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. Defendant's submission 1. The Defendant relies on s 247I(1)(a) referring in turn to s 247J(a) referring in turn to s 247E(1)(i), and separately s 247O of the CP Act as the basis for the power of the court to make the orders sought under the preliminary disclosure provisions. 2. The request arises directly from the oral evidence yesterday of Mr Drady concerning the operations of the compliance team in using the N drive and in having regular meetings. 3. This is a renewed application separate from the defendant's notice of motion (NOM) seeking documents inter alia already dismissed by me on 28 April 2022. Prosecutor 1. The Court lacks power under s 247I and s 247O as these are the preliminary disclosure provisions in the CP Act whereas production is sought in the course of this trial. 2. The application is a fishing expedition, similar to the earlier NOM on which I have already ruled against the Defendant. There is no evidence of any particular document(s) being sought. The documents sought are unconfined. 3. The evidence of Mr Naven's email dated 15 March 2017 was referred to in his affidavit dated 28 March 2022 so that this application is late and did not come to light as a result of Mr Drady's evidence. Consideration 1. Given the need to deliver judgment promptly I am not able to finally determine the extent of powers to order the production of documents in the course of a trial under the preliminary disclosure requirements in Div 2A particularly s 247I, referring in turn to s 247J, referring in turn to s 247E(i) and in light of s 2470 but I consider it is arguable that these could apply in the circumstances. The Court otherwise has wide powers to require production of documents. I will assume I have power to make the orders sought whether under the sections relied on by the Defendant or generally. 2. In Namoi Valley Farms No 1 I did not order production of a wide range of documents sought by the Defendant for an eight-month period under Pt 2A of the CP Act because no legitimate forensic purpose was demonstrated. I considered the Defendant's case was speculative in that no evidence supported its claim that Mr Minehan, authorised officer referred to in the summons, had knowledge of clearing or must have known something relevant earlier than 15 March 2017, the relevant date for determining the statutory period in which to commence this prosecution. As the Defendant accepts it bears the onus of demonstrating that a prosecution has been commenced out of time by a prosecutor. The Prosecutor has the benefit of a statutory presumption under s 42(5) of the NV Act. The documents sought related to a wide range of matters not just documents concerning the investigation of events giving rise to this prosecution. I found that the application was fishing and speculative and dismissed the Defendant's NOM. 3. I also considered that the scope of the documents sought were oppressive given the period etc sought. 4. The present issue is whether Mr Drady's evidence provides any basis to seek the information or is this a further fishing exercise. Mr Naven and Mr Minehan are members of the compliance team. Mr Drady's evidence that the compliance team met regularly at which matters under investigation would be discussed was general in nature. That the N Drive exists on which documents are placed by the compliance team is also general in nature. 5. The scope of this application is far more limited than I determined previously in Namoi Valley Farms No 1 delivered on 28 April 2022 and it is on the cards that some of the records sought may be relevant to the matter the Defendant seeks to raise. 6. As the Defendant submitted the matters relevant to its onus of proof are peculiarly within the knowledge of the Prosecutor. While no particular documents are identified the purpose underpinning the request is clear and there is the potential for these to be relevant to a matter in issue from the Defendant's point of view. 7. I now consider each of the paragraphs in the proposed order. No basis is demonstrated in relation to (a) of providing records of Mr Naven's time spent in all investigation work carried out by him in March 2017 as member of the compliance team, as I found similarly in Namoi Valley Farms No 1. 8. In relation to (b) seeking records of meetings held in March 2017 of the compliance team, I consider these should be produced but for a more limited time period in that I do not understand why records after 15 March 2017 are sought. I consider that it is 'on the cards' that this material may be likely to be relevant to the Defendant's case in light of the case the Defendant seeks to put for records between 1 March and 15 March 2017. 9. Category (c) as drafted does not make sense and I understand the parties are further discussing this. 10. In relation to category (d) concerning records of access to the N drive, why this is sought for the whole of March is unclear. The order also seeks records of access to the N Drive for all matters on the N Drive and is also too broad for that reason. If the relevant sub-file for the investigation underpinning this prosecution can be identified, as it appears could be done from Mr Drady's evidence, records of the persons accessing that part of the N drive from 1 March to 15 March 2017 should be provided by the Prosecutor. Such material has the capacity to be relevant to a matter in issue in the Defendant's case. Orders: 1. The Court orders, pursuant to s247I of the Criminal Procedure Act 1986 or generally that the Prosecutor produce to the Defendant copies of the following: 1. All records of meetings held between 1 March and 15 March 2017 of the "Compliance Team" located at the Dubbo Office of the OEH. 2. All records showing or recording the times and dates on which any person obtained computer access to the N Drive on the investigation underpinning this prosecution from 1 March 2017 to 15 March 2017 and the identity of those persons exercising such access. To be provided within a reasonable time frame in the circumstances of the trial. ********** 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: 20 May 2022