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District Court of New Zealand |
Last Updated: 9 November 2024
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL
IN THE DISTRICT COURT AT TIMARU
I TE KŌTI-Ā-ROHE KI TE TIHI-O-MARU
[2023] NZDC 23974 CRI-2019-076-001444-5
THE KING
Prosecutor v
LAURENCE WILLIAMS and
FOX PEAK STATION COMPANY LIMITED
Defendants
Hearing: via AVL on 24 October 2023 Counsel: A McCrae for the Crown
E A Boshier for the defendants Judgment: 1 November 2023
JUDGMENT OF JUDGE JJM HASSAN
on matters arising from pre-trial applications under s101 Criminal Procedure Act 2011
Introduction
[1] Laurence Williams and Fox Peak Station Company Limited each face charges under the Resource Management Act 1991 (‘RMA’) as follows:1
[2] The defendants have pleaded not guilty and elected trial by jury.
[3] A central issue in regard to the wetland charges is whether or not specified areas of Fox Peak Station were ‘wetlands’ as defined by the Canterbury Land and Water Regional Plan (‘LWRP’) at the time of the alleged offending in those charges. On these and related matters:
- (a) the Crown intends to call a wetland ecologist, Mr Mark Parker, and produce some related exhibits;
- (b) the defendants intend to call a wetland ecologist, Dr Michael Thorsen.
[4] In the face of potential admissibility challenges, the Crown and defendants have each applied under s101 of the Criminal Procedure Act 2011 (‘CPA’) for orders as to the admissibility concerning that evidence.
[5] The Crown’s application pertains to:
- (a) the evidence of Mr Parker as contained in his formal written statement dated 2 August 2023 (relevant portions identified at Tab 2 of the application); and
- (b) Crown Exhibits as identified at Tab 3 (pollution event report) and Tabs 4 – 7 (Maps of Wetland Layers) of the Crown’s application.
[6] The defendants’ application concerns identified passages of the brief of evidence of Dr Thorsen (as marked up and attached to the defendants’ application).
[7] After hearing submissions, I signalled to counsel that I identified a number of difficulties with the draft evidence of both experts in terms of admissibility principles. In light of those indications, I gave counsel the opportunity to further confer on how
they wished to proceed. They jointly requested that I withhold from making a final determination of the applications at this stage so as to allow for further discussions with the experts and potential re-briefing. To assist that, counsel sought that I issue an interim ruling on how ‘wetland’ is to be properly interpreted and any observations I can make on the draft formal witness statement and brief as may assist in the consideration of further briefing of the experts.
[8] Therefore, this judgment leaves reserved the final determination of the applications. Instead, it addresses the following matters only:
- (a) the proper interpretation of ‘wetland’ for the purposes of the wetland charges; and
- (b) observations concerning the draft evidence the subject of the applications.
What does ‘wetland’ mean for the purposes of the wetland charges?
[9] The wetland charges allege contravention of r 5.162 of the LWRP which provides as follows:
5.162 Reducing the area of a wetland by the taking, use, damming or diversion (including draining) of water or other means, including vegetation clearance, cultivation, burning or earthworks, except as provided for in Rule 5.161 is a non-complying activity.
[10] Accordingly, the Crown is required to prove that the particular areas identified in the Crown Charge List were wetlands, for the purposes of the LWRP, at the time of the alleged offending.
[11] The LWRP’s definitions are in its r 2.9 as to “Definitions, Translations and Abbreviations”. This commences with the following notation:
The words used in this Plan have their ordinary meaning as set out in the Oxford English Dictionary (Second Edition or Oxford English Dictionary Online), except where the words are defined in either the RMA, the RPS 2013, or this Plan. ...
