Environmental prosecutions: guidance on expert evidence from the Kyluk decision

The decision Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 (Kyluk) was recently handed down in the New South Wales Court of Criminal Appeal (Court of Appeal) and provides useful guidance on the way that criminal prosecution proceedings in environmental (and planning) matters should be run, particularly with respect to the rigour of expert evidence and environmental values that are not clearly defined.

Kyluk dealt with an appeal of a sentence imposed following a conviction in the New South Wales Land and Environment Court for picking plants falling within the endangered ecological community of a forest on its property within the Southern Tablelands of New South Wales.  The charge was brought under the New South Wales equivalent of the Environmental Protection Act 1986 (WA) (EP Act) or the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

During the initial trial, the appellant raised several objections to expert scientific evidence on the vegetation clearing that was tendered by the prosecutor, on the basis that it had low integrity and probative value.

The controversial evidence included a report from a soil scientist where expert opinion was based in part on the interpretation of test results of soil samples sent to a laboratory.  The report failed to include the test results, the processes for undertaking the tests, nor did it identify the name and qualifications of the persons undertaking the tests.

The Court of Appeal found that in admitting the evidence, the trial judge failed to give regard to the Evidence Act 1995 (NSW) which provides discretion to a court to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.  Relevantly the Evidence Act 1906 (WA)(see section 79(B)) as well as the Evidence Act 1995 (Cth) have the same discretion within it.

The Court of Appeal considered that the failure to include the material from the laboratory in evidence, denied the appellant the opportunity to test the conclusions reached by the soil scientist and therefore caused prejudice that could not be overlooked from the perspective of the Court.  When undertaking the weighing exercise required by the Evidence Act 1995 (NSW), the Court of Appeal considered that any probative value of the soil scientist’s report was overshadowed by the risk that the evidence might be unfairly prejudicial to the appellant and should not have been admitted.

The ground of appeal challenging the admissibility of the soil scientist’s report was therefore upheld.

Another area of the prosecution’s evidence which was challenged and upheld by the Court of Appeal was the level of proof to which the prosecutor was required to show that the vegetation cleared was within the boundaries of the endangered ecological community.

The trial judge held that the boundaries of the endangered ecological community should be construed with some flexibility given that the communities do not have precise boundaries, and they are mapped by a scientific committee rather than parliamentary counsel.

However the Court of Appeal disagreed with this approach and emphasised that in criminal proceedings, facts that are taken into account in a way adverse to the interests of an accused must be established beyond reasonable doubt.  Accordingly, the Court held that the onus fell upon the prosecution to establish beyond a reasonable doubt that the area cleared by the appellant was an endangered ecological community as described by the scientific committee.

In this regard, Price J, who presided in this matter, stated at [111]:

Although there will necessarily be some uncertainty in determining the boundaries of ecological communities, it is plainly of importance that the circumstances of a potential breach of the NPW Act be readily ascertainable as persons are exposed to criminal prosecutions.  The adoption of such an approach to the construction of the final determination is informed by the rule that if the language of a criminal statute remains ambiguous or doubtful, the ambiguity or doubt is resolved in favour of the subject by refusing to extend the category of criminal offence: Beckwith v The Queen (1976) 135 CLR 569 at 576; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164.

Lavan Legal comment

The appeal decision in Kyluk is significant as it demonstrates with particularity to environmental prosecutions, the procedural and evidentiary requirements that must apply in criminal prosecution proceedings.

Firstly, the decision makes the point that expert evidence in environmental prosecution proceedings must meet the requisite rigour demanded in criminal proceedings.  In particular, assumptions made by experts have to be proven by the prosecutor.  What this means is that expert reports are required to have the factual basis for the findings/assumptions established through clear documentation/evidence, details of the scientific processes involved and a clear explanation of reasoning.  The importance of meeting this threshold is made clear due to the fact that in order to properly defend its case, a party subject to a prosecution must have the opportunity to fully test the evidence tendered against it.  In the absence of the requisite rigour being applied to the evidence of witnesses, expert testimony should not be admissible.

Secondly, and perhaps more importantly, notwithstanding that environmental legislation may refer to particular environmental values or elements (including matters of environmental significance) which are drafted in a vague or general manner, the prosecution is still required to prove that a breach of the legislation took place beyond reasonable doubt.  To do that, this decision makes clear that the prosecution must establish “beyond reasonable doubt” that the offence was committed.  A mere reference to a general guideline set out in the legislation is not sufficient.

Although the decision is not made in a jurisdiction relevant to WA, it outlines the high threshold required in order to achieve a conviction and clearly establishes the importance of sound scientific evidence over assumptions made by environmental scientists and guidelines set out is a legislative framework.

An example of how this decision can be applied in a WA context is in relation to enforcement action brought under the EP Act (and based on desktop analysis only) and the EPBC Act (analysis of matters of national environmental significance against guidelines rather than case specific environmental evidence). 

If you have a project that is subject to enforcement action and would like to better understand your position as a consequence of the principles outlined in this decision, please contact Craig Wallace or Clare Gleeson.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.