Castlebar Holding v Riley [2005] NSWCCA 105 | Case summary

1 SPIGELMAN CJ: I agree with Grove J. 2 GROVE J: This matter is before the Court pursuant to s 5B of the Criminal Appeal Act 1912: "5B (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow." 3 Section 5B is in that form consequent upon amendments taking effect from 1 March 1999. The amendment added s 5B(2) which, in clear terms, removed the limitation that once an appeal to the District Court had been disposed of by judicial decision, the opportunity of stating a case was past: see Ward v Williams 1955 92 CLR 446 @ 511; R v Lazarevic 1966 85 WN Pt 1 (NSW) 159. It is not a consequence of the amendment to s 5B that previous authority which confirmed that the Court of Criminal Appeal has not been constituted as a general appellate court from the District Court in matters of the defined character, has been rendered obsolete. The observation of Hunt CJ at CL in R v Madden 1995 85 A Crim R 367 remains apposite: "The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge upon that appeal to the district court, as there is no right of appeal (to the Court of Criminal Appeal) from that determination". 4 Questions asked in a case stated should not be disguised attempts to exercise such a right of appeal, irrespective of how the question might be formulated. 5 The matter in controversy is the refusal of an order for costs in favour of the appellant (Castlebar Holding Pty Limited) following a successful appeal to the District Court from a decision of a magistrate at Tamworth Local Court. A sketch of the history of the litigation is set out under the heading "Facts" in the case stated. There are also filed a summary of evidence and particulars of parties pursuant to Criminal Appeal Rule 29. Mr Hammill SC for the respondent complained of the exclusion of the respondent from input into the documentation but in the light of the conclusion to which I have come, it will not be necessary to deal explicitly with this complaint as such, save to observe that although not referred to in the summary of evidence, it was the testimony of the respondent (Mr Geoffrey Riley) that he was a noxious weed inspector employed by Merriwa Shire Council, was the informant in the proceedings and that he brought them on behalf of the Shire. This testimony was not challenged. 6 The relevant information alleged that the appellant failed to control a noxious weed (St John's Wort) between 4 October 2000 and 29 January 2002. After the hearing at Tamworth Local Court the offence was found proved but, without proceeding to conviction, dismissed pursuant to s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The appellant was ordered to pay the informant's costs of $21,742.05. Although the Local Court did not proceed to conviction, the order under s10(1)(a) and the order for costs were "sentences" as defined in the applicable Crimes (Local Courts Appeal and Review) Act 2001, s 3(1) (sub-paragraphs (b) and (e)). An appeal was heard by Berman DCJ on 24 and 25 August 2004. On the latter date, he allowed the appeal and quashed the "sentences" by the Local Court. (The transcript records "the conviction and sentence of the appellant are quashed" and the case stated repeats reference to "an order quashing the conviction/sentence"). 7 On 3 September 2004 an application was made by the appellant for costs which His Honour refused. 8 In such an appeal the availability of costs is governed by s 70 of the Crimes (Local Courts Appeal and Review) Act 2001: "70 (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. (2) This section does not apply to the awarding of costs against a respondent acting in a private capacity. (3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act". 9 Section 70 deals in express terms with an appellant whose "conviction is set aside". There is no definition in the statute of what, for its purposes, amounts to "conviction" but there is, as I have mentioned, a definition of "sentence" which includes an order for dismissal pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 and an order for costs. It follows that in terms of the Local Courts Appeal and Review Act, Berman DCJ determined an appeal against sentence by setting aside sentence(s): see s 20(2)(a). 10 In different contexts "conviction" has been classified as verbum aequivocum: Burgess v Boetefur 1844 7 Man & G 481; Maxwell v The Queen 1995 184 CLR 501; R v Holton [2004] NSWCCA 214. Logically, there cannot be sentence without preceding conviction but, for the purposes of the statute, the orders for dismissal and costs are categorized as such. The expression in s 70 of "an appellant whose conviction has been set aside" should be construed to include an appellant whose sentence (as defined) has been set aside. Neither party submitted that the expression should be otherwise construed, nor was it submitted that s 70 was inapplicable by reason of the technical absence of a conviction having been entered in the Local Court and set aside in the District Court. 