[12] A table of definitions follows including the following definition of ‘wetland’ (with highlighting added to identify the words whose meaning are in contention):
|
Word
|
Definition
|
|
Wetland
|
includes:
(d) reservoirs for firefighting, domestic or community water supply. |
Issues
[13] The focus is on the highlighted paragraph 2 of the definition. The issues of statutory interpretation addressed in this judgment are in essence:
- (a) do the words “that support an indigenous ecosystem of plants and animals specifically adapted to living in wet conditions, and provide a habitat for wildlife”:
- (i) only qualify “and other naturally wet areas” (‘Crown interpretation’); or
- (ii) also qualify the preceding words, i.e. “natural ponds, swamps, marshes, fens, bogs, seeps, brackish areas, mountain wetlands,” (‘Defence interpretation’)?
- (b) do the words “habitat for wildlife” mean:
Principles
[14] The relevant statutory interpretation principles are well-settled and not disputed. Rather, differences centre on their consequences for the meaning of those noted parts of that definition. The LWRP is “secondary legislation” and hence “legislation” for the purposes of the Legislation Act 2019 (‘LA’). I am to ascertain the meaning of the provisions of the LWRP, including the definition of ‘wetland’, from its text and in light of its purpose and its context.4 I am to apply the LWRP, including the definition of ‘wetland’ to “circumstances as they arise”.5
[15] The Court of Appeal decision in Powell v Dunedin City Council,6 referred to by Mr McCrae, is of assistance notwithstanding that it was concerned with the previous legislation on statutory interpretation. Taking guidance from Powell, I do not consider the disputed parts of the definition of ‘wetland’ in a vacuum but rather in their immediate context. In addition to the remainder of the definition, that context includes LWRP r 5.161 and those LWRP objectives and policies that the rule is intended to assist to achieve or implement. Insofar as the meaning of the disputed words remains unclear, I extend that context to the RMA definition of ‘wetland’, namely:
2 Interpretation
(1) In this Act, unless the context otherwise requires, ...
wetland includes permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions.
[16] I find that appropriate because the definition explicitly incorporates that definition by its references to “wetlands” under the above-noted prefacing words, i.e.
The words used in this Plan have their ordinary meaning as set out in the Oxford English Dictionary (Second Edition or Oxford English Dictionary Online), except where the words are defined in either the RMA, the RPS 2013, or this Plan.
Submissions
The Crown
[17] The Crown submits that, to prove that relevant areas were ‘wetlands’ as defined by the LWRP, it needs to prove only that the areas were:
... natural ponds, swamps, marshes, fens, bogs, seeps, brackish areas, [or] mountain wetlands... .
[18] That is, it would not need to also prove that the areas:
- (a) supported “an indigenous ecosystem of plants and animals specifically adapted to living in wet conditions”; or
- (b) provided “a habitat for wildlife”.
[19] Acknowledging the RMA definition, Mr McCrae notes it is inclusive and submits that this allows for a “more prescriptive definition” to be included in a regional plan. He submits that, as a matter of statutory construction, the phrase “that support an indigenous ecosystem of plants and animals specifically adapted to living in wet conditions, and provide a habitat for wildlife”, as used in the LWRP definition, only applies to the preceding part of the definition, i.e. “and other naturally wet areas”.
[20] That interpretation is on the basis of the definition’s inclusion of a comma immediately after the words “mountain wetlands”. Counsel submits that comma
serves an intention that the latter part of the definition “is to be read disjunctively from the recognised types of wetlands in New Zealand”.7 Mr McCrae reasons that:
(a) for “recognised categories” of wetland, i.e. a natural pond, swamp, marsh, fen, bog, seep, brackish area or mountain wetland, there would be no need to establish the area supported an indigenous ecosystem of plants and animals, and provided a habitat for wildlife, with the consequence of ensuring “that recognised natural wetlands are caught by the definition and afforded protection”; but
(b) for the remaining “catch all” i.e. naturally wet areas, there would be a need to prove those additional matters, with the consequence that areas that “hold no genuinely valuable wetland ecosystem will not be caught by the definition”.
