Andrews v Ardler & Brown

Background 3The appellant knew that fishing was an integral and important part of the culture of many Aboriginal communities and was aware of archaeological evidence of Aboriginal shellfish gathering (including the gathering of abalone fish) at Wreck Bay (part of Jervis Bay), on the South Coast of NSW: Exhibit A, tabs 8, 9 and 10. The appellant was well aware of the tension between Aboriginal cultural claims of fishing entitlement, the demands of commercial fishers and the need to ensure a sustainable fish population: Exhibit A, tab 10.

Commencement of Local Court Proceedings 4On 1 July 2008 at Wreck Bay, fisheries officers found the respondents in possession of 110 abalone fish. Fifty-one abalone fish were below the legal size limit. The catch limit is two abalone fish per person. The area in which the respondents had been fishing was subject to a fishing closure. The fisheries officers realised that the respondents were Aboriginal people. When apprehended, the respondents stated that they had collected the fish for a celebration that was to occur the following week, which was NAIDOC week. Later, having received advice from the Aboriginal Legal Service, the respondents chose to exercise their right to silence: Exhibit A, tabs 1 and 2. 5On 22 June 2010, the respondents were charged under sections 14, 16 and 18 of the FMA with, respectively, possession of fish taken from closed waters, possession of under-size fish, and possession of an excessive quantity of fish. 6From the outset, the respondents indicated that they might raise a native title entitlement to fish. Because the respondents had difficulty securing legal representation, the matter was adjourned several times. By September 2011, the respondents had secured legal representation. The hearing was fixed for December 2011. 7On 24 October 2011, the appellant's solicitor wrote to the respondents' solicitor in an endeavour to clarify the real issues in dispute. Inter alia, the appellant solicitors referred to s 211 of the Native Title Act 1993 (Cth) (the NTA) and sought particulars of the matters upon which the respondents intended to rely in support of their claimed entitlement to fish under native title law: Exhibit A, tab 4. The respondents' solicitor replied that the respondents would rely upon s 211 of the NTA and, alternatively, upon a "defence" of honest and reasonable mistake of fact and/or upon a "claim of right". The solicitor stated that he was endeavouring to engage an anthropologist to undertake research and fieldwork and was continuing to interview Aboriginal people in relation to the native title issue. He stated that the respondents identified with the Yuin people, and that the Yuin people asserted a native title right to fish for abalone fish. He identified the genealogical lines of the respondents. Otherwise, he provided generic answers to questions about the basis upon which the respondents claimed native title entitlement: Exhibit A, tab 5. 8The parties filed a notice under s 191 of the Evidence Act 1995 in which all elements of the alleged offences against the FMA (excluding any element relating to native title native entitlement) were admitted: Exhibit A, tab 3. 9At the commencement of the hearing, the Local Court decided six preliminary matters. Relevantly, the Court decided that: (1)The respondents had the onus of establishing on the balance of probabilities that s 211 of the NTA applied to their fishing activities. (2)As a matter of principle, the "defence" of honest and reasonable mistake of fact was available. (3)The respondents bore the onus of establishing the "defence" of honest and reasonable mistake of fact on the balance of probabilities.

The first preliminary issue: section 211 of the NTA 10The appellant accepted that, as a general proposition, s 211 of the NTA was capable of applying to a charge under the FMA so as to exonerate a defendant. Section 211 of the NTA provides: (1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and ... (2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests. Native title rights are acknowledged in s 287 of the FMA, which provides: 287. This Act does not affect the operation of the Native Title Act 1993 of the Commonwealth or the Native Title (New South Wales) Act 1994 in respect of the recognition of native title rights and interests within the meaning of the Commonwealth Act or in any other respect. 11Relevantly, on the hearing of preliminary matters, the issue between the appellant and the respondents was: Which party bore the evidentiary onus of establishing that s 211 applied or did not apply, and to what evidentiary standard? 12This issue was considered in Appeals of Rigby and Ors (District Court, Blanch CJ, unreported 17 December 2007). In that case, the Chief Judge acknowledged that he was bound by the decision in Mason v Tritton (1994) 34 NSWLR 572, in which the Court "appeared to" hold that a defendant who asserts native title rights must establish the existence of such rights on the balance of probabilities. His Honour noted the decision of Dershaw v Sutton (1996) 17 WAR 419, in which the Court reached a different conclusion, deciding that a defendant merely bore an evidentiary burden to adduce some evidence of a "defence" of native title fishing rights. 13At the hearing of the preliminary issues, the respondents contended that the decision in Mason was not authoritative because it concerned an occurrence prior to the introduction of s 211 of the NTA, and s 211 evinced a clear intention on the part of the Commonwealth to neutralise State laws that purported to criminalise the exercise of native title fishing rights. 14The Local Court concluded that it should follow the approach indicated in Rigby and should apply Mason. 15Initially, the respondents considered a Supreme Court challenge to this determination. However, they decided that they would not do so. They reserved their right to re-agitate the issue at the conclusion of the Local Court hearing. 16Because the appellant withdrew the prosecutions, this fascinating and important issue was pursued no further.

