Land and Environment Court New South Wales Medium Neutral Citation: Secretary, Department of Planning, Industry and Environment v Edenmore Farms Pty Ltd; Keelendi Farms Pty Ltd; T J O'Brien Investments Pty Ltd; O'Brien [2022] NSWLEC 63 Hearing dates: 22 April 2022 Date of orders: 22 April 2022 Decision date: 22 April 2022 Jurisdiction: Class 5 Before: Robson J Decision: See orders at [53] Catchwords: CRIMINAL PROCEDURE – Trial – Notice of motion to vacate hearing dates – Discretion – Notice of motion dismissed Legislation Cited: Biodiversity Conservation Act 2016 (NSW), s 13.4 Criminal Procedure Act 1986 (NSW), Ch 3, Pt 3, Div 3 Cases Cited: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Slotboom v The Queen [2013] NSWCCA 18 The Queen v Alexandroaia (1995) 81 A Crim R 286 The Queen v BK [2000] NSWCCA 4; (2000) 110 A Crim R 298 The Queen v Hassan [2013] NSWSC 2034 The Queen v Sigalla [2016] NSWSC 585 The Queen v Warwick (No 64) [2019] NSWSC 163 Category: Procedural rulings Parties: In proceedings 2021/00066001; 2021/00066002 Secretary, Department of Planning, Industry and Environment (Prosecutor) Edenmore Farms Pty Ltd (Defendant) In proceedings 2021/00066003; 2021/00066004 Secretary, Department of Planning, Industry and Environment (Prosecutor) Keelendi Farms Pty Ltd (Defendant) In proceedings 2021/00066005; 2021/00066006; 2021/00066007; 2021/00066008 Secretary, Department of Planning, Industry and Environment (Prosecutor) T J O'Brien Investments Pty Ltd (Defendant) In proceedings 2021/00066149; 2021/00066150; 2021/00066151; 2021/00066152 Secretary, Department of Planning, Industry and Environment (Prosecutor) Timothy Justin O'Brien (Defendant) Representation: Counsel: H El-Hage (Prosecutor) J Rogers (Defendants) Solicitors: Department of Planning and Environment (Prosecutor) McGirr Lawyers (Defendants) File Number(s): 2021/00066001; 2021/00066002; 2021/00066003; 2021/00066004; 2021/00066005; 2021/00066006; 2021/00066007; 2021/00066008; 2021/00066149; 2021/00066150; 2021/00066151; 2021/00066152 Publication restriction: Nil Judgment 1. HIS HONOUR: Before the Court is a notice of motion, filed 25 March 2022, seeking to vacate 12 discrete proceedings set down for hearing for 10 days from 11 July 2022 (although I note that the motion, apparently by oversight, referred to only four of the proceedings). The application is brought by the defendants in each matter, and it is opposed by the prosecutor. 2. I note that this matter, although a contested motion, was listed before the Court today where I was List Judge with a list of 53 matters. Having been informed that counsel had been retained for both parties, expecting the matter to proceed to hearing, time was made for hearing the matter, which included the receipt of evidence, written submissions, and the like. I only note that as a matter to explain the reasons that follow are less fulsome than otherwise would have been the case. 3. The background is relatively uncontroversial. I note that in March 2021, the prosecutor commenced proceedings against Edenmore Farms Pty Ltd, Keelendi Farms Pty Ltd, T J O'Brien Investments Pty Ltd and Timothy Justin O'Brien. There are 12 separate sets of proceedings. 4. In summary, it is alleged that unauthorised clearing of native vegetation occurred on properties near Pilliga, NSW in 2017 and 2018. The prosecutor alleges that two of the corporate defendants, that is Edenmore Farms Pty Ltd and Keelendi Farms Pty Ltd, were the registered owners of the land on which the unauthorised clearing took place. It is also alleged that the third corporate defendant, T J O'Brien Investments Pty Ltd, effectively operated the farming and other operations that occurred on the subject properties. Mr O'Brien, who is a defendant, is a director of all three corporate entities. The proceedings have been before the Court seven or eight times. 5. Mr J Rogers of counsel appears today for the defendants and Mr H El‑Hage of counsel appears for the prosecutor. 6. In relation to the evidence, the defendants rely upon and read the affidavits of Daniel McGirr sworn 24 March 2022 and 21 April 2022. The prosecutor reads the affidavit of Adam Hutchings sworn 8 April 2022. 7. Given the background of the matter, I will give a summary of the evidence filed. The applicant read the affidavit of Mr McGirr which set out a detailed history of the matter, which commenced with the filing of the summonses on 8 March 2021, with a first return date on 23 April 2021, approximately one year ago. As I indicated, the proceedings have been before the Court on seven or eight occasions. 8. Mr McGirr raises some matters in relation to his history and he deposes to certain matters relating to s 13.4 of the Biodiversity Conservation Act 2016 (NSW) ('BC Act'). In particular, he deposes that proceedings should be commenced no later than two years after the date on which evidence of an alleged offence first came to the attention of any relevant investigation officer. As far as I can discern, as summarised or noted briefly in the submissions made today, this evidence is put forward as some explanation of the delay in the defendants' retention of experts, which itself is a matter relied upon substantially in relation to the application for vacation. 9. Mr McGirr, in that regard, speaks to the two-year limitation period and indicates that there were various directions hearings where the defendants' sought directions for the prosecutor to provide formal evidence in relation to the matters otherwise triggering the proceedings within the otherwise two-year limitation period. 10. Mr McGirr deposes to the fact that subsequent to the proceedings being set down for hearing, the defendants retained Dr David Robertson, an expert ecologist. It is Mr McGirr's evidence that Dr Robertson's involvement has become the primary concern of the defendants and, as I have indicated, the trigger for this application. 11. Mr McGirr also deposes to the evidence of the prosecutor, particularly Dr Kate Hammill, whose report was provided under affidavit of 3 March 2021, and who, in Mr McGirr's words, has produced "voluminous evidence"; and refers to the evidence of Mr Leo Watts, who is a surveyor retained by the prosecutor, and whose material was available sometime in early 2021. 12. Moreover, Mr McGirr refers to the flooding events in Northwest NSW and provides some evidence of his instructions in relation to rain events occurring on or about the subject properties in November and December 2021, and January and February 2022. I do not say in any way critically, but it is not suggested, or there is no evidence, in relation to the relativity of those rain events and other average rainfall events, although I do take, as suggested by counsel for the defendants, judicial notice that there was significant rainfall in those months in any event. 13. Mr McGirr also deposes to the fact that, apart from the rainfall, there is a concept of "riverine" flooding, which is the confluence of flood waters from the Liverpool Plains District into the Namoi River system. He also provides photos as an annexure to his report, which were taken by one of the defendants, Mr O'Brien, in November and December 2021, and January 2022, showing some areas of the subject properties that were flooded. 14. More relevantly, Mr McGirr deposes to his dealings with Dr Robertson and indicates that, given the flooding events in November and December 2021, and January and February 2022, Dr Robertson is now able to conduct a site inspection of the subject properties, however he notes that "[a]t the time of this affidavit" (24 March 2022), the difficulty that Dr Robertson had experienced. Mr McGirr deposes: "I understand that given the current difficulty in attending upon the property [Dr] Robertson has made arrangements to attend the subject property in early to mid-May 2022." 1. However, he also notes that Dr Robertson has advised him that he has other engagements which require him to attend court as an expert witness in matters unrelated to these proceedings on certain dates between April and May 2022. 2. In his second affidavit dated 21 April 2022, Mr McGirr also deposes that he is aware that Dr Robertson attended the subject properties on 19 April 2022. I just note, by way of interposition, that was three days ago. 3. Mr McGirr also deposes to a conversation he had with Dr Robertson on 20 April 2022 when Dr Robertson detailed concerns he had in relation to the access to the subject properties, being waterlogged. Mr McGirr requested that Dr Robertson provide an email for use in this application, and that email is attached to Mr McGirr's second affidavit. 4. Mr McGirr also deposes that Dr Robertson advised him that there will be a report by earliest August 2022. 5. In the email to Mr McGirr, Dr Robertson indicates that he has attended the site with Dr Trevor Meers this week for what he calls the "first round" of surveys and he completed certain reconnaissance; and that "[i]n two weeks' time we have scheduled a one week survey on both properties and hope the bulk of the field work will be completed then". 6. Moreover, and (as I will consider later) importantly, he indicates that the timetable he will need, which will require until August 2022 to prepare a thorough report, is necessary due to other competing pre-booked consultancy work "for myself and other key members of our team". 7. The evidence relied upon by the prosecutor is the affidavit of Mr Hutchings sworn 8 April 2022. Mr Hutchings provides background to the matter, provides evidence in response to the matters raised by Mr McGirr in relation to s 13.4 of the BC Act, and then provides details in relation to what he understood to be other concerns raised by Mr McGirr, which are not subject to any matters, or submissions, in this application, relating to such aspects of separating various aspects of the proceedings. 8. The principles that apply to an application by a defendant seeking to vacate hearing dates are well-established and are common between the parties. Relevant to the matter presently before me, I note as follows: 9. Firstly, in an application to vacate a criminal trial the onus rests on the party seeking to vacate the hearing. I refer to The Queen v BK [2000] NSWCCA 4; (2000) 110 A Crim R 298 at [12]; The Queen v Warwick (No 64) [2019] NSWSC 163. 