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. Evidence Act 1. Relevant sections of the Evidence Act are set out below as follows: Part 3.2 Hearsay … Division 2 "First-hand" hearsay … 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation— (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was— (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. or body responsible for producing the transcript or recording. … (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends— (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to— (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that— (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. … 67 Notice to be given (1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state— (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64 (2) is such a provision—the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction— (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies. … 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might— (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. … Dictionary Part 1 representation includes— (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated. … Part 2 Other expressions … 4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if— (a) the person is dead, or … Evidence Regulation 2020 1. The following clause was relied on: 4 Notice of previous representation (1) A notice given under section 67(1) of the Act (a notice of previous representation) must be given in accordance with the requirements of this clause. (2) A notice of previous representation must state— (a) subject to subclause (6), the substance of evidence of a previous representation that the notifying party intends to adduce, and (b) the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party, and (c) particulars of— (i) the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made, and (ii) the names of the persons by whom, and the persons to whom, each of those representations was made, and (iii) in a civil proceeding—the address of each person so named, so far as it is known to the notifying party. (5) If a notice of previous representation refers to a previous representation that is in writing— (a) a copy of the document, or of the relevant portion of the document, containing the representation must be attached to the notice, and (b) the notice must identify the document unless— (i) a copy of the document is attached to the notice, and (ii) the identity of the document is apparent on the face of the copy. (6) If a copy of a document, or of a portion of a document, is attached to a notice of previous representation, it is a sufficient compliance for the purposes of subclause (2)(a) to specify in the notice, or in the copy of a document or portion of a document attached to the notice, the representation referred to in the notice. Evidence relied on Tendered evidence 1. The Prosecutor's tendered evidence admitted on the voir dire follows: 1. The Prosecution's notice pursuant to s 67(1) of the Evidence Act dated 29 April 2022 (Ex A); 2. A USB containing an audio file of the interview held between Mr Harris, Mr Drady and Mr Greg Campbell as departmental officers and Mr Kenneth Stanton and Ms Laura Correll solicitor attending 6 August 2019 (Ex B). 3. A corrected transcript of the Record of Interview (ROI) of the interview referred to directly above in par 3, by Mr Drady produced on 2 May 2022 (Ex C); 4. Tabs 14.3-14.7 of the Prosecutor's Tender Bundle, containing (Ex D): 1. A notice to attend and answer questions sent to Mr Harris and his solicitors dated 31 May 2019 under s 12.19 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) (tab 14.3); 2. A notice to provide information and/or records dated 22 July 2019 to Mr Harris and his solicitors by Mr Drady on behalf of the Department of Planning, Industry and Environment under s 12.8 of the BC Act (tab 14.4); 3. Letter from Stanton and Stanton solicitors dated 2 August 2019 in response to a statutory notice dated 22 July 2019 (tab 14.5) 4. The uncorrected ROI of the interview of 6 August 2019 referred to above (tab 14.6); 5. Two maps, one named "SPOT 2012-13" and the other "Sentinel 8/5/2017" an invoice purportedly issued by Mr Harris to "TJ O'Brien Investments" dated "17/12/2013" (tab 14.7); 1. Tab 10.1 of the Prosecutor's Tender Bundle, containing a notice to provide information and records dated 17 September 2018 sent by Stephen Redden on behalf of the Office of Environment and Heritage (OEH) to the Defendant (Ex E); 2. Tab 10.4 of the Prosecutor's Tender Bundle, containing the Defendant's response to the notice in Ex E sent by McGirr lawyers to Mr Redden and the OEH (Ex F). 1. The Defendant did not tender any evidence. Mr Scott Drady 1. The Prosecutor read the affidavit of Mr Scott Drady dated 6 December 2019 pars 1-4 and 19-24. In pars 1-4 he introduced himself and his position as a Team Leader Compliance and regulation employed in the office of the DPIE at Dubbo and disclosed the basis of the knowledge on which the affidavit is based. He was the authorised officer with carriage of this matter at the time of swearing his affidavit. 2. At pars 19-24 he describes and attaches a number of documents which were tendered on the voir dire. He deposed that he attended an interview with Mr Matthew Harris on 6 August 2019 and made a triplicate recording on audio CDs of the interview. He deposed that during the interview he showed Mr Harris two maps and an invoice from Mr Harris to TJ O Brien Investments for carrying out clearing at the property. 