Liability for Investigation Costs
140The prosecutor also seeks an order that Truegain pay the investigation costs incurred during the investigation of the offence, but only those investigation costs referrable to the offence as particularised in the amended summons, and not the original summons. Applying the logic above, I agree that the prosecutor is entitled to these costs.
141A problem arose, however, because as the transcript reveals, the prosecutor intended, but omitted, to put any evidence before the Court as to the quantum of the investigation costs it claimed an entitlement to (T43.24-43.37):
HOWARD: ...Unless there's anything that I can say to the Court, I'm asked to, it may be that this is a little precipitant but in respect of investigation costs there --
HER HONOUR: No, it's good to know the amount.
HOWARD: The amount of investigation costs all in total is just under 50,000 as I understand it and I'm asked to indicate to your Honour that a very high proportion of those costs were the costs in, no, the investigation costs were put to be in the sum of $49,392.50 and a very high proportion of that, I don't wish to trouble my friend. It may be I don't need to go there. All I wish to do is if it's required at the end of the day in justification of the investigation costs I'm prepared to make a submission if that's required. I'll say nothing further, may it please the Court.
142What the transcript does not record is that prior to Mr Tom Howard SC, counsel for the prosecutor, saying "I'll say nothing further, may it please the Court", there was a private exchange between himself and Mr Tim Game SC, counsel for Truegain, that interrupted Mr Howard and caused him to perfunctorily end his submission.
143The issue was never revisited. The amount of the investigation costs claimed by Truegain was never agreed to by the parties.
144This was problematic because s 248 of the POEOA expressly contemplates that the Court's power to order a defendant to pay investigation costs is (unlike the payment of the prosecutor's legal costs pursuant to ss 257B and 257G of Criminal Procedure Act) predicated upon those costs being fixed in a specific amount.
145Section 248 of the POEOA states that:
248 Orders regarding costs and expenses of investigation
(1) The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order.
(2) An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979. An order made by the Local Court under subsection (1) is enforceable as if it were an order made by the court when exercising jurisdiction under the Civil Procedure Act 2005.
(3) In this section:
costs and expenses, in relation to the investigation of an offence, means the costs and expenses:
(a) in taking any sample or conducting any inspection, test, measurement or analysis, or
(b) of transporting, storing or disposing of evidence,
during the investigation of the offence.
146Thus, on 7 November 2014, immediately prior to delivery of the judgment in the matter, the prosecutor sought to re-open the evidence in order to rely upon an affidavit of Mr Stephen Fuller sworn that day. Mr Fuller is a Senior Scientist employed by the prosecutor. In his affidavit, Mr Fuller purported to depose to the various scientific investigations undertaken by him during the course of the proceedings, and that the cost of these investigations amounted to $38,807. This sum was broken down in an itemised manner (by way of an amount charged per sample and analysis) in a document annexed to his affidavit, which is annexed to this judgment for convenience at annexure "A". It is this sum that the prosecutor claimed as its investigation costs.
147The date on the annexure is 7 November 2014 and the document does not describe itself as an "invoice" but as "Submission: 201000162". How the document was generated, or who its author is, are not apparent from either the face of the document or from Mr Fuller's affidavit, which merely stated that:
2. I refer to my previous affidavit filed in these proceedings on 23 August 2011. In particular, I refer to my Forensic Report 201000162-FR in Annexure B to my previous affidavit (my Forensic Report) in which I conducted an analysis of the samples collected by the Environment Protection Authority (EPA).
3. The costs incurred by the EPA in preparing my Forensic Report are contained in the invoice labelled Submission 201000162 as Total for routine analyses: $33,977.00 and Total for forensic analysis: $4,400.00. A copy of Submission 20100162 is Annexure A to this affidavit.
148Truegain opposed the application to re-open on the basis of delay. No other prejudice was adverted to by it.
149While I had great sympathy for the position in which Truegain, and the Court, found itself due to the oversight of the prosecutor in not adducing this evidence earlier, it would nevertheless have been somewhat perverse if, having found that the prosecutor was entitled to its investigation costs (as confirmed), none were ordered due to the error. The application was therefore acceded to, but with an adjournment granted to Truegain in order to permit it to meet it.
150When the hearing resumed on 11 November 2014 at 4.30pm, Truegain requested that the rules of evidence apply to the affidavit. This was opposed by the prosecutor on the sole ground that it had not received any notification that such a request was to be made. As correspondence indicated, this proved to be incorrect. Truegain had in fact notified the prosecutor either earlier that day or late the day before. There being no other reason proffered for opposing the application, it was granted.
151Truegain objected to the document at annexure "A" attached to Mr Fuller's affidavit (the "submission") and all paragraphs therein that relied on it. The basis of the objection was that the document was hearsay, and was not capable of falling within the business records exemption contained in s 69(3) of the Evidence Act 1995.
152Section 69 relevantly provides as follows:
69 Exception: business records
(1) This section applies to a document that:
(a) either:
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or
(ii) at any time was or formed part of such a record, and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
(3) Subsection (2) does not apply if the representation:
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.