[21] Counsel draws support for that interpretation from relevant LWRP objectives and policies, notably:8
- (a) Obj 3.18 that wetlands that contribute to cultural and community values, biodiversity, water quality, mahinga kai, water cleansing and flood mitigation are maintained;
- (b) Obj 3.19 that natural character values of freshwater bodies, including braided rivers and their margins, wetlands, hapua and coastal lagoons, are protected;
- (c) Pol 2A.3 which seeks that the loss of extent of natural inland wetlands is avoided, their values protected, and their restoration is promoted, except in certain circumstances; and
- (d) Pol 4.83 which seeks that the restoration or enhancement of wetlands is encouraged provided it does not give rise to any adverse effects on other lawfully established activities, including any adverse effects on the reliability of supply of water for existing abstractors, or any inundation or erosion of other people’s property.
The defendants
[22] Mr Boshier submits that, on a proper interpretation, all three components of the definition are to be applied to all of the subjects in paragraph 2 of the definition. That includes “natural ponds, swamps, marshes, fens, bogs, seeps, brackish areas”, and “mountain wetlands”.
[23] As for statutory construction, he submits that the comma is to be understood “as an ordinary Oxford comma at the end of a list concluding with the words ‘other naturally wet areas’ ” such that it serves to subject all listed items to the words that follow.9
[24] As for the immediate context of the definition of ‘wetland’ in the LWRP, Mr Boshier refers to the following definition of ‘wetland boundary’ i.e.
Wetland boundary means the point in the transition from wetland to dryland
where wetland plant species occur at more than four times their ungrazed height apart. Wetland edge has a similar meaning.
[25] Mr Boshier submits that the definition of ‘wetland boundary’ does not sit well with the Crown’s interpretation, particularly in its reference to “wetland plant species”. He refers to a number of the objectives and policies referred to by Mr McCrae but submits that they do not mean the Crown’s interpretation is to be preferred.
[26] Counsel further submits that the Crown’s interpretation would lead to “absurd outcomes”, including by capturing brackish areas where no plants grow. He notes that the RMA definition also includes a comma preceding the phrase “and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions”. Applying the Crown’s interpretation to that definition would, in counsel’s submissions, lead to similarly absurd outcomes. That is that all permanently or intermittently wet areas that are not land water margins would be wetlands, for RMA purposes, without having to support a natural ecosystem of plants and animals that are
adapted to wet conditions.
[27] In addition, Mr Boshier records the defendants’ concerns as to the procedural unfairness of the Crown’s late and material change from its previously understood position. As I do not determine the applications in this judgment, I do not need to go further than noting that and the fact that the Crown does not accept that it has changed its position.
The proper meaning of ‘wetland’ in the LWRP
[28] In substance, I agree with the defendants’ interpretation. That is, I find that the better reading of paragraph 2 of the definition of ‘wetland’ in LWRP r 2.9 is to the effect that, to qualify as a wetland, a natural pond, swamp, marsh, fen, bog, seep, brackish area, mountain wetland or other naturally wet area must also:
- (a) support an indigenous ecosystem of plants and animals specifically adapted to living in wet conditions; and
- (b) provide a habitat for wildlife.
Construction – particularly usage of the Oxford comma and the conjunction “and”
[29] The construction of paragraph 2 of the definition, in particular its usage of the Oxford comma, is of some assistance in eliciting the drafting intention.
[30] I acknowledge that, if the first of the noted phrases in paragraph 2 of the definition is treated in isolation, it is capable of being read as the Crown submits. However, that interpretation cannot stand when the first noted phrase is considered in the context of the second one in the paragraph that is also preceded by a comma (i.e. “and provide a habitat for wildlife”). The second phrase cannot sensibly be read to be confined simply to “other naturally wet areas”. Were that the intention, the comma that precedes it would be redundant. Mr Boshier correctly reads the commas that precede both phrases as Oxford commas. Together with the repeated conjunction “and”, they signal an intention that both phrases are to be read conjunctively to the effect that their specifications are to be applied to all items listed in paragraph 2 as required qualities for being a ‘wetland’.
