Certificate for EPA Act prosecution costs should issue
121Whether a certificate ought be issued under s 2 of the CCC Act is essentially a matter for the Court to determine in the exercise of its discretion. In this case the Prosecutor has adopted the role of contradictor to the exercise of discretion in the Defendants' favour. Under s 3(1)(a), in granting a certificate, I must consider whether if the Prosecutor had been in possession of all relevant facts it would not have been reasonable to commence the proceedings. I must also consider in forming that opinion in s 3(1)(a) whether the Defendants contributed to the institution of or continuation of the proceedings under s 3(1)(b). The parties agree that the relevant principles to be considered in applications under the CCC Act are identified in Mordaunt at [36] by McColl JA (Beazley and Hodgson JJA concurring) as follows:
(a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA;
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(d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing);
(e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559-560); the judicial officer considering the application must find what, within the Act, were "all of the relevant facts" and assume the prosecution to have been "in possession of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, "it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue": Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134-135) per Kirby P;
(f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559-560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court if of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164-165) per Sheller J (with whom Mahoney JA and Hope AJA agreed);
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(h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]) per Sully J (at [42]); R v Hatfield (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in R v Ahmad [2002] NSWCCA 282;
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(m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Hunt J, 17 May 1990, unreported);
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122The following reasoning in Pavy v R (1997) 98 A Crim R 396 (at 401) was relied on by the Defendants:
The legitimate interest which the community has in serious crimes being prosecuted by the Director of Public Prosecutions is not disputed. That cannot, in our judgment, make it reasonable as between the Crown and the Accused/Applicant to prosecute in the face of significant weaknesses in the Crown Case of which the Crown, acting reasonably, ought to have been aware.
I must determine whether that observation applies in this case.
123The Court of Criminal Appeal noted in Pavy that the CCC Act requires a court to approach the s 3(1) question from the point of view of the hypothetical prosecutor, who is taken to have known all the evidence as it emerges in the case (at 400). See also R v Tooes [2008] NSWSC 291 at [5] - [7], and [11] per Studdert AJ.
124Mordaunt identifies ([36(d)]) that the Defendants bear the onus of establishing that the Prosecutor's behaviour was unreasonable. It further identifies ([36(e)]) that the task of the Court is to ask whether "if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings". Section 3A(1) of the CCC Act provides that all relevant facts include those established in the proceedings (subsection (1)(a)) and any relevant facts that a defendant has established to the satisfaction of the Court in the certificate application (subsection (1)(b)). Subsection (1)(c) encompasses the evidence of Mr Hanger read in this costs hearing.
125As identified in the Prosecutor's submissions, an issue that arises is whether the Defendants' grounds are based on evidence of facts established for the purposes of s 3(1)(a). Whether there are settled facts which support the Defendant's grounds in (i) and (ii) is debatable. As to facts established at trial, Mato (No 4) at [19] - [92], [102] - [123], [171] - [204] identifies evidence adduced at trial by the Prosecutor. A key witness, Mr Hanger, unexpectedly did not appear at trial. Consequently, the Defendants' extensive oral evidence was largely uncontested. Mr Hanger's evidence, which the Prosecutor had intended to adduce at trial, was tendered in the costs hearing and can be taken into account in relation to costs under the CCC Act. There are however a number of significant conflicts in the evidence of Mr Hanger and Mr Coomes, and Mr Bennett and Mr Wood, which remain unresolved as their evidence was not tested together at trial.
126In 109(i) and 110(i), the Defendants rely on the absence of evidence from Mr Smit at the trial as a relevant fact. The possibility that Mr Smit played a role in instructing Mr Hanger arises because of my acceptance of Mr Coomes' uncontested oral evidence in Mato (No 4). That evidence suggested that Mr Smit had an active role in both engaging and briefing Mr Hanger on what work was required at Kunanadgee. The evidence of Mr Bennett suggested some role for Mr Smit to a lesser extent. Mr Hanger's evidence which has been tendered in this costs hearing does not suggest that Mr Smit had any role in providing instructions to Mr Hanger beyond driving him and Mr Ceman around the property on 25 September 2009. As Mr Smit was not interviewed, charged, or called as a witness, his evidence is unknown.