3. In examination-in-chief Mr Drady confirmed that he had done some of the corrections on 2 May 2022 to the corrected Record of Interview (ROI) which became Ex C in the voir dire. After leave was granted to reopen examination in-chief, Mr Drady was asked whether the voices he heard in the audio file of the interview of 6 August 2019 in Ex B were recognisable to him as the persons recorded as being at the interview by the ROI and answered "yes". He accepted that references to "wind-barking" in the corrected ROI in Ex C were incorrect and should have read "ring-barking". There were no other corrections to be made. 4. In cross-examination Mr Drady was asked whether a map known as "SPOT 2012-2017" which was shown to Mr Harris during the interview had been given to him before the interview and responded no. He attested that many of the questions asked in the interview proceeded by reference to that map. Mr Drady also agreed that he had missed the incorrect relevance to wind-barking when correcting the ROI. Prosecutor's submissions 1. The Prosecutor seeks a ruling under s 65(2)(a) or alternatively (d) because Matthew Harris is a witness who is not available as defined in the Evidence Act. Firstly, representations comprising evidence of questions asked by Mr Harris in a notice dated 22 July 2019 issued under s 12.8 of the BC Act by Mr Scott Drady authorised officer to Mr Harris to furnish information and records and answers furnished by his solicitors dated 2 August 2019, including map Sentinel 8/5/2017 and invoice dated 17 December 2013 addressed to T J O-Brien Investments 2. Secondly, representations comprising evidence of questions asked of Mr Harris in an ROI by Mr Drady on 6 August 2019, the corrected transcript for which is Ex C. 3. A notice of intention to adduce evidence (clarified to mean representations) under s 67(1) was given to the Defendant's counsel on 29 April 2022 and the list of witnesses provided to the Defendant on Thursday 28 April included Mr Harris and referred to this application. No prejudice in addressing this application was identified by the Defendant's legal representatives for example, no adjournment was sought. 4. Section 65(2)(a) applies. The requirement to respond to the notice issued under the BC Act gives rise to a duty to respond and not to do so in a misleading or material respect, as stated in the notice. Mr Harris' response via his solicitors was a representation made that information in his answers had been provided and that it was true and correct. 5. Mr Harris confirmed in his ROI that the information in the answers had been provided by him and were true and correct. This satisfies s 65(2)(a). 6. Section 65(2)(d) also applies in the alternative. Mr Harris admitted acts comprising the offence of clearing native vegetation contrary to s 12 of the NV Act. While the evidence was not admissible against him, it was contrary to his interests as referred to in subsection (d)(i) given the circumstances of the interview arise by way of statutory compulsion. The circumstances suggest that the representation is likely to be reliable (subsection (d)(ii). Defendant's submission 1. Section 65 provides a narrow gateway to allow hearsay evidence to be admitted that would otherwise be excluded under the Evidence Act. 2. The notice under s 67(1) dated 29 April 2022 is invalid because it was not provided in a reasonable time. The audio tape was supplied only (2 May 2022). The corrected transcript Exhibit C was provided on 3 May 2022. 3. The notice is extensive with 31 footnotes and places a burden on the Defendant given the late notice. 4. The notice fails to attach the two maps sought to be relied upon in the Prosecutor's order. 5. The notice fails to refer to representations which the Prosecutor relies on in the order sought in relation to the maps. 6. If the notice s 67(1) is invalid the application particularly under s 65(2) must fail. (Prosecutor relies on s 67(4) to submit that an inadequate notice does not prevent the application of s 65). 7. Concerning the operation of s 65(2)(a) the duty referred to does not encompass that relied on by the Prosecutor. Rather the use of the subsection requires that the duty must relate to the representations made. 8. In the ROI Mr Harris did not accept propositions that firstly, the work was done in the charge period and secondly that work was done in areas of the property which the Prosecutor was interested in, see Ex C p 7 questions 30, p 21 question 130 as identified in SPOT 2012-2013 maps. This map is different to the Sentinel 8/5/17 map attached to the statutory notice. 9. Admission of the representations in the notice and the order if made will be unfairly prejudicial to the Defendant under s 135 of the Evidence Act. Consideration 1. There is no dispute that Mr Harris is unavailable within the definition in the Evidence Act. Section 65 provides an exception to the hearsay rule that would otherwise apply to exclude his evidence. Under s 142 of the Evidence Act the prosecutor bears the onus of proof on the balance of probabilities of establishing facts necessary for deciding whether evidence should be admitted. The representations in the s 67(1) notice sought to be relied upon arise from two separate events, the statutory notice and response referred to at par 1-6 of the s 67(1) notice and separately the recorded interview on 6 August 2019 referred to at pars 7-22. 2. The order sought by the Prosecutor set out above in [3] does more than refer to the s 67(1) notice sent to the Defendant and seek to rely on it. It refers in (a) to the map attached to the statutory notice dated 22 July 2019 (which I note is labelled Sentinel 8/5/2017). In (b) it refers to the representations in the copy invoice dated 17 December 2013 from Mr Harris to T J O'Brien Pty Ltd. This was referred to expressly in the s 67(1) notice in par 6. The invoice was not attached to the s 67(1) notice. 3. In subcl (d) it refers to representations concerning the maps in table 14.7 of the tender bundle which are the Sentinel 8/5/2017 and SPOT 2012-2013 maps. The latter was the map shown to Mr Harris during the ROI on 6 August 2019. 4. Turning to whether reasonable notice had been given, section 67(1) requires that a notice must be given in reasonable time of a party's intention to rely on representations. The hearing of this matter was set down in September 2021 from 26 April 2022 to 10 May 2022. The first four days of hearing were occupied by the determination of two notices of motion, one of the Defendant and one of the Prosecutor. The trial proper commenced on Monday 2 May 2022. 