[31] That is, in order to qualify as a ‘wetland’, including for the purposes of r 5.162, each of the subjects listed in paragraph 2 must also:
- (a) support an indigenous ecosystem of plants and animals specifically adapted to living in wet conditions; and
- (b) provide a habitat for wildlife.
[32] I am mindful that the usage of commas in punctuation can be highly variable, particularly in statutory instruments such as RMA plans. For instance, the New Zealand Oxford Dictionary commences its commentary on usage of the comma with a statement that the “use of the comma is more difficult to describe than other punctuation marks, and there is much variation in practice”.10 I am also mindful that the LWRP approach to the use of commas, even within the definition of ‘wetland’, is variable. For instance, neither paragraphs (c) and (d) of the listed exclusions applies the Oxford comma style.
[33] Nevertheless, I am satisfied that the consistent use of Oxford commas to precede the conjunction “and” in paragraph 2 of the definition is intentional and supports the interpretation favoured by the defendants.
Consistency with the RMA definition of ‘wetland’
[34] A further factor supporting the defendants’ interpretation of the LWRP definition of ‘wetland’ is its material consistency with the RMA definition. The RMA definition of ‘wetland’ is inclusive and RMA plans can incorporate definitions that refine or extend it.11
[35] However, the LWRP definition of ‘wetland’ is materially consistent in its construction and intent in that, with usage of the Oxford comma, it:
- (a) describes classes of potential wetlands in inclusive terms, ie “includes
permanently or intermittently wet areas, shallow water, and land water margins”; and
(b) prescribes a qualifying prerequisite for each, namely “that support a natural ecosystem of plants and animals that are adapted to wet conditions”.
[36] The LWRP is materially similar in those aspects of construction although it refines and extends the RMA definition by:
- (a) further prescribing eligible types of land or water feature as may qualify as a wetland; and
- (b) qualifying the specification concerning the supporting of a “natural ecosystem” to one of supporting “an indigenous ecosystem”, nevertheless “of plants and animals specifically adapted to living in wet conditions”; and
- (c) adding a further qualification, namely that the specified land or water feature has to also “provide a habitat for wildlife”.
[37] The materially similar construction that the LWRP definition has to its RMA counterpart supports an interpretation that both are intended to apply consistently. That is, just as the qualifying prerequisites in the RMA definition must be met for permanently or intermittently wet areas, shallow water, and land water margins to qualify as wetlands, so also must the various classes listed in paragraph 2 of the RMA definition.
The defendants’ interpretation assists the legislative purpose of the definition
[38] Counsel each referred to the same LWRP objectives and policies, but to support their contrasting interpretations of the definition. I find that a purposive interpretation, including by reference to those provisions, better supports the defendants’ interpretation.
[39] As s67(1)(c) RMA provides, the LWRP specifies that its rules serve to implement its policies (“2.3 Rules”). Rules also serve to assist the achievement of
objectives and policies.12 The relevant related rule, r 5.162, as noted, prescribes reduction of the area of a wetland, by its specified means, to be a non-complying activity.13 LWRP definitions, including of ‘wetland’, serve all such purposes in that they are intended to be applied when defined words are used in particular provisions.
[40] Framing the relevant objectives and policies in the LWRP is Section 1 Introduction, Issues & Major Responses. This includes some commentary on issues associated with wetlands including the following (under a heading “Biodiversity, Wetland, and Riparian Margins”):
Wetlands, riparian margins and other areas of indigenous vegetation create habitats for indigenous fauna and have important natural character values. These areas are culturally significant to Ngāi Tahu, as well as being important in defining the uniqueness and identity of New Zealand for all. It is recognised that some exotic vegetation also provides habitat value for significant indigenous fauna.
... Wetlands can also filter sediment and contaminants, although introducing significant quantities for treatment into a wetland will most likely change the wetland’s functioning and values.