127The original minutes of Mato meetings tendered at trial record that Mr Smit suggested that a contractor he knew be engaged and, more importantly for present purposes, had a role in providing instructions to the contractor. All that can be said of this evidence is that had it been known before the commencement of proceedings Mr Potter would have interviewed Mr Smit concerning his role if any in giving instructions to Mr Hanger. The evidence of Mr Hanger in his ROIs and affidavit does not identify Mr Smit as the person from whom he obtained instructions, rather Mr Hanger names Mr Ceman, Mr Bennett and Mr Coomes in various contexts. What Mr Smit might have said about briefing of Mr Hanger and whether he would have concurred with the evidence of Mr Coomes is unknown. It follows that there is no established fact about Mr Smit's involvement in relation to giving instructions to Mr Hanger which the Defendants can rely on for this ground. This is a longer way of stating what the Prosecutor put succinctly, namely that Mr Smit not appearing as a witness concerns the conduct of the case and is not an established fact to which s 3 refers. There is accordingly no basis to conclude that there was a reasonable doubt as to causation of the snag clearing absent Mr Coomes or Mr Bennett. No unreasonableness by the Prosecutor in instituting proceedings is established by the Defendants.
128In relation to 109(ii) and 110(ii), as already stated the conflict in evidence as between Mr Hanger and Mr Bennett and between Mr Hanger and Mr Coomes was not tested in Court. The existence of that conflict was known by the Prosecutor before the commencement of proceedings. As identified in Mordaunt at [36(m)], it is not unreasonable for matters of judgment concerning witness demeanour and credibility to be left for the ultimate fact-finder, here a judge. That observation applies to this ground. It was reasonable for the Prosecutor to decide that Mr Hanger's evidence was sufficient to establish the elements of the offence. The evidence of Mr Wood, a witness called by Mr Coomes at trial, also contradicted parts of Mr Hanger's evidence. It was reasonable for the Prosecutor to place that conflicting evidence before the trial judge.
129In relation to 109(iii) and 110(iii), I drew the legal conclusion in Mato (No 4) that no development consent was in force under the EPA Act at the time of the work giving rise to the offences. The relevant fact established during the trial was that the Council issued two notices of determination in different terms for the same development application. Mr Potter did have possession of the Parr consent by virtue of the email of 9 November 2007 from a Council officer as well as the Corcoran consent obtained from Mr Parr before proceedings were commenced. The November 2007 email was tendered during this costs hearing. That two notices of development consent were issued was not appreciated by Mr Potter before the commencement of proceedings. It is therefore more accurate to say that Mr Potter did have possession of the two notices but lacked awareness of that fact and that there were possible legal consequences arising from it.
130Had the Prosecutor been aware of the two different notices issued by the Council before proceedings commenced, was it reasonable to commence these on the assumption that there was a development consent in force at the time of the work giving rise to the offences? The conclusion that there was a consent in force is a mixed question of fact and law. The circumstances surrounding the communication of the notices was not straightforward and required me to draw conclusions of fact from which a legal conclusion was then drawn, as set out in Mato (No 4) at [554] - [561]. In these circumstances it is finely balanced whether the commencement of the EPA Act proceedings based on a breach of development consent in particular was reasonable in the context of the CCC Act. On balance if that information had been known to the Prosecutor, including awareness of the possible legal consequences, I consider that it was not reasonable to commence the proceedings in relation to the EPA Act charges against both Defendants.