The second preliminary issue: honest and reasonable mistake of fact 17As noted above, the Local Court decided that, as a matter of principle, when an issue of native title entitlement was raised the "defence" of honest and reasonable mistake of fact was available. Further, the Local Court determined that the respondents bore the onus of establishing the "defence" on the balance of probabilities. 18The Local Court proceedings were adjourned to enable the appellant to test the Court's preliminary rulings in the Supreme Court.

Supreme Court Appeal 19The proceedings were heard before Justice Button. His Honour delivered judgment on 25 July 2012: Andrews v Ardler [2012] NSWSC 845. 20His Honour held that, as a matter of principle, the "defence" of honest and reasonable mistake of fact involving native title entitlement under Commonwealth law was available to proceedings alleging a contravention of State fisheries law: at [37] - [44]. His Honour affirmed the well-established proposition that, when the "defence" is raised, the defendant must point to some evidence of the "defence", but bears no onus of establishing the "defence" on the balance of probabilities. Once the defendant satisfies the evidentiary onus, the onus shifts to the prosecution to disprove the "defence" beyond reasonable doubt: at [38] - [40]. Justice Button repeatedly emphasised the need to distinguish a mistake of law (for example, a mistaken belief that one possessed native title rights) from a mistake of fact (for example, a mistake as to a fact giving rise to native title rights): for example at [41]. 21As His Honour was satisfied that, in the proceedings before the Local Court, the parties could revisit the issues of the evidentiary and legal onuses applying to the "defence", he declined to grant declaratory relief in relation to that matter: at [46] - [67]. At [63] His Honour stated: Fifthly, it is quite possible that many of these questions will turn out not to arise on the evidence. As I have said, apart from the document prepared pursuant to s 191 of the Evidence Act, no evidence has been tendered or called. It may be that, ultimately, no evidence will be led with regard to the "defence". If it is led, it may be excluded; if it is not excluded, it may be that the evidence will be quite circumscribed. I am not inclined to make a declaration that may well turn out to be quite unnecessary on the evidence in the case.

Withdrawal of the Local Court proceedings 22The Local Court hearing was fixed to resume on 19 November 2012. On 29 October 2012, the respondents served the appellant with a 103-page report from Dr Kwok, an anthropologist who is an expert in native title. In that report, Dr Kwok set out the results of her extensive literary and field research, and referred to the respondents' personal beliefs and customs and the relationship between those beliefs and customs and the conduct the subject of the charges. 23On Friday 16 November 2012, the appellant advised the respondents that it would withdraw the proceedings. The respondents sought costs under s 214 of the CPA. 24The Local Court set a timetable for the service of written submissions on costs and allocated a date for oral addresses. The Court directed that, in the event that the parties wished to supplement their written submissions with oral submissions, they were to notify the Court. The parties advised the Court that, if the Court wished them to do so, they were willing to supplement their written submissions. The Court was content to consider the matter on the basis of the written submissions alone.

