John Leo Fisher v R

Judgement

1. This is an application for costs made by the appellant after his successful appeal to this Court, following a conviction recorded in the Local Court at Goulburn: [2019] NSWDC 297.
2. This application has been dealt with "on the papers": 1. written submissions on behalf of the applicant filed on 19 July 2019 (MFI 3), including a letter from the applicant to the commander, Hume Police Division dated 3 April 2018 (exhibit C1); 2. written submissions for the respondent dated 23 August 2019 (MFI 4); 3. written submissions in reply by the appellant, undated, forwarded to my Associate electronically on 08/10/2019 (MFI 5). These submissions were prepared by the solicitors who appeared for the parties before me at the hearing of the appeal on 27 June 2019.

The claim made

1. The appellant claims: 1. $5,267.86 incl. GST for the costs of his defence in the Local Court; 2. $26,251.98 incl. GST for the costs of the appeal to this Court; and 3. $4,965 incl. GST for the preparation of the appellant's submissions on costs.
2. The appellant seeks these costs "pursuant to s 214 of the Criminal Procedure Act 1986". The respondent has not submitted that the claim is misconceived and that the power to award costs might lie elsewhere, but it ought to have done so, as the power to grant the relief claimed does lie elsewhere.

Relevant statutory powers

1. In this judgment: "Appeal Act" means the Crimes (Appeal and Review) Act 2001. "CPA" means the Criminal Procedure Act 1986.
2. The appeal to this Court was under the Appeal Act, Part 3 (Appeals from the Local Court to District Court). Division 1 (Appeals by Defendants) which includes these provisions: 20(1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal … 28(2) In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings. (3) Subject to section 70, the District Court may make such an order as to the costs to be paid by either party (including the Crown) as it thinks just.
3. Section 70 is in Part 6 (Provisions Common to All Appeals). It is this: Limit on costs awarded against public prosecutor 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 purpose of subsection (2), an officer of an approved charitable organisation (with 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 or section 9(1) of the Veterinary Practice Act 2003.
4. The power of this Court to order the respondent to pay the applicant's costs of the appeal arises under s 28(3) of the Appeal Act. The Court's power to order the respondent to pay the appellant's costs in the Local Court arises under s 28(2) and such power as the Local Court has to order a prosecutor to pay a successful defendant's costs.

The substantive grounds relied upon by the appellant.

1. The prosecutor in the Local Court was Senior Constable Garry James Handsaker of Tarago Police (see Court Attendance Notice, issued 5 February 2018, served 9 February 2018 and filed in the Local Court at Goulburn on 14 February 2018). He was represented on 21 March 2018 by Sergeant Weston. That was the first return date of the CAN. The matter was then set down for hearing on 8 May 2018. On that day the prosecutor was represented by Sergeant Ryan. The matter was adjourned to 15 May 2018 and was completed on that day. Senior Constable Handsaker was acting on a complaint made to him by Mr Joseph Kiley Mooney, the owner of the land upon which it was alleged the appellant had trespassed: see his statement of 23 March 2018, exhibit 1 in the Local Court, pars [3] to [5]. This was clearly a public prosecution. The only private prosecutor could have been Mr Mooney. Appeal Act s 70 and CPA s 214 are therefore enlivened.
2. The appellant has not expressly stated the provision(s) on which he relies, but it can be gleaned from MFI 3 [13]: "There was, in this instance, an unreasonable and complete failure to properly investigate the relevant matter - namely, the existence or otherwise of a roadway through the complainant's property, a matter about which the prosecutor was aware of from the very commencement of proceedings, and about which he was told on the very day after the offence was alleged to have occurred and further in … the appellant's Letter of Representation." I take that to indicate a reliance on paragraph (c) of each of Appeal Act s 70(1) and CPA s 214(1). Ms Lumsden, for the respondent reached this same conclusion: MFI 4 [13]. I shall proceed on that basis. The onus of proving this entitlement to costs under paragraph (c) of either provision is on the appellant: Fosse v DPP [1999] NSWSC 367 (Wood CJ at CL) at [16] and [29]. The standard of proof is the balance of probabilities. This case is also of interest as it shows that the common parent of Appeal Act s 70(1) and CPA s 214 was Justices Act 1902, s 81(4).

