47 Mr Lindeman says that, to the extent that either of the above propositions suggests that a defendant has an obligation in law to unilaterally inform the investigator of its (or his/her) lack of knowledge of some key fact or element of the offence, the proposition is erroneous and represents a misunderstanding of the "exception" referred to in Latoudis v Casey. Rather, according to Mr Lindeman, there exists a clear distinction between the exercise by an accused of the mere "right to silence" and any refusal to answer a specific question or to respond by providing correct information. He cites Jandreoski v Colley[33] and Junek v Busuttil[34]. He also relies on Dyers v R[35], a case in which the High Court reaffirmed that, given the accusatorial nature of a criminal trial, "it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence" [36].
48 However, as already indicated, Mr Lindeman's submission ignores the need to ask, for costs purposes, whether the defendant's omission to speak was or may have been causative of the commencement or prolongation of the proceedings. As Toohey J said in Latoudis v Casey[37], this has nothing to do with the right to silence in criminal trials[38]. Of course, a finding that the omission to speak was or may have been causative in this sense will not dictate a result whereby costs are denied to the defendant. In the exercise of his or her discretion, the magistrate is still entitled to assess the reasonableness, for costs purposes, of the defendant's omission to speak in all of the circumstances. In the present case, the Magistrate's above quoted remarks cannot fairly be divorced from his express or implied acknowledgment, on several occasions during the discussion, that there must be a causal link between the maintenance of silence about a particular matter and the commencement or prolongation of the proceeding. In one of the two cases cited by Mr Lindeman, Junek v Busuttil, the Court held that there was no basis for any finding by the Magistrate that the requisite causal link existed. However, in the present case, it was well open to the Magistrate to find that the prosecution might not have been brought if Mr Creelman had submitted to an interview.[39] Mr Creelman's awareness, or otherwise, of what Mr North had been doing on the roof was, as the Magistrate found and as even Kymar's solicitor later acknowledged[40], "critical". Because, in the Magistrate's view, the matter cried out for an answer and Mr Creelman had ample opportunity to provide it, and because that view was open to the Magistrate, the Magistrate was fully entitled, for costs purposes, to regard Mr Creelman's omission to do so as unreasonable and as warranting a departure from the usual order.
49 Mr Lindeman, though, submitted to me that the VWA's investigators had not perceived, during the investigatory stage, that the state of Mr Creelman's mind (in this respect) was important, and on this basis Mr Lindeman argued that the prosecution would have been commenced in any event. He submitted that the informant's "theory" for the alleged breach of the general duty under s 21 of the Occupational Health and Safety Act 1985 to provide a safe system of work was to be gleaned from a particular paragraph of Ms Sinclair's statement, which asserted that if Kymar had adhered to McDonalds' requirement that only qualified service technicians perform the task of cleaning the exhaust ducts, Mr North would not have been on the roof for that purpose and would not have fallen.
50 I do not accept Mr Lindeman's argument. It is no more than an attack on the Magistrate's factual findings. In any event, the paragraph in question in Ms Sinclair's statement did not purport to set out, exhaustively or otherwise, particulars of the informant's case. It was merely a part of the evidence. The very fact that Kymar sought further and better particulars shows that Kymar itself did not regard the paragraph in question as containing a complete statement of the informant's "case theory". Moreover, when the particulars came, they demonstrated clearly that the informant's case extended beyond the "unqualified person" allegation. Only two of the five relevant sub-paragraphs of the further and better particulars related to that particular allegation. As indicated above, another of the sub-paragraphs alleged that Kymar "allowed" Mr North to access the cleaning equipment "beyond the walled area of the roof ...". The expression "allowed", in this context, carried, or might well have been thought to carry, an implication of knowledge or awareness. Moreover, as I have indicated in paragraph 14 above, I consider that Mr Meredith's original statement conveyed a clear indication of relevant knowledge on the part of Mr Creelman. If nothing else, the seriousness of any breach of the Occupational Health and Safety Act 1985 would have been affected by the state of Mr Creelman's knowledge. I am not satisfied by any means that the question of Mr Creelman's knowledge was not an important issue even before the charges were laid.
51 This leads to the question of the approach taken by Kymar during the proceedings themselves, to which I now turn.
The court stage
52 Mr Lindeman submits that Kymar was not put on notice that knowledge on the part of Mr Creelman that Mr North had climbed onto the restaurant roof was any part of the prosecution case or that anything contained in the evidence might give rise to an inference of such knowledge. He denies that there was anything to such effect in the informant's statement or in the further and better particulars or in the prosecutor's opening or, save in one limited respect, in the prosecutor's later submissions to the Magistrate. The exception was the prosecutor's submission referred to in paragraph 16 above based on the particular paragraph of Mr Meredith's original statement discussed in paragraph 14 above. Mr Lindeman asserts that the prosecutor's submission in this regard was made after both the prosecution and defence cases, respectively, had been closed and had only been made by way of a "partial answer" to a "specific submission" put for Kymar below, namely "that there was no evidence the defendant's sole director knew the injured person had climbed on the restaurant roof". Further, Mr Lindeman says, the prosecutor submitted at that stage and throughout the hearing that a finding of guilt could be made irrespective of the existence of evidence of such knowledge. On these grounds he submits that there was no basis for a finding that Kymar had prolonged the proceedings unreasonably or that the circumstances of the case were not "ordinary".
53 It will no doubt be apparent from what I have already written that I do not accept these further submissions of Mr Lindeman.
54 As already indicated, I consider that Kymar was well and truly on notice of the possible importance of Mr Creelman's state of knowledge from the outset and, a fortiori, during the period after the laying of the charges. There is no need to repeat what I have already said about Mr Meredith's original statement and the further and better particulars. The submission by the prosecutor was a further, very clear indication to the same effect. Mr Lindeman does not suggest that he objected before the Magistrate to the prosecutor's reliance on Mr Meredith's statement. This rather indicates that he was not taken by surprise. The same is indicated by the abovementioned[41] fact that on three occasions during the costs argument before the Magistrate Mr Dent referred to Mr Creelman's knowledge as "critical". On one of those occasions[42], Mr Dent referred to the evidence in a way which suggests that the defence was aware of its criticality from the beginning. He spoke of: