Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 2) [2012] NSWLEC 24

Land and Environment Court New South Wales

Medium Neutral Citation: Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 2) [2012] NSWLEC 24 Hearing dates: 21 February 2012 Decision date: 21 February 2012 Jurisdiction: Class 5 Before: Pain J Decision: The Defendant's application for a stated case to the Court of Criminal Appeal is refused. Catchwords: CRIMINAL - whether the Court should state a case to the Court of Criminal Appeal during part heard sentence hearing on plea of guilty Legislation Cited: Criminal Appeal Act 1912 s 5AE, s 5A(1A) (repealed) Uniform Civil Procedure Rules 2005 Sch 7 Cases Cited: Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited [2012] NSWLEC 22 Gosford City Council v Aliton Pty Ltd [2002] NSWLEC 138 Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2000] NSWLEC 32 State Pollution Control Commission v Brownlie [1990] NSWLEC 86 Category: Procedural and other rulings Parties: Chief Executive, Office of Environment and Heritage (Prosecutor) Kyluk Pty Limited (Defendant) Representation: Mr J Glissan QC (Prosecutor) Mr S Littlemore QC with Ms P Lane (Defendant) Office of Environment and Heritage (Prosecutor) McGirr James Hall (Defendant) File Number(s): 50604 of 2011

EX TEMPORE Judgment 1Section 5AE of the Criminal Appeal Act 1912 provides that questions of law during summary proceedings before this Court may be taken to the Court of Criminal Appeal as a stated case. Kyluk Pty Limited, the Defendant, seeks to have a case stated to the Court of Criminal Appeal before the completion of this sentence hearing. 2The decision whether to state a case rests in the Court's discretion given that the request is by the Defendant rather than the Crown (if the Crown, s 5AE says the Court must submit the stated case). There is no guidance provided in the section in relation to the exercise of that discretion. 3The questions of law, if that is what they be, in the draft stated case concern whether various errors of law arise from my decision in Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited [2012] NSWLEC 22 on a voir dire allowing admission in the sentence hearing of two expert reports in light of the Expert Witness Code of Conduct (the Code) in Uniform Civil Procedure Rules 2005 (the UCPR) Sch 7. 4The Defendant submits that this is a live issue that ought be determined before the Court imposes sentence as a stated case now would reduce possible delay and expense in the future. If there is an appeal in the future following sentence the Court of Criminal Appeal is likely to remit the matter for further sentence by this Court occasioning delay and expense. 5The Chief Executive, Office of Environment and Heritage, the Prosecutor, submits that the Defendant must establish that it will be prejudiced if the stated case is not made. The balance of convenience and the proper disposal of the proceedings must be weighed up.