Investigation of the complaint

1. The trespass alleged to have occurred on Monday 20 November 2017 around 3:45pm was witnessed by Mr Mooney. Senior Constable Handsaker attended upon Mr Mooney at his residence on Tuesday 21 November 2017 at about 12:40pm. Senior Constable Handsaker obtained a 4 page statement in his notebook which Mr Mooney signed. Mr Mooney showed the Senior Constable a letter from his solicitors, RMB Galland Elder dated 26 August 2016 which stated that the appellant had no permission to travel through Mr Mooney's property "unless it be on the Crown Road". The "Crown Road" was a road reservation running along the western boundary of Lot 2541 from the Federal Highway to the southern boundary of the lot to the south-eastern corner of the lot where it gave theoretical access to both the appellant's property (Lot 257 DP 750047) and the property of Mr Fisher Senior (Lots in DP 750047) but the "Crown Road" was "impassable" (exhibit 2 in the Local Court). This "Crown Road" is not the right of way which I identified in my substantive judgment. The letter which Mr Mooney showed Senior Constable Handsaker became exhibit 2 in the Local Court. After reciting their client's instructions that the appellant and others had been travelling "across over client's land from the south-eastern corner to the north-west corner without our client's permission or consent", the letter concludes thus: "We have reviewed our client's title to the above land and just so there is no doubt in anyone's mind we can confirm that there are no right of carriageway burdening the land and as we have said previously any legal access you have from your land to the Federal Highway is along the strict corridor which constitutes the unopened Crown Road to the south and west of our client's land." At his meeting with Senior Constable Handsaker, Mr Mooney drew on a part of a cadastral map the place where he said he saw the appellant on the previous day and the route he allegedly took in order to cross Mr Mooney's land. That map, so marked, became exhibit 4 in the Local Court.
2. Around 3:30pm on the day Senior Constable Handsaker took Mr Mooney's complaint, Senior Constable Handsaker telephoned the appellant. The Senior Constable's statement contains this matter: I introduced myself and explained to Mr FISHER I have received a complaint of trespass through Joe Mooney's property 5888 Federal Highway Collector. Mr FISHER said, "I can travel through here, that's not trespassing." I said, "Mr FISHER this is why I need to speak to you to get your version of what occurred on Monday". Mr FISHER replied, "I can't now as I've got shearing happening, anyway what have I done that's wrong." I said "Mr Mooney has made a complaint of trespass. This is a serious offence. Once I've looked into it and if I find out that you've been trespassing, worst case is you'll receive a ticket in the mail for Trespass. If you haven't done anything wrong, you have nothing to worry about. This is why I need to speak to you, can I come over to you tomorrow afternoon around 5pm and speak to you then?" Mr FISHER agreed to this.

What the police investigation established

1. At the time the matter commenced to be heard, the prosecution was able to prove: 1. on 20 November 2017 at 3:45pm the appellant was riding a motorcycle 2. across inclosed land, fully fenced and gated, 3. belonging to Joseph Kiley Mooney 4. without his consent, 5. which lack of consent had previously been communicated to him in writing by Mr Mooney's solicitors on 26 August 2016 and 1 May 2017, and 6. the alleged diagonal road or right of way was denied by Mr Mooney and 7. Messrs RMB Galland Elder, solicitor of Goulburn had "reviewed" Mr Mooney's title to the land and there were "no rights of carriageway burdening the land". In my view the investigation made was sufficient to prove beyond reasonable doubt the elements necessary to establish the charge made.
2. At [26] of my substantive judgment I reviewed the relevant provisions of the Inclosed Lands Protection Act 1901 s 4. Proof of lawful excuse to be on the land lies on the alleged trespasser. It was the burden of the appellant to prove, on the balance of probabilities, that he had a lawful right to be on the property, a lawful right to travel over the property on the alleged diagonal right of way: that can be found, succinctly, in the headnote of my substantive decision. This was not a "defence" such as self-defence, duress or alibi which, if raised, the Crown must disprove beyond reasonable doubt. Before me, the appellant was successful because, on the evidence presented, the right of way alleged by the appellant existed at the time of the alleged trespass on the balance of probabilities.