10. Secondly, it is common ground that a defendant must be given a reasonable chance to present its case, which necessarily includes a reasonable opportunity to prepare that case before called upon to present it. I refer to The Queen v Alexandroaia (1995) 81 A Crim R 286 at 289. 11. Thirdly, there is a strong public interest once a date is fixed for hearing that a criminal trial should ordinarily proceed with expedition and without delay. Slotboom v The Queen [2013] NSWCCA 18 at [36] ('Slotboom'); The Queen v Sigalla [2016] NSWSC 585 at [35] ('Sigalla'); The Queen v Hassan [2013] NSWSC 2034 at [14]. 12. Both parties agree that the significance of this consideration is reinforced by the case management provisions contained in Div 3 of Pt 3 of Ch 3 of the Criminal Procedure Act 1986 (NSW) ('CP Act') titled "Case management provisions and other provisions to reduce delays in proceedings". I refer again to Slotboom at [36], and Sigalla at [35]. 13. It is also common ground that comparable provisions exist in summary offences in the Land and Environment Court, and I refer to Div 2A of Pt 5 of Ch 4 of the CP Act. 14. It follows that it will not be in the interests of justice generally to delay a hearing of a trial without good reason. 15. Fourthly, a relevant consideration is the availability and resources of the criminal justice system, in particular, as the prosecutor submits in this matter, when a trial is fixed for hearing, that time is no longer available to be used by other trials. If the time allocated is not used, then other accused awaiting trial will be unnecessarily delayed. 16. Fifthly, a belated application for vacation is a factor which should weigh against an accused seeking that hearing dates be vacated. 17. It is also common ground that the overriding principle guiding the exercise of the Court's discretion in a matter such as this is the right to a fair trial, which has frequently been referred to as a central pillar of our criminal system. Courts can and should stay criminal proceedings which will result in an unfair trial. I refer to Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. 18. It is clear that in considering this matter the Court is required to balance the public interest in the case management, and fair dealing with witnesses, and those involved in the justice system, against the requirement to ensure a fair trial of the particular defendants. 19. With the evidence now summarised and the principles noted, I now look at the submissions made by each of the parties. 20. The defendants make four primary submissions. Firstly, the defendants submit that since entering pleas in December 2021, they have worked towards preparing for the current trial date and it is only the "extraordinary unseasonal rains" that have created a situation where the subject properties are not able to be accessed and these circumstances are out of the control of the defendants. 21. Secondly, the defendants require the adjournment of the hearing for the purpose of responding to voluminous and relatively complex scientific evidence relied upon by the prosecutor. 22. Thirdly, it is submitted that this is a valid and proper purpose, and the defendants should be entitled to gather their evidence. The defendants note that the prosecutor's experts had earlier visited the subject properties over some significant period of time, and the properties themselves are spread over approximately 4,000 hectares, meaning the scale of the task is large. To not be able to prepare their case in a manner in which they wish to do in the circumstances would be to deny their natural justice, and there is a public expectation that a defendant should be entitled to adequately prepare its case. 23. Fourthly, the defendants submit that the application for an adjournment has been brought in a timely fashion and with an understanding of the underlying issues that prevented adequate preparation of the case, through no fault of the defendants. 24. The prosecutor submits firstly, that the defendants have had ample time to retain experts and there has been no proper explanation for the delay. Indeed, it submits that the issue regarding the timing pursuant to s 13.4 of the BC Act is not a proper explanation of the delay. 25. Secondly, the prosecutor submits that the defendants will have had 16 months to prepare their case, that is since March 2021, when the proceedings were commenced, to July 2022, when the hearing is to take place. 26. Thirdly, the prosecutor submits that whilst it accepts that the flood and the unseasonal rain has caused some delay, this does not provide an appropriate explanation or excuse for not doing the work before November or December 2021, or indeed from March 2022. 27. Fourthly, the prosecutor submits that the fact that the prosecutor's experts had taken longer to prepare their evidence is not to the point. 28. In the above circumstances, and accepting the overriding purpose is the right to a fair trial, weighing up all the matters as I do, for the reasons that follow, I am not prepared to make an order vacating the hearing dates. My reasons may be shortly stated. 