11 The power vested by s 28(3) of that Act to make such order as to the costs to be paid by either party (including the Crown) as the District Court thinks just is expressly subject to s 70. 12 The case stated proposes that "the questions of law for determination" are: "(a) Did I err in law in holding that Section 70 of the Act applied so that costs were not awarded in favour of the Appellant? (b) Did I err in law in holding that, for the purposes of Section 70(2) of the Act, the Respondent was not acting in a private capacity? (c) Did I err in law in holding that, for the purposes of Section 70(1)(a) of the Act, the investigation into the alleged offence was not conducted in an unreasonable or improper manner? (d) Did I err in law in holding that, for the purposes of Section 70(1)(b) of the Act, the proceedings were not initiated without reasonable cause or in bad faith, or were not conducted by the prosecutor in an improper manner? (e) Did I err in law in holding that, for the purposes of Section 70(1)(c) of the Act, the prosecutor had not unreasonably failed to investigate, or to investigate properly, any relevant matter in terms of that subsection? (f) Did I err in law in holding that, for the purposes of Section 70(1)(d) of the Act, there were no exceptional circumstances to justify an order for costs in favour of the Appellant?" 13 With the exception of (b), it is doubtful whether any of the formulations raises a question of law and recitation of a determination by the first instance judge preceded by the interrogatory "did I err in law" does not create one. Although the above six separate questions were posed, a written submission on behalf of the appellant contended: "It is submitted that the manner in which his Honour dealt with costs discloses two errors: (a) The finding that the respondent was not acting in a private capacity. (b) The finding that, notwithstanding the defence which was correct as a matter of law on undisputed facts which had been disclosed in advance, the requirements of s 70(1) of the Crimes (Local Courts and Reviews) Act were not met". 14 I am conscious of the absence of authority providing a satisfactory universal test to identify a question of law: see Collector of Customs v Agfa-Gevaert Limited 1996 186 CLR 389 and it is convenient to turn to the issues of debate between the parties. 15 The first element of the submission is in effect an assertion that it was not open to Berman DCJ to hold that the respondent was not acting in a private capacity in laying the information leading to the proceedings against the appellant. 16 Merriwa Shire Council (the Council) is constituted with responsibilities for the better government of the relevant part of the State of New South Wales: see Constitution Act s 51 as inserted by the Constitution (Local Government) Amendment Act 1986. It is accordingly an organ of government and in the discharge of its function by way of prosecution for an offence, it is empowered to delegate the laying of information on its behalf to an employee such as the respondent: Local Government Act 1993 s 684(b). 17 Mr Hammerschlag SC for the appellant referred to a search for some form of indicia as to what is meant by "private" capacity in these circumstances in the context of prosecution. The relevant definition of "private" in the (Shorter) Oxford English Dictionary (3rd Edn) is "of or pertaining to a person in a non-official capacity". A governmental function is patently "official". 18 Guidance was said to be derivable from two English cases. In Marks v Beyfus 1890 XXV QBD 494 the Director of Public Prosecutions was distinguished from a private prosecutor. In Beeston and Stapleford UDC v Smith1949 1 KB 656 a local authority made mortgage advances for which the necessary title investigation and instrument preparation was done by its employed clerk who was not qualified under the Solicitors Act 1932. The mortgagors were charged costs which were paid into the general rate fund. It was held that an exception allowing such charged work by an unqualified person in the Solicitors Act for a public officer drawing or preparing documents in the course of his duty was not applicable because "public officer" referred to an officer of a public department whose salary was chargeable to national and not to local funds. The present issue is not whether the respondent was a "public officer" but, as above pointed out, the status of the Council in New South Wales is constitutionally defined, and there are considerable differences between the structures of government in Britain from those in the Australian federation. Neither of these authorities is of assistance in the determination of the current issue. 19 The Council is also by definition a "local control authority" within the meaning of the Noxious Weeds Act 1993. The prosecution of the appellant alleged an offence contrary to s 12 of that Act which provides: "An occupier of land ……must control noxious weeds on the land, as required under the control category or categories specified in relation to the weeds concerned". 