Why did the appellant lose in the Local Court?

1. The letter of Messrs RMB Galland Elder of 26 August 2016 and the piece of a cadastral map annexed to it (exhibit 2 in the Local Court) were admitted for a limited purpose only: as a notice to the appellant that he was only permitted to enter that part of Mr Mooney's property that was identified as the Crown Road (transcript, 8 May 2018, p11.8 - 11.22). Nevertheless, the police prosecutor cross-examined the appellant about that part of the letter that referred to their opinion of Mr Mooney's title to the land (I quoted this at [13] above). That cross-examination can be found in transcript, 15 May 2018, p 4 to p 6. However, no objection was taken to that cross-examination by the solicitor appearing for the appellant (who was not the solicitor who appeared for him on the appeal). The questioning was objectionable: the letter was not that of the appellant and it was based, implicitly, on the proposition that the solicitor's opinion was correct, when the letter had not been admitted for that purpose. The Magistrate did not refer to it in her reasons, but whether it had subtly influenced her, unconsciously, is a question which cannot be answered. For the purpose of the appeal, I ignored the solicitor's opinion as to Mr Mooney's title to the land because (a) the letter had not been admitted for that purpose, and (b) the solicitor's opinion was irrelevant: if the prosecution wished to prove Mr Mooney's title to the land it had to do so properly.
2. Of greater moment, however, is the failure to have evidence admitted: 1. MFI A in the Local Court was a poor quality photocopy of part of a topographical map published by the NSW Land Information Centre, "Gunning 8728 - S", 1:50,000, printed in 1976. MFI A does not show the name of the map, its scale, its provenance or its date. The police prosecutor objected to its tender. Her Honour rejected it: "I have heard no evidence about the source or accuracy or the date in relation to that map. The objection being taken, unless there's any further evidence, I uphold that objection." (Transcript, 8 May 2018, p40.42). No attempt was then made to tender a full copy of the map as provided and issued by NSW Land Information Centre. 1. MFI B was a colour photocopy of part of the Tarago Parish Map, probably 2nd Edition (current between 20 June 1895 to 9 June 1910) showing the right of way (LB 95 679) and MFI C was another photocopy of part of that map showing the same area, but at a larger scale. The police prosecutor objected to their tender. Her Honour rejected them: "In relation to the tender of MFI B, which is the 1800s map, I uphold the objection in relation to how a map from the 1800s is relevant to whether or not there was a road, track, thoroughfare, path, whatever it is, in November 2017. I reject the tender. …… MFI C is a larger version of MFI B which I have already rejected, so I reject it on the same basis" (Transcript, 8 May 2018, p 40.31 and p 40.47). No attempt was made to prove the source of MFI B and MFI C nor the significance of "LB 95 679" or that it was the genesis of the route shown on subsequent maps. 1. MFI D was a map of "Upper Lachlan Local Government Area" which bears the seal of the Upper Lachlan Shire Council and the logo and name of the Land and Property Management Authority of this State. It is dated July 2010. It shows the route in question as a thin, broken, brown line. To ascertain the meaning of that I had to aply a magnifying glass to the scale. It shows it as a "local unsealed road", (I refer to this in [13] of my substantive decision. There is better light in my Chambers than there is in the court rooms of John Maddison Tower. Exhibit 5 before me was a small scale copy of the whole map and a very enlarged copy of that part of the map said to show the road. I went back to the Local Court file and found the original of MFI D, which is a much larger copy of the full map than is contained in exhibit 5 in this Court. Using better light and the magnifying glass I am now satisfied that the line I was describing in [13] of my substantive judgment was brown not grey, and that it is correctly identified as a "local unsealed road".) Her Honour admitted MFI D as exhibit 6, but on a limited basis only. "The map is admitted as evidence of the route the defendant says he took across the land. The issues in relation to date and provenance of the map still remains, but it is certainly evidence of that and I will allow it." The provenance and date of the map are clear, albeit that the top and bottom portions of the map have been truncated from Local Court exhibit 6, probably indicating that it was accessed or stored electronically. The copy of their map in District Court exhibit 5 is similarly but also lacks the notes on the left hand side that can be found in the Local Court exhibit. 1. MFI E was a black and white map of the Shire of Mulwaree, issued by the "Director of Engineering Services", I infer, of that Shire, and dated 2 June 1999. It bears the seal of that Council and the scale is 1:200,000. On its left hand side is a "Schedule of Roads". Road 103 is "Tarradale Road (90 and SH3)". SH3 is the Federal Highway and Road 90 is the Currawang Road. The inference to be drawn is that it runs between the Federal Highway and the Currawang Road. This was a significant piece of evidence to the appellant's case. No attempt was made by the appellant's solicitor to tender it.