131An element of the FM Act charges required the Prosecutor to prove the Defendants had knowledge that habitats of the relevant kinds were damaged. The issue therefore arises of whether commencement of the FM Act proceedings was reasonable where reliance was placed on the presumption under s 220ZD(2)(b). It is to be conclusively presumed that a person knew that the habitat was of the specified kind if the act causing damage to habitat was a failure to comply with a development consent. I ultimately held there was no development consent in force at the time of the offences so that this statutory presumption could not operate. It was unnecessary for me to resolve in Mato (No 4) whether Mr Bennett or Mr Coomes had knowledge of habitat because I held at [505] that the Prosecutor had failed on the element of causation of the offences in relation to both Defendants. I noted at [508] that Mato accepted that Mr Bennett had knowledge of the presence of habitat. I note however that Mr Bennett and Mato were separately represented and Mr Bennett did not admit this element of the offence at trial.
132The Prosecutor relied on both the statutory presumption and actual knowledge of habitat in relation to Mr Bennett at trial: see written closing submissions at trial at par 89, 93. Mr Bennett said in his ROI that he was aware of the contents of the Habitat Planning's ecology report regarding fish habitat, the endangered ecological community, and that snags provide habitat: Mato (No 4) at [181]. Mr Bennett was also aware that the work breached condition 16 of the development consent: Mato (No 4) at [250]. The commencement of the FM Act charges against Mr Bennett did rely in part only on the presumption in s 220ZD(2)(b).
133Mr Coomes' counsel submitted that there was no evidence that Mr Coomes had knowledge of the relevant habitats and the Prosecutor therefore had to rely on both the statutory presumption of knowledge. The Prosecutor relied on the statutory presumption of knowledge and evidence of actual knowledge in relation to Mr Coomes, as can be seen from its written closing submissions at trial at par 89, 93.
134Even if the Prosecutor had known that the statutory presumption was not available before trial, this does not mean it was unreasonable to commence the FM Act prosecutions given that evidence of actual knowledge was also adduced by the Prosecutor.
135The Prosecutor submitted that s 3(1)(b) applies to the behaviour of the Defendants. If it does I can exercise my discretion not to award a certificate in relation to the EPA Act charges. There was evidence at trial that Mr Coomes made deliberate omissions about Mr Smit in his ROI in relation to the role he said was played by Mr Smit (Mato (No 4) at [486]). Mr Coomes also made deliberate changes to the minutes of Mato meetings omitting references to Mr Smit and himself regarding the clearing work on Kunanadgee and the preparation of a scope of works. These were passed to Mr Bennett to be sent to Mr Potter. I made no specific finding in relation to Mr Bennett and the alteration of the minutes. I identify in Mato (No 4) at [486] the occasions on which there were changes made to the minutes of Mato meetings, Mr Coomes' creation and then deletion of a draft letter of engagement for Mr Hanger based on the scope of works which he knew contained unauthorised work, deletion of Mr Coomes' email to Mr Smit attaching the scope of works, and deletion of the reference in the invoice to the preparation of the draft letter of engagement. The Prosecutor submitted that acts and omissions by Mr Coomes and Mr Bennett contributed to the institution or the continuation of proceedings and were not reasonable.
136Mr Coomes' counsel submitted that even if the original minutes had been available to the Prosecutor before trial, charges would still have been pressed against Mr Coomes and s 3(1)(b) does not apply. The Prosecutor accepted that submission during the hearing. It is difficult to say whether the acts and omissions of Mr Coomes and Mr Bennett to a lesser extent contributed to the institution or continuation of proceedings against them as a number of factors were relevant to the commencement of proceedings, not least the evidence of Mr Hanger. On balance I consider s 3(1)(b) does not apply to the acts and omissions by Mr Bennett and Mr Coomes more particularly, as these did not contribute to the institution or continuation of proceedings against these Defendants.
137In conclusion, certificates under s 2 of the CCC Act are to be issued in relation to the EPA Act charges for Mr Coomes and Mr Bennett. Costs of the costs hearing will be reserved.