Land and Environment Court New South Wales Medium Neutral Citation: Sutherland Shire Council v Benedict Industries Pty Ltd (No 7) [2015] NSWLEC 184 Hearing dates: 27 November 2015 Date of orders: 27 November 2015 Decision date: 27 November 2015 Jurisdiction: Class 5 Before: Pepper J Decision: Leave granted to prosecutor to rely on additional affidavit evidence. Catchwords: ENVIRONMENTAL OFFENCES: case management – whether prosecutor should be granted leave to adduce further evidence – application made after hearing had commenced during prosecutor's case – applicable legal principles – no actual prejudice to defendant if leave granted – prejudice to prosecutor if leave refused – no delay in the finalisation of the proceedings if leave granted – leave granted. Legislation Cited: Criminal Procedure Act 1986, ss 247E, 247J, 247N Environmental Planning and Assessment Act 1979, ss 76B, 125 Cases Cited: Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 92; (2012) 187 LGERA 207 Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 39 Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97 Category: Procedural and other rulings Parties: Sutherland Shire Council (Prosecutor) Benedict Industries Pty Ltd (Defendant) Representation: Counsel: Mr D Buchanan SC (Prosecutor) Mr T Howard SC with Mr C Ireland (Defendant) Solicitors: Sutherland Shire Council (Prosecutor) Benedict Industries Pty Ltd (Defendant) File Number(s): 12/50921, 12/50923, 13/50100 ex tempore Judgment The Prosecutor Applies for the Fourth Time for Leave to Rely on Additional Evidence 1. Pursuant to a notice of motion filed on 18 November 2015, the first day of the second attempt of a hearing of a criminal trial listed for approximately four weeks, the prosecutor, Sutherland Shire Council ("the council"), sought leave to file and rely upon an additional affidavit of Mr Todd Hopwood sworn 17 November 2015 ("the third Hopwood affidavit") and, as a consequence, to amend its Div 2A notices under ss 247E and 247J of the Criminal Procedure Act 1986 ("the Act"). 2. The motion was opposed by the defendant, Benedict Industries Pty Ltd ("Benedict"). 3. Although foreshadowed by the council on the first day of the hearing, the motion was deferred until such time as Mr Hopwood was called to give evidence, which was on 27 November 2015. This had the advantage of, as the Court observed on 18 November 2015, affording Benedict the opportunity of, if it wished, obtaining whatever evidence of prejudice it may seek to rely upon in response to the application. 4. At the conclusion of the parties' submissions on 27 November 2015, I indicated that I would grant leave to the council to rely on the third Hopwood affidavit but, due to the late hour (4.10pm), that I would deliver brief ex tempore reasons the next working day, explaining my basis for doing so. These are those reasons. The Nature of the Charges Against Benedict 1. In order to understand the importance and relevance of the third Hopwood affidavit, it is necessary to outline the offences with which Benedict is charged. 2. In three separate proceedings heard concurrently, the council charges Benedict with five offences against s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 3. Two charges allege that Benedict injured bushland vegetation without prior written consent contrary to the provisions of the Sutherland Shire Tree and Bushland Vegetation Preservation Order ("TPO") made under the provisions of the Sutherland Shire Local Environmental Plan 2000. Two further charges allege that Benedict injured trees without consent, again contrary to the provisions of the TPO. The fifth charge alleges that Benedict constructed an earth bund which constituted prohibited development, with the result that it contravened s 76B of the EPAA. A central element of all five charges is an absence of consent. 4. The dates between which these offences are alleged to have occurred are 1 August 2010 to 25 May 2012. Benedict has pleaded not guilty to each charge. Factual Background to the Application 1. The relevant factual background informing the nature of, and context to, the council's application for leave is set out in Benedict (No 3) (at [33]–[50]). Interlocutory History of the Proceedings 1. This is the council's fourth application for leave to rely upon further evidence (see Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121, Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 39 and Sutherland Shire Council v Benedict Industries Pty Ltd (No 3) [2015] NSWLEC 97). The procedural history of the matters is set out in detail in Benedict (No 3) (at [7]–[40]). 