Why did the appellant win in the District Court?

1. This can be answered fairly succinctly. By Notice of Motion filed 21 November 2018, the appellant moved the Court to admit further evidence on appeal, to comply with the Appeal Act, sections 18 and 19. That application was heard and determined by Yehia DCJ on 2 April 2019. Her Honour granted the appellant leave to tender MFI A, B, C and E and also fresh evidence, evidence which I canvassed in my substantive judgment. Mr Mooney was recalled by the Crown to deal with the further evidence, albeit that he did not do so successfully, and made the concessions about the appellant's route when his attention was turned to the internal fencing and gating of Lot 2541. In short, the appellant was successful in this Court because he proved that he fell within the proviso to Inclosed Lands Protection Act 1919, s 4(1), a task which he had failed to do in the Local Court.

Disposition

1. In criminal proceedings, the basic common law principle is that the Crown neither pays or receives costs: Latoudis v Casey (1990) 170 CLR 534 at 557 per Dawson J. There is no power under the District Court Act 1973 to make an order for the payment of costs in criminal proceedings: R v Mosely (1992) 29 NSWLR 735 at 740C per Gleeson CJ (Kirby P and Mahoney JA agreeing); DPP v Deeks (1994) 34 NSWLR 523 (Kirby P, Mahoney and Handley JJA). The power to award costs must be sought in Statutes and the relevant legislation I canvassed between [5] and [9] above. At [20] above I found that the investigation made by Senior Constable Handsaker was sufficient to prove beyond reasonable doubt the elements of the offence with which the appellant was charged. The prosecution was not required to disprove what the appellant might prove to put himself within the relevant proviso. Senior Constable Handsaker was not aware of the existence of the right of way which I identified, and the appellant failed to tell him about it through the interview of 22 November 2017 or in his letter of 21 November 2017. This may be because the appellant was unable to articulate exactly what was his right: some things he said lead one to the view that he believed that there was a road by prescription or a right arising by prescription or that his land had the benefit of a right to cross Mr Mooney's land (query, an easement by prescription where the appellant's land was the dominant tenement and Mr Mooney's land the servient tenement). I have sought to show that the appellant was unsuccessful in the Local Court, but successful in this Court, because he discharged the onus which he bore to put himself within the proviso. The appellant has not satisfied me that this is a case in which Appeal Act s 70(1)(c) applies or CPA s 214(1)(c) applies.