[41] Following similar themes, relevant objectives include:
- 3.18 Wetlands that contribute to cultural and community values, biodiversity, water quality, mahinga kai, water cleansing and flood mitigation are maintained.
- 3.19 Natural character values of freshwater bodies, including braided rivers and their margins, wetlands, hapua and coastal lagoons, are protected.
[42] Pol 2A.3 is one of a set of policies described to be included in the LWRP in accordance with directions “in a national policy statement, national planning standard or other national direction” (in Section 2A National Direction). It relevantly gives direction that the “loss of extent of natural inland wetlands is avoided, their values are protected, and their restoration is promoted” (subject to some listed exceptions which do not appear relevant in the present context).
[43] There are the following related policies:
- 4.81 Any take, use, damming or diversion of water, any discharge of contaminants onto land or into water, or any earthworks, structures, planting, vegetation removal or other land uses within a wetland boundary, do not adversely affect the significant values of wetlands, hāpua, coastal lakes and lagoons, except for:
- (a) a temporary and or minor adverse effect where that activity is part of installing, maintaining, operating or upgrading infrastructure, pest management, or habitat restoration or enhancement work; or
- (b) the artificial opening of hāpua, coastal lakes or lagoons to assist in fish migration or achieving other conservation outcomes, customary uses, or to avoid land inundation.
- 4.82 Modification of wetlands, hāpua, coastal lakes and lagoons may occur if the modification is necessary, and necessarily has to be in that location to provide for the installation, upgrading or maintenance of infrastructure and any significant effects are offset by other improvements to or expansion of the same or another wetland, hāpua, coastal lake or lagoon.
- 4.83 Restoration or enhancement of wetlands is encouraged provided it does not give rise to any adverse effects on other lawfully established activities, including any adverse effects on the reliability of supply of water for existing abstractors, or any inundation or erosion of other people’s property.
- 4.84 Wetlands and riparian planting are developed as integral parts of land drainage systems, discharges to land and water and stormwater systems in both rural and urban areas, to reduce the effects of those activities on water quality and to enhance indigenous biodiversity and amenity values.
- 4.85 Water quality, indigenous biodiversity and ecosystem health in lakes, rivers, wetlands, hāpua, coastal lakes and lagoons are enhanced through establishing or restoring riparian planting.
[44] The essence of the Crown’s position on these matters is that the protective intentions of the LWRP in regard to wetlands is more effectively realised if areas that people would generally regard as ‘wetlands’ do not need to be subject to additional qualifying requirements. However, it does not serve those intentions well for a regulatory regime to materially overreach or to be a source of fundamental uncertainty for users and plan administrators.
[45] Several of the subjects listed in paragraph 2 of the definition are imprecise and prone to materially different subjective reading in their contexts (e.g. “fen” as a “low marshy flooded area of land”,14 “seep” as a place where water oozes out; percolates slowly15 or “bog” as “wet spongy ground”).16 If the additional qualifying specifications (i.e. as to supporting an indigenous ecosystem adapted to wet conditions and providing a habitat for wildlife) did not need to be met, there would be inherent uncertainty as to whether relevant rules, including r 5.162, applied in any context. The question could turn, for instance, on whether the proper reading of any area of a farm is as a fen, seep, bog, wet pasture, or area where water temporarily ponds after rainfall. Rather than advancing protection, such a regulatory approach would be to unnecessarily impose uncertainty and costs. Given the importance to both plan administrator and user of clarity as to whether a rule requiring resource consent to be obtained, such as r 5.162, applies in any given circumstance, I find that the Crown’s interpretation cannot be sustained.
What is meant by ‘wildlife’
[46] Little if anything turns on whether “wildlife” has its ordinary meaning or that given by the Wildlife Act 1953 (‘WA’). The WA definition excludes certain wild animals that are subject to the Wild Animal Control Act 1977 none of which is likely to feature in this case (e.g. chamois, goat, Himalayan tahr, pig and specified types of deer). Subject to that, the WA definition refers to “any animal that is living in a wild state; and includes any such animal or egg or offspring of any such animal held or hatched or born in captivity, whether pursuant to an authority granted under this Act or otherwise”.
ed) definition is “A piece of wet spongy ground consisting chiefly of decayed or decaying moss and other vegetable matter, too soft to bear the weight of any heavy body upon its surface; a morass or moss.”