20 St John's Wort is a category W2 noxious weed for which action required is that the weed "be fully and continuously suppressed and destroyed": see s 9. 21 They are specified functions of the local control authority, inter alia, to have: " . Responsibility for the control of noxious weeds by occupiers of land ….. . To ensure, so far as practicable, that occupiers of land ….carry out obligations to control noxious weeds imposed under this Act": see s 36. 22 The essence of the appellant's argument was a contention that the Council's function under the Noxious Weeds Act was to control weeds and not to pursue a prosecution. The prescription of offences and penalty by s 12 provide means by which the responsible authority can ensure that occupiers of land carry out their obligations under the Act. The sanction of penalty necessarily requires prosecution for its invocation. 23 The respondent laid the information on behalf of the Council in discharge of its duty and the proposition that in so doing he acted in a private capacity lacks any foundation. 24 Having expressed that conclusion, I should nevertheless make reference to some further arguments advanced on behalf of the appellant. 25 The written submissions included: "It is submitted that the respondent was acting in a private capacity and therefore s 70 (of the Act) does not apply with the result that s 28(3) of that Act applies together with the principles in Latoudis v Casey 1990 97 ALR 45". 26 The submission assumes what is required to be demonstrated. Section 70 applies unless it be shown that the informant was acting in a private capacity and unless so excluded, s 28(3) can have no operation. The reference to principles discussed in Latoudis needs to be appreciated in the context of that case, where, in relation to the exercise of statutory discretion to award costs in criminal proceedings terminated in favour of a defendant, it was observed that in all States (with the exception of Tasmania) statutory discretions were unconstrained, even by prescription of relevant considerations or criteria. Section 70 was legislated subsequent to that decision and in explicit terms places a constraint on discretion to order costs and specifies criteria pursuant to which that constraint may not apply. There is a clear difference created by legislation from the situation identified in Latoudis. 27 The legislation is also demonstrative of the flaw in the argument which rhetorically asked why a successful prosecutor should obtain costs in the Local Court but a successful defendant face a more onerous hurdle if it is acquitted on appeal. 28 The mention of a "public prosecutor" in the heading preceding s 70 does not lead to an examination of the status of the respondent or the Council as such. The exclusion of the operation of the provision requires the informant to act in a private capacity and there is no purpose to be served in seeking to find categories of public prosecutors (suggested to be limited to the Director of Public Prosecutions and police) from other informants. It is, in my view, unimaginable that the respondent as a delegate of a shire council acting pursuant to statutory delegation, laying an information to enforce by prosecution a breach of a statute which it is the Council's duty to enforce, was acting in a private capacity. 29 It is irrelevant that the informant retained solicitors to act in the proceedings. The retainer of solicitors does not provide a test for determining whether an information is laid by a person acting in a private capacity. By way of analogy, it could hardly be suggested that if the Director of Public Prosecutions, for example, by reason of perceived conflict of interest, retained solicitors to act in a prosecution, it would have the consequence that the prosecution was being brought in a private capacity. 30 The answer to question (b) in the case stated should be "no". 31 The question numbered (a) asks whether his Honour's ruling was correct, and I have pointed out earlier that this is not an appropriate formulation of a question of law in a case stated: Re Van Der Lubbe 1949 49 SR (NSW) 309. The questions numbered (c) to (f) essentially also seek for this Court to overturn Berman DCJ's findings. So far as (c), (e) and (f) are concerned it was not shown why it was not open to his Honour to find that the investigation was not conducted in an unreasonable or improper manner, the prosecutor had not failed to investigate properly any relevant matter and there were no exceptional circumstances justifying an order for costs. In relation to (d) the assertion of bad faith was abandoned. 32 It was put (despite the formulations in the questions) that the question of law was whether Berman DCJ erred in not finding that the prosecution was unreasonably maintained because he failed to take into account critical matter and did take into account a matter which logically and rationally could not have been taken into account. 