Sections 213 and 214 of the CPA 25Section 213 of the CPA provides: (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because: (a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or (b) the matter is withdrawn or the proceedings are for any reason invalid. Section 214 of the CPA relevantly provides: 214 (1) Professional costs are not be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. ... 26On 19 March 2013, the Local Court published its decision on costs. The Court was not satisfied that it should award costs pursuant to s 214(1)(a) of the CPA (unreasonable or improper investigation) but was satisfied that it should award costs pursuant to s 214(1)(c) (unreasonable failure of the prosecutor to investigate) and s 214(1)(d) of the CPA (other exceptional circumstances relating to the conduct of the proceedings by the prosecutor). 27Inter alia, the Local Court found: Section 214(1)(a) ... 21. Notwithstanding the delay in charging the Defendants I am not satisfied that the investigation into the alleged offences was, at the time, conducted in an unreasonable or improper (manner) in all the circumstances. The Fisheries Officers recorded their observations and made contemporaneous notes. The abalone were photographed, measured and transported. The Defendants in this matter told Officers they were collecting for NAIDOC week but gave no further information. They were asked, and declined, to engage in an interview. Section 214 (1)(c) ... 24. The issue of a "defence" reliant generally upon issues of the Defendants Aboriginality and collection of abalone for cultural purposes was a relevant matter raised from the time Fisheries Officers apprehended the Defendants. Whether that turned on the legal issues of "honest and reasonable mistake of fact", or on the assertion of the existence of legal native title rights, was a relevant matter that the Prosecution should have investigated promptly. On the material before me there is no evidence of the investigation of those matters from 2008 to 2010. It is trite for the Prosecution to assert "where there was no evidence from the defendants, there was nothing that could be investigated". An interview with the Defendants was not the only investigatory tool available to the Prosecution. 25. I accept the Defendants submission that it is unlikely the Defendants, even if they participated in an interview with Fisheries Officers, would have been able to articulate legal issues going to native title and customary practices, other than to the extent that they had already stated they were collecting for NA ID0C week. The Defendants were told they may be the subject of a criminal charge. They exercised their right, after being properly advised of it, not to participate in an interview. 26. These are criminal prosecutions with serious consequences for the Defendants if convicted. Penalties include imprisonment. I am satisfied that, had the Prosecution investigated those matters in any way, it would have resulted in a consideration of whether the prosecution should not be brought. This consideration would have had a significant impact on the costs of the proceedings. Ultimately the proceedings were carried on for over two years, with the Prosecution not apparently undertaking any detailed consideration of those relevant matters until the Defence had served an expert report from Dr Kwok, four years after the alleged offences. 27. I am satisfied that the Defendants have made out in entitlement costs pursuant to section 214(1)(c) of the CPA. For completeness I will also consider the claim under section 214 (1)(d) of the CPA. Section 214(1)(d) ... 30. The Defendants were put to a very heavy burden in defending these charges. The conduct of the prosecutions of these matters appeared as though they were a "test case"... The defendants were put to the time and expense of obtaining the expert report of Dr Kwok... At the first scheduled hearing the Prosecution sought to raise several preliminary issues of which the Defence were not on notice and those matters were then taken on appeal to the Supreme Court... 31. These prosecutions were summary and brought in the Local Court where there should be an expectation of both just and expeditious resolution. The delay in prosecuting these matters, the failure to properly investigate, the heavy burdens placed on the Defendants in the conduct of their defence and the withdrawal of the proceedings at the "eleventh hour" are exceptional circumstances. Taken together, it is just and reasonable that the Defendants also be awarded costs on this basis.

