by the witness. The proposed evidence is said to relate to the answers the Prosecutor considers the witness is likely to give to certain questions. That understanding was obtained as part of the conferencing process between the witness and the Prosecutor's legal advisors. The substance of the evidence was notified in a document styled as a record of the conference. 3. The Prosecutor held the conference on 9 June and served the conference notes on 10 June, effectively two working days before the hearing (which had been listed for 10 days) was to commence. 4. The Prosecutor must now seek leave to adduce the evidence, the substance contained in the note, by asking the witness questions relating to the subject matter, as it was not part of the disclosure in accordance with the Court's directions and the requirements of disclosure contained in the provisions of the Criminal Procedure Act 1986. 5. The Court has power to grant the leave, pursuant to the provisions of s 247V of the Criminal Procedure Act, which provides in the following terms: On or after the commencement of the trial or sentencing hearing, the Court may make such orders, determinations or findings, or give such directions or rulings as it thinks appropriate for the efficient management and conduct of the trial or sentencing hearing. 1. The Defendant opposes such leave being granted, due to the lateness of the service, the prejudice to it, and the prejudice to the efficient conduct of the hearing if leave is granted. 2. The principles to be applied in the exercise of the discretion to allow further evidence to be adduced, which has been served late, were conveniently summarised in the decision of Biscoe J in Sutherland Shire Council v Benedict Industries Limited [2013] NSWLEC 121 at [27]-[28], which I adopt, but do not repeat here. In the present case, what is required is a consideration of: 1. Whether the evidence is relevant and admissible; 2. Whether the evidence would cause a prejudice to the Defendant that is unable to be satisfactorily cured; and 3. Considerations generally relating to the fairness and justice between the parties. 1. Compliance with the disclosure requirements of the Criminal Procedure Act are important as they provide both notice to the Defendant of the case it has to meet, but it also significantly contributes to the efficient management of the public resource of Court time. 2. The late service of evidence in breach of those requirements will always have a prejudicial effect on the Defendant, as it makes decisions, deploys resources and manages the preparation of the case reliant upon the disclosure made to it. Service of material two days before the hearing will always produce some degree of prejudice. I accept that in this case, the late service has resulted in such inherent prejudice. 3. I also accept that the Prosecutor could have arranged to hold conferences at an earlier date and thereby allow it to give more notice of the proposed evidence. However, in this case, that observation must be tempered with a recognition that this hearing was being case managed at a difficult time. The Defendant and the Prosecutor both had to make significant adjustments to the manner in which the hearing was prepared, due to the Court moving to an audio visual hearing in lieu of the standard face-to-face proceedings, and that, as such, a significant amount of time and resources on both sides had to be expended to ensure the hearing could proceed by those means on the dates it had been allocated. 4. I do not, by these comments, wish to suggest that late service will be in any way justified in the usual course as a result of decisions taken by a Prosecutor as to the preparation of its case, but as I have observed, this case was not being prepared in the usual course. 5. I have considered the conference note and accept the Prosecutor's submission that the evidence sought to be adduced from Mr Mitchell is in large part an amplification of the evidence he has already given and adopted by him in his affidavit. The evidence he proposes to give goes to assisting the Court in its understanding of the circumstances that gave rise to the incident. 6. I also heard evidence from Mr Mitchell on this application that the note, apart from two small corrections, is largely an accurate summary of what he stated at the conference. He did, respond to a question asked of him by Senior Counsel for the Defendant in the following terms: Q. And did you feel, in any way, that you were being pressed to answer questions in relation to any topics in a particular way? A. Yeah. I felt I was being kind of led into being - yeah, they were looking for an answer that I probably didn't have for them, if that makes sense. 1. Whilst this is the impression that Mr Mitchell derived from the questions he was being asked, that concern does not appear to have resulted in any inaccurate recording of the answers he was able to give. 2. The Defendant was unable to identify any particular matter that produced a direct and identifiable prejudice beyond the inherent prejudice that I have already accepted. In the circumstances, the prejudice to the Defendant, in the event that the evidence is allowed, is not irredeemable and can be accommodated by allowing the Defendant time, within the scope of the hearing already fixed, to take instructions, prepare and otherwise deal with this evidence. Further, the adducing of the evidence and these arrangements would not unduly compromise the efficient management and conduct of the hearing. 3. For those reasons, the Court grants leave to the Prosecutor to adduce evidence dealing with the subject matter of the evidence notified by way of conference note with the exception of: 1. The last sentence of [13]; 2. The reference in [17] to the service valve should be a reference to a gauge; and 3. The totality of [25], the substance of which does not appear relevant to any issues in these proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2020