33 Such a question is not before the Court and the undesirability of this Court reformulating questions has been unequivocally expressed: see McConnell Dowell Constructions (Australia) Pty Limited v Environmental Protection Authority [2000] NSWCCA 367 per Spigelman CJ @ par 81. 34 Nevertheless it is convenient to state why the appellant's contention should be rejected. The stance of the appellant was that it did not contest the presence of St John's Wort on the property, nor did it contest that it had done nothing, in particular by way of spraying, during the period specified in the information. It had refrained from action because at all material times the property was affected by drought and refraining from spraying moisture stressed weed was asserted to be appropriate, a circumstance proclaimed both by literature and evidence. As a submission earlier set out states in part, there were said to be "undisputed facts" and this is a reference to those circumstances. The absence of dispute on the facts is not a matter of common ground and I will return to this. 35 The appellant's case was that it had instituted a pasture improvement programme which was "on hold" during drought conditions but its establishment, and further intended implementation when conditions were suitable, amounted to everything that could reasonably be required or expected on the particular land: cf King v Tait 1952 52 SR (NSW) 137. 36 In his reasons for upholding the appeal Berman DCJ had said: "….I am satisfied that the evidence reveals that a reasonable person could not reasonably be required or expected to spray herbicide on St John's Wort during a period of drought". 37 In his subsequent judgment refusing costs he said: "….It seems that the prosecutor acted reasonably in bringing this prosecution in the light of the absence of any work over a lengthy period of time….". 38 It was contended that thereby his Honour took the reason that the appeal was allowed as the basis for a finding that the prosecution was reasonably brought and that this demonstrated error of law. In the appeal what his Honour determined was that the offence was not proved because the obligation to fully and continuously suppress and destroy the weed was not to be applied literally and the existence of the long term plan of the appellant was sufficient to conclude that there was a failure to meet the requirement for proof of the commission of the offence. It is not inconsistent with the failure of the prosecution to hold that it was reasonable to commence it, given what was ultimately undisputed, that nothing at all had been done during the long period of time. 39 I return to the contention of the appellant concerning "undisputed facts". Among the defects in the presentation of the case stated is an absence of record (other than in the annexed judgments) of the existence of controversies, which were obviously germane to any decision to institute the proceedings. The appeal book in fact contains transcript of the evidence and, in elaboration of his complaint that the respondent was excluded from input into the form of the case stated, counsel drew attention to the issue at trial as to whether the pasture improvement programme of the appellant had any impact on the weed, or indeed whether, unless there was an initial clearing of it, there was any likely impact. The transcript also demonstrates that the respondent gave evidence that, although general drought conditions prevailed, the particular weed had been observed to be healthy and in flower and therefore amenable to control by spray. The respondent accepts it was open to his Honour to find these controversies in favour of the appellant, but they were germane to the reasonableness of instituting the proceedings, yet reference was omitted from the case stated. There was ample material for his Honour's conclusion. 40 It does not bear upon the issue as to whether costs should be withheld in accordance with the terms of s 70 that, after contest, the contentions of the appellant advanced in its response to the notice to show cause found favour with the tribunal. 41 As Mr Hammerschlag SC acknowledged, save question (b), his submissions dealt with the other questions in a compendious fashion, somewhat in accord with the extract from the written submissions which I have set out. Whilst I have expressed views that the arguments advanced by the appellant should, in any event, be rejected, I do not consider that the Court should answer questions which have been inappropriately formulated. 42 As previously indicated I would answer question (b) in the negative. I would decline to answer questions (a), (c), (d), (e) and (f). 43 I would order the appellant to pay the respondent's costs of the case stated: Clyne v Wrigley 1980 1 NSWLR 599. 44 BELL J: I agree with Grove J. **********

Castlebar Holding v Riley

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Cases Cited (2)

Cited By (4)