Nature of appeal under s 23(2) of the CARA 28Section 23 of the CARA is entitled "Appeals as of Right". Section 23(2) provides: 23(2) The prosecutor may appeal to the District Court against: ... (b) any order for costs made by the light local court against the prosecutor in respect of summary proceedings taken by the prosecutor. 29The CARA does not specify the nature of an appeal under s 23(2). 30In its written submissions, the appellant maintained that an appeal under s 23(2)(b) was an appeal de novo. However, at the hearing, the appellant abandoned that contention and conceded that the appeal was confined to an appeal in relation to an error of law or fact. Consequently, it was not necessary that the Court decide whether an appeal under s 23(2)(b) is so confined. Nevertheless, I make the following observations. 31The CARA provides for a variety of types of appeal to the District and Supreme Courts. None of the appeals for which the CARA expressly provides is a hearing de novo. Some provisions of the CARA refer to appeals stricto sensu (see, for example, sections 52 and 53). Under the CARA, the nature of an appeal may be determined by the nature of the party (whether prosecutor or defendant), the nature of the matter in contention or whether it is an appeal to the District Court or the Supreme Court. 32Generally, a defendant may appeal to the District Court against conviction or sentence but a prosecutor may appeal against sentence only. 33An appeal against conviction is to be by way of rehearing on the evidence given in the Local Court, although the District Court may allow fresh evidence if it is satisfied that it is in the interests of justice to do so: s 18. 34Sections 17 and 26 provide that, where a prosecutor or a defendant appeals to the District Court against a "sentence", the appeal is to be by way of "rehearing". Fresh evidence may be given. Where a prosecutor appeals against "sentence", the prosecutor requires leave to adduce fresh evidence and leave will be granted only in exceptional circumstances: s 26. Notably, while "sentence" is defined to include a costs order against a defendant, the definition does not extend to include a costs order against a prosecutor: s 3. 35In Fox Percy [2003] HCA 22; (2003) 214 CLR 118 at 124, Gleeson CJ, Gummow and Kirby JJ explained: Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of hearing de novo. There are different meanings to be attached to the word "rehearing". The distinction between an appeal by way of rehearing and hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term "appeal", or whether there is some other meaning is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case. See also Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, Coal and Allied Operations v AIRC [2000] HCA 47; 203 CLR 194. 36As a matter of statutory construction, an appeal under s 23(2) must be interpreted as being confined to an appeal in relation to an error of fact or law. It cannot have been intended to be an appeal de novo. First, it is most improbable that the legislature would have intended that an appeal on costs (which is typically a consequential issue) would be wider than an appeal in relation to the substantive issues of conviction or sentence to which the costs relate. Second, an appeal by a prosecutor in relation to an adverse costs order is an appeal in relation to a matter of less consequence than, for example, an appeal against conviction or a sentence of imprisonment, where the liberty of the subject is at stake. It is most unlikely that the legislature intended to confer a wide appeal in relation to costs while restricting the scope of appeals in relation to more significant matters. Third, a defendant has only a limited appeal in relation to a costs order. It is most unlikely that the legislature intended that a prosecutor would have a wider entitlement to appeal. Fourth, a decision in relation to costs is a discretionary decision. Ordinarily, such a decision would attract only a limited right of appeal.

Can the costs order be supported on the alternative ground that the Local Court erred in relation to a preliminary finding? 37The respondents contended that the Local Court should have made a preliminary finding that the appellant bore the onus of proving that the NTA did not operate to suspend the operation of the FMA. Alternatively, it was submitted that the Local Court should have made a preliminary finding that, having received some evidence that the NTA may apply, the prosecutor bore the onus of proving that it did not operate to suspend the operation of the FMA. 38As noted in [14] above, at the conclusion of the hearing on preliminary issues, the Local Court decided these matters in favour of the appellant, finding that it was bound by the decisions in Rigby and Mason. The respondents abandoned the opportunity to test the Local Court's rulings in the Supreme Court. 39This appeal is confined to the Local Court's decision on costs, and the respondents cannot use the costs appeal as a vehicle to challenge the Local Court's preliminary ruling on a substantive matter.