5. I am informed that Mr Harris died very recently on 21 April 2022 according to the Defendant. The Prosecutor advises that it is awaiting confirmation of the precise date from the NSW police. I will assume that the date of death of Mr Harris is very recent on 21 April 2022. The s 67(1) notice was served on the Defendant last Friday 29 April 2022. The Prosecutor also relied on the provision of a list of prosecution witnesses sent to the Defendant on 28 April 2022 which identified Mr Harris and stated that an application would be made as constituting sufficient notice to the Defendant. Mr Harris was identified as a witness to the Defendant under the Prosecutor's s 247E notice as amended on 18 December 2020 which included his statement in the form of the transcript of the interview dated 6 August 2019 annexed to the affidavit of Mr Drady dated 6 December 2019, being the uncorrected version of the transcript. 6. The s 67(1) notice of the Prosecutor was notified late but that arises from the recent death of Mr Harris. In assessing whether the notice was provided in reasonable time, the question of whether the content of the material is generally known to the Defendant arises. The representations at parts 1-6 that concern the statutory notice and response of Mr Harris are matters of which the Defendant is aware. No particular complaint was made about these paragraphs other than in relation to the absence of a copy of the invoice. 7. In relation to the ROI of 6 August 2019, the audio file was provided to the Defendant on 2 May 2022. The corrected transcript Exhibit C was prepared by Mr Drady on 2 May 2022 and provided to the Defendant on 3 May 2022. On any view the supply of the material on which part of the s 67(1) notice by the Prosecutor is based was late. 8. In the unfortunate circumstances outlined above I consider the Defendant was provided with the s 67(1) notice within a timeframe that was reasonable. That the application is late is not a reason to dismiss the application at this point. 9. The application of s 65(2)(a) of the Evidence Act now arises for consideration. The parties have made conflicting submissions as to the meaning of 'duty' in s 65(2)(a) and therefore whether it can apply to Mr Harris' circumstances. While the position at common law was that the duty was a legal duty to observe and record per R v O'Meally [1952] LVR 499 as the Defendant submitted, the reference to duty in section 65(2)(a) is not limited in any way, as the Prosecutor submitted. One case which supports the Prosecutor's approach that duty is to be considered more widely than the common law is R v Al Batat & Ors (No 5) [2020] NSWSC 1077 in which Hamill J considered the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). These provisions entitled police to make a formal demand of a person for information and obliged that person to provide the information this was not a duty under s 65(2)(a). The difference between the common law as discussed in Odgers is considered at [43], and R v Keir (No 2) [2016] ACTSC 394 (R v Keir) referred to in [44]. In R v Keir the duty provision in s 65(2)(a) was held not to be limited by what was required at common law, a position adopted by Hamill J at [45]. Sections in the LEPRA were found to impose a relevant duty on the owner of a motor vehicle to provide information referred to, but not beyond representations required by those sections applying similar reasoning here. I consider s 65(2)(a) does apply to Mr Harris' circumstances. I do not need to consider ss (d). 10. Turning to the content of the s 67(1) notice and the draft order sought purportedly based upon it, requirements for the content of a notice of previous representation specified in s 67(1) are identified in cl 4 of the Evidence Regulation. To the extent that the Prosecutor seeks to rely on representations arising from reference to maps no notice of such an intention was provided in the s 67(1) notice. The Defendant complains that the Prosecutor's order seeks to rely on representations concerning the two maps known as Sentinel 8/5/2017and SPOT 2012-2013. These were not referred to nor attached to the s 67(1) notice. Purported representations of Mr Harris are said to be founded on these maps according to the Prosecutor and it seeks to rely on these. As already acknowledged the maps were not identified, and as such representations of the Defendant were also not included in the s 67(1) notice. 11. Further, I have reviewed the ROI transcript of the 6 August 2010 interview particularly pages 6,7,14, 20-21 and agree with the Defendant's submission in relation to the ROI that the transcript does not support the Prosecutor's submission that Mr Harris agreed that he went to areas of interest to the Prosecutor as identified on the SPOT 2012-2013 map. No basis for the admission of representations based on the map SPOT 2012-2013 in the ROI is established by the Prosecutor. 12. It follows that orders (a) and (d) in the draft order in [3] ought not be made to the extent they refer to a map as their admission is unfairly prejudicial to the Defendant. 13. Given the explicit reference to the invoice in par 6 of the s 67(1) notice and its provision to the Defendant par (b) of the order can potentially be made. 14. I consider on a preliminary basis that the admission of much of the s 67(1) notice would not be unfairly prejudicial to the Defendant as the representations made otherwise appear to me to arise from the terms of the ROI in relation to pars 7-22. I consider that the Defendant should have a further opportunity to confirm whether it agrees with this assessment. 15. I will discuss the terms of any order I might make with the parties before finalising any order. ********** 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: 13 May 2022