[47] In contrast, the Oxford English Dictionary defines “wildlife” as:17
the native fauna and flora of a particular region.
[48] As noted, that definition is specified in LWRP r 2.9 as an applicable source of the ordinary meaning of ‘wildlife’ for the purposes of the definition of ‘wetland’. Hence, I find it to be the intended meaning of ‘wildlife’ for relevant purposes (albeit that it may differ slightly from the definition in the New Zealand Oxford Dictionary, namely “wild animals collectively”).18
Observations about the draft evidence of Mr Parker and Dr Thorsen pertaining to the applications
[49] In view of counsels’ signalled intention to revisit the briefing of expert evidence and as discussed prior to adjournment, I make some observations on aspects of this draft evidence. That is in particular to identify where the draft evidence would offend relevant principles concerning expert evidence to the extent that it would not support the endorsements sought by the s101 applications.
Principles
[50] Mr McCrae offers a helpful synopsis of relevant principles concerning the admissibility of expert evidence, with reference to s25 of the Evidence Act 2006 (‘EA’) and related provisions and authorities. I respectfully draw from that in this summary.
[51] Under s25 EA, an overriding prerequisite for admissibility of expert opinion is that the fact-finder is “likely to obtain substantial help from the opinion” in:
- (a) understanding other evidence in the proceeding; or
[52] The ‘substantially help’ criterion is a higher threshold than simple probative value.19 It is an amalgam of relevance, reliability and probative value in the assessment of the admissibility of expert evidence.20 Each of the s25 EA elements should be considered in its own right, rather than just defaulting to an amalgamated examination.21
[53] Furthermore, for expert opinion to be admissible, it must be both relevant and within the area of the witness’s expertise (i.e. a witness’s “specialised knowledge or skill based on training, study, or experience”).22
[54] As to the duties of an expert witness, the observations of the Court of Appeal in Horton v R23 should be borne in mind including that:
[33] It is not for expert witnesses to believe or disbelieve primary fact witnesses. That is the task of the jury. Expert witnesses must maintain objectivity...
...
[43] We reiterate that the expert’s primary duty is to the court. Expert witnesses must be impartial and objective in the way in which they build the foundations for their opinions, as well as the way in which they express them.
Aspects of the experts’ current draft opinions that offend those principles
[55] In terms of the elements to be proved concerning the wetland charges, relevant questions include:
21 See R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.
[56] That is not to say that, on all matters that are relevant to the elements, expert opinion would be substantially helpful to the fact-finder.
[57] In particular, some aspects of the LWRP definition of ‘wetland’ would appear to be capable of being considered and determined by an ordinary member of the public on the basis of relevant factual findings. For example, without determining the point, there was discussion about this in the hearing concerning the meaning of “wet pasture or where water temporarily ponds after rainfall”.
[58] On the other hand, again not determining the point, a fact-finder may well obtain substantial help from an appropriate expert’s opinion on whether at the relevant date(s) an area:
- (a) was a natural pond, swamp, marsh, fen, bog, seep, brackish area or mountain wetland or other naturally wet area;
- (b) supported an indigenous ecosystem of plants and animals specifically adapted to wet conditions; and
- (c) was a habitat for wildlife, i.e. for native fauna and flora of the relevant local region.
[59] Because those are matters which are of consequence to the determination of the proceeding, expert opinion evidence on such matters is likely to be admissible.