Section 214(1)(a) 40Under s 213 of the CPA, the Local Court may award just and reasonable costs to a defendant when the prosecutor withdraws proceedings. Section 214 provides that costs are not to be awarded to a defendant unless he or she satisfies the court in relation to at least one of the grounds in s 214. The award of costs is discretionary but, if a defendant establishes one of the grounds in s 214, it is usual for costs to be awarded. 41The respondents contended that the Local Court should have awarded costs on the basis of the ground in s 214(1)(a) (the investigation was conducted in an unreasonable or improper manner). 42Unlike the ground in s 214(1)(c), this ground can be satisfied without proof that the prosecutor's actions or omissions deprived the court of evidence that may have made a difference to the way in which the proceedings ran (for example, because the evidence pointed to a lack of guilt): De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 applying Cliffleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 at [27] - [32], in which the Court considered an almost identical provision. In Cliffleigh, Hodgson JA gave the example of a case in which the prosecutor knew that there were five eye - witnesses to an event but interviewed and called only one of them, and the prosecution failed as a case in which the provision may apply even if the costs applicant did not prove what the other four witnesses would have said. 43In this case, the Local Court found that, as there was nothing remarkable about the way in which the fisheries officers conducted their initial investigation, the ground in s 214(1)(a) was not established. 44The approach taken by the Local Court raises two issues: (1) Whether s 214 (1)(a) is concerned only with the initial investigation or whether it is concerned with the whole of the period up to when charges are laid. (2)Whether s 214 (1)(a) is concerned only with unreasonable or improper actions in the course of an investigation, or whether it is also concerned with omissions. 45In relation to (1), the Local Court appears to have assumed that s 214(1)(a) is concerned only with the initial investigation. I see no reason to confine the provision in that way. Section 214(1)(c) deals with the unreasonable failure to investigate any relevant matter suggesting that "the proceeding should not have been brought". By analogy, I would interpret s 214 (1)(a) as addressing the whole of the period up to when charges are laid. In this case, the investigation period extended over a two-year period, from the incident in July 2008 until June 2010, when charges were laid. However, this matter was not argued on the appeal. 46As to the second issue, uninformed by authority I would have thought that s 214(1)(a) is concerned with unreasonable or improper actions in the course of an investigation, rather than with omissions such as the failure to undertake a comprehensive investigation, and that omissions fell within s 214(1)(c) of the CPA. The Local Court appears to have taken this view. However, in De Varda at [32] Davies J. decided that a failure to interview a relevant witness could establish both that an investigation was conducted in an unreasonable manner within s 214(1)(a) and that the investigation was unreasonable in terms of s 214(1)(c). 47Consequently, the Local Court erred in that, when considering whether the ground in s 214(1)(a) was established, it failed to consider any relevant omissions on the part of the appellant.