2. Having regard to this history, the preparation of the matters for hearing has been, it is fair to say, severely wanting by the prosecutor. Applicable Legal Principles 1. Benedict relied on s 247N of the Act to provide the legislative basis for the Court's discretion to refuse leave in the present application, occurring as it does mid-way through the prosecutor's case. That section states that: 247N Sanctions for non-compliance with preliminary disclosure requirements (1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for preliminary disclosure imposed by or under this Division. 1. In Benedict (No 3) the Court had regard to the relevant case law in respect of such applications, albeit prior to the trial commencing, and distilled the following applicable legal propositions (at [68]): From the available case law, it would appear that the touchstone for the exercise of the Court's discretion to grant leave to rely on further evidence under the Div 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave; application of casement principles, having regard to the efficient dispatch of Court business. 1. The council submitted that s 247N had no application because, in this instance, there had been no failure to disclose the third Hopwood affidavit to Benedict in accordance with the requirements for preliminary disclosure imposed by Div 2A, by reason of the fact that the evidence had only come into existence as at the date of the swearing of the affidavit, that is to say, 17 November 2015, and thus the provision was not engaged. 2. In my view, the construction sought to be placed on s 247N of the Act by the council is overly narrow. However, I need not resolve the issue because, as both parties agreed, the Court has in any event a general discretion to control its own proceedings in criminal cases (Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 92; (2012) 187 LGERA 207 at [64] and Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 25 per Mason CJ, 56 per Deane J and 74 per Gaudron J), which extends to the granting of leave to a prosecutor to file and rely upon additional affidavit evidence during the presentation of its evidential case. 3. Further, as the parties agreed, the touchstone to the exercise of this general common law discretion is, again, that of fairness between the parties, with the factors identified in Benedict (No 3), albeit in a statutory context, being nevertheless apposite. 4. The application was supported by an affidavit of Ms Roslyn McCulloch sworn 18 November 2015. Mrs McCulloch is a legal representative of the council. She deposed that on 6 November 2015, the council's legal representatives held a pre-trial conference with Mr Hopwood during which he said that there were three council minute books which had inadvertently not been retrieved from the Government Records Repository, and which, therefore, had not been searched by the team of council staff who undertook the task of searching the minute books in June 2015. Accordingly, Mr Hopwood arranged to search those minute books himself and proceeded to do so. The third Hopwood affidavit attests to these facts. 5. It is clear from correspondence attached to Ms McCulloch's affidavit that as soon as the third Hopwood affidavit was sworn, it was served on Benedict. 6. Mr Hopwood was cross-examined on the circumstances regarding his discovery of the missing council minute books and the chronology giving rise to the swearing of his affidavit. He revealed that: 1. he first became aware of the missing council minute books in the last week of October 2015, when he was reviewing the council's evidence of the searches it had undertaken of its files and minute books (see Benedict (No 3) at [39] and [40] for a more detailed description of this general evidence); 2. he informed the council's in-house lawyers of this fact at about that time; 3. a request was made for the retrieval of the minute books on 2 November 2015; 4. the minute books were received by him on 4 November 2015; 5. the minute books were not, however, examined by him to determine if they contained a relevant development consent until 16 November 2015; 6. the reason for the delay in examining the minute books was because he had recently been allocated new duties pursuant to a restructure at the council and was "very busy" working 10-12 hour days. He had prioritised this work over examining the council minute books; and 7. that he was aware that the trial had been vacated earlier in the year but had not been told the reason why. Submissions of the Parties 1. The council submitted that it ought to be permitted to rely on the third Hopwood affidavit because: 1. first, the evidence was, as the Court noted in Benedict (No 3), central to the prosecution. The council must prove beyond reasonable doubt an absence of consent in respect of each of the five charges. If the evidence contained in the third Hopewood affidavit is not permitted, then it was possible that reasonable doubt could arise as to the non-existence of any approval. Thus refusal of leave would severely prejudice the council; 2. second, Mr Hopwood had provided a reasonable explanation (that of oversight) for the reason why the necessity for the evidence has arisen; 3. third, the council did not delay in informing Benedict of the evidence; 4. fourth, as could be seen from the contents of the third Hopwood affidavit, the compass of the evidence was confined both in time and size; 5. fifth, the evidence was similar in content and structure as that given in a more fulsome affidavit sworn by him on 5 June 2015; and 6. sixth, Benedict could point to no prejudice if leave were granted. 