29. Firstly, from November 2021 through to January 2022 there has been rain which I accept has delayed some access to the subject properties. The existence of the rain and the flooding has provided little explanation as to why no work, or preparation, was undertaken prior to November, indeed to the extent that a possible claim may be available under s 13.4 of the BC Act it is, for reasons I will come to later, not compelling. 30. Secondly, I consider that there is an absence of reasonable explanation as to why experts were not retained earlier. This may well have been due to some concern, or some forensic decision, in relation to a possible defence, but it is clear that the evidence to be relied upon by the prosecutor, particularly the expert evidence, has now been available for over 12 months. It is in those circumstances that I am not satisfied that there is a reasonable explanation for the delay. 31. As I indicated, I would accept that rain and flooding has contributed to the defendants' position, but even taking that into account, experts were not retained in the first instance until eight months after proceedings had commenced, and indeed eight months before the hearing was to proceed. Again, that is unexplained. 32. Thirdly, I take into account that the next available dates, should the dates be vacated, will be March or April 2023, that is 12 months away, in circumstances were court time has been allocated already to these proceedings, to the detriment of other parties who otherwise would be desirous of obtaining hearing dates. 33. Fourthly, and in my view more importantly, the delay is not solely due to the weather on any view of the evidence. Dr Robertson's unavailability is due, or significantly due, to other commitments. These commitments, and Dr Robertson's availability, or unavailability, due to other commitments, have been properly raised in the defendants' evidence. I refer again to Mr McGirr's first affidavit at (47)-(49), and material to which I referred to in his second affidavit, which was prepared specifically to highlight Dr Robertson's concerns. 34. Moreover, Dr Robertson was retained in December 2021. He attended the subject properties this week. Indeed, in passing I note that the convenience or otherwise, or indeed the availability or otherwise, of Dr Robertson, or other experts, due to other professional consulting commitments is not of itself, and should not be, a compelling reason why these 12 proceedings, which have been set down since November last year, should be vacated. That is no criticism of either Dr Robertson and/or the defendants' instructing solicitors, it is simply a fact that that is what occurred. 35. Fifthly, no evidence as to the availability or otherwise of alternative experts has been made available. Indeed, this motion was filed on 25 March 2022 and Dr Robertson, with Dr Meers, attended the subject properties this week. As I noted earlier, and in passing I note that he indicated that his first round of sampling, and the bulk of the field work, will be completed in any event in two weeks' time, however that will be done by Dr Meers and Dr O'Neil, although Dr Robertson importantly states, "[d]ue to other competing pre-booked consultancy work from myself and key members of our team" is one of the primary drivers. 36. In passing, and although not determinative, I do not find the evidence that it took the prosecutor's experts some time to marshal their evidence to be persuasive. The fact is that the expert evidence was available to the defendants over 12 months ago and, as I have noted on a number of occasions, Dr Robertson and his team and others attended the subject properties this week for the first time. Indeed, I take into account that he was likely to have completed his field work in two weeks' time in any event. 37. Finally, and again not determinative, suffice it to say that to the extent that submissions were made, or evidence marshalled, if I understand the defendants' position correctly, that the time for the retention of experts was delayed whilst consideration was given to matters pursuant to s 13.4 of the BC Act in relation to the commencement of proceedings no later than two years after the date on which evidence of an alleged offence came to the attention of an appropriate or relevant investigating officer, that is not in my view an appropriate response, excuse, or explanation, for the delay in retaining expert evidence. Forensic decisions are made in many cases throughout litigation and if it be put, and as I said it is unclear, that the defendants delayed their preparation because there may have been an argument regarding the two-year time limitation, that is their decision. 38. For the reasons above, and adopting the principles I have summarised, I dismiss the notice of motion filed 25 March 2022. Orders (amended 20 May 2022) 1. The Court orders: 1. The defendants are granted leave to amend the notice of motion filed 25 March 2022 to include proceedings numbers 2021/00066001; 2021/00066002; 2021/00066003; 2021/00066004; 2021/00066005; 2021/00066006; 2021/00066007; 2021/00066008; 2021/00066149; 2021/00066150; 2021/00066151; and 2021/00066152. 2. The notice of motion filed 25 March 2022 is dismissed. ********** 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