Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 3) [2022] NSWLEC 54

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 3) [2022] NSWLEC 54 Hearing dates: 3 May 2022 Date of orders: 4 May 2022 Decision date: 04 May 2022 Jurisdiction: Class 5 Before: Pain J Decision: See [37]-[40] Catchwords: CRIMINAL PROCEDURE – Prosecutor seeks leave to rely on representations of a witness who is unavailable to give evidence – exception to hearsay rule under Evidence Act Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 12.8, 12.19 Evidence Act 1995 (NSW), ss 65, 67, 135, 142 Evidence Regulation 2020 (NSW), cl 4 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Native Vegetation Act 2003 (NSW) Cases Cited: R v Al Batat & Ors (No 5) [2020] NSWSC 1077 R v Keir (No 2) [2016] ACTSC 394 Category: Procedural rulings Parties: Secretary, Department of Planning and Environment (Prosecutor) Namoi Valley Farms Pty Ltd (Defendant) Representation: Counsel: D Buchanan SC with A Garsia J Ireland QC with A Connolly Solicitors: Department of Planning and Environment, Legal Branch McGirr Lawyers File Number(s): 2019/81751

Judgment 1. An evidentiary issue has arisen in the course of the hearing on liability of the Defendant for an offence of illegal clearing of native vegetation contrary to the Native Vegetation Act 2003 (NSW) (NV Act) on a property in the Walgett and Narrabri shire Local Government Areas (LGA). 2. One of the witnesses the Prosecutor intended to call Mr Matthew Harris has died recently and is obviously unavailable to attend for that purpose. The Prosecutor served a notice under s 67(1) of the Evidence Act 1995 (NSW) (Evidence Act) containing representations it wishes to rely on of Mr Harris last Friday 29 April 2022. It seeks an order under s 65(2) of the Evidence Act that it be able to rely on that notice inter alia in this voir dire. 3. The order sought is as follows: That, pursuant of s 65(2)(a) and/or (d) of the Evidence Act 1995, evidence of the previous representations made by MATTHEW BERNARD HARRIS: (a) in a letter from Stanton & Stanton, solicitors, dated 2 August 2019, in response to a statutory notice to dated 22 July 2019, and concerning, amongst other things, what is shown in the map attached to the notice (the map and notice being tab 14.4 of the Tender Bundle); (b) including the representations concerning the copy invoice dated 17.12.13 produced by Mr Harris via the letter from Stanton & Stanton (the letter and copy invoice being tab 14.5 of the Tender Bundle); (c) in an interview conducted with him pursuant to a statutory notice on 6 August 2019 at 59 Goulburn Street, Sydney by Mr Scott Drady, an authorised officer under the Biodiversity Conservation Act, and in the presence also of Greg Campbell and Mr Stanton and Ms Quarrell, solicitors (recorded in an audio file of which exhibit B on the s 65 Evidence Act application, and a corrected transcript of which is exhibit C on the application); (d) including the representations concerning the maps in tab 14.7 of the Tender Bundle and the copy invoice dated 17.12.13 also in tab 14.7 of the Tender Bundle; the substance of which is set out in the Prosecutor's notice to the Defendant under the Evidence Act 1995, s 67(1), dated 29 April 2022, be admitted into evidence.