Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 4) [2022] NSWLEC 57

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 4) [2022] NSWLEC 57 Hearing dates: 9 May 2022 Date of orders: 10 May 2022 Decision date: 10 May 2022 Jurisdiction: Class 5 Before: Pain J Decision: See [39]-[47] Catchwords: CRIMINAL PROCEDURE – voir dire on admissibility of representations by witness unavailable to give evidence – representations admitted Legislation Cited: Evidence Act 1995 (NSW) ss 65, 67, 137 Cases Cited: Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 3) [2022] NSWLEC 54 Texts Cited: Stephen Odgers, Uniform Evidence Law (16th ed, 2021, Thomson Reuters) 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 (Prosecutor) J Ireland QC with A Connolly (Defendant)

Solicitors: Department of Planning and Environment, Legal Branch (Prosecutor) McGirr Lawyers (Defendant) File Number(s): 2019/81751

Judgment 1. In Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 3) [2022] NSWLEC 54 (Namoi Valley No 3) I made a partial ruling about an order sought by the Prosecutor seeking the admissibility of representations in a notice issued by the Prosecutor under s 67(1) of the Evidence Act 1995 (NSW) (Evidence Act) inter alia. Further rulings in this voir dire on the admissibility of the representations in the notice are the subject of this judgment. I have not yet made final orders. At issue is the content of the Notice to the Defendant under s 67(1) of the Evidence Act (the s 67(1) notice) (Ex A on the voir dire). The notice relates to representations purportedly made by Mr Harris a witness who has died recently which the Prosecutor seeks to rely on as provided by s 67(1). 2. I found in Namoi Valley No 3 that the application of the Prosecutor to rely on a s 67(1) notice was not prevented from being made during the hearing in the circumstances of the recent death of Mr Harris. I also held that s 65(2)(a) applied to Mr Harris in that his responses arose from a duty to respond to a statutory notice to provide information and to a statutory notice to attend and answer questions at a recorded ROI with Mr Drady authorised officer. The order sought by the Prosecutor was ruled upon in part in that reference to representations arising from maps was not permitted, being parts of (a) and (d) of the order sought. I observed that the invoice in par (b) of the order could probably be admitted. I considered the notice under s 67(1) could potentially be admitted but also considered the Defendant should have further opportunity to respond, hence this further judgment. 3. The order sought by the Prosecutor is set out at [3] of Namoi Valley No 3. Any order, if made, will need to reflect Namoi Valley No 3 and this judgment. 4. Relevant provisions of the Evidence Act are set out at [4] of Namoi Valley No 3 being ss 65 and 67, and definitions of 'representation' and 'unavailability of persons'. The Defendant relies on s 137 of the Evidence Act for current purposes. I also note the definition of "probative value" in the Evidence Act. 5. The documents tendered on the voir dire all of which continue to be relevant are set out at [6] of Namoi Valley No 3 as follows: Evidence relied on Tendered evidence 6 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 [sic] 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): (a) 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); (b) 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); (c) Letter from Stanton and Stanton solicitors dated 2 August 2019 in response to a statutory notice dated 22 July 2019 (tab 14.5) (d) The uncorrected ROI of the interview of 6 August 2019 referred to above (tab 14.6); (e) 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); (5) 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); (6) 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).