1. By contrast, Benedict argued that leave ought to be refused on the basis that: 1. first, the council's preparation of it's evidence throughout the entirety of the prosecution could only be characterised as a pattern of conduct that has been marked by delay and incompetence; 2. second, Mr Hopwood's explanation as to the delay between him obtaining the missing council minutes and examining them in order to form the opinion that they did not contain any relevant consents was inadequate in the circumstances of an imminent criminal trial that had already been previously vacated for a similar reason; 3. third, Mr Hopwood had provided no explanation for his delay in initially reviewing the council's evidence that gave rise to the discovery of the missing minute books in his affidavit; 4. fourth, although there was no specific prejudice, there was prejudice in the form of further delay to Benedict in the finalisation of these proceedings, and moreover, there was general prejudice to the extent that certain forensic decisions had been taken by Benedict on the basis of an assumption that it had in its possession all of the council's evidence; and 5. fifth, the council, by its actions, has undermined the efficient administration of justice by the Court and has eroded the integrity of its processes, and therefore, deserved to be sanctioned. Leave Ought to be Granted to Rely on the Third Hopwood Affidavit 1. While there is considerable force in Benedict's contentions, particularly in the observation that through its plainly deficient preparation of its evidence the council's actions have tended to impede the efficient finalisation of the hearing and caused considerable curial resources to be consumed, the council's application must nonetheless be acceded to. 2. First, as the council has stated, the consequence of not granting leave could have serious ramifications for the council's case. 3. Second, Benedict cannot in fact point to any prejudice that should preclude leave being granted. The unspecified prejudice alluded to by Benedict was not sufficient for this purpose. Had it been able to point to any tangible evidence in proper form, it is highly likely that the Court would have refused the council leave to rely on the third Hopwood affidavit given the procedural history of this matter. But in this instance, the receipt of the affidavit will not result in an adjournment of, or any further delay in, finalising the proceedings. 4. Third, Mr Hopwood's reason for the necessity for the further affidavit bespeaks of mistake and not something more malevolent. 5. Fourth, although I agree with Benedict that the examination of the council minutes was not attended to with the necessary expediency demanded by the imminent commencement of the hearing, a date which Mr Hopwood was aware of. Nevertheless it does not appear that any sense of urgency was impressed upon Mr Hopwood by his supervisors or by the council's internal lawyers. Mr Hopwood was not, for example, aware of the reason why the initial hearing of the matter was vacated in July. 6. Fifth, as the council stated, the evidence is not complex and is in very short compass. It can be met by Benedict. 7. Sixth, and finally, while I agree that the council's preparation of its evidence has effectively subverted the objects of Div 2A of the Act, alone, this is not sufficient to justify the sanction of the Court denying the council leave, especially given the potentially deleterious effect such a denial would have on the council's case. While I do not accept the council's submission that punishment never has a role to play in the exercise of the Court's discretion to grant or refuse leave to rely on additional evidence, either under s 247N of the Act, or at common law, I acknowledge that, of itself, a desire to sanction a recalcitrant or inept prosecutor in the preparation of its case is unlikely to be a valid reason to refuse leave to rely on additional evidence. Conclusion and Orders 1. Notwithstanding the continued failing of the council to prepare its evidence in an efficient and timely manner, for the reasons given above, I determined that leave should be granted. 2. The council was therefore granted leave to file in Court and to rely upon the affidavit of Mr Todd Hopwood sworn 17 November 2015 and to amend its Div 2A notices under ss 247E and 247J of the Act. ********** 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: 01 December 2015