Section 214(1)(c) 48Section 214(1)(c) provides that costs may be awarded where a prosecutor has unreasonably failed to investigate (or to investigate properly) a matter that suggests that the accused might not be guilty or that, or any other reason, the proceedings should not have been brought. 49An applicant for costs who seeks to rely upon the s 214(1)(c) ground must both identify the "matter" of which the prosecution was or ought to have been aware and show that the matter suggested that the applicant might not be guilty (i.e. there was evidence pointing to lack of guilt) or that the proceeding should not have been brought: Cliffleigh at [20]. 50I note some other considerations that may pertain to an application based on s 214(1)(c). First, relevant "matters" are not confined to matters that establish a prima facie case; the ground may apply where a prosecutor fails to investigate a matter that suggests that an accused person might not be guilty because he or she has a defence, or the prosecution case is flawed. A relevant "matter" must be a matter of fact or evidence. It can be a matter that creates or supports a defence, but it cannot be the defence itself. Second, not every failure to investigate a "matter" invokes s 214(1)(c); it is only "unreasonable" failures that do so. Third, it may be that s 214(1)(c) is concerned only with failures at the investigation stage (prior to the institution of proceedings) rather than with failures in relation to the conduct of proceedings, and that matters that occur after the commencement of proceedings are more properly considered under s 214 (1)(b) or (d). "Defences" are usually identified only after the institution of proceedings. Indeed, in this case, it was only after the commencement of proceedings that the respondents secured legal representation and confirmed that they would be relying on "defences" that raised native title entitlement. There is a further reason why it may be important to clarify whether s 214(1)(c) is concerned with failures that occur after the institution of proceedings. At [26], the Local Court referred with disapproval to the fact that "the proceedings were carried on for over two years, with (the appellant) not apparently undertaking any detailed consideration of those relevant matters until (the respondents) had served an expert report from Dr Kwok, four years after the alleged offences". This consideration appears to have been important to the Local Court's finding that the s 214(1)(c) ground was established. Prior to the institution of proceedings, the respondents had raised the possibility that, if charges were pressed, they would rely upon a native title entitlement. However, their position was uncertain. The respondents did not secure legal representation until some months after they received court attendance notices. It was only then that the respondents' intention to rely upon the two "defences" was confirmed. I note that the issue of the period addressed by s 214(1)(c) was not ventilated in the Local Court and was not raised in the appellant's grounds of appeal to this Court. 51The first question that the Local Court was bound to ask was: What "matter/s" did the respondents identify as matters of which the prosecution was or ought to have been aware? In this regard, the Local Court found that "the (respondents') Aboriginality and collection of abalone for cultural purposes was a relevant matter": at [24]. I accept that these matters are matters of fact or evidence that, in an appropriate context, may be capable of pointing to a lack of guilt or indicating that the proceedings should not be brought. However, I note that, in this case, the reference to "the collection of abalone for cultural purposes" seems to be a conclusion drawn from a bare reference to collecting for a NAIDOC week celebration, rather than a matter that was admitted or determined following the hearing of evidence. 52The second question that the Local Court was bound to ask was: Do these "matter/s" suggest that the respondents might not be guilty or that, for any other reason, the proceedings should not be brought? I accept that the respondents' Aboriginality and the collection of abalone for cultural purposes are matters that are at least capable of "suggesting" that the respondents might not be guilty by reason of a "defence" linked to native title entitlement. However, Aboriginality and the collection of abalone for cultural purposes are facts that, in combination, go only part of the way towards such "defences". 53The third question that the Local Court had to consider was: Was the failure to investigate the relevant matters "unreasonable" in all the circumstances? In order to determine whether it was unreasonable that a particular investigation was not undertaken, an important first step is to identify the investigation that should have been undertaken. 54In this case, the Local Court did not articulate the nature of the investigation that it considered should have been undertaken, making it impossible to determine whether the Court's finding of "unreasonableness" was supportable. The respondents had argued that a proper investigation would have included an examination of the appellant's own resources (such as those reproduced in Exhibit A at tabs 8, 9 and 10), an examination of the Native Titles Register kept under s 192 of the NTA to determine whether a relevant claim had been made, making enquiries of peak Aboriginal bodies such as the relevant Land Council, making enquiries of the Australian Museum and interviewing elders and residents in the Wreck Bay Aboriginal community. In their written submissions on appeal, the respondents submitted that the appellant could have engaged its own expert anthropologist to gain an understanding of the nature and extent of traditional customs and rights. The respondents did not go so far as to assert that the appellant should have done so. 55It is true that the appellant could have undertaken those examinations and enquiries. But, even if the enquiries had established that the Wreck Bay Aboriginal community had a long-standing culture of collecting abalone and claimed a native title entitlement to do so, that would have fallen well short of establishing that the respondents themselves might not be guilty or that the proceedings should not be brought for reasons associated with a native title entitlement to fish. 56The consideration of whether the respondents had a "defence" under s 211 of the NTA raises complex issues of fact and law, including the nature and content of customs presently observed, whether the customary system has had a substantially uninterrupted continuous existence since sovereignty, the customary connection of the respondents with the relevant waters and the identity of the persons who hold the group rights comprising the native title: ss 223(1) and 225 of the NTA, and The Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58. While publicly available records may elucidate some matters relevant to the existence of asserted native title rights, the evidence of Aboriginal claimants is central to establishing native title entitlement: see, for example, Northern Territory v Maurice (1986) 161 CLR 475 at 492 per Deane J. and Sampi v State of Western Australia [2005] FCA 777 at [48] (describing other evidence as "second order evidence"). In the absence of evidence from the respondents themselves concerning their own subjective beliefs and experiences, even an extensive investigation into Aboriginal cultural practices in relation to the collection of abalone finish at Wreck Bay would be most unlikely to reveal whether the respondents had a "defence" under s 211 of the NTA. In DPP (Cth) v Neamati [2007] NSWSC 746, the Court suggested that it could not be "unreasonable" for a prosecutor to fail to investigate a defendant's state of knowledge of a particular fact (albeit, in that case, the defendant's state of knowledge was the only contentious issue). 57Similarly, any "defence" of honest and reasonable mistake of fact depends upon the evidence of the alleged offender concerning their subjective belief. Only an alleged offender can identify the fact or facts about which they say that they were honestly mistaken and which, if true, would have provided them with a "defence". 58Was the appellant's failure to undertake examinations and enquiries of the type proposed by the respondents "unreasonable"? What constitutes an "unreasonable" failure to investigate within the meaning of s 214(1)(c) will depend upon the circumstances of a particular case, which may include the nature and seriousness of the charges and the nature of the "matter" of which the prosecutor is or should be aware. There may be an issue of proportionality; whether, given the nature of the charges and the costs of investigation, the failure to pursue a line of enquiry is unreasonable. There may be an issue as to whether it could be "unreasonable" to fail to pursue a line of enquiry when, at best, the results of that enquiry would be inconclusive because the enquiry could not encompass critical subjective material. 59A determination of the question of "unreasonableness" should not be clouded by the politics associated with the tension between Aboriginal cultural claims of fishing entitlement, the demands of commercial fishers, the need to ensure a sustainable fish population and the fact that the appellant is responsible for managing and regulating fisheries matters. 60In relation to the ground in s 214(1)(c), the Local Court erred in that it did not articulate the enquiries that it considered should have been undertaken as part of the investigation and it did not explain why the failure to undertake those enquiries was unreasonable, given the circumstances of the case, including issues of proportionality and the appellant's inability to enquire into subjective material. The appellant characterised these errors as taking into account an irrelevant matter or as making a finding that lacked an evidentiary basis.

