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.