153I accept, contrary to the submission of Truegain, that the "submission" is a document that forms part of the records of the prosecutor for the purpose of a business and that contains a previous representation recorded in the document (namely, the cost of the forensic analyses) that was made by a person who directly or indirectly may reasonably be supposed to have had personal knowledge of the asserted facts contained in the document (namely, Mr Fuller, who conducted the forensic analyses) (s 69(1) and (2) of the Evidence Act).
154Truegain additionally argued that, given the date of the document (created after the filing of the amended summons on 19 December 2014), the date and circumstances of the swearing of the affidavit and the fact that the amount claimed by way of investigation expenses differed from that orally stated by the prosecutor earlier in Court, it was excluded from the ambit of the exception provided for in s 69(1) by reason of either sub-section 69(3)(a) or (b) of the Evidence Act.
155In my opinion, the submission of Truegain must be accepted. On the face of the document, it was created for the purpose of these proceedings. There is nothing in the affidavit of Mr Fuller that suggests a contrary conclusion ought to be adopted. The document at annexure "A" is therefore inadmissible.
156Recourse to the Forensic Report referred to by Mr Fuller in his affidavit did not assist the prosecutor. While an examination of the report reveals that Mr Fuller conducted the tests referred to in the "submission" at annexure "A" and in his affidavit (the same "submission" number is found in the Forensic Report when describing the samples for oil fingerprinting), it is silent on the cost of the forensic analyses contained therein.
157The prosecutor contended, in the alternative, that paragraph 3 of Mr Fuller's affidavit (quoted above) nevertheless provided a sufficient evidentiary basis for the Court to order Truegain to pay its investigation costs in the amount of $38,807, even absent the "submission".
158I disagree. Again, the costs referred to in that paragraph amount to hearsay evidence, and are inadmissible pursuant to s 59 of the Evidence Act. Even if not hearsay, without any further information concerning how the costs were calculated or to what aspect of the investigation the costs were referrable, the Court would exclude the evidence under either s 135 or s 137 of the Evidence Act on the basis of its prejudice to Truegain. In short, the evidence cannot, without further detail, be tested by Truegain. Similarly, for the reasons given above, the Forensic Report provided no comfort to the prosecutor.
159I therefore reject paragraph 3 of Mr Fuller's affidavit and by parity of reasoning, paragraph 12, which also made similar inadmissible representations. The remaining paragraphs of Mr Fuller's affidavit to which objection was taken by Truegain (viz, paragraphs 6, 9 and 11) do no more than state that the "submission" identifies the costs of analysing various samples, without stating what those costs are. Although of no probative value without the "submission", they are, in my view, nevertheless admissible and are allowed.
160The very vice in admitting the evidence contained in the "submission" about which Truegain complained, was neatly illustrated by a careful examination of reasonableness of some of the investigation costs the prosecutor was purporting to claim. Having regard to the answers to a request for further and better particulars by Truegain provided by the prosecutor on 24 February 2012, and comparing those answers to the particulars to the original summons and the particulars to the amended summons, Truegain was able to demonstrate that there was no relevant nexus between nine of the samples for oil fingerprinting taken and analysed by the prosecutor and the offence as ultimately charged (all the samples taken at locations 1 through to 7 on the premises). This was because the samples were taken at locations that were so physically remote from the TWT, they were clearly taken for the purpose of proving the original rather than the amended charge.
161Accordingly, the Court could not conclude that the prosecutor had established that the costs of this sampling and analyses had been reasonably incurred by it as a consequence of investigating the offence with which Truegain was charged (s 248(1) of the POEOA and see Environment Protection Authority v Ashmore (No 2) [2014] NSWLEC 142). This amounts to $10,800 in investigation costs. Therefore, even if I am incorrect as to the inadmissibility of the document at annexure "A", the total amount of investigation costs the prosecutor would be entitled to is $28,007.
162Although strictly unnecessary given my conclusion above, for completeness I will deal with Truegain's submission that (again, on the assumption that I am wrong and the document at annexure "A" is admissible) the costs detailed in Mr Fuller's affidavit were not costs that were "incurred" by the prosecutor because Mr Fuller was employed by it, and therefore, there was no evidence that it was liable to pay these costs.
163Mr Fuller is akin to an in-house solicitor and by analogy, just as a corporate entity or public regulator (such as the prosecutor) can claim its professional legal costs for the work undertaken by its employed legal representative on the premise that they are legal costs incurred by it (Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (No 2) (1997) 97 LGERA 368 at 385 and 386 and Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333 at [20] and [21]), so too are the costs and expenses occasioned by an expert in carrying out their professional duties (such as the forensic analyses undertaken by Mr Fuller) incurred by the entity employing that expert (in this case, the prosecutor). There is nothing in the text, context or statutory purpose of s 248 of the POEOA that mandates a contrary view.
164There having been no admissible evidence put before the Court as to the amount of investigation costs Truegain should pay, the prosecutor has failed to discharge its evidential burden under s 248 of the POEOA and no order can be made.