Australia, June 20 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. In a judgment delivered this morning, I refused the defendants' application to read the affidavit of Dr David Robertson dated 13 May 2025 and tender Exhibit DR-1 thereto, being Dr Robertson's expert report dated 13 May 2025, on the voir dire: Secretary, Department of Planning, Industry and Environment v JP & LR Harris Pty Ltd; Secretary, Department of Planning, Industry and Environment v Woolondoon Pty Ltd (No 2) [1] (the voir dire judgment). In this judgment, I adopt the definitions and legislative provisions set out in the voir dire judgment.

2. The defendants now seek leave pursuant to s 247P of the Criminal Procedure Act 1986 (NSW) to read Dr Robertson's affidavit and tender the expert report exhibited to his affidavit as evidence in their case. Following the tender by the prosecutor of the s 60F certificate this morning, the prosecution is ready to close its case. However, it was agreed between the prosecutor and the defendants on this the last day of the hearing in trial 2, that the question of leave to the defendants to rely on Dr Robertson's material ought be decided before the prosecution closes its case.

3. In this judgment, I consider the question of leave, that being a separate and anterior question to that of admissibility (the prosecutor having foreshadowed numerous objections to Dr Robertson's report) which I do not need to presently consider.

4. I have today read the affidavit of David Robertson dated 13 May 2025 and Exhibit DR-1 thereto, being a report prepared by Dr Robertson dated 13 May 2025, and taken them into consideration in this decision on whether to grant leave to the defendants to read the affidavit and tender the report of Dr Robertson. Neither the affidavit nor the report provides any explanation as to why it was not until 12 May 2025 that Dr Robertson was supplied by the defendants' solicitor Mr McGirr with documents from a report prepared by the prosecutor's expert Mr Watts:

* Appendix 5 being the s 60F certificate dated 12 October 2020;

* Appendix 12 being an aerial photograph dated 8 and 20 June 1985; and

* Appendix 13 being an aerial photograph dated 12 June 1992.

5. Nor does the affidavit or the report provide any explanation as to why it was not until 12 May 2025 that Dr Robertson was asked by the defendants' solicitor to provide his expert opinion on "the areas marked in yellow on the Section 60F Certificate (relating to the properties Woolondoon and Curly Whirl) as to whether any parts of those areas had been cleared of vegetation prior to 1 January 1990, and if so, the reasons for your opinion". The defendants have been in possession of that material since at least 28 May 2021 when the prosecutor served its s 247E notice to which the s 60F certificate was an appendix.

6. The prosecutor submitted that the Court ought determine the question of leave immediately, and indicated that it relies on the written submissions it filed and served on the defendants' application for the voir dire. Mr Ireland, for the defendants, sought an adjournment in order to put a written outline to the Court on the question of leave. Although this course was opposed by the prosecutor, I acceded to the request of Mr Ireland and directed that the defendants file any written submissions on the question of leave by 1pm, and adjourned the hearing until 2pm. The prosecutor reserved its position in relation to further submissions depending upon the matters raised in Mr Ireland's written outline.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196eb968936bcb0ab4fd8b4f)

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