Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 5) [2022] NSWLEC 59

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 5) [2022] NSWLEC 59 Hearing dates: 11 May 2022 Date of orders: 11 May 2022 Decision date: 11 May 2022 Jurisdiction: Class 5 Before: Pain J Decision: See [24] Catchwords: CRIMINAL PROCEDURE – production of documents in four categories sought by Defendant from Prosecutor – order for limited production made Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 247E, 247I, 247J, 247O Native Vegetation Act 2003 (NSW), s 42(5) 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

Ex Tempore Judgment 1. The Defendant seeks an order for the production of documents relying on ss 247I, 247J and 247E and 247O of the Criminal Procedure Act 1986 (NSW) (CP Act) in the course of this trial for an offence of clearing native vegetation under the Native Vegetation Act 2003 (NSW). 2. This application seeks records limited to March 2017 of the following: 1. records of time spent by Mr Naven (a member of the compliance team) on investigation work carried out by him as a member of the compliance team of the Office of Environment and Heritage (OEH); 2. all records of meetings held in March 2017 of the compliance team at the Dubbo office of OEH; 3. all records stored as at 15 March 2017 on the "N Drive" of the computer system used by the Dubbo office of the OEH at the location designated as N:/ROG_NW_Compliance\GIS_Risk_Assessment_Projects\_CliftonDrildoolPilliga.mxd as referred to in the email from Stephen Naven to David Minehan sent at 4:39PM on 15 March 2017 (following discussion with the parties this appears not feasible in that the mxd document is not a file and the Prosecutor intends to provide access in any event according to an email sent early this morning by its solicitor to the Defendant's solicitor and tendered as Exhibit A in this application); and 4. records recording the times and dates on which any person accessed the N Drive in March 2017 and the identity of those persons. 1. The basis for the application is said to be the oral evidence of Mr Drady authorised officer member of the compliance team based at the Dubbo regional office of OEH given yesterday 10 May 2022. 2. Mr Drady was asked about the N drive which is a local server within the Dubbo office of OEH to which investigation matters are saved as they progress. Persons employed in OEH in Dubbo have access to the N drive. It is a point of reference for people working in the Dubbo office which could include Mr Minehan and Mr Naven. There is a compliance drive in the N drive which the compliance team has access to. Records were created using a naming convention. 3. Mr Drady was asked if he was aware of what matters people in the compliance team were working on. He stated he was not aware of all matters and that the compliance team had regular meetings in the Dubbo office where he could have been privy to those matters, but he could not be specific. 4. The issue underlying the application is the Defendant's (theoretical) case that the prosecution has been commenced out of time which its counsel submits from the bar table is an issue in the proceedings. I say theoretical because at present no evidentiary basis exists for the submission and this application is intended to obtain some. 5. A broadly similar application was the subject of Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd [2022] NSWLEC 55 (Namoi Valley Farms No 1) delivered on 28 April 2022.