Discretionary matter

1. Even if I were so persuaded, there is a discretionary matter which looms large. Even if the Court had power to award costs, such an award is always discretionary. In my substantive judgment I said this: The only thing which has excited my interest in what is otherwise an interesting case is the fact that evidence was given by Mr Mooney today that the property which he now owns and has owned since 2015, which includes Lot 2541, was changed from old system title to Torrens Title after the death of his father, Gregory, in 2008. Mr Mooney thought that after the death of his father the title was put into Torrens system. That happened either in 2008 or 2009. It would be of great interest to the Court to know whether the right of way shown in the maps exists on the certificate of title for the property. However the Crown has not adduced such readily available evidence. I now know that the appellant knew what the Torrens Title Register disclosed: the right of way was not recorded on the Register. Exhibit C1 contains this matter: "Torrens Title 19. Proven legal precedents of roads being determined based on actual use imposed by the landscape, while not on title The Federal Highway was not gazetted until 1939, common use Murchison's 1836 original grant Taradale. Local road, absent from Title in 2012, but a public road none the less through use and expenditure There are a variety of proven precedents to Indefensibility [sic, scil. Indefeasibility], e.g. Dobbie v Davidson converted in 1966, while neighbours' was converted in 2007. 20. Easement rights and public rights lawfully arose on neighbour's land 2451/1116965 before his ownership, pre-dating [Real Property Act 1900] to his holding …"
2. Dobbie v Davidson (1991) 23 NSWLR 625 concerned an access road to a rural property which had been used for sixty years prior to 1964 when the land over which it passed was brought under the Real Property Act 1900 and also for 25 years thereafter without any specific permission of the landowner. The Court concluded that the right of way existed and that its "omission" from the Register came within the exception to indefeasibility in s 42(b) of the Real Property Act 1900. At first instance Waddell CJ in Eq. had granted a declaration that the land was subject to the right of way and an order requiring registration of the right of way.
3. In short, the appellant knew that the right of way was not recorded on the Register, but did not advise the Court of that fact, which prevented the Court determining the real issue: whether that right of way ought to have been registered. However, a determination of such an issue in these criminal proceedings would not have bound Mr Mooney, but it might have been persuasive. This is a reason to exercise the Court's discretion to refuse a costs order if it were possible to make one.

The significance of exhibit C1

1. This is the letter from the appellant to the commander, Hume Police Division dated 3 April 2018. It composes 3 closely typed pages. The fourth last paragraph contains this: "I am writing … this letter of representation, given the case appears without reasonable cause, asking the matter to be dropped." It is what a lawyer would call a "No bill application". It goes on to foreshadow "an application for costs being sought". The last paragraph is this: "I await your written response within 5 working days." The letter was drawn to the attention of Inspector J Horn. It is also marked "Private and Confidential", an inappropriate marking for a letter of this type.
2. The letter raises many matters, more than those raised in either the Local Court or this Court, and the extraneous matter clouds the substance of the letter: an attempt to point out the long existence of the right of way. It refers to this matter by its COPS Event number and two other COPS Event numbers. It refers to materials available online, to materials alleged to have been previously supplied and enclosed: "4 x Stat Decs; Published article by Spring Valley residents dated 11 Sept. 1917; Close up of Mulware Road Schedule 1999, provided by GMC late 2017. NB road 103 and highway." Frankly, it would have to be considered by a lawyer, with some expertise in the law of Real Property. I doubt that any commissioned police officer could understand the full significance of what the appellant intended, if he could glean what was the essence of the argument the appellant was putting forward. Some of what it contains is defamatory of Mr Mooney (hence "Private and Confidential"?) which any reader would find off-putting.
3. MFI 3 contains this: The appellant's sent a letter of representations to the Commander dated 3 April 2018 (this was also produced by the NSW Commissioner of Police pursuant to subpoena). A copy is annexed to these submissions and marked as annexure 'A'. In that letter the appellant identified the issues in contention and made reference to supportive documentation that satisfied the definition of 'road' as per Inclosed Lands Act 1901 and the existence of the road on which he was traversing.
4. I do not know when the letter reached Hume Division HQ. I do not know by whom or when it was first read. I do not know how it was dealt with - was it sent down the chain of command to Senior Constable Handsaker, or up the chain of command to Police HQ in Sydney. It would need to be dealt with by a lawyer to understand it, to prise out if it its substance. In any bureaucracy it would take a large number of weeks to obtain a response, or a number of months. The hearing had been fixed on 21 March 2018 for 8 May 2018. In my assessment, there was no reasonable prospect of obtaining any meaningful response to the appellant's letter of 3 April 2018 before 8 May 2018. The appellant's expectation of a reply in 5 working days was as reasonable as requiring him to send his letter within 5 days of his conversation with Senior Constable Handsaker on 21 November 2017. The reality is that there could be no response to the appellant's letter prior to the commencement of the hearing.

Amendments 24 January 2020 - Technological issue regarding paragraph numbering resolved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 January 2020