[60] It is not relevant for an expert to offer opinions on any of the following matters that are traversed in Mr Parker’s draft formal statement and Dr Thorsen’s draft brief:
[61] Care is needed when an expert seeks to draw from a methodology, such as in the literature or which they are familiar with as being applied in practice, to ensure the methodology pertains to a construct of ‘wetland’ that is materially the same or similar to the LWRP definition. There may be questions of degree calling for judgement in these matters. To ensure any opinion based on any methodology is substantially helpful to the jury, any material qualifications as to the relevance of the methodology should be stated.
[62] It is not relevant and a form of advocacy in breach of an expert’s duties to offer commentary on any of the following as are traversed to some extent in Mr Parker’s draft formal statement and Dr Thorsen’s draft brief:
- (a) the merits or otherwise of the LWRP definition of ‘wetland’ (i.e. beyond simply any relevant opinion to provide substantial help to the fact-finder in applying it) and/or the relevant LWRP rules;
- (b) what the Council might have intended to say in the definition of ‘wetland’ beyond what the definition in fact means;
- (c) the adequacy or otherwise of the Council’s administration of the LWRP or the support being offered to landowners or any other such matters; or
- (d) submissions or advocacy of any other kind.
[63] My observations as to where evidence that is the subject of the applications offends relevant principles are confined to Mr Parker and Dr Thorsen. I further signal that those offending aspects of their draft formal statement and brief are such that it
would be problematic addressing them by directions to the jury.
Outcome and directions
[64] According to the preferences of counsel, I do not determine the applications at this time but allow them to be brought on for determination at short notice by memorandum. Counsel signalled that the matters concerning the Crown exhibits may not now require determinations as they may not now go to the jury. Insofar as that position may change, I signal that:
- (a) the pollution event report of Mr Carson-Iles, presently Tab 3, would not appear to have been based on a proper application of the definition of ‘wetland’ at least in respect of each of its required elements (although counsel indicate this matter may now not need to be determined in that it may not now be intended to go before the jury);
- (b) there are various live issues that would need to be determined concerning the maps in Tabs 4 – 7 (Maps of Wetland Layers) attached to the Crown’s application, as are raised in submissions for the defence;
- (c) any such material, were it to be put to the jury, would need to be subject of carefully considered directions.
[65] Directions were made at the conclusion of the hearing for the purposes of timetabling steps for any further briefing of experts, conferencing and the provision of any updated briefs (showing updates by tracked change). A memorandum of counsel for the Crown was filed in response, dated 31 October 2023. It relevantly reports that:
- (a) Mr Parker, having been briefed, is reviewing his formal written statements with a view to making amendments that might be necessary;
- (b) the Crown will disclose any new material from Mr Parker immediately upon receipt;
- (c) the experts cannot confer until Mr Parker has finalised his evidence and therefore it is anticipated that conferencing cannot commence until the end of the week commencing 6 November 2023. However, Mr Parker has general availability through until the trial to confer with defence
experts and attempt to identify common ground in order to reduce the extent and complexity of the expert evidence before the court;
(d) additional disclosure is being collated for submission to counsel for the defendant and it is hoped that this material will address all outstanding disclosure issues.
[66] In light of that report from counsel, and in view of the timing of the issuing of this judgment, I replace and amend the directions given prior to the adjournment as follows (reserving leave for parties to seek further or amended directions):
- (a) by Friday 3 November 2023 the Crown will collate all additional disclosure and provide this to counsel for the defendants;
- (b) by Tuesday 7 November 2023, the defendants are to make any application as to disclosure concerning the materials referenced at paragraph [104] of counsel’s memorandum dated 21 October 2023;
- (c) the Crown will disclose to the defendants any new material arising from Mr Parker’s review of his evidence in light of this judgment by Friday 3 November 2023;
- (d) by Wednesday 8 November 2023, counsel are to confer and by memorandum, preferably jointly, propose timetabling directions as to:
- (i) expert conferencing to be undertaken in accordance with the Practice Note and in particular with a view to identifying common ground and reducing the extent and complexity of expert evidence before the court;
- (ii) any other matters to ensure the fair and efficient conduct of the scheduled trial.
J J M Hassan
District Court Judge and Environment Judge
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