Section 214(1)(d) 61In order to establish the ground in s 214(1)(d), a defendant must establish both "other exceptional circumstances relating to the conduct of the proceedings by the prosecutor" and that it is "just and reasonable" to award professional costs. 62The use of the expression "other exceptional circumstances" suggests that the circumstances must be other than the circumstances referred to in grounds (a), (b) and (c). The resolution of proceedings in favour of a defendant or does not constitute "exceptional circumstances": Fosse v DPP [1999] NSWSC 367. The mere proffering of no evidence does not constitute "exceptional circumstances", nor does reliance on exculpatory statements of the defendant. Neither is remarkable in itself or in combination: Dong v Hughes [2005] NSWSC 84. 63In this case, the Local Court nominated four matters which, when taken together, constituted "exceptional circumstances": the two year delay in the instituting proceedings, the failure to properly investigate, the heavy burden of conducting a defence to "test case" proceedings involving a large volume of evidence and numerous court attendances, and the withdrawal of proceedings "at the eleventh hour". 64As to the alleged failure to investigate, two observations can be made. First, the Local Court did not articulate the nature of the enquiries that, in its opinion, should have been made. Second, an unreasonable failure to investigate is a ground under s 214(1)(c), and s 214(1)(d) refers to "other exceptional circumstances". 65Individually, the remaining three matters are incapable of constituting "exceptional circumstances". A prosecutor is entitled to commence proceedings at any time within the prescribed limitation period, and from the outset the respondents were on notice of possible proceedings. The fact that proceedings are a "test case" is not necessarily an exceptional matter. In this case, the respondents themselves were interested in making it a test case. The withdrawal of proceedings "at the eleventh hour" was explained by the fact that the critical report of Dr Kwok was served "at the eleventh hour". It is my view that, when taken as a whole, in the context of this case these matters were not capable of constituting "exceptional circumstances" and the Local Court erred in determining that they did constitute such circumstances.

Assessment of quantum of costs 66The parties agreed that the Local Court made a mathematical error of $12,600 in favour of the respondents. 67The appellant argued that the award of $200,000 was excessive and the Local Court should have awarded only 60 - 80% of the amount claimed, rather than about 85%. The respondents contended that the Local Court should have awarded the full amount that was claimed (about $235,000) less the agreed error of $12,600. 68There is no rule that a court must award a particular percentage of the costs claimed under s 213 of the CPA. In order to succeed on an appeal against a costs order, the appellant must show that the award was not just and reasonable. Apart from the agreed mathematical error of $12,600, neither party has identified an error of law or fact in the way in which the Local Court approached its task of assessing just and reasonable costs.

Outcome 69Section 27(2) of the CAR Act provides: 27(2) The District Court may determine an appeal against an order referred to in section 23(2): (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. 70The parties agreed that, in the event that the Court decided to allow the appeal and set aside the costs order of the Local Court, the matter should be re-listed for submissions about the appropriate outcome.

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